LAW ENFORCEMENT
Murmuring against government is common in every age. That subjects murmur means little, but what they murmur about can be revealing. According to Eusebius, the murmuring in Constantine's time was murmuring about Constantine's laxity. There was "no fear of capital punishment" because of the emperor's uniform inclination to clemency, and as a result no one was deterred from crime. "None of the provincial governors visited offenses with their proper penalties," and as a result the public placed "no small degree of blame on the general administration of the empire."43 The bishop of Caesarea found in Constantine a political expression of Jesus' exhortation to love enemies. His mind was so full of anxiety to avoid "wanton sacrifice of human life" that he preserved lives of his enemies. He ordered his troops to spare prisoners, reminding them that they shared a "common nature" with opposing soldiers, and he reinforced this rule by promising gold to every Roman soldier who spared a life. "Great numbers even of the barbarians were thus saved, and owed their lives to the emperor's gold."44
Eusebius's enthusiasm inevitably leaves us slightly suspicious, and it would be nice to have some outside confirmation of his claims. We have little, and what we do have leaves us unsettled. Far and away the most scandalous exercise of power by Constantine was the execution of his wife Fausta and his son Crispus, which occurred shortly after the council of Nicaea and after Constantine's visit to Rome for his vicennalia celebration in 326. Eusebius says nothing of this incident, but he must have known about it, since he erased references to Crispus and Fausta from an earlier edition of the Church History. Zosimus is the earliest witness, and after him the story became part of the standard account of Constantine. According to Zosimus, Constantine's conversion was tied directly to what the chronicler calls the murder of his wife and son:
But when he came to Rome, he was filled with pride and arrogance. He resolved to begin his impious actions at home. For he put to death his son Crispus, stiled (as I mentioned) Caesar, on suspicion of debauching his mother-in-law45 Fausta, without any regard to the ties of nature. And when his own mother Helena expressed much sorrow for this atrocity, lamenting the young man's death with great bitterness, Constantine under pretence of comforting her, applied a remedy worse than the disease. For causing a bath to be heated to an extraordinary degree, he shut up Fausta in it, and a short time after took her out dead.
In the eighth century, the Passion ofArtemius records a similar story, embellishing it with classical references:
Constantine did kill his wife Fausta-and rightly so, since she had imitated Phaedra of old, and accused his son Crispus of being in love with her and assaulting her by force, just as Phaedra had accused Theseus' son Hippolytus. And so according to the laws of nature, as a father he punished his son. But later he learnt the truth and killed her as well, exacting the most righteous penalty against her.46
A very similar account occurs in the Greek historian Zonaras, who, though writing in the twelfth century, had access to fourth-century sources:
His [Crispus's] stepmother Fausta was madly in love with him but did not easily get him to go along. She then announced to his father that he [Crispus] loved her and had often attempted to do violence to her. Therefore, Crispus was condemned to death by his father, who believed his wife. But when the emperor later recognized the truth he punished his wife too be cause of her licentiousness and the death of his son. Fausta was placed in an overheated bath and there found a violent end of her life.47
For obvious reasons, this has been a dark stain on Constantine's record. Voltaire considers the deaths homicides; Burckhardt describes both deaths as "murders" committed by Constantine.41 Craig Carter points to the incident as evidence that Constantine continued to act like a typical Roman emperor, willing to kill "political rivals" even if the rival was his own son.49
The critics may be right, but despite the damning evidence, it is wise to be cautious. Many of the charges go far beyond the evidence that we have. Scholars have doubted whether the stories of sexual dalliance are accurate, and it is not even obvious that the two deaths were related to one another. Even if we assume that their deaths are connected, and even if we assume a sexual relationship between Crispus and Fausta, we cannot be sure what the whole sordid affair means. We can eliminate some possibilities. It is implausible to suggest that Crispus was a political rival. A competent and widely admired young man he was, but if Constantine was fearful of his power, he would not have appointed him Caesar or encouraged his ambitions by giving him a court and command of an army. These facts also undermine the claim, made by some historians, that Crispus was eliminated from the line of potential successors because of his "illegitimacy." It is not clear that he was illegitimate, and even if he were, Constantine's own questionable origins make it unlikely that he would consider illegitimacy a bar to the imperial throne. More fundamentally, if illegitimacy stood in the way, why would Constantine have elevated Crispus to the position of Caesar in the first place? In short, the few facts we know militate against the notion that Constantine was eliminating rivals among his family.
David Woods has suggested a scenario that attempts to sense of all the evidence.50 He accepts the ancient testimony that Crispus and Fausta had sex but leaves open the question whether it was rape or consensual. Fausta became pregnant. Constantine could hardly have ignored such a flagrant violation of family and political order. What was his response? Did he execute his son for adultery or for rape? If they were both guilty, the death penalty for adultery was on the books, and Constantine was within his legal rights to condemn them. This case would then be a scandal only if one assumes that the death penalty for adultery is scandalous. Yet there is no other evidence that Constantine applied the death penalty for adultery, and the manner of Crispus's death is unusual. He died by poison on the out-of-the-way island of Pola. Had he been executed, he would have been beheaded rather than poisoned. And the location is unusual too. Shortly before this incident Constantine had exiled a senator because of adultery, and it is possible that Crispus too was exiled. Possibly the exiled Crispus was given the choice that many Romans before had been given, the choice to bury shame in suicide.
Fausta's manner of death is even more unusual. If there is no evidence for poisoning as the punishment for adultery, there is certainly no evidence for death-by-overheated-bath. Ancient medical treatises, however, sometimes recommended hot baths to induce abortion, and Fausta, pregnant by her stepson, may have died in a botched abortion attempt. If Constantine pressured her to have the abortion, he would be free of the charge of murdering his wife but would come under the condemnation of the church as a child-killer, and hence a murderer.
In short, it is possible that Constantine wanted neither Crispus nor Fausta dead, that he sentenced his son to exile and pressured his wife to have an abortion, which, like many ancient abortions, went wrong. Woods's is the construction of the evidence that most fully absolves the emperor,51 yet even on Woods's reconstruction, Constantine violated strict Christian prohibitions against abortion and enabling abortion. Yet Woods's explanation is not proven, and it is equally possible that in this incident we have the veil drawn back on a sordid domestic political affair, one in which Constantine acted, as when he dispatched Maximian and Licinius, with decisive brutality.
EVANGELICAL LAW
The Western legal tradition grew out of the "upheaval" of the Investiture Controversy of the eleventh century,52 and one of the keys to that revolution was consolidation of a system of canon law. Civil law coexisted with, copied and sometimes competed with canon law. But for the clergy of the time, canon law was superior, and civil law should be changed to conform to the church's standard. The church was the maker of manners:
Many of the reforms which it promoted command respect even seven and eight centuries later: the introduction of rational trial procedures to replace magical mechanical modes of proof by ordeals of fire and water, by battles of champions, and by ritual oaths; the insistence upon consent as the foundation of marriag
e and upon wrongful intent as the basis of crime; the development of equity to protect the poor and helpless against the rich and powerful and to enforce relations to trust and confidence. S3
Canon law was far from perfect, but it set a standard of justice that civil rulers were exhorted to emulate and that founded the Western legal tradition until recently, when the religious foundations of Western law have been severely eroded.
Grafting the evangel on civil law represents, to some theological critics of Constantine, a key instance of the evils of Constantinianism, the wedding of church with power, gospel with civil order. I do not find the evangelization of law54 at all threatening. Civil law cannot be religiously neutral. It cannot serve Jesus and Jupiter, God and Mammon. It will either love the one and hate the other, or hate the one and love the other. It is a good thing if the law is not organized, as Roman law was, to favor the wealthy and powerful. It is a good thing if the mechanisms and procedures of civil law are modified to make it possible for the injured to find redress and vindication. Indeed, it is an act of neighbor love-love of an enemy, even-for a Christian king to issue an edict opening up episcopal courts to Jews and pagans as well as Christians.
Constantine had no system of canon law to emulate, and as I have at- gued, there is little evidence that he pursued a deliberate program of "Christianization" of Roman law. Yet whatever his intentions or program, if he had any beyond responding to the next appeal, Constantine began the "Christianization" of law. As the later history of Western law indicates, the main contribution of the first Christian emperor was to give the church freedom to be itself, to erect its own legal structures, to organize its own system of conflict resolutions, to carry out its own sanctions. As always, there were costs, a risk and a downside, the risk that the church would simply sacralize the status quo or the will of the emperor. That happened often enough, but not infrequently the opposite happened and the church was able, through example and exhortation, to infuse the evangel into the very structures of civil order, so as to render them more just and compassionate. For planting the seeds of that harvest, we have Constantine to thank.
He was a mighty man who brought to pass whatever he attempted. He strove for mastery over the entire world.
EUTROPIUS, BREVIARUM HISTORIAE ROMANAE 10.41
On March 25, A.D. 101, the emperor Trajan (98-117) set out with four legions on a military expedition against the Dacians, who inhabited a region stretching east from the Pannonian Plains across the Carpathians to the Black Sea.2 At forty-two, Trajan was at an ideal age for such a campaign, free from both the "recklessness of youth and the sluggishness of old age." Besides that, he took as much "delight in war" as in wine and boys. The Dacians "had good cause to fear him."
During his preparations for battle, someone brought him a large mushroom bearing a Latin inscription written by some of Rome's allies, warning him to turn back. Ignoring the warning, he threw himself into the battle, losing men and killing many Dacians. Bandages gave out, and Trajan tore strips from his own clothing to bind up the wounded. Finally, the Dacian king Decebalus came out, fell to the ground and did obeisance to the Roman emperor, promising to cast aside his arms and befriend Rome. Trajan assumed the title Dacicus and inscribed it on coins; he celebrated his triumph in Rome, complete with gladiatorial combats. It seemed a satisfying conclusion.
Decebalus had not given up. Even as many Dacians were submitting to Trajan, Decebalus gathered troops and arms and raised assistance from surrounding nations. He sent some Roman deserters to assassinate Trajan, but they were captured, and they confessed under torture. He invited the Roman commander Longinus to conference, but when he arrived, Decebalus had him arrested and questioned him about Trajan's plans. Longinus frustrated that effort by drinking poison.
Trajan could not let these insults stand. Roman honor was at stake. By 105, he had constructed a massive bridge over the Danube and crossed into Dacian territory. Several detachments from Trajan's army converged on the capital, Sarmizegetuza, destroying fortresses as they went. At the capital, they laid siege. The Dacians resisted, but the Roman war machines were too strong. They blocked the water supply and, after permitting the Dacians to leave, set fire to the city, acclaimed Trajan in the sacred center, and destroyed the fortress. Trajan occupied all the territory of Decebalus, and the latter, seeing he had no chance of winning, fled into the mountains. When the Romans pursued, Decebalus acted like a Roman and committed suicide. Trajan brought his head back to Rome, along with treasures-nearly forty tons of gold and twice as much of silver-discovered in a cave submerged under water that Decebalus had diverted from the Sargetia River. Trajan "drove out or destroyed a large number" of Dacians and resettled the territory with Roman veterans and people from the East.'
There was a backstory. Romans believed that "conquest was a good and glorious thing" and considered "desire for a title, a triumph, or a glorious reputation" to be "a perfectly plausible explanation for war."4 Trajan went on to fight back a Parthian incursion and, energized by success, moved east, incorporating Arabia into the empire in 106, driving the Parthians from Armenia and annexing it, and establishing a province of Mesopotamia. Eventually he reached the Persian Gulf and intended, it appears, to rival Alexander with a march into India.5
Sheer greed, ambitio or lust for the glory of conquest, however, was never sufficient pretext for just war. It was not the rationale that appeared in press releases. Dacia had gold and silver mines, but seizing them would not serve as a public reason for war. Trajan's Dacian wars were a response, and Trajan would perhaps have called them a "defensive response." One of Trajan's predecessors, Domitian, had also attempted a war with the Dacians, in reaction to the devastation brought by another Decebalus in an invasion of Roman territory in 84-85. Domitian also aimed to connect the Rhine and the Danube with a chain of fortresses. He did not fare well. The Roman commander, praetorian prefect Cornelius Fuscus, died, and the sacred standard of the Praetorian Guard was captured. In another campaign Domitian came to terms with Decebalus, who allowed the Romans access to his territories in exchange for an annual "gift" from the Romans to the Dacians. After Domitian died, "men made free to call it a tribute."6
Domitian had put the best spin he could on the whole affair. He is said to have purchased slaves who were done up to look like captives so that he could celebrate a triumph.? But the truce with the Dacians was doubly galling for the Romans. Not only did they have to pay tribute to a barbarian king, but Domitian had done nothing to avenge the death of Fuscus or the humiliating loss of the standard. This was the "threat" that Trajan was subduing, not so much a physical threat to the Danube frontier as a threat to Roman honor.
The Roman Empire did not have a "grand strategy" in the sense that moderns think of it. The Romans lacked the technology in both cartography and communications. There is something to be said for the thesis that Rome's empire was an "unexpected" empire that expanded through a ripple of defensive alliances.' Security in the negative sense of safe roads, unpillaged fields, untransgressed borders does not, however, explain Roman imperial behavior. As Augustine knew, what guided foreign policy and imperial expansion was Roman love for honor, philotimia, which ex pressed itself in a lust for domination (libido dominandi).9 Romans gained honor and glory by conquest, and by the titles and honors paid to conquerors back home. When a rival treated Rome with mockery, that insult needed to be avenged, with clemency if possible, viciously if necessary. Earlier in Domitian's reign, Nasamones massacred Romans and plundered the camp of Flaccus, but then drank themselves drunk on the spoils. This gave Flaccus the opportunity to "annihilate them, even destroying all the non-combatants." The same Domitian whose hapless Dacian war we have noted was "elated" and boasted to the Senate, "I have forbidden the Nas- mones to exist.."10 Terror kept barbarian pride in check; the sacrifice of barbarians and rebels maintained Roman honor.
This was, to the Romans' sense, a defensive posture. Romans reasoned, If the barbarians get uppity, they might attack. To be safe, we need to
make sure they never get uppity. Shock and awe keep them in their place, and any sign of weakness only encourages them. Roman imperial policy may be described as a pursuit of "security" so long as it is understood that security meant honor." Virgil had written that the Roman Empire existed to subdue pride, superbia. That was true, but Romans came to define superbia as any opposition to Rome.12
CONSTANTINUS IMPERATOR
Constantine was immersed in Rome's military culture. He was in the Roman army from his youth to the end of his life, and like nearly every Roman emperor before and most after him, he was ambitious for territory and glory. Like his predecessors, he was willing to use brute force to attain his goals, and he covered his violence with propaganda that makes it impossible to know what actually happened.13 By the early fourth century, the empire was more defensive than expansive (see below). One index of this stance was the fact that many of Constantine's military victories occurred in wars waged against other Romans, usually relatives.14 He became the undisputed Western Augustus after putting down a revolt led by his father-in-law Maximian, took Rome by invading Italy while it was under the control of his brother-in-law/uncle-by-marriage Maxentius, and expanded his domains to the east in two wars against another brother-inlaw, Licinius. He believed these were wars of liberation, and many of his subjects agreed. Rome greeted him with enthusiasm, and the Christians of the East welcomed him as the church's liberator from the persecution of Licinius. Enthusiastic Eusebius celebrated his victories as gifts of God, and the more sober Augustine attributed his success in war to God's blessing: "In conducting and carrying on wars he was most victorious; in overthrowing tyrants he was most successful."15 There is no evidence that any bishops criticized Constantine for his conquests and battles with family members, and the evidence that survives suggests that they warmly supported him. Perhaps they knew more than we, and knew that every last one of Constantine's actions was a justifiable act of self-defense. I find that unlikely. Constantine was less brutal than some emperors, but one does not have to be a pacifist to notice unpleasant resemblances between Christian Constantine's career and that of any of a dozen pagan emperors.
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