Defending Constantine: The Twilight of an Empire and the Dawn of Christendom (30 page)

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

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.