Defending Constantine: The Twilight of an Empire and the Dawn of Christendom (60 page)

`Watson, Law oftheAncientRomans, p. 36.

"Grubbs, Law andFamily, pp. 255-56.

53Kuefler, Manly Eunuch, p. 76.

56This is how Barnes characterizes the legislation: Timothy D. Barnes, "Constantine After Seventeen Hundred Years: The Cambridge Companion, the New York Exhibition and a Recent Biography," International Journal ofthe Classical Tradition 14 (2008).

55Kuefler, Manly Eunuch, pp. 83-84.

17 See Dorries, Constantine the Great, pp. 83-84. Even MacMullen (Constantine, p. 194) admits that Constantine turned a kind legal face toward slaves and humiliores.

"Grubbs, Law and Family, pp. 206-7. Constantine's definition of adultery is similar, defined in terms of social status (ibid., p. 255).

591bid., pp. 26-27; Georges Depeyrot, "Economy and Society," in The Cambridge Companion to Constantine, ed. Noel Lenski (Cambridge: Cambridge University Press, 2006), p. 249.

60See Peter Garnsey, "Legal Privilege in the Roman Empire," Past and Present 41 (1968): 3-24; John A. Crook, "Ivs Romanvm Doli Revm," review of Social Status and Legal Privilege in the Roman Empire by Peter Garnsey, Classical Review 22 (1972): 238-42; P. A. Brunt, review of Social Status and Legal Privilege in the Roman Empire by Peter G arnsey, Journal ofRoman Studies 62 (1972): 166-70.

61Lactantius Divine Institutes 5.14.

12 See CJ 8.52.2.

'G. E. M. De Ste. Croix, "Why Were the Early Christians Persecuted?" Past and Present 26 (1963).

'A. H. M. Jones, The Later Roman Empire, 284-602: A Social, Economic andAdministrative Survey, 2 vols. (Baltimore: Johns Hopkins University Press, 1964), 1:470. Simon Corcoran (The Empire ofthe Tetrarchs: Imperial Pronouncements and Government, AD 284-324, rev. ed., Oxford Classical Monographs [Oxford: Oxford University Press, 2000], p. 240) also notes Constantine's frequent railings against the venality of his officials and his desire to give access to justice to poor and rich alike.

'Jones, Later Roman Empire, 1:502.

4T. G. Elliott, The Christianity of Constantine the Great (Scranton, Penn.: University of Scranton Press, 1996), p. 100.

'Jones, Later Roman Empire, 1:499.

6H. A. Drake, Constantine and the Bishops: The Politics of Intolerance (Baltimore: Johns Hopkins University Press, 2000), p. 331.

'Diocletian launched similar efforts to curb the corruption of the court system; Corcoran, Empire ofthe Tetrarchs, pp. 239-44.

Blbid., 1:503.

9Ibid.

10Elliott, Christianity of Constantine, p. 100.

"For a revealing analysis, see Drake, Constantine and the Bishops, pp. 325-44; the text is included as an appendix in Drake. Unfortunately, Drake concentrates so heavily on refuting Norman Baynes's view that Constantine's policies were motivated by a desire to ensure the success of the church that he misses the important religious thrust of the legislation. He rightly notes that Constantine's concern was for "fair and speedy trials" (p. 327) and an effort to empower the poor (p. 339). He also recognizes that the emperor's solicitousness for the poor had little support in traditional Roman legal practice, where social privilege played an enormous role. Yet he doesn't put these two insights together to ask how Constantine came to be convinced of the need to use the power of the emperor to open up avenues of redress for those who could not afford the Roman courts. The answer, it seems clear, is that Constantine was following Christian imperatives and impulses. Drake, somewhat contradictorily, claims that the purpose of the legislation on appeals was to "correct the notorious tilt of Roman courts in favor of the rich and powerful," adding that the emperor did this "in the belief that by this means he will secure divine favor" (p. 336). If he is courting divine favor by attending to the poor, how is the legislation "social" rather than "religious"?

12Ibid., pp. 333-35. The phrase "oppressed lower classes" is from CTh 1.16.4.

130ne of Yoder's examples of living out the gospel is the judge who opens "the court system to conflict resolution procedures" and resists "the trend toward more and more litigation." Perhaps he would have had some sympathy with the intentions of Constantine's legislation on appeals (Body Politics: Five Practices of the Christian Community Before the Watching World [Scottdale, Penn.: Herald, 2001], p. 27).

14Paula Fredricksen, Augustine and the Jews: A Christian Defense of Jews and Judaism (New York: Doubleday, 2008), pp. 312-14. A. D. Lee ("Decoding Late Roman Law," Journal of Roman Studies 92 [2002]: 192) notes that bishops often played the role of arbitrator or mediator.

15See Jean Gaudemet, Formation du droitcanonique etgouvernement de 1'Eglise de 1'antiquite a Page classique (Strasbourg: Presses universitaires, 2007).

16 Lactantius Divine Institutes 6.12.

17Eusebius Life 1.43; 4.1, 4. This is perhaps overdrawn, but Zosimus too comments on Constantine's generosity but describes it as "voluptuousness" (New History 2.53).

"Drake, Constantine and the Bishops, p. 342; Hermann Dorries, Constantine the Great, trans. Roland Bainton (New York: Harper, 1972), pp. 160-62.

"Cicero De Domo 29, 77.

20Max Radin, "The Exposure of Infants in Roman Law and Practice," Classicaljournal20, no. 6 (1925): 338-39. Cf. W. V. Harris, "Child-Exposure in the Roman Empire," Journal ofRoman Studies 84 (1994).

21Harris, "Child-Exposure," pp. 11-15, summarizes the reasons for exposing children.

22Lactantius Divine Institutes 6.20.

23For a summary of the complexities of this legislation, see Harris, "Child-Exposure," pp. 20-21.

24This is evidence against Raymond MacMullen's claim ("What Difference Did Christianity Make?" Historia 35 [1986]: 160) that Constantine did not attack the practice of exposing children. While it is true that he never outlawed the practice, his legislation made clear his disapproval. Dorries, Constantine the Great, p. 83, is correct to say that Constantine condemned exposure as a form of murder.

25Harris, "Child-Exposure," p. 19: "There was a powerful inhibition in the way of selling a child of citizen parents. That was precisely what could not be allowed to happen to a member of the citizen community. At least some Greeks felt that the selling of children was more abhorrent than exposing them."

26Harris, "Child-Exposure," p. 21.

27This is often described as a reversal of long-standing Roman law, but W. W. Buckland (The Roman Law of Slavery: The Condition of the Slave in Private Law from Augustus to Justinian [Cambridge: Cambridge University Press, 1908], p. 421) points out that Constantine himself claimed that it was permitted by earlier emperors (CTh 5.10.1). According to Buckland, Constantine's "contribution to the matter seems to have been to regulate it by laying down several rules to which such sales must conform."

28And, as everywhere, there is controversy about Constantine's interest in and attention to slaves. Jones (Constantine and the Conversion ofEurope, p. 189) claims that he showed little interest in the problem, while Dorries (Constantine the Great, pp. 92-103) argues that his legislation was revolutionary. For details of particular legislation, see Corcoran, Empire of the Tetrarchs, pp. 108, 113, 167. See E. J. Jonkers, "De l'influence du Christianisme sur la legislation relative a l'esclavage dans 1'antiquite," Mnemosyne, 3rd ser. 1 (1933-1934): 265-80.

29Buckland, Roman Law of Slavery, pp. 3-5.

30Lactantius Divine Institutes 5.15.3.

31For details of these, see Buckland, Roman Law of Slavery, pp. 77, 86, 269, 402, 420-22, 606.

33CTh 9.12.1; Grubbs, Law and Family, p. 26.

32CTh 2.25.1; CJ 5.37.22.2-4; Judith Evans Grubbs, Law andFamily in Late Antiquity: The Emperor Constantine's Marriage Legislation (Oxford: Oxford University Press, 1999), pp. 25-26.

34Dorries, Constantine the Great, pp. 95, 99.

"Christopher Kelly, "Bureaucracy and Government," in The Cambridge Companion to theAge of Constantine, ed. Noel Lenski (Cambridge: Cambridge University Press, 2006), pp. 195-97.

36A. H. M. Jones, "The Social Background of the Struggle Between Paganism and Christianity," in The Conflict Between Paganism and Christianity in the Fourth Century, ed. Arnaldo Momigliano (Oxford: Clarendon, 1963) pp. 26-27; David S. Potter, The Roman Empire atBay, AD 180-395, Routledge History of the Ancient World (London: Routledge, 2004), pp. 387-88.

17 On Diocletian's and Constantine's administrative reforms generally, see Charles Matson Odahl, Constantine and the Christian Empire (London: Routledge, 2004), pp. 229-30; Dorries, Constantine the Great, chap. 8; MacMullen, Constantine, chap. 10; Jacob Burckhardt, The Age of Constantine the Great, trans. Moses Hadas (Berkeley: University of California Press, 1983), pp. 340-41; Timothy D. Barnes, Constantine and Eusebius (Cambridge, Mass.: Harvard University Press, 1981), pp. 9-10; Potter, Roman Empire at Bay, pp. 367-77; Kelly, "Bureaucracy and Government," pp. 183-204.

38Kelly, "Bureaucracy and Government," pp. 183-89; Jones, Later Roman Empire, 1:101.

39Peter Brown ("Aspects of the Christianization of the Roman Aristocracy," Journal of Roman Studies 51 [1961]: 1-11) argues for a "drift into a respectable Christianity" in the two decades following Constantine's death, and Michele Renee Salzman (The Making of a Christian Aristocracy: Social and Religious Change in the Western Roman Empire [Cambridge, Mass.: Harvard University Press, 2002]) argues for an even later development, in the 360s. Timothy D. Barnes ("Statistics and the Conversion of the Roman Aristocracy," Journal ofRoman Studies 85 [1995]: 135-47) vindicates Eusebius, concluding that both Constantine and Constantius "preferred Christians when they appointed men to high office" (p. 144).

40Jones, "Social Background," pp. 28-30; cf. Andreas Alfoldi, The Conversion of Constantine and Pagan Rome, trans. Harold Mattingly (Oxford: Clarendon, 1948).

41Potter, Roman Empire at Bay, pp. 388-89.

42Jones, Later Roman Empire, 2:901.

43Eusebius Life 4.31.

44Ibid., 2.13.

45Zosimus is mistaken. Fausta was Crispus's stepmother.

"Quoted in David Woods, "On the Death of the Empress Fausta," Greece and Rome, 2nd ser. 45 (1998): 71-72.

41Ibid., p. 72.

48Burckhardt, Age of Constantine, pp. 283, 339.

49Craig Carter, Rethinking Christ and Culture: A Post-Christendom Perspective (Grand Rapids: Brazos, 2006), p. 96.

"Woods, "On the Death of the Empress." My point is not primarily to endorse Woods's reconstruction. It maybe wrong, and scholars who claim that a dynastic struggle lay behind the executions maybe closer to the truth. I focus on Woods to show just how little we know about the incident and to defuse the frequent charge that Constantine "murdered" his son. He may have, but we simply lack the evidence to make a confident judgment.

"The only stronger case is that Constantine is to be commended for applying the law without partiality, even when it meant punishing his own son and wife.

12 Harold Berman, Law andRevolution: The Formation ofthe Western Legal Tradition (Cambridge, Mass.: Harvard University Press, 1983).

"Harold Berman, Faith and Order: The Reconciliation ofLaw and Religion (Grand Rapids: Eerd- mans, 1993), p. 44.

14 Thanks to my former student Davey Henreckson for several conversations about this concept.

'Quoted in Hermann Dorries, Constantine the Great, trans. Roland Bainton (New York: Harper, 1972), p. 209.

'I am following the story as told in Dio Cassius Roman History 68.8-14. Additional details from (accessed June 27, 2009).

'Tenney Frank, Roman Imperialism (New York: Macmillan, 1914), p. 355.

4Susan P. Mattern, Rome and the Enemy: Imperial Strategy in the Principate (Berkeley: University of California Press, 1999), pp. 164, 198-99.

'Frank, Roman Imperialism, p. 355.

'Frank, Roman Imperialism, p. 355; see also Dio Cassius Roman History 67.6-10.

7TacitusAgricola 39.

'This is the thesis of Frank, Roman Imperialism, recently popularized, with application to American expansion, by Thomas F. Madden, Empires of Trust: How Rome Built-andAmerica Is Building-a New World (New York: Dutton, 2008).

9See especially Mattern, Rome and the Enemy, chap. 5. For a discussion of the dynamics of honor in the internal politics of the empire, see J. E. Lendon, Empire ofHonor (Oxford: Oxford University Press, 2005). These should be balanced and nuanced by the profound meditations of Carlin A. Barton ("Savage Miracles: The Redemption of Lost Honor in Roman Society and the Sacrament of the Gladiator and the Martyr," Representations 45 [1994]: 41-71), who emphasizes the "less sanguine and sober strains" in the late republican and early imperial culture, the sense that all of Rome's victories were hollow, and the fascination with heroic death.

11Mattern, Rome and the Enemy, p. 215.

12Ibid., p. 175, notes that superbia is "a vice characteristic of people of high status," the "opposite of deference and therefore exactly what one wished to avoid in one's enemies."

13I have in mind especially the deaths of Maximian and Licinius, both of whom died after Constantine defeated them, and both of whom were charged with conspiring against Constantine. Possibly they really did plot; we can see from other incidents that Maximian was not eager to give up power. But we cannot know for sure, and it is likely that they were executed on Constantine's orders and for the protection of his own power. On Crispus and Fausta, see chapter 10.

10Dio Cassius Roman History 67.4.6.

14A point stressed by Raymond Van Dam, The Roman Revolution of Constantine (Cambridge: Cambridge University Press, 2008).

"Augustine City of God 5.25.

16Van Dam, Roman Revolution, p. 91.

19Ramsey MacMullen, Constantine (London: Croom Helm, 1987), pp. 14-16.

"Ibid., pp. 94-95.

181bid., p. 88.

200n the relation of emperor to panegyrist, see C. E. V. Nixon, "Constantinus Oriens Imperator: Propaganda and Panegyric; On Reading Panegyric 7 (307)," Historia 42 (1993): 229-46.

21I am drawing on the summary provided by C. E. V. Nixon and Barbara Saylor Rodgers, eds., In Praise of Later Roman Emperors: The Panegyrici Latini (Berkeley: University of California Press, 1994), pp. 23-24.