The Historians of Late Antiquity (30 page)

One of the enduring accomplishments of the Roman empire was its system of law. The fifth century saw the monumental compilation of the Theodosian Code, a collection and arrangement of laws dating back to the age of Constantine. Yet the legal corruption of the later empire is an equally prominent theme in the modern imagination (Harries 1999; Matthews 2000; Honoré 1998). Late antique histories rarely provide details of the technicalities of ancient laws or legal practices, but they reveal more generally the attitudes and expectations of their writers toward law and justice.

For Ammianus, the administration of justice was equal only to leading the troops in war as a primary task of the emperor. Matthews shows the serious moral weight that the law held for
Ammianus (Matthews 1992). Ammianus considered Roman law essential to the maintenance of a just empire and suggests that the law is the means by which the vagaries of fate might be avoided. Just rule exists, according to Ammianus, for the safety and benefit of imperial subjects (30.8.14), and regularized legal procedure is necessary to prevent justice from being driven out of the law courts, as happened under the rule of Gallus (14.7.21).

A good emperor must uphold the law fairly, and Ammianus praises Julian, for example, for never failing to distinguish between right and wrong (18.1.2). Ammianus, like other late antique historians, feels that greater danger lies in the risk of an emperor being too harsh in judgement, rather than too gentle. Clemency is therefore an essential virtue for the emperor. Thus Constantius, though he was in fact the object of various plots, is criticized for his merciless and inhumane pursuit of suspects and his excessive use of torture (21.16.8–11). Valentinian, too, is condemned because he was pleased by cruel judges and encouraged them to act with severity (30.8.13). While Valens wished to seem to allow judges independence, in reality no judgement was made against his will (31.14.6). Julian’s clemency is praised by Ammianus even when he commutes the sentence of a rapist (16.5.12).

Treason trials are a regular part of Ammianus’ narrative and are the object of highly rhetorical criticism from the historian. The trials under Gallus lacked even the form of law, which Ammianus claims previous cruel emperors had used to cloak their tyranny (14.1.5). The criticisms Ammianus levels about legal procedure in his account of these trials seem stereotypical, as they recur in his portrayal of corrupt legal proceedings under later emperors as well. Men are executed without the opportunity to speak in their own defense (14.1.3); men of low social standing spy on citizens and give maliciously elaborated reports of their actions to the emperor (14.1.6); and dubious evidence is brought forth to condemn the innocent (14.7.20). In his discussion of the treason trials at Rome at the time of Valentinian (28.1) and in the east at the time of Valens (29.1–2), Ammianus contrasts the triviality of the infractions with the savagery of the punishments inflicted (Matthews 1989: 209–26; Zawadski 1989; Elliott 1983: 148–58; Blockley 1975: 104–22; Funke 1967). Ammianus does recognize the legitimacy of trials held in defense of the imperial majesty, and he supports the illegality of “black magic” directed toward the emperor (19.12.17; 29.1.15–18). The historian demonstrates that some were punished in these trials for benign forms of magic, as when Bassianus was
nearly executed for simply attempting to foretell the sex of his unborn child (29.2.5). Ammianus does not comment on the guilt or innocence of many of the defendants, however. His focus remains on the need for fair legal procedure and imperial clemency.

Legal proceedings also figure in the
Res Gestae
as an arena in which the courage of those unjustly accused might be tested.Torture was used in late imperial trials in order to gain evidence, and was not meant to be a punishment in itself. Ammianus shows that information gained from torture was, not surprisingly, often inaccurate. When Pergamius was suspected of illegal divination and was tortured, he named many thousands of accomplices from the furthest corners of the earth (29.1.15). Diogenes, a man of lowly origins, implicated Ammianus’ friend Alypius under severe torture to please the emperor (29.1.44). Endurance under torture was a particularly prized virtue, and Ammianus often highlights this heroism. The philosopher Pasiphilus was brutally tortured in an attempt to get him to implicate Eutropius in a plot, but his will did not break (29.1.36; Angliviel de la Beaumelle 1992).

While the emperor was in theory the final judge of all disputes in the empire, in practice it was of course impossible for him to hear more than a fraction of cases. Ammianus criticizes Valens for following the advice of his praetorian prefect, Modestus, to refuse to hear private cases at all. He claims that this left complainants at the mercy of an alliance between their powerful opponents and the lawyers, since the prospect of appeal to the emperor had been removed (30.4.1–2). This inspires Ammianus to digress upon the faults of various types of lawyers (30.4.3–22; Matthews 1992: 48–50). The historian claims to have personally experienced the corruption of the four separate types of lawyers he will discuss, but the muddled digression swiftly degenerates into a traditional, satirical denunciation of outrageous legal behavior. Ammianus decries lawyers who stir up trouble between family members (30.4.9), those who use obscure parts of the law to secure acquittals for guilty clients (30.4.12), those who manipulate the law to cause confusions and delay (30.4.13), and those who milk clients by extending cases indefinitely (30.4.18). His complaints are so stereotyped, however, that they cannot be taken seriously as evidence of legal corruption specific to late antiquity.

Victor and Eutropius follow Ammianus in holding clemency to be the most important imperial virtue in legal proceedings. Victor accuses Tiberius of cruelty in punishing the innocent and guilty alike (2.1), and Eutropius likewise condemns Domitian for executing
senators (7.23.2). Carinus, according to Eutropius, executed many innocent men, and upon becoming emperor even avenged himself upon some of his schoolmates who had called him names when he was a child (9.19.1). By contrast, the good emperor is clement even toward the guilty. Eutropius says that Titus was so clement toward conspirators against him that he not only pardoned them but treated them as friends (7.21.2). Victor portrays Vespasian as clement even toward supporters of his opponents in the civil wars which had brought him to power, although he adds that Vespasian did execute a few who “perhaps had acted far too atrociously” (9.2). In his defense of Septimius Severus, Victor apologizes for the emperor’s lack of clemency. Severus had been accused of cruelty for the many executions which he ordered, both against his opponents in civil wars and against potential conspirators during his reign. Victor explains that these executions were performed so that the emperor might act more gently in the future, and in order that the example of harsh punishment might prevent further uprisings. He concludes by explaining that the necessity of executions was imposed upon Severus by the general “corruption of the times” (20.13).

Eunapius praised Julian as a judge, noting particularly his accessibility and his refusal to postpone trials (
fr
. 25.1). The suppression of imperial anger was also an important element in Julian’s fair administration of justice (
fr
. 28.2). In reflecting upon Valens’ harshness, Eunapius draws a distinction between erring on the side of harsher penalties, which he condemns, and erring on the side of pardon or clemency, which he praises. The former he sees as a symptom of a theory of power based on fear, while he argues that the appearance of clemency magnifies the perception of imperial power (
fr
. 34.9).

Church historians echo some of the same concerns about law and punishment found in secular historians. The admirable resistence of the innocent man in the face of torture, for example, is recast as the Christian courageously undergoing torture and even martyrdom at the hands of pagans or heretics. The torture of Theodore by agents of the emperor Julian, related by Rufinus and then picked up by the three Greek church historians, provides an example. Through ten hours of agony, with torturers on each side, Theodore sang hymns with a beatific look on his face (Ruf. 10.37; Soc. 3.19; Soz. 5.20; Theod. 3.11). Afterwards, he told Rufinus that he felt no pain thanks to an angelic youth who wiped his brow. Theodore even stated that he had enjoyed the experience so much that he was unhappy when he was removed from the rack.

As the church gained power over the course of the fourth century, it adopted various roles which had previously been the domain of secular government, in particular the judicial role. In his praise of the bishop Silvanus, Socrates reveals the risks which were incurred from the involvement of clergy in judicial decision-making. Silvanus collected the documents in legal cases entrusted to his judgement and had them judged by a pious layman, since he had witnessed how the power of judging had often corrupted members of the clergy (7.37.14–15). The importance of imperial clemency is another theme which the church historians preserve and imbue with Christian meaning. In his panegyric of Theodosius II, Socrates compares the Christian emperor with Julian (7.22.7). Julian had claimed to be a philosopher, but had been consumed by rage against the people of Antioch and had ordered the torture of poor Theodore. Theodosius, however, had mastered his emotions, and never sought revenge upon enemies. He never practiced capital punishment, since it denied the criminal the opportunity to repent, and he refused the request of the people to have criminals thrown to the wild beasts of the arena.

The treason trials under Valens are briefly described in some of the church historians. Socrates notes that Valens had sought to kill all men whose name began with the letters “theo” as the result of a prophecy which predicted the accession of such a man as his successor (4.19). This resulted in the unfortunate execution of Theodotus, Theodulus, and others, and prompted still others to quickly change their names. Sozomen provides an elaboration of Socrates’ account, which harshly condemns Valens for allowing himself to be so influenced by the un-Christian belief that the stars could predict his successor (6.35).

Socrates says that John Chrysostom had considered a career in the law, but reflection upon the unjust nature of those who practice law dissuaded him (6.3.2). Sozomen, by contrast, omits negative judgement on lawyers, undoubtedly because he was one himself (8.2.5). Sozomen’s greater knowledge and interest in legal matters set his work apart from the other church historians. Errington has demonstrated some of these differences in the specific case of Theodosius’ religious legislation (Errington 1997). For example, Sozomen presents in some detail the law of Theodosius which made homoousian doctrine the only legal form of Christianity (7.4.5–6). Socrates does not mention this immensely important legislation, and says only that Theodosius favored those who shared his faith (5.14.7). Sozomen has clearly read the original law of Theodosius in the
Theodosian Code, since he understands that the law was limited in its original application to the city of Constantinople (Errington 1997: 414–15). Sozomen’s interest in law and use of the Code is equally evident in his treatment of Constantine’s religious legislation (1.8, 9), his discussion of some of Julian’s legislation (5.1), and the legislation of Jovian (6.3). Other historians, however, made no use of the compilation.

Economics

Ancient historians are notoriously uninterested in economic history, and the historians of late antiquity are no different in their general disregard for the subject and their ignorance of economic tenets. Nevertheless, historians reveal their beliefs and concerns about some economic topics in passing. At the intersection of state policy and the economy are two such topics, taxation and price regulation. Church historians also touch upon Christian attitudes toward money in their discussion of church finance and charity.

The late Roman state maintained a complex system of taxation in both coinage and in kind, which historians rarely describe in much detail (Jones 1964: 411–69; Frank 1972). Instead, the charge of excessive taxation is generally used without much supporting detail to condemn emperors whom the historian dislikes. Historians generally attribute high taxation to the personal avarice of the emperor, as Ammianus does in his characterization of Valentinian, whom he accuses of excessive “greed of possessing more” (30.8.8). Ammianus is aware that some try to explain Valentinian’s need for additional revenue by saying that the failure of Julian’s Persian campaign had left the empire with serious financial problems, but he dismisses this suggestion with the statement that some things ought not to be done even if one has the power to do so. Ammianus strangely contradicts his claim of Valentinian’s rapacity only a chapter later, when he praises the emperor for lowering taxes everywhere (30.9.1; Matthews 1989: 239–41). Ammianus’ praise of Valens for his prevention of tax increases is also personalized. Valens, he says, protected the provinces from financial injury as he would his own household. Eunapius’ view is different in substance but similar in style when he claims that Valens was an insatiable taxer owing to his “love for money” (
fr
. 39.9). Lowering taxes was, for Ammianus, a significant part of Julian’s great triumph in Gaul. When the Caesar succesfully resisted a tax increase, the Gauls were so relieved that they paid their taxes in advance (17.3.6). Likewise,
when Julian reduced taxes from twenty-five gold coins per person to seven, the Gauls rejoiced with dances (16.5.14).

Victor and Eutropius generally agree that “good” emperors lowered taxes and “bad” ones raised them. Trajan, for example, did nothing unjust in collecting taxes (Eut. 8.4), and Constantius I, an “outstanding” man, cared more for the wealth of the provinces and of individuals than of the treasury (Eut. 10.1.2). On the other hand, Maxentius, “an inhuman beast,” invented an entirely new tax for senators and farmers (Vic. 40.24). The good emperor is also frugal with imperial resources, as Marcus Aurelius demonstrated when to avoid instituting new taxes he held a “garage sale” of various luxurious items from the palace (Eut. 8.13.2). Vespasian receives mixed evaluations from both historians. He was too strict in collecting taxes, Eutropius says, but he was not unfair, and he distributed the proceeds freely, especially to those in need (7.19.2). Victor says that the emperor placed new and temporary taxes on the provinces only to pay for the devastation of civil war, but admits that many faulted him for this (9.6).