Constantine and Imperial Legislation on the Family

Judith Evans Grubbs

Constantine’s nephew, the future emperor Julian, is said to have described his uncle as an 'innovator and disturber of ancient laws and of custom received long ago’ (Amm.

As the longest reigning emperor since Augustus, Constantine was in a better position to influence Roman law than most other emperors. The remains of about 330 constitutions attributed to him survive in the legal sources, most of them found in some form in the Theodosian Code. Approximately 25 per cent of these laws in some way concern the family or sexual relationships.^[340]

Constantine could claim plenty of imperial precedent for his legislation on marriage and the family. Roman emperors had been attempting to regulate the private morals of their subjects ever since Augustus had sought to promote marriage and procreation and curb immorality with his laws on marriage and adultery. Under Augustus, a wife’s adultery, which had been a matter handled in private by her family, became a public offence involving criminal penalties. Augustus also penalised the unmarried and childless by restricting their ability to receive legacies from those outside the sixth degree of kinship, and gave preference for senatorial and municipal posts to those with children. The Augustan legislation was still on the books at the

5.       Constantine and Imperial Legislation on the Family 121 beginning of the fourth century, as were other laws on the family enacted under his successors.^[341]

Most of this legislation is known only from citations in the Digest or references in ancient literature, but we do have preserved in full an imperial edict on marriage enacted under Diocletian.

The edict of 295 against incestuous marriages should be kept in mind when examining Constantine’s legislation on marriage and sexual mores. Many of Constantine’s laws also display self-righteous wrath and indignation at the audacity of subjects whose behaviour runs counter to the imperial concept of morality and piety. This tone has often been attributed to Constantine’s conversion to Christianity, which allegedly instilled in him a strong concern for sexual chastity. But if such expressions of moral outrage can be found also in a law of Diocletian, that most pagan of emperors, their appearance in Constantine’s legislation cannot be explained as simply the result of his adoption of Christian ideology.

There is of course the question of how much of this legislation really can be called 'Constantine’s’ and how much is in fact the work of imperial secretaries or of members of Constantine’s consistory, particularly the quaestor, whose office was apparently created by Constantine himself.^[343] The amount of an emperor’s responsibility in making the laws of his reign would depend on the individual ruler. By all accounts Constantine was very much a 'hands-on’ emperor and I assume that he had control over what his legislation said and approved its wording, whether or not he had a hand in its composition. This does not mean that Constantine was responsible for initiating all his laws; on the contrary, the emperor was often reacting to reports or requests from magistrates to resolve disputes arising from private cases.

Constantine’s legislation on the family can be divided into five general categories (which are not mutually exclusive). This is not to imply that Constantine himself employed such a classification: this legislation is spread over a period of twenty-five years, and is only part of a large body of laws enacted on many different matters. This chapter briefly surveys the legislation on marriage and the family as a whole, focussing on some of the more interesting and innovative laws.

The financial aspects of matrimony, especially questions of inheri­tance, dowry and gift-giving, had always been of great interest to classical jurists and to the upper-class elite for whom they wrote. This was still the case in the Late Empire, and Constantine was responsible for several reforms of the Roman laws of succession making the transferral of property easier and less encumbered by legal constraints. Of the twenty-six extant Constantinian laws on the transmission of family property, more than three-quarters date from the first decade of his reign, among them the famous constitution of 320 repealing the Augustan penalties for celibacy and childlessness (CTh 8.16.1).

In order to encourage marriage and child-bearing among upper-class Romans, Augustus had deprived unmarried men between the ages of 25 and 60 and unmarried women between 20 and 50 of the ability to receive inheritances or legacies from those beyond the sixth degree of kinship. Those who were married but childless could take only half of what had been left them, and only a tenth of their spouse’s property (unless they had been granted the ius liberorum, giving them the same privileges as those with children).

The effects and extent of application of Augustus’ laws have often

⁵          Replies to reports or requests: CTh 6.4.1 (326); 11.27.2 (322); 16.10.1 (320); cf. Sirm. Const. 1 for complete example. Cases involving private citizens: 10.11.1 (317); 4.6.2 and 3 (336). Records of hearings: 7.20.2; 8.15.1. See A.H.M. Jones, Later Roman Empire (1964, rpt. 1986; hereafter LRE), 347-57; F. Millar, The Emperor in the Roman World (1977), 328-41.

⁶          Regulae Ulpiani 15-18 (FIRA² 2, 278-80); Millar (cited above), 158-63; even before this the fiscus seems to have received at least part of caduca in the provinces.

5, Constantine and Imperial Legislation on the Family 123 been exaggerated. In fact, these restrictions affected only those whose wealth and social prominence made it likely that they would receive legacies beyond the sixth degree of kinship; they did not apply to most inheritances within families. They were originally aimed at those Romans whose moral and social behaviour was of the greatest importance to Augustus - that is, the Roman senatorial aristocracy, and the wealthier and more distinguished classes in general.^[344] We know from Tacitus and others that the Augustan laws on marriage and adultery were long a source of irritation to the upper classes.

On 31 January 320, an edict addressed ‘to the people’, was issued from Serdica; on 1 April it was posted at Rome. Seven excerpts from this edict survive, scattered throughout the Theodosian and Justinian Codes. Three of these, preserved only in the Code of Justinian, relax what had been very strict rules regarding the proper wording and witnessing of wills, so that inheritance would no longer be forfeited because of the failure of the dying to use an exact formula and procedure (CJust 6.9.9; 6.23.15; 6.37.21). Two of the excerpts found in the Theodosian Code mitigate what had been very harsh treatment of delinquent debtors (CTh 3.2.1; 11.7.3).^[345]

But the most famous decision of this edict was the repeal of the Augustan inheritance restrictions (CTh 8.161.1). Constantine pro­claimed that those who had formerly been penalised are now freed from the ‘imminent terrors of the laws’. The childless will no longer be at a disadvantage, and women are released from the ‘demands of the law placed on their necks like yokes’. But Constantine did not relax the restrictions on inheritance between childless spouses, ‘whose false flatteries are usually scarcely restrained by the opposing rigour of the law’. This disapproval of legacies between spouses is very much in keeping with earlier Roman law, and there continued to be restrictions on inheritance between childless spouses for almost another century.^[346]

Discussions of Constantine’s repeal of the Augustan penalties usually ignore the original context and imply that it was a separate law in and of itself, whose sole purpose was the lifting of the financial penalties on celibates.

A panegyric by the Gallic rhetor Nazarius, delivered at Rome in 321, can help us understand how Constantine’s law was presented to and understood by his subjects at Rome. In his peroration, the orator thanks Constantine for the benefits he has conferred on Rome since the defeat of Maxentius in 312. 'New laws have been laid down for governing morals (mores) and subduing vices... Modesty (pudor) is safe; marriages have been strengthened... Nor is there any fear of having as much as possible, but in such an abundance of good things (bona) there is great shame in not having’ (Mynors 4.(10)38.4-5). Elsewhere Nazarius praises the emperor’s chastity and commitment to the old family values (4.(10) 35.3).

Like the panegyricist who celebrated the marriage of Constantine and Fausta in 307, Nazarius saw Constantine as a defender of marriage and traditional Roman morality. Indeed, there is no reason to think that Constantine was ever hostile to the old Roman view of legitimate marriage and procreation - on the contrary, as we will see, his hostility was aimed at unions which were not in accordance with Roman law and at attempts by one partner to break up an already established union. What also angered him, to judge from the laws he enacted on the subject, were the exploitation of ordinary citizens by imperial officials and the pernicious activities of informers, 'the single greatest evil to human life’ (CTh 10.2).^[347] According to Tacitus, the Augustan legislation on marriage and adultery had been primarily responsible for the rise of the notorious delatores whose activities bred fear and suspicion among the senate (Annales 3.25). Repeal of the inheritance restrictions would thus have removed one of the opportunities for informers to terrorise wealthy citizens.

By abolishing what had always been an unpopular law, whose effectiveness must have seriously deteriorated by the fourth century, Constantine was conferring a favour on the wealthier classes who were

5. Constantine and Imperial Legislation on the Family 125 the only ones really affected by the Augustan laws. Foremost among these beneficiaries was the senatorial aristocracy of Rome. Much of Constantine’s legislation in the first decade of his reign was aimed specifically at Rome (including two other important inheritance laws, CTh 5.1.1. and 8.18.1), to demonstrate his good will and his desire to eradicate the abuses of Maxentius.¹¹ It is in this context that we should see the law of 320.

The usual explanation for Constantine’s repeal of the penalties for celibacy and childlessness attributes its enactment to Christian motives. Proponents of this interpretation point to a passage in Eusebius’ Life of Constantine discussing the repeal of the Augustan penalties along with other laws that Eusebius explicitly attributes to Christian motives (VC 4.26). The implication is that Constantine was showing his support for Christian asceticism by repealing the unfair penalties such practices entailed.¹²

Certainly, Constantine’s repeal of the Augustan penalties would have benefited those Christian celibates who were wealthy enough to be affected by the law. But how many wealthy ascetics were there in the Roman West in 320? At that time most Christians, wealthy or not, lived in the eastern half of the Empire, still ruled by Licinius, and Constantine’s laws would not have applied to them until after Licinius’ defeat in 324. This law was directed at Rome, especially the senatorial aristocracy of Rome, where Christians were still very much a minority.¹³ The well-known enthusiasm for Christian asceticism among some senatorial families is a post-Constantinian phenomenon, no doubt encouraged by Constantine’s removal of the old inheritance restrictions.

It is possible that Constantine’s abolition of the Augustan penalties was supported by farsighted Christian leaders, who realised that the emperor’s acceptance of Christianity would encourage the conversion of many more members of the upper classes. In that case, Constantine’s edict of 320 was a master-stroke of political strategy, a law that could be applauded by pagans and Christian alike. At the expense of some loss to the imperial treasury, easily made up by other measures,¹⁴ Constantine removed a thorn from the side of the

^{size=1 color=black face="Century Schoolbook">11}        See Gaudemet 1983 (cited n. 1), 142-5. The populus of constitutions addressed *ad populum’ (like 8.16.1) is usually the people of Rome.

Cf. also Sozomen, HE 1.9. Arguments for and against Christian inspiration for CTh 8.16.1 are summarised and discussed by M. Humbert, Le remariage a Rome (1972), 860-73. J. Gaudemet has consistently doubted the ‘Christian’ content of this law; see Tendances nouvelles de la legislation familiale au IV^e siecle’, Transformation et conflits ^auIV^e siecle ap. J.C. (1978), 187-206, at 194-5.

A.H.M. Jones, ‘The Social Background of the Struggle between Paganism and Christianity’, The Conflict between Paganism and Christianity in the Fourth Century, ed. A. Momigliano (1963), 17-37, at 17-21.

Like the confiscated treasures of pagan temples (Eusebius VC 3.54.6); and the collatio lustralis (Jones, LRE 110). How much revenue the fiscus took from caduca is

wealthier classes, particularly the senatorial aristocracy. At the same time, he could be seen as promoting Christian ascetic ideals, and his action could be interpreted by contemporary and future Christians (and by modern historians) as a fundamentally 'Christian’ law.

B.    Betrothal and divorce

Another group of laws sets out the circumstances in which a betrothal or marriage may be dissolved by one partner. Two laws concern the return of gifts given by one party to the other before the marriage.

The exchange of gifts by betrothed couples was an old Roman tradition, but problems could arise about the ownership of the gifts if the marriage did not actually take place. In classical Roman law, a distinction had been made between gifts, often of substantial value, which had been given by the prospective husband specifically for the purpose of cementing the marriage alliance, and gifts which were made by either fiance(e) simply out of affection. The latter type, usually of less value, could not be reclaimed by the giver if the marriage did not take place, but gifts given Tor the sake of contracting an alliance’ could be (unless the giver had been responsible for breaking the betrothal). Though logical from the legal point of view, such a distinction could lead to confusion in actual practice, and there are many third-century imperial rescripts responding to requests for advice on broken betrothals and the status of pre-nuptial gifts.^{[348] [349]}

Constantine simplified matters by doing away with the distinction between the two types of gifts. In a law of 319 (CTh 3.5.2), he declared that, since the 'opinion of the ancients is displeasing’, henceforth if a betrothal is broken off unilaterally, the partner responsible for the break-off must forfeit to the other any gifts either given or received. If a man had given presents to his fiancee and then rejected her, he could not reclaim them, whatever their value, but if she had been the one to break off the alliance she had to return them. The law also regulated the return of gifts in the event that one fiance(e) died before the marriage took place. It was modified by a law of 336 (3.5.6), giving special status to betrothals in which a kiss had been exchanged between the betrothed. In those cases, if either partner died, half of any pre-nuptial gifts given by the man were to be returned, but half were to be kept by his fiancee, or if she had died, by her heirs. The nature of the 'kiss’ referred to in the law has been much discussed.^[350]

This legislation has been seen as the first appearance in Roman law of the concept of arrhae sponsaliciae, the contractual exchange of betrothal gifts. The origin of arrhae sponsaliciae is still debated; some scholars think that it came into Roman law from eastern sources, perhaps Greek, perhaps Semitic; others think it was an internal development in Roman law.¹⁷ The term arrhae sponsaliciae is not found in extant Roman law until 380, by which time a penalty had been added: the party breaking the betrothal without justification had to return four times the value of the gifts that he or she had received (3.5.10-11; 3.6.1; 3.11.1). Neither the four-fold penalty nor the term arrhae appears in Constantine’s laws as we have them.

lang=EN-US style='font-size:9.5pt'>In 332 another law, subsequently cut in two by the Theodosian compilers, set a statute of limitations of two years on betrothals (3.5.4 and 5). If a man had made a betrothal agreement with a girl, but had not married her after two years or more, she could marry someone else. But if she had been engaged to a soldier, and married someone else before two years elapsed, her father or guardian was to be relegated to an island.

Constantine’s legislation indicates that he considered betrothal a serious undertaking not to be entered into lightly. It diverges significantly from classical Roman law in making betrothal a binding legal contract and enacting sanctions against those who break it. The role of possible Christian or Near Eastern influences on these laws is debatable: betrothal pacts were always considered serious matters by upper-class Romans before and after Constantine, and in very early Roman law they had been legally actionable. And most of the evidence for the importance of betrothal among Christians is post- Constantinian.¹⁸

There is more reason to look for Christian motives behind the divorce law, enacted in 331 and addressed to the praetorian prefect Ablabius, in which Constantine drastically restricted the legal possibilities for initiating an unilateral divorce (3.16.1). In classical law, either partner could end a marriage by notifying the other of his or her intentions. A husband who repudiated his wife would have to return her dowry, though he might retain part of it if there were any children or if her behaviour had been open to question. Under Augustus’ law on adultery, husbands were required to divorce adulterous wives; if they did not, they were themselves liable to charges of lenocinium (pimping).¹⁹

¹⁷        For eastern influence, see C. Dupont, Les constitutions de Constantin et le droit price debut du IV^e siecle (1937), 88-92; cf. 120-2; cf. Anne, esp. 87-135, who sees Constantine himself as having introduced the concept of arrhae into Roman law.

See further J. Evans Grubbs, ‘Abduction Marriage in Antiquity: a law of Constantine and its Social Context’, JRS 79 (1989), 59-83, at 79-81; Anne, 476-86; Gaudemet 1978 (n. 12), 195-7.

On the classical law on divorce, see Gardner (n. 2), 81-95.

Under the new law of Constantine, a woman could repudiate her husband for only three reasons: if he were a murderer, an employer of magic, or a destroyer of tombs. In those cases she would receive praise and recover her entire dowry. But if she repudiated him for any other reason, because he was a drunkard or a gambler or ran around with other women, she would be deported to an island, and her husband would get everything she owned, 'down to a hairpin’. A husband could only legally divorce his wife if she were an adulteress, a poisoner, or a procuress. Otherwise, he had to return her entire dowry (which he would probably have had to do anyway under earlier law). He was also not supposed to remarry, but if he did, his former wife had the right to enter his home and seize the second wife’s dowry (however, the second marriage was evidently still valid).

In effect, a spouse could initiate a unilateral divorce with impunity only if the other partner were guilty of a serious crime. Murder, magic, destruction of tombs, and adultery by or with a married woman were all capital crimes in the Late Empire, for which there could be neither appeal nor pardon, and which would probably have resulted in the guilty person’s execution.²⁰ Furthermore, unlike earlier imperial legislation, Constantine’s law was much harder on a woman who wanted divorce than on a man. However, it applied only to cases where one partner wanted a divorce and the other refused. Divorce by mutual consent, which was probably more common than unilateral repu­diation, was still unpenalised. In any case, the law of 331 was repealed less than 35 years later by the emperor Julian (whose law is no longer extant). And although restrictions on unilateral divorce were reintroduced by fifth-century emperors, divorce by mutual consent continued to be legal until it was prohibited in 542 by Justinian (and his law was soon repealed by his successor Justin).²¹

Constantine’s divorce law is notable for its unusual vocabulary. Eight words in this law appear nowhere else in the Theodosian Code, including muliercularius, to describe a womanising husband; moechus and moecha rather than the classical legal terms adulter and adultera\ medicamentarius instead of the classical veneficus, to describe a poisoner or user of magic, conciliatrix, which apparently means a procuress or go-between, and acucula, hairpin. The odd vocabulary, and the distinctly non-classical idea that an unjustly divorced wife could invade her ex-husband’s home and seize his new wife’s dowry, led Edoardo Volterra to suggest that this law was written by someone

²⁰        Cf. CTh 9.40.1 and 11.36.1 (314); 11.36.7 (344 or 348); 9.38.1 (322); 9.38.3 (369); 4 (368 or 370); 6 (381); 7 (384); 8 (385). Presumably violation of tombs here means interfering with the corpses (sc. for magical purposes), not despoiling architectural elements as in 9.17.1-5.

²¹        lang=EN-US>Julian’s law is known from Ambrosiaster, Liber quaestionum veteris et nov. testamenti 115.12 (CSEL 50, p.322); CTh 3.13.2 (363) may be part of the same law. Justinian’s law: Nov. 117.10 (542), overturned by Nov. 140 (566) of Justin.

5. Constantine and Imperial Legislation on the Family 129 outside the imperial chancellery, who was unfamiliar with classical Roman law, in fact a Christian cleric.^[351]

Ecclesiastical authorship of Constantine’s divorce law is unlikely, but Volterra was not alone in attributing it to Christian influence. Until recently scholars generally agreed in seeing Christian inspiration behind CTh 3.16.1, since condemnation of divorce goes back to the New Testament and was echoed by many ante-Nicene writers. But recently this interpretation has been questioned.^[352] For the law (as we have it) gives no indication of Christian motivation, and in fact conflicts with Christian teachings in several respects. Constantine allowed divorce for reasons other than adultery, whereas Christian writers stressed that adultery by the wife was the only possible justification. And whereas (at least in theory) Christian writers believed that both men and women should be held to the same standard of sexual conduct, Constantine upheld a double standard. And although Christians felt that a marriage could not be dissolved even if both partners wished it, Constantine’s law did not ban divorce by mutual consent.

However, Constantine’s law could still have been inspired by Christian teachings as they were understood by Constantine and his advisers. Christian doctrine in the early fourth century was not a monolithic body of beliefs agreed upon by Christians throughout the Empire. One need only look at the canons of the Council of Elvira, held in central Spain in the first decade of the fourth century, to see that not all church leaders felt that men and women should adhere to the same rules of sexual morality. And in fact, the majority of ante-Nicene writers (following Matthew 19:9) believed that divorce was justified, indeed necessary, if the wife had committed adultery (one of the few causes for divorce allowed by Constantine).^[353] Despite the high-minded insistence of some Christians that husbands were held to the same marital fidelity as wives, it is clear that in practice the old double standard continued, sanctioned by earlier law and custom. Most Christians would probably not have thought Constantine’s law differed significantly from their own beliefs.

Nor, as Antti Arjawa has suggested, would most pagans.^[354] Contrary

to the once popular view of pagan Roman society as a hotbed of immorality where multiple marriages and divorces were common, divorce seems to have been rare outside the senatorial aristocracy, and not very common even there.^[355] Most Romans, and Greeks too, did not approve of divorce, and especially disliked the idea of the wife initiating a divorce. Thus although Christians were certainly the most outspoken opponents of divorce, they may have been expressing in extreme form what many others felt.

As with the repeal of the inheritance penalties for celibacy, then, CTh 3.16.1 responded to concerns that were not exclusively Christian. But in the end, we have to ask why this constitution, so harsh and so opposed to classical law, was enacted in 331. It is possible that there had been an increase in the number of unilateral divorces, especially those initiated by women, and that some particularly sordid divorce cases had made their way through the judicial system to the last court of appeal, the emperor or his representative the praetorian prefect. From 329 to 337 Ablabius, a Christian, was praetorian prefect, in 331 he was also consul; the divorce law is addressed to him. Perhaps Ablabius had been disgusted at the freedom with which one partner was able to break up a marriage, and had suggested to Constantine that it was time to put a stop to this, particularly in view of the emperor’s professed Christian beliefs.^[356]

This is all hypothetical. We do not know, nor have we any way of knowing, whether there had been any increase in the divorce rate in the years before 331. But we may recall that eleven years earlier, Con­stantine had repealed the Augustan legislation penalising the unmar­ried and childless (8.16.1, above). Thereafter those who had married in order to escape the Augustan penalties might have decided not to continue in unsatisfactory unions. Whatever Constantine’s reasons for repealing the Augustan laws, he surely did not intend to encourage the dissolution of already existing unions. How ironic if, after nullifying Augustus’ attempts to promote marriage and childbearing, he was later forced to replace them with measures of his own.

C.   Prohibited unions

In contrast to the divorce law, which sought to prevent the dissolution of marriages, other laws forbid and penalise unions between those of different social status, particularly between freeborn people and slaves.

Roman law had never recognised as legal marriages the sexual relationships of slaves, nor those of free people with slaves. Before Constantine, however, unions of free men and slave women, though deprived of the privileges of legitimate marriage, were not prohibited or punished. A free woman who cohabited with someone else’s slave fell under the provisions of the s.c. Claudianum of AD 52. If the owner of the woman’s partner condoned the union, she was reduced to the status of his freedwoman; if not, she became his slave, and children of the union were also slaves. Under the marriage legislation of Augustus, senators and their descendants could not contract legal marriages with former slaves or with actors, and freeborn people could not marry prostitutes, pimps, or others branded with legal infamy. If a man of senatorial rank had wanted to live in a monogamous relationship with his freedwoman, she could have been his concubine - a perfectly acceptable relationship, though not accorded the privileges of legitimate marriage. Their children would be illegitimate, but could still have received legacies from their father if he included them in his will.^[357]

Constantine extended the Augustan prohibition on marriage between senators and freedwomen to apply also to the marriages of local and provincial dignitaries with former slaves, the daughters of slaves, and other women of low birth or occupation. Such unions would no longer be legal marriages, and children born from them would be illegitimate. Furthermore, he threatened with severe sanctions men who attempted to give financial benefits, either during their lifetime or in their wills, to any children they had by such women or to the women themselves (CTh 4.6.2 and 3).^[358]

Even harsher was the punishment ordained for a decurion who forsook his municipal responsibilities to take refuge on another landholder’s estate and cohabited with one of the landholder’s slaves. The decurion was to be deported, his property was to be handed over to his town council, and the slave woman was to be sent to the mines (12.1.6). Four laws modifying the provisions of the first-century law on the unions of free women with someone else’s slave, were promulgated under Constantine (4.12.1-4).^[359] And if a free woman was cohabiting with her own slave, they were both to be exiled and their children deprived of all inheritance rights. If any such unions were discovered in the future, the woman would be executed and the slave burned alive

(9.9.1)    .

The unions that Constantine sought to suppress were not promiscuous or extramarital affairs symptomatic of some sort of general moral decline, as has sometimes been supposed, nor is there any reason to see Christian influence in these laws.^[360] It is quite clear from the wording of this legislation that it is aimed at long-term quasi-marital relationships, and virtually every one of these laws mentions children whom the parents had wished to make legitimate heirs. What Constantine seems to have found so alarming, in fact, was the possibility that children of slaves or others of low social status would inherit the rights and property of freeborn and socially respectable people. He was particularly anxious to preserve the distinction between slave and free birth. Another law, known only from its revival by the fifth-century emperor Zeno, decreed that if a man married his freeborn concubine, children she had previously borne to him would be legitimated, provided he was not already married and had no legitimate children from a previous marriage (CJust 5.27.5). The key word here is ingenua - freeborn. The law did not apply to concubines of slave origin, even if their children had been born after they were freed. On the other hand, Constantine’s attitude was quite different when it was a question of unions between slaves rather than between slave and free, as we see in his law forbidding the break-up of slave families on imperially owned estates when the estates were leased out to new proprietors (CTh 2.25.1).

The explanation for these laws lies in the social and economic confusion of the third century. The social and legal distinctions between slaves and the lower-class free were becoming increasingly blurred. And although after 212, Roman law was supposed to replace the local legal systems of the various provinces, many people, particularly among the lower, less educated classes, remained ignorant of Roman law. Third-century legal sources provide abundant evidence for this confusion of status boundaries. Slaves or former slaves could live for years ‘as if freeborn’. Free people might contract what they believed to be valid marriages with slaves, unaware either of their partner’s true status or that unions with slaves were not recognised under Roman law. Questions would then arise about the status of children of such unions or validity of dowry.^[361]

The social mobility of the third century, which continued under Constantine, had brought about a sort of status dissonance: people’s status under the law did not necessarily correspond to their actual

5.       Constantine and Imperial Legislation on the Family 133 position in society or to their perceptions of what was socially acceptable. Constantine’s legislation sought to arrest this interming­ling of social classes, and to re-establish traditional status distinctions. Later legislation on such unions by his successors indicates that, not surprisingly, he failed to do so.^[362]

D.   The sale and abandonment of children

Quite a few Constantinian laws are devoted to the legal protection of fatherless minors (those under twenty-five) and the duties of their guardians. In general, this legislation reinforces or supplements earlier imperial laws. More interesting and innovative are a few laws concerning the abandonment or sale of children by their parents.

In classical Roman law, the sale or pledging of freeborn children was illegal, and the child’s claim to free birth was not impaired by the sale. However, some parents did sell or pledge their own children, usually because of poverty or food shortage. As for infants who had been abandoned at birth, pre-Constantinian Roman law maintained that they also retained their original status. Thus if a freeborn child who had been exposed was brought up by someone else as a slave, he was still legally free and could be reclaimed years later by the parents who had abandoned him. Clearly this could result in conflicts between a child’s natural parents, who had exposed it at birth, and the legally invalid but often compelling claims of those who had rescued the infant and perhaps even brought it up as their own child.^[363]

Before the Edict of Caracalla the legal status of exposed children varied from province to province. After 212, the Roman rule that freeborn children kept their ingenuitas (right of free birth), and that fathers who exposed their children still retained legal power (patria potestas) over them would in theory have held for the whole Empire. But in all probability local customs still prevailed, and confusion about the status of expositi prompted a number of third-century imperial rescripts. Emperors continued to expound the Roman law that such children retained the status they had had when born and could be reclaimed by their natural parents, or, if they were slaveborn, by their mother’s master. Frequently, however, they added those who picked up an infant ought to be repaid the price of the child’s rearing.^[364]

The legal collection known as the Vatican Fragments preserves two

private rescripts from early in Constantine’s reign, both addressed to women, concerning free people who had been sold. One of these, posted at Rome in 315, repeated the classical rule that ingenuitas is not changed by an illegal sale (FV 33). But two years earlier, another rescript had informed its recipient that her purchase of a newborn infant was valid and that if the child’s parents wished to get it back, they must give her another slave or the equivalent payment (FV 34).^[365] The wording of this rescript is unclear and the circumstances in which the child had been bought are not stated; its parents may have been slaves or even barbarians. But later laws of Constantine on the status of children sold or abandoned by their parents give the same decision.

A law dated 18 August 329 is found in both the Theodosian Code and the Code of Justinian, although the addressees and texts are different (CTh 5.10.1; CJust 4.43.2).^[366] Both contain essentially the same ruling: parents, under the pressure of extreme poverty, may sell their children, and the buyer of a newborn infant has the right to use the child as a slave and can even sell it to pay his debts. If those who sold the child later with to reclaim it, they must pay the market price or provide another slave in its place. It has been suggested that this was not a real sale into slavery, but more of a long-term 'hiring-out’ (locatio) of the child’s services, perhaps to pay off a parent’s debt. Clearly such a distinction was rather vague and was probably frequently ignored: no doubt children often fell into permanent servitude, especially if their parents died before redeeming them.^[367]

Constantine went even further in a law of 331 on the status of children who had been abandoned by their parents or masters and rescued and brought up by someone else (5.9.1). In this law, addressed to the praetorian prefect Ablabius, the emperor declares that the child’s rescuer has all rights over it and can bring it up as a slave or as his own child, and any attempt by the natural parent or original owner to reclaim the child is forbidden. Once a father has rejected a child, his patria potestas over it ceases. This law is indeed innovative, because although earlier emperors had felt that those who brought up aban­doned children ought to be compensated for their trouble, they had

5.       Constantine and Imperial Legislation on the Family 135 always respected the claims of paternal power.^[368]

Two other laws should be considered along with these rulings. In 322 Constantine learned that impoverished parents were selling or pledging their children and ordered that officials all over Africa immediately provide such families with assistance from imperial grain storehouses (11.27.2). Another constitution, again addressed to Ablabius, begins by declaring, 'Let a law, written on bronze or wax tablets or linen cloth, be posted through all the cities of Italy to turn parents’ hands from parricide and change their desire for the better’

(11.27.1)                 .^[369] Ablabius is then instructed to see that parents too poor to raise their children be provided with food and clothing at once, ‘since the raising of a newborn infant cannot suffer delays’.

Unlike the alimentary scheme begun by Trajan two centuries earlier, these enactments apparently did not set up a long-term programme of aid to needy families, but were temporary measures meant for Africa and Italy. They were reactions to emergency situations, perhaps regional food shortages.^[370] Constantine’s rulings that those who bought a newborn baby or rescued an exposed infant had full power over the child were probably also responding to contemporary social conditions. This does not mean that the exposure and sale of infants had increased in Late Antiquity, for there is plenty of testimony to both phenomena in earlier times. But there had always been confusion about the status of such children, and Constantine’s laws, though out of line with earlier imperial policy, attempted to settle the question.

There is reason to see Christian influence behind the alimentary laws and the law of 331 on expositi (5.9.1). Christian writers had long denounced the abandonment of infants, and one of the most impassioned condemnations of exposure was made by Lactantius in his Divine Institutes. Lactantius, who served as tutor to Constantine’s son Crispus, dedicated the Divine Institutes to Constantine, and we may reasonably assume that the emperor was familiar with the work ^[371] Both CTh 5.9.1 and 11.27.1, the law directing that aid be given to impoverished families in Italy, were addressed to Ablabius, a known Christian. But, like Constantine’s law on divorce (also enacted in 331 and addressed to Ablabius), the ruling on exposed infants is not entirely in line with Christian thought. A completely ‘Christian’ law

would have banned the exposure of infants altogether (which was not done until 374: CJust 8.51) and would not have allowed the person who picked up an exposed child to use it as a slave. For what most distressed the Christian writers who spoke out against the exposure of infants was precisely the possibility of their enslavement, and worst of all, of their use as slave prostitutes.^[372] Constantine’s law probably discouraged parents from exposing their newborn children, and encouraged others to rescue abandoned infants, but it did not by any means guarantee that expositi would have a decent life.

E.    The behaviour of women

A number of laws stress the need to preserve female pudor (modesty, chaste behaviour) and to prevent women, both married and unmarried, from being insulted by others or bringing shame upon themselves. A law of 316 warns that any official who ‘drags into public’ a matron owing tax debts ‘is to be put to death with exquisite tortures’ for having exposed to public view a woman who ‘keeps herself within her home out of consideration for her sex’ (1.22.1). According to a law of 326 against abduction marriage, even girls who were abducted against their will are to be penalised by loss of inheritance rights since ‘they could have preserved themselves at home until their marriage day’

(9.24.1)  .^[373] Another law, enacted only a few days after the law on abduction, commands that when a fatherless girl has reached marriageable age, her guardian must prove that her virginity has been preserved intact. If she is discovered to be no longer a virgin, suspicion then falls on the guardian himself, and if he cannot prove his innocence, he is to be deported and his property confiscated (9.8.1).

In a law (2.17.1) allowing males over 20 and females over 18 to request official release from the need for a guardian, Constantine specified that this permission was to be given only to girls with a good reputation. He hastened to add that ‘because of [their] modesty and sense of shame We do not force them to be pointed out by witnesses in a public assembly’; they could send legal representatives with documents and witnesses. Indeed, Constantine felt that public exhibitions by women were to be avoided at any time. In 315, he decreed {CJust 2.12.21) that husbands were fully authorised to represent their wives in court, ‘lest, on the pretext of pursuing a lawsuit, women rush disrespectfully into abuse of their matronly modesty or be compelled to attend the gatherings of men or trials’. In 322 (CTh 9.1.3), advocates are warned not to take up the cause of women who ‘perhaps rush forth into illegal action, relying on their sex

5.     Constantine and Imperial Legislation on the Family 137 for security’. And the divorce law of 331 (3.16.1) castigated women who repudiate their husbands "on account of their own depraved desires’ and threatened them with exile for their audacity.

However, in keeping with Constantine’s status consciousness, this concern with female behaviour only extends to women above a certain social level. Thus women tavernkeepers are considered high up enough on the social scale to be liable for prosecution if they commit adultery, 'since from these women a standard of modesty (pudicitid) is required’. But those who are merely employed in such taverns are because of the 'vileness’ of their origins beneath the consideration of the law (9.7.1).

Classical Roman law had also placed restrictions on women’s legal independence, most notably by means of the tutela mulierum, which consigned women to legal guardianship throughout their lives. By Constantine’s day, tutela mulierum seems to have become largely obsolete.^[374] This would explain in part the presence of new laws restricting the appearance of respectable women in court, since in the classical period such women would have been represented by their guardians. It might be tempting to see in this attention to female behaviour a reflection also of Constantine’s new Christian ideals, but though a concern with female chastity can certainly be found in early Christian writers (most notably Tertullian), it was by no means unique to Christians. Already in the rescripts of Alexander Severus, there is increased concern for women’s modesty, and the emphasis on pudor is particularly marked in the legislation of the Tetrarchy, both in rescripts and in the edict against incestuous marriage mentioned above.^[375] And respect for female sophrosyne also appears in Late Antique pagan writers like Menander Rhetor and Libanius.^[376]

The attitude toward women expressed in Constantine’s laws are essentially those of the Mediterranean male, from Hesiod to the villagers and shepherds studied by twentieth-century ethnogra­phers.^[377] Women are light-minded and lack self-control, and the protection of their virtue requires constant supervision. But, when they behave in a suitably chaste and modest manner, they are to be treated with respect and consideration. Christian teachings on the importance of sexual chastity and female modesty merely reinforced age-old attitudes.

What conclusions can be drawn about Constantine’s legislation on the family? As already mentioned, the emperor was often not the instigator of imperial legislation, which might evolve from the suggestion of a particular official or as a solution to a legal dispute between private citizens. But although many of Constantine’s laws may have been promulgated in response to situations not of his own making, we can still see some patterns in his decisions. For instance, the preservation of status distinctions was clearly important to Constantine: a distinct dichotomy between the freeborn, privileged classes and those of slave or 'base’ birth appears in many of his laws, not just those on marriage. Of course, concern with status distinctions in Roman law was hardly new with Constantine.^[378] But the number of laws attacking marriages between those of different statuses tells us two things: Constantine himself, unlike his Christian God, was very much a respecter of persons; and imperial attempts to keep social boundaries fixed were simply not working. Ironically, Constantine also encouraged social mobility by his promotion of relatively humble families to high status, particularly in the East.^[379]

In much of his legislation, Constantine was simply giving a solution to problems that individuals had been bringing to the emperor for at least two centuries, on issues like the status of abandoned infants or the fate of betrothal gifts in a broken engagement. After the decline in use of the rescript system in the later years of Diocletian’s reign, there would have been a need for general rulings on such issues.^[380] Constantine was replacing the individual responses given by earlier emperors, composed by the secretary a libellis, with edicts composed by the quaestor. Unfortunately, the result of instituting general policies to cover situations previously dealt with on a case-by-case basis is that instead of the generally straightforward replies of the rescripts, we get heavy-handed and sometimes clumsily worded decrees imposing a uniform policy, accompanied by the threat of fines, exile or worse for those who dare to disobey.

It has been said that Christian influence on Constantine’s legislation is most apparent in his laws on the family.^[381] But this raises an often-ignored question: was there, in the early fourth century, a

5. Constantine and Imperial Legislation on the Family 139 recognisably ‘Christian’ ethos of marriage and family relationships to which Constantine could look if he had wanted to incorporate Christian teachings in his legislation? In fact, it is quite anachronistic to attribute a developed set of ideas on the marital bond to ante-Nicene writers; not until Augustine was any real attempt made to define marriage in Christian terms, and even then Augustine certainly did not speak for all Christians. Indeed, as Constantine discovered to his dismay, fourth-century Christians were not inclined to agree about many issues of doctrine or discipline.⁵³

Ante-Nicene writers who do discuss Christian marriage and family life only mention those aspects in which they claim Christians differ significantly from pagans (or in which mainstream Christians differ from the radical fringe who rejected marriage and sexuality altogether). Briefly summarised, these are: rejection of divorce and of the practice of infant exposure, and preference of celibacy over marriage, particularly chaste widowhood over remarriage. None of these attitudes were alien to the non-Christian Roman world, but Christians claimed to put into practice ideals to which pagans gave only lip service.⁵⁴

When only those aspects of Christian marriage ideology that can be found among Christians of the first three centuries are considered, it appears that in only a handful of cases can any argument be made for Christian influence on Constantine’s legislation on marriage and the family, perhaps half a dozen out of the more than eighty extant laws relevant to the family. Even in those cases, Constantine offers a solution only partly in keeping with contemporary Christian principles (as with the laws on divorce and infant exposure), in responding to concerns held by non-Christians as well as Christians (as with the repeal of the Augustan penalties for celibacy). Therefore I am inclined to see only four laws as being primarily ‘Christian’ in intent: the divorce law (3.16.1), the law concerning infants exposed by their parents (5.9.1), and the laws directing that aid be given to parents whose poverty may drive them to sell or kill their children (11.27.1 and 2).

Three of these laws (3.16.1; 5.9.1; 11.27.1) have the same addressee,

⁵³        See M. Sargenti 1985 (cited n. 24), 368-71.

^{color=black face="Century Schoolbook">54}        The famous encomium of ‘Christian marriage’ by Tertullian, Ad Uxorem 2.8.6-9, is meant to point up the horrors of marriage to a pagan by contrast; otherwise, Tertullian’s views on marriage are quite negative. The third book of Clement of Alexandria’s Stromata, the fullest ante-Nicene exposition of sex and marriage from a Christian point of view, was a response to the ‘radical fringe’ of Gnostics and encratites who denied the validity of marriage altogether. Other Christian views on sex and the family before Constantine (in addition to Paul, I Corinthians 7) are found in the apologists, e.g. Justin, Apol. 1.15, 27 and 29; Tertullian Apologet. 6-9; Minucius Felix, Octavius 31. The canons of the Council of Elvira (see n. 24) contain many prescriptions regarding marriage, betrothal, celibacy and the behaviour of women. For Lactantius on sex and marriage, see Oiv. Inst. 3.21-2; 6.23; and n. 42.

Ablabius, Constantine’s right-hand man during the last eight years of his reign, and they are the only extant laws concerning the family that are addressed to Ablabius. This may only be an accident of the preservation of our sources, but it is worth considering the possibility that Ablabius himself was responsible for the enactment of these ‘Christian’ laws. As praetorian prefect from at least 329 to 337, he was the second most powerful man in the Empire (and therefore was killed after Constantine’s death along with all other possible rivals to Constantine’s sons). Originally from Crete and of allegedly humble origins, Ablabius was said by Eunapius to have treated Constantine as though the emperor were ‘a disorderly demos'. It is clear that he was a Christian, but his understanding of both Roman law and Christian theology may have been quite tenuous.^[382]

In general, Constantine, rather than applying ‘Christian’ principles to imperial law, preferred to grant to Christians (those whose brand of Christianity he recognised) powers and privileges that enabled the Church to take over new functions and to amass more wealth and influence. Granting bishops judicial authority in civil cases was simpler and more efficient (though not without problems) than trying to make secular officials employ ‘Christian’ doctrine in their decisions (CTh 1.27.1, Sirm. Const. 1 to Ablabius). We know from church historians that Constantine not only lavishly endowed church buildings but also provided local churches with funds for supporting the needy. According to another law sent to Ablabius, the emperor felt that ‘the rich ought to take upon themselves the needs of the saeculum, and the poor ought to be sustained by the wealth of the churches’ (16.2.6).^[383]

There is no doubt that much of Constantine’s family legislation pursues policies quite different from what we know of the classical law of his predecessors. But our knowledge of pre-Constantinian law is very incomplete, being for the most part dependent on the Justinianic corpus. Unlike Theodosius, Justinian did not instruct his compilers to include legislation which had since been superseded. If the same criterion had been used in assembling the Theodosian Code, much less of Constantine’s legislation would have been preserved, since it was often considerably modified by later emperors.^[384] Constantinian policies that appear innovative may have had precedents in earlier

5. Constantine and Imperial Legislation on the Family 141 imperial decisions that were not preserved because they were not in line with the law of Justinian’s day.

Interestingly, several of Constantine’s laws, while imposing policies that differ markedly from classical Roman law, appear to hark back to a much earlier period. In the early Republic, betrothals were considered contractual agreements and a broken betrothal was legally actionable. Divorce on insubstantial or unfair grounds was subject to penalties (mainly financial), and for legal and social reasons, wives did not initiate divorces. Fathers could sell their children, but their right of recovery was restricted.^[385]

One example of this apparent return to pre-imperial Roman law is the policy on adultery accusations (9.7.2, 326). In the Republic, a woman’s adultery had been a private matter to be dealt with by her husband and her family. But Augustus had made adultery a public crime and had allowed third parties who were not related to the woman to bring charges against her if neither her husband or father chose to prosecute. Constantine abolished the right of anyone but the woman’s husband or male relatives to bring charges and thus effectively returned control over a married woman’s chastity to her family (although adultery remained a capital crime).^[386]

Schoolbook">The attitudes found both in Constantine’s legislation and in early Roman law had probably always existed, but were usually not expressed in classical legal writings because classical law was aimed primarily at the urban, wealthier, more sophisticated classes. Indeed, classical law did not always reflect the attitudes of even the upper classes: recent research on the Roman family has shown that frequently law lagged behind popular expectations and practices, particularly in regard to inheritance.^[387] Constantine’s legislation reflects (though it does not always endorse) what had long been the de facto situation among many of his subjects - those in the Greek East, but also many in the Roman West.

And, unlike the classical jurists, Constantine also addressed issues of concern to those outside the urban upper classes. Perhaps as a result of the changeover from private subscriptiones to public edicts as the main vehicle for imperial decisions, issues like abduction marriage or infant exposure, more relevant to the rural lower classes than to the urban elite, are now appropriate subjects for general laws. Thus Constantine’s legislation may provide some clues to the private lives of ordinary people, who are otherwise so invisible in the ancient sources.^[388]

Constantine was not trying to introduce a new morality; rather, he was recognising a very ancient moral code which had persisted in many areas of the Mediterranean, east and west, and which still exists in more isolated regions today. To return to Julian’s accusation, I would agree that Constantine was an overturner of law, but not necessarily of custom.

6.