Hidden from History: the legislation of Licinius[236]

Simon Corcoran

The fate of the legislation of the emperor Licinius poses peculiar problems for the historian, which need to be considered in two stages.

First, a brief account of the emperor himself and his reign.^[237] Licinius was a close associate of Diocletian’s Caesar, Galerius, and served under him in the Persian war which ended in a decisive Roman victory in 298. Later, he accompanied the expedition led by Galerius (now Augustus) to Italy in 307, which aimed to unseat the usurper Maxentius and was sent on an unsuccessful embassy to the latter in Rome.

Following the failure of this Italian expedition, Galerius convened an imperial conference in Carnuntum in November 308, where in the presence of the retired Augusti, Diocletian and Maximian, he appointed Licinius as Augustus. Licinius was thus one of the few emperors of the time not to hold the lesser rank of Caesar, before becoming a full Augustus. It seems to have been Galerius’ plan that Licinius should drive Maxentius out of Italy and replace him there. This Licinius never did. Instead, when Galerius died in 311, he took over all his European territory, while Maximinus in the East took his Asian territory, the two of them regarding each other with suspicion across the Bosphorus.

In 312, Constantine defeated Maxentius, occupied Italy and was granted rank as senior emperor by the senate in Rome.

Schoolbook">Relations between the two remaining emperors were soon marked by conspiracy or suspicion of conspiracy. In 315, a son was born to Licinius, providing an heir for the East. In October 316 Constantine attacked and defeated Licinius and this led to a negotiated settlement.^[238] Licinius lost nearly all his European territory, while his son and Constantine’s two sons were proclaimed Caesars in March 317. Relations deteriorated again after 321, when Licinius refused to recognise Constantine’s consuls. Affairs reached fever pitch when Constantine violated Licinius’ territory while dealing with a barbarian incursion in 323.

Since Constantine was openly and clearly Christian, Licinius perhaps regarded Christians as potentially treacherous and he now started to take measures against them, though these never amounted to a full persecution. It was enough, however, to provide Constantine with the role of crusading liberator, and he defeated Licinius in July 324 at Adrianople and again at Chrysopolis opposite Byzantium in September. Licinius surrendered, being promised his life, and was sent into custody in Thessalonica. The following spring, from real or fabricated fears of conspiracy, he was executed.

Thus it was the victorious and Christian Constantine who dominated the historical record.

4.             Hidden from History: the legislation of Licinius 99 Licinius and for the execution of Licinius after his fall,^[240] avoids the chance to paint a glowing picture of Licinius to set against Constantine. Even in the pages of Lactantius, where Licinius is shown as blessed with an angelic visitation from God before his victory over Maximinus, he still emerges in a rather sinister light as both miserly and cruel.^[241] Finally, his record as a persecutor himself in Eusebius’ account pales beside that of Galerius or Maximinus.^[242] Lacking passionate commitment to either side, he is pushed into the background.^[243]

Reconstructing his activities as emperor is not easy. The fullest account of his government is provided by Eusebius in the Ecclesiastical History and Life of Constantine, Eusebius, of course, is concerned to show Licinius changed by madness into a persecutor.^[244] But the depiction of his misrule extends further. He is charged with a variety of standard crimes such as cruelty, greed and lust.^[245] But he is also portrayed as the ungrateful junior, plotting against his benefactor and relative.^[246] Most significantly, however, he is attacked as an innovator in various matters of marriage and the rights of the dying and as a deviser of harsh taxation.^[247]

Constantine, in retrospect, called his defeated rival The common enemy of the world’^[248] and in the legal texts branded him as a Tyrant’, a term which in Latin carries the meaning of usurping or illegitimate ruler.^[249] Thus in December 324, not long after the final defeat of Licinius, Constantine says:

Let all know that, with the constitutions and laws of the tyrant Licinius rescinded, they should observe the sanction of ancient law {vetus ius) and of our statutes.^{New Roman",serif;color:black'>[250]}

This is as unequivocal a statement as one could desire.

Though the acts of the tyrant and his judges are annulled, let no one wish to overturn through trickery what he himself has voluntarily done or what was lawfully executed.¹⁶

The two succeeding texts under the same Theodosian title (CTh 15.14.3-4) carry manuscript dates of July 326, and the Code compilers must have taken these as also referring to Licinius. Both, however, can be convincingly emended to January 313, when Constantine was still in Rome, dealing with the aftermath of the overthrow of Maxentius.¹⁷ Nevertheless, the content of CTh 15.14.3 is important for Con­stantine’s attitude towards the question of the legislation of usurpers:

We direct that what the tyrant replied by way of rescripts contrary to law (contra ius) is not valid, but his legally correct rescripts are not to be opposed.¹⁸

The aftermath of the violent overthrow of a ruler is a dangerous time. The victor will wish to establish himself by damning his predecessor’s government, perhaps conducting a purge. But the accusations and counter-accusations need to be held in check, and delators have to be restrained.¹⁹ Total abolition of the acts of a ruler renders all legal and administrative processes during his reign open to question. This is a recipe for chaos. Pronouncements by the victor, therefore, try to temper damnatio memoriae with stability.

The emperor is a source of law and precedent, but a ‘tyrant’ emperor is seen as constitutionally illegitimate and his acts cannot be accepted as enjoying a validity emanating from himself as usurper.²⁰ Therefore the ability for him to make law is denied, but law already exists outside

¹⁶        ‘Tyranni et iudicum eius gestis infirmatis nemo per calumniam velit quod sponte ipse fecit evertere nec quod legitime gestum est’ (CTh 15.14.2, February 325).

¹⁷        See Seeck, Regesten pp.

¹⁸        ‘Quae tyrannus contra ius rescribsit non valere praecipimus, legitimis eius rescribtis minime inpugnandis.’

¹⁹        Contrast the reprisals and accusations in Africa after Maxentius’ suppression of Alexander (Zosimus 2.14.3-4) with Constantine’s restraining of delators after the fall of Maxentius (CTh 10.10.1-2; Pan. Lat. 9(12).20.4).

²⁰        For a discussion of the problems associated with recessio actorum in the Later Empire, covering most of the points mentioned here, see G. Sautel, ‘Usurpations du pouvoir imperial dans le monde romain et rescissio actorum" in Studi in Onore di Pietro de Francisci 3 (1956), pp. 480-91.

4.             Hidden from History: the legislation ofLicinius 101 and independently of him. The concept of vetus ius is therefore very useful (though, as we shall see, it is not an inviolable shibboleth). Where the 'tyrant’ conforms to it, his actions should not be challenged.

Rescripts contrary to law are not to be valid, in whatever manner they have been obtained. For the judges should rather follow what the public laws command.^[251]

We must remember that, unlike imperial edicts and letters which are often described as laws, private rescripts are not strictly speaking laws.^[252] Rather they are supposed to be authoritative statements explaining what the law already is. Many rescripts point out to the petitioner what a rescript cannot do. Thus Diocletian tells one petitioner:

A document, which does not accord with law or statute, this it is not fitting for us to confirm; for we are not at all accustomed to grant benefits to petitioners without regard to the injury caused to anyone else.^[253]

Any rescript that attempted to do so, whether through corruption, error or ignorance, would be contra ius.^[254] Such a situation would be the enslavement of the freeborn under a tyranny, noted by Constantine as a product of the rule of Maxentius.^[255]

As the safeguards in Constantine’s laws seem to cover only rescripts, it is clear where abolition would be directed in the case of Licinius.

Major edicts of Licinius, containing unwarranted innovations, would appear to be the most vulnerable form of his enactments. Eusebius protests:

Why is it necessary to record singly and severally the deeds of the God-hater and how this man, who was the extreme opposite of lawful, invented lawless laws?²⁶

He charges Licinius with altering the ancient, wisely established laws of the Romans with respect to marriage and the rights of the dying.²⁷ Yet in 320, Constantine himself issued an edict that fundamentally altered marriage and testamentary law,²⁸ the most famous part of this being the annulment of most of the provisions against celibacy in the Lex Papia Poppaea of AD 9, a law which Constantine himself calls vetus ius (CTh 8.16.1).²⁹ Eusebius praises both the celibacy and testamentary dispositions of Constantine for rectifying the defects of the original laws and using reason to make them more righteous (Eusebius, VC 4.26.2-4).³⁰ It is remarkable to find the same author, who does not allude to any interrelationship between the two sets of imperial laws, nevertheless directing criticisms at Licinius for apparently enacting new legislation on precisely the same topics and at the same time as Constantine. We cannot know whether either emperor acted in knowledge of or in reaction to the other’s legislation. Thus vetus ius is a useful concept to employ, whether an emperor cites it as precedent, claims to improve upon it or is criticised for contravening it.³¹

²⁶        Eusebius, HE 10.8.11.

²⁷        Eusebius, HE 10.8.12.

²⁸        This is an edict of Constantine ad populum, given at Serdica, 31 January, posted at Rome 1 April 320 and made up of the following excerpts: CTh 3.2.1 {CJust 8.34.3), 4.12.3,

8.16.1,     11.7.3, CJust 6.9.9, 6.23.15, 6.37.21 (Seeck, Regesten, p. 169). The CJust extracts are dated in the subscripts to 339, but a reference in a law of Justinian supports the attribution to Constantine {CJust 5.70.7.3). The Constantinian dating is demonstrated by B. Albanese, ‘L’abolizione postclassica delle forme solenni nei negozi testamentari’ in Sodalitas: Scritti in Onore di Antonio Guarino 2 (1984), pp. 777-92.

²⁹        The panegyrist before Constantine and Maximian in 307 had praised just this law {Pan. Lat. 6(7).2.4). Another part of the edict of 320 {CTh 4.12.3) cites vetus ius with approval.

³⁰        Sozomen, HE 1.9 discusses this reform in a similar vein. However, he also states that Constantine gave additional testamentary privileges to those embracing a life of continence and virginity, and supports Constantine’s action by citing ancient Roman practice in regard to the Vestal Virgins.

³¹        In addition to the examples already mentioned from the edict of 320, Constantine cites vetus ius as precedent at CTh 9.1.5, 9.24.1, 12.11.1, but improves on it at CTh

11.39.1.     Note the same dichotomy for Diocletian, who modifies vetus or priscum ius {CJust 8.54.3, 9.9.27), while appealing to it repeatedly in the Damascus incest edict {Collatio 6.4). It is ironic that Constantine’s own statutes were regarded as unwarranted innovations by his nephew, Julian, who styled him novator turhatorque priscarum legum et moris antiquitus recepti (Ammianus 21.10.8) and repealed some of his laws, re-establishing antiquum ius or vetus ius {CTh 2.5.2, 3.1.3).

The same Theodosian title (CTh 15.14) that contains the three laws I have cited, records other similar legislation by later emperors on the aftermath of the overthrow of a 'tyrant’ or usurper. Arcadius and Honorius state that the time of the tyranny (of Eugenius, 392-4) shall _De considered as though it had not been (CTh 15.14.9,395), although safeguards for certain private legal acts are provided with respect to the usurpations of Magnentius (350-3), Magnus Maximus (383-8) and Eugenius (CTh 15.14.5,8,9). However, in combining Constantine’s annulment of Licinius’ laws with texts dealing with later usurpers, the Code compilers did Licinius an injustice. Unlike Magnentius, Magnus Maximus, and of course Maxentius, who had received only brief and uncertain recognition, if at all,^[256] Licinius was no usurper. His appointment as Augustus by Galerius at Carnuntum in November 308 was as legitimate as could be. He had shared rule with Constantine, though sometimes in conflict, for over a decade after the overthrow of Maximinus in 313.

This leads to another problem. Constantine clearly differentiates between the laws of Licinius and his own (CTh 15.14.1). But Licinius was a tyrant only in retrospect. All imperial pronouncements will have included the names of both emperors as joint issuers. In the theory of imperial collegiality, the action of either was the action of both. Therefore, Constantine’s own legitimate acts would have to be emended to remove Licinius. And the abolition of Licinius’ acts would involve the invalidation of texts bearing Constantine’s name as well.

This creates complications of titulature. Eusebius could emend passages in the Ecclesiastical History where he was favourable to Licinius.^[257] But although Licinius was deleted from the heading of Galerius’ toleration edict (Eusebius, HE 8.17.5),^[258] he remained embedded in the so-called ‘edict of Milan’, a letter to the governor of Bithynia posted at Nicomedia in June 313.^[259] It is the only document of the period where the anonymity of collegiate plurals gives way to the naming of both emperors as they agree on the measures to be taken.^[260] This surviving mention of Licinius is only to be expected, as any of his legislation in favour of the Christians would be that most likely to be left untouched.^[261]

A case of the certain survival of a Licinian enactment is the Brigetio Tablet.name="_ftnref262" title="">^[262] This contains a letter on military privileges to an unknown Dalmatius, possibly praeses of Valeria.^[263] It was originally issued from Serdica on 10 June 311 and therefore by Licinius.^[264] The heading bears the names of Constantine and Licinius, with the name of Licinius erased. It clearly remained valid after his fall. Thus a pronouncement of Licinius survived. Note, however, that this text comes from territory already under the rule of Constantine from 316, and therefore long before any damnatio memoriae of Licinius.^[265] It is possible that the fate of Licinius’ enactments in the territories he lost in 316 differed from what happened after 324.

By contrast, where Licinius had not been so generous in his dispositions, they were revoked in no uncertain terms. Thus, in CTh 8.4.1, dealing with the liturgical immunity of cohortales, Constantine abolished what the tyrant decreed (iniquissime tyrannus constituit) and enacted more favourable rules of his own.^[266] Thus the good regulations of Licinius survive quietly, while the bad are undone with a flourish.

Moving now to the second main topic of this chapter, how are Licinian constitutions to be identified? When Theodosius II ordered the compilation of his Code, he chose to start with the first Christian emperor.^[267] Except as a tyrant, Constantine’s colleague Licinius is not acknowledged. Only for the purposes of consular dating does he survive, but with the A for Augustus removed.^[268]

Elsewhere, he is not entirely forgotten. Four constitutions in the Fragmenta Vaticana have headings implying two Augusti at this time, though without naming names, and only one is strictly accurate.^[269] A further three give Licinius as Augustus in the consular date.^[270]

Justinian’s code is even more informative. Four constitutions give Constantine and Licinius as the issuing emperors as follows:

CJust 3.1.8. Impp. Constantinus et Licinius AA. ad Dionysium, 15th May 314.

CJust 6.1.3. Impp. Constantinus et Licinius AA. ad Probum. Sine die et consule.^[271]

CJust 7.16.41. Impp. Constantinus et Licinius AA. ad Titianum praesidem Cappadociae.^[272]

CJust 7.22.3. Exemplum sacrarum litterarum Constantini et Licinii AA. ad Dionysium vice praefectorum agentem. 29 April 314.

The origin of these constitutions is uncertain. The Codex Justinianus was supposedly compiled from the Gregorian, Her- mogenian and Theodosian Codes plus the later novels. However, it contains some 240 constitutions from the period of the Theodosian Code not found in that Code. Now, the Theodosian Code has a number of lacunae and gaps. Some of the unallocated Justinian constitutions may derive from these gaps, though no complete attempt has been made to correlate the subject matter of these Justinian texts with incomplete or missing titles in the Theodosian Code.^[273]

There is a more plausible source for the joint Licinian-Constantinian constitutions. One of our texts opens with the words exemplum sacrarum litterarum (copy of the sacred letters, CJust 7.22.3), while a second ends with the phrase sine die et consule (without diurnal and consular date, CJust 6.1.3). The first formula occurs once^[274] and the second not at all in the Theodosian Code. Indeed, a constitution of Constantine from 322 denies validity to any imperial pronouncement that lacks day and year (CTh 1.1.1). Even the Theodosian laws before this date carry a fully dated subscript. These constitutions are, therefore, unlikely to derive from the Theodosian Code.

Both these formulae, however, occur elsewhere in Justinian’s Code in material of Diocletianic date.^[275] They are therefore typical of the Gregorian and Hermogenian Codes.^[276] These codes were probably published c. 292 and 295 respectively^[277] and both were subsequently expanded. The Gregorian Code cannot be shown to have material after the abdication of Diocletian in 305.^[278] However, seven constitutions of Valentinian and Valens are attributed to the Hermogenian Code in the Consultatio, a late fifth- or sixth-century work from the West, giving imaginary answers and explanatory discourse as though from the consultation of a jurist.^[279] If the Hermogenian Code was expanded as late as the 360s, additions may also have been made on previous occasions. The presence of the name of Licinius as emperor in the constitutions under discussion implies that one such expansion took

4.             Hidden from History: the legislation of Licinius 107 place before the overthrow of Licinius and the expunging of his name in 324.       '

Further, these additions were probably made to the Hermogenian Code in Licinius’ eastern territory. One of these texts is a letter to fitianus, praeses of Cappadocia (CJust 7.16.41).^[280] This at least must be a true constitution of Licinius, since it concerns his part of the Empire. If the other texts derive from the same source, we may suppose that they too genuinely belong to Licinius. Hermogenian is said to have produced three editions of his Code.^[281] It could be that after the initial publication in 295, a second version appeared c. 305 and a final one before Licinius’ fall in 324, though neither of these revisions could have been very extensive.

Let us now move on to the Theodosian Code. Here there are no headings that include Licinius. Indeed, very few even acknowledge the existence of Constantine’s sons as Caesars, namely Crispus (317-26), Constantine II (from 317), Constantius II (from 324) and Constans (from 333).^[282] The constitutions from 313 to 337 appear to emanate from Constantine alone.

How is Licinius to be found, if at all? The simplest criterion is one of geography. A priori, any constitution that has a place of issue in its subscript that is in Licinius’ territory, must be seen as his enactment. And any law with a destination in the East must be similarly regarded. There are over twenty such texts. Most have had their transmitted manuscript date or place emended by various scholars. Thus Licinius all but disappears.

Can he be saved? I do not want to consider all of these texts. Most of the emendations have been made for unimpeachable reasons.^[283]

However, I do want to discuss a few, where the attribution to Licinius need not be discounted automatically. These are as follows:

CThlang=EN-US> 10.14.1. Constantine to Mygdonius, castrensis palatii. 21 March 315, Antioch.

CTh 8.4.3, 10.7.1, 10.20.1, 12.1.5. Constantine ad Bithynos. 21 July 317 (Nicomedia?).

CTh 1.27.1. Constantine (recipient lacking). 23 June 318, Con­stantinople.

CTh 11.30.12, 12.1.8. Constantine to Florenti(n)us. 13 April 323, Constantinople.

CTh 8.1.1. Constantine to Leontius. 9 June 319, posted at Hierapolis. CTh 2.30.1. Constantine ad universos provinciales. 2 June 315, Sirmium.

CTh 11.16.3. Constantine ad edictum Calchedoniensium et Macedo­niensium. 24 April 324.

Considering first the more plausible Licinian laws, let us start with CTh 10.14.1, addressed to Mygdonius, castrensis sacri palatii on 21 March 315 from Antioch. The presence of Licinius in Antioch is not incompatible with what little we know of his movements between 314 and 316.^[284] After the fall of Maximinus, he visited Antioch, where he gained unpopularity by not distributing largesse.^[285] He may have campaigned on the Persian front in 314. So, he could still have been in Antioch in spring 315, although there also has to be time for some Danube campaigning.

The recipient is also quite plausible. The late Roman imperial court was characterised by the presence of eunuchs as cubicularii, though quite how far this had been established by Diocletian is unclear.^[286] Eunuchs are already described as powerful at his court,^[287] though specific titles such as praepositus sacri cubiculi and the more junior castrensis are not yet attested. It is easy to imagine Mygdonius as born near Nisibis and named for the river there; then being castrated and imported into the Empire. Perhaps he was even among the booty of legendary scale taken by Galerius when he defeated Narses in 298.^[288] He could then have passed into the entourage of Licinius from the court of Galerius or Maximinus.^[289]

There is, therefore, nothing exceptional about the circumstances of this law to demand emendation. Seeck, however, chose to identify Mygdonius with the recipient of two letters of Libanius in 357.^[290] This man was powerful and influential and had taken Libanius under his protection both in Athens and at Constantinople in the 340s. He survived to be able to deliver letters to Julian in 362. The texts that mention him do not indicate what posts he held. He does not sound like a eunuch palace official of Constantius II, of the type so disliked by Ammianus.^[291] However, there is no positive evidence that at this period the castrensis was a eunuch.^[292]

Identifying the two Mygdonii, Seeck proposed to emend the date 315 (Constantine and Licinius both cos. IV) to 346 (Constantius IV and Constans III). Confusion between imperial consular dates is the most likely source of incorrect subscripts, and this choice fits in with Constantius’ itinerary.^[293] Seeck had an additional assumption underlying his emendation. He believed that the first civil war between Constantine and Licinius took place in the autumn of 314;^[294] thus Licinius would hardly have retired so far from his rival so soon after his defeat, even though he could have reached Antioch by 21 March 315. We have seen above, however, that, as the civil war occurred in 316-17, the date and place are compatible with Licinius’ movements. The need for emendation therefore disappears. The identification of the two Mygdonii, though still plausible, is not imperative. It is therefore possible that the subscript date could be left unaltered, thus providing a law of Licinius.^[295]

Next we come to a set of Theodosian extracts that are normally assigned to Licinius. Four passages regulating the possession of equestrian ranks constitute part of an edict issued to the Bithynians on 21 July 317 (CTh 8.4.3, 10.7.1, 10.20.1, 12.1.5). Given that Licinius’ main residence from 317 was Nicomedia, it is even possible that this law implies his presence there at this time.^[296]

It is surprising, in view of the tendency to emend away Licinian laws, that the consular date Gallicanus and Bassus (317) has not yielded to Gallicanus and Symmachus (330), thus making it an edict of Constantine.^[297] Alternatively, did Licinius here merely follow a constitution of Constantine from January 317 (CTh, 12.1.4), that precedes one of the extracts from this edict, as was the view of Seeck?^[298] After the death of Galerius, Maximinus had claimed the title of senior emperor, but this was voted to Constantine by the senate after the defeat of Maxentius in 312 (Lactantius, De Mort. Pers. 44.11). Licinius was therefore constitutionally subordinate, as Eusebius stressed by portraying him as an ungrateful junior. Just as Maximinus at least pretended compliance with the authority of Constantine over the Christians in 312 (Eusebius, HE 9.9.13), so, it is supposed, Licinius repeated his senior’s legislation in this matter. It has even been thought that he could not issue his own edicts.^[299]

This argument does not hold in this case. Although both constitutions concern the status of decurions, their juxtaposition in the Code is misleading. In fact, they approach the question from different angles. Constantine is concerned to safeguard the due status of decurions and prevent usurpation of their privileges. Licinius is only mentioning decurions among a number of other groups whose entitlement to the prefectissimate and other ranks needs to be strictly regulated. If this is an edict of Licinius, there is no need to deny him the initiative for issuing it. Indeed, even the Caesars in the tetrarchic system had some legislative competence.^[300]

Moreover, the ability of a senior emperor to enforce his legislative will was severely limited. Even Diocletian could not force Constantius to implement the great persecution with eagerness.^[301] With the oreakdown of the settlement after the abdication in 305, the rulers probably went their separate ways, whatever the constitutional theory. Maximinus and Licinius split Galerius’ dominions in 311, almost going to war and then concluding a peace treaty with one another.^[302] Only in 313 did Licinius enter Constantine’s territory, invited in peace to confer at Milan, and he was not pleased when Constantine violated his territory in 323. Of course, this does not preclude the possibility that Licinius might voluntarily imitate Constantine’s legislation, though the similar problems facing any emperor make similar legislation inevitable.^[303]

We now come to laws, whose ascription to Licinius is less likely. CTh 1.27.1, granting jurisidiction to Christian bishops, lacks any recipient in its heading and has a corrupt subscript, which appears to state that it was given at Constantinople in June 318. It has been suggested that Licinius issued this law from Byzantium, soon to be Constantinople.^[304] Could this pagan have legislated so favourably for Christians?

Licinius conquered the East as a liberator from tyranny and perse­cution, bringing toleration to Christians. The 'edict of Milan’ granted full toleration and restitution to the church. It is an even-handed pronouncement, specifying religious tolerance not just for Christians but for all - that it is not more favourable to Christians may represent the less enthusiastic attitude of Licinius, as opposed to that of Constantine, who was already extending immunities to clerics in Africa.^[305] But it is possible that Licinius extended immunity to clerics in imitation. This is inferred because the forcible appointment of clerics to town councils was one of the marks of his later persecution, implying the abolition of previous immunity.title="">^[306]

Licinius’ wife, Constantine’s sister, Constantia, was Christian^[307] and close to Eusebius of Nicomedia, who had chosen the episcopal see where the power was; that is, one of the main imperial residences.^[308] There were thus powerful Christian voices close to the emperor.^[309] Could Licinius have listened to them? If Jews enjoyed certain rights of separate jurisdiction,^[310] why not Christians? This was some time before tension between the two Augusti led Licinius to take action against the Christians at some point after 321. The Council of Nicaea in 325 called Licinius’ rule a tyranny,^[311] and after its conclusion, Eusebius was accused of abetting the tyrant.^[312] Could the persecution of Licinius, localised and uneven as it was,^[313] have selected its targets carefully? Perhaps the ban on synods of bishops was designed to hinder the meetings of Eusebius’ opponents in the developing Arian con­troversy.^[314]

Interesting though this scenario is, there are too many arguments against it. If Licinius had really helped the Arians, the ammunition would have been too good for Athanasius and other anti-Arian writers to ignore. In any case, the law is in keeping with Constantine’s attitude. It is most likely this passage that he refers to in a letter addressed to the praetorian prefect Ablabius in 333 (Const. Sirm. 1), where he refers to such a law as already in existence. He criticises Ablabius for not knowing his original disposition.⁹¹ This neatly highlights the problem of dissemination of imperial pronouncements, where even a high official is in ignorance.

This law, therefore, need not be attributed to Licinius. The subscript / the constitution has been sufficiently explained by Seeck, who demonstrates how the consular date for 318 became corrupted to give Constantinople.⁹² Any subscript mentioning Constantinople before the date of its founding is suspect. Two laws of 323 from the code also mention Constantinople {CTh 11.30.12,12.1.8) and Seeck took these to refer to Constantine in Byzantium, at the time when he had to violate Licinius’ territory in the emergency of a barbarian incursion,⁹³ although it might equally well mean Licinius in Byzantium.⁹⁴ However, I think it more likely that Constantine’s name was transposed into the consular date, even though this was a year when Constantine as consul was not in the subscript, and that the name was then corrupted to Constantinople. The only emperor found issuing laws at Byzantium in this period is Diocletian in the 290s.⁹⁵

The subscript of CTh 8.1.1 states that it was posted at Hierapolis on 9 June 319. If correct, this would have to be a law of Licinius, although as it was only posted, not issued, at Hierapolis, it does not provide evidence of Licinius’ movements in a year for which there is no specific attestation.⁹⁶ Seeck, however, proposed that the recipient, Leontius, whose office is not given, should be identified with Constantius H’s praetorian prefect of the east and redated to 343.⁹⁷ Constantius is otherwise attested issuing a law to Leontius at Hierapolis in June 343 {CTh 12.1.35) and was still in the city in July {CTh 15.8.1).⁹⁸ Against this, Jones argued that the use of the term tabularii, to denote financial officials of provincial governors, supports the manuscript date. Examination of the other laws under the same Theodosian title shows that the term numerarii was employed in 334 (8.1.4), but that the emperors ordered the term tabularii to be used again from 365 (8.1.9).⁹⁹ However, this presses too far an imperfectly understood terminology. The coincidence of Leontius and Hierapolis is far more convincing in supporting an attribution to Constantius II.

It is more difficult to identify the issuer of our next constitution, CTh

⁹¹        Seeck, Regesten p. 7; cf. Const. Sirm. 4 (336), which is another re-enactment. For the whole question of legislative repetition in the Theodosian Code, see J. Gaudemet, ‘Recherches sur la legislation du Bas-Empire’, in Studi in Onore di Gaetano Scherillo 2 (1972), pp. 693-715.

^{style='font-size:7.5pt;line-height:97%'>92}                                                                 Seeck, Regesten p. 57.         ⁹³ Seeck, Regesten pp. 110-11 & 172.

⁹⁴ Barnes, NE p. 82 is tentative on this point. ⁹⁵ Barnes, NE pp. 50-4.

⁹⁶        See Barnes, NE pp. 80-2. Licinius’ main residence at this time was Nicomedia.

⁹⁷        Seeck, Regesten p. 192.

⁹⁸        All these texts are used in the reconstruction of Constantius’ movements by T.D. Barnes, ‘Imperial chronology, ad 337-350’, Phoenix 34 (1980), p. 163.

⁹⁹        A.H.M. Jones, ‘The Roman Civil Service (clerical and sub-clerical grades)’, JRS 38 (1948), p. 47 nn. 98-9. This is accepted by PLRE 1 p. 499 (Leontius 3).

2.30.1, an edict addressed to all the provincials on 2 June 315 from Sirmium. Here the choice is between keeping Sirmium and assigning the law to Licinius, or changing it to Sirmio (near Verona) to suit Constantine’s movements, as is done in the case of another constitution.^[315] The law seeks to prevent goods being seized as pledges for debt in civil cases, this being seen as detrimental to the collection of taxation for the fisc. It would press the content of this law too far to see this concern as a mark of the rapaciousness of Licinius, rather than as a typical imperial worry about the unhindered collection of taxes. It is as likely to be an edict of Constantine as one of Licinius.

The last puzzle of geography is a text of April 324 with the inscription giving the mysterious wording ad edictum Calchedonien- sium et Macedoniensium (CTh 11.16.3), apparently mixing territories of Constantine and Licinius. There seems to be no ready explanation for the form or content of this heading.^[316] Emendation of the date seems the least problematical solution.^[317]

This completes the roll call of possible Licinian laws in the code based on the premises of geography. They can all be challenged with a degree of plausibility.

Licinius may still lurk elsewhere. Titianus, governor of Cappadocia, the recipient of CJust 7.16.41 from Licinius, discussed above, may be the same as the recipient of a letter on the abuse of the beasts of the cursus publicus (CTh 8.5.2).^[318] Less certainly, the Probus of CJust 6.1.3 has been identified with the recipient of CTh 4.12.1, and both these with the praetorian prefect of Licinius, consul in 310.^[319] But there is more to this argument than thus identifying an otherwise unknown recipient. The Theodosian title under which this text comes is concerned with the Senatus Consultum Claudianum and the question of women who cohabit with slaves. The code did not set out to provide a consistent body of constitutions, and under this title there are reversals of attitude towards the senatus consultum. Three of these laws plus the interpretatio of a fourth are attributed to Constantine, from the years 314, 317, 320 and 331, giving respectively a severe, then a lenient, another lenient and finally a severe approach (CTh 4.12.1-4). The solution of this imperial changeableness is seen to be to attribute the first law to Licinius, thus allowing Constantine to undergo only a single change of mind.^{Schoolbook">[320]} Coincidence also lends plausibility to this idea, in that three of the four Licinian texts in the Codex Justinianus are concerned in various ways with slavery; the one to Probus, for instance, decrees amputation and other penalties for those slaves uying to flee to the barbarians. Thus severity in such matters is seen as a mark of Licinius’ attitude. Cruelty, however, is a consistent trait in late Roman legislation, and there are plenty of harsh punishments in Constantine’s own laws.^[321] There also seems no particular need to eliminate imperial changes of mind, and such inconsistencies may in any case reflect changes in the advice offered by the magistri epistularum or other officials concerned with composing pronounce­ments. It does, however, seem to be a dangerous precedent to set, that Licinius should become a dumping ground for problematical Constantinian legislation.^[322]

Epigraphy provides us with a further salutary warning. A letter of 314 (CTh 9.5.1) is addressed to Maximus, urban prefect at Rome, whose period of office (319-23) does not coincide with the subscript date, making emendation of the date the likeliest solution of the inconsistency.^[323] But this text is also known as part of a larger edict inscribed on stone, the Edictum de Accusationibus. All five surviving copies of the edict come from Licinius’ dominions (Lyttus, Tlos, Padua (but probably from Asia), Sinope and Pergamum)^[324] and the Lyttus copy is headed with the words exemplum sacri edicti. At the very least then, what appears in the Code as an undoubted letter of Constantine went out as an edict in Licinius’ territory. Sentiments of hostility to informers are found in other Constantinian texts {CTh 10.10.1, 2,312/13), shortly after the fall of Maxentius, the mark of an appropriate desire to limit the dislocation of a change of ruler and to suppress what every ruler professed to loathe. Likewise, the edict issued early in 314 would be appropriate action by Licinius following the death of Maximinus in the summer of 313; although Licinius himself went further than Constantine by conducting an extensive purge of Maximinus’ supporters, including the elimination of seven left-over wives and children of former emperors.^[325] The fate of these lofty unfortunates aside, imperial providence on behalf of the provincials was not geographically limited, since the edict was published even in Crete, which had not been under the rule of Maximinus. The initiative of Licinius in this matter is made more likely by the presence of crucifixion in the text as one mode of punishment for slave informers. Constantine abolished crucifixion out of respect for its Christian associations, though it is not clear when he did so.^[326]

The law appears to exist as a letter in the Code and an edict on stone. The end of the edict talks of scripta with more details being sent to the praetorian prefects (theoretically of both emperors), governors and the rationalis and magister privatae (presumably just of Licinius).^[327] These scripta might be what we find in the Code. With a small emendation to the heading, the recipient could become the praetorian prefect of Licinius (i.e. pu changed to pp).^[328] The wording in the Code is so close that it would seem odd if it represents the emperor sending what is an identical text masquerading as an amplification. However, the Code extract is very short. We may possess only the overlap between two different but complementary parts of the same administrative act. What this law does demonstrate is that when the emperor performs a single act of legislation, multiple copies of several different texts are involved. Unfortunately, we do not possess for this period all the parts involved in any act of imperial legislation, so as to be certain of any interrelationship between texts.^[329] The closest

4. Hidden from History: the legislation ofLicinius 117 available are the edicts of governors used to publish imperial edicts; namely the edicts of Aristius Optatus in 297,^[330] Fulvius Asticus in 301^[331] and Clodius Culcianus c. 305.^[332]

Whatever the exact relationship between the letter in the Code and the epigraphic text, it looks as if Licinius may have survived in the Code, perhaps due to a combination of inadvertence on the part of the compilers and textual corruption.^[333]

One last Theodosian problem should be mentioned. In 336, a son of Licinianus was reduced to slavery and condemned to the gynaecia at Carthage (CTh 4.6.2-3). His legitimacy derived from a rescriptum sanc[tissi]mum. This person used to be identified as Licinius Junior,^[334] now more recently as an unknown illegitimate son of Licinius.^[335] However, it seems most unlikely that this sacred rescript would be a phrase applied to a legitimising act ofLicinius for his bastard son. But it also seems unlikely that Constantine would have legitimised his deceased rival’s son, unless, perhaps, Constantia desired to adopt the child, as Valeria had adopted Galerius’ natural son Candidianus.^[336] The easiest solution is to suppose that the son of Licinianus is no relation ofLicinius at all.

Now, we have seen how some acts of Licinius survived via the Hermogenian Code, precisely because they were collected before his fall, and were not subsequently emended to eliminate his name. Why then should any be found at all in the Theodosian Code, which itself contains laws annulling his constitutions?

I do not believe that Constantine’s sweeping pronouncement of abolition cited above (CTh 15.14.1) signifies a policy of search and destroy. Such a short extract from what may have been a longer law lacks the full context. It may have originated from a specific problem. In any case, implementation would probably be difficult, lacking in both efficiency and thoroughness, just as Licinius’ name was not comprehensively erased form all inscriptions.^[337] Where laws were headed with the names of both emperors, it might soon be unclear who really did issue them, especially since the simple removal of Licinius’ name could hide for ever his connection with the law.

As I have already noted, any startling innovations, especially if unpopular, would be likely to be known and abolished easily. If Licinius’ enactments were brought forward to support a petition or were cited in court, or if there were appeals against them, all these would bring them to notice and expose them to invalidation. Several tyrant texts already noted are quite specific in this manner, those relating to the freeborn enslaved, the cohortales deprived of privileges and senators forcibly made navicularii (CTh 5.8.1, 8.4.1,15.14.4).

Failing this, the constitutions of tyrants could survive quietly and then unwittingly be included in collections of laws, even if on no great scale. After all, the Theodosian Code also includes one eastern law to be ascribed to Maximinus, a letter to the governor of Lycia and Pamphylia on the immunity of urban populations from the poll tax.^[338] This must have survived whatever damnatio memoriae that Licinius decreed for him.^[339] And Licinius too, in however minimal a fashion, has survived in the later Codes. But he provides a salutary warning for users of the text. Nearly all enactments that might be attributed to him on reasonable grounds are vulnerable to challenge, but the law de

4.           Hidden from History: the legislation of Licinius 119 accusationibus, which would not otherwise have been considered, is shown by epigraphic evidence to be his. The Theodosian compilers, however, had no idea that a tyrant lurked anonymously among their collected constitutions.

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