constantine and slavery. libertas and the fusion of roman and christian values

235

NOEL LENSKI

University of Colorado at Boulder

CONSTANTINE AND SLAVERY: LIBERTAS AND THE FUSION OF ROMAN AND CHRISTIAN VALUES1

Constantine has always been controversial. Those who have seen

his commitment to Christianity as genuine have been counterbalanced

by those who have regarded it as lukewarm if not downright fraudu-

lent. A century ago it was fashionable to view Constantines conversion

as an insincere and calculating political move2. Today, by contrast, few

would deny that Constantine himself, at least, believed he was a true

Christian3. Even so, it has become common to regard Constantines

1 I should like to thank John Dillon for reading and commenting on this paper.2 This tradition truly began with J. BURCKHARDT, Die Zeit Constantins des Grossen, Basel

18802, cf. M. HADAS, trans. and N. LENSKI, intro., The Age of Constantine the Great, London, 2007. It found its most vehement exponent in H. GRGOIRE, La conversion de Constantin in Revue de lUniversit de Bruxelles, 36, 1930-31, 231 ss.; ID., Eusbe nest pas lauteur de la Vita Constantini dans sa forme actuelle et Constantin ne sest pas converti en 312 in Byzantion, 13, 1938, 560 ss.; ID., La vision de Constantin liquide in Byzantion, 14, 1939, 341 ss. Some uphold it even today, cf. K. BRINGMANN, Die konstan-tinische Wende. Zum Verhltnis von po-litischer und religiser Motivation in Historische Zeitschrift, 260, 1995, 21 ss. On the problem of anti-constantinianism, see V. AIELLO, Costantino, la lebbra, e il battesimo di Silvestro in G. BONAMENTE and F. FUSCO, edd., Costantino il Grande dallantichit allumanesimo. Colloquio sul Cristianesimo nel mondo antico, Macerata 18-20 Dicembre 1990, I, Macerata 1992, 17 ss.; ID., Costantino Eretico difesa della ortodossia e anticostantinianesimo in et teodosiana in AARC, 10, 1991, 55 ss.; S. Calderone, Teologia politica, successione dinastica e consecratio in et costantiniana in O. REVERDIN, ed., Le culte des souverains dans lempire romain, Vandu-vres-Genve 1972, 215 ss.; V. NERI, Medius Princeps. Storia e immagine di Costantino nella storiografia latina pagana, Bologna 1992.

3 See already N.H. BAYNES, Constantine the Great and the Christian Church. The Raleigh Lec-ture on History, 29 October 1918. Proceedings of the British Academy, 15, 1929); cf. T.D. BARNES, Constantine and Eusebius, Cambridge 1981; T.G. ELLIOTT, The Christianity of Constantine the Great, Scranton 1996; C.M. ODAHL, Constantine and the Christian Empire, London 2004. For

Atti dell'Accademia Romanistica Costantiniana XVIIIISBN 9788854830226DOI 10.4399/97888548302268pp. 58 (giugno 2011)

NOEL LENSKI236

extant legislative enactments as motivated less by Christian belief than

by traditional or even contemporary Roman legal concerns4. Here I

will argue that, at least in the instance of some of Constantines laws on

slavery, the picture is more complex. To be sure, Constantine generally

remained beholden to traditional legal praxis. As supreme lawgiver,

he was no revolutionary. Nevertheless, his brilliance in lawgiving, as

in so many aspects of his politics, was to cloak his revolutionary new

religious program in the trappings of established norms and values.

This was certainly true of his laws on slavery and libertas, which, as this study will show, skillfully intermingled Roman political and Christian

religious concerns to influence social and legal practice in innovative,

though hardly revolutionary ways.

a more nuanced approach see H.A. DRAKE, Constantine and the Bishops. The Politics of Intoler-ance, Baltimore 2000.

4 J. GAUDEMET, La lgislation religieuse de Constantin in Revue de lhistoire de lglise de France, 33, 1947, 25 ss.; ID., Droit romain et principes canoniques en matire de mariage au Bas-Empire in Studi in memoria di E. Albertario, II, Milano, 1950, 173 ss. = tudes du droit romain, III, Paris, 1979, 163 ss.; ID., Les transformations de la vie familiale au Bas-Empire et linfluence du Christianisme in Romanitas, 5, 1962, 58 ss. = tudes du droit romain, III, Paris, 1979, 281 ss.; ID., Tendences nouvelles de la legislation familiale au IVe sicle in Trans-formations et conflits au IVe sicle aprs J.C. Antiquitas, 29, Bonn, 1978, 187 ss.; J. EVANS GRUBBS, Law and Family in Late Antiquity, Oxford 1995; EAD., Marriage More Shameful than Adultery: Slave-Mistress Relationships, Mixed Marriages, and Late Roman Law in Phoenix, 47, 1993, 125 ss.; EAD., Constantine and Imperial Legislation on the Family in J. HARRIES and I. WOOD, edd., The Theodosian Code, Ithaca 1993, 120 ss.; T.A.J. MCGINN, The Social Policy of Emperor Constantine in Codex Theodosianus 4,6,3 in TR, 67, 1999, 57 ss.; Y. RIVIRE, Constantin, le crime et le christianisme: contribution ltude des lois et des murs de lantiquit tardive in Antiquit Tardive, 10, 2002, 327 ss.; C. HUMPHRIES, Constantines Le-gislation on the Family in N. LENSKI, ed., The Cambridge Companion to the Age of Constan-tine, Cambridge-New York 2005, 205 ss. There has always been, of course, a countervailing tendency that has attributed direct Christian influence to much of Constantines legislation.

See for example C. DUPONT, Les Constitutions de Constantin et le droit priv au dbut du IVe sicle: Les Personnes, Lille 1937; B. BIONDI, Il diritto romano cristiano, II, Milan 1952, 373 ss.; E. VOL-TERRA, Intorno ad alcune costituzioni di Costantino in RAL, 13, 1958, 61 ss.; A. STUIBER, Konstantinische und Christliche Beurteilung der Sklaventtung in Jahrbuch fr Antike und Christentum, 21, 1978, 65 ss.; A. CARCATERRA, La Schiavit nel secolo IV: spinte e stimoli cristiani nelle leggi a favore degli schiavi in AARC, 8, 1990, 148 ss. For a via media between the two positions see, for example, M. SARGENTI, Il diritto privato nella legislazione di Costantino, Milan 1938; ID., Il diritto privato nella legislazione di Costantino: Problemi e prospettive nella letteratura dellultimo trentnnio in AARC, 1, 1973, 229 ss. = Studi sul diritto privato del tardo impero, Padova 1986, 1 ss.; W. WALDSTEIN, Schiavit e cristianesimo da Costantino a Teodosio II in AARC, 8, 1990, 123 ss.

LIBERTAS AND THE FUSION OF ROMAN AND CHRISTIAN VALUES 237

The Rhetoric of Libertas

From the first decree heralding the onset of the Great Persecution in

April 303, the Tetrarchs made it clear that enslavement was to constitute

a primary means for enforcing their ban on Christianity. The first de-

cree stated, among other things, that officials who refused to renounce

Christianity would be deprived of their position and status, would be-

come subject to torture, would lose any right to legal action, and would

in fact lose their freedom and right of utterance (libertatem denique ac vocem non haberent)5. Lactantius, who reports this, goes on to claim that Galerius wished to enslave all his subjects, much like the king of the Per-

sians whom he had defeated, but being unable to do so openly settled

for depriving Christians of their status and forcing freeborn, even noble

women into subjection to labor in imperial wool-mills6. Confirming this,

other Christian sources, and particularly Eusebius Martyrs of Palestine offers numerous more specific instances of Christians who were reduced

to servitus poenae in the imperial mines, quarries, and cloth factories7. This mode of punishment, though not used solely against people of the

higher class, was particularly effective at punishing these latter, for it

deprived them utterly of the status on which their social standing was

based and reduced them to a servitude that was all the more humiliating

because it seemed so grossly inappropriate. Humiliation through enslave-

ment had thus, at least for people of substance, replaced execution. Not

that executions did not occur, but enslavement offered a better alterna-

tive, for the first made martyrs of people, the second only fools.

Knowing this Licinius continued to use enslavement to enforce his

own, more limited persecutions in the early 320s. Indeed, if we can be-

lieve the reports of our Christian sources, Licinius carried the disruption

of status boundaries even further by not only condemning nobles to the

mines and wool mills but also arranging the marriages of noble girls to

slaves8. With regard to Maxentius our sources are less specific, but Euse-

bius does state in the Vita Constantini that the emperor forced freeborn

5 LACT., De mort. pers. 13,1. Cf. EUS., Hist. eccl. 8,2,4: E ; same phra-seology at EUS., Mart. Pal. rec. brev., praef. 1 (SCh LV,120s).

6 LACT., De mort. pers. 21,1-4.7 EUS., Mart. Pal. rec. brev., 7,2-4; 11,5-6; 13,1-2 (SCh LV,141s; 157; 170).8 EUS., Vit. Const. 1,52,1; 1,55,3; 1,58,2-4; LACT., De mort. pers. 21,4.

NOEL LENSKI238

noblewomen into sexual servitude and he also employs the vocabulary

of enslavement to describe Maxentius treatment of Rome and its citi-

zens9. Moreover, the Liber pontificalis reports that Maxentius condemned Marcellus, bishop of Rome, to slavery in the catabulum, i.e. the imperial animal stables10.

The enslavement of freeborn citizens at least those of the lower

classes was of course a traditional Roman punishment11. Its use against

otherwise innocent Christians and particularly those of high status was,

however, easily exploited by Constantine in order to fan the flames of

public outrage against his rivals. When he undertook to wrest power

from Maxentius and in turn Licinius, Constantine deliberately portrayed

himself as their opposite, the champion of freedom. Indeed, in order to

vilify his co-rulers, Constantine created a new rhetoric of the rival as tyr-ranus which fell back on traditional conceptions of tyrannical behavior but added to these a new element of illegitimacy that demanded the ex-

pulsion of the rival-tyrannus from power12. In the case of Maxentius, who only ever won halting recognition from one other tetrarch and who was

openly attacked as a usurper by them, Constantines claims to justifica-

tion in attacking a co-ruler are relatively easy to accept. But Licinius had

been legitimately appointed by Galerius and allied to Constantine him-

self by the bonds of treaty and marriage. Constantine thus had to work

to portray his co-ruler as a tyrannus ripe for elimination. He succeeded in doing so in part by setting himself up as the avenger of Maxentius and

in turn Licinius illegitimate enslavement of Roman citizens in order to

depict them as ripe for elimination at his hands.

This role as the champion of libertas against the illegal enslavements of tyranni is apparent already in a constitution preserved as CTh. 5,8,1,

9 EUS., Vit. Const. 1,26,1; 1,33,1 ss.10 Lib. Pont. 31,3 ss. On the catabolenses as state owned slaves see CTh. 14,3,9s with L.

DUCHESNE, Le Liber pontificalis, I, Paris 1955, 166 n. 9.11 See F. MILLAR, Condemnation to Hard Labour in the Roman Empire, From the Julio-Clau-

dians to Constantine in Papers of the British School at Rome, 52, 1984, 124 ss.12 On Constantines appropriation and alteration of the rhetoric of tyranny, see V. NERI,

Lusurpatore come tiranno nel lessico politico della tarda antichit in F. PASCHOUD-J. SZIDAT, edd., Usurpationen in der Sptantike, Stuttgart 1997, 71 ss.; contra T. D. BARNES, Oppressor, Persecutor, Usurper. The Meaning of Tyrannus in the Fourth Century in G. BONAMENTE and M. MAYER, edd., Historiae Augustae Colloquium Barcinonense, Bari 1996, 55 ss.; cf. T. GRNEWALD, Constantinus Maximus Augustus in AARC, 9, 1993, 407 ss.


issued to the Urban Prefect of Rome Volusianus13 on March 19, 314, that

is within a year and a half of Constantines defeat of Maxentius. The law

reads:

Universi devotionis studio contendant, si quos ingenuis natalibus procreatos

sub tyranno ingenuitatem amisisse aut propria contenti conscientia aut al-

iorum indiciis recognoscunt, natalibus suis restituere, nec exspectata iudicis

interpellatione. Nam si quis contra conscientiam suam vel certissima testimo-

nia plurimorum in eadem avaritiae tenacitate permanserit, severissima poena

multabitur. Placet autem, etiam eos periculo subiugari, qui scientes ingenuos

servitutis necessitatem per iniuriam sustinere dissimulant.

The implication of the law is clearly that Maxentius had continued

the tetrarchic pattern of enslaving freeborn citizens as a punishment,

likely for their adherence to Christianity. Furthermore, the mention of

the same persistent avarice indicates that not just the state but also

private citizens were profiting by holding these former ingenui in their possession. By the terms of the law, those who knew ingenui that had been enslaved under the tyrant or who learned of them from others

were charged with freeing them summarily without the need for further

judicial involvement. This blanket grant of libertas was as vague as it was sweeping, a fact which, as we shall see, led to considerable problems.

Nevertheless, it offered Constantine an opportunity to demonstrate his

claim to being a champion of freedom in a way that boosted his own

reputation while denigrating that of Maxentius.

Similarly, when Constantine seized the eastern empire from Licinius

in 324, he issued exactly the same sort of law, as we learn from his Letter to the Eastern Provincials preserved by Eusebius:

those moreover who were forcibly deprived of their noble rank ( ) and subjected to a judicial sentence of such a kind that they were sent to wool factories or linen factories and endured unwonted

and shameful toil, or were reckoned servi fiscales (

13 For Constantines relationship with Volusianus see N. LENSKI, Evoking the Pagan Past. Instinctu Divinitatis and Constantines Capture of Rome in Journal of Late Antiquity, 1, 2008, 204 ss.

NOEL LENSKI240

), their former gentle birth notwithstanding, these are to rejoice in the honors they previously enjoyed and in the benefits of liberty ( ) He who has exchanged liberty for slavery ( ) through what was surely an un-godly and inhuman madness, and has often deplored his unwonted servile

tasks, and quite suddenly found himself a bondservant instead of a free man

( ), let him obtain his former freedom ( ) in accordance with our decree14.Exactly as with the decree of 314, Constantine was restoring libertas

to those ingenui who had been unjustly deprived of it and sent into ser-vitus as retribution for their profession of Christianity. Constantine thus promoted his own authority and his own right to have snatched power

from Maxentius and in turn Licinius with the rhetoric of freedom. He

had displaced his rivals, at least in part, in order to restore people to their

legitimate claims to libertas.Nor did Constantine limit this notion to the narrower social context

of enslavement. In the aftermath of the defeat of Maxentius and in turn

that of Licinius, the rhetoric of libertas rang out as a consistent theme in his political propaganda as well. The servitude from which Constantine

liberated his people was not merely legal servitude to a private master, it

was also political servitude to the enemies he called tyrants. Nowhere is

this clearer than in an inscription from Numidian Cirta which refers to

Constantine with the phrase:

q[u]i libertatem tenebris servitutis oppressam sua felici vi[ctoria nova] luce

inluminavit15.

The metaphor of slavery and freedom are thus applied directly to a

broader political realm: the libertas of the Roman world had been buried in the darkness of servitus until Constantine shed new light on it with his

14 EUS., Vit. Const. 2,34,1s, trans. A. Cameron and S.G. HALL, trans. and comm. Eusebius: Life of Constantine, Oxford 1999, 107, with modifications; cf. Vit. Const. 2,20,3 ss.; SOC., Hist. eccl. 1,2,8 s.

15 CIL, VIII, 7006 = ILS, 688 = ILAlg., II, 582 = T. GRNEWALD, Constantinus Maximus Augustus. Herrschaftspropaganda in der zeitgenssischen berlieferung, Historia Einzelschriften, LXIV, Stuttgart 1990, no. 97.


propitious victory. Similar rhetoric recurs in several other inscriptions

from North Africa16. It also appears in the oration delivered by the Ro-

man senator Nazarius on the occasion of the quinquennalia of Constan-

tines sons in 32117. It thus stands to reason that the Senate and People

of Rome hailed him as liberator urbis in one of the inscriptions on the interior vaults of the arch they erected in his honor18. And in documents

preserved in Eusebius, Constantine proudly advertised his championing

of freedom, taken in its broadest political sense19.

Moreover, in the immediate aftermath of his victory over Maxentius,

he also minted coins exclusively in Rome and exclusively in his name

omitting his fellow tetrarchs Licinius and Maximin Daia with the

legend LIBERATORI VRBIS SVAE20. These featured an image of the

Dea Roma in a hexastyle temple, a provocative allusion to Maxentius

widespread type with the same image but the legend CONSERV(ator)

VRB(is) SVAE. At the same time, Constantine issued a much rarer series

from the Rome mint heralding him as LIBERATOR ORBIS and depict-

ing him on a rampant horse subjugating a lion21. The same type was also

16 CIL, VIII, 7007 = ILAlg., II, 583 = T. GRNEWALD, Constantinus Maximus cit., no. 98, also from Cirta but very fragmentary, would seem to have born the same inscription. See also CIL,

VIII, 7005 = ILAlg., II, 584 = T. GRNEWALD, Constantinus Maximus, no. 96: (Cirta) perpetuae securitatis ac libertatis auctori; CIL, VIII, 7010 = ILS, 691 = ILAlg., II, 581 (Cirta) Restitutori libe[rtatis] et conservatori t[otius orbis]; CIL, VIII, 2721 = ILS, 689 = T. GRNEWALD, Constanti-nus Maximus cit., no. 106: (Lambaesis) provi-dentissimo et cum orbe suo reddita libertate trium-fanti; cf. CIL, VIII, 7008 = ILAlg., II, 585 = T. GRNEWALD, Constantinus Maximus cit., no. 99: (Cirta) [restitutori libertatis] et fun[dato]ri [pacis]).

17 Pan. Lat. 4(10),31,1s: non captivi alienigenae introitum illum honestaverunt sed Roma iam libera imperium

recepit quae servitium sustinebat.

Cf. similar rhetoric at SOC., Hist. eccl. 1,2,3: .

18 CIL, VI, 1159 = ILS, 694. On this inscription see N. LENSKI, Evoking the Pagan Past cit.19 EUS., Vit. Const. 2,46,2 (letter to Eusebius on church building); cf. Vit. Const. 3,12,3 (Eu-

sebius rendition of Constantines speech at Nicaea).20 C.H.V. SUTHERLAND-R.A.G. CARSON, The Roman Imperial Coinage, VI, London 1967,

387 (Roma no. 303s). Note that LACT., De mort. pers. 45,11, in depicting Constantines defeat of Maxentius, characterizes it as the victoria liberatae urbis.

21 This type was brought to my attention by Brent Upchurch, who owns 2 specimens. The

type does not appear in P. BRUUN, The Roman Imperial Coinage, VII, London 1966. A fuller catalogue of variants and specimens with earlier litearture can be found at J.-M. DOYEN, Une mission constantinienne mconnue (Rome, 313) et la date de la 3me rduction pondrale du follis in Bulletin du cercle dtudes nu-mismatiques, 27, 1990, 1 ss.

NOEL LENSKI242

issued with obverses of Licinius in this period their propaganda coin-

cided on many fronts. Nevertheless, after Constantines defeat of Licinius

in 324, he issued a new series from Constantinople that trumpeted LIB-

ERTAS PVBLICA and depicted a Victoria aboard a military ship, refer-

ing to his naval victories over the eastern tyrant22.

To be sure, the idea of political libertas was a long-cherished, traditional value of Roman political culture. One thinks instantly of the rhetoric of

Augustus, an emperor with whom Constantine quite consciously associ-

ated himself23. Yet the Augustan use of the word differed significantly from

Constantines in ways that are of themselves highly instructive. For Augus-

tus libertas was a strictly political value with strictly political connotations. It referred not to the distinction between the free man and the slave but

to the free exercise of political authority by the senatorial elite. For Con-

stantine, by contrast, libertas was clearly both political and social. We have already seen it used to describe the improvement of social status for those

unjustly enslaved and in bondage. On the political level it entailed not free-

dom of action for the political elite, but liberation for all citizens now freed

from the tyrannical rulers Maxentius and Licinius had become.

There is also a third, religious element at play in Constantines notion

of libertas that was not present in earlier rhetoric. Freedom for Constan-tine quite clearly included freedom of worship. This we see most clearly

in the language of the so-called Edict of Milan of 313, which, there should

be no doubt, represents Constantines own rhetoric even if slightly modi-

fied in our surviving copies issued by Licinius24:

haec inter cetera quae videbamus pluribus hominibus profutura, vel in

primis ordinanda esse credidimus, quibus divinitatis reverentia continebatur,

22 P. BRUUN, Roman Imperial Coinage, VI, 572 s. (Constantinople 18; 24)23 On Constantines personal identification with Augustus, see B.S. RODGERS, Constantines

Pagan Vision, Byzantion, 50, 1980, 259 ss. See also the rhetoric of libertas as applied to Constan-tius Is freeing of Britain from the usurpers Carausius and Allectus, Pan. Lat., 7(6),4,3: Liberavit ille Britannias servitute; 6(7),6,1: se eiusmodi iudicem dedit ut servitutem passos iuvaret recepta libertas. Both speeches were delivered to Constantine, perhaps with the deliberate intention of drawing a link between father and son as defenders of freedom.

24 LACT., De mort. pers. 48,2 ss.; EUS., Hist. eccl. 10,5,2 ss. On the Edict of Milan see O. SEECK, Das sogenannte Edikt von Mailand in Zeitschrift fr Kirchengeschichte, 1 Folge, 12, 1891, 381 ss.; S. CORCORAN Empire of the Tetrarchs. Imperial Pronouncements and Government AD 284-324, rev. ed., Oxford 2000, 158 ss.


ut daremus et Christianis et omnibus liberam potestatem sequendi religionem

quam quisque voluisset, quod quicquid divinitatis in sede caelesti

Itaque hoc consilium salubri ac rectissima ratione ineundum esse credi-

dimus ut possit nobis summa divinitas, cuius religioni liberis mentibus ob-

sequimur, in omnibus solitum favorem suum benivolentiamque praestare

Quae sollicitudini tuae plenissime significanda esse credidimus, quo scires

nos liberam atque absolutam colendae religionis suae facultatem isdem Chris-

tianis dedisse. Quod cum isdem a nobis indultum esse pervideas, intellegit

dicatio tua etiam aliis religionis suae vel observantiae potestatem similiter ap-

ertam et liberam pro quiete temporis nostri concessam, ut in colendo

quod quisque delegerit, habeat liberam facultatem.

The adjective liber occurs no less than five times in Lactantius version of the text Moreover, Eusebius, who preserves a preface not transmit-

ted in Lactantius, records a sixth instance in the opening phrase of the

initial edict25. This is all the more noteworthy given that Galerius Edict

of Toleration, issued just a little over two years earlier, nowhere mentions

freedom of worship nor the word freedom at all. Galerius rhetoric is

rather that of as its designation implies toleration:

contemplationem mitissimae nostrae clementiae intuentes et consue-

tudinem sempiternam, qua solemus cunctis hominibus veniam indulgere,

promptissimam in his quoque indulgentiam nostram credidimus porrigen-

dam, ut denuo sint Christani et conventicula sua componant, ita ut ne quid

contra disciplinam agant26.

With the Edict of Milan, then, Constantine was deploying a new strat-

egy in his religious politics. By adding the positive and traditional Roman

value of libertas to Galerius cautious notion of toleration, he was able to amplify the semantic range of libertas to include freedom of religion. Lib-ertas in Constantines rhetoric thus implied social freedom from slavery, political freedom from tyranny, and religious freedom of worship.

25 The preface at EUS., Hist. eccl. 10,5,2-3 reports: h .

26 LACT., De mort. pers. 34,4; cf. EUS., Hist. eccl. 8,17,9 s. See also EUS., Hist. eccl. 9,9a,1 ss. and 9,10,7 ss., respectively Maximinus letter to Sabinus of late 312 and his toleration decree of

313 which similarly avoid the language of libertas.

NOEL LENSKI244

That Constantine understood his establishment of freedom in all of

these senses as the enactment of some larger divine mandate is clear from

a passage in his Oratio ad Sanctos where he claims that, by enacting free-dom he was himself realizing Gods plan:

But what more clear and obvious token of divine judgment could be

advanced? The world itself cries out, and the pageant of the stars shines

brighter and more conspicuous27, rejoicing (as I believe) in the fitting judg-

ment of unholy deeds. The very times that succeed the wild and inhumane

life are reckoned to rejoice because of their own good lot, and show the

goodwill of God toward humankind. While as for the invocations of God

by those who were being oppressed and longed for their natural liberty

( o ), and their praises of thanksgiving to God after the release from evils, when liberty

and their contract with justice had been restored to them ( ), how do these fail to delineate in every way the providence of God and his af-

fection for humankind28?

By freeing his subjects from the servitude of injustice and here I think

Constantine is deliberately vague about which of the three freedoms he

intends, or rather, he intends to imply all three Constantine was enacting

Gods plan for the universe. A number of early Christian texts advocate

in the broadest terms the freeing of prisoners or ransoming of cap-

tives as an act of Christian charity and others show the early Christian

community actually engaged in the activity of ransoming those in prison

or in slavery29. Once Constantine took the reigns of government, he was

able to implement the same mandate on a global political scale and thus

to endow a traditional Roman good with Christian significance.

27 Notice the resumption of the rhetoric of illumination seen already in the inscription cited

at n. 14. On the power of the metaphor of light in Constantinian political rhetoric, see I. TAN-TILLO, Attributi solari della figura imperiale in Eusebio di Cesarea in Mediterraneo Antico, 6, 2003, 41-59.

28 CONST., Or. Ad sanct. 25,5. My translation is taken from M. EDWARDS, Constantine and Christendom. The Oration to the Saints, The Greek and Latin Accounts of the Discovery of the Cross, The Edict of Constantine to Pope Silvester, Liverpool 2003, 61.

29 E.g. Herm. Mand. 8,10 and Herm. Sim. 1,8 (Die Griechischen Christlichen Schriftsteller der ersten Jahrhunderte, 48,1,35 and 47); Const. Apost. 2,62,4 and 4,9,2 (SCh, CCCXX,336 and CCCXXIX,184); IUST. MART., I Apol. 67,6; Mart. Pion. 9,3s; cf. C. OSIEK, The Ransom of Cap-tives. Evolution of a Tradition in Harvard Theological Review, 74, 1981, 365 ss.


Picking up this same idea and elaborating on it using biblical typolo-

gies, Eusebius regularly portrays Constantine as a new Moses who, like

Constantine, had freed his people from servitude to a tyrant:

God then raised him up as leader of the whole nation and he liberated the

Hebrews from bondage to their enemies ( ), while through him he pressed the tyrannical race with the tor-ments of divine pursuit30.

Eusebius thus draws a direct connection between Moses liberation

of Gods people from the tyranny of the Pharaohs and Constantines lib-

eration of that same people for Eusebius understood the Christians to

be the true descendants of the Hebrew nation31 from the tyrants of his

own world. The language of slavery and liberation, language introduced

into the discourse by Constantine himself, is easily adapted by Eusebius

to fit Constantine into a sacred typology of the liberator of Gods people.

Eusebius exploitation of the Moses typology throughout the Vita Con-stantini has long been recognized32. The connection with Constantines rhetorical program of libertas, however, has not.

As if to drive home this point, Eusebius makes the link even more

explicit in a passage from the Vita Constantini where he equates Con-stantines victory over Maxen-tius and Maxentius drowning in the Tiber

with Moses escape from Pharaoh and the drowning of Pharaohs army

in the Red Sea. This he follows with a description of Constantines tri-

umphal entry into Rome at which all the people greeted him, as if freed

from a prison ( ) including men, women, children, and countless numbers of slaves ( )33.

30 EUS., Vit. Const. 1,12,1s; cf. 1,20; 1,38,1-39,1; 2,12,1; Hist. eccl. 9,9,5 ss.31 See A.P. JOHNSON, Ethnicity and Argument in Eusebius Praeparatio Evangelica, Oxford

2006, 94 ss. Cf. LACT., DI 4,10,5 (CSEL, XIX,302): maiores nostri qui erant principes Hebraeo-rum.

32 A. CAMERON-S.G. Hall, Eusebius cit., 192s; cf. 35 ss.; A. CAMERON, Eusebius Vita Con-stantini and the Construction of Constantine in M.J. EDWARDS-S. SWAIN, Portraits. Biographical Representation in the Greek and Latin Literature of the Roman Empire, Oxford 1997, 145 ss.; C. RAPP, Comparison, Paradigm and the Case of Moses in Panegyric and Hagiography in M. WHITBY, ed. The Propaganda of Power. The Role of Panegyric in Late Antiquity, Leiden 1998, 277 ss.

33 EUS., Vit. Const. 1,39,2, which borrows from EUS., Hist. eccl. 9,9,9.

NOEL LENSKI246

In this text and a closely related passage from the Historia Ecclesias-tica Eusebius then follows by recording the text of an inscription, now lost, which adorned a statue of the emperor in Rome holding in its hand

a cross:

By this salutary sign, the true proof of valor, I have liberated your city

(), saved from the tyrants yoke; moreover the Senate and Peo-ple of Rome I liberated () and restored to their ancient splendor and brilliance34.

Given that the sign referenced is the cross, the connection between

Christian religion and political and social libertas could not be more explicit35. By assuming the liberating roles of Christ and Moses and by

freeing his Roman people from slavery, Constantine was fusing the two

cultures Christian religious and Roman political around the mutually

cherished value of libertas.

The Practice of Libertas

When we turn now to the question of whether Constantines politics

of freedom spilled over into his alterations to the civil law of slavery, we must keep in mind that he was a master of intertwining Roman and Chris-

tian threads around a common value like libertas. It must therefore be un-derstood that his adoption and adaptation of existing Roman legal prin-

ciples by no means excludes the possibility that he was self-consciously

threading new, Christian ideas into the traditional web of Roman values.

Eusebius seems to have been aware of this very strain in Constantinian

politics, for when speaking of Constantines attempts to encourage con-

34 EUS., Vit. Const. 1,40,2; cf. Hist. eccl. 9,9,10. Note that in his translation of Eusebius His-toria Ecclesiastica, Rufinus the noun libertas: in hoc singulari signo, quod est verae virtutis insigne, urbem Romam senatumque et populum Romanum iugo tyrannicae dominationis ereptam pristinae libertati nobilitatique restitui. The fact that Rufinus uses the adjective singulari rather than a more direct translation of Eusebius to describe the sign has led to speculation that he may not here be translating but transcribing the actual inscription, which he is very likely

to have seen. This would make his the more accurate version.35 On Christ as liberator see esp. Gal. 4,1-10; 5,1; 5,13.


version by providing for the poor, he asserts that Constantine seemed to

be following the Pauline principle, Whether in pretence or in truth let

Christ be preached (Ph. 1,18)36. Constantine was, in Eusebius eyes, by

no means averse to mixing messages in his efforts to graft Christian prin-

ciples into traditional or pragmatic concerns.

Manumissio in ecclesia

Two laws from 316 and 321 illustrate clearly the link Constantine drew

between the libertas he championed and the Christian church. On June 8, 316 he issued CI. 1,13,1 to Protogenes, probably the homonymous bishop of Serdica37:

iam dudum placuit, ut in ecclesia catholica libertatem domini suis famulis

praestare possint, si sub adspectu plebis adsistentibus christianorum antisti-

tibus id faciant, ut propter facti memoriam vice actorum interponatur qualis-

cumque scriptura, in qua ipsi vice testium signent. unde a vobis quoque ipsis

non immerito dandae et relinquendae sunt libertates, quo quis vestrum pacto

voluerit, dummodo vestrae voluntatis evidens appareat testimonium. D. IV

id. iun. Sabino et Rufino conss.

Iam dudum placuit at the beginning of this law already makes it clear that this was not Constantines first enactment on the matter. Seeing this

and knowing that a second law datable to 321 is extant, O. Seeck had

redated CI. 1,13,1 to 323 when Severus and Rufinus rather than Sabi-nus and Rufinus were consuls38. The solution is ingenious but unneces-

36 Vit. Const. 3,58,4. I owe this reference to John Dillon.37 On Protegenes see F. FABBRINI, La manumissio in ecclesia, Pubblicazioni dellIstituto di

Diritto Romano e dei Diritti dellOriente Mediterraneo, XL, Milano 1965, 69. Fabbrini offers

the most extensive treatment of manumissio in ecclesia available. See also W.W. BUCKLAND, The Roman Law of Slavery, Cambridge 1908 cit., 449 ss.; M. SARGENTI, Il diritto privato cit., 59 ss.; M. KASER, Das Rmische Privatrecht, II, Monaco 1959, 92; H. LANGENFELD, Christianisierungspoli-tik und Sklavengesetzgebung der rmischen Kaiser von Konstantin bis Theodosius II, Antiquitas, XXVI, Bonn 1977, 24 ss.

38 O. SEECK, Regesten der Kaiser und Ppste fr die Jahre 311 bis 476 N.Chr., Stuttgart 1919, 88, cf. 173. Seeck is followed by J. GAUDEMET, La lgislation religieuse cit., 39 ss.; S. CALDERONE, Costantino e il Cattolicesimo, Firenze 1962, 304 n. 3.

NOEL LENSKI248

sary. We know from a passage in Sozomen that Constantine in fact issued

not just the two laws now extant but also a third on this same subject:

because of the exactitude of the laws and against the will of the possessors,

there was considerable difficulty surrounding the acquisition of the first or-

der freedom, that is Roman citizenship. For this reason [Constantine] issued

three laws stating that all who are freed in churches with the witness of the

priest ought to obtain Roman citizenship. This pious invention continues to

be attested up to the present time, for the custom prevails that the laws on this

subject are written at the head of manumission documents39.

Sozomen should surely be trusted here, for he was himself an experi-

enced lawyer40. His statement that the three laws continued to be refer-

enced in documents granting manumissio in ecclesia implies that he, qua advocate, had access to the very laws themselves and direct experience of

their application. If we accept that there were three laws, it is also reason-

able to assume that the earliest, the one alluded to with iam dudum placuit in CI. 1,13,1, must be the missing text and that it must therefore date be-tween 312 and c. 316, i.e. fairly close to Constantines conversion, before

which it seems unthinkable41. This means that at precisely the time when

39 SOZ., Hist. eccl. 1,9,6 s. 40 G. GREATREX, Lawyers and Historians in Late Antiquity in R. MATHISEN, ed., Law and

Society in Late Antiquity, Oxford 2002, 148 ss. 41 Sozomens testimony is also used to shore up the 316 dating of CI. 1,13,1 by F. FABBRINI,

La manumissio in ecclesia cit., 48 ss. and 65 ss.; H. LANGENFELD, Christianisierungspolitik cit. 25 ss.; K. GIRARDET, Vom Sonnen-Tag zum Sonntag. Der dies solis in Gesetzgebung und Politik Konstantins d. Gr. in Zeitschrift fr antikes Christentum, 11, 2007, 292 ss. The dating formula has also been questioned based on the recipient. The Bishop Protogenes addressed in the inscrip-

tion (Ad Protogenem Ep.) has been equated with the well-known bishop of this name from Ser-dica. Because Constantine won control of Serdica from Licinius only after the Battle of Cibalae,

which scholarship had tended to date to October 8, 316 (see H. POHLSANDER, The Date of the Bellum Cibalense: A Re-examination in Ancient World, 26, 1995, 89 ss. with bibliography), yet CI. 1,13,1 was issued according to the preserved formula on June 8, 316, scholars have felt

compelled to alter the dating formula in a variety of ways to erase this apparent contradiction

(see S. CORCORAN, Empire of the Tetrarchs cit., 307 with earlier literature). K. GIRARDET, Vom Sonnen-Tag cit., 293s, however, has shown that more recent scholarship favors a date of 314 for the battle (see J.-P. CALLU, Naissance de la dynastie constantinienne: le tournant de 314-316 in J.-M. CARRI-J.-P. CALLU, edd., Humana Sapit, Mlanges L. Cracco Ruggini, Turnhout 2002, 111 ss. at 114 ss. with earlier bibliography), which would put Constantine in control of Serdica

nearly two years before the constitution was issued. To this it should be added that nothing in


Constantine was proclaiming the message of libertas in the aftermath of the Maxentian conflict, he was opening a new avenue to libertas through the church.

From CI. 1,13,1 it can be surmised that, with Constantines first (non-

extant) law slave-owners had already been granted the right to free their

slaves in churches provided they did so before congregations of the plebs dei and in the presence of bishops who could witness and record the manumission in a written document. The law of 316 confirmed that bish-

ops themselves also enjoyed the right to manumit their own slaves, but in whatever fashion they wished, i.e. without formalities42. The third law,

the second extant, CTh. 4,7,1 (= CI. 1,13,2) dated April 18, 321, was addressed to Constantines favored Christian advisor Ossius Bishop of

Corduba:

qui religiosa mente in ecclesiae gremio servulis suis meritam concesserint lib-

ertatem, eandem eodem iure donasse videantur, quo civitas Romana solemni-

tatibus decursis dari consuevit. Sed hoc dumtaxat his, qui sub aspectu antisti-

tum dederint, placuit relaxari. Clericis autem amplius concedimus, ut, cum

suis famulis tribuunt libertatem, non solum in conspectu ecclesiae ac religiosi

populi plenum fructum libertatis concessisse dicantur, verum etiam cum pos-

tremo iudicio libertates dederint, seu quibuscumque verbis dari praeceperint

ita ut ex die publicatae voluntatis, sine aliquo iuris teste vel interprete, comp-

etat directa libertas. D. XIIII k. mai. Crispo II et Constantino II conss.

With the first half of this law, Constantine confirms that manumis-

sion in ecclesia granted full Roman citizenship. There may have been some confusion as to whether the original law granted full citizenship43,

or perhaps simply a refusal on the part of some officials or grandees to

recognize its full validity44. In its second half the law goes on to confirm

the CI. 1,13,1 mentions Serdica, making it entirely possible that some other bishop of this name

was the addressee. 42 F. FABBRINI, La manumissio in ecclesia cit., 53 refutes earlier arguments that the second

half of CI. 1,13,1 was limited to testamentary manumission.43 Though F. FABBRINI, La manumissio in ecclesia cit., 57 ss. argues rightly that it did.44 This problem is clearly attested in the centuries following by a number of canon laws

(Conc. Arausicanum a. 441, can. 6(7) [CCSL, CXLVIII,79]; Conc. Agathense (a. 506), can. 7; can. 29 [CCSL, CXLVIII,195 s.; 206]; Conc. Aurelianense V (a. 549), can. 7 [CCSL, CXLVIIIA,150

NOEL LENSKI250

the same for clerici and further allows these to manumit in their last testa-ment using whatever verbiage or form they wished such that the slave was

free immediately upon the public expression of the clerics wish without

further recourse to witnesses.

This complex of laws had obvious practical value, for it made the proc-ess of full manumission considerably simpler by eliminating the need to

follow the formal process of manumissio vindicta45. It also rendered the possibility of manumission more available, for without in any way com-

promising the longstanding practice of allowing formal manumissions be-

fore civil magistrates46, Constantine added an entirely new class of officials

ecclesiastics, more specifically priests47 before whom they could oc-

cur. As regarded clerics, the laws streamlined the process still further, for

these were exempted from any formality in the freeing of their own slaves,

whether inter vivos or testamentarily48. Nevertheless, as with much else in Constantines policy, while practical concerns were obvious, they need not be separated from religioun. Constantines grant of authority to bishops to

hear civil suits had also ostensibly been designed for the practical purpose

of streamlining access to justice, yet it would be hard to deny that it too

had serious implications for the church and its role in society49. Constan-

tines brilliance was precisely his ability to intertwine multiple motivations,

multiple messages, and multiple intentions in inextricable ways.

Indeed, practical considerations aside, the religious element in these

laws is abundantly evident. The phrase religiosa mente in CTh. 4,7,1

s.]) and may, at least originally, have been related to the fact that manumissio in ecclesia closely resembles manumissio inter amicos, which granted only Latinity. On this latter point see M. SARGENTI, Il diritto privato cit., 61 ss.; ID., Problemi e prospettive cit., 284 ss.

45 On manumissio vindicta see W.W. BUCKLAND, Roman Law of Slavery, 451 ss.46 In fact, at CI. 7,1,4 (a. 320) Constantine explicitly affirmed the right to manumit before

the consilium principis, consules, praetores, praesides, and magistratus civitatum.47 CI. 1,13,1: adsistentibus christianorum antistibus; CTh. 4,7,1: sub adspectu antistitum. For

antistites as priests rather than bishops see F. FABBRINI, La manumissio in ecclesia cit., 54 n. 17.48 More on this at H. LANGENFELD, Christianisierungspolitik cit., 31 ss.49 See Sirm. 1:

ut miseri homines longis ac paene perpetuis actionum laqueis implicati ab improbis

petitionibus vel a cupiditate praepostera maturo fine discedant.

On audientia episcopalis see M.R. CIMMA, LEpiscopalis audientia nelle costituzioni imperiali da Costantino a Giustiniano, Torino 1989; cf. N. LENSKI, Evidence for the Audientia episcopalis in the New Letters of Augustine in R.W. MATHISEN, ed., Law, Society, and Authority in Late Anti-quity, Oxford 2001, 83 ss.


indicates that Constantine explicitly intended to offer easier access to

formal manumission on the grounds of piety. Sozomen, who as noted

had access to the original laws and thus their explanatory prefaces, also

regarded Constantines laws as motivated by piety50. That the manumis-

sion of slaves was indeed associated with Christian principles has been

demonstrated by J.A. Harrill, who has shown that the early church had a

well established tradition of involving itself in the manumission of slaves

as a conscious tool of mission51. Constantines choice to extend this tra-

dition by endowing Christian ministers with the legal authority to over-

see manumissions was a fundamentally religious maneuver. Furthermore,

his grant of broad freedom to clerics to manumit their own slaves with-

out formality transformed these into special agents of libertas52. Finally the opening of the third law, and particularly the phrasing qui religiosa mente, hints that this procedure was available only to Christians; it is dif-ficult to conceive of how anyone could have taken advantage of this new

avenue to manumission without confessing at least some Christian senti-

ment before the presiding priest. In requiring a religious disposition on

the part of the manumitter, Constantine was thus drawing an even closer

link between libertas and christianitas. Both extant laws indicate that lay congregants had to manumit their

slaves before the assembled Christian congregation (CI. 1,13,1: sub adspec-tu plebis adsistentibus christianorum antistitibus; CTh. 4,7,1: in conspectu ecclesiae ac religiosi populi). This more than anything indicates the connec-tion Constantine wished to draw between manumission and Christianity,

for it essentially incorporated the legal process of manumission into the

liturgical ceremony of the mass. This also will have meant that manumis-siones in ecclesia, when not on feast days, tended to take place on Sundays, which, as K. Girardet has recently shown, Constantine established as the

Empires first ever legally mandated day of rest shortly after his defeat of

Maxentius53. Girardet has also shown that the basis for Constantines es-

tablishment of Sunday as a Sabbath day was rooted in Christian princi-

50 Hist. eccl. 1,9,7: . 51 J.A. HARRILL, The Manumission of Slaves in Early Christianity, Tbingen 1998, esp. 178 ss.52 See esp. H. LANGENFELD, Christianisierungspolitik cit. 31 ss.53 CI. 3,12,2; CTh. 2,8,1; EUS., Vit. Const. 4,17,1; 4,18,1 s.; 4,23,1; cf. Laus Constantini 17,14.

K. GIRARDET, Vom Sonnen-Tag cit., 279 ss. Many thanks to Prof. Girardet for sending me an advance copy of his article.

NOEL LENSKI252

ples. Nevertheless, with CTh. 2,8,1 Constantine permitted two exceptions

to the Sunday ban on business, emancipations and manumissions which

things are most desirable (quae sunt maxime votiva)54. The traditional Ro-man value of libertas was thus explicitly linked with the beneficence of the Christian church. The smoothest way for a slave to gain freedom was

through the ministers of the Christian church, in a Christian church, on the

Christian churchs weekly holy day55. By making the church into a found-

ing hall of freedom, Constantine was demonstrating that libertas was now a value he wished to be associated with the church.

Possessio libertatis

It was shown in the first half of this article that Constantine issued

laws in 314, shortly after wresting the West from Maxentius, and again

in 324, after taking the East from Licinius, that granted broad freedom

to any ingenuus who had been unjustly enslaved by the tyrants without the need for judicial inquiry. This blanket grant of liberty was obviously

not without problems. One obvious issue arose just twelve days after the

314 law over the status of freeborn women enslaved for cohabiting with

male slaves under the terms of the SC Claudianum. Constantine deter-mined that if the woman had been forced to couple with slaves through

violence a disgrace Maxentius was accused of perpetrating she should

remain free, but if by her own consent, she was to remain a slave56. The

law closes with an ex post facto clause: quam legem et de praeterito custo-diri oportet. Given that the SC Claudianum was a longstanding principle of Roman law, this clause would have been unnecessary unless it was de-

signed to rescind claims to freedom by ingenuae who had been enslaved under Maxentius legitimately but then took advantage of Constantines

blanket grant of libertas to escape their condition. Another possible consequence of Constantines excessive eagerness

to grant freedom can be seen in CTh. 4,9,1 of July 15, 319, addressed

54 = CI. 3,12,7 (March 3, 321). 55 That slaves came to be expected to be manumitted on major holy days is clear from GREG.

NYS., In Sanctum Pascha (GNO, IX,250-1).56 CTh. 4,12,1 (April 1, 314). On this law see J. EVANS GRUBBS, Marriage More Shameful cit.,

140 ss.


to the Urban Prefect Bassus57. Here Constantine set out rules exacting

harsh penalties from anyone who fraudulently manumitted slaves that

belonged to another person using an imperial order (iubentibus nobis) or in the emperors presence (in conspectu nostro; cf. fallendo principis conscientiam). It is difficult to judge the precise circumstances that neces-sitated this enactment, but it would not be surprising if they were also related to Constantines broad grant of libertas in the aftermath of his defeat of Maxentius.

At the conclusion of CTh. 4,9,1 Constantine holds that the penal-

ties the law outlined were not to be imposed on those who could refute

attempts to reclaim them into slavery by offering as an objection the

legally prescribed time limit (obiecta legitima praescriptione). What Con-stantine meant by this legitima praescriptio is only made clear in a law of 331, CTh. 4,8,7 addressed to the Praetorian Prefect Iunius Bassus58:

legis promulgatio, quae per sedecim annos bona fide in libertate durantes con-

tra eos, qui inquietant, praescriptione defendit, non opitulatur his, qui ex an-

cillis matribus et ingenuis patribus orti per id tempus in libertatis affectu cum

parentibus perdurarint, quandoquidem, nullo praecedente iusto legitimae

posses-sionis initio, usurpatio libertatis nuda iactetur, cum neque redemptio

ex servitute neque vicarii traditio servuli vel peculii assignatio valeat demon-

strari; qui tituli possint famulatus nexibus liberare eum, qui convenitur, si quo

ex his genere usus in libertate esset per annos sedecim demoratus

The opening words of this second law make it clear that there must

have been a lex, presumably of Constantines, which is no longer extant, that seems to have granted that, if a person could claim based on some

legitimate ground he lists redemption from slavery, consignment of a

substitute slave, or assignment of a peculium to have believed he was free for a period of at least sixteen years, he would be granted his freedom

even if it had originally been illegitimate59. This must be the same law on

57 = CI. 7,10,7 (July 15, 319). On the recipient see A.H.M. JONES, J.R. MARTINDALE and J. MORRIS, The Prosopography of the Later Roman Empire (PLRE), I, Cambridge, 1971, 157, s.v. Septimius Bassus 19.

58 On the recipient see PLRE, I, 154 s. Iunius Bassus 14.59 J. GOTHOFREDUS, Codex Theodosianus cum perpetuis commentariis, I, Leipzig 1736, 407 s.

first suggested that the lex referred to was Constantinian. Cf. W.W. BUCKLAND, The Roman Law

NOEL LENSKI254

which CTh. 4,9,1 based its exceptio, which means that the original miss-ing law must have been issued at some point before July of 319. To be

sure, jurists prior to Constantine had granted that slaves could, without

fraud, mistakenly believe themselves to be legitimately free. They did not,

however, take the further step of conceding legitimacy to this mistake

after the passage of a prescribed time period60.

For the first time Constantine granted slaves the right to assert their

freedom after sixteen years of living unchallenged in their mistaken belief.

He did so by investing libertas with the force of real property. On analogy with longi temporis praescriptio, which granted ownership of provincial land via long term possession, Constantine created the usucapio of free-dom through long-term possessio libertatis61. In other words, Constantine converted libertas into a virtual form of property, ownership over which could be acquired through usus62. To be sure, there is nothing inherently Christian about this, yet Constantines tendency to intermingle Christian

and traditional values around the notion of libertas leaves open at least the possibility that Christianity was one of the things on his mind when

he promulgated this new principle in favor of freedom.

Causae liberales

Libertas had, to be sure, long been staunchly defended by Roman law. The classic Roman penchant toward favor libertatis had traditionally nudged the law toward clearing the path to freedom of as many obstacles

as possible. Constantine upheld and extended this same principle con-

of Slavery cit., 648-9: On the whole it seems likely that liberty could not be acquired by lapse of time in classical law.

60 CI. 7,22,2 (a. 300) applies the same principle, though with a 20 year time limit, but it has

likely been interpolated by the Justinianic compilers, see M. SARGENTI, Il diritto privato cit., 75 ss.; cf. W.W. BUCKLAND, Roman Law of Slavery, 649. CI. 7,39,4,2 (a. 491) sets 40 years as the time period for the prescriptive acquisition of libertas.

61 The term possessio libertatis occurs earlier, but not the notion that it permits the usuca-pion of freedom, cf. D. 3,3,33,1; 15,1,52; 40,5,26; 40,12,10; 40,12,12,3; 40,12,28; 40,12,41. Even

Constantine uses possessio libertatis in this more neutral sense, cf. CI. 7,19,7.62 Compare CI. 7,22,3 (May 29, 314) which confirms that the opposite did not hold, i.e. no

length of time could render a free man held illegitimately in slavery a slave. S. CORCORAN, Empire of the Tetrarchs cit., 280 believes this constitution was issued by Licinius.


siderably with CTh. 4,8,5, issued to the Urban Prefect Maximus on July 20, 32263. In this he once again targeted those who were living in free-

dom but whose freedom was being challenged. Such causae liberales had always involved the defendants need to find an assertor libertatis who could uphold his claim to ingenuitas64. Constantines 322 law facilitated this process in three ways. First, it required that the defendant be shown

around to the local populace (circumlustratis provinciae populis) wearing a written sign explaining his plight; if those who might have served as as-sertores proved reluctant to help, they could be compelled. Previously, no systematic effort to find assertores had been required. Second, Constan-tine attempted to curb the bringing of unfounded causae liberales against free people by equating them with iniuria already a feature of earlier law and setting stiff penalties for plaintiffs who failed to prove their

case: these were required to be fined as many slaves as they had sought in

their suit, a new and quite stiff penalty paid apparently to the fisc65, mean-

ing that the state now claimed a penal stake in an issue that had formerly

been confined to private law66. Third, Constantine built into this law the

notion of possessio libertatis that he had elaborated in the laws seen above in order to better the defendants chances in court. Thus he held that, if

an assertor had not been found before a defendant had lost his case at law and been condemned to serve, but then surfaced subsequently, the

defendants possessio libertatis could be restored for purposes of the suit

63 CTh. 4,8,4 = CI. 7,16,42 (June 12, 322) also deals with causae liberales, and specifically argues against the necessity for a renovatio of a procedure underway if a child was born to the defendant in the midst of the suit. On the recipient see PLRE, I, 590, s.v. Valerius Maximus signo Basilius 48.

64 On causae liberales see W.W. BUCKLAND, Roman Law of Slavery, 652 ss.; M. SARGENTI, Il diritto privato cit., 80 ss.; E. HERRMANN-OTTO, Causae Liberales in Index, 27, 1999, 141 ss.

65 CTh. 4,8,5,1, adversarius pari numero servorum multetur, quot erunt, qui in servitutem petiti sunt. This clause does not make it clear whether the multa was to be paid to the defendant or the state, but Constantines related law, CTh. 4,8,8, discussed below, clarifies the situation

with the phrase ipse vero tot mancipia, quot petebat, fisco cogatur inferre.66 D. 47,10,12; 47,10,26; CI. 7,16,31 indicate that those who brought causae liberales were

liable for iniuria, but only if they could be proven to have known their suit was malicious; cf. D. 40,12,39,1 = PS. 5,1,7, which even calls for exile, but again only if the suit is raised maliciously

(temere) and could be considered calumnia. The plaintiffs heirs were subject to the same penalty unless they dropped the case upon the plaintiffs death. Children born to a mother whose free-

dom was being challenged during the period of the suit could, according to a fragmentary law of

Constantine, enjoy the status ajudicated to the mother, cf. CTh. 4,8,4 (June 12, 322).

NOEL LENSKI256

so that he could defend himself with the benefit of freedom, non infracta, sed dilata libertate:

adsertore invento vires recolligat, et suis renovatis defensionibus resistat in

iudicio, possessoris iure privilegiisque subnixus, quamquam de domo illius

processerit. Neque enim illa possessio est in tempus accepti, sed exspectatio

adsertoris in tempore non reperti.

Here again Constantine was innovating, for it seems that, while pre-

vious law had allowed a renewal of the case after res iudicata, the de-fendant would have to have defended himself from the position of the

slave (ex servitute) and the burden of proof would thus have rested on him67. Constantine restored the enslaved defendant to a state of free-

dom in order to favor his suit.

With this law Constantine thus continued to reify libertas as a quantity capable of possession. Nowhere are his feelings on the question clearer

than in paragraph 5 of CTh. 4,8,5 where he asserts:

libertatem victis hostibus victorum dominatio abstulit; leges vero iniuriosos po-

ena adficiunt et fama spoliant, dictumque iurgio in adversarium inmodestius

iactatum petulantiusque fusum poenam subire cogitur: atque non erit inpunita

labefactatio atque oppugnatio liberatis, quae in conviciis quoque punitur.

This rhetoric stresses the punitive nature of Constantines altera-

tions to the law of causae liberales. By insisting on a proper defense of the aggrieved party and by making the plaintiff liable to the state for

damages, Constantine was supporting the defense of personal libertas with imperial might. These principles are then extended in the trun-

cated text of CTh. 4,8,8 of 332, which orders that third party plaintiffs who introduced another challenge to a defendants libertas in the midst of a proceeding were to be subject to the same penalty for failure as the

original accuser or to condemnation to the mines if they were too poor

to pay in slaves68. Constantine was thus a defender of libertas who was

67 D. 40,12,7,5; cf. W.W. BUCKLAND, Roman Law of Slavery cit., 660; 668 ss.68 W.W. BUCKLAND, Roman Law of Slavery cit., 655, following Gothofredus, Codex Theodo-

sianus cit., I, 408s, understands it to be the adsertor who could be penalized, but this is impos-


ready to punish harshly and with the power of the state anyone who

challenged this fundamental principle and lost.

In much the same vein, Constantine issued CTh. 4,8,6 on February

15, 323, a law that has been greatly misunderstood. The Visigothic in-terpretatio attached to this law in Mommsens edition of the Theodosian Code is in large part to blame. This latter explains the law as a clarifica-tion of the principle that allowed parents to sell their children into a form

of long term servitude, a principle Constantine himself initiated.69 Based

on this, some modern commentators have taken the original law to have

focused on this same principle70. In fact, however, the law was actually

aimed at its exact opposite, at forbidding child sale. It was only six years

after CTh. 4,8,6 was issued that Constantine first altered the longstanding principle forbidding a parent to sell a child, in restricted circumstances,

into servitude71. Knowing this policy, which remained in force when they

added their interpretationes, the Visigothic interpreters recast CTh. 4,8,6 in a distorted light that has influenced subsequent understandings.

From its opening words, CTh. 4,8,672 makes it clear that Constantine was not about to allow parents to sell their children into slavery. Instead

he was once again portraying himself as the champion of libertas and the upholder of traditional legal principles:

libertati a maioribus tantum impensum est, ut patribus, quibus ius vitae in

liberos necisque potestas permissa est, eripere libertatem non liceret. 1. Si

quisquam minor venundatus actum maior administravit, quoniam minoris

emptio scientiam non obligat, eum ad libertatem venientem emptionis ac-

sible in light of the clause, ipse vero tot mancipia, quot petebat, fisco cogatur inferre.69 On the sale of freeborn children see M. Bianchi Fossati Vanzetti, Vendita ed esposizione

degli infanti da Costantino a Giustiniano in SDHI, 49, 1983, 129 ss.; V. Vuoltano, Selling a Free-born Child: Rhetoric and Social Realities in the Late Roman World in Ancient World, 33, 2003, 169 ss.

70 Especially M. HUMBERT, Enfants louer ou vendre: Augustin et lautorit parentale (Ep. 10* et 24*) in Les Lettres de Saint Augustin dcouvertes par Johannes Divjak, Paris 1983, 189 ss. at 195 s.

71 This happened first with the issue of CTh. 5,10,1 and CI. 4,43,2, both dated August 18,

329. Cf. CTh. 5,9,1 (April 17, 351) and VF. 34.72 CI. 7,18,3 and 8,46,10 transmit fragments of the same constitution. See now the transla-

tion and commentary of H. Sllner, Irrtmlich als Sklaven gehaltene freie Menschen und Sklaven in unsicheren Eigentumsverhltnissen Homines liberi et servi alieni bona fide servientes, CRRS, IX, Stuttgart 1999, 125 ss.

NOEL LENSKI258

tusque a maiore admini-strati praescribtio non tenebit: 2. Nec vero ille, qui

apud quempiam pro servo educatus ac maior effectus vendenti veluti dom-

ino adquievit actuque administrato, iam paene extremam relegit libertatem,

(quoniam neque maior effectus originem suam noverat, neque eam, quam

ignoraverat, venditionis patiens deseruisse iudi-candus est) minori similis,

eadem emptionis atque actus administrati praescrip-tione non alligabitur,

sed utrique dabitur adsertio. 3. Paria etiam in libertinis erunt, qui quaestu

quodam in eandem rursus servitutem relabuntur. sed eorum hac ex-ceptione

causa distinguenda est, ut, qui impuberes intra annum quartum decimum

manumissi ac deinceps in servitio retenti ignorata libertate non utantur, maio-

resque venumdati actum gerant, ab assertione non arceantur: cum illi aetati

tri-butae libertatis ignoratio aut oblivio concessa est. qui vero memoria firma

vendi-tioni post factae non nescius innectitur, huius legis beneficio carebit

The generalizing principle stated in the opening words make it clear

both that Constantine had not yet recognized as valid the sale of chil-

dren by their parents and that he placed a premium on the principle of

libertas. The law then promptly becomes more specific. It would seem to have found its origins in a particular incident in which a freeborn child

had been sold (by his parents?) and then came to serve as the business

manager (actor) of his new owner. This quasi-owner (veluti domino) then seems to have sold the actor, who himself conducted the transac-tion (emptio). When the actor learned of his freeborn status and tried to assert it, the (new?) master objected that the slave had consented to his

own sale. Because it was forbidden for a person knowingly to sell himself

into slavery (in order to defraud the buyer) and because the penalty for

violating this law was itself enslavement (or at least refusal to recognize

the self-sellers claim to vindicatio in libertatem)73, the new master could argue that the actor who had helped to sell himself was both aware of (as a business manager) and party to his own emptio. Constantine argues, however, that because the actor only came to know of his free status later, he did not consent to its relegation. He should be treated rather like a mi-

nor (minori similis) whose legal transactions could not be recognized at

73 I. 1,3,4; D. 1,5,5,1; 4,4,9,4; 40,14,2 pr.; CI. 7,18,1. Cf. W.W. BUCKLAND, Roman Law of Slavery cit., 427 ss.


law74. Constantine then goes on to cross-apply the same principle to those

freedmen who had been freed before the age of fourteen (while still im-puberes) but then continued serving as slaves because they had not been conscious of or had forgotten their manumission (libertatis ignoratio aut oblivio). The last sentence quoted reaffirms the principle that those who in full consciousness sell themselves into slavery are not protected by this

enactment. The law continues with a long section not quoted here that

deals with the thorny question of property acquired for the owner by the

liberi homines bona fide servientes75. In sum, then, CTh. 4,8,6 is another relatively minor because relatively specific extension of the principle of

favor libertatis to those rare cases where a person wrongly held in slavery knowingly conducted business for his master up to and including his own

self sale without prejudicing his claim to the freedom. While it would be

difficult to construe it as reflecting any underlying religious principle, it

does fit into the broader trend in Constantines legislation to favor liber-tas in all of its manifestations.

Libertas as Reward

Finally, Constantine not only created new laws and principles to pun-

ish those who challenged freedom unjustly, he also created many laws

that opened avenues to freedom as a reward for obedient or honorable

behavior in slaves. In 317, a law governing the donation of Italic or stipen-

diary land to emancipated minors held that the conveyance of the land

should be made to a slave of the minor who should be kept until the child

reached the age of majority after which Constantine urged that the slave

be freed76. A law of 318 granted full freedom to any slave who reported

counterfeiters to imperial officials and promised the fisc would reimburse

the master whose slave it was77. A law of 326 forbidding abduction mar-

riage granted Junian Latin status to any slave and full citizenship to any

74 Cf. D. 40,12,7,1; 40,13,1,1.75 On this see W.W. BUCKLAND, Roman Law of Slavery, 340 ss.76 CTh. 8,12,2 = CI. 8,53,26. On this and the laws that follow see CARCATERRA, La schiavit

nel secolo IV cit., 155 ss.77 CTh. 9,21,2 = CI. 7,13,2 + 9,24,1.

NOEL LENSKI260

Junian who reported its occurrence78. And a law of 329 granted freedom

to slaves who reported illicit relations between free women and other

slave males79. Constantine was not the first emperor to entice cooperation

or even delation from slaves through promises of freedom. He was, how-

ever, unusual for turning to this tactic as often as he did. Combined with

his much broader rhetorical and legislative program in favor of libertas, these instances should be taken as further indications of a concerted ef-

fort on the part of Constantine to sell himself as a champion of freedom.

Conclusion

Constantine thus developed a sophisticated rhetoric of libertas that he enacted in his politics beginning in 312. This combined social, political,

and religious aspects by pushing for the freeing of those illegitimately

enslaved in the persecutions, the freeing of all Roman citizens from tyr-

anny, and the freedom of Constantines subjects to worship as they de-

sired. His assumption of this complex role as liberator then continued to play itself out in his laws on slavery. With his laws permitting manumissio in ecclesia and on allowing manumissions to occur on Sundays, his laws allowing the acquisition of libertas through prescriptive acquisition, his laws protecting people from enslavement in causae liberales, and even his laws rewarding cooperative slaves with freedom, Constantine applied his

lofty rhetoric of libertas on a very concrete level. The implementation of his politics of libertas in civil law would have affected the everyday lives of people living in or threatened with slavery. By implementing them, he

interwove in very subtle but still traceable ways traditional Roman values

and legal norms with new Christian principles.

78 CTh. 9,24,1,4 = CI. 7,13,3. On this fascinating but gruesome law, see J. EVANS GRUBBS, Abduction Marriage in Antiquity: A Law of Constantine (CTh 9.24.1) and its Social Context in Journal of Roman Studies, 79, 1989, 59 ss.

79 CTh. 9,9,1 = CI. 9,11,1. See also CTh. 2,19,3 = CI. 2,38,27 (July 27, 332) where the in-terpretatio, though not the extant portion of the rescript, confirm that, even when the heirs of an estate have ousted a heres necessarius and taken on the will, they must respect the grant of freedom to the slave.

constantine and slavery. libertas and the fusion of roman and christian values

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