235

NOEL LENSKI
University of Colorado at Boulder
CONSTANTINE AND SLAVERY: LIBERTAS AND THE FUSION
OF ROMAN AND CHRISTIAN VALUES
1
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 move
2
. Today, by contrast, few
would deny that Constantine himself, at least, believed he was a true
Christian
3
. 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
1880
2
, 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
storiograa 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 XVIII
ISBN 9788854830226
DOI 10.4399/97888548302268
pp. 58 (giugno 2011)
NOEL LENSKI 236
extant legislative enactments as motivated less by Christian belief than
by traditional or even contemporary Roman legal concerns
4
. 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 inuence 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 linuence 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 IV
e
sicle in Trans-
formations et conits 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 inuence to much of Constantines legislation.
See for example C. DUPONT, Les Constitutions de Constantin et le droit priv au dbut du
IV
e
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 rst 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 rst de-
cree stated, among other things, that ofcials 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-mills
6
. Conrming this,
other Christian sources, and particularly Eusebius Martyrs of Palestine
offers numerous more specic instances of Christians who were reduced
to servitus poenae in the imperial mines, quarries, and cloth factories
7
.
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 rst 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
slaves
8
. With regard to Maxentius our sources are less specic, 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 LENSKI 238
noblewomen into sexual servitude and he also employs the vocabulary
of enslavement to describe Maxentius treatment of Rome and its citi-
zens
9
. Moreover, the Liber ponticalis reports that Maxentius condemned
Marcellus, bishop of Rome, to slavery in the catabulum, i.e. the imperial
animal stables
10
.
The enslavement of freeborn citizens at least those of the lower
classes was of course a traditional Roman punishment
11
. Its use against
otherwise innocent Christians and particularly those of high status was,
however, easily exploited by Constantine in order to fan the ames 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 power
12
. 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 justica-
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 ponticalis, 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.
LIBERTAS AND THE FUSION OF ROMAN AND CHRISTIAN VALUES 239
issued to the Urban Prefect of Rome Volusianus
13
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 proting 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 scales (
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 LENSKI 240
), their former gentle birth notwithstanding, these are to rejoice in the
honors they previously enjoyed and in the benets 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 decree
14
.
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
inluminavit
15
.
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 modications; 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.
LIBERTAS AND THE FUSION OF ROMAN AND CHRISTIAN VALUES 241
propitious victory. Similar rhetoric recurs in several other inscriptions
from North Africa
16
. It also appears in the oration delivered by the Ro-
man senator Nazarius on the occasion of the quinquennalia of Constan-
tines sons in 321
17
. 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 honor
18
. And in documents
preserved in Eusebius, Constantine proudly advertised his championing
of freedom, taken in its broadest political sense
19
.
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 SVAE
20
. 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 lion
21
. 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 3
me
rduction pondrale du follis
in Bulletin du cercle dtudes nu-mismatiques, 27, 1990, 1 ss.
NOEL LENSKI 242
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 tyrant
22
.
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 himself
23
. Yet the Augustan use of the word differed signicantly 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-
ed in our surviving copies issued by Licinius
24
:
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 identication 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.
LIBERTAS AND THE FUSION OF ROMAN AND CHRISTIAN VALUES 243
ut daremus et Christianis et omnibus liberam potestatem sequendi religionem
quam quisque voluisset, quod quicquid <est> 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 signicanda 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 <esse> concessam, ut in colendo
quod quisque delegerit, habeat liberam facultatem.
The adjective liber occurs no less than ve 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 edict
25
. 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 agant
26
.
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 LENSKI 244
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 conspicuous
27
, rejoicing (as I believe) in the tting 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 humankind
28
?
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 slavery
29
. 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 signicance.
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 gura 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.
LIBERTAS AND THE FUSION OF ROMAN AND CHRISTIAN VALUES 245
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 pursuit
30
.
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 nation
31
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 t 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 recognized
32
. 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 LENSKI 246
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 brilliance
34
.
Given that the sign referenced is the cross, the connection between
Christian religion and political and social libertas could not be more
explicit
35
. 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, Runus 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 Runus 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.
LIBERTAS AND THE FUSION OF ROMAN AND CHRISTIAN VALUES 247
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 Serdica
37
:
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 Runo conss.
Iam dudum placuit at the beginning of this law already makes it clear
that this was not Constantines rst 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 Runus rather than Sabi-
nus and Runus were consuls
38
. 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 LENSKI 248
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 difculty surrounding the acquisition of the rst 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 documents
39
.
Sozomen should surely be trusted here, for he was himself an experi-
enced lawyer
40
. 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 unthinkable
41
. 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
LIBERTAS AND THE FUSION OF ROMAN AND CHRISTIAN VALUES 249
Constantine was proclaiming the message of libertas in the aftermath of
the Maxentian conict, he was opening a new avenue to libertas through
the church.
From CI. 1,13,1 it can be surmised that, with Constantines rst (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 conrmed that bish-
ops themselves also enjoyed the right to manumit their own slaves, but
in whatever fashion they wished, i.e. without formalities
42
. 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 rst half of this law, Constantine conrms that manumis-
sion in ecclesia granted full Roman citizenship. There may have been
some confusion as to whether the original law granted full citizenship
43
,
or perhaps simply a refusal on the part of some ofcials or grandees to
recognize its full validity
44
. In its second half the law goes on to conrm
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 LENSKI 250
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 vindicta
45
. 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 magistrates
46
, Constantine added an entirely new class of ofcials
ecclesiastics, more specically priests
47
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 testamentarily
48
. 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 society
49
. 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 afrmed 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 ne 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.
LIBERTAS AND THE FUSION OF ROMAN AND CHRISTIAN VALUES 251
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 piety
50
. 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 mission
51
. 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 libertas
52
. 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-
cult 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 rst ever legally mandated day of rest shortly after his defeat of
Maxentius
53
. 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 LENSKI 252
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 benecence 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 day
55
. 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 rst 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 slave
56
. 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.
LIBERTAS AND THE FUSION OF ROMAN AND CHRISTIAN VALUES 253
to the Urban Prefect Bassus
57
. 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 difcult 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 Bassus
58
:
legis promulgatio, quae per sedecim annos bona de 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 illegitimate
59
. 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.
rst suggested that the lex referred to was Constantinian. Cf. W.W. BUCKLAND, The Roman Law
NOEL LENSKI 254
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 period
60
.
For the rst 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 libertatis
61
. In other words, Constantine
converted libertas into a virtual form of property, ownership over which
could be acquired through usus
62
. 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 conrms 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.
LIBERTAS AND THE FUSION OF ROMAN AND CHRISTIAN VALUES 255
siderably with CTh. 4,8,5, issued to the Urban Prefect Maximus on July
20, 322
63
. 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 nd an assertor libertatis who
could uphold his claim to ingenuitas
64
. 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 nd 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 ned as many slaves as they had sought in
their suit, a new and quite stiff penalty paid apparently to the sc
65
, mean-
ing that the state now claimed a penal stake in an issue that had formerly
been conned to private law
66
. 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 specically
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, claries the situation
with the phrase ipse vero tot mancipia, quot petebat, sco 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 LENSKI 256
so that he could defend himself with the benet 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
him
67
. 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 adciunt 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 slaves
68
. 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-
LIBERTAS AND THE FUSION OF ROMAN AND CHRISTIAN VALUES 257
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 clarica-
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 principle
70
. 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 rst altered the longstanding
principle forbidding a parent to sell a child, in restricted circumstances,
into servitude
71
. 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 inuenced subsequent understandings.
From its opening words, CTh. 4,8,6
72
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, sco 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 rst 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 de servientes, CRRS,
IX, Stuttgart 1999, 125 ss.
NOEL LENSKI 258
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 rma
vendi-tioni post factae non nescius innectitur, huius legis benecio 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 specic. 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.
LIBERTAS AND THE FUSION OF ROMAN AND CHRISTIAN VALUES 259
law
74
. 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 reafrms 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 de servientes
75
. In sum, then, CTh. 4,8,6 is another
relatively minor because relatively specic 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
difcult to construe it as reecting any underlying religious principle, it
does t 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 freed
76
. A law of 318 granted full freedom to any slave who reported
counterfeiters to imperial ofcials and promised the sc would reimburse
the master whose slave it was
77
. 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 LENSKI 260
Junian who reported its occurrence
78
. And a law of 329 granted freedom
to slaves who reported illicit relations between free women and other
slave males
79
. Constantine was not the rst 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, conrm 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.