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[ Petrus Patricius in Excerpt. Legat. p. 27. If it should be thought that signifies more properly a son-in-law, we might conjecture that Constantine, assuming the name as well as the duties of a father, had adopted his younger brothers and sisters, the children of Theodora. But in the best authors sometimes signifies a husband, sometimes a father-in-law, and sometimes a kinsman in general. See Spanheim, Observat. ad Julian. Orat. i. p. 72.]
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[ Zosimus, l. ii. p. 93. Anonym. Valesian. p. 713. Eutropius, x. v. Aurelius Victor, Euseb. in Chron. Sozomen, l. i. c. 2. Four of these writers affirm that the promotion of the Cæsars was an article of the treaty. It is, however, certain, that the younger Constantine and Licinius were not yet born; and it is highly probable that the promotion was made the 1st of March, A. D. 317. The treaty had probably stipulated that the two Cæsars might be created by the western, and one only by the eastern emperor; but each of them reserved to himself the choice of the persons.]
The reconciliation of Constantine and Licinius, though it was imbittered by resentment and jealousy, by the remembrance of recent injuries, and by the apprehension of future dangers, maintained, however, above eight years, the tranquility of the Roman world. As a very regular series of the Imperial laws commences about this period, it would not be difficult to transcribe the civil regulations which employed the leisure of Constantine. But the most important of his institutions are intimately connected with the new system of policy and religion, which was not perfectly established till the last and peaceful years of his reign. There are many of his laws, which, as far as they concern the rights and property of individuals, and the practice of the bar, are more properly referred to the private than to the public jurisprudence of the empire; and he published many edicts of so local and temporary a nature, that they would ill deserve the notice of a general history. Two laws, however, may be selected from the crowd; the one for its importance, the other for its singularity; the former for its remarkable benevolence, the latter for its excessive severity. 1. The horrid practice, so familiar to the ancients, of exposing or murdering their new-born infants, was become every day more frequent in the provinces, and especially in Italy. It was the effect of distress; and the distress was principally occasioned by the intolerant burden of taxes, and by the vexatious as well as cruel prosecutions of the officers of the revenue against their insolvent debtors. The less opulent or less industrious part of mankind, instead of rejoicing in an increase of family, deemed it an act of paternal tenderness to release their children from the impending miseries of a life which they themselves were unable to support. The humanity of Constantine, moved, perhaps, by some recent and extraordinary instances of despair, engaged him to address an edict to all the cities of Italy, and afterwards of Africa, directing immediate and sufficient relief to be given to those parents who should produce before the magistrates the children whom their own poverty would not allow them to educate. But the promise was too liberal, and the provision too vague, to effect any general or permanent benefit. [93] The law, though it may merit some praise, served rather to display than to alleviate the public distress. It still remains an authentic monument to contradict and confound those venal orators, who were too well satisfied with their own situation to discover either vice or misery under the government of a generous sovereign. [94] 2. The laws of Constantine against rapes were dictated with very little indulgence for the most amiable weaknesses of human nature; since the description of that crime was applied not only to the brutal violence which compelled, but even to the gentle seduction which might persuade, an unmarried woman, under the age of twenty-five, to leave the house of her parents. “The successful ravisher was punished with death;” and as if simple death was inadequate to the enormity of his guilt, he was either burnt alive, or torn in pieces by wild beasts in the amphitheatre. The virgin’s declaration, that she had been carried away with her own consent, instead of saving her lover, exposed her to share his fate. The duty of a public prosecution was intrusted to the parents of the guilty or unfortunate maid; and if the sentiments of nature prevailed on them to dissemble the injury, and to repair by a subsequent marriage the honor of their family, they were themselves punished by exile and confiscation. The slaves, whether male or female, who were convicted of having been accessory to rape or seduction, were burnt alive, or put to death by the ingenious torture of pouring down their throats a quantity of melted lead. As the crime was of a public kind, the accusation was permitted even to strangers.[9401]
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[ This explanation appears to me little probable. Godefroy has made a much more happy conjecture, supported by all the historical circumstances which relate to this edict. It was published the 12th of May, A. D. 315. at Naissus in Pannonia, the birthplace of Constantine. The 8th of October, in that year, Constantine gained the victory of Cibalis over Licinius. He was yet uncertain as to the fate of the war: the Christians, no doubt, whom he favored, had prophesied his victory. Lactantius, then preceptor of Crispus, had just written his work upon Christianity, (his Divine Institutes;) he had dedicated it to Constantine. In this book he had inveighed with great force against infanticide, and the exposure of infants, (l. vi. c. 20.) Is it not probable that Constantine had read this work, that he had conversed on the subject with Lactantius, that he was moved, among other things, by the passage to which I have referred, and in the first transport of his enthusiasm, he published the edict in question? The whole of the edict bears the character of precipitation, of excitement, (entrainement,) rather than of deliberate reflection—the extent of the promises, the indefiniteness of the means, of the conditions, and of the time during which the parents might have a right to the succor of the state. Is there not reason to believe that the humanity of Constantine was excited by the influence of Lactantius, by that of the principles of Christianity, and of the Christians themselves, already in high esteem with the emperor, rather than by some “extraordinary instances of despair”? * * * See Hegewisch, Essai Hist. sur les Finances Romaines. The edict for Africa was not published till 322: of that we may say in truth that its origin was in the misery of the times. Africa had suffered much from the cruelty of Maxentius. Constantine says expressly, that he had learned that parents, under the pressure of distress, were there selling their children. This decree is more distinct, more maturely deliberated than the former; the succor which was to be given to the parents, and the source from which it was to be derived, are determined. (Code Theod. l. xi. tit. 27, c 2.) If the direct utility of these laws may not have been very extensive, they had at least the great and happy effect of establishing a decisive opposition between the principles of the government and those which, at this time, had prevailed among the subjects of the empire.—G.]
The commencement of the action was not limited to any term of years, and the consequences of the sentence were extended to the innocent offspring of such an irregular union. [95] But whenever the offence inspires less horror than the punishment, the rigor of penal law is obliged to give way to the common feelings of mankind. The most odious parts of this edict were softened or repealed in the subsequent reigns; [96] and even Constantine himself very frequently alleviated, by partial acts of mercy, the stern temper of his general institutions. Such, indeed, was the singular humor of that emperor, who showed himself as indulgent, and even remiss, in the execution of his laws, as he was severe, and even cruel, in the enacting of them. It is scarcely possible to observe a more decisive symptom of weakness, either in the character of the prince, or in the constitution of the government. [97]
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[ Codex Theodosian. l. xi. tit. 27, tom. iv. p. 188, with Godefroy’s observations. See likewise l. v. tit. 7, 8.]