Chapter 6

In this chapter, we seem to be living in a different legal world. There was continuity, certainly, from the classical period of law, but also marked differences from the Principate. The focus in these trials is more political than in Piso’s case, partly because our literary source is contemporary, and indeed involved, with the events described. But we have also formal legislation from the period, and it is noteworthy that both sources often share a hysterical, or rhetorical, tone. This is how Romans of this period perceived treason and magic, and criminal procedure could be bent to conform. First, however, a little background history seems advisable, particularly as the names and relationships of the emperors can be confusing.

The historical background

In the fourth century Christianity became more and more favoured by the emperors, and the number of Christians grew very considerably, particularly in the cities and towns, but paganism was still strong. ‘We should therefore see the fourth century, after the death of Constantine, as a time of ferment and competition between pagans and Christians, when despite imperial support for Christianity, the final outcome was still by no means certain.’1 The conflict over removing or keeping the pagan Altar of Victory in the Senate house is an obvious example.2 Even at the end of the century senior officials were being threatened with heavy fines for practising pagan worship.3 Another factor was that the patronage of the emperors meant that the Church became involved in politics; bishops quarrelled and emperors intervened. Constantine’s search for doctrinal unity among Christians was enthusiastically followed by his sons.4 Imperial officials, on a mission in 346–47 to distribute funds to the Church in Africa, were seen to support the Catholics against the Donatists; violence followed, and the Donatists saw the days of persecution return. This was a legacy that St Augustine, born in 354, had in due time to cope with as bishop of Hippo.

Constantine, who in AD 313 had issued what is known as the edict of Milan, legalizing the practice of Christianity, died in 337. His three sons, Constantine II, Constans and Constantius II, who succeeded him, rapidly fell to fighting; Constantine II soon died while in conflict with Constans. Thereafter Constans, in the West, and Constantius, in the East, ruled jointly from 340 to 350. In 350 Constans was overthrown, a fate which may have been linked with the cost of his wars to hold back the Germanic peoples beyond the Gallic frontier; an army officer called Magnentius declared himself his successor. Constantius was sole Augustus, in West as well as East, from 350 until 361, but he was initially preoccupied with the East, where he was trying to thwart Persian designs on Armenia and Mesopotamia. When that matter was temporarily settled, he took time to summon a church council at Sirmium in 351 – he was inclined to the Arian heresy – before coming to the West to deal with the ‘tyrant’ Magnentius, which he finally did in 353. Constantius seems to have held a purge of the Roman Senate and various senior officials, but from a distance; he did not visit the City until 357. He also called a council at Arles in 355, which brought most of the bishops – but not Liberius of Rome – into line against Athanasius, the frequently deposed bishop of Alexandria.5

Constantius had then to deal with his cousin Gallus, who had been his Caesar (or junior colleague) in the East since 351, but who now came to manifest an independence that could only be viewed as treasonable. Constantius’ new Caesar in the West, sent in 355 to defend the Gallic frontier, was Gallus’ half-brother, Julian; he was successful in crushing the Alamanni. In 357 Constantius paid a visit to Rome. During that visit he removed the Altar of Victory from the Senate house, but otherwise took no steps against official paganism.6 He was called back to the East by further Persian aggression, but Julian refused to send reinforcements from Gaul to Mesopotamia, and was proclaimed Augustus by his soldiers. When Constantius did feel able to leave the eastern frontier to face Julian, he died of a fever en route; Julian was now the sole heir of the house of Constantine, and the last. Two years later, in June 363, he was killed in the Persian wars, while retreating from Ctesiphon. He is principally remembered because, although brought up as a pious Christian, he apostatized, and tried to restore the traditional religion of Rome. Jovian, the next emperor, who made peace with the Persians at the price of surrendering the Roman dependencies east of the Tigris, was a Christian, and declared Christianity the official religion of the Empire. But before he could reach Constantinople to be installed as consul, he died in mysterious circumstances.7

After the very brief reign of Jovian, a new, Pannonian, dynasty appeared (which did, however, have marriage ties to the house of Constantine) when Valentinian I (364–75), an orthodox Nicene Christian, became emperor, together with his brother Valens (364–78), who was Arian. Valentinian ruled in the West, Valens in the East. Valens was killed in the disastrous defeat of the Romans by the Goths at the battle of Adrianople in 378. Valentinian’s son Gratian became joint-emperor with his father as a boy (367–83), but his brother, Valentinian II (375–92), was not raised to imperial rank until the death of his father. Theodosius I (379–95) succeeded Valens in the East; he too granted his sons imperial power, Arcadius in 383 and Honorius in 393 for the West. On his death they ruled jointly until 408 when Arcadius died and was succeeded by his young son, Theodosius II (408–50), the ruler responsible for the Theodosian Code.

Fourth-century issues

The fourth century has been described as an age of contradictions. The tradition of the classical period was strong; in particular the traditional education in Latin rhetoric marked out the upper ranks, even, or especially, in the eastern half of the Empire. The identification with Rome was important. ‘The normal description of the peoples of the Empire as Romani in the later third- and fourth-century writers’8 is in contrast to the barbarians at the gates, or at least the frontiers.

[T]he struggle to save the Empire from the barbarians is set in the first place by every source, however meagre, and must take precedence even over the very real internal discord and oppression, from which the provincials sought relief not in nationalistic risings but in the imperial power itself, so that the crisis strengthened rather than weakened the hold of the Roman name on the Roman world.9

Yet the imperial response to the external threat was accompanied by novelties, such as attempts by emperors to legislate over men’s beliefs and insignificant actions, and to control their subjects’ private lives.10

The image of the law was new. The third-century governors who had executed the Christian martyrs (see chapter 5) were mostly polite, if inexorable. The hectoring tone of imperial legislation in the fourth century seems to have led to a similar tone in the practice of the courts, as we shall see. While proximity to emperors had always had its risks,11 the temper of a despot could now affect men who would normally have thought themselves outside his orbit.12 Yet, in spite of the dangers of the emperors’ attempted policy of despotic micro-management, their absence (remote in their pomp or away at the frontier) from the judicial scene opened the way for judges (normally the provincial governors) and advocates to take advantage of their positions.13 The emperor was guardian of his people, as well as a menace when he acted hastily; many laws were therefore aimed at the repression of abuses by provincial governors, as well as other officials.14 Hence one of the reasons for the importance of senatorial and curial embassies to the emperor was to tell him what was happening on the ground.15 This theme of corrupt officialdom is recurrent in the legislation of the period.

Corruption was evidently becoming endemic, even before the reign of Constantine. The reasons are not entirely clear, but are presumably linked with the instability of imperial rule in the years between Severus Alexander and Diocletian, with the economic problems of this period, and with a loss of moral certainty, of social cohesion.16 Perhaps there was also a change of perspective when those who were powerful within the administration – in contrast to the potentes when on their country estates – were emphatically to be seen as servants of the emperor. To illustrate the point with a few examples:17 in 319 Constantine laid down that the documentation of any case appealed was to be sent on within twenty days, failing which the office staff were liable within the next twenty days for the whole value of the case, which they were assumed to have suppressed; this value was to be assessed by a rationalis (a fiscal official), under threat of capital punishment if he failed to do this honestly.18 An extraordinarily vehement enactment of 325, addressed to all provincials, commanded them to approach the emperor with their complaints if any official had done them wrong.19 A few years later another imperial law was addressed to the provincials:

The rapacious hands of the apparitors [court officials] shall immediately cease; they shall cease, I say, for if after due warning they do not cease, they shall be cut off by the sword. … the ears of the judge shall be open equally to the poorest as well as the rich.20

Constantine almost certainly meant these threats metaphorically, but later they were taken literally – as is shown by the interpretatio (the Visigothic commentary) to the Theodosian Code. Towards the end of the century another enactment addressed to the provincials gave them the right to resist marauding soldiers, ‘For it is better for a man to fight back at the proper time than to be avenged after his death. … Let no man spare a soldier who should be resisted with a weapon as a brigand.’21 A year later judges guilty of peculation were no longer just to be fined, but to be tortured and put to death.22 Senior and junior officials alike were threatened with ever severer penalties. On this last point, some penalties more than trebled within fifty years: in AD 343 a governor failing to accept a properly made appeal was liable to a fine of 10lb of gold and his office staff a fine of 15lb; in 364 the sums were 20lb and 30lb, and in 393, 30lb and 50lb.23

Nobody can think that power, wealth and influence did not carry weight in the period of classical law, but in the fourth century the government explicitly recognized that the rule of law itself could not be taken for granted.24 But the theoretical absolutism of the imperial power was not linked to any practical means of controlling what went on in the provinces. The sons and other relatives of Constantine who ruled for most of the fourth century often appear weak, vacillating, susceptible to flattery, cruel, and also superstitious, at least according to Ammianus Marcellinus who lived under them, and who was himself a believer in portents and predictions.25

There was seemingly a general growth in belief in the supernatural. The boundary between religion and magic was far from clear. Magic could be practised by both pagans and Christians; it was ‘confessionally neutral’.26 It also had close links with science, and philosophy, particularly the Neoplatonism of Plotinus and his followers. Prayers might have the same end as charms and incantations, but the latter can (usually) be distinguished by their attempt not only to manipulate, but also to compel the divinity. Further, the practice of magic was private, in contrast to public worship, and therefore suspect in the eyes of government. It is hard to be sure what difference Christianity made, but I suspect it led its followers to accept the solid reality of unseen powers in a systematic way, unlike the worshippers of Jupiter, or even of Isis and Osiris. The acceptance of Christianity in some sense validated the reality of magic and miracles, and of demons and angels. MacMullen, looking for more objective changes, came to the conclusion that the only real change brought about by Christianity was in the sexual sphere; erotic poetry ceased to be acceptable, and harsh criminal penalties were imposed on any deviant (as contemporaries understood it) sexual behaviour.27 Admiration for celibacy was certainly a novelty; celibacy had no traditional place in either Roman or Jewish culture.28

The sources

Our main source for the trials for treason and magic under Constantius and Valens is a contemporary one. Ammianus Marcellinus was born around 330, in Syria, perhaps in Antioch, of good family, probably more elevated than the curial class. He joined the protectores domestici, officers of the imperial bodyguard, probably by direct commission,29 and was soon attached to the staff of Ursicinus, the eastern magister equitum, who was then under the immediate command of Gallus Caesar; it was in this capacity that Ammianus came to witness the treason trials at Antioch in 354.30 After a period of semi-disgrace in Milan following the fall of Gallus, Ursicinus, still accompanied by Ammianus, went to Gaul to deal with Silvanus, who had succeeded briefly to Magnentius.31 When Julian came to Gaul as Caesar, Ammianus must have met him, and Julian became his hero. Ammianus served in some capacity under Julian in his Persian campaigns; he returned to Antioch after Julian’s defeat and death.

It is likely that Ammianus then remained some time in Antioch, because he seems to have been an eye-witness of the trials of AD 371 held there. He apparently went to live in Rome after the disastrous defeat of Adrianople in 378. Rather oddly for such an admirer of the pagan Julian – but then, Ammianus was foreign and not of senatorial rank – he does not seem to have been a friend of Symmachus, or generally of members of the pagan party in the Senate.32 It was in Rome that he wrote his Res Gestae, dealing in the surviving part (from Book XIV on) with events of which he had frequently been an eye-witness, or about which he was at least able to consult other such witnesses. He declared himself to be a man who aimed to tell the truth,33 but it seems unlikely that he was as impartial in his views of the domineeringly Christian emperors as he alleges; he certainly felt strongly in support of traditional Rome, its values and its gods. He has been described as interested in political and legal, not religious, matters, as a historian writing on cruelty, illegality and corruption, as a Roman describing half-barbarians.34 However, his avoidance, indeed marginalization, of religious issues may well be the caution of an apostate Christian.35 He also, naturally, wrote in the rhetorical style appropriate for his day, and one must make allowances for this.36

The other source for this chapter is the Theodosian Code, a collection of imperial enactments, none dating from before Constantine; it was published in 438. The compilers of the Code were ordered to collect all laws of general application, regardless of whether they were still in force,37 and to arrange them in chronological order under topics, known as ‘titles’. Thus some laws were split up and parts of them are found in several contexts in different titles. The laws in this Code took for granted the juristic background later collected in the Digest, from which we have quoted much in earlier chapters, which is one reason why they are so much more concerned with administrative details and questions of enforcement. The contrast is the sharper because, while the jurists in most cases wrote simply and directly, with few flourishes, these laws were nearly all drafted in a high rhetorical style, to enhance the imperial dignity.38 This can lead to extraordinary statements, at least to our eyes. A statute laid down that a deadly plague was to carry off those who practised necromancy;39 this can only mean that the governor was to punish such persons severely, but the vagueness must have led to serious judicial anxiety as to whether this had been done satisfactorily. All the texts in the Theodosian Code must be described as ‘law’, but they need much more decoding than the Digest texts, and often more than those appearing in Justinian’s Code.40

Constantius and the trials of 359

After the death of Constans in 350, Constantius had had to cope with usurpers, several of them; his fears of treason were not necessarily irrational. The followers of the ‘tyrant’ Magnentius were undoubtedly guilty of treason.41 Furthermore, Magnentius had been a pagan, and one who permitted nocturnal sacrifices.42 Pagan sacrifices and the worship of images were declared capital offences by Constantius shortly before his visit to Rome.43 Even in the pagan Empire, nocturnal sacrifices had been problematic:

Those who celebrate or arrange the celebration of impious or nocturnal sacrifices that are designed to enchant, curse or bind someone, are either crucified or sent to the beasts. Whoever performs a human sacrifice or makes propitiatory sacrifices with his blood, or pollutes a shrine or temple, is to be sent to the beasts or, if of the honestiores, be decapitated. It is agreed that those complicit in magic arts are to be punished with the aggravated death penalty, that is, sent to the beasts or crucified. But magicians (magi) themselves are to be burned alive.44

There could, of course, be proper nocturnal sacrifices (sollemnibus redditis sacrificiis per noctem), such as those necessary when a corpse must be transferred from a permanent burial-site and interred elsewhere because of river floods or other natural threat, but they were rare.45

Constantius was also fearful of magic and divination.

For if anyone consulted a skilled soothsayer about the squeaking of a shrew-mouse, or a meeting with a weasel, or some similar portent, or used some old-wives’ charm to relieve pain, he was indicted, he knew not by whom, dragged into court, and suffered death as the penalty.46

Yet Constantine, Constantius’ father, had laid down that the courts were to take care that guilt was proved.

If any person is about to pronounce sentence, he shall maintain such moderation that he shall not pronounce a capital sentence or a severe sentence against any person until such a person has been convicted of the crime of adultery, homicide or magic, either by his own confession or, at least, by the testimony of all witnesses who have been subjected to torture or to questioning, when such testimony is concordant and in agreement, pointing to the same end of the matter. Thus the accused shall be so revealed as to the crime charged that even he himself can scarcely deny the crime which he committed.47

The witch-hunt conducted in the Orient by one Paul, an official known as the Diabolical, or ‘the chain’, in AD 359 illustrates the new imperial attitudes. Ammianus tells us the story. There was a town in Egypt, called Abydum, where there was a well-known oracle. Some came to consult the god there in person, others sent in written petitions or requests, which were often filed. Some of these documents were, maliciously, sent to the emperor. Constantius was both suspicious and petty (suspicax et minutus) – also cruel and superstitious – and he sent Paul to the East with discretionary powers to investigate and punish; a similar commission was given to Modestus, then comes per Orientem.48 Both noble and obscure persons were under suspicion; some were put in chains, others merely wasted away in prison.49

Ammianus gives an impression of dozens of accused, at least, but we are told only four names. Simplicius, son of a former Praetorian Prefect and consul, was indicted because he was alleged to have asked the oracle about gaining imperial power; a letter from the emperor ordered his torture, but somehow he was merely exiled to a designated place, and with a whole skin.50 Parnasius, ex-prefect of Egypt, was also tried on a capital charge, unspecified, and also sent into exile. Andronicus, a scholar and poet, was acquitted; Demetrius, a philosopher, was released after torture. Ammianus tells us that others died under torture, while others still were condemned and their property confiscated.51 Trivial grounds, he says, sufficed. If anyone wore an amulet against the quartan ague or other malady, or had passed by a grave of an evening, ill-wishers held this as a sign that he was a dealer in poisons, or someone gathering the horrors of the tombs and the empty vanities of the ghosts wandering there, in order to conduct sorcery – as Horace’s witch Canidia snuffled round burial places52 – and he was condemned to death.53 It is hard to judge how serious the affair was, or how remote from due process.

Ammianus admits that the safety of the prince was a reasonable concern, necessary for social stability. It was for this reason, he continues, that the ‘Cornelian laws’, by which he presumably meant the lex Iulia maiestatis, exempted nobody, of whatever status, from examination under torture in questions of treason.54 This was, of course, not an accurate description of either the lex Cornelia or the lex Iulia, but it was valid for the law of his time.55 Torture of free persons had already become common before the end of the third century, as we saw in the previous chapter; in the fourth century it was more and more readily extended to include even the higher ranks. The position of decurions, the ‘gentry’ of the Roman world, provides a measure for the growth of savagery. Decurions, as honestiores, had been an exempt class, except when there were charges of treason or magic. Even when decurions were debtors to the fisc, whether on their own account or as being responsible for the collection of taxes, they could be pursued in nonviolent ways: ‘severity has many means which it may take to enforce the discipline of public office, so that it may abstain from such bloody ones’. But this law went on to state that, while all decurions were exempt from torture with fidiculae (the rack), those who were not of the decemprimi56 could be afflicted by ‘beatings with leaden scourges, which we do not approve when inflicted upon the bodies of freeborn persons [sic]’, but ‘moderation in the use of this punishment shall be exercised by the judge’.57 That Valentinian II, or his officials, could draft a law in such terms is breathtaking.

The prohibitions on magic under Constantine and his sons

Constantine and his sons are remarkable, although not so extraordinary in their time, for their fear of magic and astrology. Constantine had forbidden soothsayers (haruspices) to visit the homes of other men, even old friends, on pain of being burned alive, while the friend was to be exiled with confiscation of property. Accusation of such a crime was not to be counted as delation, by now so much restricted that it was normally itself a crime. Public performance of pagan rites was not, however, penalized, so it was the secrecy, the happenings behind closed doors, with which the emperor was concerned.58 He seems to have recognized the need to keep the peasants reassured:

The science of those men who are equipped with magic arts and who are revealed to have worked against the safety of men, or to have turned virtuous minds to lust, shall be punished and deservedly avenged by the most severe laws. But remedies sought for human bodies shall not be involved in criminal accusation, nor the assistance that is innocently employed in rural districts in order that rains may not be feared for the ripe grape harvests, or that the harvests may not be shattered by the stones of ruinous hail, since by such devices no person’s safety or reputation is injured, but by their action they bring it about that divine gifts and the labours of men are not destroyed.59

Astrologers, however, not only understood the stars but could predict the future from them; when this involved the future of the imperial house, the threat of treason could not be far away.60 Astrologers, soothsayers, sorcerers and magicians had been regularly repressed throughout the Principate;61 in the fourth century they came to be refused the right of appeal, along with murderers and adulterers.62 Comparably, the grounds on which a woman could divorce her husband without penalty – a change from the classical law of free divorce brought about in the Christian Empire – were if he were proven to be a homicide, a sorcerer (medicamentarius) or a destroyer of tombs, just as he could only divorce her without penalty if she were proven an adulteress, a sorceress (medicamentaria) or a procuress.63

Constantius’ language was stronger than his father’s:

Let none consult a soothsayer (haruspex) or astrologer (mathematicus), or diviner (hariolus). Let the wicked doctrines of augurs and seers (augurum et vatum) fall silent. Let not Chaldeans, magicians (magi) and others, whom the mob call malefici because of the depravity of their offences, undertake anything of this sort. Let curiosity for the future be perpetually silenced for all men, for the sword will carry them off otherwise.64

And in the same year – AD 357 – he issued another edict to the people, which has already been mentioned:

Many have dared to disturb the elements with magic arts and have not hesitated to shake the lives of the innocent; they dare to agitate with summoning hands the spirits of the dead so that someone may destroy his enemies through evil arts. May a deadly plague carry off such men.65

The following year the emperor was making it clear that although the bodies of the upper classes were normally exempt from torture, this did not apply to practitioners of magic arts; even those among the imperial retinue would not escape the bloody torments of the torture horse or the iron claws.66 Those condemned for high treason or magic suffered total confiscation of property, leaving nothing even to the close family; this had been lifted for other capital crimes in 356 but was reintroduced in 358.67 (Interestingly, Constantius saw the violation of tombs primarily as a way of dishonestly acquiring building materials, although the practice did both despoil the dead and contaminate the living.68 It was Julian who stressed the sanctity of tombs, and the pollution involved in holding funerals during the daytime.69 Later legislation in this area was primarily directed against those, including the clergy, hunting for or trafficking in relics of the martyrs.70)

Astrology as science

Under Valentinian and Valens paganism was partially tolerated.

What bothered the emperors was the specter of the occult. Indeed, the fear of magic more broadly, and of its near relative astrology, haunted both emperors in the extreme. … It was sorcery and astrology then, the mysterious and private side of ancient religion, that troubled the emperors.71

Thus we find that anyone who was subsequently detected at night performing nefarious prayers, magic doings, or dire sacrifices was to be visited with suitable – and clearly horrible – punishment.72 Then there was a more formal prohibition:

The teaching of astrology shall cease (cesset mathematicorum tractatus). For if any person, either in public or in private, during the day or during the night, should be apprehended while engaged in this forbidden charlatanry, each of the two persons involved shall be stricken with a capital sentence. For the crime of learning forbidden doctrines is not unlike that of teaching them.73

Yet astrology was viewed as a science, an academic discipline, and there were textbooks, and academic debates, so this law could be seen, especially by the pagan party, as anti-intellectual, like – and linked with – the persecution of philosophers.74

Astrologers, or at least the more reputable among them, were often genuine astronomers; it was their ability to calculate the movements of the planets and the constellations that gave them their other title of mathematici – or Chaldaei, since Chaldaea seems to be where astronomy was first practised. Firmicus Maternus (who flourished in the middle third of the fourth century) had started off as a lawyer, but: ‘Those who like myself practise in the courts, particularly for the defence, acquire ill-will from our constantly opposing those who delight in mischief, or who exploit strangers from motives of greed, or who terrorize others with the threat of the law.’75 So he abandoned the law for astrology, which he took very seriously as a profession. He warned the young astrologer never to give responses to anyone asking about the condition of the state or the life of the emperor. It was not right to speak about the condition of the republic, and it was wicked to speak about the destiny of the emperor. Besides, he added carefully, it was pointless, because the emperor was the one man not subject to the stars in their courses, as he was a god. If asked such a question, the astrologer should refuse an answer and warn the questioner to change his mind. But the astrologer should not report such a question to the authorities, because it was not fitting for one who was in some sense a priest to bring about a death.76

Only gold members can continue reading. Log In or Register to continue