Constantine's Law

Constantine made a law, in which he comprehended, in the prohibition of the Papian law, not only the senators, but even such as had a considerable rank in the state, without mentioning persons in an inferior station. This constituted the law of those times.

These marriages were therefore no longer forbidden, but to the free-born comprehended in the law of Constantine. Justinian however abrogated the law of Constantine, and permitted all sorts of persons to contract these marriages= and thus we have acquired so fatal a liberty.

The penalties inflicted on such as married contrary to the prohibition of the law, were the same as those inflicted on persons who did not marry. These marriages did not give them any civil advantage for the dowry was confiscated§ after the death of the wife.

Augustus having adjudged the succession and legacies of those, whom these laws had declared incapable, to the public treasury, they had the appearance rather of fiscal, than of political and civil laws. The disgust they had already conceived at a burden which appeared too heavy, was increased by their seeing themselves a continual prey to the avidity of the treasury.

On this account, it became necessary, under Tiberius, that these laws should be softened, that Nero should lessen the rewards given out of the treasury to the informers, that Trajan should put a stop to their plundering, that Severus should also moderate these laws, and that the civilians should consider them as odious, and in all their decisions deviate from the literal rigour.

Besides, the emperors enervated§ these laws, by the privileges they granted, of the rights of husbands, of children, and of three children. More than this, they gave†† particular persons a dispensation from the penalties of these laws. But the regulations established for the public utility seemed incapable of admitting an alleviation.

It was highly reasonable, that they should grant the rights of children to the vestals‡‡, whom religion retained in a necessary virginity= they gave, in the same manner, the privilege of∥∥ married men to soldiers, because they could not marry. It was customary to exempt the emperors from the constraint of certain civil laws. Thus Augustus was freed from the constraint of the law, which limited the power of§§ enfranchising, and of that which set bounds to [147] the right of* bequeathing by testament. These were only particular cases= but, at last, dispensations were given without discretion, and the rule itself became no more than an exception.

The sects of philosophers had already introduced in the empire a disposition that estranged them from business; a disposition which could not gain ground in the time of the† republic, when every body was employed in the arts of war and peace. From hence arose an idea of perfection, as connected with a life of speculation; from hence an estrangement from the cares and embarrassments of a family. The Christian religion coming after this philosophy, fixed, if I may make use of the expression, the ideas which that had only prepared.

Christianity stamped its character on jurisprudence; for empire has ever a connexion with the priesthood. This is visible from the Theodosian code, which is only a collection of the decrees of the Christian emperors.

A panegyrist‡ of Constantine says to that Emperor, “Your laws were made only to correct vice, and to regulate manners= you have stripped the ancient laws of that artifice, which seemed to have no other aim than to lay snares for simplicity.”

Constantine’s changes were caused by the sentiments=

• from the establishment of Christianity, or
• from ideas of its perfection.

The establishment of Christianity gave so much authority to bishops which created the foundation of the ecclesiastical jurisdiction. These weakened [148] paternal authority by depriving the father of his property in the possessions of his children.

To extend a new religion, they were obliged to take away the dependance of children, who are always leaft attached to what is already established.

The laws made with a view to Christian perfection were more particularly those by which the† penalties of the Papian laws were abolished; the unmarried were equally exempted from them, with those who being married had no children.

A church historian says:

“These laws were established as if the multiplication of the human species was an effect of our care; instead of being sensible that the number is increased or diminished, according to the order of providence.”

Principles of religion have had an extraordinary influence on the propagation of the human species. Sometimes they have promoted it, as amongst the Jews, the Mahometans, the Gaurs, and the Chinese; at others, they have put a damp to it, as was the case of the Romans upon their conversion to Christianity.

They every where incessantly preached up continency; a virtue the more perfect, because in its own nature it can be practised but by very few.

Constantine had not taken away the decimal laws, which granted a greater extent to the donations between man and wife, in proportion to the number of their children= Theodosius the younger abrogated even these laws.

Justinian declared all those marriages valid, which had been prohibited by the Papian laws. These laws require people to marry again= Justinian granted †privileges to those who did not marry again.

By the ancient institutions, the natural right which every one had to marry, and beget children, could not be taken away. Thus when they received a ‡legacy, on condition of not marrying, or when a patron made his freed-man swear, that he would neither marry nor beget children, the Papian law annulled both the§ condition and the oath. The clauses on continuing in widowhood, established amongst us, contradict the ancient law, and descend from the constitutions of the emperors, founded on ideas of perfection.

There is no law that contains an express abrogation of the privileges and honours, which the Romans had granted to marriages, and to a number of children. But where celibacy had the pre-eminence, marriage could not be held in honour; and since they could oblige the officers of the public revenue to renounce so many advantages by the abolition of the penalties, it is easy to perceive, that with yet greater ease they might put a stop to the rewards.

The same spiritual reason which had permitted celibacy, soon imposed it even as necessary. God forbid that I should here speak against celibacy, as adopted by religion= but who can be silent when it is built on libertinism; when the two sexes corrupting each other, even by the natural sensations themselves, fly from a union which ought to make them better, to live in that which always renders them worse?

It is a rule drawn from nature, that the more the number of marriages is diminished, the more corrupt are those who have entered into that state= the fewer married men, the less fidelity is there in marriage; as when there are more thieves, more thefts are committed.