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§ 19. Elevation of Woman and the Family.

The benign effect of Christianity on legislation in the Graeco-Roman empire is especially noticeable in the following points:

1. In the treatment of women. From the beginning, Christianity labored, primarily in the silent way of fact, for the elevation of the female sex from the degraded, slavish position, which it occupied in the heathen world;181 and even in this period it produced such illustrious models of female virtue as Nonna, Anthusa, and Monica, who commanded the highest respect of the heathens themselves. The Christian emperors pursued this work, though the Roman legislation stops considerably short of the later Germanic in regard to the rights of woman. Constantine in 321 granted women the same right as men to control their property, except in the sale of their landed estates. At the same time, from regard to their modesty, he prohibited the summoning them in person before the public tribunal. Theodosius I. in 390 was the first to allow the mother a certain right of guardianship, which had formerly been intrusted exclusively to men. Theodosius II. in 439 interdicted, but unfortunately with little success, the scandalous trade of the lenones, who lived by the prostitution of women, and paid a considerable license tax to the state.182  Woman received protection in various ways against the beastly passion of man. The rape of consecrated virgins and widows was punishable, from the time of Constantine, with death.183

2. In the marriage laws, Constantine gave marriage its due freedom by abolishing the old Roman penalties against celibacy and childlessness.184  On the other hand, marriage now came to be restricted under heavy penalties by the introduction of the Old Testament prohibitions of marriage within certain degrees of consanguinity, which subsequently were arbitrarily extended even to the relation of cousin down to the third remove.185  Justinian forbade also marriage between godparent and godchild, on the ground of spiritual kinship. But better than all, the dignity and sanctity of marriage were now protected by restrictions upon the boundless liberty of divorce which had obtained from the time of Augustus, and had vastly hastened the decay of public morals. Still, the strict view of the fathers, who, following the word of Christ, recognized adultery alone as a sufficient ground of divorce, could not be carried out in the state.186  The legislation of the emperors in this matter wavered between the licentiousness of Rome and the doctrine of the church. So late as the fifth century we hear a Christian author complain that men exchange wives as they would garments, and that the bridal chamber is exposed to sale like a shoe on the market! Justinian attempted to bring the public laws up to the wish of the church, but found himself compelled to relax them; and his successor allowed divorce even on the ground of mutual consent.187

Concubinage was forbidden from the time of Constantine, and adultery punished as one of the grossest crimes.188  Yet here also pagan habit ever and anon reacted in practice, and even the law seems to have long tolerated the wild marriage which rested only on mutual agreement, and was entered into without convenant, dowry, or ecclesiastical sanction.189  Solemnization by the church was not required by the state as the condition of a legitimate marriage till the eighth century. Second marriage, also, and mixed marriages with heretics and heathens, continued to be allowed, notwithstanding the disapproval of the stricter church teachers; only marriage with Jews was prohibited, on account of their fanatical hatred of the Christians.190

3. The power of fathers over their children, which according to the old Roman law extended even to their freedom and life, had been restricted by Alexander Severus under the influence of the monarchical spirit, which is unfavorable to private jurisdiction, and was still further limited under Constantine. This emperor declared the killing of a child by its father, which the Pompeian law left unpunished, to be one of the greatest crimes.191  But the cruel and unnatural practice of exposing children and selling them into slavery continued for a long time, especially among the laboring and agricultural classes. Even the indirect measures of Valentinian and Theodosius I. could not eradicate the evil. Theodosius in 391 commanded that children which had been sold as slaves by their father from poverty, should be free, and that without indemnity to the purchasers; and Justinian in 529 gave all exposed children without exception their freedom.192

§ 20. Social Reforms. The Institution of Slavery.

4. The institution of slavery193 remained throughout the empire, and is recognized in the laws of Justinian as altogether legitimate.194  The Justinian code rests on the broad distinction of the human race into freemen and slaves. It declares, indeed, the natural equality of men, and so far rises above the theory of Aristotle, who regards certain races and classes of men as irrevocably doomed, by their physical and intellectual inferiority, to perpetual servitude; but it destroys the practical value of this concession by insisting as sternly as ever on the inferior legal and social condition of the slave, by degrading his marriage to the disgrace of concubinage, by refusing him all legal remedy in case of adultery, by depriving him of all power over his children, by making him an article of merchandise like irrational beasts of burden, whose transfer from vender to buyer was a legal transaction as valid and frequent as the sale of any other property. The purchase and sale of slaves for from ten to seventy pieces of gold, according to their age, strength, and training, was a daily occurrence.195  The number was not limited; many a master owning even two or three thousand slaves.

The barbarian codes do not essentially differ in this respect from the Roman. They, too, recognize slavery as an ordinary condition of mankind and the slave as a marketable commodity. All captives in war became slaves, and thousands of human lives were thus saved from indiscriminate massacre and extermination. The victory of Stilicho over Rhadagaisus threw 200,000 Goths and other Germans into the market, and lowered the price of a slave from twenty-five pieces of gold to one. The capture and sale of men was part of the piratical system along all the shores of Europe. Anglo-Saxons were freely sold in Rome at the time of Gregory the Great. The barbarian codes prohibited as severely as the Justinian code the debasing alliance of the freeman with the slave, but they seem to excel the latter in acknowledging the legality and religious sanctity of marriages between slaves; that of the Lombards on the authority of the Scripture sentence: "Whom God has joined together, let no man put asunder."

The legal wall of partition, which separated the slaves from free citizens and excluded them from the universal rights of man, was indeed undermined, but by no means broken down, by the ancient church, who taught only the moral and religious equality of men. We find slaveholders even among the bishops and the higher clergy of the empire. Slaves belonged to the papal household at Rome, as we learn incidentally from the acts of a Roman synod held in 501 in consequence of the disputed election of Symmachus, where his opponents insisted upon his slaves being called in as witnesses, while his adherents protested against this extraordinary request, since the civil law excluded the slaves from the right of giving testimony before a court of justice.196  Among the barbarians, likewise, we read of slaveholding churches, and of special provisions to protect their slaves.197  Constantine issued rigid laws against intermarriage with slaves, all the offspring of which must be slaves; and against fugitive slaves (A.D. 319 and 326), who at that time in great multitudes plundered deserted provinces or joined with hostile barbarians against the empire. But on the other hand he facilitated manumission, permitted it even on Sunday, and gave the clergy the right to emancipate their slaves simply by their own word, without the witnesses and ceremonies required in other cases.198  By Theodosius and Justinian the liberation of slaves was still further encouraged. The latter emperor abolished the penalty of condemnation to servitude, and by giving to freed persons the rank and rights of citizens, he removed the stain which had formerly attached to that class.199  The spirit of his laws favored the gradual abolition of domestic slavery. In the Byzantine empire in general the differences of rank in society were more equalized, though not so much on Christian principle as in the interest of despotic monarchy. Despotism and extreme democracy meet in predilection for universal equality and uniformity. Neither can suffer any overshadowing greatness, save the majesty of the prince or the will of the people. The one system knows none but slaves; the other, none but masters.

Nor was an entire abolition of slavery at that time at all demanded or desired even by the church. As in the previous period, she still thought it sufficient to insist on the kind Christian treatment of slaves, enjoining upon them obedience for the sake of the Lord, comforting them in their low condition with the thought of their higher moral freedom and equality, and by the religious education of the slaves making an inward preparation for the abolition of the institution. All hasty and violent measures met with decided disapproval. The council of Gangra threatens with the ban every one, who under pretext of religion seduces slaves into contempt of their masters; and the council of Chalcedon, in its fourth canon, on pain of excommunication forbids monasteries to harbor slaves without permission of the masters, lest Christianity be guilty of encouraging insubordination. The church fathers, so far as they enter this subject at all, seem to look upon slavery as at once a necessary evil and a divine instrument of discipline; tracing it to the curse on Ham and Canaan.200  It is true, they favor emancipation in individual cases, as an act of Christian love on the part of the master, but not as a right on the part of the slave; and the well-known passage: "If then mayest be made free, use it rather," they understand not as a challenge to slaves to take the first opportunity to gain their freedom, but, on the contrary, as a challenge to remain in their servitude, since they are at all events inwardly free in Christ, and their outward condition is of no account.201

Even St. Chrysostom, though of all the church fathers the nearest to the emancipation theory and the most attentive to the question of slavery in general, does not rise materially above this view.202  According to him mankind were originally created perfectly free and equal, without the addition of a slave. But by the fall man lost the power of self-government, and fell into a threefold bondage: the bondage of woman under man, of slave under master, of subject under ruler. These three relations he considers divine punishments and divine means of discipline. Thus slavery, as a divine arrangement occasioned by the fall, is at once relatively justified and in principle condemned. Now since Christ has delivered us from evil and its consequences, slavery, according to Chrysostom, is in principle abolished in the church, yet only in the sense in which sin and death are abolished. Regenerate Christians are not slaves, but perfectly free men in Christ and brethren among themselves. The exclusive authority of the one and subjection of the other give place to mutual service in love. Consistently carried out, this view leads of course to emancipation. Chrysostom, it is true, does not carry it to that point, but he decidedly condemns all luxurious slaveholding, and thinks one or two servants enough for necessary help, while many patricians had hundreds and thousands. He advises the liberation of superfluous slaves, and the education of all, that in case they should be liberated, they may know how to take care of themselves. He is of opinion that the first Christian community at Jerusalem, in connection with community of goods, emancipated all their slaves;203 and thus he gives his hearers a hint to follow that example. But of an appeal to slaves to break their bonds, this father shows of course no trace; he rather, after apostolic precedent, exhorts them to conscientious and cheerful obedience for Christ’s sake, as earnestly as he inculcates upon masters humanity and love. The same is true of Ambrose, Augustine, and Peter Chrysologus of Ravenna († 458).

St. Augustine, the noblest representative of the Latin church, in his profound work on the "City of God," excludes slavery from the original idea of man and the final condition of society, and views it as an evil consequent upon sin, yet under divine direction and control. For God, he says, created man reasonable and lord only over the unreasonable, not over man. The burden of servitude was justly laid upon the sinner. Therefore the term servant is not found in the Scriptures till Noah used it as a curse upon his offending son. Thus it was guilt and not nature that deserved that name. The Latin word servus is supposed to be derived from servare [servire rather], or the preservation of the prisoners of war from death, which itself implies the desert of sin. For even in a just war there is sin on one side, and every victory humbles the conquered by divine judgment, either reforming their sins or punishing them. Daniel saw in the sins of the people the real cause of their captivity. Sin, therefore, is the mother of servitude and first cause of man’s subjection to man; yet this does not come to pass except by the judgment of God, with whom there is no injustice, and who knows how to adjust the various punishments to the merits of the offenders .... The apostle exhorts the servants to obey their masters and to serve them ex animo, with good will; to the end that, if they cannot be made free from their masters, they may make their servitude a freedom to themselves by serving them not in deceitful fear, but in faithful love, until iniquity be overpassed, and all man’s principality and power be annulled, and God be all in all.204

As might be expected, after the conversion of the emperors, and of rich and noble families, who owned most slaves, cases of emancipation became more frequent.205  The biographer of St. Samson Xenodochos, a contemporary of Justinian, says of him: "His troop of slaves he would not keep, still less exercise over his fellow servants a lordly authority; he preferred magnanimously to let them go free, and gave them enough for the necessaries of life."206  Salvianus, a Gallic presbyter of the fifth century, says that slaves were emancipated daily.207  On the other hand, very much was done in the church to prevent the increase of slavery; especially in the way of redeeming prisoners, to which sometimes the gold and silver vessels of churches were applied. But we have no reliable statistics for comparing even approximately the proportion of the slaves to the free population at the close of the sixth century with the proportion in the former period.

We infer then, that the Christianity of the Nicene and post-Nicene age, though naturally conservative and decidedly opposed to social revolution and violent measures of reform, yet in its inmost instincts and ultimate tendencies favored the universal freedom of man, and, by elevating the slave to spiritual equality with the master, and uniformly treating him as capable of the same virtues, blessings, and rewards, has placed the hateful institution of human bondage in the way of gradual amelioration and final extinction. This result, however, was not reached in Europe till many centuries after our period, nor by the influence of the church alone, but with the help of various economical and political causes, the unprofitableness of slavery, especially in more northern latitudes, the new relations introduced by the barbarian conquests, the habits of the Teutonic tribes settled within the Roman empire, the attachment of the rural slave to the soil, and the change of the slave into the serf, who was as immovable as the soil, and thus, in some degree independent on the caprice and despotism of his master.

5. The poor and unfortunate in general, above all the widows and orphans, prisoners and sick, who were so terribly neglected in heathen times, now drew the attention of the imperial legislators. Constantine in 315 prohibited the branding of criminals on the forehead, "that the human countenance," as he said, "formed after the image of heavenly beauty, should not be defaced."208  He provided against the inhuman maltreatment of prisoners before their trial.209  To deprive poor parents of all pretext for selling or exposing their children, he had them furnished with food and clothing, partly at his own expense and partly at that of the state.210  He likewise endeavored, particularly by a law of the year 331, to protect the poor against the venality and extortion of judges, advocates, and tax collectors, who drained the people by their exactions.211  In the year 334 he ordered that widows, orphans, the sick, and the poor should not be compelled to appear be. fore a tribunal outside their own province. Valentinian, in 365, exempted widows and orphans from the ignoble poll tax.212  In 364 he intrusted the bishops with the supervision of the poor. Honorius did the same in 409. Justinian, in 529, as we have before remarked, gave the bishops the oversight of the state prisons, which they were to visit on Wednesdays and Fridays, to bring home to the unfortunates the earnestness and comfort of religion. The same emperor issued laws against usury and inhuman severity in creditors, and secured benevolent and religious foundations by strict laws against alienation of their revenues from the original design of the founders. Several emperors and empresses took the church institutions for the poor and sick, for strangers, widows, and orphans, under their special patronage, exempted them from the usual taxes, and enriched or enlarged them from their private funds.213  Yet in those days, as still in ours, the private beneficence of Christian love took the lead, and the state followed at a distance, rather with ratification and patronage than with independent and original activity.214