In 454 AD, a praetorian prefect requested clarification from Emperor Marcian on a law by Constantine regarding marriage restrictions for 'low and degraded' women, specifically if 'the poor' were included.
The core issue was defining and classifying 'the poor' within Roman society.
Marcian's Novel 4 addressed the first problem but not the deeper issue of defining 'the poor'.
Historians face difficulties formulating a precise taxonomy of the Roman poor or poverty itself.
Late Roman legislators also struggled with classifying and categorizing the poor.
Classical Roman lawyers were generally uninterested in defining 'the poor' juridically or economically.
Classical jurisprudence discussed the poor incidentally, focusing on the relatively poor, especially formerly affluent citizens who had become poorer.
Imperial legislation from the 4th to 6th centuries frequently mentions poverty and 'the poor'.
The question arises whether this indicates a new awareness of 'the poor' as a separate economic or juridical class in late Roman law.
A New Category of 'The Poor' in Late Roman Law?
Marcian’s Novel 4 suggests a shift in juridical attitudes toward poverty in the late empire, catalyzed by Constantine.
Mid-5th century litigants debated interpretations of a Constantinian constitution from 336 AD.
Theodosian Code (4.6.3) included this constitution under ‘Natural Children and their Mothers,’ prohibiting legal unions between high-status men and low-status women.
Senators and high-ranking magistrates risked losing Roman citizenship protections if they transferred property to children from unions not befitting their rank.
Maintaining the integrity and status of top-ranking social groups was a primary concern in Roman civil law, influencing regulations on property, marriage, and inheritance.
Constantine’s constitution listed socially stigmatized women (slaves, freedwomen, actresses, trades-women, daughters of pimps/gladiators) whom high-status men risked marrying.
The text also included an ambiguous category of “low and degraded” (humilis vel abiecta) persons, causing interpretative confusion.
Marcian’s Novel 4 aimed to clarify this category: Could ‘low and degraded persons’ be synonymous with ‘the poor’?
Some 5th-century litigants believed so, arguing that poor freeborn women should be excluded from marriage with senators.
Marcian sought the original intention behind Constantine’s law, deciding it could not have intended such unfairness.
Marcian evoked the early 4th century as a time when poverty was not seen as a disgrace, and wealth was understood as fleeting.
Marcian defined humilis abjectaque persona to exclude poor freeborn women, allowing senators to marry them without social distinction.
The phrase ‘humble and abject persons’ was to be interpreted as a generic category for ‘infamous’ women in Constantine’s law.
Marcian believed this was Constantine’s original intent, excusing his predecessor's ambiguity.
The phrase could have been intended to cover ‘the poor,’ but its elasticity allowed legal advisors to argue for including poor free persons.
Legislative attempts to control marriages and inheritance of high-ranking Romans were not unique to the late empire.
Legal experts before Constantine argued against unions between individuals with vastly different economic resources.
Roman civil law prohibited significant wealth transfers between spouses of unequal wealth.
Emperor Caracalla believed marital feelings should be based on love, not financial considerations, and marriage agreements should not appear mercenary (D. 24.1.3.pr.).
Jurist Paul stated the prohibition on gifts was due to fear of financial ruin (D. 24.1.28.2).
Ulpian advised women to seek the return of their dowry if their husband's resources dwindled (D. 24.3.24.pr.).
Justinian upheld a woman’s duty to leave an insolvent husband in 528 AD (CJ 5.12.29. pr.).
Bankruptcy and its stigma posed a constant threat to elite marriages.
Marcian’s insistence on natural virtues existing alongside poverty was a radical social statement.
The idea of ‘blame-free’ poverty contrasts with Ulpian’s view that ‘Poverty is no excuse for a woman leading a shameful life’ (D. 23.2.43.5).
Marcian’s 454 law might suggest Christian influence on Roman law, urging a levelling of moral distinctions based on wealth.
However, Marcian identified ‘the poor’ (pauper) as relatively poor, with some wealth, not the destitute.
Moderate resources were seen as offering avenues for social advancement.
In his Novel 1, Marcian reiterated that provincial governors should value integrity over riches and not look down on those with less fortune.
Litigants in the late Roman legal system were expected to have some economic resources.
Classifying someone as ‘rich’ or ‘poor’ depended on the specific case.
Gaius defined ‘rich’ as being sufficiently well-off relative to the restitution sought (D. 50.16.234.1).
The intended meaning of ‘pauper’ in Roman legal sources was context-specific.
Marcian’s pauper worthy of marrying a senator was likely a woman of middling means or a high-ranking woman who had lost her patrimony.
She was not a destitute vagrant, beggar, or daughter of a subsistence farmer.
Marcian did not suggest that all poverty is innocent or that all poor women were worthy of elite marriages.
The social standing of slaves, freedwomen, or ‘infamous’ females was not redeemed by poverty.
Marcian’s 454 ruling, like most Roman private law, disregarded the truly destitute.
The Digest contains only two explicit discussions of a ‘destitute man’ in Roman private law, both involving men with some resources (D. 49.17.19.2, D. 6.1.38).
Jurists’ opinions and Marcian’s 454 law targeted the high-ranking elite.
Marcian’s refusal to equate the poor with ‘low and degraded persons’ meant that high-ranking men should not treat poverty as a moral stain on honorable free-born women with some wealth.
Free-born status trumped poverty as a socio-legal indicator of status.
A daughter of fabulously wealthy freed parents could not qualify for elite marriage.
Marcian valued free birth over riches, believing it to be a permanent juridical status.
He was interested in upholding the ideological value of free-born status and Roman citizenship, not simply wealth gradations.
Poverty, Slavery, and Roman Legal Practice
Marcian’s emphasis on free-born status aligns with the Roman civil law of persons, which survived Caracalla’s grant of universal citizenship in 212 AD.
Jurist Paul stated that ‘Liberty is a thing beyond price’ (D. 50.17.106).
Even the most destitute free-born individual had immeasurable riches.
An early 4th-century epitome of Paul stated that selling children due to dire necessity did not prejudice their free status (Paul, Sent. 5.1.1).
A child born ‘free’ to a poor family could be factually sold, but this did not change their civil status.
The civil law provided a remedy for ‘shameless acts’ engendered by destitution.
Emperor Caracalla castigated a mother for selling her free-born children and instructed her to seek legal recourse (CJ 7.16.1).
Establishing slave status could be complicated, and economic indicators were supposed to be irrelevant (D. 18.1.5).
Classical Roman law had exact procedural regulations for freedom cases (causa liberalis) (D. 40.12, CJ 7.16, CTh 4.8).
A Roman citizen had to assert free status on behalf of a ‘free’ person in such a case and bear litigation costs.
Constantine specified that a poverty-stricken sponsor unable to pay should be sent to the mines (CTh 4.8.8).
Even the poorest citizens were theoretically entitled to their day in court when their civil status was challenged.
The ‘poor man’s courts’ (episcopalis audientia and tribunals of defensores civitates) lacked jurisdiction over freedom cases.
Higher courts did not necessarily resound with pleas from poor persons of indeterminate legal status.
Constantine's laws in 319 and 322 directly addressed the relationship between poverty and bureaucratic intervention, ordering public relief for the desperate poor (CTh 11.27.1 and 11.27.2).
These laws are cited as evidence of Christian ideals influencing Roman legislation.
However, Severan-age evidence suggests these constitutions were responses to age-old Roman legislative concerns.
CTh 11.27.1, addressed to Ablabius, enacted alimentary relief for poverty-stricken parents to prevent parricide.
Constantine ordered it to be written on bronze/wax/linen and posted in every Italian city.
The imperial fisc and private estates were commanded to provide food and clothing without delay.
A previous constitution (CTh 9.15.1, 318) defined parricide and ordered punishment by poena cullei (being sewn into a sack with a serpent and drowned).
This referenced the late Republican lex pompeia de parricidio (55 or 52 BC). Defining parricide, but reached further back into the archaic Roman law.
Constantine's 319 measure was part of a Roman legislative concern with public order and the family unit.
It was a preventative measure against an anti-Roman public crime, rather than a welfare state precursor.
CTh 11.27.2 ordered imperial officials in Africa to provide clothing and food to the destitute, preventing them from selling/pledging their children.
This echoed Caracalla's rescript against selling free-born offspring.
Constantine's 322 ‘poor relief’ legislation was within a legal tradition stretching back to the early empire.
Cities traditionally had responsibilities for their urban poor, and masters for their slaves.
Freedmen were supposed to support impoverished patrons. Not all freedmen undertook this obligation with good grace.
Modestinus cites an imperial constitution which laid down that a freedman who abandoned or violently assaulted a patron, whilst the said patron was suffering from the effects of illness or poverty, should be forcibly enslaved again (D. 25.3.6.1: Modestinus, Manumissions).
Digest Book 34.1 discusses voluntary and legally obligated welfare arrangements, including private alimentary legacies.
Slaves, patrons and some of the urban poor thus already had a limited number of basic ‘welfare’ schemes to fall back on.
Constantine’s laws (CTh 11.27.1–2) were ‘innovative’ in that the imperial fisc assumed responsibility for poor citizens at risk of committing illegal acts.
Constantine did not set up a specific institutional structure like Trajan’s alimentary scheme.
It was a traditional imperial concern for moral health, not Christian morality, behind Constantine’s poor relief.
Theodosius I and Valentinian II made similar provisions for parents selling free-born children due to poverty.
They envisaged scenarios for buying back free-born children (CTh 3.3.1, Nov. Val. 33).
The value of free-born status motivated the emperors, with Valentinian III’s Novel 33 explaining the need to protect freedom.
Poverty and the Christian Church: Views from the Legislators’ Desks
Emperors allowed the Christian church to handle regular welfare provision for the poor.
They recognized that ecclesiastical efforts to alleviate the sufferings of the chronically poor were beneficial for the empire.
A new awareness of ‘the poor’ entered late Roman legislation through measures facilitating the church’s poor relief.
This was more significant than Constantine's invitations for the poor to seek help from imperial fiscal representatives.
Emperors balanced enabling Christian charity with maintaining the civic fabric.
In 326, Constantine limited the number of people added to the clergy, favoring those without municipal obligations or wealth (CTh 16.2.6).
Wealthy individuals were to assume secular obligations, while the poor were to be supported by church wealth.
Later emperors limited the number and type of individuals employed by the church for charitable purposes. CTh 16.2.42 limits the number of ‘attendants to the sick’ to 500 in the city of Alexandria and orders that ‘the wealthy and those who would purchase this office shall not be appointed, but rather the poor from the guilds, in proportion to the population of Alexandria’.
The church was to support the poor, at least partly, by employing them.
Valentinian I ruled that clerics frustrating court business should be fined, with the money aiding the poor (CJ 1.4.2).
Judges could divert money from fines to public buildings and entertainment (CJ 1.54.5).
In 428, Theodosius II instructed magistrates to collect fines from heretical clerics from their common body or offertories (CTh 16.5.65), paying these to the imperial treasury.
In 321, Constantine confirmed the validity of private gifts to the Catholic church (CTh 16.2.4).
This law does not mark out the poor as recipients, but the practice of leaving testamentary bequests to any given church or cleric for the specific benefit of ‘the poor’ was quickly established.
This did not mark out the poor as the recipients, but the practice was quickly established.
Charitable bequests to 'the poor' posed classificatory challenges, as such gifts were made to uncertain persons, potentially invalidating them.
In 455 AD, Marcian ruled that bequests to the poor should be considered valid (CJ 1.3.24), but this raised the issue of who should receive it.
In 531, Justinian addressed this issue, stating that if a testator appointed 'the poor' as heirs, the church-run asylum/hospital closest to the testator should receive the inheritance (CJ. 1.3.48).
If there were multiple hospitals, the local bishop would decide which was most needy. If there were no hospitals, the metropolitan bishop would receive the inheritance.
Justinian attempted to deal with the issue of who should receive these inheritances.
Justinian’s insistence on the validity of such bequests suggests they were often treated as invalid.
Churches used legal experts (defensores ecclesiae) to dictate wills, reducing challenges but also opening the way for fraud.
Emperor Justin legislated against this 'shameful' practice (CJ 1.3.40, 524).
Leaving bequests to churches posed challenges for ecclesiastical administrators.
Canon 24 of the Synod of Antioch (341) addressed the difficulty of separating church/poor property from clerics' private property.
In 419, bishops at Carthage decided that clerics entering orders as poor men had to place subsequent property under church control.
Provisions were made for clerics to take personal inheritances (Canones in Causa Apiani 32).
Attention was also paid to who left bequests, with gifts from heretics being rejected.
The Fourth Council of Carthage ruled that bishops had to reject gifts from those who had oppressed the poor (Canon 94).
The Council of Chalcedon (451) addressed suspicions towards the poor, stating that traveling poor should be sent with letters pacifical, not commendatory (Canon 11).
The category of ‘the poor’ needed elucidation in both canon and Roman law.
The Visibility of 'The Poor' in Classical and Post-Classical Roman Civil Law
Lawyers did not provide precise definitions of poverty or 'the poor'.
Poverty came to the notice of classical jurists qua jurists when a particular individual's (or group’s) lack of financial means had some concrete legal effect or implication.
Poverty was visible to them on a day to day basis, and this did not require much definition or conceptual theory.
Gaius stated that legal action against a financially incapable adversary was useless (D. 4.3.6).
Those lacking capacity to pursue suits were of little interest to jurists.
Late third-century jurist Hermogenianus suggested a general economic criterion, excluding those with less than 50 aurei from lodging criminal accusations (D. 48.2.10).
Patlagean read this as a 'postclassical definition of poverty'.
However, three Digest texts specify that 50 aurei was the amount forfeited for failing to prosecute a case (D. 2.4.12, D. 2.4.24, D. 2.4.25).
Hermogenianus was simply stating that those who could not afford this penalty could not initiate a public criminal suit, not providing a general benchmark.
Neither classical nor post-classical texts define poverty per se; rather, legal experts focused on case-specific instances affecting juridical contexts and obligations.
This casuistic approach lead to nuanced discussions of poverty's social implications.
Modestinus stated that poverty was a legal ground for dissolving partnerships (D. 17.2.4.1).
Ulpian advised that partnerships between rich and poor were valid and profitable (D. 17.2.5.1), with the poorer man providing services to compensate for lack of wealth.
Business contracts between rich and poor were valid if they reached a mutually beneficial agreement.
A similar approach occurred in legal guardianship.
Poverty 'unequal to the task' was usually accepted as an excuse for not assuming this obligation (D. 27.1.40.1).
A poor man who chose to be a guardian should not be considered automatically 'untrustworthy' (D. 26.10.8).
A man’s moral character might withstand the challenges of poverty.
Under the early empire, poverty could excuse one from patrimonial obligations and guardianship, a principle established by Marcus and Verus (D. 27.1.7).
It could also be an exemption from having to act as a guardian.
Ulpian noted that financial circumstances could change and the excusatio of poverty was to be granted non perpetua sed temporalis. Those who were poverty-stricken and remained so, however, could nonetheless serve the public good through physical labor (D. 50.4.4.1–2).
Individuals improving their financial situation would lose this excuse.
Poverty-stricken individuals could serve the public good through physical labor.
Pleading lack of finance as a legal excuse continued into the late empire. Seeking exemption from specific burdens on the grounds of poverty.
Late Roman legislators expected their audience to recognize a poor person when they saw one.
A constitution from 394 prohibited the public placing of any pictures representing a pantomime actor dressed in the costume of a poor lowborn person (humilis) next to an imperial image (CTh 15.7.12).
Appearances could be deceptive, and 4th/5th-century laws testify to fraudulent schemes to manipulate the poverty exemption.
Some were convicted of fraudulently pleading exceptions from munera on the basis of poverty, having previously transferred all of their property to a third party who was in on the racket (CTh 13.6.1, 326).
A constitution of 381 testified to a taxation dodge involving poverty.
CTh 13.11.1 = CJ 11.58.2.pr. The punishment for defrauding the tax man was apparently a Roman, as much as a mod- ern, pastime Judges could also be bribed to grant exemptions from public munera
Defrauding the taxman and bribing judges were common.
Judges could make mistakes in assessing ‘poor’ status (CJ 10.35.2).
Wealthy individuals might lurk behind the garb of the every poor person; the genuinely poverty-stricken individual would have lacked both the monetary resources and the necessary patronage to work the legal system to their advantage.
Poverty and Punishment Under the Empire
Late Roman criminal law meted out differential punishments for rich and ‘poor’, an evolution of the early imperial distinction between humiliores and honestiores.
Fines and property confiscation did not punish the destitute, so they were liable to torture and corporal punishment (D. 2.1.7.3).
Prefects and governors could physically punish individuals who would otherwise escape monetary penalties due to poverty (D. 48.19.1.3).
A constitution of 392 demonstrated this principle. CTh 16.5.21 (a chief tenant on an estate knowingly harbored Christian heretics, and if he ‘should despise the penalty of monetary loss because of his poverty and low degree, he should be beaten with clubs and condemned to deportation’
Constantine specified that pauperes who could not pay up must be thrust into the mines (CTh 1.5.3 and 4.8.8).
Emperor Julian stated that rich men concealing property of proscribed persons would have their own property proscribed, while poor offenders would face corporal punishment (CTh 9.42.5).
The connection between low status, poverty, and corporal punishment continued into the Justinianic period.
By contrast, a late 4th-century innovation was the explicit reference to poverty as a punishment for particular crimes (CTh. 9.42.8.3).
CTh 9.14.3.1 detailed how the punishment of perpetual poverty must be meted out to the children of individuals convicted of conspiring against the lives of men of illustrious rank.
The conspirators’ sons cannot inherit from either agnatic or cognatic kin, nor can they receive anything from the wills of extraneous persons (non-relatives), thus ‘they shall be needy and poor perpetually’ and ‘death will be a solace to them and life a punishment’.
The conspirators’ daughters, on the other hand, are permitted to eke out a subsistence survival by accepting the Falcidian portion owed to them from their mother: ‘For the sentence ought to be lighter in the case of those persons who we trust will be less daring because of the frailty of their sex’ (CTh 9.14.3.2).
In 405 , the ‘penalty of poverty’ was also established for particular groups of Christian heretics. CTh 16.6.4.pr. details that Donatists and Montanists who practiced rebaptism were to be brought before the provin- cial governor so that ‘the offenders shall be punished by the confiscation of all their property, and they shall suffer the penalty of poverty, with which they shall be afflicted forever’.
In 405, the penalty of poverty was established for Christian heretics (CTh 16.6.4.pr.).
Judges and legal assessors determined judicial sentences fitting the crime and criminal.
There was no general definition of poverty, but a recognition that the poor lacked all property.
Conclusion
Marcian’s Novel 4 shows a mid-5th-century dispute on whether ‘the poor’ belonged to a class of ‘low and degraded persons’ forbidden marriage with high-status men.
Marcian legislated against this interpretation, but commentators assume his religious intentions.
Circumspection is also appropriate in approaching Marcian: he evidently held that poverty was no disgrace, but ‘the poor’ whom he had in mind were not the truly destitute, but the relatively poor, those of modest resources.
Marcian was as interested in upholding free-born status as poverty.
Constantine’s laws against selling children into slavery demonstrate his valuation of free-born status.
Christian emperors innovated by encouraging church charitable efforts, so long as they did not detract from the res publica welfare.
Late Roman legislators, like classical jurists, were uninterested in conceptualizing poverty per se.
Iavolenus said that all definitions in law are dangerous. Iavolenus cautioned saying that ‘all definitions in civil law are dangerous, as rare indeed is the definition which cannot be overthrown’ (D. 50.17.202: Iavolenus, Letters Book 11).
When tackling the topic of ‘the poor’ in late Roman law, we would do well to remember this jurisprudential maxim; the pauper is only visible case-by-case, in classical and post-classical Roman law alike.
References to ‘poverty’ and ‘the poor’ must be read in their case-specific context, with the pauper visible only on a case-by-case basis in both classical and post-classical Roman law.