Constantine banned crucifixion – sources

Yesterday someone told me that crucifixion was banned by Constantine.  I wondered how we knew this.

The actual edict has not survived, and is not included in our collections of Roman law.  Our source is only Sozomen, Ecclesiastical History I, 8:13, it seems.^[1]  First Sozomen:

He regarded the cross with peculiar reverence, on account both of the power which it conveyed to him in the battles against his enemies, and also of the divine manner in which the symbol had appeared to him. He took away by law the crucifixion customary among the Romans from the usage of the courts. He commanded that this divine symbol should always be inscribed and stamped whenever coins and images should be struck, and his images, which exist in this very form, still testify to this order.

There is no indication of the date on which this was enacted, however.

Aurelius Victor, De Caesaribus, 41:4 is also referenced in this context:

Denique Constantinus cunctos hostes honore ac fortunis manentibus texit recepitque, eo pius, ut etiam vetus teterrimumque supplicium patibulorum et cruribus suffringendis primus removerit.

Finally, Constantine received all his enemies with honour and protected them by allowing them to retain their properties, and was so conscious of his obligations that he was also the first to abolish the long-established and utterly frightful punishment of the forked gibbet and the breaking of legs.^[2]

Whether this passage refers to crucifixion depends on the meaning of the word patibulum, which can mean a number of things.  I find online everywhere the statement that the “patibulum” is the term for the cross-piece of a cross, as “stipes” for the upright; but without any adequate references.

The translation of patibulum given above – “forked gibbet” – is the standard meaning, and it may be found in Lewis and Short.  In Du Cange we find that the term was used for the cross itself in the medieval period.   But dictionaries are not reliable on technical terms.  Thus in the fragments of Plautus (Carbonaria, fr. 2) we find a usage of patibulum in connection with crucifixion, perhaps as the cross-piece:

…patibulum ferat per urbem, deinde offigitur cruci. ^[3]

…he carries the patibulum through the city, then he is fastened to the cross.

Fortunately Gunnar Samuelson has written a magnificent volume on the terminology.^[4]  Unfortunately he does not discuss the use of the word in Aurelius Victor.  Nor does Hengel in his older study of the subject.^[5]  Samuelson gives various instances of varied usages, but concludes (p.286, with references):

2.4.6. patibulum

patibulum is a pole or a beam in a broad sense. When used in connection with punishments of humans it is also a pole or a beam in a wide sense. It could be used as a punishment or torture tool used in connection with crux and perhaps also as an equivalent to crux. A condemned person could be forced to walk attached to a patibulum, but it is not sure in what way or in what sense he or she walked. It may be only a variant of walking sub furca. The etymology could be interpreted as support for the notion that a spreading of arms was connected with the noun. In the studied texts patibulum is used in the following sense:

patibulum – “a beam or pole in a wide sense; a beam, a yoke or perhaps a standing pole to which victims were attached (by their limbs); a beam or a yoke which a condemned person carried with outspread arms.”

The statement of Aurelius Victor, considering that it refers to “breaking the legs”, is indeed probably a reference to crucifixion; but perhaps we should be just a little careful here, and mark it as merely a possible.

1. ^[1]H/T Sarah Bond, via Dorothy King’s blog, here, for some references.↩
2. ^[2]H.W. Bird (tr.), Aurelius Victor: De Caesaribus, Liverpool (1994), p.49.↩
3. ^[3]M. Hengel, Crucifixion, 1977, p.62.↩
4. ^[4]Gunnar Samuelson, Crucifixion in Antiquity, Mohr-Siebeck, 2013. Preview of p.191 here.↩
5. ^[5]M. Hengel, Crucifixion, 1977.↩