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§ 18. Influence of Christianity on Civil Legislation. The Justinian Code.

Comp. on this subject particularly the works cited at § 13, sub ii, by Rhoer, Meysenburg, and Troplong; also Gibbon, chap. xliv (an admirable summary of the Roman law), Milman: Lat. Christianity, vol. I. B. iii. chap. 5, and in part the works of Schmidt and Chastel on the influence of Christianity upon society in the Roman empire, quoted in vol. i. § 86.

While in this way the state secured to the church the well-deserved rights of a legal corporation, the church exerted in turn a most beneficent influence on the state, liberating it by degrees from the power of heathen laws and customs, from the spirit of egotism, revenge, and retaliation, and extending its care beyond mere material prosperity to the higher moral interests of society. In the previous period we observed the contrast between Christian morality and heathen corruption in the Roman empire.172172   Vol. i §§ 86-93. We are now to see how the principles of Christian morality gained public recognition, and began at least in some degree to rule the civil and political life.

As early as the second century, under the better heathen emperors, and evidently under the indirect, struggling, yet irresistible influence of the Christian spirit, legislation took a reformatory, humane turn, which was carried by the Christian emperors as far as it could be carried on the basis of the ancient Graeco-Roman civilization. Now, above all, the principle of justice and equity, humanity and love, began to assert itself in the state. For Christianity, with its doctrines of man’s likeness to God, of the infinite value of personality, of the original unity of the human race, and of the common redemption through Christ, first brought the universal rights of man to bear in opposition to the exclusive national spirit, the heartless selfishness, and the political absolutism of the old world, which harshly separated nations and classes, and respected man only as a citizen, while at the same time it denied the right of citizenship to the great mass of slaves, foreigners, and barbarians.173173   Comp. Lactantius: Inst. divin. l. v. c. 15.

Christ himself began his reformation with the lowest orders of the people, with fishermen and taxgatherers, with the poor, the lame, the blind, with demoniacs and sufferers of every kind, and raised them first to the sense of their dignity and their high destiny. So now the church wrought in the state and through the state for the elevation of the oppressed and the needy, and of those classes which under the reign of heathenism were not reckoned at all in the body politic, but were heartlessly trodden under foot. The reformatory motion was thwarted, it is true, to a considerable extent, by popular custom, which is stronger than law, and by the structure of society in the Roman empire, which was still essentially heathen and doomed to dissolution. But reform was at last set in motion, and could not be turned back even by the overthrow of the empire; it propagated itself among the German tribes. And although even in Christian states the old social maladies are ever breaking forth from corrupt human nature, sometimes with the violence of revolution, Christianity is ever coming in to restrain, to purify, to heal, and to console, curbing the wild passions of tyrants and of populace, vindicating the persecuted, mitigating the horrors of war, and repressing incalculable vice in public and in private life among Christian people. The most cursory comparison of Christendom with the most civilized heathen and Mohammedan countries affords ample testimony of this.

Here again the reign of Constantine is a turning point. Though an oriental despot, and but imperfectly possessed with the earnestness of Christian morality, he nevertheless enacted many laws, which distinctly breathe the spirit of Christian justice and humanity: the abolition of the punishment of crucifixion, the prohibition of gladiatorial games and cruel rites, the discouragement of infanticide, and the encouragement of the emancipation of slaves. Eusebius says he improved most of the old laws or replaced them by new ones.174174   Vit. Const. l. iv. c. 26, where the most important laws of Constantine are recapitulated. Even the heathen Libanius (Basil. ii. p. 146) records that under Constantine and his sons legislation was much more favorable to the lower classes: though he accounts for this only by the personal clemency of the emperors. Henceforward we feel beneath the toga of the Roman lawgiver the warmth of a Christian heart. We perceive the influence of the evangelical preaching and exhortations of the father of monasticism out of the Egyptian desert to the rulers of the world, Constantine and his sons: that they should show justice and mercy to the poor, and remember the judgment to come.

Even Julian, with all his hatred of the Christians, could not entirely renounce the influence of his education and of the reigning spirit of the age, but had to borrow from the church many of his measures for the reformation of heathenism. He recognized especially the duty of benevolence toward all men, charity to the poor, and clemency to prisoners; though this was contrary to the heathen sentiment, and though he proved himself anything but benevolent toward the Christians. But then the total failure of his philanthropic plans and measures shows that the true love for man can thrive only in Christian soil. And it is remarkable, that, with all this involuntary concession to Christianity, Julian himself passed not a single law in line with the progress of natural rights and equity.175175   Troplong, p. 127. C. Schmidt, 378.

His successors trod in the footsteps of Constantine, and to the end of the West Roman empire kept the civil legislation under the influence of the Christian spirit, though thus often occasioning conflicts with the still lingering heathen element, and sometimes temporary apostasy and reaction. We observe also, in remarkable contradiction, that while the laws were milder in some respects, they were in others even more severe and bloody than ever before: a paradox to be explained no doubt in part by the despotic character of the Byzantine government, and in part by the disorders of the time.176176   Comp. de Rhoer, p. 59 sqq. The origin of this increased severity of penal laws is, at all events, not to be sought in the church; for in the fourth and fifth centuries she was still rather averse to the death penalty. Comp. Ambros. Ep. 25 and 26 (al. 51 and 52), and Augustine, Ep. 153 ad Macedonium.

It now became necessary to collect the imperial ordinances177177   Constitutiones or Leges. If answers to questions, they were called Rescripta; if spontaneous decrees, Edicta. in a codex or corpus juris. Of the first two attempts of this kind, made in the middle of the fourth century, only some fragments remain.178178   The Codex Gregorianus and Codex Hermogenianus; so called from the compilers, two private lawyers. They contained the rescripts and edicts of the heathen emperors from Hadrian to Constantine, and would facilitate a comparison of the heathen legislation with the Christian. But we have the Codex Theodosianus, which Theodosius II. caused to be made by several jurists between the years 429 and 438. It contains the laws of the Christian emperors from Constantine down, adulterated with many heathen elements; and it was sanctioned by Valentinian III. for the western empire. A hundred years later, in the flourishing period of the Byzantine state-church despotism, Justinian I., who, by the way, cannot be acquitted of the reproach of capricious and fickle law-making, committed to a number of lawyers, under the direction of the renowned Tribonianus,179179   Tribonianus, a native of Side in Paphlagonia, was an advocate and a poet, and rose by his talents, and the favor of Justinian, to be quaestor, consul, and at last magister officiorum. Gibbon compares him, both for his comprehensive learning and administrative ability and for his enormous avarice and venality, with Lord Bacon. But in one point these statesmen were very different: while Bacon was a decided Christian in his convictions, Tribonianus was accused of pagan proclivities and of atheism. In a popular tumult in Constantinople the emperor was obliged to dismiss him, but found him indispensable and soon restored him. the great task of making a complete revised and digested collection of the Roman law from the time of Hadrian to his own reign; and thus arose, in the short period of seven years (527–534), through the combination of the best talent and the best facilities, the celebrated Codex Justinianeus, which thenceforth became the universal law of the Roman empire, the sole text book in the academies at Rome, Constantinople, and Berytus, and the basis of the legal relations of the greater part of Christian Europe to this day.180180   The complete Codex Justinianeus, which has long outlasted the conquests of that emperor (as Napoleon’s Code has outlasted his), comprises properly three separate works: (1) The Institutiones, an elementary text book of jurisprudence, of the year 533. (2) The Digesta or Pandectae (πάνδεκται, complete repository), an abstract of the spirit of the whole Roman jurisprudence, according to the decisions of the most distinguished jurists of the earlier times, composed in 530-533. (3) The Codex, first prepared in 528 and 529, but in 534 reconstructed, enlarged, and improved, and hence called Codex repetitae praelectionis; containing 4,648 ordinances in 765 titles, in chronological order. To these is added (4) a later Appendix: Novellae constitutiones (vεαραὶ διατάξεις), or simply Novellae (a barbarism); that is, 168 decrees of Justinian, subsequently collected from the 1st January, 535, to his death in 565, mostly in Greek, or in both Greek and Latin. Excepting some of the novels of Justinian, the codex was composed in the Latin language, which Justinian and Tribonianus understood; but afterward, as this tongue died out in the East, it was translated into Greek, and sanctioned in this form by the emperor Phocas in 600. The emperor Basil the Macedonian in 876 caused a Greek abstract (πρόχειρον τῶν νόμων) to be prepared, which, under the name of the Basilicae, gradually supplanted the book of Justinian in the Byzantine empire. The Pandects have narrowly escaped destruction. Most of the editions and manuscripts of the west (not all, as Gibbon says) are taken from the Codex Florentinus, which was transcribed in the beginning of the seventh century at Constantinople, and afterward carried by the vissitudes of war and trade to Amalfi, to Pisa, and in 1411 to Florence.

This body of Roman law181181   Called Corpus juris Romanior C. juris civilis, in distinction from Corpus juris canonici, the Roman Catholic church law, which is based chiefly on the canons of the ancient councils, as the civil law is upon the rescripts and edicts of the emperors. is an important source of our knowledge of the Christian life in its relations to the state and its influence upon it. It is, to be sure, in great part the legacy of pagan Rome, which was constitutionally endowed with legislative and administrative genius, and thereby as it were predestined to universal empire. But it received essential modification through the orientalizing change in the character of the empire from the time of Constantine, through the infusion of various Germanic elements, through the influence of the law of Moses, and, in its best points, through the spirit of Christianity. The church it fully recognizes as a legitimate institution and of divine authority, and several of its laws were enacted at the direct instance of bishops. So the “Common Law,” the unwritten traditional law of England and America, though descending from the Anglo-Saxon times, therefore from heathen Germandom, has ripened under the influence of Christianity and the church, and betrays this influence even far more plainly than the Roman code, especially in all that regards the individual and personal rights and liberties of man.

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