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§ 89. The Roman Law.

See vol. III. §§ 13 and 18, pp. 90 sqq. And 107 sqq.

Fr. K. von Savigny (Prof. of jurisprudence in Berlin, d. 1861) Geschichte des römischen Rechts im Mittelalter. Berlin 1815–’31 6 vols. Chapter 44 of Gibbon on Roman law. Ozanam: Hist. of the Civilization in the Fifth Century, ch. V. (vol. I. 136–158 in Glyn’s transl. Lond. 1868). Milman: Lat. Christ. Bk III. ch.5 (vol. 1. 479 sqq. N. York ed.)

The Justinian code (527–534) transmitted to the middle ages the legislative wisdom and experience of republican and imperial Rome with the humanizing improvements of Stoic philosophy and the Christian religion, but at the same time with penal laws against every departure from the orthodox Catholic creed, which was recognized and protected as the only religion of the state. It maintained its authority in the Eastern empire. It was partly preserved, after the destruction of the Western empire among the Latin inhabitants of Italy, France, and Spain, in a compilation from the older Theodosian code (429438), which contained the post-Constantinian laws, with fragments from earlier collections.

In the twelfth century the Roman law (after the discovery of a copy of the Pandects at Amalfi in 1135, which was afterwards transferred to Florence) began to be studied again with great enthusiasm. A famous school of civil law was established at Bologna. Similar schools arose in connection with the Universities at Paris, Naples, Padua, and other cities. The Roman civil law (Corpus juris civilis), in connection with the ecclesiastical or canon law (Corpus juris canonici), was gradually adopted all over the Continent of Europe, and the Universities granted degrees in both laws conjointly.

Thus Rome, substituting the law for the sword, ruled the world once more for centuries, and subdued the descendants of the very barbarians who had destroyed her empire. The conquered gave laws to the conquerors, mindful of the prophetic line of Virgil:

“Tu, regere imperio populos, Romane, memento.”


The anti-heretical part of the Roman law, on which persecution was based, is thus summed up by Dean Milman (Bk III. ch. 5): “A new class of crimes, if not introduced by Christianity, became multiplied, rigorously defined, mercilessly condemned. The ancient Roman theory, that the religion of the State must be the religion of the people, which Christianity had broken to pieces by its inflexible resistance, was restored in more than its former rigor. The code of Justinian confirmed the laws of Theodosius and his successors, which declared certain heresies, Manicheism and Donatism, crimes against the State, as affecting the common welfare. The crime was punishable by confiscation of all property, and incompetency to inherit or to bequeath. Death did not secure the hidden heretic from prosecution; as in high treason, he might be convicted in his grave. Not only was his testament invalid, but inheritance could not descend through him. All who harbored such heretics were liable to punishment; their slaves might desert them, and transfer themselves to an orthodox master. The list of proscribed heretics gradually grew wider. The Manicheans were driven still farther away from the sympathies of mankind; by one Greek constitution they were condemned to capital punishment. Near thirty names of less detested heretics are recited in a law of Theodosius the younger, to which were added, in the time of Justinian, Nestorians, Eutychians, Apollinarians. The books of all these sects were to be burned; yet the formidable number of these heretics made no doubt the general execution of the laws impossible. But the Justinian code, having defined as heretics all who do not believe the Catholic faith, declares such heretics, as well as Pagans, Jews, and Samaritans, incapable of holding civil or military offices, except in the lowest ranks of the latter; they could attain to no civic dignity which was held in honor, as that of the defensors, though such offices as were burdensome might be imposed even on Jews. The assemblies of all heretics were forbidden, their books were to be collected and burned, their rites, baptisms, and ordinations prohibited. Children of heretical parents might embrace orthodoxy; the males the parent could not disinherit, to the females he was bound to give an adequate dowry. The testimony of Manicheans, of Samaritans, and Pagans could not be received; apostates to any of these sects and religions lost all their former privileges, and were liable to all penalties.”

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