Influence of the Church on Civil Law

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Christianity is essentially anethical religion; and, although its moral principles were meant directly for the elevation of the individual, still they could not fail to exercise a powerful influence on such a public institution as law, the crystallized rule of human conduct. Thelaw ofRome escaped this influence to a large extent, because much of it was compiled beforeChristianity was recognized by the public authorities. But theleges barbarorum were more completely interpenetrated, as it were, byChristian influences; they received their definite form only after the several nations had submitted to the gentle yoke ofChrist. This influence of theChurch is particularly noticeable in the following matters:

Slavery

The condition of the slaves was most pitiable in the ages of antiquity. According toRoman law and usage a slave was considered, not as a human being, but as a chattel, over which the master had the most absolute control, up to the point of inflicting death. Gradually, the spirit ofChristianity restricted these inhumanrights. From the time of theEmperor Antoninus Pius (138-61) a master was punished if he killed his slave without reason, or even practiced on him excessive cruelty (Instit. Just., lib. I, tit. 8; Dig., lib. I, tit. 6, leges 1, 2). The emperor Constantine (306-37) made ithomicide to kill a slave with malice aforethought, and described certain modes of barbarous punishment by which, if death followed, the guilt ofhomicide was incurred (Cod. Just., lib. IV, tit. 14). A further relief consisted in facilitating the manumission or liberation of slaves. According to severallaws of Constantine the ordinary formalities could be dispensed with if the manumission took place in the church, before the people and the sacredministers. Theclergy were permitted to bestow freedom on their slaves in their last will, or even by simple word of mouth (Cod. Just., lib. I, tit. 13, leges 1, 2). The Emperor Justinian I (527-65) gave to freedpersons the full rank andrights of Roman citizens, and abolished the penalty of condemnation to servitude (Cod. Just., lib. VII, tit. 6; Nov., VII, cap. viii; Nov. LVIII, praef. capp. i, iu). Similar provisions were found in the Barbarian codes. According to theBurgundian andVisigothiclaws themurder of a slave was punished; emancipation in the church and before thepriest was permitted and encouraged. In one point they were ahead of theRoman law; they recognized the legality of the marriage between slaves. in the Lombardic law, on the authority of the Scriptural sentence: "WhomGod hath joined together, let no man put asunder." TheChurch could not directly abolish slavery; she was satisfied with admitting the slaves within her pale on a footing of equality with others, with counselling patience and submission on the part of the slave, forbearance and moderation on that of the master. Otherwise she concurred in the civil legislation, or even went beyond it in some cases. Thus, the killing of a slave was severely punished (Counc. of Elvira, D. 300, Can. v; Counc. of Epaon, A.D. 517, Can. xxviv); a fugitive slave who had taken refuge in the church was to be restored to his master only on the latter's promise of remitting the punishment (Counc. ofOrléans, A.D. 511, Can. iii, c. vi, X, lib. III, tit. 49); marriage between slaves was recognized as valid (Counc. ofChâlons, A.D. 813; Can. xxx; c. i, X, lib. IV, tit. 9); and even the marriage between a freeperson and a slave was ratified, provided it had been contracted with fullknowledge (Counc. of Compiegne, A.D. 757, Can. viii).

Paternal authority (potestas paterna)

According to theRoman law the power of the father over his children was as absolute as that of the master over his slaves: it extended to their freedom and life. The harsher features of this usage were gradually eliminated. Thus, according to thelaws of different emperors, the killing of a child either by the father or by the mother was declared to be one of the greatest crimes (Cod. Theod., lib. IX, tit. 14, 15; Cod. Just., lib. IX, tit. 17; Dig., lib. XLVIII, tit. 9, lex 1). Cruel treatment of children was forbidden, such as thejus liberos notice dandi, i.e., the right of handing children over to the power of someone injured by them (Instit. Just., lib. IV, tit. 8); children could not be sold or given away to the power of others (Cod. Just., lib. IV, tit. 43, lex 1); children that were sold by their father on account of poverty were to be set free (Cod. Theod., lib. III, tit. 3, lex 1); finally, all children exposed by theirparents and fallen into servitude were to become free without exception (Cod. Just., lib. VIII, tit. 52, lex 3). The son of afamily was entitled to dispose in his last will of the possessions acquired either in military service (peculium castrense), or in the exercise of an office (peculium quasi castrense), or in any other way (Instit. Just., Jib. II, tit. 11; c. iv, VI, lib. III, tit. 12). The children could not be disinherited at the simple wish of the father, but only for certain specified reasons based on ingratitude (Nov. CXV. cc. iii sqq.).

Marriage

In the ancient law ofRome the wife was, like the rest of thefamily, theproperty of the husband, who could dispose of her at will.Christianity rescuedwoman from this degrading condition by attributing to her equalrights, and by making her the companion of the husband. This equality was in part recognized by imperiallaws which gave towomen the right of controlling theirproperty, and to mothers the right of guardianship (Cod. Theod., lib. II, tit. 17, lex 1; lib. III, tit. 17, lex 4). The boundless liberty ofdivorce, which had obtained since the time ofAugustus, was restricted to a certain number of cases. The legislation of the Emperors Constantine and Justinian on this subject did not come up to the standard ofChristianity, but it approached it and imposed a salutary check on the free desire of husband or wife for separation (Cod. Theod., lib. III, tit. 16, lex 1; Cod. Just., lib. V, tit. 17, leg. 8, 10, 11). Woman was highly respected among the barbarian nations; and with some, like theVisigoths,divorce was forbidden except foradultery.

Wills and testaments

The canon law introduced various modifications in the regulations of the civil law concerning last wills and testaments; among them there is one which enforced a particular fairness in favour of thenecessary heirs, such as children. According to theRoman law, one who became heir orlegates with the condition of afideicommissum (i.e., of transmitting his inheritance or legacy to another after his death) had the right of deducting the fourth part from the inheritance or legacy, which was not transmitted; this fourth part being known as the Trebellian quarter. Again, thenecessary heirs, such as children, had a claim on a certain part of the inheritance. If it happened that the share of thenecessary heir was burdened with afideicommissum, then thenecessary heir was entitled only to deduct the part coming to him as anecessary heir, but not the Trebellian quarter (Cod. Just., lib. VI, tit. 49, lex 6). The canon law modified this provision by enjoining that thenecessary heir in such a case was entitled first to the deduction of his natural share and then also to the deduction of the Trebellian quarter from the rest of the inheritance (cc. 16, 18, X, lib. III, tit. 26).

Property rights

According to a provision in theRoman law, a man who was forcibly ejected from hisproperty could, in order to recover it, apply the process known as theinterdictum under vi against the one who ejected him directly or indirectly, i.e., against him who perpetrated the act of ejection or who counselled it. But he could take action against the heirs of those who ejected him only in so far as they were enriched by the spoliation, and none against a third owner, who meanwhile had obtained possession of his formerproperty (Dig., lib., XLVIII, tit. 16, lex 1. tit. 17, lex 3). The canon law modified this unfair measure by decreeing that he who was despoiled of hisproperty could insist first on being reinstated; if the matter were brought to the courts, he could allege theexceptio spolii, or the fact of spoliation; and, finally, he was permitted to have recourse to thelaw against a third owner who had acquired theproperty with theknowledge of itsunjust origin (c. 18, X, lib. II, tit. 13; c. 1, VI, lib. II, tit. 5).

Contracts

TheRoman law distinguished between pacts (pacta nuda) and contracts. The former could not be enforced by law or a civil action, while the latter, being clothed in special judicial solemnities, were binding before thelaw and the civil courts. Against this distinction the canon law insists on theobligation incurred by any agreement of whatever form, or in whatever manner it may have been contracted (c. 1, 3, X, lib. I, tit. 35).

Prescriptions

TheRoman law admitted the right of prescription in favour of him who had been ingood faith only at the beginning of his possession, and it abstracted altogether from the good or badfaith in either party to a civil action, if it were terminated by prescription. The canon law required thegood faith in him who prescribed for all the time of his possession; and it refused to acknowledge prescription in the case of a civil action against a possessor of badfaith (cc. 5, 20, X, lib. II, tit. 26: c. 2, VI, lib. V, tit. 12, De Reg. Jur.). (SeePRESCRIPTION.)

Legal procedure

The spirit ofChristianity made itself felt in the treatment of criminals andprisoners. Thusprisoners were not to be subjected to in human maltreatment before their trial (Cod. Theod., lib. IX, tit. 3, lex 1); criminals already sentenced were not to be branded on the forehead (Cod. Theod. lib. IX, tit. 40, lex 2); thebishops received the right of interceding forprisoners detained for lighter offenses, and to obtain their freedom on thefeast of Easter; they were likewise empowered to visit theprisons on Wednesdays or Fridays in order to see that the magistrates heaped no extra afflictions on theprisoners (Cod. Theod., lib. IX, tit. 38, leges 3,4,6-8; Cod. Just., lib. I, tit. 4, leges 3,9,22,23). To all this may be added the recognition of the right of asylum in the churches, which prevented a hasty and vindictive administration ofjustice (Cod. Theod., lib. IX, tit. 15, lex 4). A greatevil among the Germanic nations was the trial by ordeals, orjudgments of God. TheChurch was unable for some time to suppress them, but at least she tried to control them, placed them under the direction of thepriests, and gave to them aChristian appearance by prescribing specialblessings and ceremonies for such occasions. Thepopes, however were always opposed to the ordeals as implying a tempting ofGod; decrees to that effect were enacted byNicholas I (858-67),Stephen V (885-91),Alexander II (1061-73),Celestine III (1191-98),Innocent III (1198-1216), andHonorius III (1216-27) (cc. 22, 20, 7, C. II, q. 5; cc. 1, 3, X, lib. V, tit. 35; c. 9, X, lib. III, tit. 50). Anotherevil consisted in the feuds or sanguinary conflicts between privatepersons in revenge for injuries ormurders. TheChurch could not stop them altogether, owing to the conditions ofanarchy and barbarism prevailing among the nations in theMiddle Ages; but she succeeded at least in restricting them to certain periods of the year, and certain days of the week, by what is known as thetreuga Dei or"Truce of God". By this institution private feuds were forbidden fromAdvent to the Octave of Epiphany, fromSeptuagesima Sunday until the Octave of Pentecost, and from sunset of Wednesday until sunrise of Monday. Laws to that effect were enacted as early as the middle of the eleventh century in nearly all countries of WesternEurope — inFrance,Germany,Italy,Spain,England. The canon law insisted on certain principles of fairness: thus, it acknowledged that a civil action might extend sometimes over three years, against the ordinary rule (c. 20, X, lib. II, tit. 1); connected questions, such as disputes about possessions and the right ofproperty, were to be submitted to the same court (c. 1, X, lib. II, tit. 12; c. 1, X, lib. II, tit. 17); a suspected judge could not be refused, unless the reasons were manifested andproved (c. 61, X, lib. II, tit. 28); of two contradictory sentences rendered by different judges the one favouring the accused was to prevail (c. 26, X, lib. II, tit. 27); the intention of appealing could be manifested outside of the court in the presence of good men, if anyone entertained fear of the judge (c. 73, X, lib. II, tit. 28).

Legislation, government, and administration of justice

TheChurch was allowed to exercise a wide influence on civil law by the fact that herministers, chiefly thebishops andabbots, had a large share in framing theleges barbarorum. Practically all thelaws of the barbarian nations were written underChristian influences; and the illiterate barbarians willingly accepted the aid of the literateclergy to reduce to writing the institutes of their forefathers. The cooperation of theclergy is not expressly mentioned in all the codes of this kind: in some only the learned in thelaw, or, again, theproceres, or nobles, are spoken of; but theecclesiastics were, as a rule, the only learned men, and the higherclergy,bishops andabbots, belonged to the class of the nobles. Ecclesiastics —priests orbishops — were certainly employed in the composition of the "Lex Romana Visigothorum" or "Breviarium Alarici", the "Lex Visigothorum" ofSpain, the "Lex Alamannorum", the "Lex Bajuwariorurn", the Anglo-Saxonlaws and the capitularies of theFrankish kings. Thebishops andabbots also had a great share in the government of states in theMiddle Ages. They took a leading part in the great assemblies common to most of the Germanic nations; they had a voice in the election of the kings; they performed thecoronation of the kings; they lived much at the Court, and were the chief advisors of the kings. The office of chancellor inEngland and in themedievalGerman Empire was the highest in the State (for the chancellor was the prime minister of the king or emperor, and responsible for all his public acts, it was the chancellor who annulled iniquitous decrees of the king or emperor, and righted all that was wrong); and this office was usually entrusted to an ecclesiastic, inGermany generally to a distinguishedbishop. Thebishops also had a great share in the administration ofjustice. As in the East so also in the West, they had a general superintendence over the courts ofjustice. They always had a seat in the highest tribunal; to them the injured parties could appeal in default ofjustice; and they had the power to punish subordinate judges forinjustice in the absence of the king. InSpain they had a special charge to keep continual watch over the administration ofjustice, and were summoned on all great occasions to instruct the judges to act withpiety andjustice. What is more, they often acted directly as judges in temporal matters. By a law of theEmperor Constantine (321) the parties to a litigation could, by mutual consent, appeal to thebishop in any stage of their judicial controversy, and by a further enactment (331) either party could do so even without the consent of the other. This second part, however, was again abrogated by subsequent legislation.

In theMiddle Ages thebishops acted likewise as judges, both in civil and in criminal matters. In civil matters theChurch drew to itsjurisdiction all things of a mixed character — thecausae spirituali annexae, which were partly temporal and partlyecclesiastical. Criminal matters were brought before the bishap's court, which was held usually in connection with the episcopal visitation throughout the diocese. The methods employed by theecclesiastical or episcopal courts in a judicial process were such that they served as a model for secular courts. At the beginning the proceedings were very simple; thebishop decided the case presented to him with the advice of the body ofpresbyters, but without any definite formalities. After the twelfth century theChurch elaborated her own method of procedure, with such comparative perfection that it was imitated to a large extent by modern courts. Several principles prevailed in this regard: first, all essential parts of a trial were to be recorded in writing — such as the presentation of the complaint, the citation of the defendant, theproofs, the deposition of witnesses, the defence, and the sentence; secondly, both parties were entitled to a full opportunity of presenting all material relating to the accusation or to the defence; thirdly, the parties in a litigation had the right of appealing to a higher court after the lapse of the ordinary term for a trial (which was two years), the party dissatisfied with the decision was permitted to appeal within ten days after the rendering of the sentence.

Sacred Scripture in legislation

A last instance of the influence ofChristianity on legislation is found in the appeal to the books ofSacred Scripture in support of civillaws. In theRoman law there is hardly any reference to Scripture. And that is not surprising, since the spirit of Roman legislation, even under theChristian emperors, washeathen, and the emperor — theprinciple voluntas — was conceived of as the supreme and ultimate source of legislation. On the contrary, the codes of the barbarian nations are replete with quotations from Scripture. In the prologue to several of them reference is made to the leftist ration given by Moses to the Jewish people. Mention has been made above of a Lombardic law which recognizes the legality of marriages among slaves on the authority of the Scriptural text: "whomGod hath joined together, let no man put asunder" (Matthew 19:6;Mark 10:9). Many other examples may be found, e.g., in the "Leges Visigothorum" and in the Capitularies of theFrankish kings, where almost every book of the Old andNew Testament is resorted to for argument or illustration.

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