law. The first two proceeded from civil, the third from ecclesiastical authority. The civil law embodies the records and edicts of emperors and kings, the enactments of diets and parliaments, the decisions of courts and judges. The ecclesiastical law embodies the canons of councils and decretals of popes. The former is heathen in origin, but improved and modified by Christianity; the latter is the direct production of the church, yet as influenced by the state of medieval society. Both rest on the union of church and state, and mutually support each other, but it was difficult to draw the precise line of difference, and to prevent occasional collisions of jurisdiction.

§ 89. The Roman Lav.

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. I. 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 (429– 438), 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."

NOTES.

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."

§ 90. The Capitularies of Charlemagne.

STEPH. BALUZIUS (Baluze, Prof. of Canon law in Paris, d. 1718): Regum Francorum Capitularia, 1677; new ed. Paris, 1780, 2 vols. PERTZ: Monumenta Germaniæ historica, Tom. III (improved ed. of the Capitularia). K. FR. EICHHORN: Deutsche Staats-und Rechtsgeschichte, Göttingen, 1808, 4 Parts; 5th ed. 1844. J. GRIMM: Deutsche Rechtsalterthümer, Göttingen 1828. Giesebrecht (I. 800) calls this an "unusually rich collection with profound glances into the legal life of the German people." W. DÖNNIGES: Das deutsche Staatsrecht und die deutsche Reichsverfassung, Berlin 1842. F. WALTHER: Deutsche Rechtsgeschichte, second ed. Bonn 1857. J. HILLEBRAND: Lehrbuch der deutschen Staats-und Rechtsgeschichte, Leipzig 1856. O. STOBBE: Geschichte der deutschen Rechtsquellen, Braunschweig, 1860 (first Part). W. GIESEBRECHT: Geschichte der deutschen Kaiserzeit, third ed. Braunschweig 1863 sqq. Bd I. 106–144.

The first and greatest legislator of the Germanic nations is Charlemagne, the founder of the Holy Roman Empire (800– 814). What Constantine the Great, Theodosius the Great, and Justinian did for the old Roman empire on the basis of heathen Rome and the ancient Græco-Latin church, Charlemagne did for the new Roman Empire in the West on the basis of Germanic customs and the Latin church centred in the Roman papacy. He was greater, more beneficial and enduring in his influence as a legislator than as a soldier and conqueror.' He proposed to himself the herculean task to organize, civilize and Christianize the crude barbarian customs of his vast empire, and he carried it out with astonishing wisdom. His laws are embodied in the

1 The same may be said of Napoleon I., whose code has outlived his military conquests.

Capitularia, i. e. laws divided into chapters. They are the first great law-book of the French and Germans'. They contain his edicts and ordinances relating to ecclesiastical, political, and civil legislation, judicial decisions and moral precepts. The influence of the church and the Christian religion is here more direct and extensive than in the Roman Code, and imparts to it a theocratic element which approaches to the Mosaic legislation. The Roman Catholic church with her creed, her moral laws, her polity, was the strongest bond of union which held the Western barbarians together and controlled the views and aims of the emperor. He appears, indeed, as the supreme ruler clothed with sovereign authority. But he was surrounded by the clergy which was the most intelligent and influential factor in legislation both in the synod and in the imperial diet. The emperor and his nobles were under the power of the bishops, and the bishops were secular lords and politicians as well as ecclesiastics. The ecclesiastical affairs were controlled by the Apocrisiarius (a sort of minister of worship); the secular affairs, by the Comes Palatii; both were aided in each province by a delegated bishop and count who were to work in harmony. On important questions the pope was consulted. The legislation proceeded from the imperial will, from ecclesiastical councils, and from the diet or imperial assembly. The last consisted of the dignitaries of church and state, the court officials, bishops, abbots, dukes, counts, etc., and convened every spring. The emperor was surrounded at his court by the most eminent statesmen, clergy

3

2

1 Giesebrecht (I. 128): “Ein Riesenschritt in der Entwicklung des deutschen Geistes geschah durch Karls Gesetzgebung... Mit Ehrfurcht und heiliger Scheu schlägt man die Capitularien des grossen Kaisers auf, das erste grosse Gesetzbuch der Germanen, ein Werk, dem mehrere Jahrhunderte vorher und nachher kein Volk ein gleiches an die Seite gesetzt hat. Das Bild des Karolingischen Staates tritt uns in voller Gegenwärtigkeit hier vor die Seele; wir sehen, wie Grosses erreicht, wie das Höchste erstrebt wurde."

2 Also called Archicapellanus, Archicancellarius.

3 Pfalzgraf.

♦ Hence many Capitularies are issued “apostolicæ sedis hortatu, monente Pontifice, ex præcepto Pontificis." At the Synod of Francfort in 794 two delegates of Pope Hadrian were present, but Charlemagne presided. See Mansi XVIII. 884; Pertz, Monum. I. 181.

men and scholars, from whom he was anxious to learn without sacrificing his right to rule. His court was a school of discipline and of that gentlemanly courtesy and refinement which became a distinguishing feature of chivalry, and Charlemagne shone in poetry as the first model cavalier.

The legislation of the Carolingian Capitularies is favorable to the clergy, to monasteries, to the cause of good morals and religion. The marriage tie is protected, even among slaves; the license of divorce restrained; divorced persons are forbidden to marry again during the life-time of the other party. The observance of Sunday is enjoined for the special benefit of the laboring classes. Ecclesiastical discipline is enforced by penal laws in cases of gross sins such as incest. Superstitious customs, as consulting soothsayers and the Scriptures for oracles, are discouraged, but the ordeal is enjoined. Wholesome moral lessons are introduced, sometimes in the language of the Scriptures: the people are warned against perjury, against feud, against shedding Christian blood, against the oppression of the poor (whose cause should be heard by the judges before the cause of the rich). They are exhorted to learn the Apostles' Creed and to pray, to love one another and to live in peace, "because they have one Father in heaven." Cupidity is called "a root of all evil." Respect for the dead is encouraged. Hospitality is recommended for the reason that he who receives a little child in the name of Christ, receives him.

This legislation was much neglected under the weak successors of Charlemagne, but remains a noble monument of his intentions.

§ 91. English Legislation.

WILKIN: Leges Anglo-Saxonica (1721). THORPE: Ancient Laws and Institutes of England (London 1840). MATTHEW HALE: History of the Common Law (6th ed. by Runnington, 1820). REEVE: History of the English Law (new ed. by Finalson 1869, 3 vols.). BLACKSTONE: Commentaries on the Laws of England (London 1765, many ed. Engl. and Amer.). BURN: Ecclesiastical Law (9th ed. by Phillimore, 1842, 4 vols.). PHILLIMORE: Ecclesiastical Law of the Church of England