Influence of the Church on Civil Law
Christianity is essentially an ethical 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. The law of Rome escaped this influence to a
large extent, because much of it was compiled before Christianity
was recognized by the public authorities. But the leges barbarorum
were more completely interpenetrated, as it were, by Christian
influences; they received their definite form only after the
several nations had submitted to the gentle yoke of Christ. This
influence of the Church is particularly noticeable in the
following matters:
(1) Slavery
The condition of the slaves was most pitiable in the ages of
antiquity. According to Roman 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 of Christianity restricted
these inhuman rights. From the time of the Emperor 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 it homicide to kill a slave with malice
aforethought, and described certain modes of barbarous punishment
by which, if death followed, the guilt of homicide was incurred
(Cod. Just., lib. IV, tit. 14). A further relief consisted in
facilitating the manumission or liberation of slaves. According to
several laws of Constantine the ordinary formalities could be
dispensed with if the manumission took place in the church, before
the people and the sacred ministers. The clergy 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 freed persons the full
rank and rights 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 the
Burgundian and Visigothic laws the murder of a slave was punished;
emancipation in the church and before the priest was permitted and
encouraged. In one point they were ahead of the Roman law; they
recognized the legality of the marriage between slaves. in the
Lombardic law, on the authority of the Scriptural sentence: "Whom
God hath joined together, let no man put asunder." The Church
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. of Orleans, A.D. 511,
Can. iii, c. vi, X, lib. III, tit. 49); marriage between slaves
was recognized as valid (Counc. of Chalons, A.D. 813; Can. xxx; c.
i, X, lib. IV, tit. 9); and even the marriage between a free
person and a slave was ratified, provided it had been contracted
with full knowledge (Counc. of Compiegne, A.D. 757, Can. viii).
(2) Paternal Authority (Potestas Paterna)
According to the Roman 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 the laws 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 the jus 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 their parents and fallen into
servitude were to become free without exception (Cod. Just., lib.
VIII, tit. 52, lex 3). The son of a family 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 (In stit. 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.).
(3) Marriage
In the ancient law of Rome the wife was, like the rest of the
family, the property of the husband, who could dispose of her at
will. Christianity rescued woman from this degrading condition by
attributing to her equal rights, and by making her the companion
of the husband. This equality was in part recognized by imperial
laws, which gave to women the right of controlling their property,
and to mothers the right of guardianship (Cod. Theod., lib. II,
tit. 17, lex 1; lib. III, tit. 17, lex 4). The boundless liberty
of divorce, which had obtained since the time of Augustus, 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 of Christianity, 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 the Visigoths, divorce
was forbidden except for adultery.
(4) 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 the
necessary heirs, such as children. According to the Roman law, one
who became heir or legates with the condition of a fideicommissum
(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, the necessary heirs,
such as children, had a claim on a certain part of the
inheritance. If it happened that the share of the necessary heir
was burdened with a fideicommissum, then the necessary heir was
entitled only to deduct the part coming to him as a necessary
heir, but not the Trebellian quarter (Cod. Just., lib. VI, tit.
49, lex 6). The canon law modified this provision by enjoining
that the necessary 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).
(5) Property Rights
According to a provision in the Roman law, a man who was forcibly
ejected from his property could, in order to recover it, apply the
process known as the interdictum 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 former
property (Dig., lib., VLVIII, tit. 16, lex 1. tit. 17, lex 3). The
canon law modified this unfair measure by decreeing that he who
was despoiled of his property could insist first on being
reinstated; if the matter were brought to the courts, he could
allege the exceptio spolii, or the fact of spoliation; and,
finally, he was permitted to have recourse to the law against a
third owner who had acquired the property with the knowledge of
its unjust origin (c. 18, X, lib. II, tit. 13; c. 1, VI, lib. II,
tit. 5).
(6) Contracts
The Roman 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 the law and the civil courts.
Against this distinction the canon law insists on the obligation
incurred by any agreement of whatever form, or in whatever manner
it may have been contracted (c. 1, 3, X, lib. I, tit. 35).
(7) Prescriptions
The Roman law admitted the right of prescription in favour of him
who had been in good faith only at the beginning of his
possession, and it abstracted altogether from the good or bad
faith in either party to a civil action, if it were terminated by
prescription. The canon law required the good 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 bad faith (cc. 5, 20, X, lib. II, tit. 26: c. 2, VI,
lib. V, tit. 12, De Reg. Jur.). (See PRESCRIPTION.)
(8) Legal Procedure
The spirit of Christianity made itself felt in the treatment of
criminals and prisoners. Thus prisoners 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); the bishops
received the right of interceding for prisoners detained for
lighter offenses, and to obtain their freedom on the feast of
Easter; they were likewise empowered to visit the prisons on
Wednesdays or Fridays in order to see that the magistrates heaped
no extra afflictions on the prisoners (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 administra
tion of justice (Cod. Theod., lib. IX, tit. 15, lex 4). A great
evil among the Germanic nations was the trial by ordeals, or
judgments of God. The Church was unable for some time to suppress
them, but at least she tried to control them, placed them under
the direction of the priests, and gave to them a Christian
appearance by prescribing special blessings and ceremonies for
such occasions. The popes, however were always opposed to the
ordeals as implying a tempting of God; decrees to that effect were
enacted by Nicholas I (858~7), Stephen V (885-91), Alexander II
(1061-73), Celestine III (1191-98), Innocent III (1198-1216), and
Honorius 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). Another evil
consisted in the feuds or sanguinary conflicts between private
persons in revenge for injuries or murders. The Church could not
stop them altogether, owing to the conditions of anarchy and
barbarism prevailing among the nations in the Middle 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 the treuga
Dei or "Truce of God." By this institution private feuds were
forbidden from Advent to the Octave of Epiphany, from Septuagesima
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
Western Europe -- in France, 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 of property, 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 and
proved (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).
(9) Legislation, Government, and Administration of Justice
The Church was allowed to exercise a wide influence on civil law
by the fact that her ministers, chiefly the bishops and abbots,
had a large share in framing the leges barbarorum. Practically all
the laws of the barbarian nations were written under Christian
influences; and the illiterate barbarians willingly accepted the
aid of the literate clergy to reduce to writing the institutes of
their forefathers. The cooperation of the clergy is not expressly
mentioned in all the codes of this kind: in some only the learned
in the law, or, again, the proceres, or nobles, are spoken of; but
the ecclesiastics were, as a rule, the only learned men, and the
higher clergy, bishops and abbots, belonged to the class of the
nobles. Ecclesiastics -- priests or bishops -- were certainly
employed in the composition of the "Lex Romana Visigothorum" or
"Breviarium Alarici", the "Lex Visigothorum" of Spain, the "Lex
Alamannorum", the "Lex Bajuwariorurn", the Anglo-Saxon laws, and
the capitularies of the Frankish kings. The bishops and abbots
also had a great share in the government of states in the Middle
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 the coronation of the kings; they lived
much at the Court, and were the chief advisors of the kings. The
office of chancellor in England and in the medieval German 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, in Germany
generally to a distinguished bishop. The bishops also had a great
share in the administration of justice. As in the East so also in
the West, they had a general superintendence over the courts of
justice. They always had a seat in the highest tribunal; to them
the injured parties could appeal in default of justice; and they
had the power to punish subordinate judges for injustice in the
absence of the king. In Spain they had a special charge to keep
continual watch over the administration of justice, and were
summoned on all great occasions to instruct the judges to act with
piety and justice. What is more, they often acted directly as
judges in temporal matters. By a law of the Emperor Constantine
(321) the parties to a litigation could, by mutual consent, appeal
to the bishop 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 the Middle Ages the bishops acted likewise as judges, both in
civil and in criminal matters. In civil matters the Church drew to
its jurisdiction all things of a mixed character -- the causae
spirituali annexae, which were partly temporal and partly
ecclesiastical. 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 the
ecclesiastical 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; the bishop decided the case
presented to him with the advice of the body of presbyters, but
without any definite formalities. After the twelfth century the
Church 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, the proofs, 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.
(10) Sacred Scripture in Legislation
A last instance of the influence of Christianity on legislation is
found in the appeal to the books of Sacred Scripture in support of
civil laws. In the Roman law there is hardly any reference to
Scripture. And that is not surprising, since the spirit of Roman
legislation, even under the Christian emperors, was heathen, and
the emperor -- the principle 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: "whom God bath joined together, let no man put
asunder " (Matt., xix, 6; Mark, x, 9). Many other examples may be
found, e.g., in the "Leges Visigothorum" and in the Capitularies
of the Frankish kings, where almost every book of the Old and New
Testament is resorted to for argument or illustration.
FRANCIS J. SCHAEFER
Transcribed by David K. DeWolf
From the Catholic Encyclopedia, copyright � 1913 by the
Encyclopedia Press, Inc. Electronic version copyright � 1996 by
New Advent, Inc.
Taken from the New Advent Web Page (www.knight.org/advent).
This article is part of the Catholic Encyclopedia Project, an
effort aimed at placing the entire Catholic Encyclopedia 1913
edition on the World Wide Web. The coordinator is Kevin Knight,
editor of the New Advent Catholic Website. If you would like to
contribute to this worthwhile project, you can contact him by e-
mail at (knight.org/advent). For more information please download
the file cathen.txt/.zip.
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