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Comp. vol. III. ch. III. and the Lit. there quoted


 § 88. Legislation.


Mediaeval Christianity is not a direct continuation of the ante-Nicene Christianity in hostile conflict with the heathen state, but of the post-Nicene Christianity in friendly union with a nominally Christian state. The missionaries aimed first at the conversion of the rulers of the barbarian races of Western and Northern Europe. Augustin, with his thirty monks, was provided by Pope Gregory with letters to princes, and approached first King Ethelbert and Queen Bertha in Kent. Boniface leaned on the pope and Charles Martel. The conversion of Clovis decided the religion of the Franks. The Christian rulers became at once the patrons of the church planted among their subjects, and took Constantine and Theodosius for their models. They submitted to the spiritual authority of the Catholic church, but aspired to its temporal government by the appointment of bishops, abbots, and the control over church-property. Hence the frequent collisions of the two powers, which culminated in the long conflict between the pope and the emperor.

The civil and ecclesiastical relations of the middle ages are so closely intertwined that it is impossible to study or understand the one without the other. In Spain, for instance, the synods of Toledo were both ecclesiastical councils and royal parliaments; after the affairs of the church were disposed of, the bishops and nobles met together for the enactment of civil laws, which were sanctioned by the king. The synods and diets held under Charlemagne had likewise a double character. In England the bishops were, and are still, members of the House of Lords, and often occupied seats in the cabinet down to the time of Cardinal Wolsey, who was Archbishop of York and Chancellor of England. The religious persecutions of the middle ages were the joint work of church and state.

This union has a bright and a dark side. It was a wholesome training-school for barbarous races, it humanized and ennobled the state; but it secularized the church and the clergy, and hindered the development of freedom by repressing all efforts to emancipate the mind from the yoke of despotic power. The church gained a victory over the world, but the world gained also a victory over the church. St. Jerome, who witnessed the first effects of the marriage of the church with the Roman empire, anticipated the experience of later ages, when he said: "The church by its connection with Christian princes gained in power and riches, but lost in virtues."411  Dante, who lived in the golden age of the mediaeval hierarchy, and believed the fable of the donation of Constantine to Sylvester, traced the ills of the church to "that marriage-dower" which the first wealthy pope received from the first Christian emperor.

The connection of the ecclesiastical and civil powers is embodied in the legislation which regulates the conduct of man in his relations to his fellow-men, and secures social order and national welfare. It is an index of public morals as far as it presupposes and fixes existing customs; and where it is in advance of popular sentiment, it expresses a moral ideal in the mind of the lawgivers to be realized by the educational power of legal enactments.

During the middle ages there were three systems of jurisprudence: the Roman law, the Barbaric law, and the Canon 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 mediaeval 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 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."


 § 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 Germaniae 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 Graeco-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.412  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 Capitularia, i.e. laws divided into chapters. They are the first great law-book of the French and Germans.413  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 Apocrisiarius414 (a sort of minister of worship); the secular affairs, by the Comes palatii;415 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.416  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, clergymen 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-Saxonicae (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 l869, 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 (Lond. 1873, 2 vols.). Wm. Strong (Justice of the Supreme Court of the U. S.): Two Lectures upon the Relations of Civil Law to Church Property (N. York 1875).


England never accepted the Roman civil law, and the canon law only in part. The island in its isolation was protected by the sea against foreign influence, and jealous of it. It built up its own system of jurisprudence on the basis of Anglo-Saxon habits and customs. The English civil law is divided into Common Law or lex non scripta (i.e. not written at first), and Statute Law or lex scripta. They are related to each other as oral tradition and the Bible are in theology. The Common Law embodies the ancient general and local customs of the English people, handed down by word of mouth from time immemorial, and afterwards recorded in the decisions of judges who are regarded as the living oracles of interpretation and application, and whose decisions must be adhered to in similar cases of litigation. It is Anglo-Saxon in its roots, and moulded by Norman lawyers, under the influence of Christian principles of justice and equity. Blackstone, the standard expounder of English law, says, "Christianity is a part of the Common Law of England."417  Hence the laws against religious offences, as blasphemy, profane swearing, desecration of the Lord's Day, apostasy from Christianity, and heresy.418

The Christian character of English legislation is due in large measure to the piety of the Anglo-Saxon kings, especially Alfred the Great (849-901), and Edward III., the Confessor 1004-1066, canonized by Alexander III., 1166), who prepared digests of the laws of the realm. Their piety was, of course, ascetic and monastic, but enlightened for their age and animated by the spirit of justice and charity. The former is styled Legum Anglicanarum Conditor, the latter Legum Anglicanarum Restitutor.

Alfred's Dome-Book or Liber justicialis was lost during the irruption of the Danes, but survived in the improved code of Edward the Confessor. Alfred was for England what Charlemagne was for France and Germany, a Christian ruler, legislator, and educator of his people. He is esteemed "the wisest, best, and greatest king that ever reigned in England."  Although he was a great sufferer from epilepsy or some similar bodily infirmity which seized him suddenly from time to time and made him despair of life, he performed, like St. Paul in spite of his thorn in the flesh, an incredible amount of work. The grateful memory of his people ascribed to him institutions and laws, rights and privileges which existed before his time, but in many respects he was far ahead of his age. When he ascended the throne, "hardly any one south of the Thames could understand the ritual of the church or translate a Latin letter."  He conceived the grand scheme of popular national education. For this end he rebuilt the churches and monasteries which had been ruined by the Danes, built new ones, imported books from Rome, invited scholars from the Continent to his court, translated with their aid Latin works (as Gregory's Pastoral Care, Bede's Ecclesiastical History, and Boethius's Consolations of Philosophy) into the Anglo-Saxon, collected the laws of the country, and remodelled the civil and ecclesiastical organization of his kingdom.

His code is introduced with the Ten Commandments and other laws taken from the Bible. It protects the stranger in memory of Israel's sojourn in Egypt; it gives the Christian slave freedom in the seventh year, as the Mosaic law gave to the Jewish bondman; it protects the laboring man in his Sunday rest; it restrains blood thirsty passions of revenge by establishing bots or fines for offences; it enjoins the golden rule (in the negative form), not to do to any man what we would not have done to us.419

"In all these words of human brotherhood, of piety, and the spirit of justice, of pity and humanity, uttered by the barbaric lawgivers of a wild race, there speaks a great Personality—the embodiment of the highest sympathy and most disinterested virtue of mankind. It cannot be said indeed that these religious influences, so apparently genuine, produced any powerful effect on society in Anglo-Saxon England, though they modified the laws. Still they began the history of the religious forces in England which, though obscured by much formalism and hypocrisy and weakened by selfishness, have yet worked out slowly the great moral and humane reforms in the history of that country, and have tended with other influences to make it one of the great leaders of modern progress."420




John Richard Green, in his posthumous work, The Conquest of England (N. York ed. 1884, p. 179 sq.), pays the following eloquent and just tribute to the character of King Aelfred (as he spells the name): "Aelfred stands in the forefront of his race, for he is the noblest as he is the most complete embodiment of all that is great, all that is lovable in the English temper, of its practical energy, its patient and enduring force, of the reserve and self-control that give steadiness and sobriety to a wide outlook and a restless daring, of its temperance and fairness, its frankness and openness, its sensitiveness to affection, its poetic tenderness, its deep and reverent religion. Religion, indeed, was the groundwork of Aelfred's character. His temper was instinct with piety. Everywhere, throughout his writings that remain to us, the name of God, the thought of God, stir him to outbursts of ecstatic adoration. But of the narrowness, the want of proportion, the predominance of one quality over another, which commonly goes with an intensity of religious feeling or of moral purpose, he showed no trace. He felt none of that scorn of the world about him which drove the nobler souls of his day to monastery or hermitage. Vexed as he was by sickness and constant pain, not only did his temper take no touch of asceticism, but a rare geniality, a peculiar elasticity and mobility of nature, gave color and charm to his life .... Little by little men came to recognize in Aelfred a ruler of higher and nobler stamp than the world had seen. Never had it seen a king who lived only for the good of his people .... 'I desire,' said the king, 'to leave to the men that come after me a remembrance of me in good works. His aim has been more than fulfilled .... While every other name of those earlier times has all but faded from the recollection of Englishmen, that of Aelfred remains familiar to every English child.'



* Schaff, Philip, History of the Christian Church, (Oak Harbor, WA: Logos Research Systems, Inc.) 1997. This material has been carefully compared, corrected¸ and emended (according to the 1910 edition of Charles Scribner's Sons) by The Electronic Bible Society, Dallas, TX, 1998.

411  "Ecclesia postquam ad Christianos principes venit, potentia quidem et divitiis, major, sed virtutibus minor facta."

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

413  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."

414  Also called Archicapellnus, Archicancellarius

415  Pfalzgraf.

416  Hence many Capitularies are issued "apostolicae sedis hortatu, monente Pontom, ex praecepto 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.

417  Comment. Bk IV. ch. 4. The same may be said of the United States as far as they have adopted the Common Law of the mother country. It is so declared by the highest courts of New York, Pennsylvania, and Massachusetts, and by many eminent judges, but with this essential modification that those parts of the Common Law of England which imply the union of church and state are inapplicable to the United States where they are separated. Justice Strong (l.c. p. 32) says: "The laws and institutions of all the States are built on the foundation of reverence for Christianity." The court of Pennsylvania states the law in this manner: "Christianity is and always has been a part of the Common Law of this State. Christianity without the spiritual artillery of European countries—not Christianity founded on any particular religious tenets—not Christianity with an established church and titles and spiritual courts, but Christianity with liberty of conscience to all men."

418  The statute de haeretico comburendo, passed in 1401 (Henry IV. c. 15), was still in force under Elizabeth when two Anabaptists were burned alive, and under James I. when two Arians were burned.

419  I For further information on Alfred see the biographies of Pauli (1851, Engl. transl. by Thorpe, 1853), Weiss (1852), Hughes (Lond. and Bost. 1869), Freeman's Old English History, and Green's Conquest of England (1884), ch. IV. 124-180.

420  Brace, Gesta Christi, p. 216.

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