horse-race and the combat with wild beasts, or even more licentious entertainments, had carried away many of the clergy, even of the bishops. A law, more than once reenacted and modified, while it acknowledged the power of the clergy's prayers to obtain victory over the barbarians, and to obtain from Heaven extended empire, declared that for this reason they should be unimpeachable. But, notwithstanding the most solemn admonition, they could not be persuaded, not even the bishops, to abstain from the gaming-table, or the theatre with all its blasphemies and licence. The Emperor was compelled to pass this law, prohibiting, under pain of suspension for the first offence, of irrevocable degradation and servitude to the public corporations, any one of the clergy, of any rank, who should be present at the gaming-table or at any public spectacle. These penalties, with other religious punishments, as fastings, were to be inflicted, according to the rank of the offender, by the bishop or the metropolitan. The refusal to punish, or the endeavour to conceal, such offences made both the civil officers and ecclesiastics liable to civil as well as to ecclesiastical penalties.

е

The Bishop was an imperial officer for certain temporal affairs. In each city he was appointed, with three of the chief citizens, annually to inspect the public accounts, and all possessions or bequests made for public works, markets, aqueducts, baths, walls and gates, and bridges. Before him guardians of lunatics swore on the Gospels to administer their trust with fidelity, and many legal acts might be performed either in the presence of the Defensor or the bishop of the city. For the discharge of these temporal functions the bishops were reasonably answerable to the Emperor; and thus the empire acknowledged at the inspiration of Christianity a new order of magistracy.

The law limited the number of clergy to be attached to each Church. This constitution was demanded in order to check that multiplication of the clergy, which exhausted the revenues of the Church, and led to burthensome debts. In the great Church at Constantinople the numbers were

* δουλεύειν.—Cod. i. 14, 34.

Cod. i. 4, 27.

8 De Episcop. Audient.

to be reduced to 425, besides 100 ostiarii. The smaller churches were on no account to have more than they could maintain.

The State issued laws for the regulation of monasteries. None were to be established without the consent of the Bishop. The Bishop elected the superior from the community. Slaves might be admitted as well as freemen. A probation was required from all of three years. A slave, if a runaway or thief, might be claimed by his master during those three years. When a monk, he could no longer be claimed, unless he abandoned the monastic life. All were to live in common, to sleep in one chamber. If a monk wished to leave his monastery he went forth a beggar; the monastery retained all his property. If he entered into the army, it could only be into the lowest rank. No monk could leave one monastery for another.1

Such were the all-comprehending ecclesiastical laws which the Emperor claimed the power to enact. In many cases he commanded or limited the anathema or the interdict. The obedient world, including the Church, acknowledged, at least by submissive obedience, this imperial supremacy.

It is not till Justinian has thus, as it were, fulfilled his divine mission of legislating for his subjects as Christians, that he assumes his proper function, his legislation for them as Romans, and proceeds to his earthly task, the consolidation of the ancient and modern statutes of the Empire.

Roman law purely Roman.

But the legislation of Justinian, as far as it was original, in his Code, his Pandects, and in his Institutions, within its civil domain, was still almost exclusively Roman. It might seem that Christianity could hardly penetrate into the solid and well-compacted body

h 60 presbyters, 100 male 40 female deacons, 90 subdeacons, 110 readers, 25 singers. Novell. iii. There is a curious law concerning interments in Constantinople. 1000 shops, or their rent, seem to have been bestowed on the church for the burial of the poor; they had a bier and the attendance of the clergy without charge. The rich paid according to their means and will; there was a fixed payment for certain more splendid biers

and more solemn attendance.-Novell. xciii.

The Institutes acknowledge the Bishop, with the Defensor, to have certain powers of appointing guardians.-i. 20, 5. Justinian speaks of the modesty of his times.-i. 22, 1. Two clauses (2, i. 8, 9) relate to churches, &c., iii. 28, 7. Churches named.-iv. 18, 8. Rape of nuns made a capital crime.

of Roman law; or rather, the immutable principles of justice had been so clearly discerned by the inflexible rectitude of the Roman mind, so sagaciously applied by the wisdom of her great lawyers, that Christianity was content to acquiesce in those statutes, which even she might, excepting in some respects, despair of rendering more equitable. Christianity, in the Roman Empire, had entered into a temporal polity, with all its institutions long settled, its laws already framed. The Christians had in their primitive state no natural place in the order of things. That separate authority which the Church exercised over the members of its own community from its origin, and without which the loosest form of society cannot subsist, was in no way recognised by the civil power; they were the voluntary laws of a voluntary association. But, besides these special laws of their own, the Christians were in every respect subjects of the Empire. They were strangers in religion alone. After the comprehensive decree of Caracalla, they, like the rest of mankind within the pale of the Empire, became Roman citizens; and the supremacy of the State in all things which did not concern the vital principles of their religion (for which they were still bound, if the civil power should exercise compulsion, to suffer martyrdom) was acknowledged, both in the West and in the East, both before and after the conversion of Constantine.

The influence therefore of Christianity on the older laws of the Roman Empire could only be exercised through the mind of the legislator, now become Christian; and the general moral sentiment, which became more pure or elevated, might modify, and gradually mitigate, some provisions, or more rigidly enforce certain obligations. The Roman law, in its original code, might seem indeed to take a pride in resting upon its antiquity and its purely Roman character; it admits not the language, it appears even to affect a supercilious ignorance of the religion, of the people.* In the Institutes of Justinian it requires

There are several quotations from Homer, not one allusion to any of the sacred writings of Christianity.

The Institutes are without those

m

prefatory chapters of Christian legislation contained in the Code. From those chapters we pass into the Roman Code, as into another land; and it demands

keen observation to detect the Christianity of the legislator. Tribonian, the great lawyer, to whom the vast work of framing the whole jurisprudence was committed by the Emperor, has incurred the suspicion of atheism, an accusation which, just or not, is strong evidence that his work had refused to incorporate any of the statutes, and bore no signs of Christianity. The prefatory Christian. laws, though now become fundamental, are altogether extraneous to the old re-enacted system. They are recorded laws before Tribonian assumes his functions.

The Roman Law may be most conveniently considered, in connexion with the influence of Christianity, as it regards A. Persons; B. Property; and C. Crime."

sons.

Freemen and slaves.

A. The law as regards Persons comprehends the ranks Law of per- and divisions, and the relations of mankind to each other, sanctioned or recognised by the law, with the privileges, rights, and immunities it may grant, the duties it may impose on each. In nothing is the stern and Roman character of the Justinian Code more manifest than in its full recognition of slavery. Throughout, the broad distinction of mankind into freemen and slaves is the unquestioned, admitted groundwork of legislation. It declares indeed the natural equality of man, and so far is in advance of the doctrine which prevailed in the time of Aristotle, and is vindicated by that philosopher, that certain races or classes of men are pronounced by the unanswerable voice of nature, by their physical and intellectual inferiority, as designed for and irrevocably doomed to servitude. But this natural equality is absolutely and entirely forfeited by certain acknowledged disqualifications for freedom, by captivity in war, self vendition into slavery, or servile descent. Christianity had indeed exalted the slave to spiritual equality, as having the same title to the blessings, consolations, and promises of the Gospel, as capable of practising all Christian virtues, and therefore of obtaining the Christian's reward.

our closest attention to discern how far, now that he has abandoned all the language of Christianity, the spirit of the religion follows the emperor into the ancient realm.

n This in some degree differs from the division adopted by many writers from the Institutes of Justinian, under which the criminal law ranks as a branch of the law of actions or obligations.

This religious elevation could not be without influence, besides the more generous humanity to which it would soften the master, on their temporal and social position. It took them out of the class of brute beasts or inanimate things, to be transferred like cattle or other goods from one master to another, which the owner might damage or destroy with as much impunity as any other property; and placed them in that of human beings, equally under the care of Divine Providence, and gifted with the same immortality. But the legislation of the Christian Emperor went no further. It makes no claim to higher humanity; it does not attempt to despoil the pagan Emperors of the praise due to the first step made in that direction. It ascribes to the heathen sovereign, Antoninus, the great change which had placed the life of the slave under the protection of the law. Even his punishment was then restricted by legislative enactment. But the abrogation of slavery was not contemplated even as a remote possibility. A general enfranchisement seems never to have dawned on the wisest and best of the Christian writers, notwithstanding the greater facility for manumission, and the sanctity, as it were, assigned to the act, by placing it under the special superintendence of the clergy, by Constantine.

А

The law of Justinian gave indeed, or recognised, a greater value to the life of the slave. The edict Law of of Antoninus had declared the master who killed Slavery. his own slave without cause, liable to the same penalty as if he killed the slave of another." The Code of Justinian ratified the law of Constantine, which made it homicide. to kill a slave with malice aforethought; and it describes certain modes of barbarous punishment, by which, if death follows, that guilt is incurred. The Code confirms the law of Claudius against the abandonment of sick and useless slaves; it enjoins the master to send them to the public hospitals. These hospitals were open to slaves as well as to poor freemen. "In these times, and under our empire," writes Justinian, "no one must be permitted to

Caius, i. 53; Just. Instit. i. viii. 2. Constantine, in 312, had enlarged this law.-C. Theod. de emend. serv., 1. 9, 1.

VOL. I.

P Caius, i. 53.

9 Cod. Just. ix. 14.

2 B