ENGLISH DOOR

THE DIVINE HISTORY OF JESUS CHRIST

HISTORY OF CIVILIZATION IN THE FIFTH CENTURY.

CHAPTER V.

ROMAN LAW.

We have seen what roots the old religion of Rome had struck out, how their dislodgment was the work of centuries, and how the highest degree of wisdom, of courage, and of tact was necessary to stifle error with­out doing violence to human nature, to destroy Paganism without breaking the innocent symbols of the commerce between heaven and earth. But its religious belief did not make up the essence of the Roman civilization; its primitive dogma had come from the Etruscans—Greece had brought to it its fables—the conquered East had yielded her mysteries; but that which was the exclusive property of Rome was her genius for action, her destiny was to realize on earth the idea of justice and found the empire of Law.

A time arrived when Rome no longer remembered the art of conquest, but she was never to forget the secrets of government. The moment even of her deepest decline, when the barbarians revenged them­selves upon her in every place, ordered her proceedings, and debated with her the figure of her ransom—when they seemed to have entirely fettered her action—was the period in which all her power was reflected and gathered up into the codes of that legislation which was sooner or later to achieve the conquest of the bar­barians, to retain the world under her tutelage after the fall of her empire, and compel the descendants of the Visigoths, Burgundians, and Franks to seat themselves in the schools, and grow pale over the text of the Roman law. We must study now this great victory of thought over strength, and find the hidden force which bore up the Roman constitution at the beginning of the fifth century, and what were to be its respective losses or gains under the mighty blows which demolished the empire of the West.

In the first place stood the mass of jurisprudence of the classic epoch, comprising the works of the entire succession of jurisconsults from Augustus to the reigns of the Antonines. In order that no doubt might arise as to the binding force of these decisions, a well-known constitution, issued under Theodosius II and Valentinian III, in a.d. 426, laid down that in future the writings of Papinian, Paulus, Gaius, Ulpian, and Modestinus should alone have force of law; that in case of difference of opinion the view supported by the majority should prevail, or, in the case of equality, the position taken by Papinian. It might seem a rash measure to canonize, as it were, opinions, controversy, consulta­tions, often contradictory and full rather of subtlety than genius, but there may be seen in it that great principle of Tradition providentially preserved at Rome, and it is a happiness for posterity that those maxims which the disasters of the Empire might well have crumbled into dust were thus preserved, and invested with the character of inviolable law.

On the other hand stood the ever-increasing collec­tion of the constitutions of princes, and especially of Christian princes. In 429, Theodosius the Younger and Valentinian III, to remedy the confusion which had sprung up among them, appointed a commission of nine jurisconsults, or men of official rank, to make a regular compilation, in sixteen books, under their re­spective titles, of those legislative enactments which bore on public or civil life, and to leave the primitive text, as far as necessary correction and clearness would allow, free from contradictory comments. Thus the whole series of legislation of the Christian emperors was pre­served to us, and respect was shown, notwithstanding the thoroughness of the reaction which had followed them, even to the works of Julian.

Accordingly the Roman society possessed, in 430, two systems of law, and the barbarians found face to face, on the one hand ancient Paganism tempered by the phi­losophy of the jurisconsults themselves, acting, as we shall see, under Christian influences, and on the other Christianity tempered by the timidity of the emperors, who only embraced reforms already rough-hewn by their philosophic lawyers, and measured out carefully the blows they were bound to strike at the old institutions: here pagan law just gilded by the rising of Christianity —there the beginning of Christian jurisprudence still entangled in the last shades of the darkness from which the world was issuing.

We must examine these two principles in order, and the result which they had brought about. We see, on opening the text-books of the classic jurisprudence of the vaunted epoch of the Antonines, that all the lawyers whose writings Valentinian had codified, recognized still as a thing of the remote past but as supreme and permanent, the law of the Twelve Tables. They cite, comment on, and often evade it, but still did it homage in refusing to ignore, contravene, or abjure the edicts graven on its bronze by the iron hand of the decemvirs: it was still thus a master from whose scourge they sought in vain to escape. Let us sketch in a few words, not the precepts but the tendency of that ancient pagan and theocratic law-system whose authority, secular in its essence, the jurisconsults did not as yet dare con­temn. It was a half-sealed book, a collection of tradi­tions, sacramental formulas, and sacred rites, enveloping the law under the same veils as a religion—a mass of mysteries whose secret the patricians alone possessed, who as descendants of the gods could alone know and enounce law (jus; fas, what is permitted; fatum, the right, the Divine will). Law, in its primitive aspect, was the true and only recognized religion of Rome. Its first act was to deify Rome herself, who became not only the shrine and dwelling-place of an unknown genius to whom altars were raised, and whose name was known only to the initiated, but herself the mighty goddess who had altars not only in her peculiar territory, but amongst her conquered nations, and even in Asia, on the shores of the Troad. As divine, her will was justice; the law decided through her curies was legitimate if ratified by consent of the gods in the taking of the auspices, and which assumed a commerce between earth and heaven.

To give an act life and a divine character, its accom­plishment must be surrounded by rites and ceremonies. God Himself intervened in the judgments and under the strokes of the magistrate to give peace to His earth; execution was an act of sacrifice; the tribunal, as asacred place, was to be turned to the East, to be closed when the sun, type of the ray of intellect by which judgment is enlightened, had set on the earth. This powerful theocratic imprint was everywhere to be seen, and underlay all the civilization of Paganism. As Rome was supreme in her sphere, so was every father a god in his own family, a genius sent for a time here below. His will had all the features of law and resist­less destiny, admitting no limit, stretching to the right of life and death over his dependants,—over his wife, whom he could judge; his son, whom he could expose; his slave, whom he could put to death.

Authority, the presence of irresistible will in all human actions, marked Roman law, gave to it mystery, and also provoked the greatest awakening of liberty which had yet been seen. Rome’s very function, in thus overstraining her principle of authority, was to give a greater volume to the outburst of freedom, and the most remarkable sight her history offers to us is that of the rigour of the private prison, the sale of the debtor cut piecemeal, Virginia’s blood spirting over the de­cemvirs, acting as God’s incentive to that very people to show us as an example their eight-century-long delivery. This was first seen when the plebs, straining to enter upon the sacred enclosure, long defended by the patrician order, tore from their grasp in succession the connubium, the magistrate’s offices, the auspices; lastly, the very secrets of the Law, and when the freed­man Flavius stole from Appius the Actions of Law, the formulas of which that patrician had drawn up.

The movement, begun under the Republic, lived on under the Empire, which did not close, as has been erroneously supposed, the history of liberty; but the game changed, and whilst under the Republic we see the patrician city stormed and carried by the plebs, the Empire shows us every province, the whole West, be­sieging the imperial city to gain a place at the sanctuary of law and public justice. The emperor, often himself a foreigner, like Galba or Trajan, sprung from Spain, acted as their representative, as invested with procon­sular rank, and so becoming familiar with the provinces whose natural protector he was. Caracalla, after a long period of resistance and partial concession, threw down every barrier, and in proclaiming Rome the common capital, with as many citizens as she had subjects, im­pelled the Empire to its definitive destiny.

Such was the history of the enfranchisement of the plebs and of the Western provinces, and as races and men were pressing with such energy into the precinct so obstinately guarded, Justice also began to find her place there through the efforts of the praetor.

Every year that magistrate, on entering office, pro­claimed by edict the principles on which he would administer justice. He was used to interpret the iron law of the Twelve Tables with equity and clemency, to supply its lacunae, to throw light on its obscurity, and softness over its rigour; and in this commenced that struggle entered on by the magistrate against a text he was obliged to apply, regretting its harshness, yet sub­mitting to its authority while blunting its sharp edge. The praetor and jurisconsults, who also had the right of extenuating law principles, then created the Useful Actions, in order to supply what was clearly wanting in the primitive system; and the emperors, opening their minds to the light, called to their aid such men as Gaius, Ulpian, and Paulus, who were influenced by the Stoic philosophy, and supported it by their authority, not in Rome alone but throughout the Empire. The effort of human reason developed under their sanction a new law-system, in which the law of the gens stood opposed to the civil law; to the civil family, composed only of agnats, or relations on the male side, the natural family (cognatio), comprising those related through females only; to the property of the Quirites, the property by natural right, called in bonis; to succession to legitimate descendants only as established by the Twelve Tables, the right of succession in all alike to whose being nature had given the same author.

This was the work of many centuries, at last effected by the conscience-cry of the plebs and the help of philosophy in the shape of the Stoic lawyers. It was one of the greatest spectacles reason could offer, not only as showing, as in the jurisprudence of the Antonines, a triumph of good sense, of lucidity of thought, a perfect purity of form, an edifice giving with unexpected felicity space and clearness of arrangement to the former chaos of public and domestic relations, but as a first-fruit of satisfaction to humanity, as tempering woman’s lot by dower; paternal authority, by suppressing its right of life and death ; the condition of slaves, by declaring, through Antoninus Pius, to whoever could escape from his master’s rod and embrace the prince’s statue, the protection of a magistrate, who must descend from the tribunal, cover him with a fold of his robe, and compel his owner to transfer him to another more humane than himself.

While recognizing the services of human reason, and the merits of this ancient jurisprudence, we see beneath the surface what was wanting to this first effort of man’s intelligence, the vices still inevitably lurking in it, which gave it up to the time of which we treat that pagan character so difficult to eradicate. Fiction appears everywhere; a superstitious respect for a past openly belauded, but secretly disdained. The entire labour of the praetor was lavished on a succession of subterfuges by which to evade a law he dared not overturn, to escape from their inflexible Twelve Tables, not one of whose long-traced lines he dared efface. If, for instance, they only granted succession to relations on the male side, to grant it to those of defunct female descent a fiction was necessary by supposing in the formula of deliverance the new possessor to be the heir. As the old law willed that certain chattels, called mancipia, could only pass by mancipation, or by usucaption, had an article of that class been delivered to a claimant by simple tradition, and been lost before possession had been acquired by usucaption, property in it, according to strict law, was gone, yet the praetor allowed a revendication, by supposing a previous usucaption after the forms of the publician action. Roman law, again, taking no cognizance of foreigners, afforded them no action to enforce respect of their rights. The actio furti would not, for instance, lie, as, according to strict civil law, it was not open to a foreigner; but the praetor would grant it by the fiction of supposing him a Roman citizen.

Such things were calculated sooner or later to bring into contempt so essentially simple a system of law. This faithless superstition and dishonest interpretation represents what was passing in Paganism at large—maintenance of form and absence of faith. The old law stood on the same footing as the mythology. It was a mere fable (carmen serium); serious in the sense of having much which was evil on its pages, and also a mere song, in that its inspiration had ceased. Men listened to its frequent repetition, and then passed on to other and graver occupations. Not an education of some years alone, but that of an entire life, was necessary to find the way through its mazes, which again began to contain a mystery in which very few were adepts; only it was no longer the patricians who held the deposit, but the school, the family of juris­consults, the few devoted by the state to the study of law, and who alone, in diving into its recesses, could exercise that species of priestly office which Ulpian defined, Jus est ars boni et cequi cujus merito quis nos sacerdotes appellet. Ammianus Marcellinus, living at the close of the fourth century, leaves us the following | picture of the lawyers of his da :—“You would think they professed the drawing of horoscopes or unfolding the Sibylline oracles, to see the deep gravity of their faces, in loudly boasting of a science wherein one can merely grope.” So the chief vice of Paganism had not vanished; still there appeared the adepts, few in number and without the vulgar herd; philosophy had succeeded the old religions, detesting, like them, the common people—that is to say, the multitude, humanity itself. Its second vice was the maintenance of the absolute sovereignty of the state over not property only, but life, souls, and consciences, carrying out the old principle according to which Rome was divine and so was her will; and to its legitimate laws human will could find no place of resistance, as no one could be right in contradicting the gods. But a considerable change had still come about, for the name of the genius hitherto dwelling in mystery on the Capitol was at last revealed. It was sometimes named Tiberius, or Nero, or Heliogabalus, and its works were known as well. The Empire became an idolatry, of which the Emperor was priest and god. Altars were raised to him in his lifetime; his images were sent in all directions, to be greeted with light and perfume, and thousands of Christians died rather than cast on the fire at their feet some grains of frankincense. He was a true god, in fact, while living as after death, ordaining this, willing the contrary on the morrow, exercising a tyranny the more intolerable from its being exercised in a moral sphere, and suffering no other will; declaring to the Christians by the organ of the jurisconsults that their existence could not be permitted, “non licet esse vos;” crushing the state-right itself in placing the prince above the law, princeps legibus solutus; to which privi­lege it was determined that the sovereign, acceding to her the half of his rights, could also raise his Empress. The will of one thus placed above all law naturally became imperious and irresistible, and the conclusion of the jurisconsults, quod principi placuit legis habet vigorem utpote cum lege regia populus ei et in eum omne suum imperium et potestatem conferet, led to that formula so insulting to humanity wherewith princes so often have terminated their acts, “for such is our good pleasure.” Not only did the prince’s pleasure become the world’s law, but he owned beside the pontifical office, the absolute power of making and unmaking legisla­tion, and nearly the whole Roman territory. The soil of the provinces had been divided into two great parts: the tributary, under the Emperor, and the stipendiary, depending on the Roman people. In course of time the former succeeded to the latter, and thus the whole pro­perty in the provinces devolved on the sovereign so thoroughly that no private person was considered an actual proprietor, but only a stipendiary maintained and guaranteed till further notice in its use by the Imperial will. Hence no subject could complain when the most sacred treasury sacratissimum ararium claimed some portion of his goods, or when taxes, indictions, or superindictions were imposed, or the land itself distrained, as the prince only took his own. On this prin­ciple stood the fiscal system of Rome, full of exactions, which reduced the groaning provinces to such a pitch of distress that the curia responsible for the levy of the impost was gradually deserted by the decurions, whose place was filled by men of evil life and broken fortunes, by concubinous priests and their bastard offspring, since the honour had come to be looked on rather as a disgrace. The provincials, tortured, forced to sell wife and child to satisfy these requirements, began to aban­don their lands, and to call upon the barbarians in aid, assured of finding in them less exacting masters, and preferring to render them one or two thirds of the soil than be subject to a system which carried off the total of their revenues. All the confusion at the beginning of the Lower Empire, the responsibility of which has been fixed upon the Christian emperors, flowed naturally from principles long before established. When Aurelian took to himself the diadem of Persia and the pomps of the East, then Diocletian established that hierarchy of officials which was to crush the Empire with its weight, and the government in the days of its strength sowed the seeds of its ruin.

A third radical vice in Paganism, an unmistakable sign of its last catastrophe, was that terrible inequality which no effort of reason could justify. At the root of its legislation, written though it were by the immortal pen of a Gaius or an Ulpian, lay that heathen emanation principle which supposed that some men sprang from the head, others from the belly or feet of the all-pervading deity. This kept women in perpetual tutelage, not in the legitimate guardianship of her agnate alone, but in a dative tutelage restraining her capacity in the most trifling actions of civil life. It subjected the child to not only the paternal right of life and death, but to that of sale. He was open to exposal on his birth, condemned to a continual minority, whatever his age or dignity might be, deprived of every kind of property, up to the time of Constantine, except the “peculium castrense,” or military pay. It kept up the servile system, the well-known horrors of which existed not only in the heroic and mythical ages, but throughout those centuries of light and philosophical wisdom that were for so many a time of freedom. The opinions of Greek philosophers on the subject were not doubtful. Plato did not admit slavery into the Re­public, but dared not condemn it in his native city; and Aristotle gave human nature itself for its cause, saying that some were made for rule and others for obedience. Cicero held the same view. Cum autem hi famulantur qui sibi moderari nequeant nulla injuria est. “There is no injustice in making slaves of those who know not self-government.” In his admirable treatise De Officiis, the masterpiece of ancient morality, he relates, without commentary, certain cases of conscience proposed by a philosopher named Hecaton. Is a master in a famine time bound to feed his slaves? Economy says No; humanity Yes. Hecaton decides against it. Suppose one’s self adrift in a small boat with a bad slave and a good horse on board; a storm comes on, which of the two should be thrown overboard? Hecaton and Cicero will not pronounce upon it. Such was the philosophy of the best epoch of Rome, which time did not do much to modify. To come down to Libanius : in his discourse on slavery he takes care not to repeat Christian complaints about it, nor to let slip any of the old pagan traditions on the subject. Slavery is an evil common to all mortals; all men serve either their passions or their business or their duty—the peasant is the slave of wind and rain, the professor of his audience. Slaves in name are least slaves in reality, but happiest of all in knowing nothing of hunger, that pitiless master; happy in their state of careless lethargy, leaving their master the care of finding them food; and it is thus that passion and selfishness have argued in every age as to slaves of every colour.

The opinion of the philosophers became the doctrine of the jurisconsults, whose duty it was to inspire theory and reduce it to practice. The ancient law had a punishment of death for the slaughterer of a steer; but when Q. Flaminius, the senator, to amuse an abandoned youth, who was his companion, and was regret­ting at never having seen any one put to death, cut the head off one of his slaves, it was silent, having no penalty for that kind of fault. They had instituted a fine for the murder of a slave, but hastened to remedy their weakness by taking back from liberty what they had granted to slavery; and by the laws Aelia Sentia, Junia Norbana, and Fusia Caninia, they calmed the terrors of the serious, who feared revolution on seeing at some funeral games a few freedmen, clad in their caps of liberty, taking their place among citizens, by restraining the frequency of enfranchisement, and closing the city of Rome to the freed. Different orders were distinguished in the Servile ranks, such as deditii, who could never become citizens, and the Latini Juniani, who could only become citizens in certain cases. The senatus-consult of Silanian, drawn up under Claudius, had ordained torture to all his slaves upon the violent death of any man; and Tacitus paints the terrified stupor of the city when it was one day announced that a senator had died by violence, and that his four hundred slaves were to be put to the torture. Hanging a slave was forbidden, but he might die under the torment, and then his price must be paid to the master. Nourishment was due to him, and Cato tells us how a prudent head of the family should arrange the matter. “Pour two amphorae of sweet wine into a cask; add two of very sharp vinegar, and as much boiled wine, to the dilution of two-thirds, with fifty amphorae of fresh water. Stir up the whole with a stick for five consecutive days, and then pour in sixty-four measures of sea-water.” Paganism appears clearly here, and the bitter beverage that Cato used to give his slaves reminds us of a certain sponge of vinegar and gall which another Roman, a soldier, was to offer on the lance’s point to that other slave who was dying on a cross for the redemp­tion of slaves.

As to their housing, Columella prescribed “ergastula subterranea”, in which openings were to be contrived out of reach of the hand, either for the purpose of pre­venting escape, or of cutting off the sight of the world, which was denied them. Those employed at the mill carried a large wheel round their necks to prevent their raising to the mouth a handful of the flour that they spent the day in grinding. This deprives the Chinese of the honour of having invented their peculiar mode of torture, and it was the mildest method of treatment, as the law of Antonine had not taken away the right of making eunuchs of slaves, and they were to be counted by troops, greges puerorum, as well as crowds of gladiator-slaves who assembled in the lanista, and took the terrible oath to let themselves be burnt, fettered, scourged, and slaughtered, uri, vinciri, verberari, ferroque necari, if  not men at least merchandise, subject-matter for contracts of sale and purchase, and therefore obliging, in some manner, the attention of the jurisconsults. Gaius, in examining the difficulties which might arise in certain cases, in declaring a contract to be one of sale, or merely of hiring, proposed the following question:—“If I tender you a number of gladiators at the rate of twenty denarii ahead for those who survive, as wages for their toils, and a thousand ahead for the dead and wounded, is there a sale or a letting? The prevailing opinion is that, as to the survivors, it is a hiring; as to dead or wounded a sale, the event deciding it, as if each slave was conditionally an object either of sale or hire, for there is no doubt that either contract may be subject to conditions.” It is a question which is the most wonderful, the calm of the lawyer, or the horror of the prevailing manners. And those manners did not soften; we find Trojan, on his return from Dacia, putting to death ten thousand gladiators. Fear was expressed lest oxen should fail, but no one seemed to fear a scarcity of gladiators. The Roman law of the classic period, as modified by the legislation of the Antonines, was certainly like the Coliseum, a splendid monument, wherein men were thrown to lions! At the beginning of the fifth century, all this jurisprudence still had force, and had just been invigorated by the law of Citations, under Valentinian III, but happily for a Christian period, a rival system was rising in the code inaugurated by Theodosius.

Christianity had early penetrated the Empire, coming as a doctrine that hated fiction, unable by reason of its liberty to suffer enslavement of conscience, or by its charity all those social inequalities which were an outrage to nature. Yet it did not aspire to change violently the world’s aspect, but rather to win its point slowly and with patience, and like the Saviour to destroy slavery in becoming itself a slave, formam servi accipiens. While Plato daily thanked the gods that he had been born male rather than female, free and not a slave, a Greek instead of a barbarian, it proclaimed by St. Paul that there was no longer male nor female, free nor slave, Greek nor barbarian, but one body in Christ Jesus, a saying strong enough to effect as ages passed the great changes which God had determined. It could not tolerate imperial pretensions over the conscience of mankind, and whilst praying for its persecutors proclaimed that God rather than man was to be obeyed. Finally it repulsed all the pagan fictions, but yet in its contempt for a law which was reserved for a little band of experts, and hidden perforce from the multitude, it did not profess to despise the Roman law-system. As was declared in the Apostolic Constitutions, “God did not will that His justice should be shown forth only by us, but let it shine in the Roman laws;” and St. Augustine said, “Leges Romanorum divinitus per ora principum emanarunt.” It received these laws with admiration, recognizing in them the light which lightens every man coming into the world that he might know and adore his God, and was forced to toil with patience to reform in accordance with its principles the legisla­tion whose vices we have examined. Its presence was early suspected and soon perceived, but this is not the place for showing how the new society toiled in its catacombs, hidden deep under another hostile society whose reform it had entered upon; how in every rank of public and domestic life, in the senate and the foulest ergastula, it knew how to mould disciples and to en­lighten and modify the manners of the time. It has been pointed out how St. Paul, by his speech on Areopagus, his dispute with Stoics and Epicureans, his apology at Corinth before the Roman magistrate, Annaeus Gallio, must have roused the opinions of his contemporaries and of those Greeks and philosophers so greedy of novelty; in particular, Gallio must have informed his beloved brother Seneca, who dedicated to him his treatises De Ira and De Vita Beata, of the fame and doctrines of that Graecized Jew who went to make proselytes at Rome in the very palace of Nero. Seneca’s own doctrines bear witness to the necessary contact between Pagan and Christian philosophy. His stoicism put in the place of the ancient fatum, the third arbiter of our destinies, a Providence, a Divine Father, to honour and obey; it gave him faith in the soul’s immortality, and the conflict here below between spirit and flesh, an enemy to be conquered only by Divine help, namely grace, and filled him with a singular pity for all human sorrow, and especially for his enslaved fellow- creature. It is pleasant to believe that this Stoic bore the impress of a Christian philosopher, who was at Rome in the time of Seneca, and was destined to die there more gloriously than himself.

It seems inevitable that the Christians, daily increas­ing in numbers, filling the forum, the senate, and the army, with the apologies of Quadratus, Bishop of Athens, of Athenagoras, St. Justin, Tertullian, and the senator Apollonius, circulating through every rank of society, should influence the Stoic philosophy and the juris­consults through it. Their admission to the councils of Alexander Severus, who adored amongst his lares the image of Christ, and inscribed in golden letters on his palace walls the maxims of Christianity, points to the growing force of the new religion. The plagiarism of the jurisconsults from its sources, though denied on account of their inveterate hostility, was but the last resource of a baffled enemy, trying to disarm truth by borrowing its principles, which were attracting every heart. Julian meant this in advising the pagans about him to imitate the Christian priests and open hospitals; and the jurisconsults laboured to disarm the Gospel by infusing it into Roman law, that there might remain no excuse for reforming a society open to legitimate pro­gress, or to destroy a religion so capable of wholesome reform.

When Christianity ascended the throne with Constantine, far from exacting too much and assuming empire as a conqueror, it continued its course with the same calmness. Constantine acted with caution, retaining the title of Supreme Pontiff, and still issuing edicts as to the manner of consulting the auspices. The tactics of his successors were similar: one advanced, another drew back, but all hesitated, and the Theodosian Code still preserved slavery, divorce, concubinage, inequality between man and wife, and father and son, though three great novelties found place in it. In the first place an effort was made to give to law a character of publicity and sincerity. Under Constantine the sacramental formulas relating to wills, stipulations, and other acts of civil life, the sacramental syllables, called by the Christian emperors aucupatio syllabarum, as well as the whole system of juridical subtleties, fell to the ground ; and by determining the names of the jurists whose decisions should have force, and uniting in one code, as was the case under Theodosius and Valentinian, the scattered edicts of the Christian princes, a popular and accessible form was given to the law. Secondly, the temporal and spiritual orders were sepa­rated, and in this respect advance was less easy, for, as Constantine had retained the title of pontiff, his successors were willing to believe that the religion of the Empire alone had changed, and not their old su­premacy over the conscience. The Church had to labour perseveringly in preventing their usurpation of the right of convoking and presiding in her councils, saying in the words of Lucifer of Cagliari, “What! are we to respect your diadems, bracelets, and earrings, and despise the Creator?” The declaration wrung from Theodosius and Valentinian, “ It is worthy of a prince’s majesty to pronounce himself bound by the laws,” ended the struggle by the victory of the Church, and then the monarch became subject to law, and the temporal power took up the less splendid but firmer position assigned it in the Gospel: “Let him who would be first be the servant of all.” In the last place, the hands of the emperors touched with healing the three great wounds humanity bore in the injury done to women, children, and slaves. Constantine gave mothers a larger share in succession to their children, forbade exposing infants, and punished the child murderer in the same measure as the parricide. He abolished crucifixion as a punishment for slaves, issued an edict against the gladiatorial combats, “not willing,” as he said, “such bloody sights in the midst of the Peace of the Empire,” and condemned to death the master who had killed a slave. “Let masters use their right with clemency, and let that man be held a murderer who shall have slain his slave voluntarily by blows of rods or of stones, or by mortally wounding him with a dart, who shall have hung him by a halter, or by cruel order had him thrown into an abyss, or made him drink poison, or caused savage beasts to tear his body, or branded his flesh with burning coals, or in frightful torment caused life to flee from his bloody and foam-flecked limbs with a fierceness worthy only of barbarians.”  This eloquent law, dated a.d. 319, well expresses the Christian indignation at the horrors of slavery, and shows the Church, just clothed with the purple, hastening to make a law in favour of her enslaved children.

In this manner did the Theodosian Code remedy the triple outrage offered by the old system to liberty, truth, and humanity, in slavery and domestic inequality. It was no wonder that the reading, by the Prefect of Rome and the consuls, of the edict inaugurating the Theodosian Code throughout the Empire was received by the senate with magnificent applause. The last minutes of its sittings contained this ratification, and its acclamations must have penetrated to the camp of the barbarians, already established in a.d. 438, on Roman territory. At the very moment when the Vandals were masters of Africa, the Burgundians and Visigoths of Gaul and Spain, and Attila was advancing at the head of his Huns, by a sublime coincidence the legislation was proclaimed which was destined to master the future. Its fame was to reach those bar­barians, whose kings would seek to know the great idea of Roman law which was never to abandon them. The edict of Theodosius, in the year 500, proclaimed the Theodosian Code the law of the Ostrogoths; Alaric gave his subjects, a few years later, the “Breviarium Alaricanum,” extracted from the same code; and in 534 the “Papiani Responsa,” in great measure collected from it again, appeared for the use of the Roman subjects of the Burgundians. Nor was its destiny to end there; it was taught throughout Gaul, particularly in the schools of Clermont, during the sixth and seventh centuries. Carried into England to the school of York, into Germany in the peaceful train of conquering Boniface, it was to serve as basis to the capitularies of Frankish kings, and thus penetrating into all the barbarian legislation, to give it temper, enlightenment, and system.

It is true that the barbarian chiefs were no less taken by its faults than by its merits, and did not shrink from assuming the heirship of the Roman emperors with regard to their subjects’ goods. In this spirit Frederick Barbarossa caused his lawyers to decide, at Roncaglia, that as Trajan’s heir he was absolute master of his subjects’ property; the same doctrine was adopted by Louis XIV in speaking of his royal goods, “of which part are comprised in our demesne, the rest left by our good pleasure in the hands of our subjects;” and such pagan traditions have been handed down to become, under other forms, the gravest danger of the present day.

The last traditions of divorce in the family were to disappear in the great struggle of the Papacy against Philip Augustus and Henry IV. Slaves gradually were to become serfs, and serfs freemen. Lastly, the great principle of the separation of the spiritual and temporal orders was to gain its victory at the moment when Gregory VII gave out his dying cry, “I fought for justice, and therefore am dying in exile.” He died, but the principle which he supported so vigorously gained a stronger life, for the ideas which save the human race are those which suffer all that is mortal in them to perish.

Roman law was to rule the world on condition of the fall of the Roman Empire; nothing less was required to dissipate the mist of legal fiction and the remnant of that deep discord which was rooted in the old system. The swords of Attila and Odoacer were to banish the lingering phantom of the imperial throne, and to give breathing space to the world, to revive the soul of the old law on that principle of natural equity which began its struggle in the blood of Virginia and on the Sacred Hill, continued it by tribune’s word and praetor’s edict, found a new power in the Stoic philosophy, and its ultimate triumph in Christianity. When stripped of its trappings of gold and purple, of imperial pomp and human circum­stance, it issued forth lord of the world at the moment of its apparent dissolution.

CHAPTER VI.

PAGAN LITERATURE.—I. POETRY.