which Theodosius II. caused to be made by several jurists between the years 429 and 438. It contains the laws of the Christian emperors from Constantine down, adulterated with many heathen elements; and it was sanctioned by Valentinian III. for the western empire. A hundred years later, in the flourishing period of the Byzantine state-church despotism, Justinian I., who, by the way, cannot be acquitted of the reproach of capricious and fickle law-making, committed to a number of lawyers, under the direction of the renowned Tribonianus, the great task of making a complete revised and digested collection of the Roman law from the time of Hadrian to his own reign; and thus arose, in the short period of seven years, (527-534,) through the combination of the best talent and the best facilities, the celebrated CODEX JUSTINIANEUS, which thenceforth became the universal law of the Roman empire, the sole text-book in the academies at Rome, Constantinople, and Berytus, and the basis of nearly all the legal relations of Christian Europe to this day.†

*

* Tribonianus, a native of Side in Paphlagonia, died 546, was an advocate and a poet, and rose, by his talents and the favor of Justinian, to be Quaestor, Consul, and at last Magister officiorum. Gibbon compares him, both for his comprehensive learning and administrative ability, and for his enormous avarice and venality, with Lord Bacon. But in one point these statesmen were very different: while Bacon was a decided, Christian in his convictions, Tribonianus was accused of pagan proclivities and of atheism. In a popular tumult in Constantinople, the emperor was obliged to dismiss him, but found him indispensable, and soon restored him.

The complete Codex Justinianeus, which has long outlasted the conquests of that Emperor, (as Napoleon's Code has outlasted his,) comprises properly three separate works: (1) The Institutiones, an elementary text-book of jurisprudence, of the year 533. (2.) The Digesta or Pandectae (rávdira, complete repository,) an abstract of the spirit of the whole Roman jurisprudence, according to the decisions of the most distinguished jurists of the earlier times, composed in 530-533. (3) The Codex proper, first prepared in 528 and 529, but in 534 reconstructed, enlarged, and improved, and hence called Codex repetitae praelectionis; containing four thousand six hundred and fortyeight imperial ordinances, in seven hundred and sixty-five titles, in chronological order. To these is added, (4.) A later Appendix: Novellae constitutiones (vezpai dizrāžus), or simply Novellae (a barbarism); that is, the New Code, or one hundred and sixty-eight decrees of Justinian subsequently collected, from the 1st of January 535, to his death in 565, mostly in Greek, or in both Greek and Latin. Excepting some of the novels of Justinian, the codex was composed in the Latin language, which Justinian and Trebonianus understood;

This body of Roman law* is an important source of our knowledge of the Christian life in its relations to the state, and its influence upon it. It is, to be sure, in great part, the legacy of pagan Rome, which was constitutionally endowed with legislative and administrative genius, and thereby, as it were, predestined to universal empire. But it received essential modification through the orientalizing change in the character of the empire, from the time of Constantine, through the infusion of various Germanic elements, through the influence of the law of Moses, and, in its best points, through the spirit of Christianity. The church it fully recognises as a legitimate institution, and of divine authority, and several of its laws were enacted at the direct instance of bishops. So the "Common Law," the unwritten traditional law of England and America, though descending from the Anglo-Saxon times, therefore, from heathen Germandom, has ripened under the influence of Christianity and the church, and betrays this influence even far more plainly than the Roman code.

The benign effect of Christianity on legislation in the GræcoRoman empire is especially noticeable in the following points:

1. In the treatment and elevation of woman. From the beginning Christianity laboured, primarily in the silent way of fact, for the elevation of the female sex from the degraded, slavish position, which it occupied in the heathen world;† and even in this period it produced such illustrious models of female virtue as Nonna, Anthusa, and Monica, who commanded the but afterwards, as this tongue died out in the East, it was translated into Greek, and sanctioned in this form by the Emperor Phocas in 600. The emperor Basil, the Macedonian, in 876 caused a Greek abstract (тpóxuper tür ru) to be prepared, which, under the name of the Basilicae, gradually supplanted the book of Justinian in the Byzantine empire. The Pandects have narrowly escaped destruction. Most of the editions and manuscripts of the west, (not all, as Gibbon says,) are taken from the Codex Florentinus, which was transcribed in the beginning of the seventh century, at Constantinople, and afterwards carried by the vicissitudes of war and trade to Amalfi, to Pisa, and in 1411 to Florence.

* Called Corpus juris Romani or Corpus juris civilis, in distinction from Corpus juris canonici, the Roman Catholic Church law, which is based chiefly on the canons of the ancient councils, as the civil law is upon the rescripts and edicts of the emperors.

† See Schaff's History of the Christian Church, during the first three centuries, 91.

highest respect of the heathens themselves. The Christian emperors pursued this work, though the Roman legislation stops considerably short of the later Germanic in regard to the rights of woman. Constantíne, in 321, granted to women the same right as men to control their property, except in the sale of their landed estates. At the same time, from regard to their modesty, he prohibited the summoning them in person before the public tribunal. Theodosius I., in 390, was the first to allow the mother a certain right of guardianship, which had formerly been entrusted exclusively to men. Theodosius II., in 439, interdicted, but unfortunately with little success, the scandalous trade of the lenones, who lived by the prostitution of women, and paid a considerable license tax to the state.* Woman received protection in various ways against the beastly passion of man. The rape of consecrated virgins and widows was made punishable, from the time of Constantine, with death.†

2. In the matrimonial legislation Constantine gave marriage its due freedom by abolishing the old Roman penalties against celibacy and childlessness. On the other hand, marriage now came to be restricted under heavy penalties, by the introduction of the Old Testament prohibitions of marriage within certain degrees of consanguinity, which subsequently were arbitrarily extended even to the relation of cousin down to the third remove.§ Justinian forbade also the marriage between a god-parent and god-child, on the ground of spiritual kinship. And better than all, the dignity and sanctity of marriage were now protected by restrictions upon the boundless liberty of divorce, which had obtained from the time of Augustus, and had vastly hastened the decay of public morals. Still, the strict view of the fathers, who, following the word of Christ, recognised adultery alone as a sufficient ground of divorce, could not be carried out in the state. The legislation of the

*Cod. Theod. lib. xv. tit. 8; de lenonibus.

† C. Theod. ix. 24; de raptu virginum et viduarum (probably nuns and deaconesses.)

C. Theod. viii. 16, 1. Comp. Euseb. Vit. Const. iv. 26.

C. Theod. iii. 12; de incestis nuptiis.

C. Theod. iii. 16; de repudiis. Hence Jerome, says in view of this, Ep.

emperors in this matter wavered between the licentiousness of Rome and the doctrine of the church. So late as the fifth. century we hear a Christian author complain that men exchange wives as they would garments, and that the bridal chamber is exposed to sale like a shoe on the market. Justinian attempted to bring the public laws up to the wish of the church, but found himself compelled to relax them; and his successor allowed divorce even on the ground of mutual consent.* Concubinage was forbidden from the time of Constantine, and adultery punished as one of the grossest crimes.† Yet here, also, pagan habit ever and anon reacted in practice, and even the law seems to have long tolerated the wild marriage, which rested only on mutual agreement, and was entered into without covenant, dowry, or ecclesiastical sanction.‡ Solemn

30 (al. 84) ad Oceanum: "Aliae sunt leges Caesarum, aliae Christi; aliud Papinianus [the most celebrated Roman jurist, died a. D. 212,] aliud Paulus noster præcipit."

* Gibbon : "The dignity of marriage was restored by the Christians. . . . The Christian princes were the first who specified the just causes of a private divorce; their institutions, from Constantine to Justinian, appear to fluctuate between the custom of the empire and the wishes of the church, and the author of the Novels too frequently reforms the jurisprudence of the Code and the Pandects. . . . The successor of Justinian yielded to the prayers of his unhappy subjects, and restored the liberty of divorce by mutual consent."

In a law of 326, it is called, "facinus atrocissimum, scelus immane." Cod. Theod. I. ix. tit. 7, 1. 1 sq. And the definition of adultery, too, was now made broader. According to the old Roman law, the idea of adultery on the part of the man was limited properly to illicit intercourse with the married lady of a free citizen, and was thought punishable, not so much for its own sake, as for its encroachment on the rights of another husband. Hence Jerome says, 1. c., of the heathen: “Apud illos viris impudicitiae frena laxantur, et solo stupro et adulterio condemnato passim per lupanaria et ancillulas libido permittitur; quasi culpam dignitas faciat, non voluntas. Apud nos quod non licet feminis, aeque non licet viris, et eadem servitus pari conditione censetur." Yet the law, even under the Christian emperors, still excepted carnal intercourse with a female slave from adultery. Thus the state here also stopped short of the church, and does to this day in countries where the institution of slavery exists.

Even a council at Toledo, in 398, conceded so far on this point, as to decree, can. 17: "Si quis habens uxorem fidelis concubinam habeat, non communicet. Ceterum is, qui non habet uxorem et pro uxore concubinam habeat, a communione non repellatur, tantum ut unius mulieris aut uxoris aut concubinæ, ut ei placuerit, sit conjunctione contentus. Alias vero vivens abjiciatur donec desinat et per poenitentiam revertatur."

ization by the church was not required by the state as the condition of a legitimate marriage till the eighth century. Second marriage, also, and mixed marriages with heretics and heathens, continued to be allowed, notwithstanding the disapproval of the stricter church teachers; only marriage with Jews was prohibited, on account of their fanatical hatred of the Christians.*

3. The power of fathers over their children, which according to the old Roman law extended even to their freedom and life, had been restricted by Alexander Severus, under the influence of the monarchical spirit, which is unfavourable to private jurisdiction, and was still further limited under Constantine. This emperor declared the killing of a child by its father, which the Pompeian law left unpunished, to be one of the greatest crimes.† But the cruel and unnatural practice of exposing children and selling them into slavery continued for a long time, especially among the labouring and agricultural classes. Even the indirect measures of Valentinian and Theodosius I. could not eradicate the evil. Theodosius, in 391, commanded that children, which had been sold as slaves by their father from poverty, should be free, and that without indemnity to the purchasers; and Justinian, in 529, gave all exposed children, without exception, their freedom.‡

4. The Institution of Slavery.

The institution of slavery remained throughout the empire, and is recognised in the laws of Justinian as altogether legitimate. The purchase and sale of slaves for from ten to seventy pieces of gold, according to their age, strength, and

Cod. Theod. iii. 7, 2; C. Justin. i. 9, 6. A proposal of marriage to a nun was even punished with death, (ix. 25, 2.)

†A. D. 318; Valentinian did the same in 374. Cod. Theod. ix. tit. 14 and 15. Comp. the Pandects, lib. xlviii. tit. 8, 1. ix.

Cod. Theod. iii. 3, 1. Cod. Just. iv. 43, 1; viii. 52, 3. Gibbon says: "The Roman empire was stained with the blood of infants, till such murders were included, by Valentinian and his colleagues, in the letter and spirit of the Cornelian law. The lessons of jurisprudence and Christianity had been inefficient to eradicate this inhuman practice, till their gentle influence was fortified by the terrors of capital punishment."

|| Instit. lib. i. tit. 5-8. Digest. 1. i. tit. 5 and 6.