The church laws of the Christian emperors from Constantine to Justinian, collected in the Codex Theodosianus of the year 438 (edited, with a learned commentary, by Jac. Gothofredus, Lyons, 1668, in six vols. fol.; afterwards by J. D. Ritter, Lips. 1736, in seven vols.; and more recently, with newly discovered books and fragments, by G. Haenel, Bonn, 1842), and in the Codex Justinianeus of 534 (in the numerous editions of the Corpus juris civilis Romani). Also Eusebius: Vita Constant., and H. Eccl. l. x. On the other hand, the lamentations of the church fathers, especially Gregory Naz., Chrysostom, and Augustine (in their sermons), over the secularized Christianity of their time.
C. G. de Rhoer: Dissertationes de effectu religionis Christianae in jurisprudentiam Romanam. Groning. 1776. Martini: Die Einführung der christl. Religion als Staatsreligion im röm. Reiche durch Constantin. Münch. 1813. H. O. de Meysenburg: De Christ. religionis vi et effectu in jus civile. Gött. 1828. C. Riffel (R.C.): Gesch. Darstellung des Verhältnisses zwischen Kirche u. Staat. Mainz. 1838, vol. i. Troplong: De l’influence du Christianisme sur le droit civil des Romains. Par. 1843. P. E. Lind: Christendommens inflydelse paa den sociale forfatning. Kjobenh. 1852. B. C. Cooper: The Free Church of Ancient Christendom and its Subjugation by Constantine. Lond. 1851(?)
Comp. also Gibbon, chap. xx. Schröckh, several sections from vol. v. onward. Neander, iii. 273-303. Milman, Anc. Christ. Book iv. ch. 1.
13. The New Position of the Church in the Empire
The previous chapter has shown us how Christianity gradually supplanted the Graeco-Roman heathenism and became the established religion in the empire of the Caesars. Since that time the church and the state, though frequently jarring, have remained united in Europe, either on the hierarchical basis, with the temporal power under the tutelage of the spiritual, or on the caesaro-papal, with the spiritual power merged in the temporal; while in the United States of America, since the end of the eighteenth century, the two powers have stood peacefully but independently side by side. The church could now act upon the state; but so could the state act upon the church; and this mutual influence became a source of both profit and loss, blessing and curse, on either side.
The martyrs and confessors of the first three centuries, in their expectation of the impending end of the world and their desire for the speedy return of the Lord, had never once thought of such a thing as the great and sudden change, which meets us at the beginning of this period in the relation of the Roman state to the Christian church. Tertullian had even held the Christian profession to be irreconcilable with the office of a Roman emperor. Nevertheless, clergy and people very soon and very easily accommodated themselves to the new order of things, and recognized in it a reproduction of the theocratic constitution of the people of God under the ancient covenant. Save that the dissenting sects, who derived no benefit from this union, but were rather subject to persecution from the state and from the established Catholicism, the Donatists for an especial instance, protested against the intermeddling of the temporal power with religious concerns. The heathen, who now came over in a mass, had all along been accustomed to a union of politics with religion, of the imperial with the sacerdotal dignity. They could not imagine a state without some cultus, whatever might be its name. And as heathenism had outlived itself in the empire, and Judaism with its national exclusiveness and its stationary character was totally disqualified, Christianity must take the throne.
The change was as natural and inevitable as it was great. When Constantine planted the standard of the cross upon the forsaken temples of the gods, he but followed the irresistible current of history itself. Christianity had already, without a stroke of sword or of intrigue, achieved over the false religion the internal victory of spirit over matter, of truth over falsehood, of faith over superstition, of the worship of God over idolatry, of morality over corruption. Under a three hundred years’ oppression, it had preserved its irrepressible moral vigor, and abundantly earned its new social position. It could not possibly continue a despised sect, a homeless child of the wilderness, but, like its divine founder on the third day after his crucifixion, it must rise again, take the reins of the world into its hands, and, as an all-transforming principle, take state, science, and art to itself, to breathe into them a higher life and consecrate them to the service of God. The church, of course, continues to the end a servant, as Christ himself came not to be ministered unto, but to minister; and she must at all times suffer persecution, outwardly or inwardly, from the ungodly world. Yet is she also the bride of the Son of God, therefore of royal blood; and she is to make her purifying and sanctifying influence felt upon all orders of natural life and all forms of human society. And from this influence the state, of course, is not excepted. Union with the state is no more necessarily a profanation of holy things than union with science and art, which, in fact, themselves proceed from God, and must subserve his glory.
On the other hand, the state, as a necessary and divine institution for the protection of person and property, for the administration of law and justice, and for the promotion of earthly weal, could not possibly persist forever in her hostility to Christianity, but must at least allow it a legal existence and free play; and if she would attain a higher development and better answer her moral ends than she could in union with idolatry, she must surrender herself to its influence. The kingdom of the Father, to which the state belongs, is not essentially incompatible with the church, the kingdom of the Son; rather does “the Father draw to the Son,” and the Son leads back to the Father, till God become “all in all.” Henceforth should kings again be nursing fathers, and queens nursing mothers to the church, (Isa_49:23) and the prophecy begin to be fulfilled: “The kingdoms of this world are become the kingdoms of our Lord and of his Christ, and he shall reign forever and ever.” (Rev_11:15)
The American separation of church and state, even if regarded as the best settlement of the true relation of the two, is not in the least inconsistent with this view. It is not a return to the pre-Constantinian basis, with its spirit of persecution, but rests upon the mutual reverential recognition and support of the two powers, and must be regarded as the continued result of that mighty revolution of the fourth century.
But the elevation of Christianity as the religion of the state presents also an opposite aspect to our contemplation. It involved great risk of degeneracy to the church. The Roman state, with its laws, institutions, and usages, was still deeply rooted in heathenism, and could not be transformed by a magical stroke. The christianizing of the state amounted therefore in great measure to a paganizing and secularizing of the church. The world overcame the church, as much as the church overcame the world, and the temporal gain of Christianity was in many respects cancelled by spiritual loss. The mass of the Roman empire was baptized only with water, not with the Spirit and fire of the gospel, and it smuggled heathen manners and practices into the sanctuary under a new name. The very combination of the cross with the military ensign by Constantine was a most doubtful omen, portending an unhappy mixture of the temporal and the spiritual powers, the kingdom which is of the earth, and that which is from heaven. The settlement of the boundary between the two powers, which, with all their unity, remain as essentially distinct as body and soul, law and gospel, was itself a prolific source of errors and vehement strifes about jurisdiction, which stretch through all the middle age, and still repeat themselves in these latest times, save where the amicable American separation has thus far forestalled collision.
Amidst all the bad consequences of the union of church and state, however, we must not forget that the deeper spirit of the gospel has ever reacted against the evils and abuses of it, whether under an imperial pope or a papal emperor, and has preserved its divine power for the salvation of men under every form of constitution. Though standing and working in the world, and in many ways linked with it, yet is Christianity not of the world, but stands above it.
Nor must we think the degeneracy of the church began with her union with the state. Corruption and apostasy cannot attach to any one fact or personage, be he Constantine or Gregory I. or Gregory VII. They are rooted in the natural heart of man. They revealed themselves, at least in the germ, even in the apostolic age, and are by no means avoided, as the condition of America proves, by the separation of the two powers. We have among ourselves almost all the errors and abuses of the old world, not collected indeed in any one communion, but distributed among our various denominations and sects. The history of the church presents from the beginning a twofold development of good and of evil, an incessant antagonism of light and darkness, truth and falsehood, the mystery of godliness and the mystery of iniquity, Christianity and Antichrist. According to the Lord’s parables of the net and of the tares among the wheat, we cannot expect a complete separation before the final judgment, though in a relative sense the history of the church is a progressive judgment of the church, as the history of the world is a judgment of the world.
14. Rights and Privileges of the Church. Secular Advantages
The conversion of Constantine and the gradual establishment of Christianity as the religion of the state had first of all the important effect of giving the church not only the usual rights of a legal corporation, which she possesses also in America, and here without distinction of confessions, but at the same time the peculiar privileges, which the heathen worship and priesthood had heretofore enjoyed. These rights and privileges she gradually secured either by tacit concession or through special laws of the Christian emperors as laid down in the collections of the Theodosian and Justinian Codes. These were limited, however, as we must here at the outset observe, exclusively to the catholic or orthodox church. The heretical and schismatic sects without distinction, excepting the Arians during their brief ascendency under Arian emperors, were now worse off than they had been before, and were forbidden the free exercise of their worship even under Constantine upon pain of fines and confiscation, and from the time of Theodosius and Justinian upon pain of death. Equal patronage of all Christian parties was totally foreign to the despotic uniformity system of the Byzantine emperors and the ecclesiastical exclusiveness and absolutism of the popes. Nor can it be at all consistently carried out upon the state-church basis; for every concession to dissenters loosens the bond between the church and the state.
The immunities and privileges, which were conferred upon the catholic church in the Roman empire from the time of Constantine by imperial legislation, may be specified as follows:
1. The exemption of the clergy from most public burdens.
Among these were obligatory public services, such as military duty, low manual labor, the bearing of costly dignities, and in a measure taxes for the real estate of the church. The exemption, which had been enjoyed, indeed, not by the heathen priests alone, but at least partially by physicians also and rhetoricians, and the Jewish rulers of synagogues, was first granted by Constantine in the year 313 to the catholic clergy in Africa, and afterwards, in 319, extended throughout the empire. But this led many to press into the clerical office without inward call, to the prejudice of the state; and in 320 the emperor made a law prohibiting the wealthy from entering the ministry, and limiting the increase of the clergy, on the singular ground, that “the rich should bear the burdens of the world, the poor be supported by the property of the church.” Valentinian I. issued a similar law in 364. Under Valentinian II. and Theodosius I. the rich were admitted to the spiritual office on condition of assigning their property to others, who should fulfill the demands of the state in their stead. But these arbitrary laws were certainly not strictly observed.
Constantine also exempted the church from the land tax, but afterwards revoked this immunity; and his successors likewise were not uniform in this matter. Ambrose, though one of the strongest advocates of the rights of the church, accedes to the fact and the justice of the assessment of church lands; but the hierarchy afterwards claimed for the church a divine right of exemption from all taxation.
2. The enrichment and endowment of the church.
Here again Constantine led the way. He not only restored (in 313) the buildings and estates, which had been confiscated in the Diocletian persecution, but granted the church also the right to receive legacies (321), and himself made liberal contributions in money and grain to the support of the clergy and the building of churches in Africa, in the Holy Land, in Nicomedia, Antioch, and Constantinople. Though this, be it remembered, can be no great merit in an absolute monarch, who is lord of the public treasury as he is of his private purse, and can afford to be generous at the expense of his subjects. He and his successors likewise gave to the church the heathen temples and their estates and the public property of heretics; but these more frequently were confiscated to the civil treasury or squandered on favorites. Wealthy subjects, some from pure piety, others from motives of interest, conveyed their property to the church, often to the prejudice of the just claims of their kindred. Bishops and monks not rarely used unworthy influences with widows and dying persons; though Augustine positively rejected every legacy, which deprived a son of his rights. Valentinian I. found it necessary to oppose the legacy-hunting of the clergy, particularly in Rome, with a law of the year 370, and Jerome acknowledges there was good reason for it. The wealth of the church was converted mostly into real estate, or at least secured by it. And the church soon came to own the tenth part of all the landed property. This land, to be sure, had long been worthless or neglected, but under favorable conditions rose in value with uncommon rapidity. At the time of Chrysostom, towards the close of the fourth century, the church of Antioch was strong enough to maintain entirely or in part three thousand widows and consecrated virgins besides many poor, sick, and strangers. The metropolitan churches of Rome and Alexandria were the most wealthy. The various churches of Rome in the sixth century, besides enormous treasures in money and gold and silver vases, owned many houses and lands not only in Italy and Sicily, but even in Syria, Asia Minor, and Egypt. And when John, who bears the honorable distinction of the Almsgiver for his unlimited liberality to the poor, became patriarch of Alexandria (606), he found in the church treasury eight thousand pounds of gold, and himself received ten thousand, though be retained hardly an ordinary blanket for himself, and is said on one occasion to have fed seven thousand five hundred poor at once.
The control of the ecclesiastical revenues vested in the bishops. The bishops distributed the funds according, to the prevailing custom into three or four parts: for themselves, for their clergy, for the current expenses of worship, and for the poor. They frequently exposed themselves to the suspicion of avarice and nepotism. The best of them, like Chrysostom and Augustine, were averse to this concernment with earthly property, since it often conflicted with their higher duties; and they preferred the poverty of earlier times, because the present abundant revenues diminished private beneficence.
And most certainly this opulence had two sides. It was a source both of profit and of loss to the church. According to the spirit of its proprietors and its controllers, it might be used for the furtherance of the kingdom of God, the building of churches, the support of the needy, and the founding of charitable institutions for the poor, the sick, for widows and orphans, for destitute strangers and aged persons, or perverted to the fostering of indolence and luxury, and thus promote moral corruption and decay. This was felt by serious minds even in the palmy days of the external power of the hierarchy. Dante, believing Constantine to be the author of the pope’s temporal sovereignty, on the ground of the fictitious donation to Sylvester, bitterly exclaimed:
“Your gods ye make of silver and of gold;
And wherein differ from idolaters,
Save that their god is one — yours hundred fold?
Ah, Constantine! what evils caused to flow,
Not thy conversion, but that plenteous dower
Thou on the first rich Father didst bestow!”
15. Support of the Clergy
3. The better support of the clergy was another advantage connected with the new position of Christianity in the empire.
Hitherto the clergy had been entirely dependent on the voluntary contributions of the Christians, and the Christians were for the most part poor. Now they received a fixed income from the church funds and from imperial and municipal treasuries. To this was added the contribution of first-fruits and tithes, which, though not as yet legally enforced, arose as a voluntary custom at a very early period, and probably in churches of Jewish origin existed from the first, after the example of the Jewish law. (Lev_27:30-33; Num_18:20-24; Deu_14:22 sqq. 2Ch_31:4 sqq.) Where these means of support were not sufficient, the clergy turned to agriculture or some other occupation; and so late as the fifth century many synods recommended this means of subsistence, although the Apostolical Canons prohibited the engagement of the clergy in secular callings under penalty of deposition.
This improvement, also, in the external condition of the clergy was often attended with a proportional degeneracy in their moral character. It raised them above oppressive and distracting cares for livelihood, made them independent, and permitted them to devote their whole strength to the duties of their office; but it also favored ease and luxury, allured a host of unworthy persons into the service of the church, and checked the exercise of free giving among the people. The better bishops, like Athanasius, the two Gregories, Basil, Chrysosotom, Theodoret, Ambrose, Augustine, lived in ascetic simplicity, and used their revenues for the public good; while others indulged their vanity, their love of magnificence, and their voluptuousness. The heathen historian Ammianus gives the country clergy in general the credit of simplicity, temperance, and virtue, while he represents the Roman hierarchy, greatly enriched by the gifts of matrons, as extreme in the luxury of their dress and their more than royal banquets; and St. Jerome agrees with him. The distinguished heathen prefect, Praetextatus, said to Pope Damasus, that for the price of the bishopric of Rome he himself might become a Christian at once. The bishops of Constantinople, according to the account of Gregory Nazianzen, who himself held that see for a short time, were not behind their Roman colleagues in this extravagance, and vied with the most honorable functionaries of the state in pomp and sumptuous diet. The cathedrals of Constantinople and Carthage had hundreds of priests, deacons, deaconesses, subdeacons, prelectors, singers, and janitors.
It is worthy of notice, that, as we have already intimated, the two greatest church fathers gave the preference in principle to the voluntary system in the support of the church and the ministry, which prevailed before the Nicene era, and which has been restored in modern times in the United States of America. Chrysostom no doubt perceived that under existing circumstances the wants of the church could not well be otherwise supplied, but he was decidedly averse to the accumulation of treasure by the church, and said to his hearers in Antioch: “The treasure of the church should be with you all, and it is only your hardness of heart that requires her to hold earthly property and to deal in houses and lands. Ye are unfruitful in good works, and so the ministers of God must meddle in a thousand matters foreign to their office. In the days of the apostles people might likewise have given them houses and lands; why did they prefer to sell the houses and lands and give the proceeds? Because this was without doubt the better way. Your fathers would have preferred that you should give alms of your incomes, but they feared that your avarice might leave the poor to hunger; hence the present order of things.” Augustine desired that his people in Hippo should take back the church property and support the clergy and the poor by free gifts.
16. Episcopal Jurisdiction and Intercession
4. We proceed to the legal validity, of the episcopal jurisdiction, which likewise dates from the time of Constantine.
After the manner of the Jewish synagogues, and according to the exhortation of St. Paul, 1Co_6:1-6) the Christians were accustomed from the beginning to settle their controversies before the church, rather than carry them before heathen tribunals; but down to the time of Constantine the validity, of the bishop’s decision depended on the voluntary, submission of both parties. Now this decision was invested with the force of law, and in spiritual matters no appeal could be taken from it to the civil court. Constantine himself, so early as 314, rejected such an appeal in the Donatist controversy with the significant declaration: “The judgment of the priests must be regarded as the judgment of Christ himself.” Even a sentence of excommunication was final; and Justinian allowed appeal only to the metropolitan, not to the civil tribunal. Several councils, that of Chalcedon, for example, in 451, went so far as to threaten clergy, who should avoid the episcopal tribunal or appeal from it to the civil, with deposition. Sometimes the bishops called in the help of the state, where the offender contemned the censure of the church. Justinian I. extended the episcopal jurisdiction also to the monasteries. Heraclius subsequently (628) referred even criminal causes among the clergy to the bishops, thus dismissing the clergy thenceforth entirely from the secular courts; though of course holding them liable for the physical penalty, when convicted of capital crime, as the ecclesiastical jurisdiction ended with deposition and excommunication. Another privilege, granted by Theodosius to the clergy, was, that they should not be compelled by torture to bear testimony before the civil tribunal.
This elevation of the power and influence of the bishops was a salutary check upon the jurisdiction of the state, and on the whole conduced to the interests of justice and humanity; though it also nourished hierarchical arrogance and entangled the bishops, to the prejudice of their higher functions, in all manner of secular suits, in which they were frequently called into consultation. Chrysostom complains that “the arbitrator undergoes incalculable vexations, much labor, and more difficulties than the public judge. It is hard to discover the right, but harder not to violate it when discovered. Not labor and difficulty alone are connected with office, but also no little danger.” Augustine, too, who could make better use of his time, felt this part of his official duty a burden, which nevertheless he bore for love to the church. Others handed over these matters to a subordinate ecclesiastic, or even, like Silvanus, bishop of Troas, to a layman.
5. Another advantage resulting from the alliance of the church with the empire was the episcopal right of intercession.
The privilege of interceding with the secular power for criminals, prisoners, and unfortunates of every kind had belonged to the heathen priests, and especially to the vestals, and now passed to the Christian ministry, above all to the bishops, and thenceforth became an essential function of their office. A church in Gaul about the year 460 opposed the ordination of a monk to the bishopric, because, being unaccustomed to intercourse with secular magistrates, though he might intercede with the Heavenly Judge for their souls, he could not with the earthly for their bodies. The bishops were regarded particularly as the guardians of widows and orphans, and the control of their property was intrusted to them. Justinian in 529 assigned to them also a supervision of the prisons, which they were to visit on Wednesdays and Fridays, the days of Christ’s passion.
The exercise of this right of intercession, one may well suppose, often obstructed the course of justice; but it also, in innumerable cases, especially in times of cruel, arbitrary despotism, protected the interests of innocence, humanity, and mercy. Sometimes, by the powerful pleadings of bishops with governors and emperors, whole provinces were rescued from oppressive taxation and from the revenge of conquerors. Thus Flavian of Antioch in 387 averted the wrath of Theodosius on occasion of a rebellion, journeying under the double burden of age and sickness even to Constantinople to the emperor himself, and with complete success, as an ambassador of their common Lord, reminding him of the words: “If ye forgive men their trespasses, your heavenly Father will also forgive you.” (Mat_6:14)
6. With the right of intercession was closely connected the right of asylum in churches.
In former times many of the heathen temples and altars, with some exceptions, were held inviolable as places of refuge; and the Christian churches now inherited also this prerogative. The usage, with some precautions against abuse, was made law by Theodosius II. in 431, and the ill treatment of an unarmed fugitive in any part of the church edifice, or even upon the consecrated ground, was threatened with the penalty of death.
Thus slaves found sure refuge from the rage of their masters, debtors from the persecution of inexorable creditors, women and virgins from the approaches of profligates, the conquered from the sword of their enemies, in the holy places, until the bishop by his powerful mediation could procure justice or mercy. The beneficence of this law, which had its root not in superstition alone, but in the nobler sympathies of the people, comes most impressively to view amidst the ragings of the great migration and of the frequent intestine wars.
17. Legal Sanction of Sunday
7. The civil sanction of the observance of Sunday and other festivals of the church.
The state, indeed, should not and cannot enforce this observance upon any one, but may undoubtedly and should prohibit the public disturbance and profanation of the Christian Sabbath, and protect the Christians in their right and duty of its proper observance. Constantine in 321 forbade the sitting of courts and all secular labor in towns on “the venerable day of the sun,” as he expresses himself, perhaps with reference at once to the sun-god, Apollo, and to Christ, the true Sun of righteousness; to his pagan and his Christian subjects. But he distinctly permitted the culture of farms and vineyards in the country, because frequently this could be attended to on no other day so well; though one would suppose that the hard-working peasantry were the very ones who most needed the day of rest. Soon afterward, in June, 321, he allowed the manumission of slaves on Sunday; as this, being an act of benevolence, was different from ordinary business, and might be altogether appropriate to the day of resurrection and redemption. According to Eusebius, Constantine also prohibited all military exercises on Sunday, and at the same time enjoined the observance of Friday in memory of the death of Christ.
Nay, he went so far, in well-meaning but mistaken zeal, as to require of his soldiers, even the pagan ones, the positive observance of Sunday, by pronouncing at a signal the following prayer, which they mechanically learned: “Thee alone we acknowledge as God; thee we confess as king; to thee we call as our helper; from thee we have received victories; through thee we have conquered enemies. Thee we thank for good received; from thee we hope for good to come. Thee we all most humbly beseech to keep our Constantine and his God-fearing sons through long life healthy and victorious.” Though this formula was held in a deistical generalness, yet the legal injunction of it lay clearly beyond the province of the civil power, trespassed on the rights of conscience, and unavoidably encouraged hypocrisy and empty formalism.
Later emperors declared the profanation of Sunday to be sacrilege, and prohibited also the collecting of taxes and private debts (368 and 386), and even theatrical and circus performances, on Sunday and the high festivals (386 and 425). But this interdiction of public amusements, on which a council of Carthage (399 or 401) with reason insisted, was probably never rigidly enforced, and was repeatedly supplanted by the opposite practice, which gradually prevailed all over Europe.
18. Influence of Christianity on Civil Legislation. The Justinian Code
Comp. on this subject particularly the works cited at §13, sub ii, by Rhoer, Meysenburg, and Troplong; also Gibbon, chap. xliv (an admirable summary of the Roman law), Milman: Lat. Christianity, vol. I. B. iii. chap. 5, and in part the works of Schmidt and Chastel on the influence of Christianity upon society in the Roman empire, quoted in vol. i. §86.
While in this way the state secured to the church the well-deserved rights of a legal corporation, the church exerted in turn a most beneficent influence on the state, liberating it by degrees from the power of heathen laws and customs, from the spirit of egotism, revenge, and retaliation, and extending its care beyond mere material prosperity to the higher moral interests of society. In the previous period we observed the contrast between Christian morality and heathen corruption in the Roman empire. We are now to see how the principles of Christian morality gained public recognition, and began at least in some degree to rule the civil and political life.
As early as the second century, under the better heathen emperors, and evidently under the indirect, struggling, yet irresistible influence of the Christian spirit, legislation took a reformatory, humane turn, which was carried by the Christian emperors as far as it could be carried on the basis of the ancient Graeco-Roman civilization. Now, above all, the principle of justice and equity, humanity and love, began to assert itself in the state. For Christianity, with its doctrines of man’s likeness to God, of the infinite value of personality, of the original unity of the human race, and of the common redemption through Christ, first brought the universal rights of man to bear in opposition to the exclusive national spirit, the heartless selfishness, and the political absolutism of the old world, which harshly separated nations and classes, and respected man only as a citizen, while at the same time it denied the right of citizenship to the great mass of slaves, foreigners, and barbarians.
Christ himself began his reformation with the lowest orders of the people, with fishermen and taxgatherers, with the poor, the lame, the blind, with demoniacs and sufferers of every kind, and raised them first to the sense of their dignity and their high destiny. So now the church wrought in the state and through the state for the elevation of the oppressed and the needy, and of those classes which under the reign of heathenism were not reckoned at all in the body politic, but were heartlessly trodden under foot. The reformatory motion was thwarted, it is true, to a considerable extent, by popular custom, which is stronger than law, and by the structure of society in the Roman empire, which was still essentially heathen and doomed to dissolution. But reform was at last set in motion, and could not be turned back even by the overthrow of the empire; it propagated itself among the German tribes. And although even in Christian states the old social maladies are ever breaking forth from corrupt human nature, sometimes with the violence of revolution, Christianity is ever coming in to restrain, to purify, to heal, and to console, curbing the wild passions of tyrants and of populace, vindicating the persecuted, mitigating the horrors of war, and repressing incalculable vice in public and in private life among Christian people. The most cursory comparison of Christendom with the most civilized heathen and Mohammedan countries affords ample testimony of this.
Here again the reign of Constantine is a turning point. Though an oriental despot, and but imperfectly possessed with the earnestness of Christian morality, he nevertheless enacted many laws, which distinctly breathe the spirit of Christian justice and humanity: the abolition of the punishment of crucifixion, the prohibition of gladiatorial games and cruel rites, the discouragement of infanticide, and the encouragement of the emancipation of slaves. Eusebius says he improved most of the old laws or replaced them by new ones. Henceforward we feel beneath the toga of the Roman lawgiver the warmth of a Christian heart. We perceive the influence of the evangelical preaching and exhortations of the father of monasticism out of the Egyptian desert to the rulers of the world, Constantine and his sons: that they should show justice and mercy to the poor, and remember the judgment to come.
Even Julian, with all his hatred of the Christians, could not entirely renounce the influence of his education and of the reigning spirit of the age, but had to borrow from the church many of his measures for the reformation of heathenism. He recognized especially the duty of benevolence toward all men, charity to the poor, and clemency to prisoners; though this was contrary to the heathen sentiment, and though he proved himself anything but benevolent toward the Christians. But then the total failure of his philanthropic plans and measures shows that the true love for man can thrive only in Christian soil. And it is remarkable, that, with all this involuntary concession to Christianity, Julian himself passed not a single law in line with the progress of natural rights and equity.
His successors trod in the footsteps of Constantine, and to the end of the West Roman empire kept the civil legislation under the influence of the Christian spirit, though thus often occasioning conflicts with the still lingering heathen element, and sometimes temporary apostasy and reaction. We observe also, in remarkable contradiction, that while the laws were milder in some respects, they were in others even more severe and bloody than ever before: a paradox to be explained no doubt in part by the despotic character of the Byzantine government, and in part by the disorders of the time.
It now became necessary to collect the imperial ordinances in a codex or corpus juris. Of the first two attempts of this kind, made in the middle of the fourth century, only some fragments remain. But we have the Codex Theodosianus, 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 the legal relations of the greater part of Christian Europe to this day.
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 recognizes 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, especially in all that regards the individual and personal rights and liberties of man.
19. Elevation of Woman and the Family
The benign effect of Christianity on legislation in the Graeco-Roman empire is especially noticeable in the following points:
1. In the treatment of women. From the beginning, Christianity labored, 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 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. Constantine in 321 granted 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 intrusted 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 punishable, from the time of Constantine, with death.
2. In the marriage laws, 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 marriage between godparent and godchild, on the ground of spiritual kinship. But 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, recognized adultery alone as a sufficient ground of divorce, could not be carried out in the state. The legislation of the 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 convenant, dowry, or ecclesiastical sanction. Solemnization 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 unfavorable 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 laboring 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.
20. Social Reforms. The Institution of Slavery
4. The institution of slavery remained throughout the empire, and is recognized in the laws of Justinian as altogether legitimate. The Justinian code rests on the broad distinction of the human race into freemen and slaves. It declares, indeed, the natural equality of men, and so far rises above the theory of Aristotle, who regards certain races and classes of men as irrevocably doomed, by their physical and intellectual inferiority, to perpetual servitude; but it destroys the practical value of this concession by insisting as sternly as ever on the inferior legal and social condition of the slave, by degrading his marriage to the disgrace of concubinage, by refusing him all legal remedy in case of adultery, by depriving him of all power over his children, by making him an article of merchandise like irrational beasts of burden, whose transfer from vender to buyer was a legal transaction as valid and frequent as the sale of any other property. The purchase and sale of slaves for from ten to seventy pieces of gold, according to their age, strength, and training, was a daily occurrence. The number was not limited; many a master owning even two or three thousand slaves.
The barbarian codes do not essentially differ in this respect from the Roman. They, too, recognize slavery as an ordinary condition of mankind and the slave as a marketable commodity. All captives in war became slaves, and thousands of human lives were thus saved from indiscriminate massacre and extermination. The victory of Stilicho over Rhadagaisus threw 200,000 Goths and other Germans into the market, and lowered the price of a slave from twenty-five pieces of gold to one. The capture and sale of men was part of the piratical system along all the shores of Europe. Anglo-Saxons were freely sold in Rome at the time of Gregory the Great. The barbarian codes prohibited as severely as the Justinian code the debasing alliance of the freeman with the slave, but they seem to excel the latter in acknowledging the legality and religious sanctity of marriages between slaves; that of the Lombards on the authority of the Scripture sentence: “Whom God has joined together, let no man put asunder.”
The legal wall of partition, which separated the slaves from free citizens and excluded them from the universal rights of man, was indeed undermined, but by no means broken down, by the ancient church, who taught only the moral and religious equality of men. We find slaveholders even among the bishops and the higher clergy of the empire. Slaves belonged to the papal household at Rome, as we learn incidentally from the acts of a Roman synod held in 501 in consequence of the disputed election of Symmachus, where his opponents insisted upon his slaves being called in as witnesses, while his adherents protested against this extraordinary request, since the civil law excluded the slaves from the right of giving testimony before a court of justice. Among the barbarians, likewise, we read of slaveholding churches, and of special provisions to protect their slaves. Constantine issued rigid laws against intermarriage with slaves, all the offspring of which must be slaves; and against fugitive slaves (a.d. 319 and 326), who at that time in great multitudes plundered deserted provinces or joined with hostile barbarians against the empire. But on the other hand he facilitated manumission, permitted it even on Sunday, and gave the clergy the right to emancipate their slaves simply by their own word, without the witnesses and ceremonies required in other cases. By Theodosius and Justinian the liberation of slaves was still further encouraged. The latter emperor abolished the penalty of condemnation to servitude, and by giving to freed persons the rank and rights of citizens, he removed the stain which had formerly attached to that class. The spirit of his laws favored the gradual abolition of domestic slavery. In the Byzantine empire in general the differences of rank in society were more equalized, though not so much on Christian principle as in the interest of despotic monarchy. Despotism and extreme democracy meet in predilection for universal equality and uniformity. Neither can suffer any overshadowing greatness, save the majesty of the prince or the will of the people. The one system knows none but slaves; the other, none but masters.
Nor was an entire abolition of slavery at that time at all demanded or desired even by the church. As in the previous period, she still thought it sufficient to insist on the kind Christian treatment of slaves, enjoining upon them obedience for the sake of the Lord, comforting them in their low condition with the thought of their higher moral freedom and equality, and by the religious education of the slaves making an inward preparation for the abolition of the institution. All hasty and violent measures met with decided disapproval. The council of Gangra threatens with the ban every one, who under pretext of religion seduces slaves into contempt of their masters; and the council of Chalcedon, in its fourth canon, on pain of excommunication forbids monasteries to harbor slaves without permission of the masters, lest Christianity be guilty of encouraging insubordination. The church fathers, so far as they enter this subject at all, seem to look upon slavery as at once a necessary evil and a divine instrument of discipline; tracing it to the curse on Ham and Canaan. It is true, they favor emancipation in individual cases, as an act of Christian love on the part of the master, but not as a right on the part of the slave; and the well-known passage: “If then mayest be made free, use it rather,” they understand not as a challenge to slaves to take the first opportunity to gain their freedom, but, on the contrary, as a challenge to remain in their servitude, since they are at all events inwardly free in Christ, and their outward condition is of no account.
Even St. Chrysostom, though of all the church fathers the nearest to the emancipation theory and the most attentive to the question of slavery in general, does not rise materially above this view. According to him mankind were originally created perfectly free and equal, without the addition of a slave. But by the fall man lost the power of self-government, and fell into a threefold bondage: the bondage of woman under man, of slave under master, of subject under ruler. These three relations he considers divine punishments and divine means of discipline. Thus slavery, as a divine arrangement occasioned by the fall, is at once relatively justified and in principle condemned. Now since Christ has delivered us from evil and its consequences, slavery, according to Chrysostom, is in principle abolished in the church, yet only in the sense in which sin and death are abolished. Regenerate Christians are not slaves, but perfectly free men in Christ and brethren among themselves. The exclusive authority of the one and subjection of the other give place to mutual service in love. Consistently carried out, this view leads of course to emancipation. Chrysostom, it is true, does not carry it to that point, but he decidedly condemns all luxurious slaveholding, and thinks one or two servants enough for necessary help, while many patricians had hundreds and thousands. He advises the liberation of superfluous slaves, and the education of all, that in case they should be liberated, they may know how to take care of themselves. He is of opinion that the first Christian community at Jerusalem, in connection with community of goods, emancipated all their slaves; and thus he gives his hearers a hint to follow that example. But of an appeal to slaves to break their bonds, this father shows of course no trace; he rather, after apostolic precedent, exhorts them to conscientious and cheerful obedience for Christ’s sake, as earnestly as he inculcates upon masters humanity and love. The same is true of Ambrose, Augustine, and Peter Chrysologus of Ravenna († 458).
St. Augustine, the noblest representative of the Latin church, in his profound work on the “City of God,” excludes slavery from the original idea of man and the final condition of society, and views it as an evil consequent upon sin, yet under divine direction and control. For God, he says, created man reasonable and lord only over the unreasonable, not over man. The burden of servitude was justly laid upon the sinner. Therefore the term servant is not found in the Scriptures till Noah used it as a curse upon his offending son. Thus it was guilt and not nature that deserved that name. The Latin word servus is supposed to be derived from servare [servire rather], or the preservation of the prisoners of war from death, which itself implies the desert of sin. For even in a just war there is sin on one side, and every victory humbles the conquered by divine judgment, either reforming their sins or punishing them. Daniel saw in the sins of the people the real cause of their captivity. Sin, therefore, is the mother of servitude and first cause of man’s subjection to man; yet this does not come to pass except by the judgment of God, with whom there is no injustice, and who knows how to adjust the various punishments to the merits of the offenders …. The apostle exhorts the servants to obey their masters and to serve them ex animo, with good will; to the end that, if they cannot be made free from their masters, they may make their servitude a freedom to themselves by serving them not in deceitful fear, but in faithful love, until iniquity be overpassed, and all man’s principality and power be annulled, and God be all in all.
As might be expected, after the conversion of the emperors, and of rich and noble families, who owned most slaves, cases of emancipation became more frequent. The biographer of St. Samson Xenodochos, a contemporary of Justinian, says of him: “His troop of slaves he would not keep, still less exercise over his fellow servants a lordly authority; he preferred magnanimously to let them go free, and gave them enough for the necessaries of life.” Salvianus, a Gallic presbyter of the fifth century, says that slaves were emancipated daily. On the other hand, very much was done in the church to prevent the increase of slavery; especially in the way of redeeming prisoners, to which sometimes the gold and silver vessels of churches were applied. But we have no reliable statistics for comparing even approximately the proportion of the slaves to the free population at the close of the sixth century with the proportion in the former period.
We infer then, that the Christianity of the Nicene and post-Nicene age, though naturally conservative and decidedly opposed to social revolution and violent measures of reform, yet in its inmost instincts and ultimate tendencies favored the universal freedom of man, and, by elevating the slave to spiritual equality with the master, and uniformly treating him as capable of the same virtues, blessings, and rewards, has placed the hateful institution of human bondage in the way of gradual amelioration and final extinction. This result, however, was not reached in Europe till many centuries after our period, nor by the influence of the church alone, but with the help of various economical and political causes, the unprofitableness of slavery, especially in more northern latitudes, the new relations introduced by the barbarian conquests, the habits of the Teutonic tribes settled within the Roman empire, the attachment of the rural slave to the soil, and the change of the slave into the serf, who was as immovable as the soil, and thus, in some degree independent on the caprice and despotism of his master.
5. The poor and unfortunate in general, above all the widows and orphans, prisoners and sick, who were so terribly neglected in heathen times, now drew the attention of the imperial legislators. Constantine in 315 prohibited the branding of criminals on the forehead, “that the human countenance,” as he said, “formed after the image of heavenly beauty, should not be defaced.” He provided against the inhuman maltreatment of prisoners before their trial. To deprive poor parents of all pretext for selling or exposing their children, he had them furnished with food and clothing, partly at his own expense and partly at that of the state. He likewise endeavored, particularly by a law of the year 331, to protect the poor against the venality and extortion of judges, advocates, and tax collectors, who drained the people by their exactions. In the year 334 he ordered that widows, orphans, the sick, and the poor should not be compelled to appear be. fore a tribunal outside their own province. Valentinian, in 365, exempted widows and orphans from the ignoble poll tax. In 364 he intrusted the bishops with the supervision of the poor. Honorius did the same in 409. Justinian, in 529, as we have before remarked, gave the bishops the oversight of the state prisons, which they were to visit on Wednesdays and Fridays, to bring home to the unfortunates the earnestness and comfort of religion. The same emperor issued laws against usury and inhuman severity in creditors, and secured benevolent and religious foundations by strict laws against alienation of their revenues from the original design of the founders. Several emperors and empresses took the church institutions for the poor and sick, for strangers, widows, and orphans, under their special patronage, exempted them from the usual taxes, and enriched or enlarged them from their private funds. Yet in those days, as still in ours, the private beneficence of Christian love took the lead, and the state followed at a distance, rather with ratification and patronage than with independent and original activity.