Chapter XXXIII: Mediaeval Appropriation of the Roman Law (2)

voluntarily or otherwise. He now discusses the various modes in which possession is acquired by transfer, then the nature of the _justa_ or _injusta causa_ with which possession may begin, and the effect on the rights of the possessor, and then some matters more peculiar to the time of Justinian. After which he passes to the loss of possession, and concludes with saying that he has endeavoured to go over the whole subject, and whatever is omitted or insufficiently treated, he begs that it be laid to the fault of _humanae imbecillitatis_. The discussion reads like a carefully drawn outline which his lecture should expand.[388]

The knowledge and understanding of the Roman law in the mediaeval centuries should be viewed in conjunction with the general progress of intellectual aptitude during the same periods. The growth of legal knowledge will then show itself as a part of mediaeval development, as one phase of the flowering of the mediaeval intellect. For the treatment of Roman law presents stages essentially analogous to those by which the Middle Ages reached their understanding and appropriation of other portions of their great inheritance from classical antiquity and the Christianity of the Fathers. Let us recapitulate: the Roman law, adapted, or corrupted if one will, epitomized and known chiefly in its later enacted forms, was never unapplied nor the study of it quite abandoned. It constituted a great part of the law of Italy and southern France; in these two regions likewise was its study least neglected. We have observed the superficial and mainly linguistic nature of the glosses which this early mediaeval period interlined or wrote on the margins of the source-books drawn upon, also the rude and barbarous nature of the earlier summaries and compilations. They were helps to a crude practical knowledge of the law. Gradually the treatment seems to become more intelligent, a little nearer the level of the matter excerpted or made use of. Through the eleventh century it is evident that social conditions were demanding and also facilitating an increase in legal knowledge; and at that century’s close a by no means stupid compilation appears, the _Petri exceptiones_, and perhaps such a fairly intelligent manual for elementary instruction as the _Brachylogus_. These works indicate that the instruction in the law was improving. We have also the sparse references to schools of law, at Rome, at Ravenna, at Orleans. Then we come upon the _Summa Codicis_ called of Irnerius, of uncertain _provenance_, like the _Petrus_ and _Brachylogus_. But there is no need to be informed specifically of its place and date in order to recognize its advance in legal intelligence, in veritable jurisprudence. The writer was a master of the law, an adept in its exposition, and his oral teaching must have been of a high order. With this book we have unquestionably touched the level of the strong beginnings of the greatest of mediaeval schools of Roman law.

Its seat was Bologna, one of the chief centres of the civic and commercial life of Lombardy. The Lombards themselves had shown a persistent legal genius: their own Teutonic codes, enacted in Italy, had maintained themselves in that land of Roman law and custom. Lombard codification had almost reached a jurisprudence of its own, at Pavia, the juridical centre of Lombardy. The provisions of various codes had been compared and put together in a sort of _Concordia_, as early as the ninth century.[389] Possibly the rivalry of Lombard law might stimulate those learned in the law of Rome to sharper efforts to expound it and prove its superiority. Moreover, all sides of civic life and culture were flourishing in that region where novel commercial relations were calling for a corresponding progress in the law, and especially for a better knowledge of the Roman law which alone afforded provision for their regulation.

As some long course of human development approaches its climax, the advance apparently becomes so rapid as to give the impression of something suddenly happening, a sudden leap upward of the human spirit. The velocity of the movement seems to quicken as the summit is neared. One easily finds examples, for instance the fifth century before Christ in Greek art, or the fourth century in Greek philosophy, or again the excellence so quickly reached apparently by the Middle High German poetry just about the year 1200. But may not the seeming suddenness of the phenomenon be due to lack of information as to antecedents? and the flare of the final achievement even darken what went before? Yet, in fact, as a movement nears its climax, it may become more rapid. For, as the promoting energies and favouring conditions meet in conjunction, their joint action becomes more effective. Forces free themselves from cumbrances and draw aid from one another. Thus when the gradual growth of intellectual faculty effects a conjunction with circumstances which offer a fair field, and the prizes of life as a reward, a rapid increase of power may evince itself in novel and timely productivity.

This may suggest the manner of the apparently sudden rise of the Bologna school of Roman law, which, be it noted, took place but a little before the time of Gratian’s achievement in the Canon law, itself contemporaneous with the appearance of Peter Lombard’s novel _Books of Sentences_.[390] The preparation, although obscure, existed; and the school after its commencement passed onward through stages of development, to its best accomplishment, and then into a condition of stasis, if not decline. Irnerius apparently was its first master; and of his life little is known. He was a native of Bologna. His name as _causidicus_ is attached to a State paper of the year 1113. Thereafter he appears in the service of the German emperor Henry V. We have no sure trace of him after 1118, though there is no reason to suppose that he did not live and labour for some further years. He had taught the Arts at Ravenna and Bologna before teaching, or perhaps seriously studying, the law. But his career as a teacher of the law doubtless began before the year 1113, when he is first met with as a man of affairs. Accounts agree in ascribing to him the foundation of the school.

Unless the _Summa Codicis_ already mentioned, and a book of _Quaestiones_, be really his, his glosses upon Justinian’s _Digest_, _Codex_, and _Novels_, are all we have of him;[391] of the rest we know by report. The glosses themselves indicate that this jurist had been a grammarian, and used the learning of his former profession in his exposition of the law. His interlinear glosses are explanations of words, and would seem to represent his earlier, more tentative, work when he was himself learning the meaning of the law. But the marginal glosses are short expositions of the passages to which they are attached, and perhaps belong to the time of his fuller command over the legal material. They indicate, besides, a critical consideration of the text, and even of the original connection which the passage in the _Digest_ held in the work of the jurisconsult from which it had been taken. Some of them show an understanding of the chronological sequence of the sources of the Roman law, _e.g._ that the law-making power had existed in the people and then passed to the emperors. These glosses of Irnerius represent a clear advance in jurisprudence over any previous legal comment subsequent to the _Interpretatio_ attached to the _Breviarium_. It was also part of his plan to equip his manuscripts of the _Codex_ with extracts taken from the text of the _Novels_, and not from the _Epitome of Julian_. He appears also as a lawyer versed in the practice of the law. For he wrote a book of forms for notaries and a treatise on procedure, neither of which is extant.[392]

The accomplishment of the Bologna school may be judged more fully from the works, still extant, of some of its chief representatives in the generations following Irnerius. A worthy one was Placentinus, a native of Piacenza. The year of his birth is unknown, but he died in 1192, after a presumably full span of life, passed chiefly as a student and teacher of the law. He taught in Mantua and Montpellier, as well as in Bologna. He was an accomplished jurist and a lover of the classic literature. His work entitled _De varietate actionum_ was apparently the first attempt to set forth the Roman law in an arrangement and form that did not follow the sources.[393] He opens his treatise with an allegory of a noble dame, hight Jurisprudentia, within the circle of whose sweet and honied utterances many eager youths were thronging. Placentinus drew near, and received from her the book which he now gives to others.[394] This little allegory savours of the _De consolatione_ of Boëthius, or, if one will, of Capella’s _De nuptiis Philologiae_.

The most admirable surviving work of Placentinus is his Summa of the _Codex_ of Justinian. His autobiographical _proemium_ shows him not lacking in self-esteem, and tells why he undertook the work. He had thought at first to complete the Summa of Rogerius, an older glossator, but then decided to put that book to sleep, and compose a full Summa of the _Codex_ himself, from the beginning to the end. This by the favour of God he has done; it is the work of his own hands, from head to heel, and all the matter is his own--not borrowed. Next he wrote for beginners a Summa of the _Institutes_. After which he returned to his own town, and shortly proceeded thence to Bologna, whither he had been called. “There in the citadel (_in castello_) for two years I expounded the laws to students; I brought the other teachers to the threshold of envy; I emptied their benches of students. The hidden places of the law I laid open, I reconciled the conflicts of enactments, I unlocked the secrets most potently.” His success was great, and he was besought to continue his course of lectures. He complied, and remained two years more, and then returned to Montpellier, in order to compose a Summa of the _Digest_.[395] If indeed Placentinus speaks bombastically of his work, its excellence excuses him. His well-earned reputation as a jurist and scholar long endured.

_Quaestiones_, _Distinctiones_, _Libri disputationum_, _Summae_ of the _Codex_ or the _Institutions_, and other legal writings, are extant in goodly bulk and number from the Bologna school. The names of the men are almost legion, and many were of great repute in their day both as jurists and as men of affairs. We may mention Azo and Accursius, of a little later time. Azo’s name appears in public documents from the year 1190 to 1220--and he may have survived the latter date by some years. His works were of such compass and excellence as to supersede those of his predecessors. His glosses still survive, and his _Lectura_ on the _Codex_, his _Summae_ of the _Codex_ and the _Institutes_, and his _Quaestiones_, and _Brocarda_, the last a sort of work stating general legal propositions and those contradicting them. Azo’s glosses were so complete as to constitute a continuous exposition of the entire legislation of Justinian. His _Summae_ of the _Codex_ and _Institutes_ drove those of Placentinus out of use, which we note with a smile.[396]

None of the glossators is better known than Accursius. He comes before us as a Florentine, and apparently a peasant’s son. He died an old man rich and famous, about the year 1260. Azo was his teacher. In 1252 he was Podesta of Bologna, which indicates the respect in which men held him. Villani, the Florentine historian, describes him as of martial form, grave, thoughtful, even melancholy in aspect, as if always meditating; a man of brilliant talents and extraordinary memory, sober and chaste in life, but delighting in noble vesture. His hearers drank in the laws of living from his mien and manners no less than from the dissertations of his mouth.[397] Late in life he retired to his villa, and there in quiet worked on his great _Glossa_ till he died.

This famous, perhaps all too famous, _Glossa ordinaria_ was a digest and, as it proved, a final one, of the glosses of his predecessors and contemporaries. He drew not only from their glosses, but also on their _Summae_ and other writings. He added a good deal of his own. Great as was the feat, the somewhat deadened talent of a compiler shows in the result, which flattened out the individual labours of so many jurists. It came at once into general use in the courts and outside of them; for it was a complete commentary on the Justinianean law, so compendious and convenient that there was no further need of the glosses of earlier men. This book marked the turning-point of the Bologna school, after which its productivity lessened. Its work was done: _Codex_, _Novels_, and above all the _Pandects_ were rescued from oblivion, and fully expounded, so far as the matter in them was still of interest. When the labours of the school had been conveniently heaped together in one huge _Glossa_, there was no vital inducement to do this work again. The school of the glossators was _functus officio_. Naturally with the lessening of the call, productivity diminished. Little was left to do save to gloss the glosses, an epigonic labour which would not attract men of talent. Moreover, treating the older glosses, instead of the original text, as the matter to be interpreted was unfavourable to progress in the understanding of the latter.

Yet, for a little, the breath of life was still to stir in the school of the glossators. There was a man of fame, a humanist indeed, named Cino, whose beautiful tomb still draws the lover of things lovely to Pistoia. Cino was also a jurist, and it came to him to be the teacher of one whose name is second to none among the legists of the Middle Ages. This was Bartolus, born probably in the year 1314 at Sassoferrato in the duchy of Urbino. He was a scholar, learned in geometry and Hebrew, also a man of affairs. He taught the law at Pisa and Perugia, and in the last-named town he died in 1357, not yet forty-four years old. Bartolus wrote and compiled full commentaries on the entire _Corpus juris civilis_; and yet he produced no work differing in kind from works of his predecessors. Moreover, between him and the body of the law rose the great mass of gloss and comment already in existence, through which he did not always penetrate to the veritable _Corpus_. Yet his labours were inspired with the energy of a vigorous nature, and he put fresh thoughts into his commentaries.[398]

The school of glossators presented the full Roman law to Europe. The careful and critical interpretation of the text of Justinian’s Codification, of the _Digest_ above all, was their great service. In performing it, these jurists also had educated themselves and developed their own intelligence. They had also put together in Summae the results of their own education in the law. These works facilitated legal study and sharpened the faculties of students and professors. Books of Quaestiones, legal disputations, works upon legal process and formulae, served the same ends.[399] These men were deficient in historical knowledge. Yet they compared _Digest_, _Codex_, and _Novels_; they tried to re-establish the purity of the text; they weighed and they expounded. Theirs was an intellectual effort to master the jurisprudence of Rome: their labours constituted a renaissance of jurisprudence; and the fact that they were often men of affairs as well as professors, kept them from ignoring the practical bearings of the matters which they taught.

The work of the glossators may be compared with that of the theologian philosophers of the thirteenth century--Alexander of Hales, Albertus Magnus, Thomas Aquinas--who were winning for the world a new and comprehensive knowledge of Aristotle. Both jurists and philosophers, in their different spheres, carried through a more profound study, and reached a more comprehensive knowledge, of a great store of antique thought, than previous mediaeval centuries conceived of. Moreover, the interpretation of the _Corpus juris_ was quite as successful as the interpretation of Aristotle. It was in fact surer, because freer from the deflections of religious motive. No consideration of agreement or disagreement with Scripture troubled the glossators’ interpretation of the _Digest_, though indeed they may have been interested in finding support for whatever political views they held upon the claims of emperor and pope. But this did not disturb them as much as Aristotle’s opinion that the universe was eternal, worried Albertus and Aquinas.

IV

The Church, from the time of its first recognition by the Roman Empire, lived under the Roman law;[400] and the constitutions safeguarding its authority were large and ample before the Empire fell. Constantine, to be sure, never dreamed of the famous “Donation of Constantine” forged by a later time, yet his enactments fairly launched the great mediaeval Catholic Church upon the career which was to bring it more domination than was granted in this pseudo-charter of its power. A number of Constantine’s enactments were preserved by the Theodosian Code, in which the powers and privileges of Church and clergy were portentously set forth.

The Theodosian Code freed the property of the Church from most fiscal burdens, and the clergy from taxes, from public and military service, and from many other obligations which sometimes the Code groups under the head of _sordida munera_. The Church might receive all manner of bequests, and it inherited the property of such of its clergy as did not leave near relatives surviving them. Its property generally was inalienable; and the clergy were accorded many special safeguards. Slaves might be manumitted in a church. The church edifices were declared asylums of refuge from pursuers, a privilege which had passed to the churches from the heathen fanes and the statues of the emperors. Constitution after constitution was hurled against the Church’s enemies. The Theodosian Code has one chapter containing sixty-six constitutions directed against heretics, the combined result of which was to deprive them, if not of life and property, at least of protected legal existence.

Of enormous import was the sweeping recognition on the Empire’s part of the validity of episcopal jurisdiction. No bishop might be summoned before a secular court as a defendant, or compelled to give testimony. Falsely to accuse one of the clergy rendered the accuser infamous. All matters pertaining to religion and church discipline might be brought only before the bishop’s court, which likewise had plenary jurisdiction over controversies among the clergy. It was also open to the laity for the settlement of civil disputes. The command not to go to law before the heathen came down from Paul (1 Cor. vi.), and together with the severed and persecuted condition of the early Christian communities, may be regarded as the far source of the episcopal jurisdiction, which thus divinely sanctioned tended to extend its arbitrament to all manner of legal controversies.[401] To be sure, under the Christian Roman Empire the authority of the Church as well as its privileges rested upon imperial law. Yet the emperors recognized, rather than actually created, the ecclesiastical authority. And when the Empire was shattered, there stood the Church erect amid the downfall of the imperial government, and capable of supporting itself in the new Teutonic kingdoms.

The constitutions of Christian emperors did not from their own force and validity become Ecclesiastical or Canon law--the law relating to Christians as such, and especially to the Church and its functions. The source of that law was God; the Church was its declarative organ. Acceptance on the Church’s part was requisite before any secular law could become a law of the Church.

Canon law may be taken to include theology, or may be limited to the law of the organization and functions of the Church taken in a large sense as inclusive of the laity in their relations to the religion of Christ.[402] Obviously part comes from Christ directly, through the Old Testament as well as New. The other part, and in bulk far greater, emanates from His foundation, the Church, under the guidance of His Spirit, and may be added to and modified by the Church from age to age. It is expressed in custom, universal and established, and it is found in written form in the works of the Fathers, in the decrees of Councils, in the decretals of the popes, and in the concordats and conventions with secular sovereignties. From the beginning, canon law tacitly or expressly adopted the constitutions of the Christian emperors relating to the Church, as well as the Roman law generally, under which the Church lived in its civil relations.

The Church arose within the Roman Empire, and who shall say that its wonderfully efficient and complete organization at the close of the patristic period was not the final creation of the legal and constructive genius of Rome, newly inspired by the spirit of Christianity? But the centre of interest had been transferred from earth to heaven, and human aims had been recast by the Gospel and the understanding of it reached by Christian doctors. Evidently since the ideals of the Church were to be other than those of the Roman Empire, the law which it accepted or evolved would have ideals different from those of the Roman law. If the great Roman jurists created a legal formulation and rendering of justice adequate for the highly developed social and commercial needs of Roman citizens, the law of the Church, while it might borrow phrases, rules, and even general principles, from that system, could not fail to put new meaning in them. For example, the constant will to render each his due, which was _justitia_ in the Roman law, might involve different considerations where the soul’s salvation, and not the just allotment of the goods of this world, was the law’s chief aim. Again, what new meaning might attach to the _honeste vivere_ and the _alterum non laedere_ of pagan legal ethics. _Honeste vivere_ might mean to do no sin imperilling the soul; _alterum non laedere_ would acquire the meaning of doing nothing to another which might impede his progress toward salvation. Injuries to a man in his temporalities were less important.

Further, Christianity although conceived as a religion for all mankind, was founded on a definite code and revelation. The primary statement was contained in the canonical books of the Old and New Testaments. These were for all men, universal in application and of irrefragable validity and truth. Here was some correspondence to the conception of the _jus gentium_ as representative of universal principles of justice and expediency, and therefore as equivalent to the _jus naturale_. There was something of logical necessity in the transference of this conception to the law of Christ. Says Gratian at the beginning of his _Decretum_: “It is _jus naturae_ which is contained in the Law and the Gospel, by which every one is commanded to do to another as he would be done by, and forbidden to inflict on him what he does not wish to happen to himself.” Since the Law and the Gospel represent the final law of life for all men, they are _par excellence_ the _jus naturae_, as well as _lex divina_. Gratian quotes from Augustine: “Divinum jus in scripturis divinis habemus, humanum in legibus regum.”[403] And then adds: “By its authority the _jus naturale_ prevails over custom and constitution. Whatever in customs or writings is contrary to the _jus naturale_ is to be held vain and invalid.” Again he says more explicitly: “Since therefore nothing is commanded by natural law other than what God wills to be, and nothing is forbidden except what God prohibits, and since nothing may be found in the canonical Scripture except what is in the divine laws, the laws will rest divinely in nature (_divine leges natura consistent_). It is evident, that whatever is proved to be contrary to the divine will or canonical Scripture, is likewise opposed to natural law. Wherefore whatever should give way before divine will or Scripture or the divine laws, over that ought the _jus naturale_ to prevail. Therefore whatever ecclesiastical or secular constitutions are contrary to natural law are to be shut out.”[404]

The canon law is a vast sea. Its growth, its age-long agglomerate accretion, the systematization of its huge contents, have long been subjects for controversialists and scholars. Its sources were as multifarious as those of the Roman law. First the Scriptures and the early quasi-apostolic and pseudo-apostolic writings; then the traditions of primitive Christianity and also the writings of the Fathers; likewise ecclesiastical customs, long accepted and legitimate, and finally the two great written sources, the decretals or decisions of the popes and the decrees of councils. From patristic times collections were made of the last. These collections from a chronological gradually acquired a topical and more systemic arrangement, which the compilers followed more completely after the opening of the tenth century. The decisions of the popes also had been collected, and then were joined to conciliar compilations and arranged after the same topical plan.

In all of them there was unauthentic matter, accepted as if its pseudo-authorship or pseudo-source were genuine. But in the stormy times of the ninth century following the death of Charlemagne, the method of argument through forged authority was exceptionally creative. It produced two masterpieces which won universal acceptance. The first was a collection of false Capitularies ascribed to Charlemagne and Louis the Pious, and ostensibly the work of a certain Benedictus Levita, deacon of the Church of Mainz, who worked in the middle of the century. Far more famous and important was the book of _False Decretals_, put together and largely written, that is forged, about the same time, probably in the diocese of Rheims, and appearing as the work of Saint Isidore of Seville. This contained many forged letters of the early popes and other forged matter, including the Epistle or “Donation” of Constantine; also genuine papal letters and conciliar decrees. These false collections were accepted by councils and popes, and formed part of subsequent compilations.

From the tenth century onward many such compilations were made, all of them uncritical as to the genuineness of the matter taken, and frequently ill-arranged and discordant. They were destined to be superseded by the great work in which appears the better methods and more highly trained intelligence developing at the Bologna School in the first part of the twelfth century. Its author was Gratianus, a monk of the monastery of St. Felix at Bologna. He was a younger contemporary of Irnerius and of Peter Lombard. Legend made him the latter’s brother, with some propriety; for the compiler of those epoch-making _Sentences_ represents the same stage in the appropriation of the patristic theological heritage of the Middle Ages, that Gratian represents in the handling of the canon law. The Lombard’s _Sentences_ made a systematic and even harmonizing presentation of the theology of the Fathers in their own language; and the equally immortal _Decretum_ of Gratian accomplished a like work for the canon law. This is the name by which his work is known, but not the name he gave it. That appears to have been _Concordia discordantium canonum_, which indicates his methodical presentation of his matter and his endeavour to reconcile conflicting propositions.

The first part of the _Decretum_ was entitled “De jure naturae et constitutionis.” It presents the sources of the law, the Church’s organization and administration, the ordination and ranking of the clergy, the election and consecration of bishops, the authority of legates and primates. The second part treats of the procedure of ecclesiastical courts, also the law regulating the property of the Church, the law of monks and the contract of marriage. The third part is devoted to the Sacraments and the Liturgy.

Gratian’s usual method is as follows: He will open with an authoritative proposition. If he finds it universally accepted, it stands as valid. But if there are opposing statements, he tries to reconcile them, either pointing out the difference in date (for the law of the Church may be progressive), or showing that one of the discordant rules had but local or otherwise limited application, or that the first proposition is the rule, while the others make the exceptions. If he still fails to establish concord, he searches to find which rule had been followed in the Roman Church, and accepts that as authoritative. A rule being thus made certain, he proceeds with subdivisions and distinctions, treating them as deductions from the main rule and adjusting the supporting texts. Or he will suppose a controversy (_causa_) and discuss its main and secondary issues. Throughout he accompanies his authoritative matter with his own commentary--commonly cited as the _Dicta Gratiani_.[405] The _Decretum_ was characterized by sagacity of interpretation and reconcilement, by vast learning, and clear ordering of the matter. Only it was uncritical as to the genuineness of its materials; and a number of Gratian’s own statements were subsequently disapproved in papal decretals. The _Dicta Gratiani_ never received such formal sanction by pope or council as the writings of Roman jurists received by being taken into Justinian’s _Digest_.

The papal decretals had become the great source of canonical law. Gratian’s work was soon supplemented by various compilations known as _Appendices ad Decretum_ or _Decretales extravagantes_, to wit, those which the _Decretum_ did not contain. These, however, were superseded by the collection, or rather codification, made at the command of the great canonist Gregory IX. and completed in the year 1234. This authoritative work preserved Gratian’s _Decretum_ intact, but suppressed, or abridged and reordered, the decretals contained in subsequent collections. Arranged in five books, it forms the second part of the _Corpus juris canonici_. In 1298 Boniface VIII. promulgated a supplementary book known as the _Sextus_ of Boniface. This with a new collection promulgated under the authority of Clement V. in 1313, called the _Clementinae_, and the _Extravagantes_ of his successor John XXII. and certain other popes, constitute the last portions of the _Corpus juris canonici_.[406]

According to the law of the Empire the emperor’s authority extended over the Church, its doctrine, its discipline, and its property. Such authority was exercised by the emperors from Constantine to Justinian. But the Church had always stood upon the principle that it was better to obey God rather than man. This had been maintained against the power of the pagan Empire, and was not to be sunned out of existence by imperial favour. It was still better to obey God rather than the emperor. The Church still should say who were its members and entitled to participate in the salvation which it mediated. Ecclesiastical authorities could excommunicate; that was their engine of coercion. These principles were incarnate in Ambrose, Bishop of Milan, withstanding and prohibiting Theodosius from Christian fellowship until he had done penance for the massacre at Thessalonica. Of necessity they inhered in the Church; they were of the essence of its strength to fulfil its purpose; they stood for the duly constituted power of Christian resolution to uphold and advance the peremptory truth of Christ.

So such principles persisted through the time of the hostile and then the favouring Roman Empire. And when the Empire in fact crumbled and fell, what _de facto_ and _de jure_ authority was best fitted to take the place of the imperial supremacy? The Empire represented a universal secular dominion; the Church was also universal, and with a universality now reaching out beyond the Empire’s shrinking boundaries. In the midst of political fragments otherwise disjoined, the Church endured as the universal unity. The power of each Teutonic king was great in fact and law within his realm. Yet he was but a local potency, while the Church existed through his and other realms. And when the power of one Teutonic line (the Carolingian) reached something like universal sway, the Church was also there within and without. It held the learning of the time, and the culture which large-minded seculars respected; and quite as much as the empire of Charlemagne, it held the prestige of Rome. Witness the attitude of Charles Martel and Pippin toward Boniface the great apostle, and the attitude of Boniface toward the Gregories whose legate he proclaimed himself, and upon whose central authority he based his claims to be obeyed. Through the reforms of the Frankish Church, carried out by him with the support of Charles Martel and Pippin, the ecclesiastical supremacy of Rome was established. Charlemagne, indeed, from the nature and necessities of his own transcendent power, possessed in fact the ecclesiastical authority of the Roman emperors, whom men deemed his predecessors. But after him the secular power fell again into fragments scarcely locally efficient, while the Church’s universality of authority endured.

In the unstable fragmentation of secular rule in the ninth century, the Isidorean _Decretals_ presented the truth of the situation as it was to be, although not as it had been in the times of the Church dignitaries whose names were forged for that collection. And thereafter, as the Church recovered from its tenth-century disintegration, it advanced to the pragmatic demonstration of the validity of those false _Decretals_, on through the tempests of the age of Hildebrand to the final triumph of Innocent III. at the opening of the thirteenth century. Evidently the canon law, whatever might be its immediate or remote source, drew its authority from the sanction of the Roman Catholic Church, which enunciated it and made it into a body corresponding to the Church’s functions. It was what the Church promulgated as the law of the ecclesiastical hierarchy and the kingdom of God on earth. It should be the temporal and legal counterpart of the Church’s spiritual purposes. Its general tendency and purpose was the promotion of the Church’s saving aim, which regarded all things in the light of their relationship to life eternal. Therefore the Church’s law could not but define and consider all worldly interests, all personal and property rights and secular authority, with constant regard to men’s need of salvation. The advancement of that must be the final appellate standard of legal right.

Such was the event. The entire canon law might be lodged within those propositions which Hildebrand enunciated and Innocent III. realized. For the salvation of souls, all authority on earth had been entrusted by Christ to Peter and his successors. Theirs was the spiritual sword; secular power, the sword material, was to be exercised under the pope’s mandate and permission. No king or emperor, no layman whatsoever, was exempt from the supreme authority of the pope, who also was the absolute head of the Church, which had become a monarchy. “The Lord entrusted to Peter not only the universal Church, but the government of the whole world,” writes Innocent III., whose pontificate almost made this principle a fact. In private matters no member of the clergy could be brought before a secular court; and the jurisdiction of the ecclesiastical courts over the laity threatened to reduce the secular jurisdiction to narrow functions.[407] The property of the Church might not be taxed or levied on by any temporal ruler or government; nor could the Church’s functions and authority be controlled or limited by any secular decree. Universally throughout every kingdom the Church was a sovereignty, not only in matters spiritual, but with respect to all the personal and material relationships that might be connected in any way with the welfare of souls.[408]

V

The exposition of the _Corpus juris civilis_ in the school of the glossators was of great moment in the evolution of _mediaeval political theory_, which in its turn yields one more example of the mediaeval application of thoughts derived from antique and patristic sources. Political thinking in the Middle Ages sought its surest foundation in theology; then it built itself up with concepts drawn from the philosophy and social theory of the antique world; and lastly it laid hold on jurisprudence, using the substance and reasoning of the Roman and the Canon law.

Mediaeval ideas upon government and the relations between the individual and his earthly sovereign, started from theological premises, of patristic origin: _e.g._ that the universe and man were made by God, a miraculous creation, springing from no other cause, and subject to no other fundamental law, than God’s unsearchable will, which never ceases to direct the whole creation to the Creator’s ends. A further premise was the Scriptural revelation of God’s purpose as to man, with all the contents of that revelation touching the overweening importance of man’s deathless soul.

Unity--the unity of the creation--springs from these premises, or is one of them. The principle of this unity is God’s will. Within the universal whole, mankind also constitutes a unit, a community, specially ordained and ordered. The Middle Ages, following the example of the patristic time, were delivered over to allegory, and to an unbridled recognition of the deductions of allegorical reasoning. Mankind was a community. Mankind was also an organism, the mystical body whereof the head was Christ. Here was an allegory potent for foolishness or wisdom. It was used to symbolize the mystery of the oneness of all mankind in God, and the organic co-ordination of all sorts and conditions of men with one another in the divine commonwealth on earth; it was also drawn out into every detail of banal anthropomorphic comparison. From John of Salisbury to Nicholas Cusanus, Occam and Dante, no point of fancied analogy between the parts and members of the body and the various functions of Church and State was left unexploited.[409]

Mankind then is one community; also an organism. But within the human organism abides the duality of soul and body; and the Community of Mankind on earth is constituted of two orders, the spiritual and temporal, Church and State.[410] There must be either co-ordination between State and Church, body and soul, or subordination of the temporal and material to the eternal and spiritual. To evoke an adjustment of what was felt to be an actually universal opposition, was the chief problem of mediaeval polity, and forms the warp and woof of conflicting theories. The Church asserted a full spiritual supremacy even in things temporal, and, to support the claim, brought sound arguments as well as foolish allegory--allegory pretending to be horror-stricken at the vision of an animal with two heads, a bicephalic monstrosity. But does not the Church comprise all mankind? Did not God found it? Is not Christ its head, and under Him his vicegerent Peter and all the popes? Then shall not the pope who commands the greater, which is the spiritual, much more command the less, the temporal? And all the argumentation of the two swords, delivered to Peter, comes into play. That there are two swords is but a propriety of administration. Secular rulers wield the secular sword at the pope’s command. They are instruments of the Church. Fundamentally the State is an ecclesiastical institution, and the bounds of secular law are set by the law spiritual: the canon law overrides the laws of every State. True, in this division, the State also is ordained of God, but only as subordinate. And divinely ordained though it be, the origin of the State lies in sin; for sin alone made government and law needful for man.[411]

On the other hand, the partisans of the State upheld co-ordination as the true principle.[412] The two swords represent distinct powers, Sacerdotium and Imperium. The latter as well as the former is from God; and the two are co-ordinates, although of course the Church which wields the spiritual sword is the higher. This theory creates no bicephalic monster. God is the universal head. And even as man is body as well as soul, the human community is State as well as Church; and the State needs the emperor for its head, as the Church has the pope. The Roman Dominion, _imperium mundi_, was legitimate, and by divine appointment has passed over to the Roman-German emperor. Other views sustaining the scheme of co-ordination upheld a plurality of states, rather than one universal Imperium. Of course these opposing views of subordination or co-ordination of State and Church took on every shade of diversity.

As to both Church and State, mediaeval political theory was predominantly monarchical. Ideally this flowed from the thought of God as the true monarch of the universe. Practically it comported with mediaeval social conditions. Under Innocent III., if not under Gregory VII., the Church had become a monarchy well-nigh absolute.[413] The pope’s power continued plenary until the great schism and the age of councils evoked by it. For the secular state, the common voice likewise favoured monarchy. The unity of the social organism is best effected by the singleness of its head. Thomas Aquinas authoritatively reasons thus, and Dante maintains that as the unifying principle is Will, the will of one man is the best means to realize it.[414] But monarchy is no absolute right existing for the ruler’s benefit, rather it is an office to be righteously exercised for the good of the community. The monarch’s power is limited, and if his command outrages law or right, it is a nullity; his subjects need not obey, and the principle applies, that it is better to obey God than man. Even when, as in the days of the Hohenstaufen, the civil jurists claimed for the emperor the _plenitudo potestatis_ of a Roman Caesar, the opposite doctrine held strong, which gave him only a limited power, in its nature conditioned on its rightful exercise.

Moreover, rights of the community were not unrecognized, and indeed were supported by elaborate theories as the Middle Ages advanced to their climacteric. The thought of a contract between ruler and people frequently appears, and reference to the contract made at Hebron between David and the people of Israel (2 Sam. v. 3). The civil jurist also looked back to the principle of the _jus gentium_ giving to every free people the right to choose a ruler; also to that famous text of the _Digest_, where, through the _lex regia_, the people were said to have conferred their powers upon the princeps.[415] With such thoughts of the people’s rights came theories of representation and of the monarch as the people’s representative; and Roman corporation law supplied the rules for mediaeval representative assemblies, lay and clerical.[416]

The old Germanic state was a conglomerate of positive law and specific custom, having no existence beyond the laws, which were its formative constituents. Such a conception did not satisfy mediaeval publicists, imbued with antique views of the State’s further aims and potency. Nor were all men satisfied with the State’s divinely ordered origin in human sinfulness. An ultimate ground for its existence was sought, commensurate with its broadest aims. Such was found, not in positive, but in natural law--again an antique conception. That a veritable natural law existed, all men agreed; also that its source lay back of human conventions, somehow in the nature of God. All admitted its absolute supremacy, binding alike upon popes and secular monarchs, and rendering void all acts and positive laws contravening it. It must be the State’s ultimate constituent ground.

God was the source of natural law. Some argued that it proceeded from His will, as a command, others that its source was eternal Reason announcing her necessary and unalterable dictates; again its source was held to lie more definitely in the Reason that was identical with God the _summa ratio in Deo existens_, as Aquinas puts it. From that springs the _Lex naturalis_, ordained to rest on the participation of man, as a rational creature, in the moral order which he perceives by the light of natural reason. This _lex naturalis_ (or _jus naturale_) is a true promulgated law, since God implants it for recognition in the minds of men.[417] Absolute unconditional supremacy was ascribed to it, and also to the _jus divinum_, which God revealed supernaturally for a supramundane end. A cognate supremacy was ascribed to the _jus commune gentium_, which was composed of rules of the _jus naturale_ adapted to the conditions of fallen human nature.

Such law was above the State, to which, on the other hand, positive law was subject. Whenever the ruler was conceived as sovereign or absolute, he likewise was deemed above positive law, but bound by these higher laws. They were the source and sanction of the innate and indestructible rights of the individual, to property and liberty and life as they were formulated at a later period. It is evident how the recognition of such rights fell in with the Christian revelation of the absolute value of every individual in and for himself and his immortal life. On the other hand, certain rights of the State, or the community, were also indestructible and inalienable by virtue of the nature of their source in natural law.[418]

This abstract of political theory has been stated in terms generalized to vagueness, and with no attempt to follow the details or trace the historical development. The purpose has been to give the general flavour of mediaeval thought concerning Church and State, and the Individual as a member of them both. One observes how the patristic and mediaeval Christian thought mingles with the antique; and one may assume the intellectual acumen applied by legist, canonist, and scholastic theologian to the discussion and formulation of these high arguments. The mediaeval genius for abstractions is evident, and the mediaeval faculty of linking them to the affairs of life; clear also is the baneful effect of mediaeval allegory. Even as men now-a-days are disposed to rest in the apparent reality of the tangible phenomenon, so the mediaeval man just as commonly sought for his reality in what the phenomenon might be conceived to symbolize. Therefore in the higher political controversies, even as in other interests of the human spirit, argument through allegory was accepted as legitimate, if not convincing; and a proper sequence of thought was deemed to lie from one symbolical meaning to another, with even a deeper validity than from one palpable fact to that which followed from it.