Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/23

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9
1. MAITLAND: A PROLOGUE

inal purpose. Spasmodically the imperial law was enforced against them; at other times the utmost that they could hope for from the state was that in the guise of "benefit and burial societies" they would obtain some protection for their communal property.[1][2] But internally they were developing what was to be a system of constitutional and governmental law, which would endow the overseer (episcopus) of every congregation with manifold powers. Also they were developing a system of punitive law, for the offender might be excluded from all participation in religious rites, if not from worldly intercourse with the faithful.[3] Moreover, these various communities were becoming united by bonds that were too close to be federal. In particular, that one of them which had its seat in the capital city of the empire was winning a pre-eminence for itself and its overseer.[4] Long indeed would it be before this overseer of a non-conformist congregation would, in the person of his successor, place his heel upon the neck of the prostrate Augustus by virtue of God-made law. This was not to be foreseen; but already a merely human jurisprudence was losing its interest. The intellectual force which some years earlier might have taken a side in the debate between Sabinians and Proculians now invented or refuted a christological heresy. Ulpian's priesthood[5] was not priestly enough.[6]

The decline was rapid. Long before the year 300 jurisprudence, the one science of the Romans, was stricken with sterility;[7] it was sharing the fate of art.[8] Its eyes were

  1. Löning, op. cit. i. 195 ff.; Sohm, op. cit. 75. Löning asserts that in the intervals between the outbursts of persecution the Christian communities were legally recognized as collegia tenuiorum, capable of holding property. Sohm denies this.
  2. * Collegia tenuiorum were societies formed for purposes of charity and mutual aid, principally by the workingmen. Boyd, William K. Edicts of the Theodosian Code. New York: 1905. p. 80.
  3. Excommunication gradually assumes its boycotting traits. The clergy were prohibited, while as yet the laity were not, from holding converse with the offender. Löning, op. cit. i. 264; Hinschius, op. cit. iv. 704.
  4. Sohm, op. cit. 378 ff.; Löning, op. cit. i. 423 ff.
  5. Dig. 1. 1. 1.
  6. The moot question (Krüger, op. cit. 203; Karlowa, op. cit. i. 739) whether the Tertullian who is the apologist of Christian sectaries is the Tertullian from whose works a few extracts appear in the Digest may serve as a mnemonic link between two ages.
  7. Krüger, op. cit. 260; Karlowa, op. cit. i. 932.
  8. Gregorovius, History of Rome (transl. Hamilton), i. 85.