Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/24

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10
I. BEFORE THE NORMAN CONQUEST

turned backwards to the departed great. The constitutions of the emperors now appeared as the only active source of law. They were a disordered mass, to be collected rather than digested. Collections of them were being unofficially made: the Codex Gregorianus, the Codex Hermogenianus. These have perished they were made, some say, in the Orient.[1] The shifting eastward of the imperial centre and the tendency of the world to fall in two halves were not for the good of the West. Under one title and another, as coloni, laeti, gentiles, large bodies of untamed Germans were taking up their abode within the limit of the empire.[2] The Roman armies were becoming barbarous hosts. Constantine owed his crown to an Alamannian king.[3]

It is on a changed world that we look in the year 400. After one last flare of persecution (303), Christianity became a lawful religion (313). In a few years it, or rather one species of it, had become the only lawful religion. The "confessor" of yesterday was the persecutor of to-day. Heathenry, it is true, died hard in the West; but already about 350 a pagan sacrifice was by the letter of the law a capital crime.[4] Before the end of the century cruel statutes were being made against heretics of all sorts and kinds.[5] No sooner was the new faith lawful, than the state was compelled to take part in the multifarious quarrels of the Christians. Hardly had Constantine issued the edict of tolerance, than he was summoning the bishops to Arles (314), even from remote Britain, that they might, if this were possible, make peace in the church of Africa.[6] In the history of law, as well as in the history of dogma, the fourth century is the century of ecclesiastical councils. Into the debates of the spiritual parliaments of the empire[7] go what-

  1. Krüger, op. cit. 277 ff.; Karlowa, op. cit. i. 941 fF. It is thought that the original edition of the Gregorianus was made ahout A.D. 295, that of the Hermogenianus between 314 and 324. But their dates are uncertain. For their remains see Corpus Juris Anteiustiniani.
  2. Brunner, op. cit. i. 32-39.
  3. Ibid. 38.
  4. Löning, op. cit. i. 44.
  5. Löning, op. cit. i. 97-98, reckons 68 statutes from fifty-seven years (380-438).
  6. Hefele Conciliengeschichte, i. 201. For the presence of the British bishops, see Haddan and Stubbs, Councils, i. 7.
  7. Sohm, op. cit. 443: "Das ökumenische Koncil, die Reichssynode . . . bedeutet ein geistliches Parlament des Kaisertums."