Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/25

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11
1. MAITLAND: A PROLOGUE

ever- juristic ability and whatever power of organization are left among mankind. The new supernatural jurisprudence was finding another mode of utterance; the bishop of Rome was becoming a legislator, perhaps a more important legislator than the emperor.[1] In 380 Theodosius himself commanded that all the peoples which owned his sway should follow, not merely the religion that Christ had delivered to the world, but the religion that St. Peter had delivered to the Romans,[2] For a disciplinary jurisdiction over clergy and laity the state now left a large room wherein the bishops ruled.[3] As arbitrators in purely secular disputes they were active; it is even probable that for a short while under Constantine one litigant might force his adversary unwillingly to seek the episcopal tribunal.[4] It was necessary for the state to protest that criminal jurisdiction was still in its hands.[5] Soon the church was demanding, and in the West it might successfully demand, independence of the state and even a dominance over the state: the church inay command and the state must obey.[6] If from one point of view we see this as a triumph of anarchy, from another it appears as a triumph of law, of jurisprudence. Theology itself must become jurisprudence, albeit jurisprudence of a supernatural sort, in order that it may rule the world.

Among the gigantic events of the fifth century the issue of a statute-book seems small. Nevertheless, through the turmoil we see two statute-books, that of Theodosius II and that of Euric the West Goth. The Theodosian code was an official collection of imperial statutes beginning with those of Constantine I. It was issued in 438 with the consent of Valentinian III who was reigning in the West. No perfect copy of it has reached us.[7] This by itself would tell a sad

  1. Sohm, op. cit. 418. If a precise date may be fixed in a very gradual process, we may perhaps see the first exercise of legislative power in the decretal (A.D. 385) of Pope Siricius.
  2. Cod. Theod. 16. 1. 2.
  3. Löning, op. cit. i. 262 ff.; Hinschius, op. cit. iv. 788 ff.
  4. Löning, op. cit. i. 293; Karlowa, op. cit. i. 966. This depends on the genuineness of Constit. Sirmond. 1.
  5. Löning, op. cit. i. 305; Hinschius, op. cit. iv. 794.
  6. Löning, op. cit. i. 64-94.
  7. Krüger, op. cit. 285 ff.; Karlowa, op. cit. i. 944.