Part 43 (2/2)

Ecclesiastics and those who wish to be known by the name of the continent(137) are not to come into possession of the houses of widows and orphan girls, but are to be put aside by public courts if afterward the affines and near relatives of such think that they ought to be put away.

Also we decree that the aforesaid may acquire nothing whatsoever from the liberality of that woman to whom privately, under the cloak of religion, they have attached themselves, or from her last will; and all shall be of no effect which has been left by one of these to them, they shall not be able to receive anything by way of donation or testament from a person in subjection. But if, by chance, after the warning of our law, these women shall think something is to be left to them by way of donation or in their last will, let it be seized by the fisc. But if they should receive anything by the will of those women in succession to whom or to whose goods they have the support of the _jus civile_ or the benefit of the edict, let them take it as relatives.

(_c_) _Codex Theodosia.n.u.s_, I, 27, 2; A. D. 408.

Edict of Arcadius, Honorius, and Theodosius II concerning the _Audientia Episcopalis_.

According to Roman law many cases were frequently decided by an arbitrator, according to an agreement between the litigants. The bishops had long acted as such in many cases among Christians. As they did not always decide suits on authorization by the courts, their decisions did not have binding authority in all cases. But after Constantines recognition of the Church they were given authority to decide cases, and according to an edict of 333 their decisions were binding even if only one litigant appealed to his judgment. But this was reduced to cases in which there was an agreement between the parties. The following law, the earliest extant, though probably not the earliest, may be found, curtailed by the omission of the second sentence, in _Cod. Just._, I, 4, 8.

An episcopal judgment shall be binding upon all who chose to be heard by the priests.(138) For since private persons may hear cases between those who consent, even without the knowledge of the judges, we suffer it to be permitted them. That respect is to be shown their decisions which is required to be shown your authority,(139) from which there is no appeal.

By the court and the officials execution is to be given the sentence, so that the episcopal judicial examination may not be rendered void.

(_d_) _Codex Theodosia.n.u.s_, II, 1, 10; A. D. 398.

Law of Arcadius and Honorius.

The following law is cited to show that in the legalization of the _Audientia Episcopalis_ the legislation followed a principle that was not peculiar to the position of the Church as the State Church. The Jews had a similar privilege. The conditions under which their religious authorities could act as arbitrators were similar to that in which the bishops acted. This edict can also be found in _Cod. Just._, I, 9, 8.

Jews living at Rome, according to common right, are in those cases which do not pertain to their superst.i.tion, their court, laws, and rights, to attend the courts of justice, and are to bring and defend legal actions according to the Roman laws; hereafter let them be under our laws. If, indeed, any by agreement similar to that for the appointment of arbitrators, decide that the litigation be before the Jews or the patriarchs by the consent of both parties and in business of a purely civil character, they are not forbidden by public law to choose their courts of justice; and let the provincial judges execute their decisions as if the arbitrators had been a.s.signed them by the sentence of a judge.

(_e_) _Codex Justinia.n.u.s_, I, 4, 26.

The following law of the Emperor Justinian, A. D. 530, is one of many showing the way in which the bishops were employed in many duties of the State which hardly fell to their part as ecclesiastics.

With respect to the yearly affairs of cities, whether they concern the ordinary revenues of the city, either from funds derived from the property of the city, or from legacies and private gifts, or given or received from other sources, whether for public works, or for provisions, or public aqueducts, or the maintenance of baths or ports, or the construction of walls and towers, or the repairing of bridges and roads, or for trials in which the city may be engaged in reference to public or private interests, we decree as follows: The very pious bishop and three men of good reputation, in every respect the first men of the city, shall meet and each year not only examine the work done, but take care that those who conduct them or have been conducting them, shall manage them with exactness, shall render their accounts, and show by the production of the public records that they have duly performed their engagements in the administration of the sums appropriated for provisions, or baths, or for the expenses involved in the maintenance of roads, aqueducts, or any other work.

75. Social Significance of the State Church

The Church at no time degenerated into a mere department of the State. In spite of the worldly pa.s.sions that invaded it and the dissensions that distracted it, the Church remained mindful of its duty as not merely a guardian of the deposit of faith but as a school of Christian morality.

This was the principle of the penitential discipline of the ante-Nicene period. It was saved from becoming a mere form, or lost altogether by the custom which became general after 400, of having the confession of sin made in private. In matters of great moral concern, such as the treatment of slaves, marriage, and divorce, and the cruel sports of the arena, the Church was able to exert its influence and eventually bring about a change in the law. And in standing for righteousness, instances were not lacking when the highest were rebuked by the Church, as in the great case of Ambrose and Theodosius.

(_a_) Leo the Great, _Epistula_ 168, ch. 2. (MSL, 54:1210.) _Cf._ Denziger, n. 145.

Confession should no longer be public, but only private. From the tone of the letter it would appear that private confession had been customary for some time and that public confession had so far gone out of use as to appear as a novelty. _V. supra_, 42.

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