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68
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all countries of Western Europe — in France, Germany,
Italy, Spain, England. The canon law insisted on
certain principles of fairness: thus, it acknowledged
that a civil action might extend sometimes over three
years, against the ordinary rule (c. 20, X, lib. II, tit.
1); connected questions, such as disputes about pos-
sessions and the right of property, were to be sub-
mitted to the same coiut (c. 1, X, lib. II, tit. 12; c. 1,
X, lib. II, tit. 17) ; a suspected jud^e could not be re-
fused, unless the reasons were manifested and proved
(c. 61, X, lib. II, tit. 28); of two contradictory sen-
tences rendered by different judges the one favouring
the accused was to prevail (c. 26, X, lib. II, tit. 27);
the intention of appealing could be manifested outside
of the court in the presence of good men, if anyone
entertained fear of the judge (c. 73, X, lib. II, tit. 28).
(9) Legislation^ Government^ and Administration of
Justice. — The Church was allowed to exercbe a wide
influence on civil law by the fact that her ministers,
chiefly the bishops and abbots, had a laree share in
framing the leges barbarorum. Practically all the
laws of the barbarian nations were written under
Christian influences; and the unlettered barbarians
willingly accepted the aid of the lettered clergy to re-
duce to writing the institutes of their forefathers.
The co-operation of the clergy is not expressly men-
tioned in all the codes of this kind: in some only the
learned in the law, or, again, the proceres, or nobles, are
spoken of; but the ecclesiastics were, as a rule, the
only learned men, and the higher clergy, bishops and
abbots, belonged to the class of the nobles. Eccle-
siastics — priests or bishops — were certainly employed
in the composition of the "Lex Romana Visigotho-
rum" or **Breviarium Alarici*', the '^Lex Visigotho-
rum" of Spain, the "Lex Alamannorum", the "Lex
Bajuwariorum", the Anglo-Saxon laws, and the ca-
pitularies of the Frankish kings (cf. Stobbe, "Gesch.
der deut. Rechtsquellen", I). The bishops and ab-
bots also had a great share in the government of
states in the MidcQe Ages. They took a leading part
in the great assemblies common to most of the Ger-
manic nations; they had a voice in the election of the
kings; they performed the coronation of the kings;
they lived much at the Court, and were the chief ad-
visers of the kings. The office of chancellor in Eng-
land and in the medieval German Empire was the
highest in the State (for the chancellor was the prime
mmister of tb^ king or emperor, and responsible for all
his public acts; it was the chancellor who annulled in-
iquitous decrees of the king or emperor, and righted all
that was wrong) ; and this office was usually entrusted
to an ecclesiastic, in Germany generally to a distin-
Siished bishop (cf. Stubbs, "Constitutional History of upland, I; Waitz, "Deutsche Verfassunesge- schichte, VI). The bishops also had a great snare in the administration of justice. As in the East so also in the West, they had a general superintendence over the courts of justice. They always had a seat in the highest tribunal; to them the injured parties could appeal in default of justice; and they had the power to punish subordinate judges for injustice in the absence of the king. In Spain they had a special chaise to keep continual watch over the administration of jus- tice, and were summoned on all great occasions to in- struct the judges to act with pietv and justice. What is more, they often acted directly as judges in tem- poral matters. By a law of the Emperor Constantine (321) the parties to a litigation could, by mutual con- sent, appeal to the bishop in any stage of their ju- dicial tontroversv; and by a further enactment (331) either party coujd do so even without the consent of the other. This second part, however, was again ab- rogated by subsequent legislation.
In the Middle Ages the bishops acted likewise as judges, both in civil and in criminal matters. In civil matters the Church drew to its jurisdiction all things of a mixed character — ^the causa spirituali annexas,
9
which were partly temporal and partly ecclesiastical. Criminal matters were brought oefore the bishop's court, which was held usually in connexion with the episcopal visitation throughout the diocese (cf. Sfig- mdller, " Lehrbuch des Kirchenrechts", III, 668 s^q^. The methods employed by the ecclesiastical or episco- pal courts in a ludicial process were such that they served as a model for secular courts. At the begin- ning the proceedings were very simple; the bishop decided the case presented to him witn the advice of the body of presbyters, but without any definite formal- ities. After the twelfth century the Church elaborated her own method of procedure, with such comparative perfection that it was imitated to a large extent hy modern courts. Several principles pre^mled in this regard: first, all essential parts of a trial were to be recorded in writing — such as the presentation of the complaint, the citation of the defendant, the proofs, the deposition of witnesses, the defence^ and the sen- tence; secondlv, both parties were entitled to a full opportunity of presenting all material relating^ to the accusation or to the defence; thirdly, the parties in a litigation had the right of appealing to a higher court after the lapse of the ordinary term for a trial (which was two years) ; the party dissatisfied with the deci- sion was permitted to appeal within ten days after the rendering of the sentence (cf . Sfigmiiller, " Lehrbuch des Kirchenrechts'*, III, 668 sqq.).
(10) Sacred Scripture in Legislation. — A last in- stance of the influence of Christianity on legislation is found in the appeal to the books of Sacred Scripture in support of civil laws. In the Roman law there is hardly any reference to Scripture. And that is not surprising, since the spirit of Roman legislation, even under the Christian emperors, was heathen, and the emperor — the princijns voluntas — was conceived of as the supreme and ultimate source of legislation. On the contrary, the codes of the barbarian nations are replete with quotations from Scripture. In the pro- logue to several of them reference is made to the legis- lation given by Moses to the Jewish people (cf . Stobbe, "Gesch. der deut. Rechtsquellen", I, 67). Mention has been made above of a Ix>mbardic law which recog- nizes the legality of marriages among slaves on the authority of the Scriptural text: "Wnom God hath joined together, let no man put asunder " (Matt., xix, 6; Mark, x, 9). Many other examples may be found, e. ^., in the " Leges Visijgothorum and in the captu- laries of the Frankish kings, where almost every hook of the Old and New Testament is resorted to for argu- ment or illustration. It will suffice to open the pajgee in the editions of these codes by Zeumer, Boretius, and Krause, in the "Mon. Germ. Hist.: L^es, sect. I, 1, Sect. II, 1, 2, where the exact references to the Scriptural passages are marked in foot-notes.
Besides the wor&, already quoted, of Stvbbb and Waiti. see Permaneder in Kxrchenlex., s. v. Civilrecht vend Civil' proteaa, Einfluaa der Kxrche auf dieteWen; Milman, Hittory of Latin Chriatianity, I (New York, 1896): Schaft, Hiaiory of Ike Christian Church, III (5th ed.. New York, 1803): QLAsaotf. Hiatoire du droit H dea inalitutiona de la France, I (Paris, 1887); DiQBT, Morea Catholici, or Agea of Faith (3 vols., London, 1841- 47); Genqler. Einfluaa d. Chriitenthuma aufd. deutache RediU- leben (Erlangen, 1884); Kober, Einfiuaa d. Kirche u. thrar Oeaetzgebimg auf Oesittung . . . im Mittelalter in Tab. TheoL Quartalachrift (1888). 443, 466; TROPLONa, De VinAuenee du ckriatianiame aur U droit romain (reprint, Toure, 1003); Grupp, Culturgeach. dea MiUelaliers (Stuttgart, 1894-97); AllaxOj Laa Eaclavea chrltiena (Paris, 1900) ; Kurth, Oriainea de la dmliaa- tion moderne (Paris, 1898); Ratzinger, Oeach. d. kirchl. Armen- pflege (Freiburg, 1884); Lalxxmakt, Hiat. de la eharitS (Paris, •
Francis J. Schasfbr.
Law, Common (Lat. communis^ general, of general application; lexy law). The term is of English origin and is used to describe the juridical principles and general rules regulating the possession, use and inheri- tance of property and the conduct of individuals, the origin of wluch is not definitely knowq^ which have been observed since a remote period of antiquity, and
