Page:Catholic Encyclopedia, volume 9.djvu/92

 L4W

67

LAW

children was as absolute as that of the master over his slaves: it extended to their freedom and life. The harsher features of this usage were gradually elimi- nated. Thus, according to the laws of different em- perors, the killing of a child either by the father or by the mother was declared to be one of the greatest crimes (Cod. Theod., Ub. IX. tit. 14, 15; Cod. Just., lib. IX, tit. 17; Dig., Ub. XL VIII, tit. 9, lex 1). Cruel treatment of chil^en was forbidden, such as the fus Hberoa noxa dandif i. e., the right of handing children over to the power of someone ipjured by them (Instit. Just, lib. IV, tit. 8) ; children could not be sold or given away to the power of others (Cod. Just., lib. IV, tit. 43, lex 1) ; children that were sold by their father on ac- count of poverty were to be set free (Cod. Theod., lib. Ill, tit. 3, lex 1) ; finally, all children exposed by their parents and fallen into servitude were to become free without exception (Cod. Just., lib. VIII, tit. 52, lex 3). The son of a family was entitled to dispose in his last will of the possessions acquired either m military ser- vice (peculium ccutrense), or in the exercise of an office {peetuium quasi castrense), or in any other way (In- stit. Just., lib. II, tit. 11; c. iv, VI, lib. Ill, tit. 12). The children could not be disinherited at the simple wish of the father, but onlv for certain specified rea- scms based on ingratitude (Nov. CXV. cc. iii sqq.).

(3) Marriage, — In the ancient law of Rome the wife was, like the rest of the familv, the property of the husband, who could dispose of her at will. Chris- tianity rescued woman from this degrading condition by attributing to her equal rights, and by making her the companion of the husband. This equality was in part recognised by imperial laws, which gave to women the right of controlling their property, and to mothers the right of guardianship (Cod. Theod., lib. II, tit. 17, lex 1 ; lib. Ill, tit. 17, lex 4). The boundless liberty of divorce, which had obtained since the time of Augustus, was restricted to a certain n\m[iber of cases. The legislation of the Emperors Constantine and Justinian on this subject did not come up to the standard of Christianity, but it approached it and im- posed a salutary check on the free desire of husband or wife for separation (Cod. Theod., lib. Ill, tit. 16, lex 1; Cod. Just., lib. V, tit. 17, leg.8, 10, 11). Woman was h^hly respected among the barbarian nations; and with some, like the Visigoths, divorce was for- bidden exc^t for adultery.

(4) Wills and Testaments. — ^The canon law intro- duced various modifications in the regulations of the civil law concerning last wills and testaments; among them there is one ^raich enforced a particular fairness in favour of the necessary heirs, such as children. Ac- cording to Uie Roman law, one who became heir or l^atee with the condition of & fideicommisaum (i. e., ot transmitting his inheritance or legacy to another after his death) had the right of deducting the fourth part from the inheritance or legacy, which was not transmitted; this fourth part being known as the Trebellian quarter. Again, the necessary heirs, such as children, nad a claim on a certain part of the inher- itance. If it hap'pened that the share of the necessary heir was bmtiened with h fideicommissum, then the necessary heir was entitled only to deduct the part coming to him as a necessary heir, but not the Tre- bellian quarter (Cod. Just., lib. VI, tit. 49, lex 6). The canon law modified this provision by enjoining that

^the necessary heir in sucn a case was entitled first to deduction of the Trebellian quarter from the rest of the inheritance ^. 16, 18, X, lib. Ill, tit. 26).
 * the deduction of his natural share and then also to the

(5) Property Rights. — According to a provision in the Roman law, a man who was forcibly ejected from hb property could, in order to recover it, apply the procesB known as the interdidtan unde vi against the one who ejected hhn directly or indirectly, i. e., against him wfaoperpetrated the act of ejection or who enimidled H^ Bui he could take action against the

heirs of those who ejected him only in so far as they were enriched by the spoliation, and nunc against a third owner, who meanwhile had obtained possession of his former property .(Dig., lib. XI.VIII, tit. 16, lex 1 tit. 17, lex 3). The canon law modified this unfair measure by decreeing that he who was despoiled of his property could insist first on being reinstated; if the matter were brought to the courts, ne could allege the exceptio apoliif or the fact of spoliation; and, fi- nally, he was permitted to have recourse to the law against a third owner who had acquired the property with the knowledge of its unjust origin (c. 18, X, lib. II, tit. 13; c. 1, VI, lib. II, tit. 5).

(6) Contracts. — The Roman law distinguished be- tween pacts (pacta 7ivda) and contracts. The former could not be enforced by law or a civil action, while the latter, being clothed m special judicial solemnities, were binding before the law and the civil courts. Against this distinction the canon law insists on the obligation incurred by any agreement of whatever form, or in whatever manner it may have been con- tracted (c. 1, 3, X, lib. I, tit. 35).

(7) Prescriptions.-^The Roman law admitted the right of prescription in favour of him who had been in good faith only at the beginning of his possession; and it abstracte<l altogether from the good or bad faith in either party to a civil action, if it were terminated by prescription. The canon law required the good faith in him who prescril)cd for all the time of his posses- sion; and it refused to acknowledge prescription in the case of a civil action against a possessor of bad faith (cc. 5, 20, X, lib. II, tit. 26; c. 2, VI, lib. V, tit. 12, De Reg. Jur.). (See Prescription.)

(8) Legal Procedure. — ^Tho spirit of Christianity made itself felt in the treatment of criminals and pris- oners. Thus prisoners were not to be subjected to in- human maltreatment before their trial (Cod. Theod., lib. IX, tit. 3, lex 1); criminals already sentenced were not to be branded on the forehead (fjod. Theod., lib. IX, tit. 40, lex 2) ; the bishops received the right of interceding for prisoners detained for lighter offences, and to obtain their freedom on the feast of Easter; they were likewise empowered to visit the prisons on Wednesdays or Fridays in order to see that tlie magis- trates heaped no extra afilictions on the prisoners (Cod. Theod., lib. IX, tit. 38, leges 3, 4, 6-8; Cod. Just., lib. I, tit. 4, leges 3, 9, 22, 23). To all this may be added the recognition of the right of asylum in the churches, which prevented a hasty and vindictive administra- tion of justice (Cod. Theod., lib. IX, tit. 15, lex 4). A great evil among the Germanic nations was the trial by ordeals, or juc^j^ments of God. The Church was unable for some time to suppress them, but at least she tried to control them, placed them under the di- rection of the priests, and gave to them a Christian ap- pearance by prescribing special blessings and cere- monies for such occasions. The popes, however, were always opposed to the ordeals as implying a tempting of God; aecrees to that effect were enacted by Nich- olas I (858-67), Stephen V (885-91), Alexander II (1061-73), Celestine III (1191-98), Innocent III (1198-1216), and Honorius III (1216-27) (cc. 22, 20, 7,C. II, q. 5; cc. 1, 3, X, lib. V, tit. 35; c. 9, X, Ub. Ill, tit. 50). Another evil consisted in the feuds or san- guinary conflicts between private persons in revenge for injuries or murders. The Church could not stop them altogether, owing to the conditions of anarchy and barbarism prevailing among the nations in the Middle Ages; but she succeeded at least in restricting them to certain periods of the year, and certain days of the week, by what is known as the treuga Dei, or "Truce of God". By this institution private feuds were forbidden from Advent te the Octave of Epiph- any, from Septuagesima Sundav until the Octave of Pentecost, and from sunset of tV^ednesday until sun- rise of Monday. Laws te that effect were enacted as early as the middle of the eleventh century in neaxW