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§ 17. Legal Sanction of Sunday.

7. The civil sanction of the observance of Sunday and other festivals of the church.

The state, indeed, should not and cannot enforce this observance upon any one, but may undoubtedly and should prohibit the public disturbance and profanation of the Christian Sabbath, and protect the Christians in their right and duty of its proper observance. Constantine in 321 forbade the sitting of courts and all secular labor in towns on "the venerable day of the sun," as he expresses himself, perhaps with reference at once to the sun-god, Apollo, and to Christ, the true Sun of righteousness; to his pagan and his Christian subjects. But he distinctly permitted the culture of farms and vineyards in the country, because frequently this could be attended to on no other day so well;165 though one would suppose that the hard-working peasantry were the very ones who most needed the day of rest. Soon afterward, in June, 321, he allowed the manumission of slaves on Sunday;166 as this, being an act of benevolence, was different from ordinary business, and might be altogether appropriate to the day of resurrection and redemption. According to Eusebius, Constantine also prohibited all military exercises on Sunday, and at the same time enjoined the observance of Friday in memory of the death of Christ.167

Nay, he went so far, in well-meaning but mistaken zeal, as to require of his soldiers, even the pagan ones, the positive observance of Sunday, by pronouncing at a signal the following prayer, which they mechanically learned: "Thee alone we acknowledge as God; thee we confess as king; to thee we call as our helper; from thee we have received victories; through thee we have conquered enemies. Thee we thank for good received; from thee we hope for good to come. Thee we all most humbly beseech to keep our Constantine and his God-fearing sons through long life healthy and victorious."168  Though this formula was held in a deistical generalness, yet the legal injunction of it lay clearly beyond the province of the civil power, trespassed on the rights of conscience, and unavoidably encouraged hypocrisy and empty formalism.

Later emperors declared the profanation of Sunday to be sacrilege, and prohibited also the collecting of taxes and private debts (368 and 386), and even theatrical and circus performances, on Sunday and the high festivals (386 and 425).169  But this interdiction of public amusements, on which a council of Carthage (399 or 401) with reason insisted, was probably never rigidly enforced, and was repeatedly supplanted by the opposite practice, which gradually prevailed all over Europe.170

§ 18. Influence of Christianity on Civil Legislation. The Justinian Code.

While in this way the state secured to the church the well-deserved rights of a legal corporation, the church exerted in turn a most beneficent influence on the state, liberating it by degrees from the power of heathen laws and customs, from the spirit of egotism, revenge, and retaliation, and extending its care beyond mere material prosperity to the higher moral interests of society. In the previous period we observed the contrast between Christian morality and heathen corruption in the Roman empire.171  We are now to see how the principles of Christian morality gained public recognition, and began at least in some degree to rule the civil and political life.

As early as the second century, under the better heathen emperors, and evidently under the indirect, struggling, yet irresistible influence of the Christian spirit, legislation took a reformatory, humane turn, which was carried by the Christian emperors as far as it could be carried on the basis of the ancient Graeco-Roman civilization. Now, above all, the principle of justice and equity, humanity and love, began to assert itself in the state. For Christianity, with its doctrines of man’s likeness to God, of the infinite value of personality, of the original unity of the human race, and of the common redemption through Christ, first brought the universal rights of man to bear in opposition to the exclusive national spirit, the heartless selfishness, and the political absolutism of the old world, which harshly separated nations and classes, and respected man only as a citizen, while at the same time it denied the right of citizenship to the great mass of slaves, foreigners, and barbarians.172

Christ himself began his reformation with the lowest orders of the people, with fishermen and taxgatherers, with the poor, the lame, the blind, with demoniacs and sufferers of every kind, and raised them first to the sense of their dignity and their high destiny. So now the church wrought in the state and through the state for the elevation of the oppressed and the needy, and of those classes which under the reign of heathenism were not reckoned at all in the body politic, but were heartlessly trodden under foot. The reformatory motion was thwarted, it is true, to a considerable extent, by popular custom, which is stronger than law, and by the structure of society in the Roman empire, which was still essentially heathen and doomed to dissolution. But reform was at last set in motion, and could not be turned back even by the overthrow of the empire; it propagated itself among the German tribes. And although even in Christian states the old social maladies are ever breaking forth from corrupt human nature, sometimes with the violence of revolution, Christianity is ever coming in to restrain, to purify, to heal, and to console, curbing the wild passions of tyrants and of populace, vindicating the persecuted, mitigating the horrors of war, and repressing incalculable vice in public and in private life among Christian people. The most cursory comparison of Christendom with the most civilized heathen and Mohammedan countries affords ample testimony of this.

Here again the reign of Constantine is a turning point. Though an oriental despot, and but imperfectly possessed with the earnestness of Christian morality, he nevertheless enacted many laws, which distinctly breathe the spirit of Christian justice and humanity: the abolition of the punishment of crucifixion, the prohibition of gladiatorial games and cruel rites, the discouragement of infanticide, and the encouragement of the emancipation of slaves. Eusebius says he improved most of the old laws or replaced them by new ones.173 Henceforward we feel beneath the toga of the Roman lawgiver the warmth of a Christian heart. We perceive the influence of the evangelical preaching and exhortations of the father of monasticism out of the Egyptian desert to the rulers of the world, Constantine and his sons: that they should show justice and mercy to the poor, and remember the judgment to come.

Even Julian, with all his hatred of the Christians, could not entirely renounce the influence of his education and of the reigning spirit of the age, but had to borrow from the church many of his measures for the reformation of heathenism. He recognized especially the duty of benevolence toward all men, charity to the poor, and clemency to prisoners; though this was contrary to the heathen sentiment, and though he proved himself anything but benevolent toward the Christians. But then the total failure of his philanthropic plans and measures shows that the true love for man can thrive only in Christian soil. And it is remarkable, that, with all this involuntary concession to Christianity, Julian himself passed not a single law in line with the progress of natural rights and equity.174

His successors trod in the footsteps of Constantine, and to the end of the West Roman empire kept the civil legislation under the influence of the Christian spirit, though thus often occasioning conflicts with the still lingering heathen element, and sometimes temporary apostasy and reaction. We observe also, in remarkable contradiction, that while the laws were milder in some respects, they were in others even more severe and bloody than ever before: a paradox to be explained no doubt in part by the despotic character of the Byzantine government, and in part by the disorders of the time.175

It now became necessary to collect the imperial ordinances176 in a codex or corpus juris. Of the first two attempts of this kind, made in the middle of the fourth century, only some fragments remain.177  But we have the Codex Theodosianus, which Theodosius II. caused to be made by several jurists between the years 429 and 438. It contains the laws of the Christian emperors from Constantine down, adulterated with many heathen elements; and it was sanctioned by Valentinian III. for the western empire. A hundred years later, in the flourishing period of the Byzantine state-church despotism, Justinian I., who, by the way, cannot be acquitted of the reproach of capricious and fickle law-making, committed to a number of lawyers, under the direction of the renowned Tribonianus,178 the great task of making a complete revised and digested collection of the Roman law from the time of Hadrian to his own reign; and thus arose, in the short period of seven years (527–534), through the combination of the best talent and the best facilities, the celebrated Codex Justinianeus, which thenceforth became the universal law of the Roman empire, the sole text book in the academies at Rome, Constantinople, and Berytus, and the basis of the legal relations of the greater part of Christian Europe to this day.179

This body of Roman law180 is an important source of our knowledge of the Christian life in its relations to the state and its influence upon it. It is, to be sure, in great part the legacy of pagan Rome, which was constitutionally endowed with legislative and administrative genius, and thereby as it were predestined to universal empire. But it received essential modification through the orientalizing change in the character of the empire from the time of Constantine, through the infusion of various Germanic elements, through the influence of the law of Moses, and, in its best points, through the spirit of Christianity. The church it fully recognizes as a legitimate institution and of divine authority, and several of its laws were enacted at the direct instance of bishops. So the "Common Law," the unwritten traditional law of England and America, though descending from the Anglo-Saxon times, therefore from heathen Germandom, has ripened under the influence of Christianity and the church, and betrays this influence even far more plainly than the Roman code, especially in all that regards the individual and personal rights and liberties of man.