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The Position Of The State Church

The elevation of the Church exposed the Church to worldliness whereby
selfish men, or men carried away with partisan zeal, took advantages of
its privileges or contended fiercely for important appointments. The
clergy all too frequently ingratiated themselves with wealthy members of
their flocks that they might receive from them valuable legacies, an abuse
which had to be corrected by civil law; factional spirit occasionally led
to bloodshed in episcopal elections. But on the other hand the Church was
employed by the State in an important work which properly belonged to the
secular administration, viz., the administration of justice in the
episcopal courts of arbitration, for which see Cod. Just., I, tit. 3,
de Episcopali Audientia; cf. E. Loening, Geschichte des deutschen
Kirchenrechts, vol. I; and in the supervision of civil officials in the
expenditures of funds for public improvements. These are but instances of
their large public activity according to law.

(a) Ammianus Marcellinus, Hist. Rom., XXVII, 3, 12 ff. Cf.
Kirch, nn. 607 ff.

Damasus and Ursinus.

The strife which attained shocking proportions in connection with
the election of Damasus seems to have been connected with the
schism at Rome occasioned by the attitude of Liberius in the Arian
controversy. Damasus proved one of the ablest bishops that Rome
ever had in the ancient Church. For aid in overcoming the
partisans of Ursinus a Roman council appealed to the Emperor
Gratian, whose answer is given in part above, 72, e.

12. Damasus and Ursinus, being both immoderately eager to obtain the
bishopric, formed parties and carried on the conflict with great asperity,
the partisans of each carrying their violence to actual battle, in which
men were wounded and killed. And as Juventius, prefect of the city, was
unable to put an end to it, or even to soften these disorders, he was at
last by their violence compelled to withdraw to the suburbs.

13. Ultimately Damasus got the best of the strife by the strenuous efforts
of his partisans. It is certain that on one day one hundred and
thirty-seven dead bodies were found in the Basilica of Sicinus, which is a
Christian church. And the populace who had thus been roused to a state of
ferocity were with great difficulty restored to order.

14. I do not deny, when I consider the ostentation that reigns at Rome,
that those who desire such rank and power may be justified in laboring
with all possible exertion and vehemence to obtain their wishes; since
after they have succeeded, they will be secure for the future, being
enriched by offerings of matrons, riding in carriages, dressing
splendidly, and feasting luxuriously, so that their entertainments surpass
even royal banquets.

15. And they might be really happy if, despising the vastness of the city
which they excite against themselves by their vices, they were to live in
imitation of some of the priests in the provinces, whom the most rigid
abstinence in eating and drinking, and plainness of apparel, and eyes
always cast on the ground, recommend to the everlasting Deity and His true
worshippers as pure and sober-minded men.

(b) Codex Theodosianus, XVI, 2, 20; A. D. 370. Cf. Kirch, n. 759.

The following law is only one of several designed to correct what
threatened to become an intolerable abuse.

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 Theodosianus, 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 Constantine's 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 Theodosianus, 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 superstition, 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 assigned them by the sentence of a judge.

(e) Codex Justinianus, 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

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

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