4. Bulls and rescripts of Popes;
5. The writings of the Fathers;
6. Civil law.[9]
7. Early Christians.—Owing to the persecutions, the early Christians were, in a sense, isolated from the State; they held their property in common, and were governed in matters among themselves by the canon law. However, for want of freedom of discussion and publication, they were unable, even within a single nation of the empire, to promulgate a system of canon law. The foundation of canon law being laid, its development upon the manumission of the Church was rapid.[10]
8. Persecutions, Defenses.—During the religious persecutions the Christians almost had law forced into them by surgical operations. [pg 016] The necessity for their making defenses in the Roman tribunals induced many of them to give Roman law a careful study. Also, the great number of Christians held for trial on all sorts of accusations made that branch of the law of the realm very lucrative for lawyers, and called into the field many Christians. Incidently, men studying for the priesthood made a study of Roman law with a view to avoiding its machinations and continuing their functions as clergymen without being caught in the net of persecution.[11]
9. Constantine, Blending the Law.—When Emperor Constantine became a Christian (325 A.D.), there was a great change, and the members of the bar and judges were mostly Christians. It then became necessary for students of law to study the principles of divine right as taught in the Church, and while the books of the civil law were read by students for the priesthood, the Scriptures and the works of the Fathers were read by the students in law, thus blending the law of the two realms to some extent.[12]
10. “Benefit of the Clergy,” Ecclesiastical Court.—As the old Roman Empire decayed [pg 017] and its power waned, the new one, “The Holy Roman Empire,” gradually implanted itself in southwestern Europe. The humiliation that the divine law and the clergy suffered in being brought into the common courts gave rise to a system of courts within the Church for the purpose of enforcing her morals, doctrines, and discipline. Those courts were established in all Christian countries and had jurisdiction of all felonies excepting arson, treason, and a few other crimes that from time to time were put under the special jurisdiction of the state courts. Whenever a clergyman was arrested for a crime, he pleaded the “benefit of the clergy,” and his case was transferred from the state court to the ecclesiastical court. Also, when a clergyman was convicted in the state court of any crime for which the punishment was death, he could plead the “benefit of the clergy,” which was a protection against his execution.[13]
11. Estates, Guardianship.—Besides the jurisdiction already referred to, the ecclesiastical court had jurisdiction over the settlement of estates and the guardianship of [pg 018] children, which varied in different countries and was very indefinite in some of them.[14]
12. Middle Ages, Common Law.—During the Middle Ages there was a constant effort on behalf of the ecclesiastical courts to extend their jurisdiction, and a counter-effort on behalf of the state courts to assume jurisdiction of cases under the ecclesiastical law. In England, from the conquest of William the Conqueror to the Reformation, the extension of the jurisdiction of the ecclesiastical courts brought the new element of English common law into the canon law; and much of the canon law, following the jurisdiction assumed by the state courts, became the common law of the kingdom of England.[15]
13. Gratian, Reformation.—The canon law reached its full development in the twelfth century, when Gratian, the Blackstone of his age, compiled the system, but it subsequently lost its influence when the Reformation prevailed.[16]