306 HISTORY OF ROMAN LAW 



IV 



To any student of the early history of Roman law, its connection 

 with the history of Religion must be evident. We cannot tell exactly 

 what form of punishment is referred to in the words sacer esto of the 

 laws of the Kings and the Twelve Tables, but it must have been of 

 a religious character, and there can be little doubt that the earliest 

 sanction of contract was the displeasure of the gods. Sponsio, sacra- 

 mentum, iusiurandum all had a religious origin, and the last of these 

 remained to the very end religious in form. Even as late as the time 

 of Justinian, when there were so many different ways in which con- 

 tracts could be made, it is astonishing to see how much the oath 

 was still resorted to as a mode of making a binding promise. Its 

 original sanction doubtless was that the perjurer became exsecratus, 

 cut off from the sacred rites of his family, but by Justinian's time 

 the breach of an oath gave to the promisee an ordinary civil right of 

 action. 1 



Again it is well known that, just as the ethical ideals of the Stoic 

 philosophy affected the development of Roman law in the first, second 

 and third centuries, so the religious ideals of Christianity exerted 

 an even greater influence upon it from the fourth century to the 

 sixth. This meant on the whole an improvement of the law in the 

 direction of increased humanity and equality, except in the law of 

 persons. There we find, in the disabilities attached to Jews, pagans, 

 and heretics, differences based on religion making their appearance 

 for the first time in Roman law. On the other hand, by bettering the 

 condition of slaves and of women, by mitigating the patria potestas, 

 and by the gradual abolition of the rights of agnates which cul- 

 minated in the famous one hundred and eighteenth Novel of Jus- 

 tinian, the Christian leaven worked with salutary effect. 2 



Still more interesting, however, and more far-reaching was the 

 converse process, the modification wrought by the legal atmosphere 

 of Rome in the religious rites and doctrines of Christianity. So far 

 as I know, this subject has never yet received adequate treatment, 

 which is the more strange because Sir H. Maine long ago drew attention 

 to it in a famous passage. 3 But the field is an immense one, and a few 

 points only can here be mentioned. As to ritual, it is scarcely neces- 

 sary to recall the fact that the solemn questions put to the man and 

 woman in the marriage service and to the sponsors in the baptismal 

 service, which still survive in the English Book of Common Prayer, 

 were framed in the contractual form peculiar to Roman law. Richard 

 Hooker, to whom the use for such a purpose of this Roman form 

 seemed quite natural and proper, explains to the English reader how 



1 Dig. 13, 5, 25, 1. 



2 Troplong, Influence du Christianisme sur le Droit Civil. Lea, Studies in 

 Church History. Osborn, Classical Heritage of the Middle Ages. 



3 Ancient Law (llth ed.), p. 357. 



