THE EASTERN ROMAN EMPIRE (717-1453)

CHAPTER XXII.

BYZANTINE LEGISLATIONFROM THE DEATH OF JUSTINIAN (565) TO 1453.

In this long evolution of almost nine hundred years extending from the death of Justinian to the capture of Constantinople by the Turks, it is necessary to distinguish periods. The first period reaches from the death of Justinian to the reign of Basil the Macedonian (565-866); during this time Justinian's codification remained the principal source of law. The second period includes the interval between the accession of Basil the Macedonian and the date when Constantine Monomachus reestablished the School of Law in Constantinople (867-1045); its main feature was the publication of a new compilation of laws, the Basilics. The third period stretches from this restoration of the School of Law in Constantinople down to the fall of the Byzantine Empire (1045-1453); this period was marked, at least at first, by a revival in the science of law due to the great event of 1045, and later by the final decadence. In the study of these three periods, it will be necessary to point out what were the new constitutions (Novels) promulgated by the Emperors who succeeded each other on the throne, and also to mention the legal works which, together with Justinianean law, the Basilics, and the Novels, formed the sources of Byzantine legislation, a system as complicated as that of Roman law, but which never attained its perfection.

I

Commentaries on Justinian’s work.

The study of Byzantine legislation after Justinian cannot be undertaken without a consideration of the works devoted to his codification even during the Emperor's life-time. For at whatever period they may have been written, whether before or after 565, the commentaries on the imperial compilation composed by Greek professors became, in the same way as the work itself, a veritable source of Byzantine law of the very highest value, from which materials for other works or codes were for long derived.

Justinian, fearing that freedom of commentary would reduce law to the former confusion and disorder which he had intended once and for all to end, authorized jurisconsults to select one of three methods only in explaining his Digest and his Code: (1) by giving literal translations of the Latin texts into Greek. (2) either by framing additions to one of the ‘titles’ in the original, in the form of a systematic statement or in the form of extracts from other parts of the text closely related to the subject of the ‘title’ under consideration, or else by drawing up tables of concordance between a given law and other texts . (3) by making abridgments or summaries of the texts. These three methods were employed concurrently in the schools of the East. But a fourth method was tolerated although it was a departure from the imperial injunctions: the use of explanatory notes on passages in the legislative work. This was the only fruitful method in common use even before Justinian in the days when legal instruction was concentrated on the sources of classical Roman law; it was by means of this method that the professors of the sixth and seventh centuries still succeeded in making some improvements in the law.

The commentators whose names and places of residence have come down to us are the following:

Under Justinian we find Theophilus, professor in Constantinople, probably the author of the celebrated Greek Paraphrase of the Institutes of Justinian, who also gave lessons on the Digest; Dorotheus, professor in Berytus (Beyrout) (Institutes and Digest); Isidore (Digest and Code); Anatolius, professor in Berytus (Code); Thalelaeus (Code and Digest), author of the most extensive commentary on the Code; Julian, professor in Constantinople, who formed the collection of Novels translated into Latin and called by his name, the Epitome Juliani.

Under Justin II and Maurice there are Stephen, an eminent jurisconsult (Digest, Code, Institutes); Cobidas (Digest); Cyril the Younger (Digest); the advocates Athanasius (Novels), Theodore of Hermopolis (Code, Digest?, Novels), Anastasius (Digest), Philoxenus and Symbatius (Novels), and finally an unknown jurisconsult called the Anonymus (Digest).

With the exception of the Paraphrase of the Institutes composed by or attributed to Theophilus, the works of the preceding authors have not been preserved in their integrity. They are only known to us by the extracts which constitute the ‘ancient scholia’ on the Basilics, to which we shall refer later.

After an eclipse of the science of law in the days of Phocas, the reign of the Emperor Heraclius (610-641) witnessed the appearance of some few legal works, two of which still relate to the work of Justinian. (1) The Book of the Antinomies, written by an anonymous author, who from the title of his work has received the name of Enantiophanes; only a few fragments have survived in the scholia on the Basilics; (2) Ai Ropai, a collection which was widely known even in the West, and which consisted of classified excerpts of all passages in Justinianean law referring to the legal influence which prescription “up to a hundred years” has on the substance of law. A third work, which is devoted to law-suits (the treatise De Actionibus) is the re-issue in a revised form of a treatise prior to Justinian, which in spite of its poor quality had a certain success, for it went through another edition after the publication of the Basilics.

Novels of Justin II, Tiberius, and Heraclius

Only a very small number of the Novels promulgated by Justin II, Tiberius, and Heraclius have been preserved. They relate to matters of public, ecclesiastical, or private law (especially marriage). The most celebrated are Novels XXII to XXV of Heraclius on the organization of the Church, and especially on the privilegium fori. The Novels of Tiberius possess an interest of another kind. Under Justin II, the economic situation of the Eastern Empire, already serious in the time of Justinian, had become still worse. The Powerful, certain of impunity, gave way to excesses which Constantine Manasses chronicles in his emphatic verses. Tiberius, both as co-regent and when reigning alone, tried to counteract this situation by his Novels, which reveal the distress of the small landholders, the gradual disappearance of free laborers, the venal partiality of the governors, and the tyranny of the Powerful. According to Monnier, Tiberius suspended the practice of the epiboli (adiectio, or the compulsory linking of waste lands to adjoining cultivated land, with a view to ensuring the collection of the tax); the epiboli was not reestablished until the reign of Nicephorus I (802-811), and then under a different form.

A fresh eclipse of legislation occurred in the century which intervened between the reign of Heraclius and that of the Iconoclastic Emperor, Leo III. Leo and his son Constantine V have also only left a few Novels. On the other hand, famous in political and religious history for the iconoclastic reform, they have retained the attention of jurists owing to the publication of a very important work, the Ecloga, a kind of civil code, to which must be added the three Codes which complete it, the Military Code, the Maritime Code, and the Rural Code.

The Ecloga was for long ascribed to other Emperors likewise bearing the names of Leo and Constantine, the sons of Basil the Macedonian. Nowadays no one disputes its attribution to Leo III and Constantine V. The Ecloga was promulgated by them in March 740. It is a kind of abridged civil code, founded on the Institutes, Digest, Code, and Novels of Justinian, “corrected with a view to improvement”, as the very title of the work states, and conceived in a more Christian spirit. The Preface indicates the purpose of the work. Having recognized that the laws promulgated by their predecessors were dispersed throughout many books, and that their meaning escaped many of their subjects, especially those dwelling in the provinces, the Emperors—according to the version of certain manuscripts—ordered the quaestor Nicetas, another Nicetas, and Marinus, as well as other officials, to collect the ancient books, and to arrange in a clearer and more concise manner the decisions on the more ordinary cases and contracts and on the scale of penalties for crimes. In accordance with this programme, the Ecloga is therefore not an exhaustive work; the Emperors did not seek to regulate everything, but only here and there to establish the precision which was needed. It consists of eighteen titles, dealing with the ordinary actions of legal life (betrothal, marriage, dowry, donations, wills, successions and legacies, wardship, enfranchisement), with contracts, with crimes, and finally with the division of the spolia. The enactments contained in the work are—as modern scholars have shown—frequently derived from the popular or vulgar customary law of the East, while other enactments spring from the development of the principles of Justinianean law. Certain provincial Greek institutions, differing from those of Rome, have become legal institutions in the Ecloga : thus, among other instances, the distinction between marriage by written contract and marriage without it, to which concubinage was assimilated, the restriction of wardship to minors, the impossibility of emancipating minors, the exercise of the patria potestas by the mother and father conjointly, the necessity for the consent of both parents to the marriage of children alieni or sui iuris, the right of the surviving partner in a marriage to the property of the deceased partner, their two estates being now considered to become one by marriage. In this respect the vigorous judgment of the Iconoclasts, and their lofty conception of family life, made them far exceed the limits of Roman law; community of property and identity of pecuniary interests were to them logical consequences of personal union; breaking here and there through the shackles of the dowry system, there appears a system fully inspired with the Christian ideal of community of goods.

The Ecloga differs from Justinianean law in the absence of all distinction between the tutela and the cura, the regulation of intestate estates, the legal conception of the testament, and the law of disinheritance. The influence exercised therein by ecclesiastical law is mainly shown, as might be expected, in the marriage-laws, in which the Emperors enforced decisions arrived at by the Councils of the seventh century. Finally, the system of punishments, amongst which are found many cruel penalties unknown to the law of Justinian, such as various kinds of mutilation, seems partly to have sprung from the custom by which in practice magistrates inflicted certain arbitrary, but milder, penalties on criminals whom they might have condemned to death.

The authority of the Ecloga diminished in course of time under the influence of the reaction against the policy of the Iconoclasts. It was even formally abrogated by Basil the Macedonian, who wished to replace it by his own productions, and in particular by his Prochiron. But this abrogation proved of no avail because the Ecloga was a convenient manual (Encheiridion), in harmony with provincial customs. It continued all the same its brilliant career, the development of which will be noticed in the course of this sketch. A particular and very striking proof of the favor which it still retained is that certain manuscripts contain both the Ecloga and the Prochiron of Basil himself.

Three small Codes completed the Ecloga: the Military Code, the Maritime Code and the Rural Code. The three Codes answer the same purpose as the principal work: to spare jurists lengthy researches in the works of Justinian and to simplify their task. They were compiled in part directly from these works, in part from the private labors of jurisconsults. Of the three the Rural Code is that which supplies historians with the most useful information on the condition of the free and the dependent peasants in the middle of the eighth century, and on the rural police and the penalties applicable to crimes or to involuntary damage committed in the course of agricultural work.

As a whole, the Iconoclastic Emperors displayed as much originality in legislative, as they did in political, matters. In the judgment of legal historians, their legislative experiments prove their understanding of the fact that Justinian’s codification could not satisfy practical needs, because this work, considered by many modern authors inferior to the works of Roman jurisconsults during the great classical period, was on the other hand too abstruse for the practitioners of the East. The Iconoclasts wished to rectify this excess of science in a personal manner without interfering with the code itself. In opposition to their methods we shall see that Byzantine legislators and jurists of later ages thought they could attain this object in a totally different way by successive attempts to adapt the code to the increasingly feeble intelligence of men of law in the East.

Only a few Novels issued during the period subsequent to Leo III and Constantine V remain. They are due to Leo the Chazar and Constantine VI, to Irene, Nicephorus I, Leo V, and Theophilus. These Novels are chiefly concerned with political, religious, and canonical legislation.

Canon law of the sixth century

According to the chroniclers, it was the Caesar Bardas (856-866) who revived profane letters, which had disappeared and been lost for many years through the barbarism and ignorance of the Emperors. He assigned to each science a school in some fixed spot; he collected scholars in the Palace of Magnaura, he contributed handsomely to their support, and ordered them to give free instruction to their pupils. The chroniclers conclude by saying that the personal action of Bardas did so much good that the laws revived. Although we have no exact information on the form assumed by legal education at this period, it is necessary to mention the initiative of Bardas, because it doubtless contributed to the legal equipment of the men who were themselves to accomplish great things, or to assist the Emperors in accomplishing them, in ensuing years.

In Justinian’s reign, the canons of the Eastern Ecumenical Councils were combined with the Constitutions of the Code relating to ecclesiastical matters in the Collectio XXV capitulorum (about 535). At an unrecorded date in the sixth century there appeared the Synagoge canonum under fifty titles, ascribed either to John Scholasticus (of Antioch) or to other writers. An appendix to this work called the Collectio LXXXVII capitulorum includes extracts from some lost Novels of Justinian. From a slightly later period date the Synopsis Canonum attributed to Stephen of Ephesus, and the Collectio constitutionum ecclesiasticarum tripertita, the manuscripts of which include as an appendix the four Novels of Heraclius already cited, which contain important pronouncements on the organization of the Eastern Church. To the end of the sixth century belong the three first known Nomocanones: the Nomocanon titulorum derived from the Synagoge canonum, which only assumed its final form in the ninth century; the Canonicon of John Nesteutes; and the Nomocanon XIV titulorum, which achieved the greatest success. Formerly it was erroneously attributed to Photius (ninth century), but it was really due, according to some, to the Anonymus or to Hieronymus, according to others, to Julian the editor of the Epitome of the Novels of Justinian.

II

Legislation of Basil I

The second period is dominated by the names of two law-giving Emperors : Basil the Macedonian (867-886) and Leo the Wise (886-911), who both lived at its commencement.

Basil, a conqueror on the field of battle, wished likewise to ensure for his subjects the benefits of a system of legislation more practical than that which had existed before him. Two motives urged him to this course. The first, of a legislative kind, is mentioned by his official biographer, the author of the Vita Basilii: it was to dissipate the obscurity and unravel the confusion prevailing in civil law as a result of good and bad enactments, and the uncertainty as to which laws had been abrogated and which were still in force. The second motive, of a political order, is referred to in the Prologue to the Prochiron itself, and in a passage of the Epanagoge two of his works of which we are about to speak: this was to substitute works edited under his own auspices for the Ecloga of the Iconoclasts, against whom Basil had vowed an undying hatred which is betrayed in the unfair judgment he passed on their admirable little book. All Basil’s work was thus intended to achieve the rehabilitation of Justinian’s legislation, which practicing lawyers had been abandoning more and more.

In the first place Basil published an introductory manual to the science of law : lex manualis or Prochiron, promulgated between 870 and 879 by himself and his two sons, Constantine and Leo (the Wise). This very simple manual consisted of texts which were being continually applied in current usage; it has frequently been compared with the Institutes, and it was founded on Greek translations of, and commentaries on, the works of Justinian. In its second part it also reproduced the provisions of the Ecloga in spite of the abuse of its authors in the Prologue. There are few innovations due to Basil. The Prochiron is divided into forty titles: betrothal and marriage (titles I to XI), obligations (titles XII to XX), inheritance (XXI to XXXVII), public law (XXXVIII to XL). The Prochiron enjoyed a great reputation among civil lawyers, as well as among the canonists of the Greek and Russian Churches, even after the fall of the Eastern Empire. Further on we shall quote some striking proofs of the evident estimation in which it was held.

Basil’s second work was likewise a manual of law, published in the names of Basil, Leo, and Alexander, between 879 and 886. This work only constitutes a draft, without any official character, of a ‘second edition’—such is the meaning of the Greek title— of the Prochiron, as well as an introduction to the work which Basil intended to be his masterpiece, the  Repurgatio veterum legum, a collection “of pure and unadulterated law, divided into forty books, and prepared like a divine draught”, a work to which we shall presently return. As regards the Epanagoge, it consists of forty titles corresponding in general to those of the Prochiron. Like the latter, it marks a return to the provisions of Justinianean law, although it includes certain later reforms.

There exists great obscurity as to the Anacatharsis, to which we alluded above. The most competent students of Byzantine history consider that the work, which has not been preserved, was actually executed in Basil’s reign, although there are doubts about its scope, as the Prochiron speaks of a work in sixty books, while the Epanagoge refers to one in forty. Most probably the Anacatharsis was not promulgated by Basil, but served as foundation for the Basilics promulgated by his son, Leo VI.

Legislation of Leo VI: the Basilics

The Emperor Leo the Wise, or the Philosopher, must be regarded as the most eminent Byzantine legislator after Justinian, for on the one hand he has left the most famous and most extensive monument of post-Justinian Graeco-Roman law (the Basilics), and on the other a great number of Novels.

The Basilics owe their name, not to the Emperor Basil, but to their character as imperial decisions. They are also called Sixty-Books because they contain sixty books.

The edict (Proemium) which appears at the beginning of the Basilics explains the aim and defines the spirit of the compilation. According to Leo, the error in the method employed by Justinian was that the same subjects were distributed over four different works (Code, Digest, Institutes, Novels); the Emperor Leo, discarding everything contradictory or obsolete, proposed on the contrary to assemble in one single book all previous laws bearing on the same subject, so as to facilitate reference. For this purpose he appointed a commission of qualified jurisconsults, whose names have been lost, except that of the President, the Protospatharius Symbatius. The exact date when the Basilics were promulgated has not been determined; it has been placed by different authorities in 888, 889, or 890.

The sixty books of the Basilics are divided into a varying number of titles supplied with rubrics; the titles are themselves divided into numbered chapters, and these, finally, are divided into paragraphs.

As there no longer exists in any library a complete manuscript, the general arrangement of the work is only known by the table or Index of the manuscript Coislin 151 of the Bibliotheque Nationale in Paris, and by the Tipucitus. In some particulars the plan follows that of the Code, in others that of the Digest. The first Book is devoted to the Holy Trinity and the Catholic Faith. In the second are collected the general rules of law drawn from the Digest. Books III to V treat of ecclesiastical law. Books VI to IX deal with magistrates, jurisdictions, and procedure. Books X to LIII are devoted to matters concerning civil law. Books LIV to LVII to public and military law. Book LVIII is occupied with servitudes and the water-system, Book LIX with funerary laws. Book LX with crimes and penalties.

Within the titles, the laws (or chapters) are not the personal work of Leo; their text was in no way revised by the commissioners for the Basilics. They were all drawn from earlier works, chiefly from the Code and the Digest, a very few from the Institutes, many from the Novels of Justinian and his successors, a few also from the Prochiron. The laws are all given in Greek; when they are derived from the three Latin works of Justinian, they have been extracted not from the originals but from Greek commentaries of the sixth and seventh centuries; for the Code, from the Commentary of Thalelaeus and from the Breviarium of Theodore; for the Digest, from the commentaries of the Anonymus, Stephen, and Cyril; for the Institutes, from the Paraphrase of Theophilus. The Novels are drawn from the collection called the CLXVIII Novels, in which Justinian’s Novels were completed by the addition of the Novels of Justin II and Tiberius, and by the Eparchies (or Edicts of the Praetorian Prefects).

It must be noted that the text of the laws is, in the manuscripts, accompanied by numerous marginal scholia. The most important of these, which constitute the “ancient scholia”, are extracts from the Greek commentaries of the sixth and seventh centuries enumerated above; they were probably added to the actual text of the laws, of which they represent a sort of interpretation, between 920 and 945, in the reign of Constantine Porphyrogenitus. To refer the addition of the ancient scholia to his reign is the only way of explaining how Balsamon could have attributed a final Repurgatio Legum to Leo’s son. The other scholia, “the recent scholia”, were introduced subsequently, in the course of the eleventh, twelfth, and thirteenth centuries; they are due to jurisconsults of less weight: John Nomophylax, Calocyrus Sextus, Constantine Nicaeus, Gregory Doxopater, Patzus, Theodorita or Hagiotheodorita, and finally the Anonymus.

If we wish to appreciate the value of the Basilics in a few words, it may be said that in themselves they offered to the lawyers of the Greek Empire the great advantage over the Justinianean Code of being a unified work composed in Greek. At the time of their appearance, and for long afterwards, they inspired a respect all the deeper for being the work realized or inspired by the founder of the Macedonian house in continuance of the reforms of the great Emperor Justinian. For modern scholars, the text of the Basilics and the ancient scholia present the advantage of sometimes enabling them to recover the original version of Justinian’s works, which has been altered by copyists, or even the original version of the texts of classical jurisconsults altered by the members of Justinian’s commission. The closer examination of the ancient scholia has even permitted the recovery of some fragments of pre-Justinian law, whose import and origin are only beginning to be perceived.

The Novels of Leo the Wise are chiefly known by the collection of CXIII Novels, with Preface, a collection of which the Latin translation by Agylaeus is appended to the Novels of Justinian in the complete editions of the Corpus iuris civilis. With two exceptions which concern two Novels not appearing in this edition, they are undated. Most of them are later than the Basilics. This collection of CXIII Novels was probably formed previous to Leo’s second marriage (894), or at any rate to his third marriage (899). The Preface states that the Emperor has made a selection among the ancient laws, that he has omitted or expressly abrogated useless laws, and that he has converted into laws certain customs deemed worthy of this honor.

The collection of CXIII Novels has been abridged in a work entitled Ecloga Novellarum Leonis pii Imperatoris in capp. LVI. The author is possibly identical with that of the Synopsis Maior; wishing to preserve only those Novels still in force, he has not kept more than half of the original collection, and has only retained the enactive clauses of the original texts. This Ecloga Novellarum was probably compiled towards the middle of the tenth century.

There exist, moreover, seven Novels by Leo which have survived, in addition to the collection of CXIII Novels.

Leo’s Novels have been utilized by the principal writers of treatises on Civil or Canon Law subsequent to the tenth century: Psellus, Michael Attaliates, Balsamon, Matthew Blastares, and Harmenopulus. Several of these Novels show that, in the reign of Leo the Wise, great territorial estates were constantly growing, and that Leo was not strong enough to struggle with the Powerful, who, under the Macedonian dynasty, were developing into real feudal lords.

Novels from 911 to 1045

During the long period which separated Leo’s reign from that of Constantine Monomachus, i.e. from 911 to 1045, the legislative activity of the Emperors does not appear to have been very fruitful. The manuscripts only provide us with a few Novels by Romanus Lecapenus, Constantine VII Porphyrogenitus, Nicephorus Phocas, John Tzimisces, Basil II Bulgaroctonus, Romanus III Argyrus, and Zoe.

In contrast to the Novels of Basil and Leo which, in completion of their fundamental works, treat various subjects affecting different parts of legislation, the scanty Novels of these Emperors only refer to a few special points. Two subjects in particular are the object of regulations:

1. The law of redemption, preference, or pre-emption (protimesis, ius protimieseos), granted to relatives or neighbours in cases of alienation of some estate or house for a pecuniary consideration, was established principally by Novel II of Constantine VII and Romanus Lecapenus in 922. Some writers have conjectured that this law, which had existed since an earlier period of the Roman Empire, was intended to moderate the oppression of small landholders by the Powerful. The Byzantine Emperors were frequently obliged to revive its operation on account of the inefficacy or obscurity of the decrees of their predecessors.

2. The character of military estates which it was necessary to protect so as to safeguard the resources intended to meet the expenses of the army.

Whatever the subject treated, the Novels are above all concerned with custom, either in recording good customs or in attempting to check bad ones. Amongst the most original institutions which they regulate and which arose from ancient popular customs, must be mentioned the Theoritron referred to for the first time in a Novel of Constantine VII Porphyrogenitus. This was a gift made by the husband to the wife for ius primae noctis or pretium virginitatis; it was in addition to the donation propter nuptias.

Legal education under Leo VI

All official teaching of law in a State school had long disappeared when it was restored by Constantine Monomachus in 1045. It had been replaced, much to the detriment of legal studies, by a purely private system of instruction which is described rather inadequately in broad outline in the Book of the Prefect by Leo the Wise, which is an edict on the trade-gilds of Constantinople, discovered by Nicole. From Chapter I of this edict, devoted to the organization of the notarial profession, we get our information. The twenty-four notaries of the capital formed a corporation. To be eligible for it, young men had to attend the lectures of professors attached to this corporation. These professors were of two kinds, professors of law, and encyclopaedic professors; they were under the supervision of the Prefect, and after having been elected by co-option they had to be confirmed by that high official. The students subsequently underwent an examination before the whole corporation of notaries. Possibly the same professors also taught the youths who were studying for the bar, who would then have to undergo an examination before the gild of advocates. The programme of studies was amazingly simple: the Book of the Prefect states that the candidates “must know by heart the forty titles of the Prochiron and be familiar with the sixty books” (of the Basilics), and this was all.

Some historians have thought that control by the Prefect, enjoined by the Edict of Leo, was not of long continuance, and that the organization of studies by the corporation of notaries became relaxed, so that finally legal education was absolutely uncontrolled; this would give the cause, or one of the causes, for the serious decadence of the science of law between Leo’s reign and the reform of 1045. Their hypothesis seems to be absolutely confirmed by the complaints of Constantine Monomachus, when he took steps to end this lamentable state of things.

Legal treatises based on the Ecloga and Basilics

The Epitome legum, or Ecloga legum in epitome expositarum, which appeared in 920, the first year of the reign of Romanus Lecapenus, was derived, according to its editor Zachariae, from another Epitome ex antiquis libris collecta, consisting of extracts from the Digest (after Stephen and the Anonymus), extracts from the Code (after Theodore and Thalelaeus), extracts from the Novels (after the Breviarium of Theodore), a selection from  the texts of the Prochiron with some references to the Basilics and the Novels of Leo. The author—possibly the Symbatius of the Basilics— announces in a Preface full of interesting historical details that he will only record useful regulations. The work consists of fifty titles. This manual enjoyed a great reputation, as may be seen from the numerous copies and revisions of its text.

The Ecloga of Leo and Constantine, although condemned by Basil, had nevertheless retained a great practical influence for the reasons already indicated. The influence of this very convenient short manual is shown by the publication of new works based upon it, which are known as the Ecloga Privata, the Ecloga Privata Aucta, and the Ecloga ad Prochiron Mutata. The Ecloga Privata was a re-issue, now lost, of the original with some modifications; Zachariae considers that it is the source of the Ecloga Privata Aucta. The Ecloga Privata Aucta seems to have been compiled from the Ecloga Privata and an Encheiridion containing a mixture of Justinianean law and new law. This work expounds the form of Byzantine law prevailing in Southern Italy. Its date is very hard to discover, but possibly it may even be as late as the twelfth century. The Ecloga ad Prochiron Mutata in forty titles seems to have been drawn up at the same date and in the same country. It is derived from the Ecloga Privata, the Epitome legum, and the Prochiron. Two of its peculiarities are, first, the presence among its texts of the Ecloga Legis Mosaicae, extracted from the Mosaic law in thirty-six short chapters taken from the Pentateuch, and, secondly, the presence of loci singulares dealing with penal law, passages of foreign origin alien to Graeco-Roman law, which have given rise to controversy (they are attributed by different writers to a Lombard or to a Norman origin).

The Synopsis Basilicorum Maior is a work composed with the help of the Basilics. It opens with a title on the Orthodox faith. It contains twenty-four parts or letters, divided into titles arranged in alphabetical order according to the rubrics of the titles of the Basilics, and includes extracts from the capitula of the Basilics. The work, whose author is unknown and is perhaps the same as the compiler of the Ecloga Novellarum Leonis, was written towards the middle of the tenth century. It is accompanied by annotations due to various authors. Its success was considerable; it was the foundation of the Synopsis Minor, and was utilized by the Prochirum auctum and by Harmenopulus.

The Prochiron of Basil only underwent one modification. This was the Prochiron legum, which was made up of fragments from the Ecloga, the Prochiron, the Epanagoge, and the Epitome legum; these fragments were adapted to contemporary (late tenth century) practice and to the part of Italy in which the compilation was made.

Amongst other revisions of the Epanagoge, it will be enough to mention the Epanagoge aucta, at the end of the tenth century, a small manual which utilises the Prochiron, the Ecloga cum appendice, the Epitome Novellarum of Athanasius, the Basilics, and the Novels of Leo, as well as the Epanagoge.

The Pira, Canonical collections

After all these works, which were in fact only abridgments or revisions of existing works, we come at last to a more original achievement, which possesses the merit of being the result of practical jurisprudence; it is actually the only example of this kind in all the abundance of Byzantine legal literature.

It was called the Pira or Practica sive Doctrina ex actis magni viri Eitstathii Romani. It was written by an unknown author employed in the law-courts at Constantinople, who appears to have been subsequently a judge in the same courts, and who was regarded with considerable respect by his colleagues. The seventy-five titles of the treatise consist both of fragments from the Basilics and of reports of cases with reasons for the decisions. These cases extend from the middle of the tenth century (about 950) until the reign of Romanus III Argyrus (1028-1034). According to the title of the work, the author utilized the decisions of the famous jurisconsult, Eustathius Romanus, although we are not certain whether the latter ever drew up a list of legal cases which could have served in the composition of the Pira. The Pira is too mediocre a work to be ascribed to Garidas, or to be regarded as an official manual intended for use in the new School of Law of Constantine Monomachus, as has been suggested. Nevertheless it is of sufficient value to supply us with precious details on the jurisprudence and the legal administration, organization, and procedure of the Greek Empire, at the end of the tenth and beginning of the eleventh century.

In conclusion, and for the sake of completeness, it is necessary to mention some monographs written at various times in the tenth and eleventh centuries : the opusculum of Eustathius and of George Phobenus on the Hypoholon (a new name for the donation propter nuptias); a short anonymous commentary on the protimesis (right of redemption); and finally, the treatises de peculiis and de privilegiis creditorum.

In the period between 867 and 1045 there appeared only re-issues of canonical collections or Nomocanones composed in the sixth century. These were: the re-issue in 883 of the Nomocanon XIV titulorum called the Syntagma of Photius, but of which Photius, the well-known Patriarch of Constantinople, was probably neither the new editor nor the author; another revision of the same work, which served as a foundation to the work of Theodore Bestes (eleventh century); and a revision of the Epitome (Synagoge) canonum by Simon the Logothete in the reign of Basil II Bulgaroctonus (975-1025).

III.

The law school of Constantinople (1045)

The development of the science of law has, at all times and in all places, a close connection with the organization of serious instruction in this science. It seems that the system indicated in the Book of the Prefect, which we described in considering the previous period, did not give satisfactory results (if indeed it remained in force). The Novel of Constantine Monomachus in 1045 on the reform of legal education reveal the deplorable results of the system of gild education, and proposes to rectify them by a return to the system of State education. These were the two fundamental ideas developed therein.

The Novel itself states that there were no means of guaranteeing a high standard for professors of law, as these were independent teachers. “The young men”, it says, “eagerly seek for someone to teach them the science of law, but, as they find no one with professional authority and supported by the imperial approval, for lack of a better each adopts the teacher whom he meets haphazard”. Thereby there arose great confusion in the judgment of cases, and often there were divergencies, or even contradictions, in the sentences pronounced by the judges, who had been trained by teachers holding different opinions; hence also the inferiority of the notaries and advocates. The Emperor was very careful to note that these evils arose from the system of liberty in legal education which prevailed in Constantinople, because, in the first place, other branches of education supported by the State were in successful operation, and, secondly, because certain towns, in which the teaching had remained organized, attracted students to the detriment of the capital. The responsibility for this decadence falls, says the Emperor, on his predecessors, who indeed improved the laws but failed to ensure an official organization for the Schools of Law.

Constantine Monomachus, a pacific Emperor, was fortunate enough to find two able counselors, who helped him to start the necessary reforms —Xiphilin and Psellus, the former a judge in the Courts of the Hippodrome, the latter secretary to the Emperor. The drafting of the Novel of 1045 was due to John Mauropus or Euchaitensis, amongst manuscripts of whose works it was discovered by Cardinal Angelo Mai.

According to the Novel, the school founded by the Emperor was an official and gratuitous State school. The professor-principal (Nomophylax) was appointed by the Emperor, was removable by him, and was paid by him. The course of study is defined in the Novel. The diploma on leaving was a State diploma necessary for the exercise of the offices of advocate or notary, or for eligibility for high administrative office. The first Nomophylax was Xiphilin himself. He was no doubt helped in his task by other teachers. The school was established in the buildings of the church of St George.

Notwithstanding the absence of precise information, we must suppose that the school of Constantinople survived at least until the fourteenth century; for the title of Nomophylax was borne, in the twelfth century by Doxopater, Alexius Aristinus, and Theodore Balsamon; in the thirteenth by Michael Chumnus; in the fourteenth by Constantine Harmenopulus; all of whom were jurists or canonists of reputation. Other jurisconsults such as Garidas, the Pseudo-Tipucitus, or Hagiotheodorita, were professors in the same school, but not its principals.

All these men have left legal works of greater or lesser value, and of varying degrees of originality, works which in any case show the successful result of the reform operated by Constantine Monomachus.

Byzantine legislation, in the strict sense of the word, includes the civil laws, and the Novels of the Emperors. Up to the eleventh and twelfth centuries the civil laws were still summed up in the two great legislative works of Justinian and Leo the Wise, for Leo, when he promulgated the Basilics, had no intention of superseding Justinian’s compilation, to which however the Basilics was to be preferred in cases of disagreement. But at the close of the twelfth century, during the reign of Manuel Comnenus, Justinian’s codification was definitely put aside, although, as we shall see, jurisconsults still studied the works of which it was composed. So much for the legislation of the past.

The Novels of the Emperors, whereby new law was created, were not very numerous between the eleventh and the fifteenth century. Of some Emperors there is only a single Novel extant (Constantine Monomachus, Michael Stratioticus, Isaac Comnenus, Constantine Ducas, Alexius II Comnenus, Michael Palaeologus, Andronicus III). Of others we know only two, three, or four Novels (Michael Ducas, Nicephorus Botaniates, John Comnenus, Isaac Angelus, John Vatatzes, Andronicus II Palaeologus). The only Emperors whose Novels form a more imposing collection are Alexius I Comnenus, twenty-five of whose texts remain, and Manuel Comnenus who left seventeen. Many of these enactments regulated points in religious government or in canon law: for instance, binding force given to betrothal or promise of marriage (1084, 1092), prohibition of marriage on account of consanguinity (1094, 1160), marriage of slaves (1094). The reforms in civil law are generally of little interest; it is only necessary to mention one which also has to do with marriage, the privilege granted by Constantine Ducas to the wife to have priority of the exchequer in the recovery of her dowry in respect of the objects named in the marriage contract. Finally, among the Novels referring to other matters, the most important was the great Novel X of Manuel Comnenus (1166) which constitutes a real system of judicial organization and procedure, as it deals with assessors, the hearing of cases, the introduction of a suit, with preliminary examinations, advocates, sentences, with summons and appeals, and even with protimesis in the case of a mortgage.

Monographs of the eleventh century

The vicissitudes of the Eastern Empire under various dynasties, sometimes Greek, sometimes Latin, were naturally not without their echoes in the development of legal science, in so far as it found expression in treatises of varied nature and diverse scientific import. Several phenomena of legal activity are worthy of note : the manuscripts of Justinian’s Novels and the Institutes and Paraphrase of Theophilus were re-copied as frequently as the Basilics themselves and their scholia; later scholia were added to the work of Leo the Wise; the Greek Emperors favored the composition of treatises on civil or canon law; the earlier sources of Byzantine law, such as the Prochiron, Ecloga, and Epanagoge, continued to serve as nuclei for new commentaries; but the most famous work of this period, the Promptuarium of Harmenopulus, only appeared at the close of the Greek Empire.

The earliest productions of legal literature with which we meet are monographs. First, a Liber de Actionibus arranged in alphabetical order, only a few extracts from which have been preserved among the later scholia of the Basilics, and which the professor Garidas wrote in the reign of Constantine Ducas (1059-1067); then, by the same author, a short treatise de homicidiis, intended to explain Novel XII of Constantine Porphyrogenitus on murder; finally, the Meditatio de nudis pactis dating from the middle of the eleventh century, a somewhat brief text, which presents the interesting feature of being an original work without a model. It is probably the votum of an assessor of the Supreme Court of the Empire, which was presided over by the Emperor in person, or in his absence by the Drungarius of the watch. It may have been written by John Xiphilin himself, the counselor of Constantine Monomachus.

After these monographs comes the Synopsis Legum composed in 1406 iambic and “political” verses; it is usually attributed to Michael Psellus and may date from 1070. This attribution is, however, denied by Monnier on account of the weak and childish character of the work. It was compiled by order of Constantine Monomachus with the object of instructing Michael Ducas in some elementary notions of law; it utilizes the Code, Digest, and Novels, and the Basilics, reverting to ancient law, making law-suits the starting-point for the discussion of legal matters, and seeking inspiration from various prose treatises and monographs, some still extant, others lost. Among these authorities we find a few works which offer some analogy to certain elements of the Synopsis, and which go under the name of Psellus; possibly they also are not his work.

To the beginning of the twelfth century belongs the Tipucitus, the work of an unknown author. Its title is an artificial one derived from the words quid ubi invenitur?. The title is appropriate to the character of the book, which is a table of contents of the Basilics, giving the rubrics and most important chapters under each title and indicating analogous passages in all of them. The Tipucitus is of undoubted service in reconstructing the lost books of the Basilics. With regard to the Basilics, it is well to recall the fact that it was during this period that they received the addition of the “recent scholia” derived from the works of John Nomophylax, Calocyrus Sextus, Constantine Nicaeus, Gregory Doxopater, Patzus, Theodorita or Hagiotheodorita, and finally an anonymous writer (eleventh or thirteenth century).

The Synopsis Minor, which is divided into twenty-four parts or letters of the alphabet, subdivided into titles, has for sources the Synopsis Maior, the Epanagoge, and the Glossae Nomicae; its author (according to Zachariae) wrote in Nicaea under John Ducas Vatatzes (1222-1255). It is not a mere reproduction of its authorities, and, notwithstanding the decadent period during which it was written, it constitutes a convenient repertoire of thirteenth-century law.

The Prochirum auctum is a Prochiron in forty titles, augmented by texts from the Basilics, the Synopsis Maior, etc., Imperial Novels, and extracts from works on canon law; the text is followed by thirty-two Paratitl, of which No. XXV is the treatise De Creditis. This work was written before 1306. It dates about the period of the restoration of the Empire to Constantinople.

The Promptuarium or Hexabihlos, of Harmenopulus, Nomophylax and supreme judge at Thessalonica, a friend of Philotheus who was Patriarch from 1354 to 1355 and again from 1362 to 1376, the author of various treatises on canon law, has a history which is told in the preface. Harmenopulus had taken up Basil’s Prochiron believing that in accordance with the preface of the book he would find therein collected all provisions of obvious necessity and constant utility. But when he read it he was disappointed to find that some of the most important things had been omitted. Therefore he decided to revise the book, making it complete, as he says, by aid of the Corpus Legum, the Basilics, the Novels, the Romaics of the Magister, the Eparchies, and the Manuals. In order to distinguish between his texts, he put the signum solare at the head of his additions, and the signum saturninum before the original text of the Prochiron. The sources identified by the modern editor, Gustav Ernst Heimbach, are as follows: the Synopsis Maior (not the Basilics), the Synopsis Minor, the Ecloga Novellaruni Leonis, the Ropaí, the Pira (referred to under the name of “the Romaics of the Magister”), an appendix to the Synopsis whence Harmenopulus derived the Novels up to the days of Manuel Comnenus, the Epanagoge, extracts from Julianus Ascalonita (a pre-Justinian writer who described the law which, in Syria and Palestine, governed vicinage, boundaries of property, and the like), the Ecloga, and the synodal sentences of the patriarchs. Later interpolations, taken from the same works and added to the manuscripts attest the success of the Hexabiblos, a success which continued in Greece and Russia even after the fall of the Eastern Empire. The six books (whence the name Hexabiblos) are concerned with the following subjects:

(I) Law, legal organization, restitutions, and liberty (18 titles).

(II) Possession, new work, adoption, and maritime law (11 titles).

(III) Sale, deposit, and partnership (11 titles).

(IV) Betrothal and marriage (12 titles).

(V) Wills and wardship (12 titles).

(VI) Crimes and penalties (15 titles).

The six books are followed by four titles on various subjects, and by appendices, containing among other things the rural laws.

The Promptuarium is the most complete treatise on civil and criminal law composed during the final period of Byzantine law. An additional merit in the eyes of modern historians is that certain texts which appeared in Justinian’s codification have been reproduced by Harmenopulus from pre-Justinian sources; in the Hexabiblos they consequently appear untouched by Justinian’s commissioners, and give readings free from the interpolations which so often prevent us from knowing the original versions of classical texts.

The Syntagma of Matthew Blastares

It was only after the days of the Comneni that the study of canon law became more serious and produced important works, either by order of the Emperors, or at least encouraged by them.

In addition to the revisions of the Epitome Canonum Antiqua, which belong to the eleventh and twelfth centuries, we find the Nomocanon of Doxopater, which was composed by order of John Comnenus (1118-1143), and presents great analogies with the Syntagma, ascribed to Photius. Another Nomocanon, on the Epitome canonum, is due to the Nomophylax Alexius Aristinus.

The same Syntagma, attributed to Photius, which consists of a Nomocanon with XIV titles and of the Collectio Canonum, was first developed, so to say, by Theodore Bestes, who had been directed by Michael VII before 1080 to transcribe the texts of the civil laws cited in each chapter; this transcription has been utilized by modern editors of Justinian’s Code. In the twelfth century the Syntagma was not only revised but annotated in the remarkable works of John Zonaras, Grand Drungarius of the watch in the reign of Manuel Comnenus (1159-1169), and of Theodore Balsamon, Nomophylax and Patriarch of Antioch. The Exegesis Canonum of Balsamon, undertaken by order of Manuel Comnenus and of the Patriarch Michael Anchialus (1169-1177), acquired in the East a very great reputation which has lasted until the present day. The author proposed to establish a concordance between the civil laws used in the Nomocanon ascribed to Photius, as edited by Zonaras, and the texts of the Basilics; for this purpose he employed a twofold method: he reproduced the passages from the Basilics parallel with the civil texts from the Nomocanon, and indicated the passages which had not been retained in the Basilics. The work was therefore of the greatest practical utility to contemporaries; it is equally helpful to modern critics of the Justinianean code and the Basilics, as also for the study of Byzantine law in general, for it includes several Novels either by Leo the Wise or the Comneni, as well as sentences passed by synods and patriarchs which are only known to us by this transcription.

From the eleventh, twelfth, and thirteenth centuries there also remain some canonical writings by Michael Psellus, Balsamon, Michael Chumnus, and others, of which it is enough to mention the existence. Under the Palaeologi there appeared a work as famous as that of Balsamon, and as wide-spread among the clergy as the Promptuarium of Harmenopulus was among the world of lay practitioners. This was the Syntagma Canonum et Legum, which Matthew Blastares, a monk, completed in 1335. The preface is followed by a history of the sources of the body of Greek Canon law up to 879, and by a history of Roman law up to the Basilics. The Syntagma of Matthew Blastares contains three hundred and three titles in twenty-four chapters or letters of the alphabet. The titles are formed of the provisions of canon law and of civil law alternately or separately. The provisions of civil law seem to have been taken from a revision of the Epanagoge.

The last work to be mentioned is the Epitome Canonum which Harmenopulus placed at the end of his Promptuarium; it is divided into six sections and twenty-six titles.

The diffusion of Byzantine legislation

Byzantine legislation shed its luster throughout Eastern Europe and Asia. Its influence is unmistakable on the ecclesiastical law of the Russians, and on the civil law of the Roumanians, Serbs, and Georgians (Code of Vakhtang).

In the West it likewise exerted its influence on the law of Italy, which was for so long part of the Empire of Constantinople. This is not the place to deal exhaustively with the diffusion of Byzantine legislation in Italy, because the subject seems rather to belong to the history of Italian law. It will be enough to indicate the principal features of this diffusion. The diffusion of Byzantine law in Italy, or more precisely in Southern Italy and Sicily, is shown first by a phenomenon referred to above: the compilation on Italian soil of legal works on Byzantine law. The Prochiron legum (tenth century), the Ecloga privata aucta (twelfth century?), the Ecloga ad Prochiron mutata (twelfth century), are works which are very valuable for comparison because they add to their models the modifications arising from local laws, or even loci singulares which are not of Graeco-Roman origin.

The influence of Byzantine law in Italy was moreover exercised in another way, as well as in the learned and scientific form : by the rise of customs, which, here as everywhere, constitute popular and vulgar law, customs which are proved by the acts of notarial practice, or which are found codified in numerous municipal statutes in the Middle Ages. But when we examine the details of institutions, there is great difficulty in determining the exact extent of Byzantine influence; as some institution or other existing in Italian law, to which we are tempted to assign a Byzantine origin because the same institution occurs in Byzantine law, may have arisen either by development of the native law, or by contamination from foreign laws possessing similar institutions. Thus, in Sicily, community of property between husband and wife, or between them and their children, may as reasonably have arisen from the development of the vulgar law, or by contamination from Franco-Norman law, as from the direct influence of the Ecloga. And the same applies to certain regulations on protimesis common alike to Sicilian sources and to Byzantine, such as the Epanagoge, the Novels of Leo the Wise, or those of Constantine Porphyrogenitus and Romanus Lecapenus; probably these regulations in Sicily are derived from customs already existing there in the Byzantine period, and confirmed in the East by legislative texts, rather than from these texts themselves. In Southern Italy the protimesis is said to be Graecorum prudentia derivata; the Byzantine element preponderates in public law and in ecclesiastical matters; in private law, the executors of wills are called epitropi; but other institutions may have arisen from native development of ancient customs, and not from the diffusion of Byzantine legal works or Byzantine Novels.

CHAPTER XXIII.

THE GOVERNMENT AND ADMINISTRATION OF THE BYZANTINE EMPIRE