No More Learning

To distinguish it from the ius antiquum and the ius novum,
the law established by the Council of Trent and subsequent papal consti-
See supra, Vol. 1, pp. 181–2.
? Hinschius, Geschichte und Quellen des kanonischen Rechts (in Holtzendorff,
Encyklopädie der Rechtswissenschaft, 5th edn. 1890, pp. 187-8).
3 This distinction is drawn by Boudinhon. Tardif, Histoire des Sources du Droit
Canonique, p. 5, says, however, that “le droit ancien est le droit antérieur au concile
de Trent; le droit nouveau dérive de ce concile. ”


## p. 707 (#753) ############################################

Ius antiquum and ius novum
707
tutions is known to canonists as the recent law, the ius novissimum.
Canonists also draw a distinction between the ius scriptum, the written
laws which emanate from Councils and Popes and which are embodied in
the collections of sources, and the ius non scriptum, or unwritten law, a
body of traditional and customary rules based in large measure on natural
equity. A further distinction should also be remembered. The common
law, the ius commune, is the general law intended to regulate the whole
ecclesiastical body; while special or local law is the law which, by deroga-
tion from or addition to the common law, is concerned with certain
categories of persons or certain regions. The function of legislating for
the whole Church belongs only to the episcopate, assembled in general or
ecumenical Council, and to the Pope as its chief: local councils or in-
dividual bishops or prelates have authority to make only special or local
laws. Most of the canons which constitute the ius antiquum, including
such of those canons as are embodied in Gratian's Decretum, emanate
nevertheless from local councils or individual bishops, not from the
supreme authorities of the Church. These canons have gradually come
to form parts of the ius commune by reason of the fact that canonical collec-
tions which include these local canons as their principal element have been
adopted generally in all parts of Christendom as of binding authority.
Both the ius antiquum and the ius novum fall within the compass of
our present survey, and of each one of these divisions of the law a few
words must needs be said. Let us glance therefore, first of all, at the
history of the sources of the ius antiquum, the law before the time of
Gratian and the formation of the Corpus iuris canonici.
In the first centuries of the Christian era, before the close of the
period of persecutions, the life of the Christian communities was governed
by the Scriptures and by ecclesiastical tradition, the unwritten kavov or
regula. The various Churches early came to have their own traditions
and usages, and these they obeyed as their unwritten customary law;
apart from the Scriptures the early Church law was not embodied in any
written code. Not until the time of Constantine and the other early
Christian Emperors was it possible for the ecclesiastical legislative power
to act freely and to create a body of written law. The new position of
the Church in its relation to the State formed the constitutional basis of
a new movement which led to the establishment of a written law of the
Church somewhat after the pattern of the Roman Civil Law. The organs
which expressed the mind of the federated Christian communities in the
matter of law, no less than in that of creed, were the early ecclesiastical
Councils of the fourth century; and the codes formed during the decade
305-315 by the Councils of Elvira, Ancyra, Neocaesarea, and Arles are
the earliest of the conciliar materials preserved in the later body of the
Canon Law. These codes possessed, however, no binding authority out-
side the localities in which they were issued. The opportunity to issue a
code for the whole Christian Church finally presented itself at the
CH. XXI.
45_2


## p. 708 (#754) ############################################

708
Eastern collections of canons
Ecumenical Council of Nicaea (325): and the issue of such a code of law
was a part of Constantine's policy of bringing about the unity of the
Church and its close alliance with the Empire. The Nicene canons, in
which were incorporated some of the canons of the Eastern Council of
Ancyra and of the Western Council of Arles, constitute the earliest code
of Canon Law for the whole Church. In the course of time many
other
codes possessing no connexion with the Nicene Council were placed by
collectors of canons in the Nicene code and were thus given its authority.
Particularly in the West the Nicene code acquired a position of high
authority in the realm of discipline. Innocent of Rome in the cause of
St Chrysostom writes that “other canon than the Nicene canons the
Roman Church receives not. ”ı
The compilation of collections of canons began in the East. The
elaboration of these collections, with certain additions drawn from the
West, such as canons in the Latin collection of Dionysius Exiguus, resulted
ultimately in the formation of the official collection of the Greek Church
as it was recognised and sanctioned by the Council in Trullo (692). As
defined by the Council, the Greek collection consists of several classes of
documents: firstly, the eighty-five Apostolic Canons ; secondly, the
canons of the Councils of Nicaea, Ancyra, Neocaesarea, Gangra, Antioch,
Laodicea, Constantinople (381), Ephesus, Chalcedon, Sardica, Constan-
tinople (394), Carthage (the one of 419, according to Dionysius); thirdly,
the canonical letters of several great bishops, such as Dionysius of Alex-
andria, Peter of Alexandria (the Martyr), Athanasius, Basil, Gregory of
Nyssa, Amphilochus of Iconium, and Gennadius of Constantinople. To
this official collection were added at a later time the twenty-two canons
of the Second Council of Nicaea (787). As thus completed, the official
canonical collection of the Greek Church had several medieval commen-
tators, such as Photius (883), Zonaras (1120), and Balsamon (1170); but
it has remained unchanged down to the present day. As pointed out by
Boudinhon, the later growth of the Eastern Canon Law—that is, after
the Council of Nicaea (787)—was due to the work of the Byzantine
Emperors before the fall of the Empire in 1453.
In its fifth-century state the Greek collection was translated and
introduced into the West. The one hundred and two canons elaborated
by the Council in Trullo (692) did not become part of Western Law
until a much later time, and then upon the initiative of Pope John VIII
(872-881). Meanwhile local collections of canons were made in the West
from the fifth century onwards. Within the sphere of the see of
Constantinople a tendency towards the unification of ecclesiastical law
manifested itself as early as the fifth century; but in the West collections
were purely local until in the eighth and ninth centuries, as the result of
passing on the several collections from one region to another, there were
the beginnings of a process of unification.
1 See further, supra, Vol. 1, pp. 13, 176-182.


## p. 709 (#755) ############################################

Western collections of canons
709
The most ancient, and in some respects the most homogeneous and
noteworthy, of all these Western local collections is that of the Church
of Africa. By the time of the Vandal invasion the African collection had
already acquired special importance as an official code; but our knowledge
of it is now derived chiefly from incomplete and confused accounts in
the collection of Dionysius Exiguus and the Spanish collection known as
the Hispana. About the middle of the ninth century Fulgentius Fenandus,
a Carthaginian deacon, made a methodical arrangement of the African
collection in the order of subjects; and this is now known as the
Breviatio canonum.
The Roman Church in its early history governed itself largely by its
own traditions and customs and by papal letters called decretals. Of non-
Roman sources of canonical law it officially recognised, before the sixth
century, only the canons of Nicaea and Sardica. At the beginning of the
sixth century, however, the Roman Church adopted the double collection
-composed of Latin translations of Greek canons and thirty-nine
decretals of the Popes from Siricius (384-398) to Anastasius II (496-498)
--made by the Scythian monk Dionysius Exiguus; and this collection,
its second part receiving successive additions as further decretals appeared,
remained the only official body of Canon Law for the Roman Church until
the reforms of the eleventh century. Pope Hadrian I in 774 gave this
double collection of Dionysius to the future Emperor Charlemagne as the
canonical book of the Roman Church; and hence it is known as the
Dionysio-Hadriana. This collection, officially received by the Frankish
Church at the Council of Aix-la-Chapelle in 802, and thereafter recognised
and quoted as the liber canonum, became the code of Canon Law of almost
the whole of the Western Church. In the hands of Pope Hadrian I, and
of Charlemagne and the Franks, the work of Dionysius was thus a
powerful factor in the growth of a unified Western Canon Law.
Gaul was exceptional in not possessing a code of local Canon Law. The
Church had not been centralised, as in many other regions of Europe,
round some principal see; and the political territorial divisions had not
been stable. In the fifth and sixth centuries only the Church of Arles
constituted a canonical centre of any real influence over its surrounding
region. The main collection of canonical sources—known from its seven-
teenth-century editor as the “Quesnel Collection "--contained valuable
materials, chiefly Eastern and African canons and papal letters, but no
canons of the local Gallic councils. When it was introduced into Gaul,
the Dionysio-Hadriana did not, therefore, displace any local and
generally-accepted collection. Unifying tendencies in the development of
Canon Law thus came from without and not within the Gallic Church. In
this process the alliance between the Carolingian power and the Papacy,
and the acceptance of the Dionysio-Hadriana, or liber canonum, marked
an important stage.
The Spanish Church differed fundamentally from the Gallic; for it
CH. XXI.


## p. 710 (#756) ############################################

710
The False Decretals
$
had been effectively centralised round the see of Toledo. As a result the
Spanish Church possessed an important collection of Spanish Canon Law,
the Hispana', dating from the early part of the eighth century, which,
although not strictly speaking an official collection, was everywhere re-
ceived. The Hispana includes in its first part the canons of Greek,
African, Gallic, and Spanish Councils, the canons of Spanish Councils
forming the local section of the collection ; while the decretals of the
Popes are in the second part, as in the case of the collection of Dionysius.
The Hispana emerged into a position of great importance in the period
beginning in the middle of the ninth century, for it then served as the
basis of the False Decretals.
Although the Churches of the British Isles remained longer than most
other Churches outside the centralising movement and the tendency to a
unification of Western Canon Law, they contributed nevertheless to the
growth of the law as finally embodied in the Corpus iuris canonici. This
contribution consists fundamentally of two things: firstly, the collections
of penitentials, including those of Theodore of Canterbury (ob. 690),
the Venerable Bede (ob. 735), and Egbert of York (732–767); and,
secondly, the Irish collection, dating apparently from the eighth century,
which introduced the practice among canonists of quoting passages from
the Scriptures and the writings of the Fathers. Apart from these two
groups of materials, the sources of British local Canon Law were not
known to Gratian's predecessors nor to Gratian himself; and they did
not, therefore, influence the form and content of the Decretum.
About the middle of the ninth century there appeared the famous
collection known as the “False Decretals. " Round this collection there
has arisen a vast controversial literature which it is impossible, within
the limits of the present chapter, to summarise or appraise? . Certain it
is that the collection is based on the genuine Spanish collection known
as the Hispana or Isidoriana. The author, whether he was the mysterious
Benedictus Levita, to whom the False Capitularies, a collection closely
akin to the False Decretals, have been attributed, or whether he was
some other person, assumed the name of Isidore, Bishop of Seville,
who had been credited with the greater part of the Hispana or Isidoriana
collection: and hence the False Decretals are sometimes known as the
Pseudo-Isidore. Whoever the author may have been, it is now agreed on
all sides that the collection had its origin within the Frankish Empire.
1 The collection is also known as the Isidoriana, because it has been attributed
(but without reason) to Isidore of Seville.
? But see the works cited by Hinschius in his Geschichte und Quellen des kano-
nischen Rechts (Holtzendorff's Encyklopädie der Rechtswissenschaft, 5th edn. 1890,
p. 193). A list of older works will be found in Phillips and Crouzet, Du Droit
Ecclésiastique dans ses Sources, Paris, 1852, pp. 42, 43.
3 It was at first thought that the False Decretals originated in the province of
Mayence. It is now held by Brissaud and other scholars that the False Decretals
must have been written in France, probably at Rheims. See Continental Legal History
Series (ed. by J. H. Wigmore and others), Vol. 1, (1912), p. 710. Several recent
1


## p. 711 (#757) ############################################

The False Decretals
711
The collection contains as many canons of councils as papal decretals;
and the decretals in it are not all forgeries. It is best described as an
amplification of the genuine Hispana by the interpolation of spurious
decretals. Of the three parts of the collection, the first is completely
spurious. It contains, after introductory matter, seventy spurious letters
attributed to Popes before the Council of Nicaea (325), all of these letters
being the forgery of the false Isidore except two spurious letters of
Clement which were already in circulation. The second part of the
collection contains the canons of Councils. Most of these are genuine, the
few forgeries, including the famous Donation of Constantine, being
already known. The third part is a continuation of the series of
decretals—which in the first part of the collection had ended with the
date of the Nicene Council-down to St Gregory the Great (ob. 604);
but it contains also one letter of Gregory II (715-731). The authentic
decretals of the Popes begin only with Siricius (385), and these the
Pseudo-Isidore includes in his collection; but he adds also spurious
decretals both for the time before and the time after 385. Most of the
forged decretals are not composed entirely of freshly fabricated material.
The author draws upon the Liber Pontificalis and ecclesiastical writings
for some of his matter. Thus, the genuine Councils and decretals, and
even this genuine matter falsely put into the mouths of the Popes, served
to cloak the skilfully fabricated stuff of the forger and to give it credence.
Blended thus of genuine and spurious matter, the collection rapidly
circulated throughout the West and long passed as a valuable source of
Canon Law. All the later collections drew materials, genuine and false
indiscriminately, from the Pseudo-Isidore? Not until the fifteenth
century were suspicions aroused as to the true character of the collection :
Cardinal Nicholas of Cusa (ob. 1464) and Juan Torquemada (ob. 1468)
expressed in no uncertain terms their doubts as to its authenticity. In
the sixteenth century Erasmus, as well as Dumoulin (ob. 1568) and
Le Conte (ob. 1577), the two editors of Gratian's Decretum, decisively re-
fused to accept the Pseudo-Isidore. Gradually the history of the forgery
has been pieced together by scholars; and the false character of parts of
the collection is now universally admitted.
authors have, however, suggested the province of Tours as the home of the collection.
See the article on the “Decretals, False” by Boudinhon in the Encyclopaedia Brit-
tannica, 11th edn, Vol. vii, and the authorities there cited; and Tardif, Histoire
des Sources du Droit Canonique, Paris, 1887, pp. 140-158.
1 While the Pseudo-Isidore quickly spread its influence from France to Italy and
other European countries, including England, it found a very slow reception at Rome
itself. It has been pointed out by M. Fournier and other scholars that, while the
collection exerted a slight literary influence on papal letters of the ninth and tenth
centuries, the use of the forged material of the False Decretals did not become
prominent at Rome until about the middle of the eleventh century. This ultimate
reception at Rome was due in large measure to the circulation of the canonical
collections in which the False Decretals held a place, no doubt at that time being
cast upon the authenticity of the forged documents.
CH, XXI.


## p. 712 (#758) ############################################

712
Canonical collections before Gratian
The object of the forger appears to have been the reform, or better
application, of the Canon Law. He desired to prevent bishops from being
unjustly accused or deprived of their sees, and to protect the property
and persons of the clergy against the encroachments of bishops and
nobles. He desired also to increase the strength and cohesion of the
Churches; and he made the Papacy the very centre of his ecclesiastical
edifice. These objects the wide acceptance of the False Decretals no doubt
furthered. Certainly they served as a powerful factor in the movement,
within the Frankish territories, towards the centralisation of power in
the see of Rome.
Opinions differ as to the extent of the modification and corruption of
Canon Law itself occasioned by the influence of the False Decretals.
However this may be, there is no doubt that by furthering the tendency
towards its unification the False Decretals mark an important stage in
the history of the law. In yet another respect the Pseudo-Isidore is note-
worthy; for it is the last of the long series of chronologically arranged
collections of the texts of Canon Law. From this time onwards the
canonists arranged the conciliar and papal canons in systematic order
according to subject matter and not according to time; and thus they
gradually prepared the way for the systematic codification of the ius
commune in the Decretum of Gratian and the other integral parts of the
Corpus iuris canonici. Furthermore, from the time of the False Decretals
onwards the canonists not only arranged and systematised the materials,
gradually bringing local canons into the general mass of the common law;
they also added to the bare texts their own conclusions and discussions,
thus clothing the texts with canonist learning and theory.
During the three centuries between the appearance of the False
Decretals and the time of Gratian about forty canonical collections were
made. Among the most important of them are the Decretorum libri XX
of Burchard, Bishop of Worms, written between the years 1012 and
1023, and the three works—the Panormia, the Decretum, and the
Tripartite Collection-attributed to Ivo of Chartres, who studied under
Lanfranc at Bec and was the last of the great canonists of the period of
the ius antiquum. Although many of these collections dating from the
middle of the ninth to the middle of the twelfth century were of practical
and theoretical value, no one of them rose into eminence as the standard
or classical collection which embodied in the most orderly and concordant
form the whole mass of the materials of Canon Law that had grown up
in the centuries of Christendom. Gratian, garnering the rich harvest
which he found in the canonical works of his predecessors, finally provided
this standard collection at the very centre of the revival of juristic
studies. With Gratian and his monumental Decretum the period of the
ius novum had its beginnings, the period which was to see the completion
of the Corpus iuris canonici.
The gradual formation of the Corpus iuris canonici covers a period of


## p. 713 (#759) ############################################

Gratian's Decretum
713
over three hundred years. As finally completed it consists of five separate
parts.
(1) Gratian's Decretum forms the first and in many ways the most
important part: it constitutes in truth the basic part of the entire Corpus
iuris canonici. It is known that Gratian was a Camaldulensian monk of
the convent of St Felix at Bologna, where he taught Canon Law;
although only a few details of his life have come down to us. His
great work-dated between 1141 and 1150, or, as it is now thought,
between 1139 and 1141_bears in the older manuscripts the title
Concordia discordantium canonum, but is better known as the Decretum.
The Decretum is based on earlier collections, including the works of Ivo
of Chartres, but is much more than a compilation or collection. So
skilfully has Gratian ordered and treated his materials that his work
is essentially a treatise on the Canon Law in which the authorities them-
selves are included. There are three parts or divisions of the work. The
first part deals with the sources of the law and with ecclesiastical persons;
the second with ecclesiastical jurisdiction, procedure, property, and
marriage; the third with consecration, sacrament, and liturgy. The
portions of these parts that are Gratian's own personal contribution are
known as the Dicta Gratiani, while the notes by Paucapalea, a twelfth-
century disciple of Gratian, as well as those of a few other scholars, are
called Paleae. Very soon after its appearance Gratian's Decretum was
treated as if it were official; while in the law schools it was used as the
foundation of teaching in Canon Law. Like the texts of the Justinianean
codification in the hands of the Glossators, the Decretum Gratiani was
soon provided with glosses. Before 1215 glosses were written by Johannes
Teutonicus, and about the year 1236 by Bartholomew of Brescia. It is
difficult to overestimate the vast influence which Gratian's work exerted
for centuries upon the study and spread of Canon Law throughout the
Christian world. No other single book of Canon Law can vie with it in
importance and influence.
(2) To complete Gratian's Decretum, five compilations-known as the
Quinque Compilationes Antiquae—were made before the time of Gregory
IX. The first of these, compiled by Bernard of Pavia about 1190, was divided
into five books, as follows: (1) ecclesiastical hierarchy; (2) procedure;
(3) functions and duties of the clergy; (4) marriage; (5) penal law. This
order of subjects adopted by Bernard became the accepted order in future
compilations of Canon Law. Later scholars have summed it up in the
well-known verse: “Judex, Judicium, Clerus, Connubia, Crimen. ” The
last of the remaining four compilations of this group—the Quinque Com-
pilationes Antiquae-was an official collection of the decretals of Honorius
III, 1216 to 1226.
By the Bull Rex pacificus (1234) Gregory IX sent to the Universities
1 On the date of the Decretum, see Schulte, Geschichte der Quellen und Literatur
des canonischen Rechts von Gratian bis auf die Gegenwart, Vol. 1, p. 48.
CH. XXI.


## p. 714 (#760) ############################################

714
The Corpus iuris canonici
of Bologna and Paris a compilation of the decretals of Popes since the
completion of the Decretum of Gratian. This official compilation, known
as the Decretals of Gregory IX, or “Extra” (that is, “Decretales extra
Decretum vagantes”), and abbreviated as “X” (meaning "extra"), was in
reality a continuation of Gratian's Decretum, which now became in law
what it had always been in fact-an official Code of Canon Law. The
author of the Extra was Gregory IX's confessor, Raymond de Peñafort,
a Spaniard, who, following the arrangement of Justinian's Code, divided
the compilation into books, titles, and canons. Bernard of Parma, who
died in 1263, added glosses.
The Quinque Compilationes Antiquae were superseded by Gregory's
collection and by it deprived of all their authority.
(3) Boniface VIII collected in 1298 the decretals subsequent to the
Extra; and he published the new compilation in the manner adopted
previously by Gregory IX in the case of the Extra—by sending it to the
Universities of Bologna and Paris. Boniface VIII's collection constituted
the Sextus or Liber Sextus Decretalium, the five earlier books being those
embodied in the Extra. In 1348 the Sextus was glossed by Jean André.
(4) In 1313 Clement V published another collection of decretals,
including his own, which is known as the “Clementinae. " John XXII,
Clement's successor, recast the collection and sent it to the Universities
in 1317.
(5) The “Extravagantes", or the decretals omitted from the above-
mentioned compilation (“extra-vagantes”), are of two groups: (a) the
Extravagantes of John XXII (twenty constitutions), (b) the “Extra-
vagantes Communes,” including the decretals issued by various Popes, since
the publication of the Sextus, from Boniface VIII to Sextus IV (1484). The
collection of Extravagantes differs from the earlier ones just mentioned in
not being an official compilation. But it found its place in editions of the
Corpus iuris canonici; and, inasmuch as all its documents were authentic,
it was treated as if it were official.
As completed and closed by the Extravagantes, the Corpus iuris
canonici is thus composed of: (1) the Decretum Gratiani ; (2) the Decretals
of Gregory IX (Liber Extra); (3) Boniface VIII's Liber Sextus Decre-
talium; (4) the Clementinae; (5) the Extravagantes.
The term Corpus iuris canonici, used as the antithesis of the term
Corpus iuris civilis when applied to the whole of the Roman Law, is to
be met as early as the twelfth century. In the sixteenth century the term
acquired, however, a technical sense, being used to denote the entirety of
the five sets of texts already described. From 1563 to 1580 the correctores
romani, a commission of cardinals and scholars, worked at Rome in order
to form a better text than that of the manuscripts and publications
then in use. The results of the labours of the commission appeared in
1582, under the pontificate and by the orders of Gregory XIII, as the
official edition. Thus formed and completed under the direction of the


## p. 715 (#761) ############################################

Eastern and Western legal history
715
Church, the Corpus iuris canonici constitutes the ius novum as distinct from
the ius antiquum; and it is still the foundation of the Canon Law. The
complete body of Canon Law to-day includes also the ius novissimum, the
law that has been evolved since the Council of Trent (1545); but the ius
novissimum forms no part of the Corpus iuris canonici in its technical sense.
The gradual evolution of the law embodied in the Corpus iuris
canonici, a development extending through more than fifteen centuries of
the Christian era, is one of the outstanding features of ancient and
medieval history. It is an evolution comparable in many ways to the
slow growth of the law contained in Justinian's great codification and
later in the Corpus iuris civilis. With certain aspects of the medieval
history of the Canon Law we shall be concerned in later portions of this
chapter. We shall see how the Canon Law, as the law of the Church,
spread throughout the medieval world, how it influenced secular law and
juridical and political theory, how in short it became an integral and vital
part of medieval civilisation.
IV.
The history of Roman and Canon Law in the Middle Age falls
naturally into two main geographical divisions: the dividing line is
formed by the boundary between the East and the West. Although these
two parts of our history are closely related to each other—there are legal
influences and counter-influences that play back and forth between the
two vast provinces of Christendom—we must nevertheless study each part
singly ere we can see these relations in their true perspective and gain a
complete picture of the vast process of legal evolution in medieval Europe
as a whole. First of all, then, let us briefly survey the history of the
Roman and Canon Laws in their eastern home within the Later Roman
Empire.
Two events of the reign of Constantine the Great mark the definite
beginnings of the division of European legal history into its eastern and
its western parts. Each one of these events produced far-reaching and
lasting results within the domain of law; each one of them shaped and
transformed laws and customs in all parts of the world; each one of them
was a factor of the highest importance in the history of Roman and
Canon Law both in the East and in the West. The first of these two
events was Constantine's adoption of Christianity. Henceforth a new
order of ideas was given full play in all parts of the ancient world; and
these ideas moulded many of the processes of legal growth not only in
the period from Constantine to Justinian but throughout the medieval
era. The history of Roman and Canon Law among the Hellenised peoples
of the East and among the Germanic societies of the West displays in
many striking ways the after-influence of the recognition of Christianity
in the days of Constantine; and yet these after-influences in the East
differ markedly from those in the West. A second event of almost equal
CH. XXI.


## p. 716 (#762) ############################################

716
Roman and Canon Law in the East
significance in the history of law was the making of Byzantium a second
capital of the Roman Empire. The centre of gravity in the Empire had
been slowly shifting to the East for a considerable time before Constantine;
the establishment of Constantinople accelerated this process and gave to
the Eastern half of the world-wide imperial domain a definite preponder-
ance. With the loss of the Western provinces, caused by the expansion
of the Germanic peoples, the ancient Roman Empire persisted only in the
East. Until it finally succumbed to the power of the Ottoman Turks in
1453, this Later Roman Empire—this “Greek” or “Byzantine” Empire
-was the true Roman Empire, its Emperors being the legitimate
successors of Augustus in an unbroken line of continuity; and down at
least to the beginning of its decline in the middle of the eleventh century,
except in the lifetime of Charlemagne, it was the first political power in
Europe. This transference of the Roman Empire from the West to the
East led to legal as well as political results of the highest moment; some
of them are to be seen by a comparison of the history of Roman and Canon
Laws in their Eastern and in their Western environments.
As the heir of antiquity the Later Roman Empire became the true
guardian of the legal traditions of the ancient Empire. In the first half
of the sixth century these traditions were, in certain respects, maintained.
Justinian, the great codifier of the accumulated mass of Roman legal
materials derived from the past, was an Eastern Emperor; his codification
was made and promulgated in the East. What, it should now be asked,
was the fate of the law of Justinian in its Eastern home? Were the
ancient Roman legal traditions still further preserved ? Did the law
continue to develop in the spirit of the classical jurists? Was the East to
inherit the legal genius of the West? The answers to these questions are
of far more than ordinary historical interest.
Three main characteristics of the Later Roman Empire determined
the future course of legal history and gave to medieval Roman and Canon
Laws in this part of the world certain of their marked characteristics.
Whereas, throughout the greater part of its history, the ancient Empire
had been predominantly Western, Pagan, and Roman, the Later Roman
Empire down to its fall in 1453 was fundamentally Eastern, Christian, and
Greek. Here we may find the main key to the legal history of the East.
The general geographical situation of the Later Roman Empire, particu-
larly its proximity to the Slavs and Eastern peoples, and the social,
economic, and religious conditions of its several parts, were determining
factors in the evolution of the Roman and Canon Law within the imperial
frontiers. But this is only expressing in different terms the same cardinal
fact: the Empire was Eastern, Christian, and Greek, and its law evolved
along the lines of imperial development.
The history of the Justinianean law in the East may be sketched by
a brief consideration of the legal sources in the successive periods of
imperial history.


## p. 717 (#763) ############################################

Juristic studies. The 'Exloyń
717
Justinian declared that his codification was to be the sole statement
of the law; nothing outside it was to be regarded. In case of need, resort
could be had only to the Emperor himself, inasmuch as he was the sole
source of the law. The Emperor authorised literal translations into
Greek, indexes, and mapátitra or summaries of parallel passages or
titles; the writing of commentaries and general summaries, as an inter-
ference with the Emperor's prerogative of interpretation, was sternly
forbidden. But despite these prohibitions-prohibitions designed to
restrict the law to the imperial law-books—notes, abridgments, excerpts,
general summaries, and commentaries appeared even in Justinian's own
lifetime and for half a century thereafter. These writings appear to have
been intended chiefly for use in the law schools; most of them were
prepared by professors (antecessores). Soon, however, they were in the
hands of practitioners and judges; and they thus came into general use.
One of the best known of these writings is the Greek Paraphrase of
the Institutes, which has survived in various manuscripts. It is usually
attributed to Theophilus, one of Justinian's commissioners and a
professor in the law school of Constantinople; but Ferrini, its latest
editor, holds that the authorship of Theophilus rests on inadequate
evidence. He contends that the work is a reproduction of Gaius in Greek,
that it was originally drawn up at Beyrout, that it was remodelled at a
later time on the plan, and with some of the matter, of Justinian's
Institutes. The Paraphrase of the Institutes formed the subject matter
of commentaries by Dorotheus and Stephanus; while commentaries on
Justinian's Digest, Code, and Novels, written by various Eastern jurists,
also appeared.
This period of the jurists' study of Justinian's codification soon came
to an end. The codification itself had been rendered into Greek and had
formed the basis of scholarly, literary treatment; but, once that had been
accomplished, juristic studies rapidly decayed. During the profound social
disturbances of the seventh century the law-books of Justinian seem to
have been hardly understood. The practice of the courts was largely
influenced by Greek Christian ideas and ecclesiastical canons; and, with
the decline of Roman traditions, these influences shaped legal growth and
gave character to the period of legislative activity in the eighth century.
Within the domain of legislation the outstanding feature of the century
was the appearance of the 'Exhoyń of Leo the Isaurian (740), an abstract
of the whole codification of Justinian as amended and rearranged in
accordance with Greek and Christian ideas of the time. The legislation
of Leo represents indeed a wide departure from the Justinianean rules and
principles in nearly every branch of the law, a departure so coloured by
ecclesiastical notions of justice that the 'Eklyn itself has been called a
Christian law-book. Thus, for example, while Justinian treated marriage
as a contract, dissoluble at the will of the parties, Leo III introduced the
Church's doctrine that marriage was an indissoluble bond. The period of
CH. XXI.


## p. 718 (#764) ############################################

718
The Basilics
the Isaurian (Syrian) and Phrygian (Amorian) Emperors (717-867) was
a time in which the law was developed through practice away from the
Justinianean model and little or no thought was given to scientific legal
studies.
At the beginning of the period of the Macedonian dynasty (867–1057)
a great change took place. Basil I (867-886) and his son Leo the
Philosopher (886-912), at the end of the ninth and beginning of the
tenth centuries, pursued the policy of a return to Justinian's law and a
revival of legal studies. Basil repealed the 'Exhoryń of Leo the Isaurian as
a departure from Justinian's law which it professed to summarise; and he
set himself to the task of producing an authoritative Greek version of the
whole of the Justinianean codification, but with the omission of obsolete
matter and the introduction of the most desirable parts of the legislation
enacted since the death of Justinian. The legal materials were subjected
to a treatment somewhat similar to that accorded by Justinian and his
commissioners in their day to the writings of the classical jurists and the
other accumulated sources. The first result of the new legislative policy
was Basil's issue in 879 of a kind of institutional work entitled ó apóxelpos
vóuos (“the law as it is "), composed of extracts from Justinian's Institutes,
Digest, and Code. This handbook was revised and republished by Leo
under the title 'Etavaywyn toù vópou. The main work of the Emperors,
however, was the famous Basilics (Tà Baoiliká), a collection of all the
laws of the Empire, prepared by legal commissioners. They were begun
in the time of Basil and completed under Leo.
The Basilics are composed of sixty books, subdivided into titles, in
accordance with the general plan of Justinian's Codex. Within this
framework the law on any particular subject, whether derived from
Justinian's Institutes, Digest, Code, or Novels, is arranged consecutively.
The so-called mapaypapai TÔV Talaiw is an addition to the Basilics,
consisting of an official commentary collected from the writings of the
sixth-century jurists, published by Leo's son, Constantinus Porphyro-
genitus. This work, now referred to as the scholia to the Basilics, has
proved of great value to modern civilians in their work of reconstructing
the Roman legal texts. Annotations by jurists of the tenth, eleventh, and
twelfth centuries, also referred to as scholia, are of less value. In many
points of civil as distinct from criminal law the Basilics discard the rules
of the Ecloga in favour of those to be found in the Justinianean codifica-
tion. An example of this tendency of the Basilics is to be found in their
revival of Justinian's law of divorce, with the result that in the East there
thus arose in respect of this matter a contradiction between the Civil and
the Canon Law. Although the Basilics retained their statutory authority
down to the fall of the Byzantine Empire in 1453, they had long before
that time been neglected in practice.
The Basilics were in fact the one really great codification of Graeco-
Roman Law in the Later Roman Empire after the time of Justinian; the


## p. 719 (#765) ############################################

Graeco-Roman Law
719
successors of Basil the Macedonian and Leo the Philosopher did not
legislate on a grand scale. Somewhat more than a century after Leo there
was, however, a marked revival of juristic studies under Constantine IX
(1042–1054), who founded a new law-school. Many jurists continued
down to the fall of the Empire to write commentaries, epitomes, and
compendia; but of these jurists only John Xiphilin, Theodore Balsamon,
and Constantinus Harmenopulus, of the eleventh, twelfth, and fourteenth
centuries respectively, need be mentioned here. The decadence of juristic
studies is represented in a striking way by the 'Exáßißros of Harmeno-
pulus, a work which appeared about 1345, and which Bruns has
characterised as “a miserable epitome of the epitomes of epitomes. ”
The inner history of the Byzantine or Graeco-Roman Law—the
history, that is, of its rules and principles, as distinct from the history of
its sources and general development—is of more than usual interest to
the student of the medieval history of Roman Law in central and western
Europe. It shews him how the Justinianean law, as embodied in the
Institutes, Digest, Code, and Novels, further developed under Eastern
conditions; and it thus gives him an opportunity to compare contem-
porary development in the Germanic West. By means of comparison he
is enabled to see clearly the similarities and the differences between the
two evolutionary processes, and to study the underlying social, economic,
religious, and political causes which produce divergence and convergence
in legal growths. Of special interest is a comparison of legal medievalism
in East and in West; for the Byzantine regions, no less than the
Romano-Germanic regions of the West, passed through corresponding
stages of medieval growth in the domain of law. The medieval legal
development of the East, from the sixth to the ninth century, is
interrupted by a restoration of the Justinianean law which corresponds in
some ways to the revival of the study and influence of that law in Italy
and Western Europe from the time of the Glossators to the Reception.
Only by bringing into our studies both the Eastern and the Western
modes and processes of legal growth, decay, and revival, together with
their background of racial, social, and political conditions, ever changing
and ever acquiring new colours drawn from the life of civilisation itself,
can we hope fully to grasp the nature and significance of the vaster
movements in medieval legal history.
In certain parts of Eastern Europe, Graeco-Roman Law survived
the fall of the Byzantine Empire and the vicissitudes of the following
centuries. The civil code of Moldavia, published in 1816-17, is a
codification of Byzantine Law. The civil law of modern Greece is also
largely indebted to it. The Basilics were sanctioned as law in 1822, but
were displaced in 1835 in favour of the epitome of Harmenopulus;
although in framing her civil code Greece followed the Napoleonic code
as her model, she professes nevertheless to base the law in theory upon
the edicts of the Emperors as embodied in this “miserable epitome of the
CH. XXI.


## p. 720 (#766) ############################################

720
Greek Canon Law
epitomes of epitomes” written by Harmenopulus. In his Geschichte des
griechisch-römischen Rechts Zachariä von Lingenthal expresses a most
favourable opinion of the Moldavian code of Byzantine law; and he
regrets that Greece did not adopt it as the basis of her own codification.
In an earlier part of this chapter reference has already been made
to the growth of Greek Canon Law during the Middle Ages. Here it is
only necessary to observe that the relation between Graeco-Roman Civil
Law and Greek Canon Law was very close. Under ecclesiastical influence
many of the texts of the Civil Law—the 'Exhoyń, for example—were
permeated with the principles of canonical jurisprudence. The evolution
of the ecclesiastical law itself was due in large measure to the work of
the Emperors. The two bodies of law developed side by side as two
aspects of the same historical process. The so-called Nomocanons
illustrate this. In these great compilations the imperial civil laws and
the ecclesiastical canons on each subject were placed side by side and
contrasted. Jurists abridged these compilations and also recast them in
systematic treatises (syntagmata). The Nouokaváv of John of Antioch,
a learned priest made Patriarch of Constantinople by Justinian in 564,
was revised and enlarged by Photius and published under Basil in 883.
Many of the jurists were as good canonists as civilians. Among the
most distinguished canonists were John Zonaras and Theodore Balsamon,
both of the twelfth century.
V.
Let us turn our attention from the East to the West. In this part
of the medieval world the background of the history of Roman and
Canon Law is formed by three vast processes : the decay and fall of the
Western Roman Empire; the expansion of the Germanic peoples and
the establishment of their several kingdoms; the growth of the Church
and of its law. With the history of the Canon Law itself in the Germanic
era—the history of its sources and constituent elements—we are not now
immediately concerned; but it should be noted that, as the Church
developed, its law also developed and that the ecclesiastical courts of
Western Christendom everywhere enforced it. Our present object of study
is the part played by the Roman and the Canon Law in the life of the
Germanic kingdoms during the period of the decay and fall of the
Western Roman Empire. What was the influence of those laws on the
legislation of the barbarians ?
The establishment of the Germanic kingdoms within the Western
provinces of the Empire brought Roman Law and Germanic Law face to
face. The problem as to which of these two bodies of law should govern
was solved by the Germanic rulers on the principle which had already
been followed by Rome in meeting a similar problem raised by the spread
of Roman power and Roman Law to regions inhabited by non-Roman


## p. 721 (#767) ############################################

Leges romanae and leges barbarorum
721
peoples. On the principle of the personality of lawl the Germanic rulers
allowed the Roman population to live under Roman Law and the Ger-
manic population to live under their own native laws and customs. There
were exceptions to this principle, as we shall see; but, in general, it long
governed Germanic legislative policy and judicial practice.
Owing to the personality of law the written laws of the Germanic
kingdoms were of two main kinds: the so-called leges romanae, intended
for the Roman population; and the so-called leges barbarorum, de-
signed for the Germanic population. Apart from these there were the
Capitularies of the Fraukish imperial rulers. Our study must now be
directed to a brief consideration of these three sorts of Germanic legis-
lation.
In 506 Alaric II, King of the West Goths, gave his Roman subjects
their own code of laws, the Lex Romana Visigothorum, known also as the
Breviarium Alaricianum; and this proved to be the most important of
all the leges romanae of the Germanic realms. Alaric's purpose was to
epitomise the leading rules of practice and thus to remove the prevailing
confusion and uncertainty due to the many texts of Roman Law then in
use. The commission of jurists appointed by the king for the execution
of this purpose proceeded upon a plan similar to that adopted by the
lawyers of Justinian's commission at a later time. Unlike the compilers
of the Justinianean legislation, however, Alaric's commissioners neither
altered nor mutilated the passages of the texts which they chose; they
simply deleted those portions of the texts which were no longer appro-
priate to the social conditions then existing. In selecting texts they drew
upon both the ius and the lex of the Roman system. From the ius they
adopted the liber Gai, a condensed re-statement or compendium of the
Institutes of Gaius which had been designed for employment in court
practice and much used in Roman schools of the fourth and fifth cen-
turies; and they also selected portions of the Sententiae of Paulus as well
as a passage from the Responsa of Papinian. From the lex the com-
missioners took over by far the greater part of the Codex Theodosianus,
as well as the Novels of Theodosius, Valentinian III, Marcian, Majo-
rian, and Severus, and some constitutions from the private compilations
known as the Codex Gregorianus and the Codex Hermogenianus. The
compilers also incorporated in Alaric's Breviary an official but worthless
interpretatio of all its parts except the liber Gai; the latter text, having
been originally adapted to practical use, needed no further commentary.
The interpretatio was not composed, as sometimes thought, by the Gothic
compilers of the Breviary; it was drawn from writings of Roman Law
teachers of the later period of the Empire in which the earlier texts had
been adapted to the conditions then prevailing. When the commissioners
But compare Bruns-Pernice-Lenel, Geschichte und Quellen des römischen
Rechts, $ 73 (Holtzeudorff, Encyklopädie der Rechtswissenschaft, 6th edn, by Kohler,
Vol. 1).
1
C. MED, H. VOL. V. CH. XXI.
46


## p. 722 (#768) ############################################

722 Alaric's Breviary. Lex Romana Burgundionum
had completed their task, the Breviary was approved by the popular
assembly at Aire in Gascony in the year 506; and it was then pro-
mulgated by the king as the sole code for his Roman subjects. Hence-
forth all other Roman laws were to be ignored.
Alaric's Breviary represents in a striking manner the decay of Roman
Law in the West? At best it is a crude and incomplete compilation if
we compare it with the codification prepared in the East by Justinian's
commission a short time afterwards. But we must not forget that it was
the work of a barbarian king and as such a rather remarkable achieve-
ment; and it certainly possessed the merit of being adapted to the social
needs of the debased Roman population of Alaric's kingdom. Besides,
it helped to preserve some of the texts of Roman Law in a part of the
old Roman world largely submerged by Germanic barbarians; and it
also exerted an influence on the later development of Roman Law in the
West which entitles it to a conspicuous place in European legal history.
In many parts of Western Europe the Breviary maintained a high
authority throughout the Middle Age.
Attention should also be drawn to the lex romana of the Burgundians.
Gundobad, King of the Burgundians (474–516), promulgated two law-
books for his subjects. The so-called Lex Gundobada was a collection of
royal ordinances, issued about the year 495, applicable to the Burgundians
and intended also to govern the legal relations between the Burgundians
and the Romans. But by issuing the Lex Gundobada the king did not
deprive his Roman subjects of the privilege of living under the Roman
Law; in fact he promised and gave them a Roman code of their own.
This code, the so-called Lex Romana Burgundionum, embraces criminal,
private, and procedural law. It was intended as an instruction to judges
and not as a complete codification of the Roman Law; Roman Law not
included in the Lex Romana Burgundionum continued to have validity.
The sources upon which the code is based are the three Codices”, the
Sententiae of Paul, a writing by Gaius (apparently the Institutes), and
school interpretations. After the Frankish conquest the Breviarium
Alaricianum was used to enlarge or supplement the Lex Romana Bur-
gundionum. Owing to the fact that Alaric's Breviary and the Lex Romana
Burgundionum were often placed together in manuscripts, a stupid mis-
take arose as early as the ninth century. A short passage from Papinian's
Responsa formed the conclusion of the Breviary. Hence it was thought
that the Lex Romana Burgundionum, which immediately followed the
Breviary in the manuscripts, was merely a continuation of the passage
from Papinian. The Lex Romana Burgundionum itself thus came to be
known as the “ Papian," an abbreviation for Papinian: a designation
which, despite the fact that it had and has no meaning, still persists in
legal literature.
1 Cf. Vinogradoff, Roman Law in Mediaeval Europe, pp. 6–12.
Gregorianus, Hermogenianus, and Theodosianus.
2


## p. 723 (#769) ############################################

Edictum Theoderici
723
The Edictum Theoderici holds a special place among the Germanic
leges which we are studying. In establishing his Ostrogothic kingdom
in Italy (493) Theodoric had no intention of obliterating the Roman Law.
He differed indeed from other Germanic rulers in making the preservation
of the unity of the Roman Empire a cardinal feature of his policy; and
many of his constitutional and legal arrangements were based on this
conception. The Goths lived in accordance with their own laws, the
Romans by Roman Law; while disputes between Goths and Romans
were settled in accordance with Roman Law. The Edictum Theoderici,
promulgated probably between the years 511 and 515, arose out of these
conditions. It was based on Roman legal materials, chiefly the three
Codices, the writings of Paul, and interpretations; but it contained also
new rules. It was designed as a means of preventing or settling dis-
putes between Goths and Romans, and was applied to both peoples
alike.
The Lombards differed from the Ostrogoths in their determination
to preserve intact their own Germanic institutions. When they became
masters of northern Italy (568), they treated the Romans as a conquered
people and completely set aside Roman administrative arrangements. To
the Romans as well as to the Lombards Germanic constitutional law was
applied; Germanic law also governed the relations of Romans with
Lombards. To the relations of Roman with Roman, as well as to matters
of Roman family relationship and inheritance, the Roman Law seems,
however, to have been applied. The Lombard Law itself was preserved in
its Germanic purity, free from Roman legal influence, down to the middle
of the seventh century (Edictum Rotharis). Not until the extension and
strengthening of the Empire was Roman influence noticeable: as, for
instance, in documents. After Charlemagne, in alliance with the Pope,
had succeeded in subjugating the Lombards, the Frankish principle of
the personality of law—the principle that each people should live under
its own laws—was applied; and the Roman Law thus came into full force
for Romans in Lombardy.
Although no special code or law-book was promulgated for the Romans
within the Frankish realm in northern France, they lived, nevertheless,
under Roman Law. From the sixth to the tenth century the Visigothic
Breviary of Alaric was used in practice within this region as the general
source of the Roman Law; but it was never given real statutory authority.
In the north the Roman population seems indeed to have been of far
smaller proportions than that of southern France. As a result, the
Germanic customary law was of predoniinant importance in the north,
while in the more Romanised south it played a lesser rôle, Roman Law
being more generally applied. This early difference lies at the foundation
of the later distinction between northern and southern France as the
pays du droit coutumier and the pays du droit écrit'.
1 See pp. 749-50, infra.
CH. XXI.
46-2


## p. 724 (#770) ############################################

724
Lex Romana canonice compta
It is to be observed, finally, that the Church as a juristic person or
institution—although not the clergy as individuals—was judged by
Roman Law in accordance with the principle ecclesia vivit lege Romana.
This principle was embodied in the earliest Germanic folk-laws; and the
reason for its firm establishment among the Germanic peoples is that
the Catholic Church had been derived from the Roman Empire and
hence had been maintained as a Roman institution. In the legal writings
and decisions, as well as in the collections of ecclesiastical law, the
validity of Roman Law seems to have been at all times assumed; the
principle ecclesia vivit lege Romana seems indeed never to have been
contested. In the earlier medieval period the chief source of the Roman
Law as applied to the Church was Alaric's Breviary ; while from the ninth
century onwards Justinian's Institutiones, Codex, and Novellae were also
in use. Not until the eleventh century were the Pandectae of Justinian
similarly applied to the Church.
Especially illuminating as one of the main sources of Roman Law in
the early Middle Age is the Lex Romana canonice compta, a collection
of Justinianean materials for ecclesiastical use dating from the ninth
century and originating, to all seeming, in Italy? The chief materials
upon which the compiler has drawn are Justinian's Institutiones and
Codex and the collection of Novels known as Iuliani epitome Novellarum? .
These materials the compiler has arranged, in general, according to their
subject-matter; but it is difficult, as Maassen points out, to find in the
collection a systematic plan consistently carried out. Materials of hete-
rogeneous content are sometimes thrown in at places where one would
least expect to find them. The Lex Romana canonice compta not only
served a practical purpose in providing ecclesiastics with rules of Roman
Law that might be useful to them, but it also helped to preserve the
texts of the Justinianean law for the employment of future generations.
Furthermore, it was one of the many Roman legal materials of the
Middle Age which influenced the growth of the Canon Law. Towards
the end of the ninth century it was drawn upon by the compiler of the
collection of canons that was dedicated to Archbishop Anselm of
Milan.
The leges romanae of the Germanic kingdoms hold a special place of
their own in the history of Roman Law in the Middle Ages. They repre-
sent the decay and barbarisation of the law in the West ; but at the
same time they represent the salvage of a part of the ancient legal culture
1 See the account given by Maassen, Geschichte der Quellen und der Literatur des
canonischen Rechts, Vol. 1, pp. 888–896.
? See Krüger, Geschichte der Quellen und Litteratur des römischen Rechts, pp. 355,
384.
3 On other collections of Roman Law for ecclesiastical use, notably the Mosaïcarum
et Romanorum legum Collatio and the Excerpta of Bobbio, see Tardif, Histoire des
Sources du Droit Canonique, pp. 266-269.


## p. 725 (#771) ############################################

The Germanic codes
725
of the Romans in the midst of the vast disturbance and transformation
of European society in the early medieval centuries.