In the first struggle within the
enclosure
and near the Pempton, the
Emperor bore a part worthy of his name and his position.
Emperor bore a part worthy of his name and his position.
Cambridge Medieval History - v4 - Eastern Roman Empire
They
therefore required few men for their defence. The landward walls were,
in all the great sieges, except that by the filibustering expedition in
1202–4 called the Fourth Crusade, the defence which invaders sought to
capture. Some places, notably near the Silivri Gate and north of that
of Hadrianople, were weaker than others, but the Achilles' heel of the
city was the long stretch of wall across the Lycus valley. About a hundred
yards north of the place where the streamlet, which gives the valley its
name, flows under the walls to enter the city, stood a military gate
known as the Pempton, or Fifth Military Gate, and called by the non-
Greek writers who describe the siege the St Romanus Gate. It gave
access to the enclosure between the Inner and the Second wall. Mahomet's
lofty tent of red and gold, with its sublima porta, as the Italians called
it, was about a quarter of a mile distant from the Pempton in the valley.
The fourteen batteries, each of four guns, were distributed at various
places in front of the landward walls. The Emperor Constantine had
fixed his headquarters within the city in the vicinity of the same gate.
Under normal conditions a large detachment of the defenders should
have been stationed on the city side of the great Inner wall. But the
troops for the defence were not even sufficient to guard the second land-
ward wall. Indeed the disparity in numbers between the besiegers and
besieged is startling. To meet the 150,000 besiegers the city had only
about 8000 men. Nearly all contemporary writers agree in this estimate.
Phrantzes states that a census was made and that, even including monks,
it shewed only 4983 Greeks. The result was so appalling that he was
charged by the Emperor not to let it be known? Assuming that there
were 3000 foreigners present, 8000 may be taken as a safe total.
The foreigners were nearly all Venetians or Genoese. The most dis-
tinguished among them was the Genoese Giustiniani. We have already
seen the spirit which actuated Trevisan. Barbaro records the names “for
a perpetual memorial” of his countrymen who took part in the defence.
1 Leonard's estimate was 6,000 Greeks and 3,000 foreigners. Tedaldi says there
were between 5,000 and 7,000 combatants within the city “and not more. ” Ducas
says that there were not more than 8,000 all told.
CH, XXI.
## p. 698 (#740) ############################################
698
The dispositions of the besieged
The arrangements for the defence were made by Giustiniani under
the Emperor. With the 700 men he had brought to the city he first
took charge of the landward walls between the Horn and the Hadrianople
Gate, but
soon transferred his men with a number of Greeks to the
enclosure in the Lycus valley as the post of greatest danger. Archbishop
Leonard took the place which he had left. At the Acropolis, that is
near Seraglio Point, Trevisan was in command. Near him was Cardinal
Isidore. The Greek noble, the Grand Duke Lucas Notaras, was stationed
near what is now the Maḥmūdīye mosque with a few men in reserve.
The monks were with others at the walls on the Marmora side. The
besieged had small cannon, but they were soon found to be useless. The
superiority of the Turkish cannon, and especially of the big gun cast by
Urban, was so great that Critobulus says: “it was the cannon which did
everything. ”
A modern historian of the siegel claims that the population of the
city was against the Emperor. This is scarcely borne out by the
evidence. It is true that a great outcry had been raised against the
Union of the Churches; that the popular cry had been “better under the
Turk than under the Latins;” that the demand of the Pope for the
restoration of Patriarch Gregory, sent away because he was an advocate
of Union with Rome, offended many; that Notaras himself, the first
noble, had declared that he “preferred the Turkish turban to the cardinal's
hat;” and that the populace had sought out Gennadius because he was
hostile to the Union. But when the gates of the city were closed against
the enemy, this sentiment in no way interfered with the determination of
all within the city to oppose the strongest resistance, and the population
rallied round the Emperor.
In the early days of the siege Mahomet destroyed all the Greek
villages which had already escaped the savagery of his troops, including
Therapia and Prinkipo.
Mahomet's army took up its position for the siege on 7 April. On
9 April the ships in the Golden Horn were drawn up for its defence, ten
being placed at the boom and seventeen held in reserve. On the 11th the
Turkish guns were placed in position, and began firing at the landward
walls on the following day. The diary of the Venetian doctor, Nicolò
Barbaro, and the other contemporary narratives shew that the firing of
the Turks went on with monotonous regularity daily from this time, and
that the three principal places of attack were, first, between the
Hadrianople Gate and the end of the foss which terminates a hundred
yards north of the palace of the Porphyrogenitus, secondly, in the Lycus
valley at and around the Pempton or so-called St Romanus Gate, and
thirdly, near the Third Military Gate to the north of the Silivri (or Pege)
Gate. The ruined condition of the walls, which have hardly been touched
1 M. Jorga, Geschichte des osmanisches Reiches, vol. 11. p. 22.
## p. 699 (#741) ############################################
Defeat of Mahomet's fleet
699
since the siege, confirms in this respect the statement of contemporaries.
The cannon from the first did such damage that Mahomet on 18 April
tried a general assault in the Lycus valley. It failed, and Giustiniani held
his ground in a struggle which lasted four hours, when Mahomet recalled
his men, leaving 200 killed and wounded.
The effect of the cannon in the Lycus valley soon, however, became
terrible. In front of the Pempton, the Middle wall, as well as that which
formed one of the sides of the foss, was broken down, and the foss in
the lower part of the valley had been filled in. Giustiniani therefore
constructed a stockade or stauroma of stones, beams, crates, barrels of
earth, and other available material, which replaced the Outer and Middle
walls through a length of 1500 feet.
Probably on the same date as the first general assault, Balta-oghlu, the
admiral of Mahomet's fleet, tried to force the boom, but failed. On
20 April occurred a notable sea-fight which raised the hopes of the
besieged. Three large Genoese ships in the Aegean, bringing soldiers and
munitions of war for the besieged, fell in with an imperial transport.
They had been long expected in the capital and also by the Turks.
Mahomet's fleet was anchored a little to the south of the present
Dolma Bagcha palace. When the ships were first seen Mahomet hastened
to the fleet, and gave orders to the admiral to prevent them entering the
harbour or not to return alive. The inhabitants of the city crowded the
east gallery of the Hippodrome, and saw the feet of at least 150 small
vessels filled with soldiers drawn up to bar the passage. One of the
most gallant sea-tights on record ensued. The large ships, having a strong
wind on their quarter, broke through the Turkish line of boats, passed
Seraglio point and, always resisting the mosquito fleet, fought under the
walls of the citadel, when the wind suddenly dropped. The ships drifted
northwards towards the shores of Pera and a renewed struggle began,
which lasted till sunset, at the mouth of the Golden Horn. It was
witnessed by Leonard, the Archbishop of Chios, and hundreds of the
inhabitants from the walls of the city, and by Mahomet from the Pera
shore. The Christian ships lashed themselves together, while the Turks
and especially the vessel containing Balta-oghlu made repeated efforts to
capture or burn them. Mahomet rode into the water alternately to en-
courage and threaten his men. All his efforts, however, failed and, when
shortly before sunset a northerly breeze sprung up, the four sailing ships
drove through the fleet, causing enormous loss'. After sunset the boom
was opened and the relieving ships passed safely within the harbour.
The defeat of his fleet was the immediate cause of Mahomet's decision
to obtain possession of the Golden Horn by the transport of his ships
overland from the Bosphorus to a place outside the walls of Galata.
1 The Destruction of the Greek Empire, by the present writer, gives a full de-
scription of the fight.
CH. XXI.
## p. 700 (#742) ############################################
700
The Turkish fleet in the Golden Horn
But preparations for this task had been in hand for several days. He
had tried, and failed, to destroy the boom. He was unwilling to make
an enemy of the Genoese by trying to force an entrance into Galata,
where one end of the boom was fastened. His undisputed possession of
the country beyond its walls enabled him to make his preparations for the
engineering feat he contemplated without interruption. He had already
stationed cannon, probably on the small plateau where the British
Crimean Memorial Church now stands, in order to fire over a corner of
Galata on the ships defending the boom and to distract attention from
what he was doing. Seventy or eighty vessels had been selected, a road
levelled, wooden tram-lines laid down on which ship's cradles bearing the
ships could be run, and on 22 April the transport was effected! . A hill
of 240 feet had been surmounted and a distance of a little over a mile
traversed. The ships probably were started from Tophana and reached
the Horn at Qāsim Pasha”.
The sudden appearance of 70 or 80 ships in the Golden Horn caused
consternation in the city. After a meeting of the leaders of the defence,
it was decided to make an effort to destroy them. James Coco, described
by Phrantzes as more capable of action than of speech, undertook the
attempt. Night was chosen and preparations carefully made, but the
plan could not be kept secret. On 28 April the attack was made and
failed, the design probably having been signalled to the Turks from the
Tower of Galata. Coco's own vessel was sunk by a well-aimed shot fired
from Qāsim Pasha. Trevisan, who had joined the expedition, and his
men only saved their lives by swimming from their sinking ship. The
fight, says Barbaro, was terrible, "a veritable hell, missiles and blows
countless, cannonading continual. ” The expedition had completely
failed.
The disadvantages resulting from the presence of the fleet were imme-
diately felt. Fighting took place almost daily on the side of the Horn as
well as before the landward walls. The besieged persisted in their efforts
to destroy the enemy's ships, but their inefficient cannon did little damage.
During the early days of May, a Venetian ship secretly left the harbour
in order to press the Venetian admiral Loredan, who, sent by the Pope,
was believed to be in the Aegean, to hasten to the city's relief. The
Emperor was urged by the nobles and Giustiniani to leave the city, but
refused. Meantime Mahomet continued an attack on the ships in the
harbour with his guns on the slope of Māltepe. On 7 May a new general
assault was made, and failed after lasting three hours. A similar attempt
was made on 12 May, near the palace of the Porphyrogenitus, now called
Tekfür Serai. This also failed.
1 Critobulus says there were 68 ships, Barbaro 172, Tedaldi between 70 and 80,
Chalcondyles 70, and Ducas 80.
2 For a description of the disputed question as to the route followed, see
Appendix ii of my Destruction of the Greek Empire.
## p. 701 (#743) ############################################
Preparations for a general assault
701
יל
After 14 May the attacks on the landward side were concentrated on
the stockade and walls of the Lycus valley. Attempts were made to under-
mine the walls, and failed ; and to destroy the boom, and thus admit the
great body of the fleet which still remained in the Bosphorus. The latest
attempt on the boom was on 21 May. Two days later the Venetian bri-
gantine, which had been sent to find Loredan, returned in safety but with
the news that they had been unable to find him. Their return was due
to a resolution of the crew which has the best quality of seamanship,
“whether it be life or death our duty is to return. '
In the last week of May the situation within the city was desperate.
The breaching of the walls was steadily going on, the greatest damage
being in the Lycus valley, for in that place was the big bombard throwing
its ball of twelve hundred pounds weight seven times a day with such
force that, when it struck the wall, it shook it and sent such a tremor
through the whole city that on the ships in the harbour it could be felt.
The city had been under siege for seven weeks and a great general assault
was seen to be in preparation. Two thousand scaling ladders, hooks for
pulling down stones, and other materials in the stockade outside the
Pempton had been brought up, and ever the steady roaring of the great
cannon was heard. In three places, Mahomet declared, he had opened a
way into the city through the great wall. Day after day the diarists re-
count that their principal occupation was to repair during the night the
damages done during the day. The bravery, the industry, and the perse-
verance of Giustiniani and the Italians and Greeks under him is beyond
question; and as everything pointed to a great fight at the stockade, it
was there that the élite of the defence continued to be stationed.
Mahomet shewed a curious hesitation in these last days of his great
task. The seven weeks' siege was apparently fruitless. Some in the army
had lost heart. The Sultan's council was divided. Some asserted that the
Western nations would not allow Constantinople to be Turkish. Hunyadi
was on his way to relieve the city. A fleet sent by the Pope was reported
to be at Chios. Mahomet called a council of the heads of the
army on
Sunday, 27 May, in which Khalil Pasha, the man of highest reputation,
declared in favour of abandoning the siege. He was opposed and overruled.
Mahomet thereupon ordered a general assault to be made without delay.
On Monday Mahomet rode over to his fleet and made arrangements
for its co-operation, then returned to the Stamboul side and visited all
his troops from the Horn to the Marmora. Heralds announced that
every one was to make ready for the great assault on the morrow.
What was destined to be the last Christian ceremony in St Sophia
was celebrated on Monday evening. Emperor and nobles, Patriarch and
Cardinal, Greeks and Latins, took part in what was in reality a solemn
liturgy of death, for the Empire was in its agony. When the service was
ended, the soldiers returned to their positions at the walls. Among the
defenders was seen Orkhān, the Turk who had been befriended by Con-
CH. XXI.
## p. 702 (#744) ############################################
702
Commencement of the assault, 29 May 1453
stantine. The Military Gates, that is those from the city leading into
the enclosures between the walls, were closed, so that, says Cambini, by
taking from the defenders any means of retreat they should resolve to
conquer or die. The Emperor, shortly after midnight of 28-29 May,
went along the whole line of the landward walls for the purpose of in-
spection.
The general assault commenced between one and two o'clock after
midnight. At once the city was attacked on all sides, though the princi-
pal point of attack was on the Lycus valley. First of all, the division of
Bashi-bazuks came up against the stockade from the district between the
Horn and Hadrianople Gate. They were the least skilled of the army, and
were used here to exhaust the strength and arrows of the besieged. They
were everywhere stoutly resisted, lost heavily, and were recalled. The be-
sieged set up a shout of joy, thinking that the night attack was ended.
They were soon undeceived, for the Anatolian troops, many of them
veterans of Kossovo, were seen advancing over the ridge crowned by Top
Qāpū to take the place of the retired division. The assault was renewed
with the utmost fury. But in spite of the enormous superiority in num-
bers, of daring attempts to pull down stones and beams from the stockade,
of efforts to scale the walls, the resistance under the brave defenders of
the thousand-year-old walls proved successful. The second division of
the
army had failed as completely as the first.
The failure of the Turks had been equally complete in other parts of
the city. Critobulus is justified in commenting with pride on the courage
of his countrymen: “Nothing could alter their determination to be faithful
to their trust. ”
There remained but one thing to do if the city was to be captured
on 29 May—to bring up the reserves. Mahomet saw that the two succes-
sive attacks had greatly weakened the defenders. His reserves were the
élite of the army, the 12,000 Janissaries, a body of archers, another or
lancers, and choice infantry bearing shields and pikes. Dawn was now
supplying sufficient light to enable a more elaborate execution of his plans.
The great cannon had been dragged nearer the stockade. Mahomet placed
himself at the head of his archers and infantry and led them up to the
foss. Then a fierce attack began upon the stockade. Volleys were fired
upon
the Greeks and Italians defending it, so that they could hardly shew
a head above the battlements without being struck. Arrows and other
missiles fell in numbers like rain, says Critobulus. They even darkened
the sky, says Leonard.
When the defenders had been harassed for some time by the heavy
rain of missiles, Mahomet gave the signal for advance to his “fresh,
vigorous, and invincible Janissaries. ” They rushed across the foss and
attempted to carry the stockade by storm. “Ten thousand of these grand
masters and valiant men,” says Barbaro with admiration for a brave
enemy, “ran to the walls not like Turks but like lions. ” They tried to
## p. 703 (#745) ############################################
The Janissaries force the stockade
703
1
tear down the stockade, to pull out the beams, or the barrels of earth of
which it was partly formed. For a while all was noise and mad confusion.
To the roar of cannon was added the clanging of every church bell in
the city, the shouts “Allāh! Allāh! " and the replies of the Christians.
Giustiniani and his little band cut down the foremost of the assailants,
and a hard hand-to-hand fight took place, neither party gaining advan-
tage over the other.
It was at this moment that Giustiniani was seriously wounded. He
bled profusely, and determined to leave the enclosure to obtain surgical
aid. That the wound was serious is shewn by the fact that he died from it
after a few days, though some of his contemporaries thought otherwise
and upbraided him for deserting his post. Critobulus, whose narrative,
written a few years after the event, is singularly free from prejudice, says
that he had to be carried away. It was in vain that the Emperor implored
him to remain, pointing out that his departure would demoralise the little
host which was defending the stockade. He entered the city by a small
gate which he had opened to give easier access to the stockade. The
general opinion at the time was undoubtedly that by quitting his post
he had hastened the capture of the city! Meanwhile the Emperor him-
self took the post of Giustiniani, and led the defenders.
Mahomet witnessed from the other side of the foss the disorder caused
by the departure of the Genoese leader. He urged the Janissaries to
follow him, to fear nothing: “The wall is undefended; the city is ours
already. ” At his bidding a new attempt was made to rush the stockade
and to climb upon the debris of the wall destroyed by the great gun.
A stalwart Janissary named Hasan was the first to gain and maintain
a position on the stockade, and thereby to entitle himself to the rich re-
ward promised by the Sultan. The Greeks resisted his entry and that of
his comrades and killed eighteen. But Hasan held his position long
enough to enable a number of his followers to climb over the stockade.
A fierce but short struggle ensued while other Turks were pouring into
the enclosure. They followed in crowds, once a few were able to hold their
position on the stockade. Italians and Greeks resisted, but the Turks
were already masters of the enclosure. Barbaro says that within a quarter
of an hour of the Turks first obtaining access to the stockade there must
have been 30,000 within the enclosure. The defenders fled in panic. The
Turks, according to Leonard, formed a phalanx on the slope of each side
of the hill and drove Greeks and Italians before them. Only the small
gate into the city was open, and this was soon crowded with dying or
dead.
The overwhelming numbers of the invaders enabled them soon to
slaughter all opponents who had not escaped into the city. The military
1 See the statements of contemporaries quoted in my Destruction of the Greek
Empire, pp. 346-7.
CH, XXI.
## p. 704 (#746) ############################################
704
Capture of Constantinople
gate of the Pempton was at once opened. Hundreds of Turks entered
the city, while others hastened to the Hadrianople Gate and opened it to
their comrades. From that time Constantinople was at the mercy of
Mahomet. A public military entry followed, probably at about ten in
the morning, and then the city was handed over to the army, as Mahomet
had promised, for a three days' sack.
In the first struggle within the enclosure and near the Pempton, the
Emperor bore a part worthy of his name and his position. The last Con-
stantine perished among his own subjects and the remnant of the Italians
who were fighting for the honor de Dio et de christianitade. All accounts
of his death attest his courage. He refused, says Critobulus, to live after
the capture of the city, and died fighting. The manner of his death
and the question whether his body was ever found are, however, both'
doubtfuli.
An incident is mentioned by Ducas, and is incidentally confirmed by
other writers, which may have hastened the capture of the city. Whether
by accident or by treason a small postern gate near Tekfür Serai (the palace
of the Porphyrogenitus) had been left open, and in the midst of the final
struggle a number of Turkish troops entered and obtained possession of
the walls between the palace and the Hadrianople Gate, where they hoisted
Turkish ensigns. Some even went as far as the mosaic mosque,
known as
the Chora, and plundered it. But an alarm was immediately given, and
the Emperor hastened to the Hadrianople Gate and assisted in driving
out the intruders. Then as hastily he returned to the stockade, arriving
just at the moment when Giustiniani was preparing to leave. The story
of Ducas is not mentioned by Critobulus, who either knew nothing of it
or regarded the incident as unimportant. Sa'd-ad-Dīn gives a version
which, apart from the bombastic fashion in which he wrote his account
of the capture of the city, occasionally contains a grain of truth. He says
that, “while the blind-hearted Emperor” was busy resisting the besiegers
to the north of the Hadrianople Gate,“ suddenly he learned that the up-
raising of the most glorious standard of the Word of God' had found a
path to within the walls. ” The entrance into the city at this moment by
the sailors opposite the church of St Theodosius, now the Gul-jāmi', may
be held to confirm the story of Ducas.
Mahomet's capture of Constantinople was the crowning of the work
done by his able predecessors. With the sack of the city and with the
further conquests of Mahomet we have nothing to do. His biographers
claim that he conquered two empires and seven kingdoms. Cantemir
calls him the most glorious prince who ever occupied the Ottoman throne.
Halil Ganem is justified in saying that, judged by his military exploits,
? See the various contemporaries quoted on pp. 353–4 of The Destruction of the
Greek Empire.
## p. 705 (#747) ############################################
Character of Mahomet
705
Mahomet occupies the first place in the Ottoman annals. Responsibility
had been thrown upon him by his father while still a boy. Throughout
his life he was self-reliant. He cared nothing for the pleasures usually
associated with an Asiatic sovereign. As he was, like so many of the
earlier Sultans, the son of a Christian mother, he may have derived many
of the elements in his character from her. He shewed from the first a
dislike for games, for hunting, indeed for amusement of any kind. He kept
his designs to himself, and is reported to have said in reply to a question:
“If a hair in my beard knew what I proposed I would pluck it out. ”
He had no court favourites and was a lonely man, though he enjoyed
conversation on historical subjects, knew the life of Alexander the Great
well, and took interest in the story of Troy. He was careful in the selec-
tion of his ministers, and a rigid disciplinarian. The Janissaries had al-
ready begun to count upon their strength, and exacted from him a donative
on his accession. He never forgave their Āghā for permitting it. Shortly
afterwards he degraded and flogged him for not preventing a revolt. At
the beginning of his reign he reformed Turkish administration, and in-
creased the revenue by preventing great leakage in the collection of taxes.
He is spoken of by the Turks as the Qanāni or Lawgiver. Thoughtful
as a youth, he continued during his life to take a delight in studies which
have not occupied the attention of any other Turkish ruler. Gennadius,
the new Patriarch, became so great a favourite with him that some
of his subjects spoke of him as an unbeliever. Yet his mind was
usually occupied with great projects. He rightly judged what were the
obstacles to the Turks' further advance. The phrase “First Rhodes, then
Belgrade,” is attributed to him as indicating the direction of his ambition.
He shewed his intention of making the Turks a European power when he
commenced his reign, by laying the foundation of his palace at Hadrian-
ople. He was, moreover, a lover of learning according to his lights, de-
lighted in discussing theology and philosophy, and had acquired five
languages. He employed Gentile Bellini, the Venetian painter, and when
he left presented him with the arms and armour of Dandolo. The dark
side of his character shews him as reckless of human life and guilty of
gross cruelty. He made infanticide in the imperial family legal, though
it had been commonly practised before his reign. All things considered,
we can have no hesitation in pronouncing him the ablest of Ottoman
Sultans.
The capture of Constantinople marks not only the end of the Greek
Empire but the establishment of that of the Ottomans. After that event,
when the world thought of Turks they connected them with New Rome
on the Bosphorus. The Ottoman Turks had advanced to be a European
nation.
C. MED. H. VOL. IV. CH. XXI.
45
## p. 706 (#748) ############################################
706
CHAPTER XXII.
BYZANTINE LEGISLATION FROM 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 re-
established 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.
1.
The study of Byzantine legislation after Justinian cannot be under-
taken 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, authorised jurisconsults to select one of three methods only in
1 Some modern authors only distinguish two periods: 565-866, and 867–1453.
2 In his constitution Deo auctore, § 12 and in his constitution Tanta, Aédokev,
$ 21.
## p. 707 (#749) ############################################
לל
Commentaries on Justinian's work 707
explaining his Digest and his Code: (1) tà katà módas, i. e. by giving
literal translations of the Latin texts into Greek. (2) Ilapátitia,
i. e. 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 con-
sideration, or else by drawing up tables of concordance between a given
law and other texts (Trapanourrai). (3) 'Ivdikes (Indices), i. e. 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 mapaypapai or explanatory notes on passages in the legis-
lative 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, pro-
fessor 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 juris-
consult (Digest, Code, Institutes); Cobidas (Digest, Tò mouválcov); 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.
לל
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 (TÒ TÔ įvavtioøávwv povoßißriov)
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) AL 'Potai, a collection which was
CH. XXII.
45—2
## p. 708 (#750) ############################################
708
Novels of Justin II, Tiberius, and Heraclius
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.
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 cele-
brated are Novels XXII to XXV of Heraclius on the organisation of
the Church, and especially on the privilegium fori. The Novels of Ti-
berius 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 (oi duvaroi), certain of impunity,
gave way to excesses which Constantine Manasses chronicles in his em-
phatic 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 labourers, the venal
partiality of the governors, and the tyranny of the Powerful. According
to Monnier, Tiberius suspended the practice of the emrißorn (adiectio, or
the compulsory linking of waste lands to adjoining cultivated land, with
a view to ensuring the collection of the tax); the étißorn was not re-
established until the reign of Nicephorus I (802-811), and then under
a different form.
A fresh eclipse of legislation occurred in the century which inter-
vened 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 ('Ex oyn Tôv vóuwv, etc. ) 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 im-
provement,” as the very title of the work states, and conceived in a more
1 Cf. supra, Chapter 1, pp. 4-5. For a different view as to the date of these Codes
see the Introduction to this volume.
## p. 709 (#751) ############################################
The Ecloga
709
Christian spirit. The Preface indicates the purpose of the work. Having
recognised that the laws promulgated by their predecessors were dis-
persed 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 shewn-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 dis-
tinction 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 con-
sent 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 de-
ceased 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 distinc-
tion 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 shewn, 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
i So Monnier. Other authors (e. g. Schupfer) fail to see any real community in
the Ecloga, because there is lacking the amalgamation of property between husband
and wife,
CH. XXII.
## p. 710 (#752) ############################################
710
The Military, Maritime, and Rural Codes
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 abro-
gation 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 favour
which it still retained is that certain manuscripts contain both the Eclogu
and the Prochiron of Basil himself.
Three small Codes completed the Ecloga: the Military Code (Nóuos
στρατιωτικός), the Maritime Code (Νόμος Ροδίων ναυτικός), and the
Rural Code (Nópos yewpycxós). The three Codes answer the same pur-
pose 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 labours of juris-
consults. 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 inter-
fering 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 Con-
stantine VI, to Irene, Nicephorus I, Leo V, and Theophilus. These Novels
are chiefly concerned with political, religious, and canonical legislation.
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.
## p. 711 (#753) ############################################
Canon law of the sixth century
711
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 con-
tributed 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 capi-
tulorum 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
organisation of the Eastern Church. To the end of the sixth century be-
long 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.
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
CH, XXII.
## p. 712 (#754) ############################################
712
Legislation of Basil I
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 practising lawyers had been abandoning
more and more.
In the first place Basil published an introductory manual to the science
of law: the II póxelpos vóuos (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 reputa-
tion 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: the 'Etavaywyn
Tøv vóuwy 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 'Aνακάθαρσις των παλαιών νόμων
(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 con-
sider that the work, which has not been preserved, was actually executed
in Basil's reign, although there are doubts about its scope, as the Pro-
chiron 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 VỊ.
1 So Biener and Zachariae.
## p. 713 (#755) ############################################
Legislation of Leo VI: the Basilics
713
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 (τα βασιλικά, ο βασιλικός). They
are also called ο Εξηκοντάβιβλος because they contain sixty books, and
ο Εξάβιβλος because in the manuscripts. they form six volumes.
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 pre-
vious 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 Sym-
batius. 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 (kepálata), and these, finally, are divided into paragraphs
(θέματα).
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 Bibliothèque 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.
therefore required few men for their defence. The landward walls were,
in all the great sieges, except that by the filibustering expedition in
1202–4 called the Fourth Crusade, the defence which invaders sought to
capture. Some places, notably near the Silivri Gate and north of that
of Hadrianople, were weaker than others, but the Achilles' heel of the
city was the long stretch of wall across the Lycus valley. About a hundred
yards north of the place where the streamlet, which gives the valley its
name, flows under the walls to enter the city, stood a military gate
known as the Pempton, or Fifth Military Gate, and called by the non-
Greek writers who describe the siege the St Romanus Gate. It gave
access to the enclosure between the Inner and the Second wall. Mahomet's
lofty tent of red and gold, with its sublima porta, as the Italians called
it, was about a quarter of a mile distant from the Pempton in the valley.
The fourteen batteries, each of four guns, were distributed at various
places in front of the landward walls. The Emperor Constantine had
fixed his headquarters within the city in the vicinity of the same gate.
Under normal conditions a large detachment of the defenders should
have been stationed on the city side of the great Inner wall. But the
troops for the defence were not even sufficient to guard the second land-
ward wall. Indeed the disparity in numbers between the besiegers and
besieged is startling. To meet the 150,000 besiegers the city had only
about 8000 men. Nearly all contemporary writers agree in this estimate.
Phrantzes states that a census was made and that, even including monks,
it shewed only 4983 Greeks. The result was so appalling that he was
charged by the Emperor not to let it be known? Assuming that there
were 3000 foreigners present, 8000 may be taken as a safe total.
The foreigners were nearly all Venetians or Genoese. The most dis-
tinguished among them was the Genoese Giustiniani. We have already
seen the spirit which actuated Trevisan. Barbaro records the names “for
a perpetual memorial” of his countrymen who took part in the defence.
1 Leonard's estimate was 6,000 Greeks and 3,000 foreigners. Tedaldi says there
were between 5,000 and 7,000 combatants within the city “and not more. ” Ducas
says that there were not more than 8,000 all told.
CH, XXI.
## p. 698 (#740) ############################################
698
The dispositions of the besieged
The arrangements for the defence were made by Giustiniani under
the Emperor. With the 700 men he had brought to the city he first
took charge of the landward walls between the Horn and the Hadrianople
Gate, but
soon transferred his men with a number of Greeks to the
enclosure in the Lycus valley as the post of greatest danger. Archbishop
Leonard took the place which he had left. At the Acropolis, that is
near Seraglio Point, Trevisan was in command. Near him was Cardinal
Isidore. The Greek noble, the Grand Duke Lucas Notaras, was stationed
near what is now the Maḥmūdīye mosque with a few men in reserve.
The monks were with others at the walls on the Marmora side. The
besieged had small cannon, but they were soon found to be useless. The
superiority of the Turkish cannon, and especially of the big gun cast by
Urban, was so great that Critobulus says: “it was the cannon which did
everything. ”
A modern historian of the siegel claims that the population of the
city was against the Emperor. This is scarcely borne out by the
evidence. It is true that a great outcry had been raised against the
Union of the Churches; that the popular cry had been “better under the
Turk than under the Latins;” that the demand of the Pope for the
restoration of Patriarch Gregory, sent away because he was an advocate
of Union with Rome, offended many; that Notaras himself, the first
noble, had declared that he “preferred the Turkish turban to the cardinal's
hat;” and that the populace had sought out Gennadius because he was
hostile to the Union. But when the gates of the city were closed against
the enemy, this sentiment in no way interfered with the determination of
all within the city to oppose the strongest resistance, and the population
rallied round the Emperor.
In the early days of the siege Mahomet destroyed all the Greek
villages which had already escaped the savagery of his troops, including
Therapia and Prinkipo.
Mahomet's army took up its position for the siege on 7 April. On
9 April the ships in the Golden Horn were drawn up for its defence, ten
being placed at the boom and seventeen held in reserve. On the 11th the
Turkish guns were placed in position, and began firing at the landward
walls on the following day. The diary of the Venetian doctor, Nicolò
Barbaro, and the other contemporary narratives shew that the firing of
the Turks went on with monotonous regularity daily from this time, and
that the three principal places of attack were, first, between the
Hadrianople Gate and the end of the foss which terminates a hundred
yards north of the palace of the Porphyrogenitus, secondly, in the Lycus
valley at and around the Pempton or so-called St Romanus Gate, and
thirdly, near the Third Military Gate to the north of the Silivri (or Pege)
Gate. The ruined condition of the walls, which have hardly been touched
1 M. Jorga, Geschichte des osmanisches Reiches, vol. 11. p. 22.
## p. 699 (#741) ############################################
Defeat of Mahomet's fleet
699
since the siege, confirms in this respect the statement of contemporaries.
The cannon from the first did such damage that Mahomet on 18 April
tried a general assault in the Lycus valley. It failed, and Giustiniani held
his ground in a struggle which lasted four hours, when Mahomet recalled
his men, leaving 200 killed and wounded.
The effect of the cannon in the Lycus valley soon, however, became
terrible. In front of the Pempton, the Middle wall, as well as that which
formed one of the sides of the foss, was broken down, and the foss in
the lower part of the valley had been filled in. Giustiniani therefore
constructed a stockade or stauroma of stones, beams, crates, barrels of
earth, and other available material, which replaced the Outer and Middle
walls through a length of 1500 feet.
Probably on the same date as the first general assault, Balta-oghlu, the
admiral of Mahomet's fleet, tried to force the boom, but failed. On
20 April occurred a notable sea-fight which raised the hopes of the
besieged. Three large Genoese ships in the Aegean, bringing soldiers and
munitions of war for the besieged, fell in with an imperial transport.
They had been long expected in the capital and also by the Turks.
Mahomet's fleet was anchored a little to the south of the present
Dolma Bagcha palace. When the ships were first seen Mahomet hastened
to the fleet, and gave orders to the admiral to prevent them entering the
harbour or not to return alive. The inhabitants of the city crowded the
east gallery of the Hippodrome, and saw the feet of at least 150 small
vessels filled with soldiers drawn up to bar the passage. One of the
most gallant sea-tights on record ensued. The large ships, having a strong
wind on their quarter, broke through the Turkish line of boats, passed
Seraglio point and, always resisting the mosquito fleet, fought under the
walls of the citadel, when the wind suddenly dropped. The ships drifted
northwards towards the shores of Pera and a renewed struggle began,
which lasted till sunset, at the mouth of the Golden Horn. It was
witnessed by Leonard, the Archbishop of Chios, and hundreds of the
inhabitants from the walls of the city, and by Mahomet from the Pera
shore. The Christian ships lashed themselves together, while the Turks
and especially the vessel containing Balta-oghlu made repeated efforts to
capture or burn them. Mahomet rode into the water alternately to en-
courage and threaten his men. All his efforts, however, failed and, when
shortly before sunset a northerly breeze sprung up, the four sailing ships
drove through the fleet, causing enormous loss'. After sunset the boom
was opened and the relieving ships passed safely within the harbour.
The defeat of his fleet was the immediate cause of Mahomet's decision
to obtain possession of the Golden Horn by the transport of his ships
overland from the Bosphorus to a place outside the walls of Galata.
1 The Destruction of the Greek Empire, by the present writer, gives a full de-
scription of the fight.
CH. XXI.
## p. 700 (#742) ############################################
700
The Turkish fleet in the Golden Horn
But preparations for this task had been in hand for several days. He
had tried, and failed, to destroy the boom. He was unwilling to make
an enemy of the Genoese by trying to force an entrance into Galata,
where one end of the boom was fastened. His undisputed possession of
the country beyond its walls enabled him to make his preparations for the
engineering feat he contemplated without interruption. He had already
stationed cannon, probably on the small plateau where the British
Crimean Memorial Church now stands, in order to fire over a corner of
Galata on the ships defending the boom and to distract attention from
what he was doing. Seventy or eighty vessels had been selected, a road
levelled, wooden tram-lines laid down on which ship's cradles bearing the
ships could be run, and on 22 April the transport was effected! . A hill
of 240 feet had been surmounted and a distance of a little over a mile
traversed. The ships probably were started from Tophana and reached
the Horn at Qāsim Pasha”.
The sudden appearance of 70 or 80 ships in the Golden Horn caused
consternation in the city. After a meeting of the leaders of the defence,
it was decided to make an effort to destroy them. James Coco, described
by Phrantzes as more capable of action than of speech, undertook the
attempt. Night was chosen and preparations carefully made, but the
plan could not be kept secret. On 28 April the attack was made and
failed, the design probably having been signalled to the Turks from the
Tower of Galata. Coco's own vessel was sunk by a well-aimed shot fired
from Qāsim Pasha. Trevisan, who had joined the expedition, and his
men only saved their lives by swimming from their sinking ship. The
fight, says Barbaro, was terrible, "a veritable hell, missiles and blows
countless, cannonading continual. ” The expedition had completely
failed.
The disadvantages resulting from the presence of the fleet were imme-
diately felt. Fighting took place almost daily on the side of the Horn as
well as before the landward walls. The besieged persisted in their efforts
to destroy the enemy's ships, but their inefficient cannon did little damage.
During the early days of May, a Venetian ship secretly left the harbour
in order to press the Venetian admiral Loredan, who, sent by the Pope,
was believed to be in the Aegean, to hasten to the city's relief. The
Emperor was urged by the nobles and Giustiniani to leave the city, but
refused. Meantime Mahomet continued an attack on the ships in the
harbour with his guns on the slope of Māltepe. On 7 May a new general
assault was made, and failed after lasting three hours. A similar attempt
was made on 12 May, near the palace of the Porphyrogenitus, now called
Tekfür Serai. This also failed.
1 Critobulus says there were 68 ships, Barbaro 172, Tedaldi between 70 and 80,
Chalcondyles 70, and Ducas 80.
2 For a description of the disputed question as to the route followed, see
Appendix ii of my Destruction of the Greek Empire.
## p. 701 (#743) ############################################
Preparations for a general assault
701
יל
After 14 May the attacks on the landward side were concentrated on
the stockade and walls of the Lycus valley. Attempts were made to under-
mine the walls, and failed ; and to destroy the boom, and thus admit the
great body of the fleet which still remained in the Bosphorus. The latest
attempt on the boom was on 21 May. Two days later the Venetian bri-
gantine, which had been sent to find Loredan, returned in safety but with
the news that they had been unable to find him. Their return was due
to a resolution of the crew which has the best quality of seamanship,
“whether it be life or death our duty is to return. '
In the last week of May the situation within the city was desperate.
The breaching of the walls was steadily going on, the greatest damage
being in the Lycus valley, for in that place was the big bombard throwing
its ball of twelve hundred pounds weight seven times a day with such
force that, when it struck the wall, it shook it and sent such a tremor
through the whole city that on the ships in the harbour it could be felt.
The city had been under siege for seven weeks and a great general assault
was seen to be in preparation. Two thousand scaling ladders, hooks for
pulling down stones, and other materials in the stockade outside the
Pempton had been brought up, and ever the steady roaring of the great
cannon was heard. In three places, Mahomet declared, he had opened a
way into the city through the great wall. Day after day the diarists re-
count that their principal occupation was to repair during the night the
damages done during the day. The bravery, the industry, and the perse-
verance of Giustiniani and the Italians and Greeks under him is beyond
question; and as everything pointed to a great fight at the stockade, it
was there that the élite of the defence continued to be stationed.
Mahomet shewed a curious hesitation in these last days of his great
task. The seven weeks' siege was apparently fruitless. Some in the army
had lost heart. The Sultan's council was divided. Some asserted that the
Western nations would not allow Constantinople to be Turkish. Hunyadi
was on his way to relieve the city. A fleet sent by the Pope was reported
to be at Chios. Mahomet called a council of the heads of the
army on
Sunday, 27 May, in which Khalil Pasha, the man of highest reputation,
declared in favour of abandoning the siege. He was opposed and overruled.
Mahomet thereupon ordered a general assault to be made without delay.
On Monday Mahomet rode over to his fleet and made arrangements
for its co-operation, then returned to the Stamboul side and visited all
his troops from the Horn to the Marmora. Heralds announced that
every one was to make ready for the great assault on the morrow.
What was destined to be the last Christian ceremony in St Sophia
was celebrated on Monday evening. Emperor and nobles, Patriarch and
Cardinal, Greeks and Latins, took part in what was in reality a solemn
liturgy of death, for the Empire was in its agony. When the service was
ended, the soldiers returned to their positions at the walls. Among the
defenders was seen Orkhān, the Turk who had been befriended by Con-
CH. XXI.
## p. 702 (#744) ############################################
702
Commencement of the assault, 29 May 1453
stantine. The Military Gates, that is those from the city leading into
the enclosures between the walls, were closed, so that, says Cambini, by
taking from the defenders any means of retreat they should resolve to
conquer or die. The Emperor, shortly after midnight of 28-29 May,
went along the whole line of the landward walls for the purpose of in-
spection.
The general assault commenced between one and two o'clock after
midnight. At once the city was attacked on all sides, though the princi-
pal point of attack was on the Lycus valley. First of all, the division of
Bashi-bazuks came up against the stockade from the district between the
Horn and Hadrianople Gate. They were the least skilled of the army, and
were used here to exhaust the strength and arrows of the besieged. They
were everywhere stoutly resisted, lost heavily, and were recalled. The be-
sieged set up a shout of joy, thinking that the night attack was ended.
They were soon undeceived, for the Anatolian troops, many of them
veterans of Kossovo, were seen advancing over the ridge crowned by Top
Qāpū to take the place of the retired division. The assault was renewed
with the utmost fury. But in spite of the enormous superiority in num-
bers, of daring attempts to pull down stones and beams from the stockade,
of efforts to scale the walls, the resistance under the brave defenders of
the thousand-year-old walls proved successful. The second division of
the
army had failed as completely as the first.
The failure of the Turks had been equally complete in other parts of
the city. Critobulus is justified in commenting with pride on the courage
of his countrymen: “Nothing could alter their determination to be faithful
to their trust. ”
There remained but one thing to do if the city was to be captured
on 29 May—to bring up the reserves. Mahomet saw that the two succes-
sive attacks had greatly weakened the defenders. His reserves were the
élite of the army, the 12,000 Janissaries, a body of archers, another or
lancers, and choice infantry bearing shields and pikes. Dawn was now
supplying sufficient light to enable a more elaborate execution of his plans.
The great cannon had been dragged nearer the stockade. Mahomet placed
himself at the head of his archers and infantry and led them up to the
foss. Then a fierce attack began upon the stockade. Volleys were fired
upon
the Greeks and Italians defending it, so that they could hardly shew
a head above the battlements without being struck. Arrows and other
missiles fell in numbers like rain, says Critobulus. They even darkened
the sky, says Leonard.
When the defenders had been harassed for some time by the heavy
rain of missiles, Mahomet gave the signal for advance to his “fresh,
vigorous, and invincible Janissaries. ” They rushed across the foss and
attempted to carry the stockade by storm. “Ten thousand of these grand
masters and valiant men,” says Barbaro with admiration for a brave
enemy, “ran to the walls not like Turks but like lions. ” They tried to
## p. 703 (#745) ############################################
The Janissaries force the stockade
703
1
tear down the stockade, to pull out the beams, or the barrels of earth of
which it was partly formed. For a while all was noise and mad confusion.
To the roar of cannon was added the clanging of every church bell in
the city, the shouts “Allāh! Allāh! " and the replies of the Christians.
Giustiniani and his little band cut down the foremost of the assailants,
and a hard hand-to-hand fight took place, neither party gaining advan-
tage over the other.
It was at this moment that Giustiniani was seriously wounded. He
bled profusely, and determined to leave the enclosure to obtain surgical
aid. That the wound was serious is shewn by the fact that he died from it
after a few days, though some of his contemporaries thought otherwise
and upbraided him for deserting his post. Critobulus, whose narrative,
written a few years after the event, is singularly free from prejudice, says
that he had to be carried away. It was in vain that the Emperor implored
him to remain, pointing out that his departure would demoralise the little
host which was defending the stockade. He entered the city by a small
gate which he had opened to give easier access to the stockade. The
general opinion at the time was undoubtedly that by quitting his post
he had hastened the capture of the city! Meanwhile the Emperor him-
self took the post of Giustiniani, and led the defenders.
Mahomet witnessed from the other side of the foss the disorder caused
by the departure of the Genoese leader. He urged the Janissaries to
follow him, to fear nothing: “The wall is undefended; the city is ours
already. ” At his bidding a new attempt was made to rush the stockade
and to climb upon the debris of the wall destroyed by the great gun.
A stalwart Janissary named Hasan was the first to gain and maintain
a position on the stockade, and thereby to entitle himself to the rich re-
ward promised by the Sultan. The Greeks resisted his entry and that of
his comrades and killed eighteen. But Hasan held his position long
enough to enable a number of his followers to climb over the stockade.
A fierce but short struggle ensued while other Turks were pouring into
the enclosure. They followed in crowds, once a few were able to hold their
position on the stockade. Italians and Greeks resisted, but the Turks
were already masters of the enclosure. Barbaro says that within a quarter
of an hour of the Turks first obtaining access to the stockade there must
have been 30,000 within the enclosure. The defenders fled in panic. The
Turks, according to Leonard, formed a phalanx on the slope of each side
of the hill and drove Greeks and Italians before them. Only the small
gate into the city was open, and this was soon crowded with dying or
dead.
The overwhelming numbers of the invaders enabled them soon to
slaughter all opponents who had not escaped into the city. The military
1 See the statements of contemporaries quoted in my Destruction of the Greek
Empire, pp. 346-7.
CH, XXI.
## p. 704 (#746) ############################################
704
Capture of Constantinople
gate of the Pempton was at once opened. Hundreds of Turks entered
the city, while others hastened to the Hadrianople Gate and opened it to
their comrades. From that time Constantinople was at the mercy of
Mahomet. A public military entry followed, probably at about ten in
the morning, and then the city was handed over to the army, as Mahomet
had promised, for a three days' sack.
In the first struggle within the enclosure and near the Pempton, the
Emperor bore a part worthy of his name and his position. The last Con-
stantine perished among his own subjects and the remnant of the Italians
who were fighting for the honor de Dio et de christianitade. All accounts
of his death attest his courage. He refused, says Critobulus, to live after
the capture of the city, and died fighting. The manner of his death
and the question whether his body was ever found are, however, both'
doubtfuli.
An incident is mentioned by Ducas, and is incidentally confirmed by
other writers, which may have hastened the capture of the city. Whether
by accident or by treason a small postern gate near Tekfür Serai (the palace
of the Porphyrogenitus) had been left open, and in the midst of the final
struggle a number of Turkish troops entered and obtained possession of
the walls between the palace and the Hadrianople Gate, where they hoisted
Turkish ensigns. Some even went as far as the mosaic mosque,
known as
the Chora, and plundered it. But an alarm was immediately given, and
the Emperor hastened to the Hadrianople Gate and assisted in driving
out the intruders. Then as hastily he returned to the stockade, arriving
just at the moment when Giustiniani was preparing to leave. The story
of Ducas is not mentioned by Critobulus, who either knew nothing of it
or regarded the incident as unimportant. Sa'd-ad-Dīn gives a version
which, apart from the bombastic fashion in which he wrote his account
of the capture of the city, occasionally contains a grain of truth. He says
that, “while the blind-hearted Emperor” was busy resisting the besiegers
to the north of the Hadrianople Gate,“ suddenly he learned that the up-
raising of the most glorious standard of the Word of God' had found a
path to within the walls. ” The entrance into the city at this moment by
the sailors opposite the church of St Theodosius, now the Gul-jāmi', may
be held to confirm the story of Ducas.
Mahomet's capture of Constantinople was the crowning of the work
done by his able predecessors. With the sack of the city and with the
further conquests of Mahomet we have nothing to do. His biographers
claim that he conquered two empires and seven kingdoms. Cantemir
calls him the most glorious prince who ever occupied the Ottoman throne.
Halil Ganem is justified in saying that, judged by his military exploits,
? See the various contemporaries quoted on pp. 353–4 of The Destruction of the
Greek Empire.
## p. 705 (#747) ############################################
Character of Mahomet
705
Mahomet occupies the first place in the Ottoman annals. Responsibility
had been thrown upon him by his father while still a boy. Throughout
his life he was self-reliant. He cared nothing for the pleasures usually
associated with an Asiatic sovereign. As he was, like so many of the
earlier Sultans, the son of a Christian mother, he may have derived many
of the elements in his character from her. He shewed from the first a
dislike for games, for hunting, indeed for amusement of any kind. He kept
his designs to himself, and is reported to have said in reply to a question:
“If a hair in my beard knew what I proposed I would pluck it out. ”
He had no court favourites and was a lonely man, though he enjoyed
conversation on historical subjects, knew the life of Alexander the Great
well, and took interest in the story of Troy. He was careful in the selec-
tion of his ministers, and a rigid disciplinarian. The Janissaries had al-
ready begun to count upon their strength, and exacted from him a donative
on his accession. He never forgave their Āghā for permitting it. Shortly
afterwards he degraded and flogged him for not preventing a revolt. At
the beginning of his reign he reformed Turkish administration, and in-
creased the revenue by preventing great leakage in the collection of taxes.
He is spoken of by the Turks as the Qanāni or Lawgiver. Thoughtful
as a youth, he continued during his life to take a delight in studies which
have not occupied the attention of any other Turkish ruler. Gennadius,
the new Patriarch, became so great a favourite with him that some
of his subjects spoke of him as an unbeliever. Yet his mind was
usually occupied with great projects. He rightly judged what were the
obstacles to the Turks' further advance. The phrase “First Rhodes, then
Belgrade,” is attributed to him as indicating the direction of his ambition.
He shewed his intention of making the Turks a European power when he
commenced his reign, by laying the foundation of his palace at Hadrian-
ople. He was, moreover, a lover of learning according to his lights, de-
lighted in discussing theology and philosophy, and had acquired five
languages. He employed Gentile Bellini, the Venetian painter, and when
he left presented him with the arms and armour of Dandolo. The dark
side of his character shews him as reckless of human life and guilty of
gross cruelty. He made infanticide in the imperial family legal, though
it had been commonly practised before his reign. All things considered,
we can have no hesitation in pronouncing him the ablest of Ottoman
Sultans.
The capture of Constantinople marks not only the end of the Greek
Empire but the establishment of that of the Ottomans. After that event,
when the world thought of Turks they connected them with New Rome
on the Bosphorus. The Ottoman Turks had advanced to be a European
nation.
C. MED. H. VOL. IV. CH. XXI.
45
## p. 706 (#748) ############################################
706
CHAPTER XXII.
BYZANTINE LEGISLATION FROM 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 re-
established 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.
1.
The study of Byzantine legislation after Justinian cannot be under-
taken 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, authorised jurisconsults to select one of three methods only in
1 Some modern authors only distinguish two periods: 565-866, and 867–1453.
2 In his constitution Deo auctore, § 12 and in his constitution Tanta, Aédokev,
$ 21.
## p. 707 (#749) ############################################
לל
Commentaries on Justinian's work 707
explaining his Digest and his Code: (1) tà katà módas, i. e. by giving
literal translations of the Latin texts into Greek. (2) Ilapátitia,
i. e. 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 con-
sideration, or else by drawing up tables of concordance between a given
law and other texts (Trapanourrai). (3) 'Ivdikes (Indices), i. e. 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 mapaypapai or explanatory notes on passages in the legis-
lative 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, pro-
fessor 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 juris-
consult (Digest, Code, Institutes); Cobidas (Digest, Tò mouválcov); 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.
לל
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 (TÒ TÔ įvavtioøávwv povoßißriov)
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) AL 'Potai, a collection which was
CH. XXII.
45—2
## p. 708 (#750) ############################################
708
Novels of Justin II, Tiberius, and Heraclius
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.
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 cele-
brated are Novels XXII to XXV of Heraclius on the organisation of
the Church, and especially on the privilegium fori. The Novels of Ti-
berius 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 (oi duvaroi), certain of impunity,
gave way to excesses which Constantine Manasses chronicles in his em-
phatic 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 labourers, the venal
partiality of the governors, and the tyranny of the Powerful. According
to Monnier, Tiberius suspended the practice of the emrißorn (adiectio, or
the compulsory linking of waste lands to adjoining cultivated land, with
a view to ensuring the collection of the tax); the étißorn was not re-
established until the reign of Nicephorus I (802-811), and then under
a different form.
A fresh eclipse of legislation occurred in the century which inter-
vened 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 ('Ex oyn Tôv vóuwv, etc. ) 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 im-
provement,” as the very title of the work states, and conceived in a more
1 Cf. supra, Chapter 1, pp. 4-5. For a different view as to the date of these Codes
see the Introduction to this volume.
## p. 709 (#751) ############################################
The Ecloga
709
Christian spirit. The Preface indicates the purpose of the work. Having
recognised that the laws promulgated by their predecessors were dis-
persed 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 shewn-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 dis-
tinction 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 con-
sent 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 de-
ceased 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 distinc-
tion 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 shewn, 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
i So Monnier. Other authors (e. g. Schupfer) fail to see any real community in
the Ecloga, because there is lacking the amalgamation of property between husband
and wife,
CH. XXII.
## p. 710 (#752) ############################################
710
The Military, Maritime, and Rural Codes
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 abro-
gation 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 favour
which it still retained is that certain manuscripts contain both the Eclogu
and the Prochiron of Basil himself.
Three small Codes completed the Ecloga: the Military Code (Nóuos
στρατιωτικός), the Maritime Code (Νόμος Ροδίων ναυτικός), and the
Rural Code (Nópos yewpycxós). The three Codes answer the same pur-
pose 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 labours of juris-
consults. 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 inter-
fering 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 Con-
stantine VI, to Irene, Nicephorus I, Leo V, and Theophilus. These Novels
are chiefly concerned with political, religious, and canonical legislation.
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.
## p. 711 (#753) ############################################
Canon law of the sixth century
711
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 con-
tributed 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 capi-
tulorum 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
organisation of the Eastern Church. To the end of the sixth century be-
long 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.
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
CH, XXII.
## p. 712 (#754) ############################################
712
Legislation of Basil I
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 practising lawyers had been abandoning
more and more.
In the first place Basil published an introductory manual to the science
of law: the II póxelpos vóuos (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 reputa-
tion 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: the 'Etavaywyn
Tøv vóuwy 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 'Aνακάθαρσις των παλαιών νόμων
(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 con-
sider that the work, which has not been preserved, was actually executed
in Basil's reign, although there are doubts about its scope, as the Pro-
chiron 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 VỊ.
1 So Biener and Zachariae.
## p. 713 (#755) ############################################
Legislation of Leo VI: the Basilics
713
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 (τα βασιλικά, ο βασιλικός). They
are also called ο Εξηκοντάβιβλος because they contain sixty books, and
ο Εξάβιβλος because in the manuscripts. they form six volumes.
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 pre-
vious 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 Sym-
batius. 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 (kepálata), and these, finally, are divided into paragraphs
(θέματα).
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 Bibliothèque 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.
