No More Learning

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.
Books X to LIII are devoted to matters concerning civil law, Books
LIV to LVII to public and military law. Book LVIII is occupied with
servitudes and the water-system? , Book LIX with funerary laws, Book LX
with crimes and penalties.
Within the titles, the laws (or chapters) are not the personal work
of Leo; their text was in no way revised by the commissioners for the
Basilics. They were all drawn from earlier works, chiefly from the Code
and the Digest, a very few from the Institutes, many from the Novels of
Justinian and his successors, a few also from the Prochiron. The laws are
all given in Greek; when they are derived from the three Latin works of
Justinian, they have been extracted not from the originals but from
Greek commentaries of the sixth and seventh centuries; for the Code,
1 See infra, p. 722.
2 See Vol. 11. Chapter 111, p. 89.
CH. XXII.


## p. 714 (#756) ############################################

714
The Novels of Leo VI
יל
from the Commentary of Thalelaeus and from the Breviarium of Theo-
dore; for the Digest, from the commentaries of the Anonymnus, Stephen,
and Cyril; for the Institutes, from the Paraphrase of Theophilus. The
Novels are drawn from the collection called the CLXVIII Novels, in
which Justinian's Novels were completed by the addition of the Novels
of Justin II and Tiberius, and by the Eparchics (or Edicts of the Prae-
torian Prefects).
It must be noted that the text of the laws is, in the manuscripts,
accompanied by numerous marginal scholia. The most important of these,
which constitute the ancient scholia," are extracts from the Greek com-
mentaries of the sixth and seventh centuries enumerated above; they were
probably added to the actual text of the laws, of which they represent a
sort of interpretation (épunvela), between 920 and 945, in the reign of
Constantine Porphyrogenitus. To refer the addition of the ancient
scholia to his reign is the only way of explaining how Balsamon could
have attributed a final Repurgatio Legum to Leo's son. The other scholia,
"the recent scholia,” were introcluced subsequently, in the course of the
eleventh, twelfth, and thirteenth centuries; they are due to jurisconsults
of less weight: John Nomophylax, Calocyrus Sextus, Constantine Nicaeus,
Gregory Doxopater, Patzus, Theodorita or Hagiotheodorita, and finally
the Anonymus?
If we wish to appreciate the value of the Basilics in a few words, it
may be said that in themselves they offered to the lawyers of the Greek
Empire the great advantage over the Justinianean Code of being a unified
work composed in Greek. At the time of their appearance, and for long
afterwards, they inspired a respect all the deeper for being the work
realised or inspired by the founder of the Macedonian house in continuance
of the reforms of the great Emperor Justinian. For modern scholars, the
text of the Basilics and the ancient scholia present the advantage of
sometimes enabling them to recover the original version of Justinian's
works, which has been altered by copyists, or even the original version of
the texts of classical jurisconsults altered by the members of Justinian's
commission. The closer examination of the ancient scholia has even per-
mitted the recovery of some fragments of pre-Justinian law, whose import
and origin are only beginning to be perceived.
The Novels of Leo the Wise are chiefly known by the collection of
CXIII Novels, with Preface, a collection of which the Latin translation
by Agylaeus is appended to the Novels of Justinian in the complete
editions of the Corpus iuris civilis. With two exceptions which concern
two Novels not appearing in this edition, they are undated. Most of
1 The chief fault in Heimbach's edition of the Basilics is that he has not been
sufficiently careful to preserve the distinction observed in the manuscripts between
the scholia of different authors or different ages. The Supplementum of Zachariae
von Lingenthal does not incur this reproach.


## p. 715 (#757) ############################################

Novels from 911 to 1045
715
them are later than the Basilics. This collection of CXIII Novels was
probably formed previous to Leo's second marriage (894), or at any rate
to his third marriage (899). The Preface states that the Emperor has
made a selection among the ancient laws, that he has omitted or expressly
abrogated useless laws, and that he has converted into laws certain
customs deemed worthy of this honour.
The collection of CXIII Novels has been abridged in a work entitled
Ecloga Novellarum Leonis pii Imperatoris in capp. LVI. The author is
possibly identical with that of the Synopsis Maior); wishing to preserve
only those Novels still in force, he has not kept more than half of the
original collection, and has only retained the enactive clauses of the
original texts. This Ecloga Novellarum was probably compiled towards
the middle of the tenth century.
There exist, moreover, seven Novels by Leo which have survived, in
addition to the collection of CXIII Novels.
Leo's Novels have been utilised by the principal writers of treatises
on Civil or Canon Law subsequent to the tenth century: Psellus, Michael
Attaliates, Balsamon, Matthew Blastares, and Harmenopulus. Several of
these Novels shew that, in the reign of Leo the Wise, great territorial
estates were constantly growing, and that Leo was not strong enough to
struggle with the Powerful, who, under the Macedonian dynasty, were
developing into real feudal lords.
During the long period which separated Leo's reign from that of
Constantine Monomachus, i. e. from 911 to 1045, the legislative activity
of the Emperors does not appear to have been very fruitful. The manu-
scripts only provide us with a few Novels by Romanus Lecapenus, Con-
stantine VII Porphyrogenitus, Nicephorus Phocas, John Tzimisces, Basil
II Bulgaroctonus, Romanus III Argyrus, and Zoë.
In contrast to the Novels of Basil and Leo which, in completion of
their fundamental works, treat various subjects affecting different parts
of legislation, the scanty Novels of these Emperors only refer to a few
special points. Two subjects in particular are the object of regulations:
1. The law of redemption, preference, or pre-emption (protimesis, ius
protimeseos), granted to relatives or neighbours in cases of alienation of
some estate or house for a pecuniary consideration, was established prin-
cipally by Novel II of Constantine VII and Romanus Lecapenus in 922.
Some writers have conjectured that this law, which had existed since an
earlier period of the Roman Empire, was intended to moderate the op-
pression of small landholders by the Powerful. The Byzantine Emperors
were frequently obliged to revive its operation on account of the in-
efficacy or obscurity of the decrees of their predecessors.
2. The character of military estates which it was necessary to protect
so as to safeguard the resources intended to meet the expenses of the army.
1 See infra, p. 717.
CH. XXII.


## p. 716 (#758) ############################################

716
Legal education under Leo VI
Whatever the subject treated, the Novels are above all concerned with
custom, either in recording good customs or in attempting to check bad
ones. Amongst the most original institutions which they regulate and
which arose from ancient popular customs, must be mentioned the
Deópntpov referred to for the first time in a Novel of Constantine VII
Porphyrogenitus. This was a gift made by the husband to the wife for
ius primae noctis or pretium virginitatis; it was in addition to the
Útópolov or donation propter nuptias.
All official teaching of law in a State school had long disappeared
when it was restored by Constantine Monomachus in 1045. It had been
replaced, much to the detriment of legal studies, by a purely private
system of instruction which is described rather inadequately in broad out-
line in the Book of the Prefect by Leo the Wise (Aeóvtos TOû cópou tò
ÉTT A PXixòv Bißríov), which is an edict on the trade-gilds of Constantinople,
discovered by Nicole. From Chapter I of this edict, devoted to the
organisation of the notarial profession, we get our information. The
twenty-four notaries of the capital formed a corporation. To be eligible
for it, young men had to attend the lectures of professors attached to
this corporation. These professors were of two kinds, professors of law,
παιδοδιδάσκαλοι νομικοί, and encyclopaedic professors, διδάσκαλοι; they
were under the supervision of the Prefect, and after having been elected
by co-option they had to be confirmed by that high official. The
students subsequently underwent an examination before the whole cor-
poration of notaries. Possibly the same professors also taught the youths
who were studying for the bar, who would then have to undergo an
examination before the gild of advocates. The programme of studies was
amazingly simple: the Book of the Prefect states that the candidates
“must know by heart the forty titles of the Prochiron and be familiar
with the sixty books” (of the Basilics), and this was all.
Some historians have thought that control by the Prefect, enjoined
by the Edict of Leo, was not of long continuance, and that the organisa-
tion of studies by the corporation of notaries became relaxed, so that
finally legal education was absolutely uncontrolled; this would give the
cause, or one of the causes, for the serious decadence of the science of law
between Leo's reign and the reform of 1045. Their hypothesis seems to
be absolutely confirmed by the complaints of Constantine Monomachus,
when he took steps to end this lamentable state of things.
The Epitome legum, or Ecloga legum in epitome expositarum, which
appeared in 920, the first year of the reign of Romanus Lecapenus, was
derived, according to its editor Zachariae, from another Epitome ex anti-
quis libris collecta, consisting of extracts from the Digest (after Stephen and
the Anonymus), extracts from the Code (after Theodore and Thalelaeus),
extracts from the Novels(after the Breviarium of Theodore), a selection from


## p. 717 (#759) ############################################

Legal treatises based on the Ecloga and Basilics
717
the texts of the Prochiron, with some references to the Basilics and the
Novels of Leo. The author-possibly the Symbatius of the Basilics—
announces in a Preface full of interesting historical details that he will
only record useful regulations. The work consists of fifty titles. This
manual enjoyed a great reputation, as may be seen from the numerous
copies and revisions of its text.
The Ecloga of Leo and Constantine, although condemned by Basil,
had nevertheless retained a great practical influence for the reasons
already indicated. The influence of this very convenient short manual
is shewn by the publication of new works based upon it, which are
known as the Ecloga Privata, the Ecloga Privata Aucta, and the Ecloga
ad Prochiron Mutata. The Ecloga Privata was a re-issue, now lost, of
the original with some modifications; Zachariae considers that it is the
source of the Ecloga Privata Aucta. The Ecloga Privata Aucta seems to
have been compiled from the Ecloga Privata and an Encheiridion con-
taining a mixture of Justinianean law and new law. This work expounds
the form of Byzantine law prevailing in Southern Italy. Its date is very
hard to discover, but possibly it may even be as late as the twelfth cen-
tury. The Ecloga ad Prochiron Mutata in forty titles seems to have been
drawn up at the same date and in the same country. It is derived from
the Ecloga Privata, the Epitome legum, and the Prochiron. Two of its
peculiarities are, first, the presence among its texts of the Ecloga Legis
Mosaicae, extracted from the Mosaic law in thirty-six short chapters
taken from the Pentateuch, and, secondly, the presence of loci singulares
dealing with penal law, passages of foreign origin alien to Graeco-Roman
law, which have given rise to controversy (they are attributed by different
writers to a Lombard or to a Norman origin).
The Synopsis Basilicorum Maior is a work composed with the help of
the Basilics. It opens with a title on the Orthodox faith. It contains
twenty-four parts or letters, divided into titles arranged in alphabetical
order according to the rubrics of the titles of the Basilics, and includes
extracts from the capitula of the Basilics. The work, whose author is
unknown and is perhaps the same as the compiler of the Ecloga Novel-
larum Leonis, was written towards the middle of the tenth century. It is
accompanied by annotations due to various authors. Its success was con-
siderable; it was the foundation of the Synopsis Minor and was utilised
by the Prochirum auctumº and by Harmenopulus? .
The Prochiron of Basil only underwent one modification. This was
the Prochiron legum, which was made up of fragments from the Ecloga,
the Prochiron, the Epanagoge, and the Epitome legum; these fragments
were adapted to contemporary (late tenth century) practice and to the
part of Italy in which the compilation was made,
Amongst other revisions of the Epanagoge, it will be enough to
mention the Epanagoge aucta, at the end of the tenth century, a small
1 See infra, p. 722. 2 See infra, p. 722. 3 See infra, pp. 722–3.
CH. XXII.


## p. 718 (#760) ############################################

718
The IIeipa. Canonical collections
manual which utilises the Prochiron, the Ecloga cum appendice, the
Epitome Novellarum of Athanasius, the Basilics, and the Novels of Leo,
as well as the Epanagoge.
After all these works, which were in fact only abridgments or revisions
of existing works, we come at last to a more original achievement, which
possesses the merit of being the result of practical jurisprudence; it is
actually the only example of this kind in all the abundance of Byzantine
legal literature.
It was called the IIeîpa or Practica sive Doctrina ex actis magni
viri Eustathii Romani. It was written by an unknown author em-
ployed in the law-courts at Constantinople, who appears to have been
subsequently a judge in the same courts, and who was regarded with
considerable respect by his colleagues. The seventy-five titles of the
treatise consist both of fragments from the Basilics and of reports of
cases with reasons for the decisions. These cases extend from the middle
of the tenth century (about 950) until the reign of Romanus III Argyrus
(1028–1034). According to the title of the work, the author utilised the
decisions of the famous jurisconsult, Eustathius Romanus, although we
are not certain whether the latter ever drew up a list of legal cases which
could have served in the composition of the Lleipa. The Ilcipa is too
mediocre a work to be ascribed to Garidas, or to be regarded as an
official manual intended for use in the new School of Law of Constantine
Monomachus, as has been suggested. Nevertheless it is of sufficient value
to supply us with precious details on the jurisprudence and the legal
administration, organisation, and procedure of the Greek Empire, at the
end of the tenth and beginning of the eleventh century.
In conclusion, and for the sake of completeness, it is necessary to
mention some monographs written at various times in the tenth and
eleventh centuries: the opusculum of Eustathius and of George Phobenus
on the Hypobolon (a new name for the donation propter nuptias); a short
anonymous commentary on the protimesis (right of redemption); and
finally, the treatises de peculiis and de privilegiis creditorum.
In the period between 867 and 1045 there appeared only re-issues of
canonical collections or Nomocanones composed in the sixth century.
These were: the re-issue in 883 of the Nomocanon XIV titulorum called
the Syntagma of Photius, but of which Photius, the well-known Patriarch
of Constantinople, was probably neither the new editor nor the author;
another revision of the same work, which served as a foundation to the
work of Theodore Bestes (eleventh century); and a revision of the Epitome
(Synagoge) canonum by Simon the Logothete in the reign of Basil II
Bulgaroctonus (975-1025).
i So Zachariae.


## p. 719 (#761) ############################################

The law school of Constantinople (1045)
719
III.
ול
The development of the science of law has, at all times and in all
places, a close connexion with the organisation of serious instruction in
this science. It seems that the system indicated in the Book of the Prefect,
which we described in considering the previous period, did not give
satisfactory results (if indeed it remained in force). The Novel of Con-
stantine Monomachus in 1045 on the reform of legal education reveals
the deplorable results of the system of gild education, and proposes to
rectify them by a return to the system of State education. These were
the two fundamental ideas developed therein.
The Novel itself states that there were no means of guaranteeing a
high standard for professors of law, as these were independent teachers.
“The
young men,” it says, “eagerly seek for some one to teach them the
science of law, but, as they find no one with professional authority and
supported by the imperial approval, for lack of a better each adopts the
teacher whom he meets haphazard. " Thereby there arose great confusion
in the judgment of cases, and often there were divergencies, or even
contradictions, in the sentences pronounced by the judges, who had been
trained by teachers holding different opinions; hence also the inferiority
of the notaries and advocates. The Emperor was very careful to note
that these evils arose from the system of liberty in legal education which
prevailed in Constantinople, because, in the first place, other branches
of education supported by the State were in successful operation, and,
secondly, because certain towns, in which the teaching had remained
organised, attracted students to the detriment of the capital. The respon-
sibility for this decadence falls, says the Emperor, on his predecessors,
who indeed improved the laws but failed to ensure an official organisa-
tion for the Schools of Law.
Constantine Monomachus, a pacific Emperor, was fortunate enough
to find two able counsellors, who helped him to start the necessary reforms
-Xiphilin and Psellus, the former a judge in the Courts of the Hippo-
drome, the latter secretary to the Emperor. The drafting of the Novel
of 1045 was due to John Mauropus or Euchaïtensis, amongst manu-
scripts of whose works it was discovered by Cardinal Angelo Mai.
According to the Novel, the school founded by the Emperor was an
official and gratuitous State school. The professor-principal (Nomophylax)
was appointed by the Emperor, was removable by him, and was paid by
him. The course of study is defined in the Novel. The diploma on leaving
was a State diploma necessary for the exercise of the offices of advocate
or notary, or for eligibility for high administrative office. The first
Nomophylax was Xiphilin himself. He was no doubt helped in his task
by other teachers. The school was established in the buildings of the
church of St George.
CH. XXII.


## p. 720 (#762) ############################################

720
Novels from 1045 to 1453
Notwithstanding the absence of precise information, we must suppose
that the school of Constantinople survived at least until the fourteenth
century; for the title of Nomophylax was borne, in the twelfth century by
Doxopater, Alexius Aristinus,and Theodore Balsamon; in the thirteenth by
Michael Chumnus; in the fourteenth by Constantine Harmenopulus; all
of whom were jurists or canonists of reputation. Other jurisconsults such
as Garidas, the Pseudo-Tipucitus, or Hagiotheodorita, were professors in
the same school, but not its principals.
All these men have left legal works of greater or lesser value, and
of varying degrees of originality, works which in any case shew the
successful result of the reform operated by Constantine Monomachus.
Byzantine legislation, in the strict sense of the word, includes the
civil laws (vóuoc TocTikoi), and the Novels (veapal) of the Emperors.
Up to the eleventh and twelfth centuries the civil laws were still
summed up in the two great legislative works of Justinian and Leo the
Wise, for Leo, when he promulgated the Basilics, had no intention of
superseding Justinian's compilation, to which however the Basilics was
to be preferred in cases of disagreement. But at the close of the twelfth
entury, during the reign of Manuel Comnenus, Justinian's codification
was definitely put aside, although, as we shall see, jurisconsults still
studied the works of which it was composed. So much for the legislation
of the past.
The Novels of the Emperors, whereby new law was created, were not
very numerous between the eleventh and the fifteenth century. Of some
Emperors there is only a single Novel extant (Constantine Monomachus,
Michael Stratioticus, Isaac Comnenus, Constantine Ducas, Alexius II
Comnenus, Michael Palaeologus, Andronicus III). Of others we know
only two, three, or four Novels (Michael Ducas, Nicephorus Botaniates,
John Comnenus, Isaac Angelus, John Vatatzes, Andronicus II Palaeo-
logus). The only Emperors whose Novels form a more imposing col-
lection are Alexius I Comnenus, twenty-five of whose texts remain, and
Manuel Comnenus who left seventeen. Many of these enactments re-
gulated points in religious government or in canon law: for instance,
binding force given to betrothal or promise of marriage (1084, 1092),
prohibition of marriage on account of consanguinity (1094, 1160),
marriage of slaves (1094). The reforms in civil law are generally of
little interest; it is only necessary to mention one which also has to do
with marriage, the privilege granted by Constantine Ducas to the wife
to have priority of the exchequer in the recovery of her dowry in respect
of the objects named in the marriage contract. Finally, among the
Novels referring to other matters, the most important was the great
Novel X of Manuel Comnenus (1166) which constitutes a real system
of judicial organisation and procedure, as it deals with assessors, the
hearing of cases, the introduction of a suit, with preliminary examina-


## p. 721 (#763) ############################################

Monographs of the eleventh century
721
tions, advocates, sentences, with summons and appeals, and even with
protimesis in the case of a mortgage.
The vicissitudes of the Eastern Empire under various dynasties, some-
times Greek, sometimes Latin, were naturally not without their echoes
in the development of legal science, in so far as it found expression in
treatises of varied nature and diverse scientific import. Several pheno-
mena of legal activity are worthy of note: the manuscripts of Justinian's
Novels and the Institutes and Paraphrase of Theophilus were re-copied
as frequently as the Basilics themselves and their scholia; later scholia
were added to the work of Leo the Wise; the Greek Emperors favoured
the composition of treatises on civil or canon law; the earlier sources of
Byzantine law, such as the Prochiron, Ecloga, and Epanagoge, continued
to serve as nuclei for new commentaries; but the most famous work of
this period, the Promptuarium of Harmenopulus, only appeared at the
close of the Greek Empire.
The earliest productions of legal literature with which we meet are
monographs. First, a Liber de Actionibus arranged in alphabetical order,
only a few extracts from which have been preserved among the later scholia
of the Basilics, and which the professor Garidas wrote in the reign of Con-
stantine Ducas (1059–1067); then, by the same author, a short treatise
de homicidiis, intended to explain Novel XII of Constantine Porphyro-
genitus on murder; finally, the Meditatio de nudis pactis dating from
the middle of the eleventh century, a somewhat brief text, which pre-
sents the interesting feature of being an original work without a model.
It is probably the votum of an assessor of the Supreme Court of the
Empire, which was presided over by the Emperor in person, or in his
absence by the Drungarius of the watch? It may have been written by
John Xiphilin himself, the counsellor of Constantine Monomachus.
After these monographs comes the Synopsis Legum, composed in
1406 iambic and “political” verses? ; it is usually attributed to Michael
Psellus and may date from 1070. This attribution is, however, denied by
Monnier on account of the weak and childish character of the work. It
was compiled by order of Constantine Monomachus with the object of
instructing Michael Ducas in some elementary notions of law; it utilises
the Code, Digest, and Novels, and the Basilics, reverting to ancient law,
making law-suits the starting-point for the discussion of legal matters,
and seeking inspiration from various prose treatises and monographs,
some still extant, others lost. Among these authorities we find a few
works which offer some analogy to certain elements of the Synopsis, and
which
go under the name of Psellus; possibly they also are not his work.
i So Monnier and Platon.
2 The Greek national metre of the Middle Ages, and even of the present day.
A "political” verse is an iambic tetrameter catalectic, but depends on stress accent
not on quantity.
46
C. MED. H.