The Byzantine Emperors
were frequently obliged to revive its operation on account of the in-
efficacy or obscurity of the decrees of their predecessors.
were frequently obliged to revive its operation on account of the in-
efficacy or obscurity of the decrees of their predecessors.
Cambridge Medieval History - v4 - Eastern Roman Empire
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. VOL. IV. CH. XXII.
## p. 722 (#764) ############################################
722
Later legal works: Harmenopulus
The Iloinua vouckóv of Michael Attaliates contains thirty-seven titles
and a preface dedicated to Michael Ducas. It is almost entirely derived
from the Basilics. It was followed in the original redaction by a sup-
plement containing, among other texts, the Novels of Leo. The aim
of Michael Attaliates was to edit a very brief manual of law both practi-
cal and theoretical, accessible to all, with some historical notes. The
probable date of its composition is 1073 or 1074. The IIoinua vouckóv
was utilised in a few later works, particularly in the Prochirum auctum.
To the beginning of the twelfth century belongs the Tipucitus, the
work of an unknown author. Its title, TITOVKELTOS, is an artificial one
derived from the words tí tou xeitai; (quid ubi invenitur? ). The title is
appropriate to the character of the book, which is a table of contents of
the Basilics, giving the rubrics and most important chapters under each
title and indicating analogous passages in all of them. The T'ipucitus is
of undoubted service in reconstructing the lost books of the Basilics? .
With regard to the Basilics, it is well to recall the fact that it was during
this period that they received the addition of the “recent scholia” derived
from the works of John Nomophylax, Calocyrus Sextus, Constantine
Nicaeus, Gregory Doxopater, Patzus, Theodorita or Hagiotheodorita,
and finally an anonymous writer (eleventh or thirteenth century).
The Synopsis Minor (tò uerpòv katà otoixeiov), which is divided
into twenty-four parts or letters of the alphabet, subdivided into titles,
has for sources the Iloinpa of Michael Attaliates, the Synopsis Maior,
the Epanagoge, and the Glossae Nomicae; its author (according to
Zachariae) wrote in Nicaea under John Ducas Vatatzes (1222-1255).
It is not a mere reproduction of its authorities, and, notwithstanding the
decadent period during which it was written, it constitutes a convenient
repertoire of thirteenth-century law.
The Prochirum auctum is a Prochiron in forty titles, augmented by
texts from the Basilics, the Synopsis Maior, etc. , Imperial Novels, and
extracts from works on canon law; the text is followed by thirty-two
Paratitla, of which No. XXV is the treatise De Creditis. This work was
written before 1306. It dates about the period of the restoration of the
Empire to Constantinople.
The Promptuarium, or Hexabiblos, of Harmenopulus, Nomophylax
and supreme judge at Thessalonica, a friend of Philotheus who was
Patriarch from 1354 to 1355 and again from 1362 to 1376, the author
of various treatises on canon law, has a history which is told in the
preface. Harmenopulus had taken up Basil's Prochiron, believing that in
accordance with the preface of the book he would find therein collected
all provisions of obvious necessity and constant utility. But when he
read it he was disappointed to find that some of the most important
things had been omitted. Therefore he decided to revise the book, making
it complete, as he says, by aid of the Corpus Legum, the Basilics, the
1 The Tipucitus has not yet been published in its entirety.
## p. 723 (#765) ############################################
Later canonical collections
723
Novels, the Romaics of the Magister, the Eparchics, and the Manuals.
In order to distinguish between his texts, he put the signum solare at
the head of his additions, and the signum saturninum before the original
text of the Prochiron. The sources identified by the modern editor,
Gustav Ernst Heimbach, are as follows: the Synopsis Maior (not the
Basilics), the Synopsis Minor, the Ecloga Novellarum Leonis, the 'Potai,
the IIeipa (referred to under the name of the Romaics of the Magister"),
an appendix to the Synopsis whence Harmenopulus derived the Novels
up to the days of Manuel Comnenus, the Epanagoge, extracts from
Julianus Ascalonita (a pre-Justinian writer who described the law which,
in Syria and Palestine, governed vicinage, boundaries of property, and
the like), the Ecloga, and the synodal sentences of the patriarchs. Later
interpolations, taken from the same works and added to the manuscripts,
attest the success of the Hexabiblos, a success which continued in Greece
and Russia even after the fall of the Eastern Empire. The six books
(whence the name Hexabiblos) are concerned with the following subjects:
(I) Law, legal organisation, restitutions, and liberty (18 titles).
(II) Possession, new work, adoption, and maritime law (11 titles).
(III) Sale, deposit, and partnership (11 titles).
(IV) Betrothal and marriage (12 titles).
(V) Wills and wardship (12 titles).
(VI) Crimes and penalties (15 titles).
The six books are followed by four titles on various subjects, and by
appendices, containing among other things the rural laws.
The Promptuarium is the most complete treatise on civil and criminal
law composed during the final period of Byzantine law. An additional
merit in the eyes of modern historians is that certain texts which ap-
peared in Justinian's codification have been reproduced by Harmenopulus
from pre-Justinian sources; in the Hexabiblos they consequently appear
untouched by Justinian's commissioners, and give readings free from the
interpolations which so often prevent us from knowing the original
versions of classical texts.
It was only after the days of the Comneni that the study of canon law
became more serious and produced important works, either by order of
the Emperors, or at least encouraged by them.
In addition to the revisions of the Epitome Canonum Antiqua, which
belong to the eleventh and twelfth centuries, we find the Nomocanon of
Doxopater, which was composed by order of John Comnenus (1118-1143),
and presents great analogies with the Syntagma, ascribed to Photius.
Another Nomocanon, on the Epitome canonum, is due to the Nomo-
phylax Alexius Aristinus.
The same Syntagma, attributed to Photius, which consists of a Nomo-
canon with XIV titles and of the Collectio Canonum, was first developed,
so to say, by Theodore Bestes, who had been directed by Michael VII
CH, XXII.
46—2
## p. 724 (#766) ############################################
724
The Syntagma of Matthew Blastares
before 1080 to transcribe the texts of the civil laws cited in each
chapter; this transcription has been utilised by modern editors of
Justinian's Code. In the twelfth century the Syntagma was not only
revised but annotated in the remarkable works of John Zonaras, Grand
Drungarius of the watch in the reign of Manuel Comnenus (1159–1169),
and of Theodore Balsamon, Nomophylax and Patriarch of Antioch. The
Exegesis Canonum of Balsamon, undertaken by order of Manuel Comnenus
and of the Patriarch Michael Anchialus (1169–1177), acquired in the
East a very great reputation which has lasted until the present day. The
author proposed to establish a concordance between the civil laws used in
the Nomocanon ascribed to Photius, as edited by Zonaras, and the texts
of the Basilics; for this purpose he employed a twofold method: he
reproduced the passages from the Basilics parallel with the civil texts
from the Nomiocanon, and indicated the passages which had not been
retained in the Basilics. The work was therefore of the greatest practical
utility to contemporaries; it is equally helpful to modern critics of the
Justinianean code and the Basilics, as also for the study of Byzantine law
in general, for it includes several Novels either by Leo the Wise or the
Comneni, as well as sentences passed by synods and patriarchs which are
only known to us by this transcription.
From the eleventh, twelfth, and thirteenth centuries there also remain
some canonical writings by Michael Psellus, Balsamon, Michael Chumnus,
and others, of which it is enough to mention the existence.
Under the Palaeologi there appeared a work as famous as that of
Balsamon, and as wide-spread among the clergy as the Promptuarium
of Harmenopulus was among the world of lay practitioners. This was
the Syntagma Canonum et Legum, which Matthew Blastares, a monk,
completed in 1335. The preface is followed by a history of the sources
of the body of Greek Canon law up to 879, and by a history of Roman
law up to the Basilics. The Syntagma of Matthew Blastares contains
three hundred and three titles in twenty-four chapters or letters of the
alphabet. The titles are formed of the provisions of canon law and of
civil law alternately or separately. The provisions of civil law seem to
have been taken from a revision of the Epanagoge.
The last work to be mentioned is the Epitome Canonum which
Harmenopulus placed at the end of his Promptuarium; it is divided into
six sections and twenty-six titles.
Byzantine legislation shed its lustre throughout Eastern Europe and
Asia. Its influence is unmistakable on the ecclesiastical law of the Rus-
sians, and on the civil law of the Roumanians, Serbs, and Georgians (Code
of Vakhtang).
In the West it likewise exerted its influence on the law of Italy, which
was for so long part of the Empire of Constantinople. This is not the
## p. 725 (#767) ############################################
The diffusion of Byzantine legislation
725
place to deal exhaustively with the diffusion of Byzantine legislation in
Italy, because the subject seems rather to belong to the history of Italian
law. It will be enough to indicate the principal features of this diffusion?
The diffusion of Byzantine law in Italy, or more precisely in Southern
Italy and Sicily, is shewn first by a phenomenon referred to above: the
compilation on Italian soil of legal works on Byzantine law. The Pro-
chiron legum (tenth century), the Ecloga privata aucta (twelfth century ? ),
the Ecloga ad Prochiron mutata (twelfth century), are works which are
very valuable for comparison because they add to their models the modi-
fications arising from local laws, or even loci singulares which are not of
Graeco-Roman origin.
The influence of Byzantine law in Italy was moreover exercised in
another way, as well as in the learned and scientific form: by the rise of
customs, which, here as everywhere, constitute popular and vulgar law,
customs which are proved by the acts of notarial practice, or which are
found codified in numerous municipal statutes in the Middle Ages. But
when we examine the details of institutions, there is great difficulty in
determining the exact extent of Byzantine influence; as some institution
or other existing in Italian law, to which we are tempted to assign a
Byzantine origin because the same institution occurs in Byzantine law, may
have arisen either by development of the native law, or by contamination
from foreign laws possessing similar institutions. Thus, in Sicily, com-
munity of property between husband and wife, or between them and
their children, may as reasonably have arisen from the development of
the vulgar law, or by contamination from Franco-Norman law, as from
the direct influence of the Ecloga. And the same applies to certain
regulations on protimesis common alike to Sicilian sources and to Byzan-
tine, such as the Epanagoge, the Novels of Leo the Wise, or those of
Constantine Porphyrogenitus and Romanus Lecapenus; probably these
regulations in Sicily are derived from customs already existing there in
the Byzantine period, and confirmed in the East by legislative texts,
rather than from these texts themselves. In Southern Italy the protimesis
is said to be Graecorum prudentia derivata; the Byzantine element prepon-
derates in public law and in ecclesiastical matters; in private law, the
executors of wills are called epitropi (érr LT PÓTrol); but other institutions
may have arisen from native development of ancient customs, and not
from the diffusion of Byzantine legal works or Byzantine Novels.
i Siciliano Villanueva has given a good résumé of the subject (Diritto Bizantino,
$ 4).
CH. XXII.
## p.
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. VOL. IV. CH. XXII.
## p. 722 (#764) ############################################
722
Later legal works: Harmenopulus
The Iloinua vouckóv of Michael Attaliates contains thirty-seven titles
and a preface dedicated to Michael Ducas. It is almost entirely derived
from the Basilics. It was followed in the original redaction by a sup-
plement containing, among other texts, the Novels of Leo. The aim
of Michael Attaliates was to edit a very brief manual of law both practi-
cal and theoretical, accessible to all, with some historical notes. The
probable date of its composition is 1073 or 1074. The IIoinua vouckóv
was utilised in a few later works, particularly in the Prochirum auctum.
To the beginning of the twelfth century belongs the Tipucitus, the
work of an unknown author. Its title, TITOVKELTOS, is an artificial one
derived from the words tí tou xeitai; (quid ubi invenitur? ). The title is
appropriate to the character of the book, which is a table of contents of
the Basilics, giving the rubrics and most important chapters under each
title and indicating analogous passages in all of them. The T'ipucitus is
of undoubted service in reconstructing the lost books of the Basilics? .
With regard to the Basilics, it is well to recall the fact that it was during
this period that they received the addition of the “recent scholia” derived
from the works of John Nomophylax, Calocyrus Sextus, Constantine
Nicaeus, Gregory Doxopater, Patzus, Theodorita or Hagiotheodorita,
and finally an anonymous writer (eleventh or thirteenth century).
The Synopsis Minor (tò uerpòv katà otoixeiov), which is divided
into twenty-four parts or letters of the alphabet, subdivided into titles,
has for sources the Iloinpa of Michael Attaliates, the Synopsis Maior,
the Epanagoge, and the Glossae Nomicae; its author (according to
Zachariae) wrote in Nicaea under John Ducas Vatatzes (1222-1255).
It is not a mere reproduction of its authorities, and, notwithstanding the
decadent period during which it was written, it constitutes a convenient
repertoire of thirteenth-century law.
The Prochirum auctum is a Prochiron in forty titles, augmented by
texts from the Basilics, the Synopsis Maior, etc. , Imperial Novels, and
extracts from works on canon law; the text is followed by thirty-two
Paratitla, of which No. XXV is the treatise De Creditis. This work was
written before 1306. It dates about the period of the restoration of the
Empire to Constantinople.
The Promptuarium, or Hexabiblos, of Harmenopulus, Nomophylax
and supreme judge at Thessalonica, a friend of Philotheus who was
Patriarch from 1354 to 1355 and again from 1362 to 1376, the author
of various treatises on canon law, has a history which is told in the
preface. Harmenopulus had taken up Basil's Prochiron, believing that in
accordance with the preface of the book he would find therein collected
all provisions of obvious necessity and constant utility. But when he
read it he was disappointed to find that some of the most important
things had been omitted. Therefore he decided to revise the book, making
it complete, as he says, by aid of the Corpus Legum, the Basilics, the
1 The Tipucitus has not yet been published in its entirety.
## p. 723 (#765) ############################################
Later canonical collections
723
Novels, the Romaics of the Magister, the Eparchics, and the Manuals.
In order to distinguish between his texts, he put the signum solare at
the head of his additions, and the signum saturninum before the original
text of the Prochiron. The sources identified by the modern editor,
Gustav Ernst Heimbach, are as follows: the Synopsis Maior (not the
Basilics), the Synopsis Minor, the Ecloga Novellarum Leonis, the 'Potai,
the IIeipa (referred to under the name of the Romaics of the Magister"),
an appendix to the Synopsis whence Harmenopulus derived the Novels
up to the days of Manuel Comnenus, the Epanagoge, extracts from
Julianus Ascalonita (a pre-Justinian writer who described the law which,
in Syria and Palestine, governed vicinage, boundaries of property, and
the like), the Ecloga, and the synodal sentences of the patriarchs. Later
interpolations, taken from the same works and added to the manuscripts,
attest the success of the Hexabiblos, a success which continued in Greece
and Russia even after the fall of the Eastern Empire. The six books
(whence the name Hexabiblos) are concerned with the following subjects:
(I) Law, legal organisation, restitutions, and liberty (18 titles).
(II) Possession, new work, adoption, and maritime law (11 titles).
(III) Sale, deposit, and partnership (11 titles).
(IV) Betrothal and marriage (12 titles).
(V) Wills and wardship (12 titles).
(VI) Crimes and penalties (15 titles).
The six books are followed by four titles on various subjects, and by
appendices, containing among other things the rural laws.
The Promptuarium is the most complete treatise on civil and criminal
law composed during the final period of Byzantine law. An additional
merit in the eyes of modern historians is that certain texts which ap-
peared in Justinian's codification have been reproduced by Harmenopulus
from pre-Justinian sources; in the Hexabiblos they consequently appear
untouched by Justinian's commissioners, and give readings free from the
interpolations which so often prevent us from knowing the original
versions of classical texts.
It was only after the days of the Comneni that the study of canon law
became more serious and produced important works, either by order of
the Emperors, or at least encouraged by them.
In addition to the revisions of the Epitome Canonum Antiqua, which
belong to the eleventh and twelfth centuries, we find the Nomocanon of
Doxopater, which was composed by order of John Comnenus (1118-1143),
and presents great analogies with the Syntagma, ascribed to Photius.
Another Nomocanon, on the Epitome canonum, is due to the Nomo-
phylax Alexius Aristinus.
The same Syntagma, attributed to Photius, which consists of a Nomo-
canon with XIV titles and of the Collectio Canonum, was first developed,
so to say, by Theodore Bestes, who had been directed by Michael VII
CH, XXII.
46—2
## p. 724 (#766) ############################################
724
The Syntagma of Matthew Blastares
before 1080 to transcribe the texts of the civil laws cited in each
chapter; this transcription has been utilised by modern editors of
Justinian's Code. In the twelfth century the Syntagma was not only
revised but annotated in the remarkable works of John Zonaras, Grand
Drungarius of the watch in the reign of Manuel Comnenus (1159–1169),
and of Theodore Balsamon, Nomophylax and Patriarch of Antioch. The
Exegesis Canonum of Balsamon, undertaken by order of Manuel Comnenus
and of the Patriarch Michael Anchialus (1169–1177), acquired in the
East a very great reputation which has lasted until the present day. The
author proposed to establish a concordance between the civil laws used in
the Nomocanon ascribed to Photius, as edited by Zonaras, and the texts
of the Basilics; for this purpose he employed a twofold method: he
reproduced the passages from the Basilics parallel with the civil texts
from the Nomiocanon, and indicated the passages which had not been
retained in the Basilics. The work was therefore of the greatest practical
utility to contemporaries; it is equally helpful to modern critics of the
Justinianean code and the Basilics, as also for the study of Byzantine law
in general, for it includes several Novels either by Leo the Wise or the
Comneni, as well as sentences passed by synods and patriarchs which are
only known to us by this transcription.
From the eleventh, twelfth, and thirteenth centuries there also remain
some canonical writings by Michael Psellus, Balsamon, Michael Chumnus,
and others, of which it is enough to mention the existence.
Under the Palaeologi there appeared a work as famous as that of
Balsamon, and as wide-spread among the clergy as the Promptuarium
of Harmenopulus was among the world of lay practitioners. This was
the Syntagma Canonum et Legum, which Matthew Blastares, a monk,
completed in 1335. The preface is followed by a history of the sources
of the body of Greek Canon law up to 879, and by a history of Roman
law up to the Basilics. The Syntagma of Matthew Blastares contains
three hundred and three titles in twenty-four chapters or letters of the
alphabet. The titles are formed of the provisions of canon law and of
civil law alternately or separately. The provisions of civil law seem to
have been taken from a revision of the Epanagoge.
The last work to be mentioned is the Epitome Canonum which
Harmenopulus placed at the end of his Promptuarium; it is divided into
six sections and twenty-six titles.
Byzantine legislation shed its lustre throughout Eastern Europe and
Asia. Its influence is unmistakable on the ecclesiastical law of the Rus-
sians, and on the civil law of the Roumanians, Serbs, and Georgians (Code
of Vakhtang).
In the West it likewise exerted its influence on the law of Italy, which
was for so long part of the Empire of Constantinople. This is not the
## p. 725 (#767) ############################################
The diffusion of Byzantine legislation
725
place to deal exhaustively with the diffusion of Byzantine legislation in
Italy, because the subject seems rather to belong to the history of Italian
law. It will be enough to indicate the principal features of this diffusion?
The diffusion of Byzantine law in Italy, or more precisely in Southern
Italy and Sicily, is shewn first by a phenomenon referred to above: the
compilation on Italian soil of legal works on Byzantine law. The Pro-
chiron legum (tenth century), the Ecloga privata aucta (twelfth century ? ),
the Ecloga ad Prochiron mutata (twelfth century), are works which are
very valuable for comparison because they add to their models the modi-
fications arising from local laws, or even loci singulares which are not of
Graeco-Roman origin.
The influence of Byzantine law in Italy was moreover exercised in
another way, as well as in the learned and scientific form: by the rise of
customs, which, here as everywhere, constitute popular and vulgar law,
customs which are proved by the acts of notarial practice, or which are
found codified in numerous municipal statutes in the Middle Ages. But
when we examine the details of institutions, there is great difficulty in
determining the exact extent of Byzantine influence; as some institution
or other existing in Italian law, to which we are tempted to assign a
Byzantine origin because the same institution occurs in Byzantine law, may
have arisen either by development of the native law, or by contamination
from foreign laws possessing similar institutions. Thus, in Sicily, com-
munity of property between husband and wife, or between them and
their children, may as reasonably have arisen from the development of
the vulgar law, or by contamination from Franco-Norman law, as from
the direct influence of the Ecloga. And the same applies to certain
regulations on protimesis common alike to Sicilian sources and to Byzan-
tine, such as the Epanagoge, the Novels of Leo the Wise, or those of
Constantine Porphyrogenitus and Romanus Lecapenus; probably these
regulations in Sicily are derived from customs already existing there in
the Byzantine period, and confirmed in the East by legislative texts,
rather than from these texts themselves. In Southern Italy the protimesis
is said to be Graecorum prudentia derivata; the Byzantine element prepon-
derates in public law and in ecclesiastical matters; in private law, the
executors of wills are called epitropi (érr LT PÓTrol); but other institutions
may have arisen from native development of ancient customs, and not
from the diffusion of Byzantine legal works or Byzantine Novels.
i Siciliano Villanueva has given a good résumé of the subject (Diritto Bizantino,
$ 4).
CH. XXII.
## p.
