No More Learning

" Further, he allowed the Monophysites complete
liberty to spread their teaching, and not only in the capital but in the
Sacred Palace itself heresy increased, thanks to the open protection of
Theodora. When, in 535, the patriarchal throne became vacant,
Epiphanius' successor was Anthemius, bishop of Trebizond, a prelate
secretly attached to the Monophysite cause. Under the influence of
Severus, who was in the capital, and a guest at the palace, the new
patriarch pursued the policy approved by the religious leaders of the
East, that is the same that Zeno and Anastasius had followed; while
Theodora actively helped, and the Emperor gave a tacit consent.
But the orthodox position was restored by several events. In March
536 the energetic pope Agapetus came to Constantinople and boldly
deposed Anthemius; the jpouncil of Constantinople anathematised the
heretics with no uncertain pronouncement soon after (May 536), while
the apostolic legate Pelagius acquired in the following years consider-
able influence over Justinian. Towards the^j"^ "f 537 _jje,rsecution
of the Monophysites broke, out again: bonfires were lighted in Syria,
Mesopotamia and Armenia, and it was boasted that heresy had been
rooted out by severity and tortures*) Even Egypt, the Monophysite


## p. 46 (#78) ##############################################

46 Jacob Baradaeus [527-550
stronghold, was not spared. The patriarch Theodosius, one of
Theodora's proteges, was torn from his see, driven into exile (538)
and replaced by a prelate fitted to inspire respect for orthodoxy by
means of terror. Egypt bent under his iron hand. Even the monks
accepted the Council of Chalcedon; and Justinian and Pelagius flattered
themselves that they had beaten down heresy (540).
Although the Emperor returned to the Roman side in the dispute,
he had no intention of giving up for that reason the supreme authority
which he considered his due, even over the Papacy. Silverius, successor
of Agapetus, had made the great mistake of allowing himself to be
elected by Gothic influence just when Theodora wanted her favourite,
the deacon Vigilius, to be elevated to the pontifical throne. Belisarius
accepted the uncongenial task of paying off imperial grudges towards
the new pope. In March 537 Silverius was arrested, deposed, and sent
into exile on an imaginary charge of treason. Vigilius was unanimously
elected in his place under pressure from Byzantium (29 March 537).
The Empress counted on her protege to carry out her revenge for
the repulse of 536. But once installed, Vigilius made delays, and in
spite of Belisarius'' summons to carry out his promises, finally refused to
accomplish any of the plans expected of him. At the same time,
Monophysitism was spreading in the East in spite of the severity of the
edicts of 541 and 544. Justinian had taken what he thought to be the
wise measure of assembling the heretical leaders in Constantinople, where
they would be in his power, and under the eye of the police. But
Theodora soon procured a return to court favour for the exiles. The
Emperor willingly made use of their enthusiastic zeal, and sent them to
convert the pagans of Nubia (540), to struggle with those of Asia Minor
(542) and to establish Christianity amongst the Arabs of Syria (543).
Theodora did still more. Thanks to her efforts Jacob Baradaeus, who
had been secretly consecrated bishop of Edessa (543), was able to continue
the work of reorganising the Monophysite Church throughout the East.
Active and indefatigable, in spite of the harshness of the enraged police
who dogged his track, he was able to reconstruct the scattered com-
munities in Asia, Syria and Egypt, to give them bishops and even
a leader in the patriarch whom he ordained at Antioch in 550. It was
owing to him that a new Monophysite Church was founded in a few
years, which took the name of its great founder, and henceforth called
itself Jacobite.
This unexpected revival changed Justinian's plans once more. Again
his old dream of unity seemed to him to be more than ever necessary for
the safety of the State as well as for the good of the Church. iThus, when
Theodore Askidas, bishop of Caesarea, drew his attention, among the
writings approved by the Council of Chalcedon, to those of the three
men Theodore of Mopsuestia, Theodoret of Cyrrhus, and Ibas of Edessa,
as notoriously tainted with Nestorianism, he was easily persuaded that


## p. 47 (#79) ##############################################

543-65i] Pope Vigilius 47
to condemn the Three Chapters would be to create an easy and
orthodox way to dissipate the Monophysite distrust of the Council
"renewed and purified. ,, And since Pelagius was no longer there to
counterbalance Theodora's influence, and as the heretics joyfully welcomed
any scheme which injured the authority of Chalcedon,Ahe Emperor
pronounced the anathema against the Three Chapters by an edict
of 543ft
It^va
vas still necessary to obtain the adhesion of the Papacy; but this
did not trouble the Emperor. It was essential to remove the pope from
his Roman surroundings, which were hostile to the designs of the Greek
theologians, and to put him in the Emperor's power. Therefore Vigilius
was carried off from Rome in the midst of a display of the troops
(November 545) and transported under escort to Sicily, whence he
travelled slowly towards Constantinople. He arrived at the beginning
of 547, and soon yielded to the importunities of the basileux, the energetic
summons of Theodora, and the subtle entreaties of the court theologians.
He promised "to set their minds at rest" by condemning the Three
Chapters, and he published his Judication on Easter Eve 548. fThis,
while formally maintaining the authority of the Canons of Chalcedon,
condemned no less clearly the persons and writings of the three guilty
doctors. This was Theodora's last triumph. When she died soon after
(June 548) she could think that her highest hopes were realised, in the
humiliation of the Apostolic See and the constant progress of the
Monophysite Church,
When the news o/ these events, at Constantinople spread to the West,
there was a general protest against Vigilius' conduct in Africa, Dalmatia
and Illyricum. Justinian was unmoved. By an imperial edict bearing
the date of 551 he solemnly condemned the Three Chapters a second
time, and set himself to overcome all opposition by the use of force.
The most recalcitrant bishops in Africa were deposed, and the rest
appeased by means of intrigues; and since Vigilius, alarmed at what he
had done, insistently clamoured for an oecumenical council to settle the
dispute, strong measures were taken against him. In the month of
August 551 the church of St Peter in Hormisda, where he had taken
refuge, was entered by a band of soldiers, who dragged the clerics
composing the pontifical train from the sanctuary. Vigilius was clinging
to the altar pillars; he was seized by the feet and the beard, and the
ensuing struggle was so desperate that the altar was pulled over and fell,
crushing the pope beneath it. At the sight of this dreadful occurrence
the assembled crowd cried out in horror, and even the soldiers hesitated.
The Praetor decided to beat a retreat; the plan had miscarried. But
the pope was nothing more than the Emperor's prisoner. Surrounded
by spies, fearing for his liberty, even for his life, Vigilius decided to flee.
On a dark night (23 Dec. 551) he escaped from the Placidian Palace
with a few faithful followers, and sought refuge in the church of


## p. 48 (#80) ##############################################

48 Pope Vigilius [553-555
St Euphemia at Chalcedon, the same place where the Council had
been held for which Vigilius was suffering martyrdom.
Justinian was afraid that he had gone too far: and he resumed
negotiations. Not without difficulty nor without another attempt to
use force, he persuaded the pontiff to return to Constantinople, and
brought forward the idea of a Council once more/After various hindrances
this great assembly, known as the Fifth Oecumenical Council, opened
(5 May 558) in the church of St Sophia. /A few African prelates,
chosen with great care, were the only representatives of the West; the
pope refused to take part in the debates, in spite of all entreaties: and
while the Council accomplished its task, obedient to the Emperor's
commands, he tried to make a pronouncement on the question in dispute
on his own authority by the Constitutvm of 14 May 553. While he
completely abandoned the doctrines of Theodore of Mopsuestia, he
refused to anathematise him, and shewed himself even more indulgent
towards Ibas and Theodoret, saying that all Catholics should be contented
with anything approved by the Council of Chalcedon. Unfortunately
for Vigilius he had bound himself by frequent vows and by written and
formal agreements to condemn the Three Chapters at Justinian's wish.
At the Emperor's instigation the Council ignored the pontiff's recanta-
tion. To please the prince it even erased the name of Vigilius from the
ecclesiastical diptychs; and then, the Three Chapters having been
condemned in a long decree, the fathers separated, 2 June 553.
Violence was again used to enforce the decisions of the Council.
Particular severity was used towards those clerics who had supported
Vigilius in his resistance. They were exiled or imprisoned, so that the
pontiff, deserted and worn out, and fearing that a successor to him
would be appointed in newly-conquered Rome, gave way to the
Emperor's wish and solemnly confirmed the condemnation of the Three
Chapters by the Constitutum of February 554. The West however still
persisted in its opposition. The authorities flattered themselves on
having reduced the recalcitrants by floggings, imprisonment, exile and
depositions. They were successful in Africa and Dalmatia, but in Italy
there was a party amongst the bishops, led by the metropolitans of Milan
and Aquileia, who flatly refused to remain in fellowship with a pope who
"betrayed his trust" and "deserted the orthodox cause," and in spite of
the efforts of the civil authorities to reduce the opposition, the schism
lasted for more than a century.
The Papacy emerged from this long struggle cruelly humiliated.
After Silverius, Vigilius had experienced in full measure the severity of
the imperial absolutism. His successors, Pelagius (555) and John III
(560), elected under pressure from Justinian's officials, were nothing more
than humble servants of the basileus, in spite of all their struggles.
Their authority was discredited in the entire West by the affair of the
Three Chapters, shaken in Italy by the schism, and still further lessened


## p. 49 (#81) ##############################################

527-568] General Results 49
by the privileges that the imperial benevolence granted to the church of
Ravemia, since that town was the capital of reconquered Italy. By
paying this price, by cruelly wounding the Catholic West, and recalling
the Monophysites, Justinian hoped until his dying day that he had
obtained the results which were the aim of his religious policy, and had
restored peace to the East. "Anxious," wrote John of Ephesus, "to
carry out the wishes of his dead wife in every detail," he increased the
number of conferences and discussions after 548, in order to reconcile
the Monophysites: while he had such a great wish to find some common
ground with them that to satisfy them he slipped into heresy on the eve
of his death. In an edict of 565 he declared his adherence to the
doctrine of the Incorruptkolae, the most extreme of all the heretics, and
as usual he used force against the prelates who made any resistance.
Thus until the end of his life Justinian had consistently endeavoured to
impose his will upon the Church, and to break down all opposition.
Until the end of his life also he had sought to realise the ideal of unity
which inspired and dominated the whole of his religious policy. But
nothing came of his efforts; the Monophysites were never satisfied with
the concessions made to them, and upon the whole this great theological
undertaking, this display of rigour and arbitrariness, produced no results
at all or results of a deplorable nature.
IV.
It remains to be seen what were the consequences of Justinian's
government in the East, and what price he paid, specially during the last
years of his reign, for this policy of great aims and mediocre or unskilful
measures.
A secret defect existed in all Justinian's undertakings, which destroyed
the sovereign's most magnificent projects, and ruined his best intentions.
This was the disproportion between the end in view and the financial
resources available to realise it. Enormous, in fact inexhaustible
supplies were needed, for the drain on them was immense; to satisfy the
needs of a truly imperial policy, to meet the cost of wars of conquest, to
pay the troops, and for the construction of fortresses; to maintain the
luxury of the Court and the expense of buildings, to support a com-
plicated administration and to dispense large subsidies to the barbarians.
When he ascended the throne Justinian had found in the treasury the
sum of 320,000 pounds of gold, more than £ 14,400,000 sterling, which
had been accumulated by the prudent economy of Anastasius. This
reserve fund was exhausted in a few years, and henceforth for the rest of
his long reign, the Emperor suffered from the worst of miseries, the lack
of money. Without money the wars which had been entered upon
with insufficient means dragged on interminably. Without money the
C. MED. II. VOL. II. CH. II. 4


## p. 50 (#82) ##############################################

50 Justinian's last years [548-565
unpaid army became disorganised and weak. Without money to main-
tain an effective force and provision the posts, the badly defended frontier
gave way under the assault of the barbarians, and, to get rid of them,
recourse was had to a ruinous diplomacy, which did not even protect the
Empire against invasions. Without money the attempted administrative
reform had to be abandoned, and the vices of an openly corrupt adminis-
tration to be condoned. Without money the government was driven to
strange expedients, often most unsuitable to its economic as to its
financial policy. To meet expenses the burden of taxation was increased
until it became almost intolerable; and as time passed, and the dis-
proportion between the colossal aims of the imperial ambition and the
condition of the financial resources of the monarchy became greater, the
difficulty of overcoming the deficit led to even harsher measures. "The
State," wrote Justinian in 552, "greatly enlarged by the divine mercy
and led by this increase to make war on her barbaric neighbours, has
never been in greater need of money than to-day. 11 Justinian exercised
all his ingenuity to find this money at any sacrifice, but in spite of real
economies—amongst others the suppression of the consulship (541)—by
which he tried to restore some proportion to the Empire^ budget, the
Emperor could never decide to curtail his luxury, or his building opera-
tions, while the money which had been collected with such difficulty was
too often squandered to please favourites or upon whims. Therefore
a terrible financial tyranny was established in the provinces, which
effected the ruin of the West already overwhelmed by war, of the Balkan
peninsula ravaged by barbarians, and of Asia fleeced by Chosroes. The
time came when it was impossible to drag anything from these exhausted
countries, and seeing the general misery, the growing discontent and
the suspicions which increased every day, contemporaries asked, with
a terrified stupor, "whither the wealth of Rome had vanished. " Thus
the end of the reign was strangely sad.
The death of Theodora (June 548), while it deprived the Emperor
of a vigorous and faithful counsellor, dealt Justinian a blow from which
he never recovered. Henceforth, as his age increased—he was 65 then—
the defects of his character only became more prominent. His irresolu-
tion was more noticeable, while his theological mania was inflamed. He
disregarded military matters, finding the direction of the wars which he
had so dearly loved tiresome and useless; he cared more for the exercise
of a diplomacy, often pitifully inadequate, than for the prestige of arms.
Above all, he carried on everything with an ever-increasing carelessness.
Leaving the trouble of finding money at any cost to his ministers, to
Peter Barsymes the successor of John of Cappadocia, and to the quaestor
Constantine, the successor of Tribonian, he gave himself up to religious
quarrels, passing his nights in disputations with his bishops. As
Corippus, a man not noted for severity towards princes, wrote "The
old man no longer cared for anything; his spirit was in heaven. 11


## p. 51 (#83) ##############################################

551-565] Death of Justinian 51
Under these circumstances, everything was lost. The effective force
of the army, which ought to have numbered 645,000 men, was reduced
to 150,000 at the most in 555. No garrisons defended the ramparts of
the dilapidated fortresses, "Even the barking of a watch-dog was not
to be heard" wrote Agathias, somewhat brutally. Even the capital,
inadequately protected by the wall of Anastasius, which was breached
in a thousand places, only had a few regiments of the palatine guard—
soldiers of no military worth—to defend it, and was at the mercy of
a sudden attack. Added to this, successive invasions took place in
Illyricum and Thrace; the Huns only just failed to take Constantinople
in 558, while in 562 the Avars insolently demanded land and money
from the Emperor.
Then there was the misery of earthquakes, in 551 in Palestine,
Phoenicia and Mesopotamia, in 554 and 557 at Constantinople. It
was in 556 that the scourge of famine came, and in 558 the plague,
which desolated the capital during six months. Above all there was
the increasing misery caused by the financial tyranny. During the last
years of the reign the only supplies came from such expedients as the
debasement of the coinage, forced loans and confiscations. The Blues
and Greens again filled Byzantium with disturbances: in 553, 556, 559,
560, 561,562 and 564 there were tumults in the streets, and incendiarism
in the town. In the palace the indecision as to a successor led to
continual intrigues: already the nephews of the basileus quarrelled
over their heritage. There was even a conspiracy against the Emperor's
life, and on this occasion Justinian's distrust caused the disgrace of
Belisarius once more for a few weeks (562).
Thus when the Emperor died (November 565) at the age of 83
years, relief was felt throughout the Empire. In ending this account
of Justinian's reign the grave Evagrius wrote, "Thus died this prince,
after having filled the whole world with noise and troubles: and having
since the end of his life received the wages of his misdeeds, he has gone
to seek the justice which was his due before the judgment-seat of hell. "
He certainly left a formidable heritage to his successors, perils menacing
all the frontiers, an exhausted Empire, in which the public authority
was weakened in the provinces by the development of the great feudal
estates, in the capital by the growth of a turbulent proletariat, susceptible
to every panic and ready for every sedition. The monarchy had no
strength with which to meet all these dangers. In a novel of Justin II
promulgated the day after Justinian's death we read the following, word
for word—"We found the treasury crushed by debts and reduced to
the last degree of poverty, and the army so completely deprived of all
necessaries that the State was exposed to the incessant invasions and
insults of the barbarians. "
It would, however, be unjust to judge the whole of Justinian's reign
by the years of his decadence. Indeed, though every part of the work


## p. 52 (#84) ##############################################

62 Services of Justinian
of the Byzantine Caesar is not equally worthy of praise it must not be
forgotten that his intentions were generally good, and worthy of an
Emperor. There is an undeniable grandeur in his wish to restore the
Roman traditions in every branch of the government, to reconquer the
lost provinces, and to recover the imperial suzerainty over the whole
barbarian world. In his wish to efface the last trace of religious quarrels
he shewed a pure feeling for the most vital interests of the monarchy.
In the care which Justinian took to cover the frontiers with a continuous
network of fortresses, there was a real wish to assure the security of his
subjects; and this solicitude for the public good was shewn still more
clearly in the efforts which he made to reform the administration of the
State. Furthermore, it was not through vanity alone, or because of
a puerile wish to attach his name to a work great enough to dazzle
posterity, that Justinian undertook the legal reformation, or covered
the capital and Empire with sumptuous buildings. In his attempt
to simplify the law, and to make justice more rapid and certain, he
undoubtedly had the intention of improving the condition of his
subjects: and even in the impetus given to public works we can
recognise a love of greatness, regrettable in its effects perhaps, but
commendable all the same because of the thought which inspired it.
Certainly the execution of these projects often compared unfavourably
with the grandiose conceptions which illuminated the dawn of Justinian's
reign. But however hard upon the West the imperial restoration may
have been, however useless the conquest of Africa and Italy may have
been to the East, Justinian none the less gave the monarchy an
unequalled prestige for the time being, and filled his contemporaries
with admiration or terror. Whatever may have been the faults of his
diplomacy, none the less by that adroit and supple combination of
political negotiations and religious propaganda he laid down for his
successors a line of conduct which gave force and duration to Byzantium
during several centuries. And if his successes were dearly bought by
the sufferings of the East and the widespread ruin caused by a despotic
and cruel government, his reign has left an indelible mark in the history
of civilisation. The Code and St Sophia assure eternity to the memory
of Justinian.


## p. 53 (#85) ##############################################

53
CHAPTER III.
ROMAN LAW.
Roman Law is not merely the law of an Italian Community which
existed two thousand years ago, nor even the law of the Roman Empire.
It was, with more or less modification from local customs and ecclesi-
astical authority, the only system of law throughout the Middle Ages, and
was the foundation of the modern law of nearly all Europe. In our own
island it became the foundation of the law of Scotland, and, besides
general influence, supplied the framework of parts of the law of England,
especially of marriage, wills, legacies and intestate succession to
personalty. Through their original connexion with the Dutch, it forms
a main portion of the law of South Africa, Ceylon and Guiana, and it
has had considerable influence in the old French province of Louisiana.
Its intrinsic merit is difficult to estimate, when there is no comparable
system independent of its influence. But this may fairly be said:
Roman Law was the product of many generations of a people trained
to government and endowed with cultivated and practical intelligence.
The area of its application became so wide and varied that local customs
and peculiarities gradually dropped away, and it became law adapted
not to one tribe or nation but to man generally. Moreover singular
good fortune befell it at a critical time. When civilisation was in peril
through the influx of savage nations, and an elaborate and complicated
system of law might easily have sunk into oblivion, a reformer was found
who by skilful and conservative measures stripped the law of much
antiquated complexity, and made it capable of continued life and general
use without any breach of its connexion with the past.
Sir Henry Maine has drawn attention to its influence as a system of
reasoned thought on other subjects: "To Politics, to Moral Philosophy,
to Theology it contributed modes of thought, courses of reasoning and a
technical language. In the Western provinces of the Empire it supplied
the only means of exactness of speech, and still more emphatically, the
only means of exactness, subtlety and depth in thought. 11
Gibbon in his 44th Chapter has employed all his wit and wealth of
allusion to give some interest to his brief history of Roman jurisprudence
and to season for the lay palate the dry morsels of Roman Law. The
present chapter makes no such pretension. It is confined to a notice of


## p. 54 (#86) ##############################################

54 Sources of Law
the antecedents and plan of Justinian's legislation, and a summary of
those parts of it which are most connected with the general society of
the period or afford some interest to an English reader from their
resemblance or contrast to our own law. Unfortunately a concise and
eclectic treatment cannot preserve much, if anything, of the logic and
subtlety of a system of practical thought.
The sources of law under the early Emperors were Statutes (leges},
rare after Tiberius; Senate's decrees (senatus cormdta), which proposed
by the Emperor took the place of Statutes; Edicts under the Emperor's
own name; Decrees, i. e. his final decisions as judge on appeal; Mandata,
instructions to provincial governors; Rescripta, answers on points of law
submitted to him by judges or private persons; the praetor's edict as revised
and consolidated by the lawyer Salvius Julianus at Hadrian's command
and confirmed by a Senate's decree (this is generally called The Edict);
and finally treatises on the various branches of law, which were composed,
at any rate chiefly, by jurists authoritatively recognised, and which
embodied the Common Law and practice of the Courts. By the middle
of the third century a. d. the succession of great jurists came to an end,
and, though their books, or rather the books written by the later of them,
still continued in high practical authority, the only living source of law
was the Emperor, whose utterances on law, in whatever shape whether
oral or written, were called constitutiones. If written, they were by Leo's
enactment (470) to bear the imperial autograph in purple ink.
Diocletian, who reformed the administration of the law as well as the
general government of the Empire, issued many rescripts, some at least
of which are preserved to us in Justinian's Codex, but few rescripts of
later date are found. Thereafter new general law was made only by
imperial edict, and the Emperor was the sole authoritative interpreter.
Anyone attempting to obtain a rescript dispensing with Statute Law
was (884) to be heavily fined and disgraced.
The imperial edicts were in epistolary form, and were published by
being hung up in Rome and Constantinople and the larger provincial
towns, and otherwise made known in their districts by the officers to
whom they were addressed. There does not appear to have been any
collection of Constitutions, issued to the public, until the Codex
Gregorianus was made in the eastern part of the Empire. (Codex
refers to the book-form as opposed to a roll. ) This collection was the
work probably of a man named Gregorius, about the end of the third
century. In the course of the next century a supplement was made
also in the Eastern Empire and called Codex Hermogenianus, probably
the work of a man of that name. Both contained chiefly rescripts.
A comparatively small part of both has survived in the later codes and
in some imperfectly preserved legal compilations. During the fourth
century, perhaps—as Mommsen thinks—in Constantine's time, but with
later additions, a compilation was made in the West, of which we


## p. 55 (#87) ##############################################

Reform of Law by Theodosius II 55
have fragments preserved in the Vatican Library. They contained both
branches of law, extracts from the jurists Ulpian, Paul and Papinian, as
well as Constitutions of the Emperors.
At length the need of an authoritative statement of laws in force
was so strongly felt that the matter was taken up by government.
Theodosius II, son of the Emperor Arcadius, having previously taken
steps to organise public teaching in Constantinople, determined to meet
the uncertainties of the law courts by giving imperial authority to
certain text writers and by a new collection of the Statute Law. The
books of the great lawyers, Papinian, Paul and Ulpian and of a pupil of
Ulpian, Modestinus, were well known and in general use. Another lawyer
rather earlier than these, of whom we really know nothing, except his
name (and that is only a praenomen), Gaius, had written in the time of
Marcus Antoninus in very clear style a manual, besides other works of a
more advanced character. The excellence of this manual brought it into
general use and secured for its author imperial recognition on a level with
the lawyers first named. Another work in great general use was a brief
summary of the law by Paul known under the name of Pauli Sententiae.
All these lawyers were in the habit of citing the opinions of earlier lawyers
and often inserting extracts from them in their own works. Theodosius
(with Valentinian, then seven years old) in a. d. 426 addressed to the Senate
of Rome an important and comprehensive Constitution, intended to
put what may be called the Common Law of Rome on a surer footing.
He confirmed all the writings of Papinian, Paul, Gaius, Ulpian and
Modestinus, and added to them all the writers whose discussions and
opinions were quoted by these lawyers, mentioning particularly Scaevola,
Sabinus, Julian and Marcellus. The books of the five lawyers first named
were no doubt in the hands of judges and advocates generally, but the
books of the others would be comparatively rare, and a quotation from
them would be open to considerable doubt. It might contain a wrong
reading or an interpolation or even a forgery. Theodosius therefore
directed that these older books should be admitted as authorities, only so
far as they were confirmed by a comparison with manuscripts other than
that produced by the advocate or other person alleging their authority.
But Theodosius went further. If the writers thus authoritatively
recognised were found to differ in opinion, the judge was directed to
follow the opinion of the majority, and if the numbers on each side were
equal, to follow the side on which Papinian stood and disregard any notes
of Paul or Ulpian contesting Papinian's opinion, but Paul's Sententiae were
always to count. If Papinian's opinion was not there to decide between
equal numbers of authorities, the judge must use his own discretion.
The great portion of law which had been set forth in text-books as
reasonable and conformable to precedent and statute having thus been
sanctioned, and rules given for its application, Theodosius turned his
attention to the Statute Law itself. The jurists had in their various


## p. 56 (#88) ##############################################

66 Theodosian Code
treatises taken account of the pertinent rescripts, edicts, etc, already
issued and it was therefore only from the time when the series of authori-
tative jurists ended that the imperial constitutions required collecting.
The books of Gregorius and Hermogenianus (Codices Greg, et Herm. )
contained those issued down to Constantine's time, which was therefore
taken as the starting-point for the additional collection. Theodosius in
429 appointed a Commission of eight, and in 435 another larger Com-
mission of which Antiochus the praefect was named first with" other
officials and ex-officials of the Record and Chancellery departments and
Apelles, a law professor, power being given to call other learned men to
their aid. He instructed them, following the precedent of Gregory and
Hermogenianus'' books, to collect all the imperial Constitutions issued
by Constantino and his successors which were either in the form of edicts
or at least of general application, to arrange them in the order of time
under the known heads of law, breaking up for this purpose laws dealing
with several subjects, and while preserving the enacting words to omit
all unnecessary preambles and declarations.
When this is done and
approved they are to proceed to review Gregory, Hermogenianus and this
third book, and with the aid of the pertinent parts of the jurists' writings
on each head of law to omit what was obsolete, remove all errors and
ambiguities, and thus make a book which should " bear the name of the
Emperor Theodosius and teach what should be followed and what
avoided in life. '"
The Theodosian code, technically called, as Mommsen thinks, simply
Theodosianug, was published in Constantinople 15 February 438 and
transmitted to Home at the end of the year. The consul at Rome
holding the authentic copy in his hands, in the presence of the imperial
commissioners, read to the Senate the order for its compilation, which
was received with acclamation. We have an account of this proceeding
with a record of the enthusiastic shouts of the senators and the number
of times each was repeated, some 24 or 28 times. Exclusive authority
was given to the code in all court-pleadings and court-documents from
1 January 439, the Emperor boasting that the code would banish a cloud
of dusty volumes and disperse the legal darkness which drove people to
consult lawyers; for the code would make clear the conditions of a valid
gift, the way to sue out an inheritance, the frame of a stipulation and
the mode of recovering a debt whether certain or uncertain in amount.
With the knowledge which we possess of the Vatican Fragments and
the Digest and Code of Justinian, we might expect from the above
description that the Theodosian Code would contain a selection from the
juristic writings as well as the constitutions of a general character
arranged under the several titles or heads of law. But the Code, which
has in a large part (about two-thirds of Books i-v being lost) come
down to us, contains no extracts from the jurists and no constitution
earlier than Constantine. So that the exclusive authority which the


## p. 57 (#89) ##############################################

Burgundian Code 57
Emperor gave to his code can only be understood to relate to constitu-
tions since Constantine, and he must have relied on the Gregorian and
Hermogenian Codes for earlier constitutions still in force, and on the
text-books of the lawyers, approved by his constitution of 426, for
supplying the requisite details of practical law.
The Code of Theodosius was divided into sixteen books, each book
having a number of titles and each title usually containing a number of
constitutions or fragments of such. The order of subjects is similar to
that of Justinian's Code with some exceptions. Private law is treated
in Books ii-v, military matters in vii, crime in ix, revenue law in
x and xi, municipal law in xii, official duties in i, and xiii-xv, and
ecclesiastical matters in xvi. The names of the Emperors at the time
of enactment and the date and the place either of framing or of publi-
cation were given with each constitution though they are not wholly
preserved. Compared with Justinian's Code it contains a much larger
proportion of administrative law and a much smaller proportion of
ordinary private law. The Code remained in force in the East and in
Italy until Justinian superseded it, though the traces of its use are few.
In the West, in Spain, France and Lombard Italy, it remained in
practical use for long, chiefly as part of the Code issued to the Visigoths
by Alaric II in 506.
A number of constitutions issued by Theodosius and his successors
after the Code and therefore called Novellae (i. e. , leges), " new laws," have
come down to us—84 in number, the latest of which bearing the names
of Leo and Anthemius was issued in 468. Of further legislation by
Roman Emperors until Justinian we have only what he chose to retain
in his Code.
After the Theodosian Code and before Justinian there were compiled
and issued codes of laws for the Romans in Burgundy, for the Ostrogoth
subjects in Italy, and for the Romans in the Visigothic kingdom in South
France and in Spain; and we have evidence of other laws prevailing in
the Eastern part of the Empire, before and after Justinian's time.
In Burgundy about the beginning of the sixth century King
Gundobad issued a short code of laws for all his subjects whether
Burgundian or Roman. A few subsequent constitutions by him or his
successors have been appended to it. Somewhat later he issued a code
for his Roman subjects, when suits lay between them only. This code
is about half the length of the other but many of the headings of the
chapters are the same. The matter is principally torts and crimes (e. g. ,
cattle-lifting), runaway slaves, succession, gifts, marriage, guardianship,
process and some brief rules on other parts of the law. It appears to
have been taken from the same sources as the Lex Visigothorum and the
particular source is frequently named. But instead of simply repeating
selected words of the source, it is rather an attempt at real codification.
(The name Papiamts often given to it arises probably from this Code


## p. 58 (#90) ##############################################

58 Codes for Ostrogoths and Visigoths
having followed in the MSS. the I^ex Visigothorum and the extract from
Papinian which closes that having been taken as the commencement of
this. Papianu. 1 is a frequent mistake for Papinianus. )
For the kingdom of the Ostrogoths in Italy a code of laws was
issued by Theodoric about a. d. 500. It is usually called Edictum
Theodorici. The code is nearly the same length as the Lex Romana
Bvrgimdiorum and much resembles it in character and sources, but does
not name them. The contents are torts and crimes, especially attacks
on landed possessions and cattle-lifting, successions, marriage, serfs,
conduct of judges, process, etc. The first editor, Pithou, had two MSS.
in 1578, but these have completely disappeared.
The Lex Romana Visigothorum is much more important than either
of the above. It is a compilation promulgated by Alaric II for Roman
citizens in Spain and part of Gaul in the twenty-second year of his
reign, i. e. , a. d. 506. He states in an accompanying letter to Count
Timotheus that it was compiled by skilled lawyers (prudcntes) with the
approval of bishops and nobles, to remove the obscurity and ambiguity
of the laws and make a selection in one book which should be solely
authoritative. No power of amending the law appears to have been given.
It contains a large number of constitutions from the Theodosian
Code, omitting especially those which relate to administration rather
than general law. Consequently there are few taken from Books vi, vii,
xi-xiv. Some post-Theodosian Novels follow; then an abridgment of
Gaius' Institutes, a good deal of Paul's Sententiae, a few extracts from
the Gregorian and Hermogenian Codes and one extract from Papinian.
A short interpretation is appended to all of these, except to Gaius and
to most of Paul's Sentences, where interpretation is stated not to be
required. The author and age of the interpretation are quite unknown.
It sometimes gives a restatement of the text in other words, sometimes
adds explanations. The selection of matters for the code shews the
intention of giving both Statute and Common Law. The code was no
longer authoritative law after Chindaswinth (642-653), but it was used in
the schools and assisted largely in preserving Roman Law in the south
and east of France till the twelfth century; and a tradition that it
received confirmation from Charlemagne is possibly true. Our knowledge
of Books ii-v of the Theodosian Code and of most of Paul's Sentences is
due to this compilation, which in modern times has received the name of
Breviarium Alarici.
In the lands on the eastern part of the Mediterranean—Syria,
Mesopotamia, Persia, Arabia, Egypt and Armenia—a collection of laws,
evidently translated from Greek, was used under the name of "Laws of
Constantine, Theodosius and Leo," probably composed at the end of the
fourth century and enlarged in the fifth, perhaps with later alterations
from the Justinian laws. Versions of it in Arabic, Armenian and
several in Syriac, differing in some degree from one another, have been


## p. 59 (#91) ##############################################

Syrian Code. Justinian's Reform 59
lately published. The chief portion relates to family law, marriage,
dowry, guardianship, slaves and inheritance, but obligations and pro-
cedure are also included. It is supposed to have been compiled for
practical use in suits before the bishops and minor ecclesiastics.
Differences between the law prevailing in the East and that in the West
are sometimes mentioned, e. g. , that in the former the husband's marriage
gift was only half the value of the wife's dowry. Other differences from
the regular Roman Law of the time are the requirement of a written
contract for marriage, the recognition of the possession (as in the Gospels)
of wives and slaves by demons, punishment of a receiver of others' slaves
or serfs by making him a slave or serf, prescription of 30 years for suits
for debts, prohibition of purchase by creditor from debtor until the debt
is paid, allowance of marriage with wife's sister or brother's widow if
dispensation be obtained from the king, many peculiarities in intestate
inheritance, privileges and endowments for the clergy, etc.
Justinian succeeded his uncle Justin in 527 and at once took up the
task partially performed by Theodosius, and succeeded in completing it
in a more thorough manner than might have been expected from the
speed with which it was done. In 528 he appointed a commission of
ten, eight being high officials and two practising lawyers, with
instructions to put together the imperial constitutions contained in the
books of Gregorius, Hermogenianus and Theodosius, and constitutions
issued subsequently, to strike out or change what was obsolete or unneces-
sary or contradictory, and to arrange the constitutions retained and
amended under suitable heads in order of time, so as to make one book,
to be called by the Emperor's name, Codex Justinianus. The book
compiled by the commission was sanctioned by the Emperor in 529, and
it was ordered that no constitution should be quoted in the law courts
except those contained in this book, and that no other wording should
be recognised than as given there.
The next step was to deal with the mass of text-books and other
legal literature, so far as it had been recognised by the courts and by
the custom of old and new Rome. In 580 Tribonian, one of the
members of the former commission for the code, was directed to choose
the most suitable professors and practising lawyers, and with their aid
in the imperial palace under his own superintendence to digest the mass
of law outside the constitution into one whole, divided into fifty books
and subordinate titles. All the authors were to be regarded as of equal
rank: full power was given to strike out and amend as in the case of
the constitutions: the text given in this book was to be the only authori-
tative one: it was to be written without any abbreviations; and, while
translation into Greek was allowed, no one was to write commentaries on
it. This work, never attempted before and truly described by Justinian
as enormously difficult, was "with the divine assistance" completed in


## p. 60 (#92) ##############################################

60 Justinian's Digest
three years, Tribonian calculating that he had reduced nearly 2000
rolls containing more than 3,000,000 lines into a Codex of about
150,000 lines. Justinian called this book Digesta or Pandectae and
directed that it should take effect as law from 3 December 533. Its
somewhat irrational distribution into seven parts and fifty books was
probably due to a superstitious regard to the mysterious efficacy of
certain numbers. The really important division is into titles, of which
there are 432.
From reverence to the old lawyers, he directed that the name of the
writer and work from which an extract was taken should be placed at
the commencement of it, and he had a list of the works used placed
before the Digest. This list requires some correction. There were
used between 200 and 300 treatises of about 40 authors, some of the
treatises being very voluminous, so that over 1600 rolls were put
under contribution. Over 95 per cent, of the Digest was from books
written between the reigns of Trajan and Alexander Severus. Two
works by Ulpian supply about one-third of the Digest: sixteen works
by eight authors form nearly two-thirds: twice this number of books
supply four-fifths. From some treatises only a single extract was taken.
Tribonian's large library supplied many books not known even to the
learned. Many were read through without anything suitable for
extraction being found.
The plan which Tribonian devised appears to have been to divide
the commission into three parts and give each committee an appropriate
share of the books to be examined. Ulpian's and Paul's Commentaries
and other comprehensive works were taken as the fullest exposition of
current law and made the foundation. They were compared with one
another and with other treatises of the same subject-matter; antiquated
law and expressions were cut out or altered, contradictions removed,
and the appropriate passages extracted and arranged under the titles to
which they severally belonged. The titles were, as Justinian directed,
mainly such as appeared in the Praetor's Edict or in his own code. The
extracts made by the committee which had furnished the most matter for
the title were put first, and the others followed, with little or no attempt
to form an orderly exposition of the subject. What connexion of thought
between the extracts is found comes mainly from the treatise taken as
the foundation. There is no attempt at fusing the matter of text-books
and giving a scientific result, nor even of making a thorough and skilful
mosaic of the pieces extracted. The work under each title is simply the
result of taking strings of extracts from the selected treatises, arranging
them partly in one line and partly in parallel lines, and then as it were
squeezing them together so as to leave only what is practical, with no
more repetition than is requisite for clearness. This process done by
each committee would be to some extent repeated when the contributions
of the three committees came to be combined. For special reasons


## p. 61 (#93) ##############################################

i Revised Code. Institutes 61
occasionally this or that extract might be moved to some other place,
sometimes to form an apt commencement for the title, in one case
(Book xx, title 1) by way of honour to Papinian.
Justinian's work was thus not a codification, as we understand the
word, but a consolidation of the law, both of the jus and the leges, as it
may be called, of the Common and the Statute Law. It was consolida-
tion combined with amendment. The removal of obsolete law and of
consequent reference led necessarily to innumerable corrections both of
substance and of wording. Whatever criticism this mode of solving the
problem may justly receive, it had two great merits. It gave the Roman
world within a short time a practical statement of the law in use, cleared
of what was obsolete and disputable, full in detail, terse in expression,
familiar in language and of unquestionable and exclusive authority.
And it has preserved for the civilised world in all ages a large
amount of the jurisprudence of the best trained Roman lawyers of the
best age, which but for Tribonian would in all probability have been
wholly lost.
But Tribonian was not satisfied with this achievement. In preparing
the Digest it was found desirable formally to repeal parts of the old law,
and for this purpose fifty constitutions were issued. On this and other
accounts Justinian directed him with the aid of Dorotheus, a professor
at Bery tus, and of three eminent lawyers in the Courts at Constantinople
to take the Code in hand, to insert the new matter, to omit what were
repetitions, and thoroughly to revise the whole. This second or revised
Code is what we have. It took effect from 29 December 534. The
earliest constitution in it is one of Hadrian's and there are few before
Severus, the jurists' writings having embodied earlier ones so far as they
were of general and permanent application. Many rescripts of Diocletian
are given, but none of subsequent Emperors. Many constitutions are
much abridged or altered from the form in which they appear in the
Theodosian Code, which itself contained often only an abridgment of
the originals.
A manual for students (the Institutes) founded largely on Gams'
Institutes (which have come down to us in a palimpsest luckily discovered
at Verona by Niebuhr in 1816) was also sanctioned by Justinian, and took
effect as law from the same day as the Digest. An authoritative course
of study was ordained at the same time, and law schools were sanctioned,
but only in Constantinople, Rome and Bery tus, those existing in
Alexandria, Caesarea and elsewhere being suppressed, under the penalty
for any teacher of a fine of 10 lbs. gold and banishment from the town.
Justinian did not end here his legislative activity, but issued from
time to time, as cases brought before him or other circumstances
suggested, new constitutions for the amendment of the law or regulation
of the imperial or local administration. Of these 174 are still extant,
about half relating to administration and half to private law and
CB. II.


## p. 62 (#94) ##############################################

62 Justinians Novellae. Slaves
procedure. About forty deal with the law of the family and of succession
to property on death. Some are careful consolidations of the law on
one subject, some are of miscellaneous content. These constitutions
with a few issued by his near successors are called Novellae, and as being
the latest legislation supersede or amend some parts of the Digest, Code
and Institutes, which with them form the Corpus Juris1 as received by
European nations. Almost all are written in Greek, whereas very little
Greek occurs in the Digest (chiefly in extracts from the third-century
lawyer, Modestinus) and not much relatively in the Code. An old Latin
Version of many of the Novels, probably prepared in Justinian's lifetime,
is often quoted by old lawyers under the name of Authenticum. It is a
significant fact that only eighteen of the Novels, and those almost
wholly administrative, are dated after the year of Tribonian's death (546),
though Justinian survived him nearly twenty years. One may be sure
that it was Tribonian who suggested and organised this great reform of
the law, though no doubt it owed much also to the good sense and
persistence of the Emperor.
It would not be practicable to give anything like an adequate
summary of Justinian's law books within the limits which can be
assigned to it in a general history. His own Institutes contain an
authoritative and readable account, which however on some matters,
especially marriage and inheritance, requires correction from the Novels.
But summary information may be given here on such topics as the
position of slaves, freedmen and serfs; of the power of the head of a
family; of marriage, divorce, and succession to property; of some
leading principles of contract, of criminal law and of procedure.
In Rome the household comprised slaves as well as free men, and
slaves gave occasion to a great deal of legal subtlety. Theoretically
they were only live chattels, without property or legal rights, absolutely
at the disposal of their owner, who had full power of life and death over
them. But at all periods, more or less largely, theory was modified in
practice, partly by natural feeling towards members of the same house-
hold, partly by public opinion. Antoninus Pius, either from policy or
philosophic pity, so far interfered between master and slave as to make
it a criminal offence for a master to kill his own slave without cause, and
he required one who treated his slave with intolerable cruelty to sell him
on fair terms. Constantine (819) went still further and directed any
master who intentionally killed his slave with a club or stone or weapon
or threw him to wild beasts or poisoned or burnt him to death to be
charged with homicide. But discipline was not to suffer, and therefore
1 On a rough estimate the Corpus Juris would fill about four such volumes (of
800 pages) as this History: and of the four the Digest would fill more than
half. It is the Digest that cornea nearest to the popular notion of Justinian's
Code.


## p. 63 (#95) ##############################################

Slaves. Freedmen 63
by another law (326) chaining or beating in the ordinary way of correc-
tion for offences, even if the slave died of it, was not to justify any
inquiry into the master's intentions or to found any charge against him.
Justinian in his Code reproduced only the former constitution, and
retained in the Digest the duty imposed on the city praefect and
provincial governors of hearing the complaints of slaves who had fled
from cruelty, starvation or indecency, to the refuge of the Emperor's
statues. To give such protection, said Antoninus (152), was required by
the interests of masters, whose full command over their slaves should be
maintained by moderate rule, sufficient supplies, and lawful tasks. On
the other hand any offences of slaves which came under the animadversion
of the State were visited with severer punishments than those of a
freeman.
The economical position of slaves requires some notice also. In
theory they were simply instruments of their master; what they acquired
passed at once to him; they were not capable of having property of
their own, he was responsible for them as he was for any other domestic
animal that he kept. But in practice slaves were usually allowed to
accumulate property out of their savings or from gifts, and the law by a
fiction allowed them to use it in purchasing their own freedom. Such
quasi-property was called their peculium (" petty stock "): it existed only
so long as their master chose; he could withdraw it, but rarely did so,
except for grave offences. But so long as it existed and his master gave
him a free hand, a slave could trade with it and enter into all kinds of
business transactions ostensibly for himself, but in the eye of the law for
the master's account. He could not however give away anything,
and he had no locus standi in court: he could sue and be sued only in
the name of his master. If he was freed by his master when living, the
peculium was deemed to accompany him, unless expressly withdrawn.
But if he was freed by will or alienated, it did not pass with him unless
expressly granted.
The law of persons was greatly simplified by Justinian's legislation.
There were now only two classes of persons, slaves and freemen, though
freemen were not all treated alike by the law. Besides some discrimina-
tion in favour of persons of high rank, freedmen and serfs were in a very
inferior position.
Freedmen were manumitted slaves and retained traces of their former
servile condition. In earlier times, besides the regular forms of manu-
mission by a ceremony before the praetor or by last will, some legal
effect used to be given to informal expressions of the master's will. The
slave so informally emancipated became free in fact during his life, but
his property on his death did not pass as a freeman's by will or to his
relatives, but remained like a slave's peculium to his former master or
master's representatives. Such half-freemen were called Latins as not
being complete citizens. Justinian (531) allowed the informal acts
CH. HI.


## p. 64 (#96) ##############################################

64 Freedmen
which had this imperfect effect to confer in future full freedom, so that
a letter to the slave subscribed by five persons as witnesses, or a declara-
tion similarly witnessed or recorded in court, or the delivery to the slave
before five witnesses of his master's documents of title, or the slave's
attendance on the bier of the deceased master by his or the heir's
direction, or the giving a female slave in marriage to a freeman with a
dowry settled in writing, or addressing a slave in court as his son, were
acts sufficient without further formality to make the slave a freedman or
freedwoman. So also, by an edict of Claudius, ejection of a sick slave
from the master's house without making provision for him, or prostitution
of a female slave in breach of a condition of her purchase, forfeited the
master's rights, and full freedom now ensued; and other cases of freedom
by operation of law are mentioned. Further Justinian repealed the
laws which required a master to be twenty years old before he could
emancipate slaves by will, and restricted the number. Constantine
confirmed (316) a custom of giving freedom in church before the priests
and congregation, a record of the matter being signed by the former;
and he allowed clerics to confer freedom on their slaves by any form of
words without witnesses, the freedom to take effect on publication of the
document at the master's death.
A freedman did not however by the act of manumission lose all trace
of his former condition. He remained under limited control of his
former master or owner, now patron, and patron's children. A patron
could claim respect (obsequium), services, and the succession to some or
all of his property at death if he left no children as heirs. From services
he could be exempted by a special grant by the Emperor of the right
of wearing gold rings, and by a like grant (restitutio natalium, " restora-
tion of birtb ") from the patron's claim to his estate. Such grants were
rarely made without the patron's consent. Justinian dispensed with the
formality of special grants and made the removal of the patron's claim
to services and inheritance follow of itself on a manumission. But unless
the master then, or by way of trust in his will, made a declaration to
that effect, this automatic grant did not exempt a freedman from the
duty of due respect, to his patron. He was punishable for using
abusive language to him: he could not sue him or his children except
by consent of the proper authority: and any suit which he brought had
to shew formal respect by the complaints being couched in a mere
statement of the facts without casting any imputation. Constantine
allowed freedmen guilty of ingratitude or insolent conduct, even though
not of a grave character, to be remitted into their patron's power. A
patron in need could claim support (alimenta) from his freedman.
Claims to the status of freeborn, when disputed, were reserved for the
decision of the city praefect or governor: claims to the status of freed-
man were reserved likewise for the same high officials, or if the
treasury was a party, then for the chief officer of that department.


## p. 65 (#97) ##############################################

Serfs 66
Serfs though free were in some respects not far removed from slaves.
They were found usually in country districts in the provinces, and were
often included under the general term "cultivators" (coloni), which was
also applied in republican and early imperial times to small farmers, who
were freemen not only in law but in practice. The origin and history of
this serfdom is not clear. It may very possibly have been developed on
the example of Marcus Aurelius' settlement in Italy of numbers of
the peoples conquered in the Marcomannic War, and possibly on the
example of the German "Liten" (laeti), settled on the Gallic border.
But besides conquered tribes retained in their own country or settled
in other countries, voluntary contract under pressure of poverty and
statutes against beggary probably added to the number. The main-
tenance of the land tax introduced by Diocletian made the retention of
the cultivators on the several estates a necessity.
The characteristic of a serf was that he and his descendants were
inseparably attached to the land, and as a rule to one particular farm,
specified in the government census, and held under a lord. If this
particular part of the lord's estate was over-supplied with cultivators, he
might transfer serfs permanently to another part which was under-
supplied, in accordance with the purpose of the institution—that of
keeping the land under due cultivation and enabling it to bear taxes.
But except in such a case the serfs could not be separated from the farm
nor the farm from them. They were part of its permanent stock. If
the lord sold a part of the land, he must convey with it a proportionate
number of the serfs belonging. If a serf wandered or was stolen, or
became a cleric without his lord's consent, he could, whatever was the social
position to which he had attained, be reclaimed by his lord just as if he
were a runaway slave. And for some offences, e. g. marrying a freewoman,
he was liable by statute, like a slave, to chains or stripes. He was not
admissible to the army, but as a free man he paid poll tax. He could sell
the surplus produce of his farm, and his savings, called his peculium, were
in a sort his property but were inalienable except in the way of trade;
on his death, (e. g. as a monk) childless and intestate, they passed to his
lord, but usually would pass to his children or other successors on his
farm. He might (apparently) own land, and would be entered in the
Register as its holder and be liable for the land tax, whereas the tax on
the farm to which he was attached as a serf would usually be collected
from the lord.