The Online Library of Liberty

A project of Liberty Fund, Inc.

• The Works of Edward Gibbon
• List of Illustrations
• The History of the Decline and Fall of the Roman Empire
• Chapter Xlv
• Chapter Xlvi
• Chapter Xlvii
• Chapter Xlviii
• Chapter Xlix
• Appendix Additional Notes By the Editor
• 1.: Authorities — ( Ch. Xlv . Sqq. and Vol. IX. Ch. L . Sqq. )
• Greek (and Other) Sources
• Latin Sources
• Oriental Sources
• I.: For the Life of Mohammad
• II.: For the Saracen Conquests
• 2.: The Avar Conquest — ( P. 9 )
• 3.: Geography of Italy In the Lombard Period, and Chronology of the Lombard Conquest — ( P. 14 )
• 4.: The Armeniac Provinces of Justinian and Maurice — ( P. 66 )
• 5.: The Race of Heraclius and Nicetas — ( P. 85 , 86 )
• 6.: Persian Kings From Chosroes I. To Yezdegerd III. — ( P. 11 )
• 7.: The Inscription of Si-ngan-fu — ( P. 190 )
• 8.: The Letter of Nicetius to Justinian — (p. 177)
• 9.: Periods of the Later Empire, 610 to 1204 — ( Ch. Xlviii .)
• 10.: A Chronological Question of the Eighth Century — ( P. 234 , 236 )
• 11.: GrÆco-roman Law — ( P. 261 )
• 12.: The Land Question — ( P. 265 )
• 13.: Interest, Credit, and Commerce — (the Rhodian Code)
• 14.: The Letters of Gregory II. To the Emperor Leo — ( P. 326 )
• 15.: The Iconoclastic Edicts of Leo III. — ( P. 319 , 320 )
• 16.: Some Questions Connected With the Rise of the Papal Power In the Eighth Century — ( P. 337 , 338 , 342 , 343, &c .)

11.

GRÆCO-ROMAN LAW — (P. 261)

The general history of Byzantine law, from Justinian to the fall of the Empire, may be grouped under two epochs easily remembered: the attempt of the first Iconoclastic Emperors to legislate on new Christian principles, and the return to the Roman principles of the Justinianean law by the first “Macedonian” sovereigns.

A word must first be said of the substitution of the Greek for the Latin language in the domain of law. The great legal works of the Illyrian Justinian were composed in Latin, his native tongue. But the fact that to the greater part of the Empire ruled by him, and a still greater part of the Empire ruled by his successors, Latin was unintelligible, rendered a change of vehicle simply inevitable. The work of transformation began in his own reign. He issued most of his later laws (the Novels) in Greek, and in Novel 7 (15, ed. Zach.) expressly recognises the necessity of using “the common Greek tongue”; Theophilus prepared a Greek paraphrase of the Institutes; and Dorotheus translated the Digest. The Code was also, immediately after its publication in Latin, issued (perhaps incompletely) in a Greek form.1 After Justinian’s time the study of legal texts in Latin seems, at Constantinople and in the Greek part of the Empire, to have soon ceased altogether.

In the troubles of the 7th century the study of law, like many other things, declined; and in the practical administration of justice the prescriptions of the Code and Digest were often ignored, or modified by the alien precepts of Christianity. The religion of the Empire had exerted but very slight influence — no fundamental influence, we may say — on the Justinianean law. Leo III., the founder of the Syrian (vulgarly called Isaurian) dynasty, when he restored the Empire after a generation of anarchy, saw the necessity of legislation to meet the changed circumstances of the time. The settlements of foreigners — Slavs and Mardaites — in the provinces of the Empire created an agrarian question, which he dealt with in his Agrarian Code. The increase of Slavonic and Saracenic piracy demanded increased securities for maritime trade, and this was dealt with in a Navigation Code. But it was not only for special relations that Leo made laws; he legislated also, and in an entirely new way, for the general relations of life. He issued a law book (in 740 in the name of himself and his son Constantine), which changed and modified the Roman law, as it had been fixed by Justinian. This Ecloga, as it is called, may be described as a Christian law book. It is a deliberate attempt to change the legal system of the Empire by an application of Christian principles. Examples, to illustrate its tendency, will be given below.

The horror, in which the Iconoclasts were held on account of their heresy by the image-worshippers, cast discredit upon all their works. This feeling had something to do with the great reaction, which was inaugurated by Basil I., against their legal reforms. The Christian Code of Leo prevailed in the empire for less than a century and a half; and then, under the auspices of Basil, the Roman law of Justininan was (partially) restored. In legal activity the Basilian epoch faintly reflected the epoch of Justinian itself. A handbook of extracts from the Institutes, Digest, Code, and Novels was published in 879, entitled the Prochiron (or ὀ πρόχειρος νόμος), to diffuse a knowledge of the forgotten system. But the great achievement of the Basilian epoch is the Basilica — begun under Basil, completed under Leo VI. — a huge collection of all the laws of the Empire, not only those still valid, but those which had become obsolete. It seems that two commissions of experts were appointed to prepare the material for this work. One of these commissions compiled the Prochiron by the way, and planned out the Basilica in sixty Books. The other commission also prepared a handbook, called the Epanagoge, which was never actually published (though a sketch of the work is extant), and planned out the Basilica in forty Books. The Basilica, as actually published, are arranged in sixty Books, compiled from the materials prepared by both commissions.

The Basilian revival of Justinianean law was permanent; and it is oustide our purpose to follow the history further, except to note the importance of the foundation of a school of law at Constantinople in the 11th century by the Emperor Constantine IX. The law enacting the institution of this school, under the direction of a salaried Nomophylax, is extant.2 John Xiphilin (see above) was the first director. This foundation may have possibly had some influence on the institution of the school at Bologna half a century later.

To illustrate the spirit of the legislation of Leo III., an attempt to reconcile the discrepancies between civil and canonical law, we may glance at his enactments as to marriage, the patria potestas, and the guardianship of minors.

In the law of Justinian marriage had by no means the sacrosanct character which the Church assigned to it. Like all contracts, it could easily be dissolved at the pleasure of the contractors, and concubinage was legally recognised. The Ecloga enacted that a concubinate should be regarded as a marriage, thus legally abolishing the relation; and in this matter the Macedonian Emperors maintained the principle of the Iconoclasts; Leo VI. expressly asserting (Nov. 89) that there is no half-way state between the married and the unmarried.

Roman law had defined a number of hindrances to the contraction of marriage. The tendency of the Church, which regarded marriage as not an admirable thing in itself but only a concession to weakness, was to multiply hindrances. Justinian had forbidden marriages between Christians and Jews; the Ecloga recognises only marriages of Christians (and orthodox Christians are meant).3 But the chief obstacles lay in degrees of relationship. Justinian’s Code forbade marriage between blood relatives in the direct line of ascent and descent, between brothers and sisters, and between uncle and niece, nephew and aunt. The Trullan synod of 692 extended the prohibition to first cousins; the Ecloga went further and forbade the marriage of second cousins (δισεξάδελϕοι). These prohibitions were preserved by the Macedonian Emperors, and it was generally recognised that marriages within the 6th degree were illegal. It was even regarded as a question whether marriages in the 7th degree were permissible. They were forbidden by the Church in the 11th century, and this decision was confirmed by the Emperor Manuel. A similar progress in strictness can be traced in the case of relationships by adoption, by marriage, and by baptismal sponsorship.

In Justinian’s law “consent” was enough for the legal contraction of a marriage, and further forms were necessary only so far as the dowry was concerned. But under the ecclesiastical influence need was felt of giving greater solemnity and publicity to the marriage contract, and the Iconoclasts prescribed a written form of contract to be filled up and signed by three witnesses, but permitted this to be dispensed with by very poor people, for whom it would be enough to obtain the blessing of the Church (εὐλογία) or join hands in the presence of friends. The legislation of the Macedonian Emperors maintained the spirit (though not the words) of the Ecloga, in so far as it prescribed public marriages with penalties.

And, if the Church made the contraction of marriage more solemn, it made divorce more difficult. It was here that there was the most striking opposition between the law of the Church and of the State, and here the tendency of the Iconoclastic legislation is most strikingly shown. The Church regards marriage as an indissoluble bond, and for a divorced person to marry again is adultery. On the other hand, Roman law, as accepted and interpreted by Justinian, laid down that no bond between human beings was indissoluble, and that separation of husband and wife was a private act, requiring no judicial permission. And persons who had thus separated could marry again. The only concession that Justinian made in the direction of the ecclesiastical view was his ordinance that persons who separated without a valid reason should be shut up in monasterics, — a measure which effectually hindered them from contracting a new marriage. The spirit of the Ecloga is apparent in its full acceptance of the ecclesiastical doctrine in this point — the indissolubility of marriage. Divorce is permitted only in four cases, and this as a concession to the weakness and wickedness of human nature. The Basilian legislation returned to the Justinianean doctrine, and the antinomy between the canon and the civil law survives to the present day in Greece.

Another question arises when the dissolution of marriage is due to the hand of death; is it lawful for the survivor to enter again into the state of matrimony? More than once this question assumed political significance in the course of Imperial history. The Church always looked upon the marriage of widowers or widows as reprehensible, founding her doctrine on the well-known prescriptions of St. Paul, in 1 Corinthians, chap. vii. A second marriage might be tolerated, but a third was distinctly unlawful, and a fourth — swinishness (so Gregory Nazianzen; see Zachariä, Gr.-rom. Recht, p. 82, note 200). The civil law recognised no such restrictions, and only interfered so far as to protect the interests of the children of the first marriage. But here the ecclesiastical view gained ground. The Ecloga affects not to consider a third marriage conceivable; the Empress Irene distinctly forbade a third marriage. Basil contented himself with recognising the ecclesiastical penalties imposed on persons guilty of a third marriage, but declared a fourth illegal. His son Leo committed this illegality (see above, p. 263); but after Leo’s death the “act of unity” (τόμος τη̂ς ἐνώσεως) of the synod of 920 confirmed the ordinance of Basil, with the additional restriction that a third marriage of a person who had children and was over forty years of age was illegal.

The influence of the ecclesiastical view of marriage as a consortium vitae can be seen too in the treatment of the property of the married partners. In the Justinianean law, the principle of the elaborate prescriptions for the property of the wife and the husband, for the dos and the propter nuptias donatio, is the independence and distinction of the property of each. The leading idea of the system developed in the Ecloga is the community of property in marriage, — the equal right of each partner to the common stock, however great the disproportion may have been before the contributions of each. Basil returned to the Justinianean system, but the doctrine of the Ecloga seems to have so firmly established itself in custom that Leo VI. found it necessary to make a compromise, and introduced a new system, which was a mixture of the Iconoclastic and the Justinianean doctrines.

The patria potestas still holds an important place in the Justinianean law, although the rights which it gave the father over the children were small indeed compared with the absolute control which he had enjoyed in ancient times. The tendency was to diminish these rights and to modify the stern conception of patria potestas by substituting the conception of a natural guardianship; a change corresponding to the change (promoted by Christianity) in the conception of the family, as held together by the duties of affection rather than by legal obligations. The two most important points in the later transformation of the patria potestas were (1) its conversion into a parental potestas, the mother being recognised as having the same rights and duties as the father (thus her consent as well as the father’s is necessary for the contraction of a marriage); and (2) the increased facilities for emancipation when the child came to years of discretion; emancipation seems to have been effected by the act of setting up a separate establishment. These principles were established by the Iconoclasts; but Basil revived the Justinianean legislation. Here, however, as in many other cases, the letter of Basil’s law books was not fully adopted in practice, and was modified by a Novel of Leo VI. which restored partly the law of the Ecloga.

In respect to the guardianship of minors the tendency in the later civil law had been to supersede the tutela by the cura — the tutor who was appointed in the interests of the family by the curator appointed in the interests of the public. The office of guardian came to be regarded as a public office for the good of the ward. Yet the old distinction of cura and tutela still subsisted in the Justinianean law books, though in use it was practically obsolete. The Ecloga logically developed this tendency; here tutela does not appear at all, only cura (κουρατωρεία). And, as on the death of one parent the children were under the care of the surviving parent, there was no question of guardianship except in the case of orphans. The Ecloga provides — and here we see the ecclesiastical influence — that, when the parents have not designated a guardian, the guardianship of orphans is to devolve on ecclesiastical institutions (e.g. the ὀρϕανοτροϕεɩ̂ον at Constantinople), and to last until the wards marry or reach the age of twenty. Here again the Basilica returned to the Justinianean law.

These examples will give some idea of the general character of the development of Byzantine civil law. Two interesting points may be added in connection with the law of inheritance. Constantine VII. enacted4 that if any one died intestate and childless, only two thirds of his property went to relatives (or the fisc), the remaining third going to the Church for his soul’s benefit. The other point is the institution of testamentary executors, for so we may best translate the word ἐπίτροποι in its Byzantine use.5 The institution was but incompletely developed, and ultimately fell into disuse, but Zachariä remarks that Byzantine law was “on the highway to an institution similar to the English trustees, executors, and administrators.”6

In criminal, as in civil law, the Iconoclastic legislators made striking innovations in the Justinianean system — sometimes entirely departing from it, sometimes developing tendencies which were already distinctly perceptible in the civil code of the 6th century. But, whereas in the case of the civil law the Basilian legislation was characterised as a return to the Justinianean system — a return sometimes complete, sometimes partial, but always tending to subvert, so far as possible, the Iconoclastic legislation, — it is quite otherwise in the case of the criminal law. Here, the system established by the Ecloga is retained in most cases, and sometimes developed further.

The criminal law of the Ecloga is very remarkable. It was intended to be, and professed to be, more humane than the old Roman law; but a modern reader is at first disposed to denounce it as horribly barbaric. Its distinguishing feature is the use of mutilation as a mode of punishment — a penalty unknown in Roman law. The principle of mutilation was founded on Holy Scripture (see St. Matthew, v. 29, 30: If thine eye offend thee, &c.). Since mutilation was generally ordained in cases where the penalty had formerly been death, the law-givers could certainly claim that their code was more lenient. The penalty of confiscation of property almost entirely disappears. The following table of penalties will exhibit the spirit of the Christian legislation: —

Perjury: amputation of the tongue (γλωσσοκοπεɩ̂σθαι).

High treason: death.

Theft: for the first offence: if solvent, payment of double the value of the thing stolen; if insolvent, flogging and banishment.

Theft: for the second offence: amputation of the hand.

Paederasty: death.

Bestiality: amputation of the offending member (καυλοκοπεɩ̂σθαι).

Fornication: —

• (1) with persons within the forbidden degrees: amputation of the hand (for both);
• (2) when the act involves a further wrong, e.g.: —
  • (a) with a nun (a wrong being done thereby to the Church): amputation of the nose (for both);
  • (b) with a maiden: the man, if he refuses to marry her, pays a fine if he has property, but if he is penniless, is whipped, tonsured, and banished;
  • (c) if the maiden was betrothed to another: amputation of the nose;
  • (d) rape: amputation of the nose (and, if the victim was under thirteen years of age, the ravisher had to pay her half his property, besides losing his nose);
  • (e) of a man with a married woman: amputation of the nose (for both);
• (3)
  • (a) of a married man with an unmarried woman: whipping;
  • (b) of an unmarried man with an unmarried woman: lighter whipping; but in these cases the women were not punished, according to the law of the Ecloga.

For murder the penalty was death. But, while the Justinianean law excluded murderers, ravishers, and adulterers from the asylum privileges secured to those who took refuge in churches, the Ecloga does not make this exception; and, though the enactments of the Basilica follow Justinian, practice seems in the meantime to have secured for murderers the right of asylum, which was definitely recognised by Constantine VII. A novel of this Emperor enacts that a murderer who takes refuge in a church shall do penance according to the canon law, shall then be banished for life from the place where the crime was perpetrated, shall become incapable of holding office; and, if the murder was committed with full premeditation, shall be tonsured and thrust into a monastery. His property shall be divided; one part going to the heirs of the murdered man, another to his own relatives, and in case he becomes a monk of his own free will, a portion shall be reserved for the monastic community which receives him.

This enactment must have enabled most murderers to escape the capital penalty.

In general we can see that the tendency of the Ecloga was to avoid capital punishment so far as possible, and this tendency increased as time went on. Gibbon mentions the fact that under John Comnenus capital punishment was never inflicted (the authority is Nicetas); but this must not be interpreted in the sense that the death penalty was formally abolished, but rather taken as a striking illustration of the tendency of the Byzantine spirit in that direction. We may question whether this tendency was due so much to the growth of feelings of humanity as to ecclesiastical motives, namely the active maintenance of the asylum privileges of Christian sanctuaries, and the doctrine of repentance. The mutilation punishments at least are discordant with our notions of humane legislation. Zachariä von Lingenthal expresses his opinion that the cruelties practised in modern times in the Balkan peninsula are traceable to the effect produced by the practice of the criminal code of the Ecloga throughout the Middle Ages.

Finally it is worth while to observe in the Ecloga a democratic feature, which marks a real advance, in the interests of justice, on the Justinianean code. The Ecloga metes out the same penalties to poor and rich; whereas the older law had constantly ordained different punishments for the same offence, according to the rank and fortune of the offender.

[Zachariä von Lingenthal, op. cit., on which (ed. 3, 1892) the foregoing account has been mainly based. The same jurist’s Jus Græco-Romanum, pars 3, contains the extant laws of the Emperors after Justinian (1857). Mortreuil, Hist. du droit byzantin, 3 vols. 1843-7. W. E. Heimbach, Griechisch-römisches Recht, in Ersch and Gruber’s Enzyklopädie, part 86. The Ecloga was edited by Zachariä von Lingenthal in 1852; there is a more recent edition by Monferratus (1889). — His edition of the Basilica in 6 vols. (1833-70) is the opus magnum of W. E. Heimbach.]

[1 ]Cp. Zachariä, Gr.-Röm. recht, p. 6.

[2 ]Ed. Lagarde in the Abhandlungen der Akad. zu Göttingen, xxviii. 195 sqq.

[3 ]Theophilus however recognised marriages between Romans and Persians as valid.

[4 ]This had been preceded by a similar law of Leo VI., applying to persons who died in captivity.

[5 ]In the old law ἐπίτροπος was the translation of tutor.

[6 ]Op. cit. p. 162-5.