THE ECUMENICAL COUNCILS Preface and Introduction

Edited from a variety of translations (mentioned in the preface) by H. R. Percival

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Page 26

Bury says, "In the troubles of the VII^th 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 Justinian 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 a.d. 740 in the name of himself and his son Constantine), which changed and modified the Roman law, as it had been fixed by Justinian. The Ecloga, [30] 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 Justinian 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 a.d. 879, entitled the Prochiron, 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 outside 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. 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." [31]

I take from Schoell the following description of the "Basilica":

"The Basilica' are a body of Roman law in the Greek language, extracted from the Institutes, the Pandects, the Codes and the Novels of Justinian as well as from the Imperial Constitutions posterior to that prince; also extracts from the interpretations of such jurists as had won a fixed authority in the courts, and the canons of the councils. Here is found together the civil and the ecclesiastical law of the Greeks, these two laws having been in an intimate union by reason of the authority which the Emperors exercised over the Church; on the other hand, in the West there was formed step by step a canon law separate from the civil law, and having a different source." [32]

[30] The "Ecloga" were edited in 1852 by Zacharia, and again in 1889 by Monferratus.

[31] Appendix to Vol. V. of Gibbon's Decline and Fall of the Roman Empire, pp. 525 and 526.

[32] Schoell, ut supra, p. 229. The best edition of the Basilica is by W. E. Heimbach in 6 vols. (1833-70).

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