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xxixExcursus on the History of the Roman Law and Its Relation to the Canon Law.


The foregoing bibliographical outline would be entirely incomplete did I not give the reader at least a sketch of how those canons adopted by the various councils gradually won admission to the law-code of the Empire, and how that code itself came into being.  For those wishing to study the matter in detail I would name as the most recent authorities upon the Roman Law, Mr. Muirhead, who has published with additions and notes his article on the subject in the “Encyclopædia Britannica,” and Mr. Bury’s new edition of Gibbon’s Rome just being issued with most learned notes.

But neither of these writers has put the matter exactly as I desire for this purpose, and I have therefore been forced to seek elsewhere the information I now lay before the reader.

The study of Jurisprudence did not form a separate department among the ancient Greeks, but among the Romans it was quite otherwise, and a very elaborate system was developed, so elaborate as to demand the care of a special class of men, who devoted themselves to this business alone and handed down to their successors a constantly increasing mass of legal matter.

When Greece fell under the Roman yoke the laws of the victor were imposed upon the vanquished, but even then the Greeks did not take to legal studies.  In fact not until the seat of the Empire was removed to Constantinople did the East become a centre of jurisprudence or the residence of the chief legal experts.  In the whole period before the fourth century of our era we know of but one barrister who wrote in Greek, and he came from the West, Herennius Modestinus.  He was a disciple of Ulpian and preceptor to the Emperor Maximian the Younger.

From the time of Hadrian to that of Alexander Severus the influence of the legal schools of Rome had been paramount.  The Emperors consulted them and asked them to decide difficult points.  But after the death of Alexander this custom fell into entire disuse, and the Emperors themselves decided the matters formerly entrusted to the lawyers.  After this time the Imperial Constitutions became the chief sources of Roman law.  It is only in the time of Constantine the Great that we find once again the lawyers rising into prominence and a flourishing school at Beyroot in Syria.  It was at this time that the Imperial Constitutions or Edicts were first collected, for until then they existed only in detached documents.  This collection was made by two lawyers, Gregory or Gregorian, and Hermogenes.  Gregory’s collection contains the laws set forth from the time of Hadrian to Constantine, and Hermogenes wrote a supplement.  Although this was but a private enterprise, yet it was cited in the courts of law, just as Lord Lyndwood’s Provinciale is with us to-day.

It is interesting to note that it was about this same time that the first attempt was made to collect the ecclesiastical canons, and so the Civil Law and the Canon Law (as we know them in after times) had their rise about the same period.

The law of the Empire was not, however, to be left to private and unofficial action, but by the care of Theodosius the Younger its first official collection was made.  This prince directed eight men learned in the law to gather into one body of laws all the Imperial Constitutions published since the last included in the collections of Gregory and Hermogenes.  This is the “Theodosian Code,” and contains the laws set forth by Constantine and his successors.  It was promulgated in 438 in the East, and received by the then Emperor of the West, Valentinian III.  To this were subsequently added such laws as each set forth, under the title of “New Constitutions.”

The Emperor Justinian determined still further to simplify the attaining of judicial decisions.  It is true that the making of the legal collections referred to had added greatly to the ease of determining the law in any given case, but there was a source of great confusion in the endless number of legal decisions which by custom had acquired xxxthe force of law, and which were by no means always consistent between themselves; these were the famous responsa jurisperitorum.  To clear up this difficulty was no small task, but the Emperor went about it in the most determined fashion and appointed a commission, consisting of Tribonian and ten other experts, to make a new collection of all the imperial constitutions from Hadrian to his own day.  This is the famous Justinian Code, which was promulgated in 529, and abrogated all previous collections.2525    It was written in Latin but, says Bury (Appendix to Vol. V. of Gibbon’s Rome, p. 525), “was also immediately after its publication in Latin, issued (perhaps incompletely) in a Greek form (cf. Zacharia Von Lingenthal, Gr. Röm. Recht, p. 6).  Most of the later Novels are Greek, and Novel vij. [15, ed. Zach.] expressly recognizes the necessity of using ‘the common Greek tongue.’”

This, however, was not sufficient to remove the difficulty, and Tribonian next, together with sixteen lawyers, spent three years in making extracts from the great mass of decisions of the ancient jurists, filling as they did nearly two thousand volumes.  These they digested and did their best to clear away the contradictions.  When the work was finished it appeared to the world as the “Pandects,” because it was intended to contain all there was to be said upon the subject.  It is also known as the “Digest.”  This work was set forth in 533 and from that time such of the former decisions as were not incorporated ceased to have any force.

It must however be remembered that, while this was the case, all the decisions contained in the Pandects did not obtain the force of law.  The Pandects are not a code of laws, but a system of public jurisprudence composed by public authority.  To the Pandects were added by the Emperor two ordinances, the first to forbid any copyist to write them in an abbreviated form; and the second forbidding commentators to treat them in anything but their literal sense.

While this work was in progress some points were so complicated and obscure that the Emperor had to be appealed to, and his writings in these particulars are the origin of the “Fifty Decisions.”

At the same time was prepared the “Institutes,” containing the elements of the whole Roman law.2626    The Pandects or Digest was translated into Greek by Dorotheus, and Theophilus prepared a Greek paraphrase of the Institutes.

Later, new laws having been made, the Code had to be revised; the former edition was abrogated in 534, and a new one set forth with the title “Codex repetitæ prælectionis.”

The last of Justinian’s labours in the field of jurisprudence (if indeed they were not collected after his death) are his “Novels,” a series of imperial constitutions issued between 535 and 559 (Νεαραὶ Διατάξεις).  There are one hundred and sixty-eight of these Novels, but the ancient glosses only know ninety-seven, and the rest have been added since, as they have been found.

Such is the origin of the Corpus Juris Civilis, and its history needed to be set forth in this place on account of its close connection with the Corpus Juris Canonici.  In the foregoing I have followed M. Schœll in his admirable Histoire de la Littérature Grecque Profane, to which I am also chiefly indebted for the following notes upon the jurists of the sixth and ensuing centuries.

A work which is often looked upon as the origin of the Canon Law was composed by a lawyer of Antioch, somewhere near the middle of the sixth century.  This jurist was John of Antioch, surnamed Scholasticus.  He was representative or apocrisiarius of the Church of Antioch at Constantinople, and afterward was made Patriarch of that see, over which he ruled from 564 until his death in 578.  While still a simple priest at Antioch he made his Collection of the Canons of the Councils.

“He was not the first who conceived the idea of such a work.  Some writers, resting upon a passage in Socrates, have been of opinion that this honour belonged to Sabinus, bishop of Heraclea, in Thrace, at the beginning of the fifth century; but Socrates is not speaking of a collection of canons at all, but of the synodal acts, of the letters written by or addressed to the synods.  If, however, Sabinus did not make a collection of canons, it is certain nevertheless that before John of Antioch there existed one, for he himself cites it many times, although he does not name the authors.”2727    Schœll, Hist. Litt. Grec., Tome vii., Lib. vi., chap. xcvij., p. 226.

xxxi“In gathering together thus the canons of the councils John of Antioch did not form a complete body of ecclesiastical law.  By his Novel CXLI., Justinian had indeed given to the canons of the Church the force of law, but he himself published a great number of constitutions upon Church matters.  Now it was necessary to harmonize these constitutions and canons, and to accomplish this feat was the object of a second work undertaken by John of Antioch, to which he gave the title of Nomocanon (Νομοκάνων ),2828    The two collections of John are published with a translation in the Bibliotheca Juris Canonici Veteris of Voellus and Justellus, Vol. II. a word which from that time has served to designate any collection of this sort.”2929    Ibid ut supra, p. 227.

Bury says, “In the troubles of the VIIth 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,3030    The “Ecloga” were edited in 1852 by Zacharia, and again in 1889 by Monferratus. 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.”3131    Appendix to Vol. V. of Gibbon’s Decline and Fall of the Roman Empire, pp. 525 and 526.

I take from Schœll 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 Imxxxiiperial 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.”3232    Schœll, ut supra, p. 229.  The best edition of the Basilica is by W. E. Heimbach in 6 vols. (1833–70).

Such, then, were the “Basilica,” but what is most singular is that this collection was not given the force of law, neither by Leo VI. nor by Constantine VI., although it was prepared at their order, under their authority, and was written in the language which was spoken by their subjects.  The Justinian code of law, although in Latin, still continued to be the only authority in the entire East.  An anonymous writer prepared an Epitome of the Basilica, digested into Alphabetical order, and beginning with “Of the Orthodox faith of Christians.”

In 883 Photius published a “Syntagma canonum” and a “Nomocanon” with the title Προκανὼν, because it was placed before the canons.  This last work at the command of Constantine VI. was revised and soon took the place of the Nomocanon of John of Antioch, over which work it had the advantage of being more recent and of being digested in better order.  In citing the canons, only the titles are given; but the text of the civil laws appears in full.  “As in the Eastern Church the influence of the imperial authority increased at the expense of that of the councils, and as these princes made ecclesiastical affairs a principal part of their government, it came to pass that the Nomocanon of Photius became of more frequent and more necessary use than his Syntagma, [which contained the actual text of the canons of the councils down to 880].  Many commentators busied themselves with it, while the collection of the councils was neglected.  Thus it has happened that the Nomocanon has become the true foundation of the ecclesiastical law of the East.”3333    Schœll, ut ante, p. 238.

But while this is true, yet there were not lacking commentators upon the Canon law, and of the three chiefest of these some notice must be taken in this place.  As I have already pointed out it is to Bishop Beveridge that we owe the publication not only of Photius’s Collection of Canons which are found in his “Συνοδικὸν sive Pandectæ,” but also of the scholia of all three of these great commentators, Zonaras, Aristenus, and Balsamon, and from his most learned Prolegomena to the same work I have chiefly drawn the following facts, referring the curious reader to the introduction3434    Beveridge, Συνοδικὸν sive Pandectæ, Tom. I. of the original ed.  Reprinted in Lib. Anglo. Cath. Theol., appendix to Vol. XII. of Beveridge’s Works, pp. xxi.–xxxix. itself for further particulars.

John Zonaras was probably the same person who wrote the Byzantine History which bears his name.  He flourished under Alexis Comnenus, and enjoyed the high office of Grand Drungarius Viglæ (Δρουγγαριος τῆς Βίγλης) and Chief of the Clerks.  After some years of secular life he retired to a monastery and devoted himself to literary pursuits.  While here, at the command of his superiors, and moved by the persuasion of his friends, he wrote that great book which has made his fame, which he entitled “An Exposition of the Sacred and Divine Canons, as well those of the holy and venerable Apostles, as also those of the sacred Œcumenical Synods, and those of the local or particular councils, and those of the rest of the Holy Fathers; by the labour of John Zonaras the monk, who was formerly Grand Drungarius Viglæ and Chief of the Clerks.”3535    ’Εξήγησις τῶν ἱερῶν καὶ θείων κανόνων τῶν τε ἁγίων καὶ σεπτῶν ’Αποστάλων, κ.τ.λ.

One of the greatest peculiarities of this work, and one which distinguishes it very markedly from the later work of Balsamon upon the same subject, is that Zonaras confines himself strictly to the canon law and rarely makes any references to the civil law whatever; and in such canons as bear no relation to the civil law Balsamon often adopts Zonaras’s notes without change or addition.

These commentaries were first brought to light by John Quintin, a professor of canon law at Paris, who published a Latin translation of the scholia upon the Apostolic xxxiiiCanons.  This was in 1558.  In 1618 Antonius Salmatia edited his commentaries on the canons of the Councils done into Latin.  To this Latin version the Paris press added the Greek text from the ms. codex in the Royal Library and printed it in 1618.  In 1622 the same press issued his commentaries upon the Epistles of the Holy Fathers, together with those of St. Gregory Thaumaturgus, Macarius of Egypt, and Basil.  But Beveridge collected them in his Oxford Edition for the first time into one work; preparing a somewhat critical text by collation with some manuscripts he found at home.

The second of these great Greek scholiasts is Alexis Aristenus.  As Beveridge points out, he must have flourished before or at the same time as Balsamon, for this latter speaks of him in high terms of commendation in his scholion on the Sixth of the Apostolic Canons, describing him as τον ὑπέρτιμον.  Aristenus was Nomophylax, Orphanotrophe and Protecdekas, or chief of the Syndics of the Communes, called Ecdics (῎Εκδικοι).  He wrote the excellent series of notes upon the Epitomes of the Canons which are given the reader in Beveridge’s Pradects.  Schoell says that it is an error to attribute to him the “Extract of the Ancient Ecclesiastical Laws,” “which is none of his.”3636    Schœll, Hist. Lib. Grec., Tom. VII., p. 241.  Aristenus was Grand Economus of the Church of Constantinople and a man of great distinction; and his opinion was sought after and his decision followed even when in opposition to one of the Patriarchs, viz.:  Nicephorus of Jerusalem.

Beveridge was the first to print Aristenus’s Scholia, and he did so from four mss., in England, for a description of which I refer the reader to the bishop’s prolegomena.3737    Beveridge, Pandectæ.  Prol. § XXX.

Theodore Balsamon is the last of the three great Greek scholiasts.  He flourished in the time of the Emperor Isaac Angelus and bore the title of Patriarch of Antioch, although at that time the city was in the hands of the Latins and had been so since 1100.  He was looked upon as the greatest jurist of his times both in ecclesiastical and civil matters.  Somewhere about the year 1150, he wrote by the order of Manuel Comnenus a series of “Scholia upon the Nomocanon of Photius,” and another set styled “Scholia upon the Canons of the Apostles, of the Councils and of the Fathers of the Church;” he also prepared a “Collection of [imperial] Constitutions upon ecclesiastical matters,”3838    Τῶν ἐκκλησιαστικῶν διάταξεων Συλλογὴ. in three books, which has been published (by Lœwenklaw) at Frankfort, 1595, under the title “Paratitles.”  There remains also a great number of his opinions on cases presented to him, notably his “answers to sixty-four canonical questions by Mark, Patriarch of Alexandria.”

These most learned writings were unknown and forgotten, at least in the West, until they were set forth in a Latin translation during the time the Council of Trent was sitting, in 1561, and not till 1620 did the Greek text appear in the Paris edition of that date.  But this text was imperfect and corrupt, and Beveridge produced a pure text from an Oxford ms., with which he compared several others.  Moreover in his Pandects he amended the Latin text as well in numberless particulars.  For further, particulars of the bibliography of the matter see Beveridge.3939    Beveridge, Pandects, Prol. § XIX.–XXII.

It may not be amiss to add that abundant proof of the high esteem in which Balsamon was held is found in contemporary authors, and no words can give an exaggerated idea of the weight of his opinion on all legal matters, religious and profane; his works were undertaken at the command of the Emperor and of the Patriarch, and were received with an unmixed admiration.4040    Ibid., Prol. § XVI.–XIX.

In the thirteenth century a certain Chumnus who had been Nomophylax and was afterwards elevated to the Archiepiscopal chair of Thessalonica wrote a little book on the “Degrees of Relationship.”4141    Found in Leunclavius, Jur. Grec. Rom., Vol. ii.

In the fourteenth century we find Matthew Blastares writing “An Alphabetical Table”4242    Σύνταγμα κατὰ Στοιχεῶν, found in Beveridge’s Synodicon, but (says Schœll) “in a manner very little correct.” of the contents of the canons of the councils, and of the laws of the Emperors.

And in the same century we find Constantine Harmenopulus, who was born in 1320.  He was, when thirty years of age, a member of the first court of civil justice (Judex xxxivDromi).  Subsequently he was appointed Counsellor of the Emperor, John Cantacuzene, and finally Sebastos and Curopalatos under John Paleologus.  In the year 1345 he published a “Manual of Jurisprudence.”4343    Πρόχειρον τῶν νόμων.  Of this there have been many editions since the first, which was that of Paris, 1540, edited by Snallenberg, without any Latin translation and without notes.  The first Latin version was published at Cologne in 1547, a second at Lyons in 1556, and a third at Lausanne in 1580.  At last in 1587, at Geneva, there appeared an edition in Greek and Latin.  This work is of great value to the student of Roman law as he completes the work of the Emperor Basil by adding the imperial constitutions since that time.  But our chief concern with him is as the author of an “Epitome of the Divine and Sacred Canons.”4444    ᾽Επιτομὴ τῶν θείῶν καὶ ἰερῶν κανόνων.  This work is found with a Latin version in the Collection of Lœwenklaw.

Constantine Harmenopulus was the last Greek jurist, and then Constantinople fell, to the everlasting disgrace of a divided Christendom, into the hands of the Infidel, and the law of the false Prophet supplanted the Roman Law, the Code of Civilization and Christianity.

I pass now to the history of the growth of the canon law in the West.  No one reading even cursorily the canons contained in the present volume can fail to notice that, with the exception of those of the African code, they are primarily intended for the government of the East and of persons more immediately under the shadow of the imperial city.  In fact in the canons of the Council in Trullo and in those of the Seventh Synod there are places which not even covertly are attacks, or at least reflections, upon the Western customs of the time.  And it does not seem to be an unjust view of the matter to detect in the Council of Chalcedon and its canon on the position of the See of Rome, a beginning of that unhappy spirit which found its full expression in that most lamentable breaking off of communion between East and West.

While, then, as I have pointed out, in the East the Canon Law was developed and digested side by side and in consonance with the civil law, in the West the state of things was wholly different, and while in secular matters the secular power was supposed to be supreme, there grew up a great body of Ecclesiastical Law, often at variance with the secular decrees upon the subject.  To trace this, step by step, is no part of my duty in this excursus, and I shall only give so brief an outline that the reader may be able to understand the references in the notes which accompany the Canons in the text.

Somewhere about the year 500 Dionysius Exiguus, who was Abbot of a Monastery in Rome, translated a collection of Greek Canons into Latin for Bishop Stephen of Salona.  At the head of these he placed fifty of what we now know as the “Canons of the Apostles,” but it must not be supposed that he was convinced of their Apostolic origin, for in the Preface to his translation he expressly styles them “Canons which are said to be by the Apostles,” and adds “quibus plurimi consensum non prœbuere facilem.”4545    Hefele points out that Dr. von Drey’s contention that “plurimi” refers to the Greeks cannot be sustained if it is pushed so far as to exclude from the West an acquaintance with these canons in their Greek form, for, as he well points out, Greek was a perfectly well understood language at this time in the West, especially in Italy, where it was largely spoken.  (A Hist. Christ. Councils, Vol. I.  Appendix, p. 449.)  To these he added the canons of Chalcedon with those that council had accepted, viz., those of Sardica, and a large number passed by African Synods, and lastly the Papal Decretals from Siricius to Anastasius II.

The next collection is that of St. Isidore of Seville, or which is supposed to have been made by him, early in the seventh century.

About the middle of the ninth century there appeared a collection bearing the name of Isidore Mercator, and containing the “false decretals” which have been so fruitful a theme of controversial writing.  This collection was made somewhere about the year 850, and possibly at Mayence.  Many writers in treating of these decretals, which are undoubtedly spurious, seem to forget that they must have expressed the prevailing opinions of the day in which they were forged, of what those early Popes would have been likely to have said, and that therefore even forgeries as they certainly are, they have a great historical value which no sound scholar can properly neglect.

After the collection of St. Isidore we have no great collection till that of Gratian in 1151.  Gratian was a Benedictine monk, and he styled his work “A Reconciling of contradictory canons” (Concordantia discordantium Canonum), which well sets forth what his chief object in view was, but his work had a great future before it, and all the world xxxvknows it as “Gratian’s Decretum,” and with it begins the “collections” of Canon law, if we consider it as a system in present force.

“This great work is divided into three parts.  The first part, in 101 ‘Distinctions,’ treats of ecclesiastical law, its origin, principles, and authority, and then of the different ranks and duties of the clergy.  The second part, in thirty-six ‘Causes,’ treats of ecclesiastical courts and their forms of procedure.  The third part, usually called ‘De Consecratione,’ treats of things and rites employed in the service of religion.  From its first appearance the Decretum obtained a wide popularity, but it was soon discovered that it contained numerous errors, which were corrected under the directions of successive Popes down to Gregory XIII.  Nor, although every subsequent generation has resorted to its pages, is the Decretum an authority to this day—that is, whatever canons or maxims of law are found in it possess only that degree of legality which they would possess if they existed separately; their being in the Decretum gives them no binding force.  In the century after Gratian, several supplementary collections of Decretals appeared.  These, with many of his own, were collected by the orders of Gregory IX., who employed in the work the extraordinary learning and acumen of St. Raymond of Pennafort, into five books, known as the Decretals of Gregory IX.  These are in the fullest sense authoritative, having been deliberately ratified and published by that Pope (1234).  The Sext, or sixth book of the Decretals, was added by Boniface VIII. (1298).  The Clementines are named after Clement V., who compiled them out of the canons of the Council of Vienne (1316) and some of his own constitutions.  The Extravagantes of John XXII., who succeeded Clement V., and the Extravagantes Communes, containing the decretals of twenty-five Popes, ending with Sixtus IV. (1484), complete the list.  Of these five collections—namely the Decretals, the Sext, the Clementines, the Extravagants of John XXII. and the Extravagants Common—the ‘Corpus Juris Ecclesiastici’ of the West is made up.”4646    Addis and Arnold, A Catholic Dictionary, sub voce Canon Law.

Into this body of canon law of course many of the canons we shall have to treat of in the following pages have been incorporated and so far as possible I shall give the reader a reference which will help his research in this particular.

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