From the outline here presented of the printed editions of the Canons of the Councils, it will be seen that, within the limits of their practical applicability, they are reverenced as the source of the operative law in the Russian orthodox church, and therefore for her it is only the authoritative Byzantine commentaries which have any particular importance. There are works upon these by V. Demidoff, "The character and significance of the commentaries upon the Canonical Codex of the Greek Church--of Aristenus, Zonaras, and Balsamon," in the "Orthodox Review," vol. ii. of 1888, and of Professor V. A. Narbekoff, of Kazan, "The commentaries of Balsamon upon the Nomocanon of Photius," Kazan, 1889, and of Professor M. E. Krasnozhen, of Jurieff (Dorpat) "The Commentators of the Canonical Codex of the Eastern Church: Aristenus, Zonaras, and Balsamon." Moscow, 1892.
No separate scientific commentaries upon all the canons of the councils exist in Russian literature, but they are described, and explained in courses of Ecclesiastical law (of the Archimandrite John [who, when he died, was Bishop of Smolensk] of Professors N. S. Suvoroff, T. S. Berdnikoff, N. A. Lashkareff, M. A. Ostroümoff) in our works upon the history of the Ecumenical Councils (by Bishop John, and Professor Alexis Petrovich Lebedeff), and in monographs dealing with Canon Law and Church History. As far as a critical edition of the original text of the canons is concerned, there is a learned and useful article (upon a book by Fr. Lauchert, Die Kanones usw., Freiberg i. Br. und Leipsig, 1896), by Vasili Vasilievich Bolotoff, Professor of Ecclesiastical History in the St. Petersburgh Ecclesiastical Academy in the "Christian Reading," vol. iv. for 1896, pp. 178-195.
[21] Translated into English by W. J. Birkbeck, Esq., F.S.A.
[22] Steering-Book. W.J.B.
[23] Accordingly some bibliographers correctly reckon this as two editions, of which that of 1653 in folio consists of 37 + 1 + 60 + 1 + 16 + 679 pages, and was reprinted by the "Old Ritualists" (Rascolniki*), in 1785 at Warsaw. *Rascolniki, lit. Schismatics; i.e., the Russian Dissenting sects which in the 17th century left the Church rather than accept the service-books as corrected by the Patriarch Nicon.--W.J.B.
[24] This edition was published at Moscow in folio in two parts and volumes, in the 1st there are 2 unnumbered + 38 + 5 - 60 + 300 + 39 numbered pages; in the 2d 1 + 2 + 235 + 16 + 37 pages.
Excursus on the History of the Roman Law and Its Relation to the Canon Law.
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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 the 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. [25]
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. [26]
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 (Nearai Diataxeis). 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. Schoell 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." [27]
"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 (Nomokanon ), [28] a word which from that time has served to designate any collection of this sort." [29]
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.