"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]
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 Prokanon, 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." [33]
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 "Sunodikon 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 introduction [34] 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 (Droungarios tes Bigles) 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 OEcumenical 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." [35]
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 Canons. 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 ton hupertimon. Aristenus was Nomophylax, Orphanotrophe and Protecdekas, or chief of the Syndics of the Communes, called Ecdics (Ekdikoi). 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." [36] 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. [37]
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," [38] in three books, which has been published (by Loewenklaw) 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. [39]
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. [40]
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." [41]
In the fourteenth century we find Matthew Blastares writing "An Alphabetical Table" [42] 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 Dromi). 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." [43] 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." [44]
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 proebuere facilem." [45] 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 knows it as "Gratian's Decretum," and with it begins the "collections" of Canon law, if we consider it as a system in present force.