The internal activities of the emperors of the Isaurian dynasty.

Legislation. — Leo III was not only a gifted leader and energetic defender of his Empire against external enemies, but also a wise and capable legislator. Even in the time of Justinian the Great, in the sixth century, the Latin text of his Code, Digest, and Institutes was little, or not at all, understood in the majority of provinces. In many districts, in the east particularly, old local customs were used in preference to official statutes, as was clearly evidenced by the popularity of the Syrian Lawbook of the fifth century. The Novels (Novellae) issued in Greek dealt only with current legislation. Meanwhile, in the seventh century, as the Empire was gradually losing Syria, Palestine, and Egypt in the east, North Africa in the south, and the northern parts of the Balkan peninsula in the north, it was becoming more and more “Greek” by language. For wide and general use it became necessary to create a lawbook in Greek which would reflect all the changes in living conditions since the time of Justinian the Great.

            Fully realizing the need for such a code, Leo III entrusted the task of compiling it to a commission whose members he chose personally. The efforts of this body resulted in the publication of a code entitled the Ecloga, issued in the name of the “wise and pious emperors, Leo and Constantine.” There is some uncertainty as to the exact date of its publication. Some western scholars refer it to the end of Leo’s reign (739-40),[21] although the Russian Byzantinist, V. G. Vasilievsky is inclined to ascribe it to a date nearer the beginning of Leo’s reign (about the year 726).[22] Recently there has even been some doubt as to whether the Ecloga may be referred to the time of Leo III and Constantine V at all.[23] At present most modern students of the question set the date of publication as March, 726.[24]

            The title of the Ecloga (meaning “selection” or “extract”) is indicative of its sources. The title runs as follows: “An abridged selection of laws, arranged by Leo and Constantine, the wise and pious kings, from the Institutes, Digest, Code, Novels of the Great Justinian, and corrected with a view to greater humanity” (εις το φιλανθρωποτερον), or, as others translate this, “with a view to improvement.”[25] The introduction states definitely that the decrees issued by the preceding emperors have been written in various books and that their meaning, difficult for some, is entirely incomprehensible for others, especially for those who do not live in the “God-guarded” imperial city.[26] The “various books” refer to Greek translations and commentaries of Justinian’s lawbooks which were used in actual practice, frequently replacing the Latin originals. Very few people could understand these Greek translations and commentaries. The profusion of books and the variations and contradictions found in them produced considerable confusion in the civil law of the Byzantine Empire. Leo III saw clearly the existing state of affairs and made it his aim to relieve these conditions. The principles of the Ecloga, laid down in its introduction, are imbued with ideas of justice and righteousness. They maintain that judges must “refrain from all human passions and make decisions of true Justice, developed by clear reasoning; they must not scorn the. needy, or leave unpunished the strong man guilty of offense … They must justly refrain from accepting gifts.” All the officials in judicial service must receive definite salaries from the imperial “pious treasury,” so that “they take nothing from any person who might come under their jurisdiction, in order that the prediction of the Prophet, 'They sold the righteous for silver' (Amos 2:6), should not come true and that we should not be visited by the wrath of God for becoming transgressors of his commandments.”[27]

            The contents of the Ecloga, subdivided into eighteen titles, deal mainly with civil law, and only to a slight extent with criminal law. They treat of marriage, betrothal, dowry, testaments, and intestacies, of wardship, enfranchisement of slaves, witnesses, various liabilities connected with sale, purchase, rent, etc. Only one title contains a chapter of criminal law on punishments.

            The Ecloga differed in many respects from the Justinian Code, and even contradicted it at times by accepting the decisions of customary law and judicial practices which existed parallel with the official legislative works of Justinian. When compared with the latter, the Ecloga represents a considerable step forward in many respects. For instance, its marriage laws included the introduction of higher Christian conceptions. True, the chapter on penalties abounds in punishments which prescribe the maiming of the body, such as cutting off a hand, tongue, or nose, or blinding the convict. But this fact does not permit one to consider the Ecloga a barbarian law, because in most cases these punishments were intended to take the place of the penalty of death. In this sense the Isaurian emperors were right in claiming that their legal accomplishments were “greater in their humanity” than the work of the preceding emperors. Also the Ecloga prescribed equal punishment to the distinguished and the common, to the rich and the poor, while the Justinian law frequently prescribed different penalties without any real basis for the discrimination. The Ecloga is distinguished by an abundance of references to the Scriptures for confirmation of different juridical principles. “The spirit of Roman Law became transformed in the religious atmosphere of Christianity.”[28] Throughout the eighth and ninth centuries, until the time of the accession of the Macedonian dynasty (867), the Ecloga served as a manual for the teaching of law, taking the place of Justinian’s Institutes, and it was more than once subjected to revision; for instance, there was the Private Ecloga (Ecloga privata) and the Private Enlarged Ecloga (Ecloga privata aucta).[29] When, after the accession of Basil the Macedonian, a change took place in favor of Justinian law, the legislative deeds of the Isaurian emperors were officially declared to be nonsense (literally “silly talk”), which contradicted divine dogma and destroyed salutary laws.[30] Still, even the emperors of the Macedonian dynasty borrowed many chapters from the condemned lawbook for their own legislative works, and even in their times the Ecloga was again revised.

            It is interesting to note that the Ecloga of Leo and Constanttne later formed part of the juridical collections of the orthodox church, especially in Russia. It is found in the printed Russian Kormchaia Kniga, i.e., The Book of Rules or Administrative Code, under the title, “The chapters of the wisest Tsar Leo and Constantine, the two faithful emperors.”[31] There are other traces of the influence of the Ecloga upon documents of ancient Slavonic legislation.

            The Ecloga can hardly be considered “an extremely daring innovation,” as was claimed by the Greek Byzantinist, Paparrigopoulo, an ardent admirer of the Isaurian emperors. “At present, when the principles advanced by the compilers of the Ecloga are accepted by the civil legislation of the most progressive nations,” he declared, “the hour has finally come to accord esteem to the genius of the men who, a thousand years ago, fought for the inauguration of doctrines which have triumphed only in our own days.”[32] These are the comments of an enthusiastic Hellenic patriot, but nevertheless the modern world should recognize the high significance of the Ecloga in initiating a new period in the history of the Graeco-Roman or Byzantine law, a period which lasted until the accession of the Macedonian dynasty, when the Justinian law was restored to its former place but with many essential modifications. The Ecloga of Leo III was intended above all to meet the demands of the living realities of the period.

            In connection with the Isaurian dynasty, and especially with the name of Leo III, scholars discuss three other legislative documents: the Rural Code or Farmer’s Law (νομος γεωργικος), the Military Code (νομος στρατιωτικος), and the Rhodian Sea Law (νομος ροδιων ναυτικος). Varying versions of these three documents usually appear in numerous surviving manuscripts after the Ecloga or after other juridical works, without indication of the names of the authors or of the time of first publication. Hence to attribute them to one time or another depends upon internal evidence, an evaluation of their contents and language, and comparison with other similar documents.

            The Rural Code (νομος γεωργικος) has attracted the greatest attention among the three works. The greatest authority on Byzantine law, the German scholar Zachariä von Lingenthal, changed his mind about this. He began by thinking it the work of a private hand and he assigned it to the eighth or ninth century. It was compiled, he thought, partly from the legislation of Justinian and partly from local custom.[33] Later he was inclined to believe that the Rural Code was a product of the legislative activity of the Emperors Leo and Constantine, and that it was published either simultaneously with the Ecloga or soon after its appearance.[34] He agreed with the Russian scholars V. G. Vasilievsky and Th. I. Uspensky who characterized this document as a collection of rural police regulations dealing with common offenses among people engaged in agriculture. It is concerned primarily with various kinds of thefts of lumber, field and orchard fruit, trespasses and oversights of herdsmen, harm done to animals, and harm done by cattle. The Russian scholar B. A. Pančenko, who made a special study of this document, called the Rural Code “a supplementary record to the customary law practiced among the peasants; it is dedicated to that law, so necessary for the peasants, which did not find its expression in legislation.”[35]

            The work is not dated. Some scholars refer it to the epoch of Leo III. But it must be admitted that the problem is far from being definitely solved. According to Pančenko, “the need for such a law might have been felt even in the seventh century; the nature of the lawbook, barbarian and naively empirical, is closer in spirit to the time of the greatest decline of civilization than to the period of the compilation of the Ecloga.”[36] It has not yet been proved that the Rural Code was issued in the eighth century, and it is possible that its publication will be found to have taken place at an earlier period. Vernadsky and Ostrogorsky stated that the Rural Code was “elaborated” under Justinian II, at the end of the seventh century.[37] The last word on the subject was said by the Russian historian E. Lipshitz in 1945. After reconsidering all previous opinions, she was inclined to accept the second half of the eighth century as the most probable date of the Rural Code; in other words she confirmed the old opinion of Zachariä von Lingenthal and Vasilievsky.[38]

            The Rural Code has also attracted the attention of scholars because it contains no reference to the colonate or serfdom which predominated in the later Roman Empire, It does contain, however, indications of various new phenomena: personal peasant property, communal landownership, the abolition of compulsory service, and the introduction of freedom of movement. These are usually connected by scholars with the extensive Slavonic settlements in the Empire, which presumably imported conditions peculiar to their own life, chiefly the commune. The proposition argued in Pančenko’s book that the Rural Code does not refer to the commune is rightly denied in modern literature. Th. I. Uspensky, however, overestimated the importance of this law when he assigned to it the significance of a general measure for the whole Empire and claimed even that it “must serve as a point of departure in the history of the economic development of the East” with regard to the free peasant class and the class of small landowners.[39] This opinion might create the impression that serfdom was generally abolished in the seventh or eighth centuries, which was not really the case.[40] Diehl, who in his History of the Byzantine Empire considered the Rural Code the achievement of Leo III and his son, also went rather too far in stating that it “aimed to restrain the disquieting development of the great domains, to arrest the disappearance of the small free estates, and to insure to the peasants better living conditions.”[41]

            The English scholar W. Ashburner edited, translated, and thoroughly investigated the Rural Code, although he knew no Russian and was therefore unacquainted with the results of the Russian investigations. Ashburner was inclined to agree with Zachariä von Lingenthal that the Farmer’s Law, as it stands, forms part of the legislation of the iconoclasts and that it is to a great extent a compilation of existing customs. But at the same time Ashburner differed from Zachariä von Lingenthal in three important particulars: (1) the origin of the law; (2) the legal position of the agricultural class under the law; and (3) the economic character of the two forms of tenancy to which it refers. The relationship of the Rural Code to the Ecloga, he maintained, is not as close as Zachariä von Lingenthal would make it, and he believed that in the state of society described by the Rural Code the farmer could migrate freely from place to place. He agreed with the German scholar, however, that the “style of command” of this law suggests that it was not a product of private hands but a work of legislative authority.[42]

            The theory of the exceptional influence of the Slavs upon the internal customs of the Byzantine Empire, given weight by the authority of Zachariä von Lingenthal and supported by outstanding Russian scholars in the field of Byzantine history, has come to occupy a firm place in historical literature. In addition to the general accounts of Slavonic settlements in the Empire, these scholars used as the main basis for their theory the fact that the conception of small free peasantry and the commune were foreign to Roman law; hence they must have been introduced into Byzantine life by some new element, in this case the Slavonic. V. N. Zlatarsky recently supported the theory of Slavonic influence on the Rural Code, which he referred to Leo III, and explained it by Leo’s Bulgarian policy. Leo saw that the Slavs under his power were very much tempted to pass over to the Bulgarians and conclude with them a Bulgaro-Slavonic alliance. Therefore he introduced into his law Slavonic manners and customs, hoping thereby to render conditions more attractive to the Slavs.[43] But a closer study of the codes of Theodosius and Justinian, of the Novels of the latter, and, in recent times, of the data of papyrology and the lives of saints, distinctly proves that there existed in the Roman Empire villages populated by free landholders, and that communal landownership was in existence in very early times. No general conclusion, therefore, can be made on the basis of the Rural Code; it may serve only as another evidence of the fact that in the Byzantine Empire the small free peasantry and the free rural commune existed parallel with serfdom. The theory of Slavonic influence must be discarded and attention should be turned to the study of the problem of small free peasantry and the village commune in the period of the early and later Roman Empire on the basis of both new and old materials which have not been sufficiently utilized.[44]

            In recent times there have been several interesting attempts to compare the Rural Code with the texts of the Byzantine papyri,[45] but on the basis of the mere resemblance in phraseology, very striking at times, no definite conclusions should be made with regard to any borrowing. Such a resemblance, declared Mr. Ashburner, only proves what needs no proof; that lawyers of the same epoch use the same phrases.[46]

            The Rural Code is of great interest from the point of view of Slavonic studies. An Old Russian translation of this code forms part of a compilation of the greatest value in contents and historical significance, bearing the title of The Lawbook by Means of Which All Orthodox Princes Have to Regulate All Affairs. The famous Russian canonist, A. S. Pavlov, produced a critical edition of this Russian version of the Rural Code. The latter is found also in the old Serbian juridical books.

            In manuscripts of legal works the Sea Law and the Military Law are frequently appended to the Ecloga or other legal documents. Both laws are undated; but on the basis of certain deductions, which do not, however, finally solve the problem, they are referred by some scholars to the period of the Isaurian dynasty.

            The Maritime Law (νομος ναυτικος, leges navales), or, as it is sometimes called in manuscripts, the Rhodian Sea Law, is a statute regulating commercial navigation. Some scholars suppose that this law was extracted from the second chapter of the fourteenth book of the Digest, which contains an almost exact borrowing from Greek law of the so-called “Rhodian Law of Jettison,” lex Rhodia de jactu, dealing with the division of losses between the owner of the ship and the owners of the cargo in cases where part of the cargo had to be thrown overboard in order to save the vessel. At present the dependence of the Rhodian Law on the Digest, as well as its connection with the Ecloga, which has been emphasized by Zachariä von Lingenthal, is not accepted by scholars.[47]

            The form in which this law has come down to us was compiled from materials of very different epochs and natures; most of it must have been derived from local customs. Ashburner said that Part III of the Sea Law was evidently intended to be a part of Book LIII of the Basilics,[48] and inferred that a second edition of the Sea Law was made either by or under the direction of the men who compiled the Basilics. The texts which exist today represent in substance the second edition.[49]

            In style the Maritime Law is of a rather official character, while in contents it differs greatly from the Digest of Justinian because it apparently reflects some influence of later times. Thus, for example, this law fixes the liability on the part of the shipowner, the lessee merchant, and the passengers for the safety of the ship and the cargo. In case of storm or piracy they were all expected to make good the losses. This provision was intended to serve as a sort of insurance, and, together with other peculiar rulings, resulted from the fact that from the time of Heraclius in the seventh century maritime commerce and navigation in general were greatly endangered by the sea raids of Arabian and Slavic pirates. Piracy became such a habitual phenomenon that the shipowners and merchants could continue their commercial enterprises only by assuming a common risk.

            The time of the compilation of the Sea Law can be determined only approximately. It was probably put together unofficially between 600 and 800 A.D. In any case, there is no reason for attributing a common origin to the three books, the Sea Law, the Rural Code, and the Soldier’s Law.[50]

            In spite of the return of the Macedonian dynasty to the standards of the Justinian law, the Sea Law persisted in actual practice and influenced some of the Byzantine jurists of the tenth, eleventh, and twelfth centuries. This survival indicates that Byzantine trade navigation did not recover after the seventh and eighth centuries. The Italians, who later monopolized the trade of the Mediterranean Sea, had their own sea statutes. With the decline of Byzantine sea commerce the Maritime Law became obsolete, so that there are no references to it in the juridical documents of the thirteenth and fourteenth centuries.[51]

            The Military Law or Soldier’s Law (νομος στρατιωτικος, leges militares) is an extract from the Greek paraphrases of Justinian’s Digest and Code, the Ecloga, and several other sources which were added to the law in later times. It consists mainly of an enumeration of penalties inflicted upon men in military service for such offenses as mutiny, disobedience, flight, adultery. The punishments provided are extremely harsh. If the opinion of scholars that it belongs to the time of the Isaurian dynasty[52] were correct, it would give an excellent indication of the strictness of the military discipline introduced by Leo III. But unfortunately the scanty information does not support a positive statement that the law belongs to this period. In fact, all that has been said on the Rural Code, the Sea Law, and the Military Law must be summed up by stating that not one of these three small codes can be regarded with certainty as the work of the Isaurian emperors.[53]

The themes. — The majority of scholars, beginning with Finlay, refer the reorganization and completion of the provincial theme system which originated in the seventh century, to the eighth century, sometimes to the time of Leo III in particular. Finlay wrote: “A new geographical arrangement into themes … was reorganized by Leo and endured as long as the Byzantine government.”[54] Gelzer was particularly categorical in this regard. “Leo definitely removed the civil officials and transferred the civil power in the provinces into the hands of military representatives.”[55] Th. I. Uspensky wrote: “Only in the time of Leo the Isaurian does an abrupt turn take place in the direction of strengthening the power of the theme strategus at the expense of the civil administration of the province.”[56] But the fact still remains that no information exists on Leo’s achievements in the field of provincial organization. There exists a list of themes with some references to their organization, which belongs to the Arabian geographer of the first half of the ninth century, Ibn-Khurdadhbah (Ibn-Khordadhbeh).[57] Upon comparing his data with the data on the themes of the seventh century, scholars have reached some conclusions with regard to certain changes in the eighth century in the time of the Isaurian dynasty. It appears that in Asia Minor, in addition to the three themes of the seventh century, two new themes were created in the eighth century, probably in the time of Leo III: (1) the Thracesian theme in the western part of Asia Minor, formed from the western districts of the vast theme of the Anatolics and named after the European garrisons from Thrace stationed there, and (2) the theme of the Bucellarians in the eastern part of the vast Opsician theme (Opsikion), which derived its name from the Bucellarians, i.e., some Roman and foreign troops employed by the Empire or by private individuals. Constantine Porphyrogenitus said that the Bucellarians followed the army, supplying it with provisions.[58] Thus toward the beginning of the ninth century Asia Minor had five themes, to which the sources pertaining to this period refer as the “five eastern themes” (for instance, under the year 803).[59] On European territory there were apparently only four provinces by the end of the eighth century: Thrace, Macedonia, Hellas, and Sicily. But if the question of the number of themes in Asia Minor in the early part of the ninth century may be considered settled, the problems of the complete removal of civil authorities and the transfer of their functions to the military governors still remain uncertain. The decisive role of Leo III in the theme organization cannot be proved; it is merely a hypothesis.[60]

            The completion and extension of the system of themes under the Isaurian dynasty was indissolubly connected with the external and internal dangers which threatened the Empire. The formation of the new themes by dividing the immense territories of the earlier themes was dictated by political considerations. By his own experience Leo knew very well how dangerous it was to leave too large a territory in the hands of an all-powerful military governor, who could revolt and lay claim to the imperial title. Thus the external danger required the strengthening of the centralized military power, especially in the provinces menaced by the enemies of the Empire — the Arabs, Slavs, and Bulgarians; and on the other hand, the internal danger from the too-powerful military governors (strategi), whose loose dependence on the central power often resembles vassal relations, made it imperative to reduce the extensive stretches of territory under their rule.

            Desiring to increase and regulate the financial income of the Empire, indispensable for his varied undertakings, Leo III raised the poll tax in Sicily and Calabria by one-third of its original amount; in order to carry out this measure effectively he ordered that a record be kept of the birth of all male children. The chronicler, who is hostile to the iconoclasts, compared this order with the treatment accorded by the Egyptian Pharaoh to the Jews.[61] Near the end of his reign Leo III levied upon all the subjects of the Empire a tax for the repair of the walls of Constantinople which had been destroyed by frequent and violent earthquakes. That this task was completed in his time is evidenced by the fact that many inscriptions on the towers of the inner walls of Constantinople bear the names of Leo and his son and coemperor, Constantine.[62]