punishment to the distinguished and the common, to the rich and the poor, while the Justinianian law frequently prescribed different penalties without any real basis for the discrimination. As to its external make-up, the Ecloga is distinguished by an abundance of references to the Scriptures for the confirmation of different juridical principles. "The spirit of Roman Law became transformed in the religious atmostphere of Christianity."26 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 was more than once subjected to revision. We know, for instance, of the Private Ecloga (Ecloga privata), the Private Enlarged Ecloga (Ecloga privata aucta). When a change took place in favor of Justinianian law, after the accession of Basil the Macedonian, the legislative deeds of the Isaurian emperors were officially declared to be nonsense (literally, "silly talk"), which contradicted divine dogma and destroyed salutary laws.27 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 Constantine later formed part of the juridical collections of the orthodox church, especially in Russia. It is found in the printed Russian so-called 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."28 There are other traces of the influence of the Ecloga upon documents of ancient Slavonic legislation.

Naturally, the Ecloga cannot be considered "an extremely daring innovation," as is claimed by the Greek Byzantinist, Paparrigopoulo, an ardent admirer of the Isaurian emperors. According to him, "at present, when the principles advanced by the compilers of the Ecloga are accepted by the civil legislation of the most progres26 Bury, II, 414.

27 Epanagoge. Zach. von Lingenthal, Collectio librorum .

., p. 62.

28 In this book, known in Russia soon after the adoption of Christianity in the tenth century A.D., were laid down the apostolic church rules, the rules of the ecumenical councils, as well as the civil laws of the orthodox Byzantine emperors.

sive nations, 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."29 It is self-evident that these comments should be viewed only as enthusiastic statements of a Hellenic patriot. But we should, however, 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 Justinianian law was restored to its former place. The Ecloga of Leo III was intended to meet the demands of the living realities of that period.

The great majority of scholars also refer three other legislative documents to the time of Leo III. They are: the Rural Code, or the Farmer's Law (vóμos yewрyikós), the Military Code (vóμos oтρаTIWTIKÓS), and the Rhodian Sea-Law (vóμos podíwv vaνTIKós). The varying versions of these three documents come, as a rule, after the Ecloga or after other juridical works in the numerous surviving manuscripts, which give no indication of the names of the authors of the three works, nor of the time of their first publication. Hence, the attribution of these documents to this or the other time depends upon internal evidence, an evaluation of their contents and language, and a comparison with other similar documents.

The Rural Code (vóμos yewpyikós) has attracted the highest attention of the three works.

The greatest authority on Byzantine law, the German scholar, Zachariä von Lingenthal, changed his mind on the subject. He began by thinking it the work of a private hand and assigning it to the eighth or ninth century. It was compiled, he thought, partly from the legislation of Justinian and partly from local custom.30 Later he was inclined to believe that the Rural Code is a product of the legislative activity of the emperors Leo and Constantine, and was published either simultaneously with the Ecloga or soon after its appearance.31

But at the same time Zachariä von Lingenthal, as well as the 29 Paparrigopoulo, Histoire de la civilisation hellénique (Paris, 1878), pp. 205, 209. 30 Zach. von Lingenthal, Historiae Juris Graeco-Romani Delineatio (Heidelbergae, 1839), p. 32.

31 Idem, Geschichte des Griechisch-römischen Rechts (3d ed., Berlin, 1892), p. 250.

Russian scholars, V. G. Vasilievsky and Th. I. Uspensky, characterized this document as a rural police regulation, which deals with common offenses among the agricultural people. And, to be sure, this law is concerned primarily with various kinds of theft of lumber, field and orchard fruit, trespasses and oversights of the herdsmen, harm done to animals, and harm done by cattle. According to the Russian scholar, B. A. Panchenko, who made a special study of this document, "the Rural Code is 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."32

We have already mentioned the fact that this work does not contain data on the time of its composition. Still, on the basis of certain deductions, 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 the same Russian scholar, "the need for such a law might have been felt even in the seventh century; the nature of the lawbook, barbarian and naïvely empirical, is closer in spirit to the time of the greatest decline of civilization than to the period of the compilation of the Ecloga." Of course, even this argument does not settle the problem. In any event it has not yet been proved that the Rural Code was issued in the eighth century, and the problem of determining the exact time of its appearance still remains to be solved. It is quite possible that its publication will be found to have taken place at an earlier period. In the most recent time G. Vernadsky believes that the Rural Code was "elaborated" under Justinian II, at the end of the seventh century.31

The Rural Code also attracted the attention of scholars because it does not contain any reference to the colonate or serfdom which predominated in the later Roman Empire. It does contain, however, as is said by the before-mentioned scholars, indications of something new, namely, personal peasant property, communal landownership, the abolition of compulsory service, and the introduc

82 B. A. Panchenko, Peasant Property in the Byzantine Empire. The Rural Code and Monastic Documents (Sofia, 1903), p. 86 (in Russian).

33 Ibid., p. 30.

34 G. Vernadsky, "Sur les origines de la Loi agraire byzantine," Byzantion, II (1926), 173.

tion of freedom of movement. All these phenomena were usually connected by scholars with the extensive Slavonic settlements in the Empire, which, presumably, imported the conditions peculiar to their own life, chiefly the commune. The proposition, argued in Panchenko's book, that this law lacks references to the commune is denied in modern literature. Th. I. Uspensky, for instance, overestimates the importance of this law, assigning to it the significance of a measure general for the whole Empire, and claims 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.35 But this opinion might lead to the impression that serfdom was generally abolished in the seventh or eighth centuries, which was not really the case.

The most recent editor, translator, and investigator of the Rural Code, the English scholar, W. Ashburner, knowing no Russian and unacquainted, therefore, with the results of the Russian investigations, is inclined to agree with the opinion of Zachariä von Lingenthal that the Farmer's Law, as it stands, forms part of the legislation of the iconoclasts, and, in his opinion, it is equally clear that it is to a great extent a compilation of existing customs. But at the same time Mr. Ashburner differs from Zachariä in three important particulars: (1) as to the origin of the law; (2) as to the legal position of the agricultural class under this law; and (3) as to the economical character of the two forms of tenancy to which it refers. The relationship of the Rural Code to the Ecloga is not so close as Zachariä would make it. Ashburner also differs in maintaining that in the state of society described by the Rural Code the farmer could migrate freely from place to place. But at the same time he agrees with Zarcharia that the "style of command" of this law suggests that it was not a product of private hands, but a work of legislative authority.36

The theory of the exceptional influence of the Slavs upon the internal customs of the Byzantine Empire, sanctified by the authority of Zachariä von Lingenthal and supported by outstanding Rus35 Th. I. Uspensky, History of the Byzantine Empire, I, 28 (in Russian). See also A. Vogt, Basile I-er (Paris, 1908), p. 378.

30 W. Ashburner, "The Farmer's Law," Journal of Hellenic Studies, XXX (1910), 84; XXXII (1912), 68-83.

sian 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 element. 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 generalizing con. clusions can, therefore, be made on the basis of the Rural Code; it may only serve as another evidence of the fact that in the Byzantine Empire, parallel with serfdom, there existed also the small free peasantry and the free rural commune.

I think that the judgment of Ch. Diehl, who, in his recent history of the Byzantine Empire, considers the Rural Code as an achievement of Leo III and his son, goes 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."37

In view of all that has been said, it seems to me that at present we must completely do away with the theory of Slavonic influence upon the formation of new social structure in the Empire, and turn most of our attention 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 analyzed from this point of view.38

37 Ch. Diehl, Histoire de l'Empire Byzantin (Paris, 1920), p. 69; English translation by G. B. Ives (Princeton, 1925), p. 56.

38 See the very interesting chapters on this subject in two Russian books which are practically unknown to European and American scholars: C. N. Uspensky, "The SoCalled 'Rural Code,'" in his Outlines in the History of Byzantium (Moscow, 1917), pp. 162-82, and A. P. Rudakov, Outlines in the Byzantine Culture Based on Data of the Greek Hagiography (Moscow, 1917), pp. 176-98. See also G. Vernadsky, "Notes on the Peasant Community in Byzantium," Ucheniya Zapiski osnovanniya Russkoi Uchebnoy Kollegiey v Prage (Praha, 1924), I, Part II, 81-97 (in Russian). The author of this article was not acquainted with the two before-mentioned works.