large in the criminal law, of which a prominent feature is the
substitution of mutilation of various kinds for the capital penalty.
Death is retained for some crimes, such as murder and high treason;
other offences were punished by amputation (of hand, nose, &c.).
This system (justified by the passage in the New Testament, “If
thine eye offend thee,” &c.), though to modern notions barbaric,
seemed a step in the direction of leniency; and it may be observed
that the tendency to avoid capital punishment increased, and
we are told that in the reign of John Comnenus it was never inflicted.
(The same spirit, it may be noted, is apparent in the
usual, though by no means invariable, practice of Byzantine
emperors to render dethroned rivals or members of a deposed
dynasty innocuous by depriving them of eyesight or forcing them
to take monastic orders, instead of putting them to death.) The
Church, which had its own system of penalties, exercised a great
influence on the actual operation of criminal law, especially through
the privilege of asylum (recognized by Justinian, but with many
reserves and restrictions), which was granted to Christian churches
and is admitted without exceptions in the Ecloga.
(3) The last period of legislative activity under Basil I. and Leo VI. represents a reaction, in a certain measure, against the Ecloga and a return to Justinian. The Ecloga had met practical needs, but the Isaurian and Phrygian emperors had done nothing to revive legal study. To do so was the aim of Basil, and the revival could only be based on Justinianean law books or their Greek representatives. These books were now treated somewhat as Justinian and his lawyers had treated their own predecessors. A handbook of extracts from the Institutes, Digest and Code was issued in 879 (ὁ πρόχειρος νόμος, “the law as it is”), to fulfil somewhat the same function as the Institutes. Then a collection of all the laws of the Empire was prepared by means of two commissions, and completed under Leo VI. It was entitled the Basilika. In many points (in civil, but not in criminal, law) the principles of the Ecloga are set aside in favour of the older jurisprudence. Thus the Justinianean ordinances on the subject of divorce were revived, and there remained henceforward a contradiction between the civil and the canon law.
After this there was no legislation on a grand scale; but there was a great revival of legal study under Constantine IX., who founded a new law-school, and there were many learned specialists who wrote important commentaries, such as John Xiphilin (11th century), Theodore Balsamon (12th century), Harmenopulos (14th century). The civil code of Moldavia (published 1816-17) is a codification of Byzantine law; and modern Greece, although in framing its code it took the Napoleonic for its model, professes theoretically to base its civil law on the edicts of the emperors as contained in the Hexabiblos of Harmenopulos.
Administration.—Three principles underlay the administrative reform of Diocletian: the separation of civil from military functions; the formation of small provincial units; and the scalar structure which deepened on the interposition of the vicar of a diocese and the praetorian prefect between the provincial governor and the emperor. This system lasted unchanged for three and a half centuries. The few unimportant alterations that were made were in harmony with its spirit, until the reign of Justinian, who introduced certain reforms that pointed in a new direction. We find him combining some of the small provinces into large units, undermining the scalar system by doing away with some of the dioceses and vicars, and placing in some cases military and civil authority in the same hands. The chief aim of Diocletian in his general reform had been to secure central control over the provincial governments; the object of Justinian in these particular reforms was to remedy corruption and oppression. These changes, some of which were soon cancelled, would hardly in themselves have led to a radical change; but they prepared the way for an administrative revolution, brought about by stress of external necessities. In the 7th century all the energies of the Empire, girt about by active enemies, were centred on war and defence; everything had to give way to military exigencies; and a new system was gradually introduced which led ultimately to the abolition of the old. The change began in Italy and Africa, at the end of the 6th century, where operations against the Lombards and the Berbers were impeded by the friction between the two co-ordinate military and civil authorities (masters of soldiers, and praetorian prefects). The military governors were made supreme with the title of exarchs, “viceroys”; the civil authority was subordinated to them in case of collision, otherwise remaining unaltered. The change is an index of the dangerous crisis through which these provinces were passing. In the East similar circumstances led to similar results. The Saracen danger hanging imminent over Asia Minor imposed a policy of the same kind. And so before the end of the 7th century we find the Empire divided into six great military provinces, three in Europe and three in Asia: (1) Exarchate of Africa, (2) Exarchate of Italy, (3) Strategia of Thrace, (4) County of Opsikion (= obsequium), including Bithynia, Honorias, Paphlagonia, parts of Hellespontus and Phrygia, (5) Strategia of the Anatolikoi, most of west and central Asia Minor, (6) Strategia of the Armeniakoi, eastern Asia Minor. In addition to these there was a naval circumscription, (7) the Strategia of the Karabisiȧnoi (from κάραβος, a vessel), including the southern coast land of Asia Minor, and the Aegean (see below under Navy).
The lands of the old prefecture of Illyricum were not included in the system, because this part of the Empire was then regarded as a lost position. On the contrary, here military powers were committed to the Prefect of Illyricum, whose actual sphere extended little beyond Thessalonica, which was surrounded by Slavonic tribes.
The Eastern changes, perhaps initiated by Heraclius, but probably due mainly to Constans II., did not interfere with the civil administration, except in so far as its heads were subordinated to the military commanders. But Leo III., who as a great administrative reformer ranks with Augustus and Diocletian, did away with the old system altogether; (1) Reversing Diocletian's principle, he combined military and civil powers in the same hands. The strategos or military commander became also a civil governor; his higher officers (turmarchs) were likewise civil functionaries. (2) The scalar principle disappeared, including both the vicars and the praetorian prefect of the East (some of whose functions were merged in those of the prefect of the city); no authority interposed between the strategoi and the emperor. (3) The new provinces, which were called themes (the name marks their military origin: thĕma = corps), resembled in size the provinces of Augustus, each including several of the Diocletian divisions. This third and last provincial reform has, like its predecessors, its own history. The list of themes in the 11th century is very different from that of the 8th. The changes were in one direction—the reduction of large provinces by cutting off parts to form smaller themes, a repetition of the process which reduced the provinces of Augustus. Hence the themes came to vary greatly in size and importance. Leo himself began the process by breaking up the Anatolic command into two themes (Anatolic and Thracesian). The principle of splitting up was carried out systematically by Leo VI. (who was also responsible for a new ecclesiastical division of the Empire).
The development will be exhibited by a list of the themes in the middle of the 10th century. A. Asia: {(1) Opsikion, (2) Optimaton, (3) Paphlagonia, (4) Bukellarian} = old Opsikion; {(5) Anatolic, (6) Thracesian, (7) Samos (naval), (8) Cappadocia, (9) Seleucia} = old Anatolic; {(10) Armeniac, (11) Colonea, (12) Sebastea, (13) Charsianon, (14) Chaldia, (15) Mesopotamia} = old Armeniac; (16) Cibyrrhaeot, (17) Aegean (= Dodekanesos). B. Europe: (1) Thrace, (2) Macedonia, (3) Strymon, (4) Thessalonica, (5) Hellas, (6) Peloponnesus, (7) Nicopolis, (8) Dyrrhachium, (9) Longibardia, (10) Cephallenia, (11) Cherson.
It is interesting to note that up to Leo VI. the district between Constantinople and the wall of Anastasius formed a separate theme or government, entitled the Wall (τὸ τειχίον) or the Ditch (ἡ τάφρος); Leo VI. united it with the theme of Thrace.
In the central administration, the general principles seem to have remained unchanged; the heads of the great administrative bureaux in Constantinople retain the palatine character which belonged to most of them from the beginning. But there were many changes in these offices, in their nomenclature and the delimitation of their functions. There are great differences between the administrative corps in the 5th, in the 10th and in the 15th centuries. We can hardly be wrong in conjecturing that, along with his provincial reform, Leo III. made a rearrangement of the central bureaux; the abolition of the Praetorian Prefecture of the East entailed, in itself, modifications. But minor changes were continually being made, and we may note the following tendencies: (1) Increase in the munber of ministers directly responsible to the emperor, (a) subordinate offices in the bureaux being raised to the rank
