18 /. BEFORE THE NORMAN CONQUEST down upon an exhausted and depopulated land. Those four- teen years are critical in legal history ; they suffer Justinian's books to obtain a lodgment in the West. The occidental world has paid heavily for Code and Digest in the destruc- tion of the Gothic kingdom, in the temporal power of the papacy, and in an Italy never united until our own day; but perhaps the price was not too high. Be that as it may, the coincidence is memorable. The Roman empire centred in New Rome has just strength enough to hand back to Old Rome the guardianship of her heathen jurisprudence, now "enucleated" (as Justinian says) in a small compass, and then loses for ever the power of legislating for the West. True that there is the dwindling exarchate in Italy ; true that the year 800 is still far off ; true that one of Justinian's suc- cessors, Constantine IV, will pay Rome a twelve daj's' visit (663) and rob it of ornaments that Vandals have spared;^ but with what we must call Graeco-Roman jurisprudence, with the Ecloga of Leo the Isaurian and the Basilica of Leo the Wise, the West, if we except some districts of southern Italy, ^ has no concern. Two halves of the world were drift- ing apart, were becoming ignorant of each other's language, intolerant of each other's theology. He who was to be the true lord of Rome, if he loathed the Lombard, loved not the emperor. Justinian had taught Pope Vigilius, the Vigil- ius of the pragmatic sanction, that in the Byzantine system the church must be a department of the state. ^ The bishop of Rome did not mean to be the head of a department. During some centuries Pope Gregory the Great (590-604) is one of the very few westerns whose use of the Digest can be proved. ^ He sent Augustin to England. Then " in Au- gustin's day," about the year 600, iEthelbert of Kent set in writing the dooms of his folk " in Roman fashion." ^ Not
- Gregorovius, History of Rome (transl. Hamilton), ii. 153 IF.; Oman,
Dark Ages, 237, 245.
- For Byzantine law in southern Italy, see Conrat, op. cit. i. 49.
- Hodgkin, Italy and her Invaders, iv. 571 ff.: "The Sorrows of
Vigilius."
- Conrat, op. cit. i. 8.
- Liebermann, Gesetze der Angelsachsen, p. 3. The first instalment of
Dr. Liebermann's great work comes to our hands as these pages go through the press. Bede, Hist. Ecci. lib. 2, c. 5 (ed. Plummer, i. 90):
