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The Basilica.

A Ninth Century Roman Law Code Which Became the First Civil Code of Modern
Greece a Thousand Years Later
Author(s): Charles P. Sherman
Source: University of Pennsylvania Law Review and American Law Register, Vol. 66, No. 7/8 (
Jun., 1918), pp. 363-367
Published by: The University of Pennsylvania Law Review
Stable URL: http://www.jstor.org/stable/3314161
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THE BASILICA-A NINTH CENTURY ROMAN LAW
CODE WHICH BECAME THE FIRST CIVIL CODE
OF MODERN GREECE A THOUSAND YEARS
LATER.
The modernkingdomof Greecereceivedits birthfromthe
GreekWar of Independence againstTurkey. When thesenine-
teenthcenturyGreeksin I821 tookup armsagainsttheirtyran-
nical and oppressiveMohammedanmasters,theyveryfittingly
signalizedtheir freedomby definitely adoptingthe great code
of theirByzantineforefathers to be theirown law.'
And forthirteenyearsthisgreatEasternRoman Imperial
Code, the Basilica, was clothedwithstatutoryforceamong tlle
Greekrevolutionists, notonlyduringtheirlongwar forindepend-
ence,butalso fortwo yearsaftermodernGreecefinallyachieved
her freedomfromthe Turkishyoke.2 Then the Basilica gave
way to the presentCivil Code of Greece,namely,the Hexa-
biblos.3
But this change did not interrupt a.t all the influenceof
Romanlaw codes in modernGreece:forthissamne Hexabiblos-
originallypublishedin the fourteenth centuryand beingthe last
code of the old Roman Empire-was, beforeits modernGreeK
promulgation in I835, thoroughly revisedand expandedin con-
nectionwith the more voluminousBasilica.4 Hence it is no
exaggerationto say that the essenceof nmodern Greekprivate
law is the Basilica, for the presentCivil Code of Greece is a
doubleabridgment of theRomanImperialninthcenturyBasilica
-the firstsynopsisor abstractbeingmade fivehundredyears
' This action was in harmonywithexistingcopditionsas to law among
the conquered Greeks. For, after the Turks took Constantinopleand
destroyedthe Eastern Roman Empirein 1453, theyallowed (and still allow
today) their Greek subjects to be governedas to personal law and status
by the Greekpatriarchof Constantinople, in whose ecclesiasticalcourtswas
(and is still) applied the post-Justinian law of the Roman Empire as
receivedintothe canon law of the orthodoxGreekchurch:Sherman,Roman
ILaws in the ModernMWorld, Vol. 1, Secs. I89, 194.
'Sherman, Id., Sec. I94.
'Id.

(363)

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364 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

later,in the fourteenth century,5 and the secondone thousand


yearslater,in thenineteenth century.6
What sort of a codification was this old Eastern Roman
code, the vigorof wlhich has alreadyspannedten centuriesand
still endurestoday among the modernGreeks? This question
will be answeredby a briefhistoryof theBasilica,whichwill be
followedby translations of illustrative
excerptstakenfromthis
greatestof post-Justinian Romanlegislativemonuments.
A fewyearsbeforethedeathof AlfredtheGreatin England
therewas promulgated at Constantinople aboutA. D. 892 by the
EasternRoman EmperorLeo VI a long-heralded Greekabridg-
mentof Justinian's sixthcentury celebratedCorpus JUIns.7 Leo's
legislation,inspiredby his imperialfatherBasil the Macedonia,
is now bestknownas theBasilica,a titlederivedfromtheGreek
Ta' ,8atXtca (the "Imperial" laws).8
Five hundredyears laterthe medievalThessalonianjudge
Harmenopulos, in his own Hexabiblos,thusaccuratelydescribes
the Basilica: "FinallyLeo the Wise, mostcelebratedEmperor,
united(Justinian's)Digest,Code, and mostof theInstitutes into
one work,and, arrangingthis compilationinto sixtybooks,he
publishedthe so-calledHexacontabiblos,whichhe dividedinto
six volumes." The reasonsfor Leo's codification were as fol-
lows: The changein theofficial languageof tlheRoman Empire
fromLatinto Greek,9 and thegrowthof newlaw sinceJustinian's
time,whichhad made it necessaryto revise the Justinianean
thenfourhundredyearsold.
codification,
But so scrupulously carefulwas Leo to respectthe earlier
codification(whichis the sourceof the Basilica), thathe never

Sherman,Roman Law in the ModernWorld,Vol. I, Sec. 182.


Sherman,Id., Sec. 194.
The EmperorJustiniandid not call his grand codification by the title
of CorpusJuris; thissynthetic appellationcame intouse late in the sixteenth
century, beingfirstemployedbythecelebratedFrenchjurist,Denis Godefroy:
Sherman,Roman Law in the ModernWorld. Vol. I, Sec. 135.
'To derive "Basilica" fromthe name of the EmperorBasil. although
plausible, is not correct: Sherman,Id. The Greek PaLOLK6K means
literallyroyal (the nearest approximationin the Greek language to the
Latin "imperialis").
'See Sherman,Roman Law in the Modern World,Vol. T, Sec. I67.

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THE BASILICA-A NINTH CENTURY ROMANLAW CODE 365

promulgatedthe,Basilicaas actuallysuperseding
Justinian's
grand
work. Nevertheless, becausethe Basilica werewrittenin Greek
and were an adaptationof Justinian'slaw to the needs of the
ninth centuryRoman Empire, the Justinianeancodification,
althoughnever actuallyabrogatedby Leo or any subsequent
emperordownto theend of theempirein A. D. 1453, gradually
becamesupplanted,and by theend of thetenthcenturyfellinto
disuse.'
Leo's Basilica wereespeciallyintendedforthe use of prac-
tisinglawyers. It is not knownwho were the compilersof this
mostexcellentand famousByzantinecodification.The Basilica
have beentranslatedintoLatin by thelearnedHeimbachduring
the years I833-I870; his work constitutes one of the greates.t
literaryachievements of the ninetenthcentury." The Basilica
have neverbeentranslatedintoEnglish.
The styleof theBasilicais thoroughlyRoman,as willappear
fromthefollowingexcerpts,whichare strikingly terseand lucid.
Moreover,theseexcerptsportray theinnatejuridicalexcellenceof
this greatestGraeco-Romancode, whichhas been promulgated
twice-firstin the ninthcenturyand second in the nineteenth
century:
"Law is so called fromjustice,for it is the art of what is
good and equitable.Moreover,law is eitherpublicor private.'2
And it is eitherwrittenor unwritten.'3To knowthelaws is tc
know,nottheirwords,but theirsense."14
"Laws shouldbe madeconcerning whathappensfrequently,
and notrarely.15 The law-making powershoulddisregardwhat
happensonlyonce or twiceand not deem it worthyof legisla-
tion.'6 The use of a statuteis to command . . . to forbid
to permit . . . to punish."17
"?Use of the Justinianeanlaw books in the Roman Imperialcourtsdid
not, however,entirelycease until the twelfthcentury.Sherman,Id., Secs.
i68, 176.
" Heimbach'sLatin translationwas not the
earliest,-thatof Fabrot in
1638 has this honor. Heimbach employedall the extant MSS.' of the
Basilica. In i897 a supplement,knownas Volume 7, was added to Heim-
bach's workby two Italians,Ferriniand Mercati.See Sherman,Roman Law
in the ModernWorld,Vol. I, Sec. I76; Vol. III, Sec. 955.
'
Bas., I, I, I. 'Bas., T, I, 15.
Bus., i, I, 6. Bas., I, I, Ij.
Bas., I, I, 27. 1? Bas., I, I, i8.

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366 UNIVERSITY OF PENNSYLVANIA LAW REVIEW

byconsentor necessity,
"All law is established or is fixedby
custom.18Concerningmattersas to whichthereis no written
law, customand usage govern.19 . . . Long-establishedcustom
has the force of a statuteand should govern . . . those mat
tersas to whichthereis no writtenlaw." 20
"A privateagreementdoes not abrogatepubliclaw.21 A
is
gift thatwhichis transferred underno necessity." 22
"Freedomis a pricelessthing.23Consent,not sexual inter-
course,makes a marriage.24Capital punishment means death
and loss of citizenship."25
"Three personsmakea corporation.`6A legacymade to a
lawfulcorporation is valid."27
"No one can transferto anothera greaterrightthan he
himselfhas.28No one can transmitto his heir a greaterright
than he himselfhas.29 Under equal conditionshe who is in
possessionis preferred.30A creditorpermitting his pledge to
be sold loses his pledge."31
"Obligationsarise fromcontracts,torts,or fromthe law
itself.32An impossibleobligationis void.33 Persons who are
absentmaymakecontracts by meansof letterand messenger." 31
"A debtoris a personfromwhom,againsthis will,money
may be obtained.35He who promisesto!pay in a certainplace
is regardedas havingcontracted at thatplace.36 In everyobliga-
tionin whichno timeof paymentis fixed,paymentis due imme-
diately."3
"A bona fidepurchaseris eitherone who did not knowthat
the thingsold to himbelongedto another,or one who thought
that the vendorhad a rightto sell, for instance,as agent or
guardian.38A purchaserat a sale made underorderof courtis

8Bas., I, I, 52. 19Bas., I, I, 4I, pr.


20 Bas., I, I, 4I, i and Bas., i, i, 42.
Bas., 2, 3, 45. ' Bas., 2, 2, 82.
" Bas., 2, 3, 82. 27 Bas., 44, i8, i9.
3 Bas., 2, 3, IO6. ' Bas., 2, 3, 54.
24 Bas., 2, 3, 30. 2 Bas., 2, 3, 120.
Bas., 2, 2, 99.
2 Bas., 2, 3, 128.
alBas.,2, 3, I58.
" Bas., 52, I, I. This thirdvarietyof
obligationsis quasi contractual
or quasi tortious.
Bas., 2, 3, I85. Bas., 52, I, 20.
34Bas.,52, I, 2. Bas., 2, 3, 14.
35Bas.,29 2, 105. UBas., 2, 2, IO6.

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THE BASILICA-A NINTH CENTURY ROMAN LAW CODE 367

a bona fidepossessor.39 Nothing is so contraryto good faith as


forceor intimidation."40
"My partner'spartneris not a partnerof mine.41 No one
commitsan injuryunlesshe does thatwhichhe had no legal right
to do.42 Lack of skillmay be reckonedas negligence.48Tort
actionsdo notdescendagainsttheheirsof thetortfeasor." 44
"As long as a will remainsvalid, so long the rightsof
intestacyare in abeyance.45In wills the wishesof the testator
The greaterincludestheless.47
shouldbe liberallyinterpreted.46
In thewholeis also containeda part."48
"An actionis therightof suinga personin courtforwhat
is due.49 Whateveris done by a judge outsideof his jurisdic-
tionis invalid.50No one shallbe draggedfromhis house (in a
civil action).51 Defendantsare moreoftenfavoredthanplain-
tiffs."52
"He who is silentis notregardedas confessing,yethe does
not deny.53 Whateveris decidedby a judgmentis held to be
true."54
withmyson who was overtheage
"If I die simultaneously
of puberty, I am regardedas dyingfirst;butif theson was under
the age of puberty,the contraryis the rule.5 Every general
statementof law is weak, in that it may be subvertedby an
exception."56

Fromtheexcellenceof theBasilica it is no wonderthatthis


codebecamenotonlythechiefauthority of theByzantine-Roman
lawyeruntiltheveryend of the Roman Empireat Constantino-
ple,butalso thefirstcode of revivedmodernGreecetencenturies
afteritsoriginalpromulgation.
CharlesP. Sherman,D.C.L.
FormerlyAssistantProfessorof Roman Law, Yale Uni-
versityLaw School.

Bas., 2, 3, I37. 4 Bas., 2, 3, I I3.


Bas., 2, 3, ii6. Bas., 52, I, 50.
41
Bas., 2, 3, 47. Bas., 2, 3, I70.
42 Bas., 2, 3, I5I. 51 Bas., 2, 30, I03.
'3 Bas., 2, 3, I32. 52 Bas., 2, 3, I25.
"Bas., 2, 3, III. " Bas., 2, 3, 142.
4'Bas., 2, 3, 89. 4Bas., 2, 3, 207.
4Bas., 2, 3, I2. Bas., 44, i8, 8.
"Bas., 2, 3, II0. KBas., 2, 3, 202.

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