(2) When the position of Christianity was assured by the failure of Julian's reaction, it was evident that profession of that religion would henceforward be a necessary qualification for election to the throne. This was formally and constitutionally recognized when the coronation of the emperor by the patriarch was introduced in 457, or perhaps in 450.
(3) The sovereignty of the emperor was personal and not territorial. In this respect it always retained the character which it had inherited as the offspring of a Roman magistracy. Hence no Roman territory could be granted by the emperor to another power. For instance, the Western emperor Conrad III. could promise to hand over Italy to Manuel Comnenus as the dowry of his wife, but it would have been constitutionally illegal for Manuel to have made such a promise to any foreign prince; an Eastern emperor had no right to dispose of the territory of the state. Tendencies towards a territorial conception begin indeed to appear (partly under Western influence) in the time of the Palaeologi, especially in the custom of bestowing appanages on imperial princes.
(4) While the senate of Rome generally lost its importance and at last became a mere municipal body, the new senate of Constantine preserved its position as an organ of the state till the fall of Constantinople. For the imperial elections it was constitutionally indispensable, and it was able sometimes to play a decisive part when the throne was vacant—its only opportunity for independent action. The abolition, under Diocletian's system, of the senatorial provinces deprived the senate of the chief administrative function which it exercised under the Principate; it had no legislative powers; and it lost most of its judicial functions. It was, however, still a judicial court; it tried, for instance, political crimes. In composition it differed from the senate of the Principate. The senators in the 4th century were chiefly functionaries in the public service, divided into the three ascending ranks of clarissimi, spectabiles, illustres. The majority of the members of the senatorial order lived in the provinces, forming a provincial aristocracy, and did not sit in the senate. Then the two lower ranks ceased to have a right to sit in the senate, which was confined to the illustres and men of higher rank (Patricians). The senatorial order must therefore be distinguished from the senate in a narrower sense; the latter finally consisted mainly of high ministers of state and the chief officials of the palace. It would be a grave mistake to underrate the importance of this body, through an irrelevant contrast with the senate of the Republic or even of the Principate. Its composition ensured to it great influence as a consultative assembly; and its political weight was increased by the fact that the inner council of imperial advisers was practically a committee of the senate. The importance of the senate is illustrated by the fact that in the 11th century Constantine X., in order to carry out a revolutionary, anti-military policy, found it necessary to alter the composition of the senate by introducing a number of new men from the lower classes.
(5) The memory of the power which had once belonged to the populus Romanus lingered in the part which the inhabitants of New Rome, and their representatives, played in acclaiming newly elected emperors, and in such ceremonies as coronations. In the 6th century the factions (“demes”) of the circus, Blues and Greens, appear as political parties, distract the city by their quarrels, and break out in serious riots. On one occasion they shook the throne (“Nika” revolt, 532). The emperors finally quelled this element of disturbance by giving the factions a new organization, under “demarchs” and “democrats,” and assigning them a definite quasi-political locus standi in the public ceremonies in the palace and the capital. The duty of providing panem et circenses was inherited from Old Rome; but the free distribution of bread cannot be traced beyond the 6th century (had the loss of the Egyptian granary to do with its cessation?), while the spectacles of the hippodrome lasted till the end. Outside the capital the people took little interest in politics, except when theology was concerned; and it may be said generally that it was mainly in the ecclesiastical sphere that public opinion among the masses, voiced by the clergy and monks, was an influence which made itself felt.
The court ceremonial of Constantinople, which forms such a market contrast to the ostentatiously simple establishments of Augustus and the Antonines, had in its origin a certain constitutional significance. It was introduced by Aurelian and Diocletian, not, we must suppose, from any personal love of display, but rather to dissociate the emperor from the army, at a time when the state had been shaken to its foundations by the predominance of the military element and the dependence of the emperor on the soldiers. It was the object of Diocletian to make him independent of all, with no more particular relation to the army than to an other element in the state; the royal court and the inaccessibility of the ruler were calculated to promote this object. The etiquette and ceremonies were greatly elaborated by Justinian, and were diligently maintained and developed. The public functions, which included processions through the streets to various sanctuaries of the city on the great feast-days of the Church, supplied entertainment of which the populace never wearied; and it did not escape the wit of the rulers that the splendid functions and solemn etiquette of the court were an effective means of impressing the imagination of foreigners, who constantly resorted to Constantinople from neighbouring kingdoms and dependencies, with the majesty and power of the Basileus.
The imperial dignity was collegial. There could be two or more emperors (imperatores, βασιλεῖς) at the same time; edicts were issued, public acts performed, in their joint names. Through the period of dualism, in the 4th and 5th centuries, when the administration of the Eastern provinces was generally separate from that of the Western, the imperial authority was also collegial. But after this period the system of divided authority came to an end and was never renewed. There was frequently more than one emperor, not only in the case of a father and his sons, or of two brothers, but also in the case of a minority, when a regent is elected emperor (Romanus I.; cf. Nicephorus II. and John Zimisces). But one colleague always exercised the sole authority, was the real monarch, the “great” or the “first” Basileus; the other or others were only sleeping partners. Under the Comneni a new nomenclature was introduced; a brother, e.g., who before could have become the formal colleague of the ruler, received the title of Sebastocrator (Sebastos was the Greek equivalent of Augustus).
Legislation.—The history of the legislation of the Eastern Empire is distinguished by three epochs associated with the names of (1) Justinian, (2) Leo III., (3) Basil I. and Leo VI.
(1) The Justinianean legislation (see Justinian) is thoroughly Roman in spirit, and inspired by pious adhesion to the traditions of the past; but it admitted modifications of the older law in accordance with tendencies which had been long since making themselves felt; consideration is accorded to principles of humanity in the laws affecting persons, and to the principle of public interest in the laws relating to things. Justinian not only sanctioned changes which time had brought about, like the mitigation of the strict patria potestas and the greater independence of wives, but introduced a revolutionary change in the law of succession to property, abolishing inheritance by agnatio or relationship through males, and substituting inheritance by blood relationship whether through males or females.
(2) Justinian's reign was followed by a period in which juristic studies decayed. The seventh century, in which social order was profoundly disturbed, is a blank in legal history, and it would seem that the law of Justinian, though it had been rendered into Greek, almost ceased to be studied or understood. Practice at least was modified by principles in accord with the public opinion of Christian society and influenced by ecclesiastical canons. In a synod held at Constantinople in the reign of Justinian II. numerous rules were enacted, differing from the existing laws and based on ecclesiastical doctrine and Mosaic principles, and these were sanctioned as laws of the realm by the emperor. Thus Church influence and the decline of Roman tradition, in a state which had become predominantly Greek, determined the character of the ensuing legislative epoch under the auspices of Leo III., whose law book (A.D. 740), written in Greek, marks a new era and reliects the changed ideas of the community. Entitled a “Brief Selection of Laws” and generally known as the Ecloga, it may be described as a Christian law book. In regard to the patria potestas increased facilities are given for emancipation from paternal control when the son comes to years of discretion, and the paternal is to a certain extent replaced by a parental control over minors. The law of guardianship is considerably modified. The laws of marriage are transformed under the influence of the Christian conception of matrimony; the institution of concubinatus is abolished. Impediments to marriage on account of consanguinity and of spiritual relationship are multiplied. While Justinian regarded marriage as a contract, and therefore, like any other contract, dissoluble at the pleasure of the parties, Leo III. accepted the Church view that it was an indissoluble bond. Ecclesiastical influence is written
