INTRODUCTION

There was a marked difference between the development of law and that of the other subjects so far treated by Isidore in the Etymologies. The latter were of Greek origin, and, with the exception of rhetoric, they appeared as strangers in the Roman environment and never formed an integral part of Roman culture. Instead, they suffered from continuous decay, and by the time of the disintegration of the Roman state they were reduced to such a condition that the “fall of Rome” meant nothing to them. On the other hand, law was an indigenous product of Roman society, upon which the Roman intellect had expended its greatest and most successful efforts, and although it inevitably shared in the general intellectual deterioration of the time, and showed a marked decline after the period of the great jurists, the beginning of its rapid decay is coincident in each section of western Europe with the close of Roman rule. Thus “the fall of Rome” played much the same part in the history of law as the transition from a Greek to a Roman environment had done for the bulk of the intellectual possession of the ancient civilization. After this event law was on terms of equality with the other branches of knowledge, and within two centuries, as judged by its presentation in the Etymologies, it was reduced to as low an estate as they.

Isidore’s De Legibus is divided into two distinct parts. The first is of a general nature, and embraces such topics as law-givers, jus civile, jus gentium, jus naturale, why laws are made, and what character a law ought to have. The second part is more specific; it treats of legal instruments, the law of property, crimes, and punishments. The whole forms a scholastic conglomerate of elements derived from every stage in the development of Roman law and exhibits a point of view that is philological and Christian as much as legal.

Because of its importance in the history of law, this book of the Etymologies has been subjected to more detailed study than any other, but in spite of this its sources have not been clearly determined. In addition to the Scriptures and Isidore’s authorities on word derivation, he is believed to have drawn on the Breviarium Alaricianum, the Theodosian code, the text-books of Gaius and Ulpian, and the Sentences of Paulus. Although the Justinian code was issued a century before the compilation of the Etymologies, it seems improbable that Isidore made any use of it, or had even heard of it.[292]

The purpose of the De Legibus was, no doubt, to serve as a text-book.[293] The amount of space given to it, which is about the average of that allotted to each of the liberal arts, and the fact that it treats of law in a general way, point to this conclusion. Its position in the Etymologies, following, with Medicine, immediately after the liberal arts, is also an indication of its educational character. The best proof of this, however, is found in the number of separate manuscripts in which the De Legibus is reproduced in a catechetical form.[294] At least eight of these are in existence, and the earliest of them is attributed to the ninth century.

EXTRACTS

Chapter 1. On law-givers.

1. Moses first of all set forth the divine laws in the sacred writings for the Hebrew people. King Phoroneus was the first to establish laws and courts for the Greeks.

2. Mercurius Trismegistus first gave laws to the Egyptians. Solon first legislated for the Athenians. Lycurgus first made rules of law for the Lacedaemonians and pretended Apollo’s authority for them.

3. Numa Pompilius, who succeeded Romulus in the kingdom, was the first to give laws to the Romans. Later, when the people could not endure their quarrelsome magistrates they appointed decemvirs to write the laws, and they translated the laws from the books of Solon into the Latin language, and set them up on twelve tables.

4. These men were A. Claudius, T. Genutius, P. Sextius, Spur. Viturius, C. Julius, A. Manlius, Ser. Sulpitius, P. Curiatius, T. Romilius, Sp. Postumius. These were the decemvirs chosen to write the laws.

5. The consul Pompeius was the first who wished to arrange the laws systematically, but he did not persevere, through fear of detractors. Then Caesar began to do it, but he was slain.

6. By degrees the old laws became obsolete through time and neglect; but a mention of them seems necessary although they are not in use now.

7. The new laws began with the emperor Constantine and the rest who followed him, but they were confused and in disorder. Later, in imitation of Gregorianus and Hermogenianus, the younger Theodosius arranged a code of constitutions from the time of Constantine, under the title of each emperor, which he called Theodosian from his own name.

Chapter 2. On laws human and divine.

1. All laws are either divine or human. Divine laws depend on nature, human laws on customs; and so the latter differ, since different laws please different peoples. Divine law is fas; human law is jus. To pass through another’s property is of divine but not of human law.

Chapter 3. On the difference between jus, leges, mores.

1. Jus is the general term and lex is a kind of jus. Jus is so-called because it is just (justum). All jus is made up of laws and customs.

2. Lex is the written ordinance. Mos is custom approved by its antiquity, or unwritten lex. For lex is derived from legere (to read), because it is written.

3. Mos is old custom and is drawn merely from mores. Consuetudo (custom) is a sort of jus established by mores, which is taken instead of lex when lex fails. And it makes no difference whether it depends on writing or reason, since reason commends written law also.

4. Moreover if lex is in accordance with reason, all that is in accordance with reason will be lex, as far as it agrees with religion, is in harmony with knowledge, and is beneficial for salvation. And consuetudo is so-called because it is in common use.

Chapter 4. On jus naturale.

1. Jus is either natural, or civil, or universal (jus gentium). Jus naturale is what is common to all peoples, and what is observed everywhere by the instinct of nature rather than by any ordinance, as the marriage of man and woman, the begetting and rearing of children, the common possession of all,[295] the one freedom of all, the acquisition of those things that are taken in the air or sea or on the land.

2. Likewise the restoring of property entrusted or lent, the repelling of violence by force. For this, or whatever is like this, is nowhere considered unjust, but natural and fair.

Chapter 5. On jus civile.

1. Jus civile is what each people or state has enacted as its own law, for human and divine reasons.

Chapter 6. On jus gentium.

1. Jus gentium is the seizing, building, and fortifying of settlements, wars, captivities, servitudes, postliminies, treaties, peaces, truces, the obligation not to violate an ambassador, the prohibition of intermarriage with aliens. And [it is called] jus gentium because nearly all nations observe it.

Chapter 7. On jus militare.

1. Jus militare is the ceremony of beginning war, the obligation in making a treaty, the going out against the enemy when the signal is given, and the joining of battle; likewise the retreat when the signal is given; likewise the punishment of a soldier’s fault if a post should be deserted. Likewise the amount of pay, the grades of office, and the honor of rewards, as when a crown or a necklace is given.

2. Likewise the determination of the booty, and the just division according to rank of persons and labors undergone, likewise the share of the commander.

Chapter 8. On jus publicum.

1. Jus publicum has to do with sacred things, and priests and magistrates.

Chapter 9. On jus quiritium.

1. Jus quiritium is the law proper to the Romans, by which none is bound but the Quirites, that is, the Romans, as in regard to inheritances, declarations of entry upon inheritances, guardianships, acquiring by prescription; which laws are found among no other people, but they are proper to the Romans and made for them alone.

2. The jus quiritium is made up of laws, plebiscites, decrees of the senate, constitutions and edicts of emperors and opinions of jurists.

Chapter 10. On lex.

1. Lex is the enactment of the people, by which the elders, together with the plebeians, passed some law.

Chapter 11. On plebiscites.

1. Plebiscites (scita) are what the common people alone enact....

Chapter 12. On the senatus consultum.

1. A senatus consultum is that which the senators alone determine in council for the people.

Chapter 13. On the constitution or edict.

1. A constitution or edict is what the king or emperor enacts or proclaims.

Chapter 14. On the responses of the jurists (responsa prudentum).

1. They are the responses which the jurisconsults are said to make to men who consult them. From this the responses of Paulus were so named. For there were certain wise men and judges of equity who composed and published institutions of civil law, by which they settled the suits and contentions of disputants.

Chapter 15. On consular and tribunitian laws.

1. Certain laws are named from those who secured their enactment, as consular, tribunitian, Julian, Cornelian. Papius and Poppaeus, consules suffecti[296] under Caesar Octavianus, carried a law which was called from their names Papia Poppaea, offering rewards to fathers for rearing children.

2. Under the same emperor, Falcidius, a tribune of the people, carried a law that no one should bequeath property in such a way that a fourth, at least, should not remain for the heirs. And it was named the lex Falcidia from him. Aquilius also secured the passage of a law which is called Aquilia to the present time.

Chapter 16. On the lex satyra.

1. A lex satyra is one which speaks at the same time of many things, being so called from the abundance of things, as it were from saturitas (fullness); whence to write satire is to compose poems with varied contents, as those of Horace, Juvenal, and Persius.

Chapter 17. On the Rhodian laws.

1. The Rhodian laws are the laws of commerce on the sea, being so called from the island of Rhodes where was a great trade in ancient times.

Chapter 18. On privileges.

1. Privileges (privilegia) are laws applying to individuals, private laws, as it were. For privilegium is so called because it is applied to a private person (in privato feratur).

Chapter 19. What law can do.

1. Every law either permits something, as that a brave man should compete for a prize, or forbids, as that no one should be allowed to ask the sacred maidens in marriage, or punishes, as that he who has committed murder should suffer capital punishment. For human life is governed by the reward or punishment of the law.[297]

Chapter 20. Why law was made.

1. Laws were made in order that the boldness of men may be checked by fear of them, and innocence be safe among the wicked, and the power of harm bridled among the wicked by the dread of punishment.

Chapter 21. What law ought to be.

1. Law will be honorable, just, possible, according to nature, according to the custom of the country, adapted to the place and time, necessary, useful, clear also, lest it contain anything in its obscurity that tends to fraud, drawn up for no one’s private advantage, but for the common good of all citizens.

Chapter 24. On legal instruments.

1. Voluntas (will) is the general name for all legal instruments, and it has received this name because it issues from free will, not from compulsion.

2. Testamentum (will) is so named because, unless the testator dies, what is written in it cannot be established or known, since it is closed and sealed; and it is called testamentum because it is not in effect until the burial of the testator (testatoris monumentum); whence the Apostle says: Testamentum in mortuis confirmatur.

3. Testamentum has not only this meaning in the Holy Scriptures, that it is in effect only when the testators are dead, but they also called every agreement (pactum et placitum) testamentum; for Laban and Jacob made a testamentum which was certainly to be in effect while they were living. And in the Psalms is read: Adversum te testamentum disposuerunt; and many others of the sort.

4. The tabulae of a will are so called because not only wills but letters were written on hewn tabulae (boards) before paper and parchment were used. Whence letter-carriers are called tabularii.

5. The testament of the civil law is made valid by the signature of five witnesses.

6. The testament of the praetorian law is sealed with the seals of seven witnesses; the former testament is made in the presence of citizens, and from that is called civile; the latter in the presence of the praetors, and thence is of the praetorian law.

7. A testamentum holographum is one wholly written and signed in the hand-writing of the maker. From this it got its name. For the Greeks use the word ὅλον for whole, and γραφή for writing.

8. A testament has no legal force if its maker has forfeited his civil rights, or if it has not been made in due form.

9. A testament is inofficiosum where an attempt has been made to disinherit the children and recourse has been had to persons outside [the family] without regard to the duty of natural affection.[298]

10. The testamentum ruptum is so named because it is made void through the birth of a posthumous child who is neither disinherited nor made an heir by name.

11. A testament is suppressed when it is not publicly made known, to the injury of heirs or legatees or freedmen; and although it is not kept secret, it nevertheless is thought to be suppressed if it is not made known to the aforesaid persons.

12. Nuncupatio (nuncupative will) is when the testator reads the will aloud, saying: “These things I thus give and bequeath as they are written on these tablets and on this wax; and do you Roman citizens be my witness”, and this is called nuncupatio. For nuncupare means to name and confirm openly.

13. The jus liberorum is the right of childless couples to name each other as heir in the place of children.

23. Emptio (purchase) and venditio (sale) is an exchange of goods and a contract arising from agreement.

24. Emptio (purchase) is so called because it is a me tibi (from me to you); venditio is as it were venundinatio, that is, from nundinae (market day).

27. Donatio usufructuaria is so named because the giver retains the usufruct of the thing, the title vesting in him to whom it has been given.

Chapter 25. On property (rebus).

3. Res is derived from possessing rightly (recte); jus from possessing justly (juste).... What is wickedly possessed is not the owner’s. He possesses wickedly who uses his own wickedly or takes possession of another’s.... He who is captured by greed is possessed, not possessing.

4. Bona belong to the honorable or noble, and they are called bona so that they may not have a base use but men may use them for good things.

5. Peculium belongs properly to minors or slaves. For peculium is that which the father or master allows his son or slave to treat as his own....

ON TIMES[299]

INTRODUCTION

To the early and medieval Christian chronology was a subject of absorbing interest. For him the course of the world’s history was authoritatively laid down in the Biblical account, and looking back over it he thought he saw that it was passing by well-marked stages to an end that was to be as sharply defined as its beginning had been. It was inevitable that there should be an attempt to plot its progress and even to form some general notion as to its end. For this purpose the Greek chronology was accepted in its entirety and extended by a set of extravagant assumptions, acceptable to the uncritical minds of the time, back to the beginning of the world. By this means an authoritative chronological exposition of past time was secured, such as under wise interpretation would disclose more clearly the rate and manner in which God’s purpose was working itself out.[300]

The chronology presented by Isidore traces the course of time along the line of the Roman emperors from Heraclius back to Julius Caesar, and then by way of the Ptolemaic dynasty to Alexander the Great. Here a transition is made to the Persian kings, who are followed back to Darius near the beginning of the fifth age. The four ages between the captivity of the Jews and the creation are marked by Biblical personages only.

There are two matters of importance to be noted in connection with the De Temporibus.[301] Isidore is the first to introduce into formal chronology the division of the world’s history into six ages. The idea was not his, however; he was merely putting into practice a suggestion given repeatedly in Augustine’s writings,[302] and used by Orosius in his History Against the Pagans. In the second place, it should be remarked that Isidore shows no signs of being aware of the proposal of Dionysius Exiguus for an era beginning with the birth of Christ. It is true that Isidore’s sixth age is supposed to begin at that time,—although as a matter of fact it begins at the death of Julius Caesar,[303]—but his era is a world era beginning at the creation.

EXTRACTS

Book V, Chapter 28. On the word chronica.

1. Chronica is the Greek word which in Latin is rendered series temporum (succession of times), such as Eusebius, bishop of Caesarea, wrote in Greek and the priest Hieronymus translated into Latin; for χρόνος in Greek is translated by tempus in the Latin.

Chapter 29. On moments and hours.

1. Time is divided into moments, hours, days, months, years, lusters, generations (saecula), ages. A moment is the least and briefest time, so-called from the motion (motu) of the stars.

2. ... Hora is a Greek name and still has a Latin sound. For hora is a limit (finis) of time, just as horae are the limits of the sea and of streams and the borders of garments.[304]

Chapter 30. On days.

5. The days are named from the gods (dii) whose names the Romans bestowed on certain heavenly bodies. They named the first day from Sol, which is the chief of the heavenly bodies just as this same day is the chief of all the days.

6. The second they named from Luna, which is next to Sol in splendor and size and borrows its light from it. The third they named from the star of Mars, which is called Pyrois; the fourth, from the star of Mercurius, which certain ones name Stilbon.

7. The fifth, from the star of Jupiter, which they call Phaeton; the sixth, from the star of Venus, which they call Lucifer, which has more light than all the other stars.

The seventh day, from the star of Saturnus, which being placed in the seventh heaven is said to complete its course in thirty years. And the heathen gave names to the days from the seven stars because they thought that some influence was active upon themselves through the same [stars], saying that they had life (spiritus) from Sol, body from Luna, ability and eloquence from Mercurius, pleasure from Venus, blood from Mars, self-control (temperantia) from Jupiter, and the humors from Saturn. Such indeed was the folly of the heathen who created such ridiculous imaginations. But among the Hebrews the first day is called una Sabbati, which among us is dies Dominicus, which the heathen have dedicated to Sol. The second day of the week is secunda Sabbati, which the heathen call dies Lunae; the third day of the week, tertia Sabbati, which they call dies Martis; the fourth day of the week, quarta Sabbati, which is called Mercurii dies by the pagans; the fifth day of the week, quinta Sabbati, that is, fifth day from dies Dominicus, which among the heathen is called dies Jovis: the sixth day of the week, sexta Sabbati, which is called by them dies Veneris. The seventh from dies Dominicus is Sabbatum, which the gentiles have devoted to Saturnus and have named dies Saturni. Sabbatum is translated from the Hebrew into the Latin as requies, because God rested on that day from all his works.

The ecclesiastical method of speaking the names of the days comes better from the lips of Christians; still, if custom should perchance influence anyone so that what he disapproves of in his heart comes forth from his mouth, let him know that all those from whom these days were named were men, and on account of certain services of a human sort (mortalia), since they were very powerful and were prominent in this world, divine honors were bestowed on them by their admirers, both in respect to the days and the stars, but first the stars were named after men and then the days were named after the stars.

Chapter 31. On night.

1. Nox is derived from nocere (to injure) because it injures the eyes. And it has the light of the moon and stars in order that it may not be without beauty, and that it may comfort all who work by night, and that the light may be sufficiently tempered for certain creatures that cannot endure the light of the sun.

3. Night is caused either because the sun is worn out with his long journey and is weary when he comes to the last stretch of heaven and blows out his weakened fires; or because he is driven under the lands with the same force with which he carried his light over them, and thus the shadow of the earth makes night. Whence Virgilius says:

Chapter 33. On months.

1. The word mensis is Greek, being derived from the word for moon. For in the Greek language the moon is called μήνη; whence among the Hebrews the regular (legitimi) months are reckoned not from the circle of the sun, but from the course of the moon, which is from new moon to new moon.

2. Because of the swifter course of the moon and the fear that an error of reckoning might arise because of its speed, the Egyptians began to reckon the day of the month from the course of the sun, since the slower course of the sun could be comprehended more easily.

Chapter 34. On the solstices and equinoxes.

2. There are two solstices: first, the summer solstice, eight days before the Kalends of July, from which time the sun begins to return to the lower circles; the second, the winter solstice, eight days before the Kalends of January, when the sun begins to make for the higher circles, whence the day of the winter solstice is the shortest and that of the summer solstice the longest.

3. Likewise there are two equinoxes: one in the spring and the other in the autumn, which the Greeks call ἰσημερίαι. These equinoxes are the eighth day before the Kalends of April and the eighth day before the Kalends of October, because the year formerly was divided into two parts only, that is, into the summer and the winter solstice, and into two hemispheres.

Chapter 35. On the seasons.

1. There are four seasons of the year: spring, summer, autumn, winter. And they are called seasons (tempora) from tempering,[305] since they are tempered in turn by moisture, dryness, heat, and cold.

2. It is known that after the creation of the universe the seasons were divided into three months each, according to the quality of the sun’s course.... And the ancients make the following divisions of these seasons: in the first month spring is called novum, in the second, adultum, in the third, praeceps.[306]

7–8. These seasons are assigned also to separate parts of the heavens. The spring is given to the Orient, because then all things arise (oriuntur) from the earth; summer to the South, because its division is more intense in its heat; winter to the North, because it is torpid with colds and perpetual frost; autumn to the Occident, because it has serious diseases. Whence, too, the leaves of the trees fall. The bordering of cold and heat and the contending of opposite airs causes the autumn to abound in diseases.

Chapter 36. On years.

1. The year is the circle of the sun when it returns to the same place in relation to the stars, after three hundred and sixty-five days....

3. There are three kinds of years. For the year is the lunar, of thirty days, the solstitial, which contains twelve months, or the great year, when all the planets return to the same place, which happens after many solstitial years.

Chapter 38. On generations and ages.

5. Age (aetas) is used properly in two ways: for it is either the age of man, as infancy, prime, old age; or the age of the world, whose first age is from Adam to Noe; the second, from Noe to Abraham; the third, from Abraham to David; the fourth, from David to the migration of Judah to Babylon; the fifth, from then to the coming of the Saviour in the flesh; the sixth, which is now in progress and which will continue until the world is ended.

6. Julius Africanus was the first of our [writers] to set forth in the style of simple history, in the time of Marcus Aurelius Antoninus, the passing of these ages by generations and reigns. Then Eusebius, bishop of Caesarea, and the priest Hieronymus of holy memory, published a complex history of chronological tables, using reigns and dates at the same time.[307]

7. Then others, among them especially Victor, bishop of the church of Tununa, reviewed the histories of earlier writers and filled out the deeds of subsequent ages down to the consulate of the second emperor Justinus.

8. We have noted with what brevity we could the total of these times from the beginning of the world to the emperor Augustus Heraclius and Suinthilanus, king of the Goths, adding at the side a column of dates by the evidence of which the total of past time may be known.

Chapter 39. On the ordering of times (chronology).[308]

1. The first age contains at its beginning the creation of the world. On the first day under the name of light God created the angels; on the second, under the name of firmament, the heavens; on the third, under the name of parting, the waters and the land; on the fourth day, the lights of heaven; on the fifth, living things of the waters; on the sixth, living things of the land and man, whom he called Adam.

42. Eraclius is now governing the empire in his seventeenth year.

The Jews in Spain are being made Christian. The remainder of the sixth age is known to God alone.