SYSTEMS OP LAW 25

generation from the age of the authors of the Ecloga themselves down to
the time of writing. Orthodox Christians, if thus interrogated, would
have been apt to answer that the most humane and, on thus evidence, the
most Christian, chapter of the fidoga was Chapter Seventeen, which
lays down the penalties for crimes,

"The tendency of the Kchffa was to avoid capital punishment ns far as
possible, . , , Its tlistinftuishifiK feature is the use of mutilation us a mode
of punishment1 a penalty unknown in Raman Law, . . * Since mutilation
was gt'iirrul!}' nrthiined in canes where the penalty had formerly been
death, the iftw-wwrs could certainly claim that their code was more lenient.
t » . fliutj we may question whether this tendency was due so much to the
growth of feelings of humanity as to ecclesiastical motives, namely the
active maintenance of the asylum privileges of Christian sanctuaries, and
the doctrine of repentance.**

Whatever the origins of this tendency to substitute mutilation for
capital punishment may have been,3 it was certainly a radical new de-
parture which had a profound and an enduring effect on the Orthodox
Christian ethos; but, when a new departure in the domain of Law was
inspired by a Christian theology which placed the Old Testament on a
par with the New Testament at the infinite altitude of absolute authori-
tativeness which was the self-evident prerogative of all Scriptures that
were accepted as being the divinely revealed Word of God, it was almost
inevitable that the birth of a new Christian law should be followed by a
renaissance of the latent law of an Israel to which the Christian Church
had insisted on affiliating itself by the compromising act of including the
Books of the Law and the Prophets among Christianity's spiritual zm-
pedlmenta.

When we count up the references or allusions to the Bible in the pre-

* The table of p««altiei in Edogar chap. 17, in summarized in Bury, Appendix, p.

539,- "Aij/r.

Bury, Appendix, p. <tag» following #ac*harift von Lingenthal, K. K.; (tescttifhto d#s

Rtento
ing the
py of th
in pencil, rrom IJury's hand, which the English historian hntl eventually used in writing

» , . .

nto (Berlin xitya, Wcidmann), pp, 330-3, Whew the writer of
tudy was making the present footnote on the xoth March, 2950, he had at «mo
elbow Bury'* own copy of thin work of Zachariit von JUintfenthtilX marked with the notes
cil, rrom IJury's hand, which the English historian hntl eventually used

his own appendix on GraecQ*Kotnan Law, while at his other elbow he had the copy of
the volume of Hury's edition of Gibbon, containing thin appendix, which had b«en given
to the writer by his Mother forty-five years back. Tho impression which this appendix
had made on IHK mind nt his first reading of it in A.D, xoa* had lost none of its vividness
during the time that had passed between his receipt oi this impression and his utilisa-
tion of it,

3 One source of thia new type of puni8hment seems to have been exmtina customary
practice, 'The Roman niaftistrates «eem t« have made ocoiwitmal x»»« of such discretion
«» wan allowed t<> ihvm in th«s dctennination of punishments in order to inilict punish*
nientN* fonMJMtinK; ofaome form of mutilation (JCachariil von Lingeitthal, «p. cit.» p. 331;
cp. Collinet, op, ctt.» pp. 7og -to). Xatjh»rill von Linjjfftithal (o». dt,» p, 3321) throws ovit
the eonjct'turv that the authors of the Melofta m«y have heen inituent'etf hy an exhortation
• thrure repented in the (iuNnels (Mutt. v. ao«3o; Matt, stviii. H 9; Murk x. 43 "47)-™ to
out off or phu'k out it hand, foot, cye> or other oJFendin^ member rather than condemn
oueNt'lf to be cunt into hell tire ummttilutt'd. Thin renmins no more than a wufwa, since
none of these texts in actually cited in the l'khg^\ hut» if Orthodox Christian letfiHlatorn
did indeed talte Uterully a inece of Primitive Christisn poetry in which the problems of
the Soul «re approitched in terms of physical symbolism, this unfortunate uuHiuterpreta-
tion would be HnwlowouH, in its solemn innocence oi' irony, to the 1'orttmttte mUinterpreta**
tio« of Ovid's cynical prescriptions for the t'onduvt of sordid attiours which was ono
source of the Medieval Western troubadours' ideal of Ronwmic Love (see. L«wi«, C. B,f
The Alkgury ti/ Love; A Uttufy in Mtrtti&'ttl Tmtiiihn (Oxford 1 1^36, Clarendon rrcis))*