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Codifications et réformes dans l'Empire tardif et les royaumes barbares
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La codification théodosienne

The publication and application of the Theodosian Code

NTh 1, the Gesta senatus, and the constitutionarii
Benet Salway

Résumé

This article presents some new proposals concerning the circumstances and mechanisms of the introduction of the Codex Theodosianus in the western half of the empire in AD 438. The compilation is not a strictly neutral document in every respect. In establishing a common work of reference for the whole empire, the enforcement of the Code in the western empire involved some aspects that were potentially disadvantageous to western interests. These facts shed extra light on the motivations of the prefect Faustus in involving the Roman senate in the process of the Code’s publication. The other new proposal concerns the status of the enigmatic constitutionarii, who should be considered not as state functionaries but as independent copyists with a licensed monopoly.

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Notes de la rédaction

Les textes réunis dans ce dossier par Olivier Huck constituent les actes de la table ronde organisée à l’École française de Rome les 30 juin et 1er juillet 2009, sous l’intitulé éponyme Codifications et réformes dans l’Empire tardif et les royaumes barbares.

Texte intégral

  • 1 Salway 2012. I wish to register thanks to Lorena Atzeri, Timothy Barnes, Simon Corcoran, Michael Cr (...)

1In 2005 I presented some preliminary observations on the publication and dissemination of the Theodosian Code arising from the first few months' work of the second phase of the British branch of the « Projet Volterra », which focuses on the late antique and medieval reception of Roman law in its full, social, legal, and historical context (www.ucl.ac.uk/history2/volterra).1 At that juncture, reacting to the prevailing interpretation of the evidence for the publication of the Code, I emphasised the parochial nature of the surviving documentation that has traditionally been understood as providing a comprehensive narrative of the process. Since then, significant studies have been published or come to my attention that necessitate some reconsideration of my preliminary observations and allow some refinement of those initial arguments. Here I will state the case for re-reading the relevant documents of AD 438 and 443 within their specific political context and also argue that the nature of the Theodosian Code as an eastern compilation should be considered in relation to the circumstances of its contemporary reception in the western empire.

I. Introduction

  • 2 See the observations of Barnes 2001, in reviewing Honoré 1998, Harries 1999, and Matthews 2000.
  • 3 Valentinian III (PLRE II, Valentinianus 4) was born 2 July 419, son of Arcadius and Honorius’ half- (...)
  • 4 For example, Hänel 1863, p. 69 ; Karlowa 1885, p. 944-945 ; Krüger 1888, p. 286, with n. 6 ; Mommse (...)
  • 5 Clossius 1824 ; for a discussion of the context and impact of this publication see Atzeri 2008, p.  (...)

2The production of the late Roman legal compendium known as the Codex Theodosianus (Theodosian Code) is a remarkable achievement by any measure, stemming, as it does, from the foresight of the eastern emperor Theodosius II and his ministers to take advantage of what turned out with hindsight to be the last possible opportunity to co-ordinate successfully the collection of material from, and publication of the results to, both halves of the divided Roman empire of late antiquity. Compared with the intellectually stimulating challenges posed by exploration of the purpose, sources, compilation, and editing of the Theodosian Code, the circumstances of its publication, enactment, and dissemination have, until recently, been the subject of relatively little scholarly debate.2 Nor, at first glance, does there appear to be much scope for any further original contribution to the interpretation of the matter. No significant new material has come to light since for nearly two hundred years and since the mid nineteenth century the story generally told has been quite straightforward: (i) a launch ceremony for the completed Code in Constantinople soon after the wedding of Theodosius’ daughter, Licinia Eudoxia, to his young cousin, the western emperor, Valentinian III, on 29 October AD 437;3 (ii) its promulgation for the eastern empire by a law of Theodosius issued at Constantinople on 15 February 438; and (iii) its reception in the western realm of his junior colleague at a meeting of the senate in Rome on 25 December, before coming into force across the entire empire on 1 January 439.4 This is all vouched for by two contemporary documents of unassailable authority: (i) the extant « new », i.e. post-Theodosian Code, law of Theodosius (his Novel 1), known continuously since antiquity; and (ii) the so-called Gesta senatus (acts of the senate), whose existence was first brought to the attention of scholars in 1824.5 Accordingly, this outline of the process has generally satisfied students of Roman law and Roman history alike. Moreover, for both groups the promulgation of the Code has been a question of little interest because neither does the matter appear to raise any points of legal principle nor has the outcome been in any real doubt. In any case, in the grand scheme of events, the fate of the Theodosian Code may be considered a concern of marginal significance, given the political collapse of the western empire in the following decades, and the subsequent promulgation of Alaric’s Breviarium in 506 and of Justinian’s Code in 529, which meant that within a century Theodosius II’s work was either superseded or redundant in most of the areas to which it had been introduced in 438/439.

  • 6 So, e.g., Atzeri 2008, p. 229-230.
  • 7 Burgess 2001, p. 79 : Theodosianus liber omnium legum legitimorum principum in unum collatarum hoc (...)
  • 8 Sirks 1985 ; Sirks 1986 ; Sirks 1991, p. 113-114 ; Sirks 2003 ; Sirks 2007a.
  • 9 Sirks 2007b, p. 198-214.
  • 10 Sirks 2007b, p. 212-214.
  • 11 E.g. Liebs 2001 ; De Giovanni 2007, p. 353, n. 119 ; Liebs 2010, p. 535-536.
  • 12 Atzeri 2008, p. 204-211 ; for reviews of which see Sirks 2009, Wołodkiewicz 2009, Salway 2010, Woło (...)
  • 13 Compare Mousourakis 2007, p. 181 and p. 257 n. 6, with Mousourakis 2003, p. 353.

3The reality of the dissemination and application of the Theodosian Code throughout the western provinces of the empire, just as in the eastern, is not in any serious doubt. It is, after all, implied by the fact that most of what survives of its original text, albeit abbreviated and/or truncated, has been preserved in Western Europe, thanks to its transmission via the Visigothic and Merovingian kingdoms.6 Moreover, the Code’s publication in the western provinces is explicitly confirmed by an ancient but not strictly contemporary report: the notice of an anonymous Gallic chronicler of AD 452.7 Here the publication is logged in the second year of the 305th Olympiad, which is equated to year fifteen of Theodosius II’s time as senior Augustus (counting inclusively from 424), i.e. AD 438. Nevertheless, in a number of publications over the last twenty-five years or so,8 culminating most recently in his monograph of 2007 devoted to the Theodosian Code,9 Boudewijn Sirks has put forward a radical interpretation of the publication and application of the Theodosian Code in the western portion of the empire, placing particular emphasis on the matter of the intended territorial application of the collection. In essence this interpretation concedes the de facto application of the Code in Valentinian III’s realm from 438/439. But, thinking like a lawyer, Sirks argues that the Code did not acquire the status of binding sole authority for the citation of constitutions of the emperors from Constantine onwards de iure in the west until Valentinian’s promulgation, by a law of 3 June 448 (N.Val. 26), of the collection of Theodosius’ « novels » (i.e. « new » post-Theodosian Code laws) that had been dispatched westwards in the previous year and that incorporated the latter emperor’s Novel 1 of 15 February 438, instructing his praefectus praetorio Orientis on the Code’s validity.10 Naturally, this stance has not been without its critics amongst those who stress the importance to the process of the Code’s reception and publication in the west of the meeting of the Roman senate held in 438 and recorded in the Gesta senatus.11 Sirks’ views have been the subject of a notably detailed discussion by Lorena Atzeri in her monograph of 2008 dedicated to the Gesta.12 Whatever his critics claim about the function of the Gesta senatus and/or possible knowledge and acceptance of Novel 1 in the west as early as 438, on the basis of the surviving documentation, Sirks’ argument may not be faulted on technical grounds and cannot, therefore, simply be dismissed as historically implausible a priori. Indeed it has influenced at least one student textbook.13

4Scholars on both sides of this debate essentially continue to accept Novel 1 and the Gesta as providing comprehensive testimony as to the publication and dissemination of the Code, without sufficient regard to the contemporary geo-political framework to which they relate. Combining a legalistic approach to the evidence of these documents with an evocation of the specific historical circumstances and political mood of the years 437 to 439, I intend in this paper to argue for an alternative interpretation of the process of promulgation that better accounts for the state of this evidence. Through rigorous application of Sirks’ own principle of regard to the territorial coverage of individual actions, it can be shown that the record relating to the process of the Code’s dissemination is demonstrably incomplete for both eastern and western portions of the empire. There is, moreover, a hitherto neglected technical consideration relating to enactment of the Code in the west that highlights a potential area of sensitivity for Valentinian III and his ministers in carrying out Theodosius’ directive to establish his Code as a common, standardised, and authoritative source for imperial legislation from Constantine onwards. Taking these factors into account, this paper offers a reconstruction of the stages of publication that maps the surviving testimony of Theodosius’ Novel 1 and the Gesta senatus onto the contemporary geo-political framework and leads to a re-evaluation of the purpose of the session of the senate recorded in the Gesta.

II. The evidence for the Code’s publication

  • 14 Mommsen 1905 [1904], pars 1, p. xxxii (Brev., praescriptio), p. xxxiv (Brev., Exemplar auctoritatis (...)
  • 15 C. Tanta = CJ 1.17.2.

5It is my contention that there is also an under-appreciated difficulty in the generally accepted narrative of the promulgation of the Code that is masked by the coincidence of the poor survival of the text of the work with the apparently very full documentation of the process of its initial diffusion from the court of Theodosius in Constantinople to the provinces of both eastern and western parts. One needs to remember that the Theodosian Code is transmitted in its integral version only from book six onwards. Therefore we are ignorant of the original form of its beginning, whether that was (i) an explanatory preface in the names of Theodosius II and his co-emperor Valentinian III, equivalent to the brief Commonitorium and praescriptio that precede the Breviary of Alaric,14 or (ii) a prefatory constitution, as found in the Justinianic corpus a century later.15 Nevertheless, as already noted, for a truncated work, we are extremely well informed on the intentions for and process of its publication. Preserved within the Code itself, the second of Theodosius’ constitutions setting out the programme for the Code project, issued on 20 December 435, already anticipates that, once published, the collection will be an exclusive source of reference (CTh 1.1.6 § 3):

… ut absolutionem codicis in omnibus negotiis iudiciisque valituri nullumque extra se novellae constitutionis locum relicturi, nisi quae post editionem huius fuerit promulgata, nullum possit inhibere obstaculum.

… so that no obstacle can prevent the completion of the code that is to be valid in every transaction and court and shall leave no place outside itself for a new constitution, except what will be promulgated after its publication.

  • 16 Atzeri 2008, p. 131-132, reading VIII kal. I<u>n. for VIII kal. Ian. at GS 8. Endorsed also by Sirk (...)
  • 17 See Dovere 2011 and Nasti 2011, p. 586, for a defence of Christmas Day as symbolic of the divinely (...)
  • 18 Hänel 1837, col. 81-89 (Gesta senatus), col. 90-94 (NTh 1); Krüger 1923, p. 1-4 (Gesta senatus), p. (...)
  • 19 Mommsen 1905 [1904], pars 2, p. 1-4.
  • 20 Milan, Biblioteca Ambrosiana, fondo manoscritti, codex C. 29 partis inferioris, fol. 141 recto-142 (...)
  • 21 Volterra 1984.
  • 22 Atzeri 2008, p. 264-286.
  • 23 Codex Ambrosianus C. 29 inf., fol. 142 verso.
  • 24 Mommsen 1851, p. 379 [281] glossed the term as Gesetzabschreiber (« writers-out » or « transcribers (...)

6This provides the framework for understanding two documents from the period immediately subsequent to the Code’s completion: (i) the Novel of Theodosius, issued on 15 February 438 to Florentius, praetorian prefect of Oriens, already mentioned, and (ii) the so-called Gesta senatus, published on 25 May (if we accept the re-dating by Atzeri)16 or 25 December (by the traditional reckoning)17 of the same year, 438. This latter document records the presentation of the Code by the praetorian prefect of Italy, Africa, and Illyricum and ordinary consul, Anicius Acilius Glabrio Faustus, to his fellow senators in Rome. As will become clear, both documents are arguably extraneous to the original tradition of the Code, at least as introduced in the western provinces in AD 438. Nevertheless, both are found together prefacing the important editions of the Code by Gustav Hänel and Paul Krüger;18 while it is the Gesta senatus alone that preface the still standard edition by Theodor Mommsen.19 The presence of these texts prefacing these various modern editions is attributable to their appearance together in these positions in a twelfth-century manuscript held in the Ambrosian Library in Milan, the sole witness for the Gesta and recently subject to meticulous analysis by Atzeri.20 However, this codex Ambrosianus is not actually a manuscript of the full Code, but of a Breviary augmented with supplementary material from a full Code. By re-examination of this and other key manuscripts, Atzeri has persuasively demonstrated (contrary to the position argued by Edoardo Volterra in a now classic paper)21 that there is no good manuscript support for the idea that Theodosius’ Novel 1 ever circulated separately from its appearance in the later novel collection of 447 as a preface to western versions of the Code.22 Moreover, nor are the Gesta likely to have appeared in any western copies of the Code before AD 443. For they act as documentary support for the exclusive licence to produce copies of the Code granted to two individuals, identified as constitutionarii, that was confirmed in a rescript of Valentinian III (the so-called Constitutio de constitutionariis or C(onstitutio) « Quantum consulente ») of 23 December 443. This imperial rescript is also uniquely found copied with the Gesta in the Ambrosian manuscript.23 Despite clearly playing a key rôle in the dissemination of the Code in the western empire, little is known for certain about the constitutionarii beyond what may be inferred from their job description, which strongly implies that they were engaged in the copying out of texts of imperial pronouncements, for which the generic term was constitutio (see further section VIII below).24

7In subject matter Theodosius’ Novel and the Gesta are complementary. In a rather convoluted manner Novel 1 rehearses the purpose of the project, thanks the committee responsible for its final completion, and establishes its texts as the sole authoritative versions of constitutions of emperors back to Constantine that may be cited in court from 1 January, though whether of the current or next year is left ambiguous (NTh 1 § 3):

Quamobrem […] conpendiosam divalium constitutionum scientiam ex divi Constantini temporibus roboramus; nulli post Kal(endas) Ian(uarias) concessa licentia ad forum et cotidianas advocationes ius principale deferre vel litis instrumenta conponere, nisi ex his videlicet libris, qui in nostri nominis vocabulum transierunt sacris habentur in scriniis.

For which reason […] we give force to the compendious body of knowledge of the divine constitutions from the time of the deified Constantine onwards; after the Kalends of January permission is granted to no-one to cite an imperial law in court or everyday pleadings or to compose a legal instrument, unless drawing on these books which, as it were, will circulate under the term of our name and be held in the imperial bureaux.

8This exclusive authority of the Code’s versions of the legislation, looked forward to in CTh 1.1.6 of 435 and established by Novel 1 of 438, is again picked out and expressed more succinctly and more coherently in retrospect by Theodosius in his Novel 2 (the covering letter to the collection that he sent to Valentinian III on 1 October 447):

Postquam in corpus unius codicis divorum retro principum constitutiones nostrasque redegimus, aliam mox legem pietas nostra promulgavit, quae tam confecto codici vires auctoritatemque tribueret, nec aliter in iudicio quas contineret leges, nisi ex ipso proferrentur, valere praeciperet.

After we had reduced into the body of one codex the constitutions of previous deified emperors as well as our own, our piety soon promulgated another law, which was to attribute force and authority to the so completed Code, and which commanded that the laws that it contains shall not otherwise be valid in court, unless they are cited from the Code itself.

9However nothing is said here or in Novel 1 about the practicalities of dissemination and availability of the Code. By contrast, the account provided in the Gesta senatus is less explicit about the exclusive validity of the Code versions of the texts. Here there is only allusion to the fact that the collection contains the legal precepts « to be followed throughout the world » (sequenda per orbem: GS 2), which does suggest its authoritative status. However, the Gesta do supply background detail on the occasion of the launch of the Code in Constantinople towards the end of the previous year (GS 2 and 3, discussed in section VI.ii below) and lay out the process for the dissemination of multiple copies while simultaneously safeguarding the reliability of its text (GS 5 and 7, to which we will also return in section VI.iii below).

  • 25 Matthews 2000 ; Atzeri 2008.

10By the facts of their survival and their fortuitously complementary nature the first Novel of Theodosius and the Gesta senatus, when put together, form a seductively complete picture of the promulgation and dissemination of the Code, as though they were the only two pieces of the jigsaw puzzle. However, as I hope to demonstrate, close attention to the data provided by both texts reveals the partial nature and partisan perspective of the Gesta senatus especially. Building upon the recent detailed analyses of John Matthews and Lorena Atzeri,25 in this paper I suggest that we must treat the Gesta with care, being careful to remember that, as a narrative, they preserve the viewpoints of the praefectus praetorio Faustus and the senate of Rome and, as a document, served the specific interests of the constitutionarii, and do not necessarily represent a comprehensive, impartial, and objective account of how the Code was transmitted and disseminated to the western empire as a whole. In order to appreciate the likely impact of the arrival of the Theodosian Code in that western realm, it is necessary first to establish the salient features of the Code (including its purpose and design) and the contemporary political context of its publication.

III. Unity and division: the intended purpose and effect of the Code

  • 26 CTh 1.1.5: … cunctas colligi constitutiones decernimus, quas Constantinus inclitus et post eum divi (...)
  • 27 Sirks 2007b, p. 36-53, provides an excellent survey of the range of scholarly opinion on motivation
  • 28 Harries 1993 provides a succinct account.
  • 29 E.g. CTh 1.2.2 of AD 315, 1.1.4 of AD 393, and 1.2.11 of AD 398.
  • 30 Turpin 1987, p. 629.
  • 31 Anon. De rebus bellicis (ed. E. A. Thompson, A Roman Reformer and Inventor, Oxford, 1952), 21.1 : r (...)
  • 32 On legislative partition see Gaudemet 1954, idem 1957, De Dominicis 1954, and most recently de Bonf (...)

11The problems of territorial jurisdiction that surround the dissemination and application of the Theodosian Code are not dissimilar to those that led to its genesis in the first place. As outlined in the address to the Constantinopolitan senate initiating the project (CTh 1.1.5 of 26 March 429), the intention is to collect « all the legal pronouncements (constitutiones), supported by the force of edicts or imperial universality, that have been issued by the renowned Constantine and the deified emperors after him, including ourselves ».26 The last paragraph of Theodosius’ subsequent instructions for the editorial commission (CTh 1.1.6 § 3 of 20 December 435), quoted above (section II), make it clear that the material contained in it was to enjoy exclusive authority for the period it covered. So the Code was to provide the exclusively authoritative collection of imperial constitutions of general applicability from Constantine onwards. No doubt various powerful interests at Theodosius’ court, driven by a range of ideological and pragmatic political motivations, coincided to give the project momentum.27 Nevertheless this proposal did fulfill a real legal purpose.28 It was a principle, oft reiterated by late Roman legislators, that special grants and imperial responses to specific cases (rescripts) could not override the general law nor establish general precedent.29 Establishing the general law was not, therefore, a purely academic matter, of interest only to legal scholars, but rather a problem that no doubt constantly presented itself to imperial judges and administrators, when regularly faced with obstructive claims to exemption and special privilege in the course of carrying out their duties.30 However, by the early fifth century, there was potential for ambiguity over what constituted the valid statutory basis of the general law. Indeed, after proposing numerous solutions for military matters, the « confused and contradictory decisions of the laws » had been identified as the one problem afflicting civil society that required resolution at the level of the emperor by the anonymous author of the later fourth-century pamphlet, De rebus bellicis.31 This uncertainty arose in part from the fact that for most of the period since the death of Constantine (22 May 337), and continuously since that of Theodosius I (17 January 395), the empire was subject to de facto partition between two or more senior emperors (Augusti) with equal legislative authority, while remaining de iure a single legal régime.32

  • 33 Bagnall et al. 1987, p. 24-25.
  • 34 Feissel 1991.
  • 35 See Lepore 2000 ; cf. Pietrini 1998, Wieling 2002, p. 890, and Sirks 2007b, p. 12-17.
  • 36 Honoré 1998, p. 255-257.

12The pretence of the Roman empire’s political and administrative, as well as legal, unity was continually symbolised in various public acts. Nomination of the annual eponymous magistrates of the Roman state, the consuls, continued to be a shared responsibility after AD 395, even if the degree of co-ordination declined over time.33 In the administrative sphere, efforts were made to preserve the idea of the collegiality of the office of the praetorian prefecture across the east-west divide by continuing to name all current holders of the office, as far as they were known, as co-authors of edicts issued by one prefect alone.34 The same practice was followed in the legal realm, in that the heading of each and every imperial pronouncement continued to celebrate the collegial nature of the imperial office, however local the intended audience. So, for example, even in the abbreviated forms to which they have been edited down in the Theodosian Code, both of the programmatic constitutions (CTh 1.1.5 and 1.1.6), issued by Theodosius II at Constantinople for receipt locally, name his junior western colleague as co-author: Impp(eratores) Theodosius et Valentinianus AA(ugusti). In the absence of any explicit geographical limitation, the result was that, even without any intention for universality, laws issued by an emperor in one region were potentially valid, if their text became known, in the realm of his colleague(s). The de facto political delimitation of the halves of the empire from each other meant that on occasion explicit endorsement was sought or given in order to clarify or reaffirm the application of a law from one half in the other. However, despite the arguments of some legal scholars, this does not constitute evidence of a clear de iure separation into separate legal realms.35 Possibly relevant to the immediate genesis of the Code, the question of the validity of rescripts and the definition of what might constitute general law were two of the subjects treated in the lengthy enactment of Valentinian III of 7 November 426 addressed to the Roman senate (CJ 1.14.2-3, 1.19.7, and 1.22.5). If Tony Honoré is right in his bold suggestion that the author of this law was the senior Antiochus, who went on to chair the Code commission in its first phase but who was in 426 on secondment to Ravenna, then there may be a direct genetic link to the later Code.36 Certainly an eastern lawyer working as western imperial quaestor could not have failed to notice legal divergences and inconsistencies arising from the separation of the two halves of the empire.

  • 37 Honoré 1998, p.117.
  • 38 Sirks 2007b, p. 228.

13Whatever the precise motivation for launching the Theodosian Code project, as is clear already from CTh 1.1.5 of March 429, Theodosius’ Code was designed to supersede the individual constitutions of his predecessors and colleagues from which it was constituted, to invalidate those omitted, and to form a common point of reference for the mechanism envisaged whereby future legal conflicts between east and west might be avoided.37 As regards this last aim, although Sirks has emphasised legal unity as one of Theodosius’ goals,38 it is clear from the emperor’s own pronouncement at the outset that the introduction of the Code was actually designed to mark the starting point for a partition of the empire henceforth into two parallel legal régimes, in which legislation from one realm could only become applicable in the other after explicit acceptance and repromulgation (CTh 1.1.5):

In futurum autem si quid promulgari placuerit, ita in coniunctissimi parte alia valebit imperii, ut non fide dubia nec privata adsertione nitatur, sed ex qua parte fuerit constitutum, cum sacris transmittatur adfatibus in alterius quoque recipiendum scriniis et cum edictorum sollemnitate vulgandum.

Moreover, in the future, if we decide to promulgate something, it will thus be valid in the other part of the closely united empire, not as relying upon dubious trust or private assertion, but, when transmitted, by imperial communications from that part in which it has been established, to be received in the bureaux of the other part and published with the formality of edicts.

  • 39 Theodosius II transmitted the collection from Constantinople on 1 October 447 (NTh 3) and Valentini (...)

14In the event this formal transmission and repromulgation of new laws (novellae) can only be shown with certainly ever to have occurred in one direction (from east to west): first with the collection sent by Theodosius to Valentinian in 447 and later with the solitary rescript sent by Leo to Anthemius in 468.39 Even if this part of the design operated imperfectly, the evidence is consistent with the notion that the formal separation of the empire into two distinct legal spheres was indeed established in the wake of the publication of the Theodosian Code, despite the maintenance of the pretence of collegiality in the headings of subsequent legislation. Whether through expediency or by deliberate design, the collection of later legislation in the Codex Iustinianus of 529 (second edition 534) reflects a parting of the ways after 438. For, even when the names of Valentinian and of those western successors that were recognised as legitimate in Constantinople do feature in the later code, no western legislation subsequent to that included in the Theodosian Code would appear to have been admitted by Justinian’s compilers. More importantly, the contemporary political effect was to divorce of the question of the recognition of legitimacy as a political colleague (signalled by claims to mutual authorship of laws) from that of acceptance of the validity of a fellow emperor’s legislation (requiring explicit repromulgation).

IV. Design and content of the Code

  • 40 The compiler of the Codex Gregorianus may be the pioneer of this format. For possible fragments of (...)
  • 41 Cf. Archi 1976; Dovere 2011.
  • 42 Barnes 2001, p.684-685.
  • 43 This retrospectively corrected style, stripping Constantine’s co-emperor Licinius of his imperial t (...)
  • 44 As noted by Meyer 1905, p. xiv : « data igitur est ante Theodosianum emissum ».
  • 45 NTh 1 § 5 : His adicimus nullam constitutionem in posterum velut latam in partibus occidentis aliov (...)

15As is set down at the opening of the constitution initiating the project in 429 (CTh 1.1.5), the collection was designed to encompass all the general constitutions of the legitimate emperors since Constantine and, as discussed just above, was intended to be universally applicable. In the law of 429 it is explained that the individual constitutions are to be presented on the model of the Gregorian and Hermogenian Codes (ad similitudinem Gregoriani atque Hermogeniani codicis); that is, they are to be grouped under thematic titles, within which they are arranged according to chronological order from oldest to newest.40 Accordingly the Code comprises sixteen books, starting with a traditional topic (sources of law: CTh 1.1, De constitutionibus principum et edictis) and finishing with a likely departure from the avowed models (the matter of correct belief: CTh 16.11, De religione). Despite the innovation of including this entire last book devoted to church matters (CTh 16) and the undoubted piety of the imperial households at both Constantinople and Ravenna, the extent of the Code’s Christian character should not be exaggerated.41 As for chronological coverage, although there is no explicit statement in the Code as it survives, there must have been an understanding of the termini of the period for which its texts were to obtain exclusive validity. Given the absence of explicit evidence, a general vagueness prevails in modern scholarship of the question but, as Timothy Barnes has pointed out, a greater degree of precision is possible.42 The earliest date, as transmitted, in what survives of the Code is 18 January 313 (CTh 10.10.1 + 13.10.1), the latest is 16 March 437 (CTh 6.23.4, on which further below). In the interests of clarity and simplicity of application, it is most likely that the termini were set to coincide with the beginning and end of the relevant consular years, i.e. that the Code was intended to acquire exclusive authority for the period from 1 January 313 (Constantino Augusto III et Licinio consulibus)43 to 31 December 437 (Aetio II et Sigisvulto consulibus). The former date may represent a coincidence of ideological and pragmatic thinking. Its opening is closely synchronised with the simultaneous start of Constantine’s public adoption of Christianity and of the period of his political hegemony in the wake of his conquest of Rome in late October of 312. The closing date is, as we will see (section VI.ii below), not too distant from that of the autumn launch ceremony. The inclusion of a law of 31 January 438 (NTh 3) in the subsequent collection of Theodosius’ Novels shows that its compilers placed the end of the period for which the Theodosian Code possessed exclusive validity certainly earlier than the date of Novel 1 (15 February), in which the emperor describes to the prefect Florentius how the code will enter operation.44 Moreover, the wording of this slightly later constitution allows for the possibility that Valentinian might also already have been issuing post-Code novels, while still in eastern territory, although his earliest preserved novel is in fact as late as 8 July (NVal. 1.1).45 The sort of provisions described above, along with the fact of the Code’s successful introduction to both halves of the empire, might encourage an impression of it being a genuinely shared undertaking. However, it is clear that the Code was very much a Constantinople-based project, and the finished article bears the hallmarks of this origin in several respects.

  • 46 For estimates of the original number of texts in the full Code see Sirks 1993, p. 64-65.
  • 47 For the palingenesia of the legislation from AD 379 to 455, see the diskettes accompanying Honoré 1 (...)
  • 48 Honoré’s catalogue comprises 502 texts for the Honorius and Valentinian III (W93-W596) and 404 text (...)
  • 49 Cf. Honoré 1998, p. 252, who, ignoring the break in 432, diagnoses a more extreme imbalance between (...)
  • 50 Mommsen 1905 [1904], pars 1, p. xxix ; Honoré 1998, p. 174, 251.
  • 51 Honoré 1998, p. 174, 258.
  • 52 CIL VI 41389, lines 13-15: […] delato|rum ut hostium inimicissimo, vindici libertatis, | pudoris ul (...)
  • 53 Delmaire 2008, p. 292.

16Although no intact manuscript of the whole Code survives (the structure of the first five books resting largely on the evidence of Alaric’s later Breviary and their titles repopulated from that source and the Justinian Code), the c. 2,700 entries that remain are estimated to comprise about three quarters of the original extent (c. 3,500 entries) and can, therefore, reasonably be taken to offer a representative picture of the chronological and geographical distribution of the complete collection.46 Using figures derived from the palingenesia provided by Tony Honoré,47 it is clear that for the period since the death of Theodosius the researchers employed by the Theodosian commission were able to provide as much, if not more, historic material from western sources than from eastern. The ratio for the period AD 395 to 428 is roughly 5: 4 (west: east).48 The balance only changes in the period from the initiation of the project (AD 429) to the launch of the Code itself (AD 437), in which the east accounts for forty-three texts, the west only twelve. However, when allowance is given for the fact that the western material ceases as early as AD 432, the real rates of collection are not as divergent as these figures suggest.49 In the same three-year period (429-432) the compilers drew on fifteen eastern laws, which, when compared to the twelve western, represents a reversal of the ratio for 395-428 of 5: 4 (east: west). The fact that the last securely datable western law (CTh 6.23.3) included in the Code is as early as 24 March 432 has not, of course, gone unnoticed; nor has it gone unremarked that it is picked up by the latest datable eastern law (CTh 6.23.4 of 16 March 437).50 Honoré has ascribed this five-year differential to a genuine « legislative vacuum » in the western empire, rather idealistically assuming « this cannot be because laws were enacted which could not be traced. Any general laws enacted in the west in these years would have been included in the Theodosian Code ».51 However, given the realities of government, it is inherently unlikely that the régime in Ravenna could commit itself voluntarily to a legislative purdah simply on the promise of delivery by an authority beyond its control of a standardised code, which had not then yet entered the editing stage (assuming that this work started in 435, with the issue of CTh 1.1.6). After all, this legislative vacuum more or less coincides with the beginning of the domination of the western political scene by the magister militum, Aetius (from AD 433), who was honoured, amongst other things, as one « most hostile to informers as enemies, a champion of liberty, avenger of modesty » on the base to a gilded statue set up to him in the Atrium Libertatis by the Roman Senate and People c. AD 439.52 As Roland Delmaire has proposed, these attributes are more appropriate to actions taken in suggesting legislation than to military exploits.53

  • 54 NTh 2 § 3 : Eas (sc. leges novellae) igitur, domine sancte fili, Auguste venerabilis, cunctis ex mo (...)
  • 55 Honoré 1998, p. 257.

17A closer look at the subject matter of the two latest laws to be included in the Theodosian Code suggests a more mundane explanation for the hiatus in western material. In CTh 6.23.3 Valentinian III confers various privileges on retired members of a category of palatine functionaries known as decuriones and silentiarii. The corresponding eastern law (CTh 6.23.4) reconfirms these privileges and adds further rights relating specifically to residence in Constantinople. Men from such corps as these are exactly the type of officials to whom the Code commissioners might have deputed the research task. The date of CTh 6.23.3 might then coincide with the expiry, after three years, of a mission by such officials, who, seconded since 429 to gather materials in western parts, later extracted a reconfirmation and extension of these privileges relevant to the location to which they had returned. The subsequent lacuna in western legislation simply reflects the fact that after the withdrawal of the eastern mission, whether by mistake or through oversight, Valentinian’s government simply neglected to report any new legislation of potential general significance to its eastern counterpart. That such negligence is plausible is demonstrated by the similarly unresponsive behaviour displayed towards his cousin’s later invitation to reciprocate the exchange of novels.54 In contrast, the Code commissioners, attached to the imperial court in Constantinople, were able to continue incorporating new material, even after the editing phase had begun (marked by the issue of CTh 1.1.6 on 20 December 435), right into the spring of 437, a matter of months before the Code’s launch. This observation lends further support to Honoré’s conclusion that « the compilation of the Code appears […] to rest on eastern initiative, with only a slender supporting western contribution ».55

  • 56 PLRE II, Constantius 17, he was Augustus for seven months in AD 421, from 8 February until his deat (...)
  • 57 Constantius’ name survives in the heading of four of the six excerpts of western laws of these mont (...)
  • 58 Millar 2006, p. 54.
  • 59 Bonifatius, Ep. 10 (ed. J. P. Migne, Patrologiae cursus completus, series Latina, vol. 20, Paris, 1 (...)
  • 60 Migne, PL, vol. 20, col. 771A-B.

18Not only is the Theodosian Code chronologically asymmetrical in its reporting of recent legislation, in at least one demonstrable respect it also embodies a specifically Constantinopolitan viewpoint. This is not, as might be expected, in the field of imperial politics but in the equally contentious sphere of ecclesiastical affairs. For the manuscript evidence suggests that the Code’s editors took a neutral stance on the position of the legitimacy of Valentinian III’s father and Honorius’ short-lived colleague as Augustus in AD 421, Constantius III, who had not been recognised in Constantinople).56 The editors neither deleted his name from the headings of western laws nor inserted it retrospectively in eastern ones.57 In contrast, with respect to events of the very same year, the Code records a partisan version of the prerogatives of the bishop of Constantinople. As recently discussed by Fergus Millar,58 CTh 16.2.45 preserves a law issued by Theodosius II to Philippus, his praetorian prefect of Illyricum, on 21 July 421, asserting the right of the bishop of Constantinople to be a judge of ecclesiastical matters in the prefecture, which comprised the Latin speaking provinces of the diocese of Dacia as well as the Greek speaking ones of the diocese of Macedonia. Preserved in the sixth-century Collectio ecclesiae Thessalonicensis, along with letters of Pope Boniface on the matter, there is a response from his western, senior, colleague Honorius, reasserting the jurisdiction of the See of Rome throughout Illyricum.59 There follows a reply from Theodosius, stating that he has written to the prefects of Illyricum to respect the privileges of Old Rome (Bonifatius, Ep. 11):60

Super qua re, secundum formam oraculi perennitatis tuae, ad viros illustres praefectos praetorii Illyrici nostri scripta porreximus, ut […] antiquum ordinem specialiter faciant custodiri.

On which matter, following the outline of your Perpetuity’s response, we have sent written instructions out to the viri illustres prefects of our Illyricum that […] they should specially ensure that the ancient order is preserved.

  • 61 Falchi 1986.
  • 62 Purpura 2010, arguing (improbably) that the Valentinianic law of 11 June 429, expressing the princi (...)

19This direct exchange between the two emperors is a remarkable survival from a category of material that is not represented in the Code itself. However, whether through ignorance or by design, the Code’s compilers did not include a copy of Theodosius’ scripta to Philippus and his successors, though they ought to have merited consideration. By this omission, the Code leaves the jurisdiction of the bishops of Constantinople in Illyricum unchallenged. Even if there were a possibility of divergent eastern and western traditions of the content of the Code, as postulated by Gian Luigi Falchi,61 the version of book 16 that we possess certainly descends from that promulgated in the west. This clear partiality on ecclesiastical matters is not, however, to be taken as symptomatic of a general attempt to impose a distinctly « eastern » interpretation on legal matters over a western one, as Gianfranco Purpura has recently implied.62 Nevertheless, this example does serve to remind us that, from the point of view of at least some potential users in the west, the impact of imposing a code that ignored all developments of the last five years and incorporated occasionally awkward reading might not be unequivocally beneficial. While implementation of the Code in the east would be a relatively seamless process that caused few ripples, its introduction in the west might have entailed rather more disruption in the administration of legal affairs. It is against the background of the contemporary political situation that the potential scale of the awkwardness of the acceptance of the exclusive validity of the Theodosian Code must be judged.

V. Political context

  • 63 Hierocles, Synecdemus 657.7-9 (ed. E. Honigman, Le Synekdèmos d’Hiéroklès et l’opuscule géographiqu (...)
  • 64 Cassiodorus, Variae 11.11.9 (of AD 533) : [Placidia] nurum […] sibi amissione Illyrici comparavit f (...)
  • 65 On the period 434-439 as « years of hope » see Heather 2000, p. 8-10.

20The current western régime of Valentinian III and his mother, Galla Placidia, certainly owed its existence to eastern sponsorship. The five-year-old Valentinian had been installed by an eastern expeditionary force sent in 425 to depose the « usurper » John and had continued to rely on military assistance from Constantinople to keep the Vandals in check in North Africa. However, it would be wrong to regard it as the junior partner in all respects and thus straightforwardly submissive to the will of Constantinople. After all, the empress might legitimately consider herself superior to her Constantinopolitan counterparts as the senior living member of the Theodosian dynasty. Moreover, the long-term political stability of the régime was built upon reconciling those, such as the general Aetius, who had sided with the late Honorius in the rift with his sister Placidia and who, after the emperor’s death, had gone on to support the candidacy of John. For such men, adherence to Valentinian III already meant coming to terms with certain uncomfortable concessions to eastern superiority. Acknowledgement of the legitimacy of Constantinople’s claim to govern the dioceses of Dacia and Macedonia, which Honorius had disputed with his brother Arcadius after the split of 395, was implied by the additional transfer of the province of Pannonia Secunda, with the strategically important city of Sirmium, to eastern control.63 This concession, which, if it had not already been extracted in association with Valentinian’s betrothal to Theodosius’ daughter and the expedition of 424-425, will have been granted to coincide with his marriage to her in 437. This transfer was still remembered in Roman political circles as a humiliation attributable to Placidia a century later.64 Resentment at this exploitation of advantage by Constantinople at a moment of western weakness may have deepened with renewed confidence after military and diplomatic successes in the 430s, many of them scored by Aetius. Optimism was justified and the ministers of the eighteen-year-old Valentinian clearly felt confident enough in the stability of the government to allow him leave his realm to join Theodosius in the east for the wedding in autumn 437.65 Thanks no doubt to the support demonstrated by Constantinople, Valentinian’s régime commanded some respect from the barbarians. Relations with the Huns on the middle Danube were cordial, in Gaul and Spain bagaudae had been suppressed, the Burgundians defeated, the Visigoths and Suevi confined within bounds and held to treaties, and in Africa the Vandals’ westward advance appeared to have been contained.

21In the light of recent history, if perceived as involving some form of capitulation to Constantinople, the introduction of the Theodosian Code into the western provinces can be seen as an unnecessary further irritant, with the potential to alienate elements of the western political classes. Of course, its significance should not be overestimated. Exciting as it might be to modern historians and legal scholars, to contemporaries the advent of the Theodosian Code was no doubt a minor side-show compared with military affairs and doctrinal wranglings. A good indicator of its real significance is provided by the fact that, while it was considered of sufficient note to be remarked upon by the compiler of the Gallic chronicle of 452 (as discussed in section I above), this assessment was not shared by any other chronicler of fifth-century events. This, then, is the background against which the surviving documentation is to be read.

VI. The Gesta senatus

  • 66 Atzeri 2008, p. 117-118.
  • 67 GS 1 : dum convenissent habuissentque inter se aliquamdiu tractatum, ibi ingressis ex praecepto Ana (...)
  • 68 GS 7 : quem [sc. Veronicianum] amplitudinis vestrae mecum consensus elegit (« [Veronicianus], whom (...)

22Leaving aside the accompanying C. de constitutionariis (on which see further section VIII below), structurally the Gesta comprise three intertwined elements: (i) the formal framing narrative composed by the secretary (exceptor) to the senate, Flavius Laurentius (GS 1 and 4, and the openings of 3, 6, and 7); (ii) the words addressed to the gathered senators by Faustus, quoted in direct speech (GS 2, 3, 6, and 7), including a reading out from the Code of the original constitution (CTh 1.1.5) establishing the Code project (GS 4); and (iii) the fifty-one acclamations by the senators that intersperse the proceedings, again reported as direct speech, with a note recording the number of times each was repeated (the largest group being the series of forty-three acclamations at GS 5). That Faustus is the only individual to have his words quoted does not mean that no other individual spoke at this session. On the contrary, as Atzeri has recently emphasised,66 the Gesta are an explicitly partial record. The opening section alludes to lengthy debate and the summoning in of the constitutionarii that had preceded the parts minuted.67 This prior discussion no doubt generated the list of quite specific requests incorporated in the acclamations (GS 5; discussed in section VI.iii below) and the entrusting of oversight of the copying process to a vir spectabilis Veronicianus, mentioned by Faustus in the last section of the Gesta.68

VI.i - Faustus and the Gesta senatus

  • 69 Harries 1999, p. 69.
  • 70 GS 1 : in domo sua, quae est ad Palmam. On localisation of this domus ad Palmam see Guidobaldi 1999
  • 71 N.Val. 2.2, addressed to him as praetorian prefect was posted up in Trajan’s Forum on 13 August 442
  • 72 See Matthews 2000, p. 32, 52.

23The unique position granted to Faustus in the structure of the minutes accords with the general impression that the dossier « reads like […] an extended exercise in sycophancy », as Jill Harries has termed it.69 By happy coincidence, even before any mention of his current tenure of the praetorian prefecture, Faustus’ own contemporary political importance and supreme dignity are established right from the opening consular date, in which Faustus enjoys the signal honour of sharing the ordinary consulship with the senior emperor: Domino <nostro> Flavio Theodosio Aug(usto) <XVI> et Anicio Ac{h}il{l}io Glabrione Fausto v(iro) c(larissimo) consulibus (GS 1). A repetition of his name, this time with his full panoply of titles and offices, immediately follows, at the head of the list of those present: Anicius Ac{h}il{l}ius Glabrio Faustus v(ir) c(larissimus) et inl(ustris), tertio expraefecto urbi, praefectus praetorio et consul ordinarius (« Anicius Acilius Glabrio Faustus vir clarissimus and illuster, three times former prefect of the city of Rome, praetorian prefect and ordinary consul »). Moreover Faustus’ stage-management of the senate meeting is suggested by the fact that the Gesta go on to reveal the location of this particular session as his own mansion ad Palmam.70 It is also surely no accident that Valentinian III’s rescript of 443 to the constitutionarii, accompanying the Gesta, was the outcome of an approach by the same Faustus, perhaps while he had been holding the office of praetorian prefect for the second time in 442.71 Faustus perhaps felt that his own reputation was at stake in ensuring proper regulation of the dissemination of the Code, or was reminded of this by the constitutionarii, as his clients.72 In the Gesta that they had appended to their petition, Faustus had, after all, been acclaimed by his fellow senators as « the worthy purveyor of such great benefits » and « preserver of the laws, preserver of the decrees » (GS 5: tantorum beneficiorum dignus perlator […] conservator legum, conservator decretorum). This emphasis in the Gesta on the centrality of Faustus to the Code’s dissemination forms the context in which his account of its receipt is framed (GS 2-3; examined in detail in section VI.ii below).

  • 73 Matthews 2000, p. 7.
  • 74 CIL XIV 2165 = ILS 1283 (photograph in Granino Cecere 2005, nr 83, p. 99) : Anicio Ac{h}ilio Glabri (...)
  • 75 Marcell. com. (Monumenta Germaniae Historica-Auctores antiquissimi, XI, Chronica minora saec. IV. V (...)
  • 76 Unilateral proclamation of this type had become common since the breakdown of arrangements for co-o (...)
  • 77 NTh 4 (25 Feb. 438) is dated Theod(osio) A(ugusto) XVI cons(ule), NTh 5.1 (9 May 438) Theod(osio) A (...)
  • 78 NTh 6 (4 Nov. 438 : Constantinople), P.Köln II 103 (Nov./Dec. 438 : Oxyrhynchus, Egypt) ; see Bagna (...)
  • 79 Volusianus may not have held the urban prefecture as many times as Faustus but was his senior in ot (...)

24Conversely, Faustus’ particular prestige in 438 was intimately connected with the delivery of the Code. For, as Matthews has emphasised, Faustus’ reception of the Code is probably the very reason for his promotion to the praetorian prefecture.73 As already three times ex-prefect of the City of Rome by 437, Faustus would certainly have been among the most senior in what was no doubt a sizeable high-level delegation from Rome but he had certainly not arrived in Constantinople already in post as praetorian prefect. For, on the closely contemporary statue-base dedicated by the town of Aricia, much is made of the fact that Faustus enjoyed the unusual honour of receiving his appointment as praetorian prefect from both emperors together: utriusque imperii iudiciis sublimato (« elevated by the judgements of both authorities »).74 Faustus’ appointment, then, cannot have pre-dated 21 October 437, when Valentinian arrived in Constantinople for his wedding the following week, and may have been made specifically in anticipation of the Code’s unveiling. Moreover, a point not made by Matthews is that Faustus also cannot have arrived in Constantinople already designated as ordinary consul from the kalends of January next. Indeed, despite the rare opportunity for co-ordination afforded by the emperors’ presence together, the ordinary consulship that Faustus celebrated on 1 January in Thessalonike, where Valentinian overwintered on his way back to Italy,75 does not even seem to have been agreed before Valentinian’s entourage left Constantinople again in November or December. For, had Faustus’ designation been announced in advance of Valentinian’s departure for Macedonia, it is hard to understand why the eastern court began the year by dating according to the regular interim formula Theodosio Aug(usto) XVI cons(ule) et qui fuerit nuntiatus (« Theodosius Augustus consul for the sixteenth time and he who will have been announced »), which survives in the subscripts of Theodosius’ two earliest Novels of 438 (NTh 3 and 1).76 The eastern court may have become aware of Faustus’ consulate by early May, if the subscription of Theodosius’ Novel 5.1 in the manuscripts genuinely reflects the state of knowledge at the time.77 Otherwise, the earliest surviving explicit evidence for acknowledgement of Faustus’ consulate in contemporary documents from the eastern empire comes from as late as November.78 It seems, then, that, unlike the praetorian prefecture conferred by both emperors, Faustus only successfully secured the honour of the consulship, from Valentinian alone, once the return journey had already begun. Perhaps the terminal illness of a fellow member of the western mission in Constantinople, Rufius Antonius Agrypnius Volusianus, who was Faustus’ senior in several respects,79 deprived Valentinian of his original candidate for both the recipient of the Code and the nomination for western consul of 438. Thanks to the good fortune of being the recipient of the Code, Faustus returned to Italy with his dignity, and no doubt self importance, significantly enhanced.

VI.ii - The launch ceremony of 437 in Constantinople

25Faustus presents the publication of the Code as one of the « ornaments of peace » (ornamenta pacis) alongside the wedding he had attended in Constantinople on 29 October 437 of the eighteen-year-old western emperor to Licinia Eudoxia, the fifteen-year-old daughter of his cousin Theodosius II (GS 2):

Proximo superiore anno cum felicissimam sacrorum omnium coniunctionem pro devotione comitarer, peractis feliciter nuptiis hanc quoque orbi suo sacratissimus princeps dominus noster Theodosius adicere voluit dignitatem, ut, in unum collectis legum praeceptionibus, sequenda per orbem sedecim librorum compendio, quos sacratissimo suo nomine voluit consecrari, constitui iuberet. Quam rem aeternus princeps dominus noster Valentinianus devotione socii, affectu filii conprobavit.

This last year, when I was attending, as a mark of devotion, the most happy union of all sacred ceremonies, after the nuptials had been successfully performed, the most sacred emperor, our lord Theodosius, wished to add this honour also to his world: that, with the precepts of the laws having been gathered together, he should order that the regulations to be followed throughout the world be established in a compendium of sixteen books, which (books) he wished to be consecrated with his most sacred name. The eternal emperor, our lord Valentinian, with the devotion of a colleague and the affection of a son, approved this matter.

  • 80 Gaudemet 1954, p. 322, n. 6. Cf. Sirks 2007b, p. 201, 204-205.
  • 81 Matthews 2000, p. 6, with n. 19 ; Sirks 2007b, p. 203-204.

26Here, contrary to Sirks, I agree with Jean Gaudemet in understanding the reference to orbis suus (rather than pars sua) to reflect Faustus’ understanding of Theodosius’ global (and not merely eastern ambition) for the project.80 After all, even if the Code was compiled in Constantinople, its promulgation in the west as well as the east had been anticipated from the outset. It is implicit in Theodosius’ reference in the launching manifesto of 429 (CTh 1.1.5) to the very close binding together of the parts of the empire (coniunctissimum imperium) and is paralleled by the senior emperor’s similar ambitions for ecumenical harmony on Christian doctrine, evidenced by the summoning in the following year of Latin as well as Greek churchmen to the Council of Ephesus, which sat in 431. On the other hand, a meeting of the Augusti of east and west was too rare a spectacle for it to have been a long planned part of the process of promulgation. Nevertheless the happy coincidence of Valentinian’s presence in Constantinople with the completion of the Code project certainly facilitated the process. This permitted the staging of a ceremony that could symbolise the simultaneous launch of the Code in east and west. That this event was intended to represent a joint launch is confirmed by Faustus’ explicit reference to the western emperor’s positive assent to this matter (quam rem [...] conprobavit). The precise substance of this « matter which he approved » has been the subject of some recent scholarly conjecture. Matthews talks of Valentinian’s having « approved this project » and/or of his « assent » (to its publication?), whereas Sirks prefers to understand approval of the Code’s introduction (without implying the establishment of its exclusive authority).81 Given that quam rem follows immediately upon constitui iuberet, the res approved by Valentinian is most likely intended specifically as the constitutio (« establishment ») of the Code as an authoritative legal compendium for the Roman world rather than generally the Code project as a whole. The formal launch by both emperors is, then, the purpose of the ceremony next described by Faustus to the senate (GS 3):

Vocatis igitur me et inl(ustri) viro illius temporis Orientis praefecto, singulos codices sua nobis manu divina tradi iussit per orbem sui cum reverentia dirigendos, ita ut inter prima vestrae sublimitatis notioni provisionem suam sacratissimus princeps iuberet offerri. In manu est acceptus codex utriusque principis praeceptione directus.

Therefore, when I and the vir illustris, prefect of Oriens at that time, had been summoned, he (sc. Theodosius) ordered to be handed to us from his divine hand individual codices to be dispatched throughout the world in reverence of him, just as, as a matter of priority, he ordered that his provision be presented to the cognizance of your sublimity. To hand is the codex received as directed by the command of both emperors.

  • 82 Faustus is conscious that his colleague had been superseded by the time he was speaking, which suit (...)
  • 83 E.g. Wieling 2002 (on which see Sirks 2007b, p. 199) ; cf. Sirks 1986, p. 275-280, and Sirks 2009, (...)
  • 84 So Mommsen 1905 [1904], pars 1, p. xi, « id enim ab hoc aevo alienum est » and Sirks 2007b, p. 198- (...)

27Faustus and his anonymous colleague (who ought probably to be identified as Darius)82 occupied the two most important of the then four praetorian prefectures into which the civil administration of the empire had been divided since AD 395 (the Gauls and Italy-Africa-Illyricum in the West, Illyricum and Oriens in the East). As noted above (section VI.i), it had been as a then very newly appointed prefect that Faustus received his singulus codex for dispatch « throughout the world » (per orbem), a mission that he describes as having been entrusted to him and the prefect of Oriens « by the command of both emperors » (ita ut utriusque principis praeceptione). As scholars have noted,83 this would seem to preclude a separate and subsequent moment of publication by Valentinian for the west. From a legal point of view, then, promulgation or formal approval is certainly not the purpose of the meeting of the senate.84

VI.iii - The business of the senate meeting of 438 in Rome

  • 85 Matthews 2000, p. 35-49, esp. 43-44.
  • 86 Fl. Paulus v(ir) c(larissimus) et inl(ustris) urbis praefectus, specifically named as present at th (...)
  • 87 PLRE II, Aetius 7. He won battle of Mons Colubrarius against Visigoths in Gaul in 438 (Fl. Merobaud (...)
  • 88 GS 5.IV, 3-4 : Desideria senatus ut suggeras, rogamus! Dictum XX. Conservator legum, conservator de (...)

28After Faustus’ informative « flashback » to events in Constantinople, the proceedings continue, on the prefect’s suggestion, with a reading out of the programmatic law of 26 March 429 (CTh 1.1.5; GS 4), which outlined the original compilation project. This recitation was then greeted by a series of forty-three acclamations by the senators (GS 5). These acclamations have recently been the subject of a penetrating analysis by Matthews.85 What follows builds upon that analysis and adopts its helpful numeration. The sequence comprises twenty-two acclamations addressed to the (absent) emperors (5.I), five to Faustus (5.II.a), four to Paulus, prefect of the City (5.II.b),86 four to the two prefects together (5.II.c), four to the magister militum Aetius, currently campaigning in Gaul (5.III),87 and a final group of four to Faustus again (5.IV). The sequence culminates in the senators’ request that Faustus report their wishes to the emperor and their characterisation of the prefect as preserver of laws and decrees.88

  • 89 Taking sumptu publico with fiant (as Pharr 1952, p. 6) rather than with in scriniis habendi (cf. Ma (...)
  • 90 Mommsen 1905 [1904], pars 2, p. 3, lines 7-12)

29The acclamations of real substance relate overwhelmingly to measures designed to preserve the integrity of the text of the Theodosian Code and ensure its availability. The emperors are asked that, in order to minimise the risk of interpolations, multiple copies of the Code be made at public expense,89 that these be held in public bureaux under seals (sub signaculis), and that they be written out fully without either standard or technical legal abbreviations (5.I.c, lines 5-10):90

  • 91 My text here reflects the suggestion adhibeantur (for the manuscript’s adscribantur) that was prefe (...)

Plures codices fiant habendi officiis ! Dictum X.
In scriniis publicis sub signaculis habeantur ! Dictum XX.
Ne interpolentur constituta, plures codices fiant ! Dictum XXV.
Ne constituta interpolentur, omnes codices litteris conscribantur ! Dictum XVIII.
Huic codici, qui faciendus a constitutionariis, notae iuris non ad<hibe>antur !
91 Dictum XII.
Codices in scriniis habendi sumptu publico fiant, rogamus ! Dictum XVI
.

« May multiple codices be made for keeping in the offices ! » Said 10 times.
« May they be held in the public bureaux under seals ! » Said 20 times.
« So that the laws established are not interpolated, may multiple codices be made ! » Said 25 times.
« So that the laws established are not interpolated, may all the codices be written out (fully) in letters ! » Said 18 times.
« May legal signs not be employed in that codex, which is to be made by the constitutionarii ! » Said 12 times.
« We request that the codices to be held in the bureaux be made at public expense ! » Said 16 times.

  • 92 GS 5.II.a, 4 : Codices conscripti ad provincias dirigantur! <Dictum> XI (« May the codices written (...)
  • 93 GS 5.II.b, 3-4 : Ut in scriniis publicis habeantur, rogamus! Dictum XV. Ad curam pertineat praefect (...)
  • 94 GS 5.II.c, 1-4 : Singuli praefecti signacula sua adhibeant! Dictum XV. In officiis suis singulos co (...)
  • 95 C. de const. : … id, quod invictissimus princeps pater clementiae nostrae in custodiendi Theodosian (...)
  • 96 Καλλιγράφος : Georgius Monachus, Chronicon (ed. C. de Boer, Leipzig, 1904), p. 604, 8f. On Theodosi (...)
  • 97 P.Oxy. 1813 of the fifth or early sixth century (Oxyrhynchus, Egypt).

30After these more general concerns about the preservation of the Code, the acclamations turn to more specific suggestions. It is suggested to Faustus that copies be made for despatch to the provinces,92 while Paulus is given the responsibility of ensuring that that copies are held in the public bureaux.93 The two prefects together are enjoined to apply their seals to the copies that are deposited in their offices and are requested that no laws be issued in response to surreptitious petitions by possessores (landholders) because these subvert the ius commune (« the rights of all » , a phrase equivalent to utilitas publica).94 The inspiration for the stipulations about copying and preservation of Code is not identified here. However, in his rescript to the constitutionarii of 443, Valentinian III makes it clear that what is outlined by the senate in the Gesta the senate reinforces provisions already prescribed by Theodosius for the protection of the Code (see further section VIII below).95 The eastern emperor apparently fancied himself as a gentleman scribe, acquiring the nickname καλλιγράφος (« calligrapher ») in later Byzantine tradition, and so might reasonably be supposed to have views on regulations for ensuring the production of an accurate and unambiguous text.96 A stray surviving parchment sheet from an eastern copy of the Theodosian Code displays the same characteristics as the early western manuscripts, in being unadorned with scholia and having the main text of each constitution written out without technical abbreviations.97 The additional reinforcement added to the instructions from Constantinople may be the process for controlled reproduction delegated to the two constitutionarii, whose work had already been alluded to by the senators in their acclamations (GS 5.I.c, line 9) and is expatiated upon by Faustus in what follows.

31After a brief exchange reflecting on the particular honour accruing to him as deliverer of the Code (GS 6), in the last section of the Gesta Faustus expands upon the task assigned specifically to his responsibility. In outlining this he places a repeated emphasis on the central importance of fides (fidelity, trustworthiness) in each stage of the process (GS 7) :

Erit nunc meae diligentiae secundum dominorum praecepta et desideria culminis vestri, ut hic codex fide spectabilis viri Veroniciani, quem amplitudinis vestrae mecum consensus elegit, nec non et fide Anastasii et Martini constitutionariorum, quos iam dudum huic officio inservire praeter culpam probamus, per tria corpora transcribatur, ut, hoc quem detuli in officio praetoriani apicis remanente, paris fidei viri magnifici praefecti urbi scrinia alterum teneant, tertium vero constitutionarii sua fide et periculo apud se edendum populis retinere iubeantur, ita ut nisi a constitutionariis ex hoc corpore eorundem manu conscripta exemplaria non edantur. Si quidem erit meae diligentiae etiam illam tractare partem, ut conscriptus per hos alius codex ad Africam provinciam pari devotione dirigatur, ut illic quoque paris fidei forma servetur.

According to the lords’ precepts and your eminence’s desires, it will now be my responsibility that this codex is copied across into three exemplars by the fidelity of the vir spectabilis Veronicianus, whom the consensus of your amplitude has chosen with me, not to mention also by the fidelity of the constitutionarii Anastasius and Martinus, whom we have approved as having served faultlessly in this rôle for a long time already. Thus, while this one that I have delivered remains in the office of the heights of the praetorium, the bureaux of the vir magnificus prefect of the city shall hold a second of equal fidelity, a third indeed the constitutionarii shall be ordered to retain in their keeping, on their own trust and at their own risk, for publication to the people, so that no copies may be published unless transcribed from that exemplar by the constitutionarii, in their own hand. Though, of course, it will be my responsibility to perform this rôle also : that another codex written out by these men be dispatched with like devotion to the province of Africa, in order that there too a model of equal fidelity may be preserved.

  • 98 Mommsen 1905 [1904], pars 1, p xi, n. 1.
  • 99 E.g. Gaudemet 1962, col. 1218 [p. 286], Martindale in PLRE II, Anastasius 14, and Martinus 5, Mari (...)
  • 100 Pharr 1952, p. 6, n. 62, Matthews 2000, p. 49-51.

32Faustus’ explanation may not be expressed in the clearest fashion but, it seems to me, that it has been regularly misconstrued over the last century, primarily because the phrase per tria corpora transcribatur (« copied across into three exemplars ») has been treated as an equivalent to tradatur per tria corpora (« transmitted by three exemplars »). In the Prolegomena to his edition of 1904 Mommsen criticised Faustus for talking of three exemplars to be copied by the constitutionarii under the surveillance of Veronicianus, when he went on to describe four codices in total.98 This has given rise to a view that the tria corpora designate three copies of particular fidelity, in the hands of the praefectus praetorio, the praefectus urbi, and the constitutionarii respectively, with that for Africa in a subordinate category.99 Clyde Pharr, followed by Matthews, understood the tria corpora to designate three « groups » (Matthews, « classes ») of manuscripts, i.e. three potential parallel sources for subsequent transmission : (i) Faustus’ copy ; (ii) that of the urban prefect ; and (iii) that of the constitutionarii, with that despatched to Africa dependent on the latter (fig. 1).100

Fig. 1 - Diagram showing transmission of CTh reported in the Gesta Senatus (after Matthews 2000, p. 51).

Fig. 1 - Diagram showing transmission of CTh reported in the Gesta Senatus (after Matthews 2000, p. 51).
  • 101 Sirks 2007b, p. 169-171.

33With the explicit identification of Faustus’ copy as one master copy for the west and Darius’ as the equivalent for east, Sirks has embraced this analysis and grafted it onto Paul Maas’ stemma of the manuscript tradition (fig. 2) :101

Fig. 2 - Diagram showing transmission of CTh (after Sirks 2007b, p. 170).

Fig. 2 - Diagram showing transmission of CTh (after Sirks 2007b, p. 170).
  • 102 Krüger 1888, p. 290, followed by Wenger 1952, p. 538.
  • 103 Crescenzi 2003, 295, n. 70, idem 2007, p. 312-314.

34However, despite the weighty authority of Mommsen and these eminent disciples, an alternative interpretation, expressed by Krüger and others,102 can be shown to be preferable. Faustus may justifiably be convicted of expressing himself poorly in his enumeration of the codices – making the copy for Africa sound like an afterthought – but, as Victor Crescenzi has recently emphasised,103 the prefect can be taken at his word. His reference to ensuring the transcription of three corpora makes perfect sense when the copy for Africa is included amongst their number. The tria corpora are the next generation of codices transcribed directly from Faustus’ archetype. Thus Faustus is not contradicting himself when he lists four exemplars in total. It is the ambiguity arising from the absence of a definite or indefinite article in Latin that has misled Mommsen and his followers. First is the archetype that is to remain in his care (hoc […] in officio praetoriani apicis remanente), then come the three parallel exemplars (tria corpora) transcribed from it : (i) a (not the) second copy to be held by the bureaux of the urban prefect (praefecti urbi scrinia alterum teneant) ; (ii) a (not the) third, to be retained as the archetype for all public copies produced by the constitutionarii (tertium vero constitutionarii […] retinere iubeantur) ; and finally (iii) one other to serve as a model of equal fidelity in Africa (alius codex ad Africam provinciam […] dirigatur, ut illic quoque paris fidei forma servetur), as illustrated in fig. 3.

Fig. 3 - Destinations of the tria corpora copied from Faustus’ archetype (after Salway 2012, fig. 8).

Fig. 3 - Destinations of the tria corpora copied from Faustus’ archetype (after Salway 2012, fig. 8).
  • 104 Not the prefect, as stated anachronistically by Krüger 1888, p. 290 (presumably by confusion with p (...)
  • 105 Jones 1964, II, p. 481.
  • 106 Crescenzi 2007, p. 314-315.
  • 107 Atzeri 2008, p. 228.

35If the likely recipient of the copy for Africa is correctly identified as the proconsul,104 then, the constitutionarii aside, those included in the scheme represent a coherent group, i.e. the chief judges of appeal within the prefecture of Italy, Africa, and Illyricum : the praetorian prefect at court, the urban prefect at Rome, and the proconsul in Carthage.105 This parallel status draws attention to the uniform purpose of these copies : the codex dispatched to the proconsul was, like those left in the care of the praetorian and urban prefects, intended to remain on deposit (presumably also in this case sub signaculis) to be consulted as a reliable point of reference, not to serve as model for further copying.106 In addition, it is a mistake to consider Faustus’ narrative here as describing the entire process for publication of the Theodosian Code in the west.107

VII. Faustus’ sphere of responsibility

  • 108 Harries 1999, p. 64 ; Crescenzi 2007, p. 313 ; Atzeri, 2008, p. 230.
  • 109 E.g. Karlowa 1885, p. 945 n. 1.

36If the above analysis is correct, then Faustus’ promise to despatch a copy of the Code to Africa is not offered exempli gratia of a general responsibility for provincial dissemination of the Code throughout the entire western empire. Nevertheless, the neat symmetry of the presentation by Theodosius and Valentinian of copies of the Code to the holders of the two chief prefectures has led most commentators to assume that these two prefects were thereby being charged with dissemination of the Code throughout both partes imperii.108 Traditionally the few scholars that have confronted the question of dissemination to the Gallic prefecture in the west and that of Illyricum in the east have concluded that the two « senior » praetorian prefects would have passed copies of the Code on to their « junior » colleagues.109 The idea that the prefect of Oriens would be responsible for distribution throughout the pars Orientis, if not even the entire empire, is certainly encouraged by the universal tone in the valedictory coda to Theodosius’ first Novel (NTh 1, § 8) :

Quod restat, Florenti p(arens) k(arissime) a(tque) a(mantissime), inlustris et magnifica auctoritas tua, cui amicum, cui familiare est placere principibus, edictis prop(ositis) in omnium populorum, in omnium provinciarum notitiam scita maiestatis augustae nostrae faciat pervenire.

What remains, Florentius my dearest and most beloved father, is for your illustrious and magnificent authority, to whom it is congenial, to whom it is familiar to please the emperors, to see to it that by the posting of edicts the decisions of our august majesty reach the notice of all peoples and of all provinces.

  • 110 E.g. NTh 13 (13 Aug. 439), § 3 [Thalassius PPo Illyrici] … edictis propositis eam (sc. legem) ad om (...)
  • 111 As occasionally explicitly noted : e.g. two fragments of the same law of 3 Apr. 436 (CTh 8.4.30 and (...)
  • 112 Sirks 2007b, p. 211.
  • 113 Mommsen 1851, p. 281 [378] n. 22 ; Atzeri 2007, p. 264 n. 19, eadem 2008, p. 243 n. 100.
  • 114 Heather 2000, p. 8-14. For the situation in the Iberian peninsula specifically, see Kulikowski 2004 (...)

37However, this phraseology is closely mirrored in the publication clauses of many contemporary imperial constitutions, including examples issued to the praetorian prefect of Illyricum, and other examples attested as issued in copies to both of Theodosius’ prefects.110 So it is entirely in keeping with contemporary practice for a parallel copy of Novel 1 (presumably with an alternatively personalised coda) to have been sent to Florentius’ colleague, the prefect of Illyricum.111 Sirks, however, has specifically cited the omission of the prefect of the Gauls from Faustus’ list of recipients of archive copies as evidence of a lack of proper system to the distribution and a hint that its adoption was not to be mandatory in the west.112 Atzeri, on the other hand, picking up a remark by Mommsen, simply dismisses this apparent lapse as inconsequential, on the grounds that the empire was more or less synonymous with Faustus’ prefecture, Gaul and Spain, she claims, having been already effectively lost and Africa too on the point of being conquered by the Vandals.113 This perspective, which might almost be justifiable in relation to the latter part of Valentinian’s reign, is certainly not recognizable as one that would be shared by his chancery before the fall of Carthage to the Vandals in 439 and the impact of the Huns in the 440s.114 In fact, rather than oversight or lack of systematic process, there is a simpler explanation for the omission of Gaul but inclusion of Africa that accords far better with the contemporary political and jurisdictional framework : the process that Faustus described in GS 7 related only to that territory within his own specific sphere of responsibility as praetorian prefect of Italy, Africa, and Illyricum.

  • 115 Feissel 1991, p. 448-456 [410-419].
  • 116 A principle established in CTh 11.30.16 (AD 331) ; see Jones, 1964, II, p. 481.
  • 117 GS 5.II.a, 4 : Codices conscripti ad provincias dirigantur! (« May the codices written out be despa (...)

38For, although a new two-level hierarchy of status had developed amongst the four praetorian prefectures that had existed since 395, this should not be taken to imply the overarching jurisdiction of the greater over the lesser prefectures in each half of the empire. As Denis Feissel’s study of prefectural pronouncements has shown, by the 430s the two larger prefectures (Oriens, comprising five dioceses ; Italy, Africa, and Illyricum, comprising four), which also happened to host the imperial courts, were clearly considered more prestigious than the two smaller ones (the Gauls, after the loss of Britain, comprising three dioceses, and Illyricum, comprising just two).115 Nevertheless, as reflected in their equal position in the system of judicial appeal (as the only category of appeal judge from whom there was normally no recourse to the emperor),116 the lesser prefectures retained a jurisdiction independent of, and parallel to, the greater. I propose that Faustus makes no mention of Gaul or Spain in the Gesta senatus simply because his writ did not run there. This explains the mismatch between the senators’ request that copies be despatched to the provinces (reflecting their own purview, which encompassed the entirety of the western realm)117 and Faustus’ more limited response. As befitted the territorial limits of his competence, in explicitly mentioning Africa, Faustus was demonstrating his concern for the needs of the only overseas part of his prefecture.

VIII. The rescript of 443 and the rôle of the constitutionarii

  • 118 On the difficulties of this text, of which the first few lines are heavily based on modern conjectu (...)

39If the jurisdictional boundaries of Faustus’ office meant that his responsibility for establishment of reference copies of the Code ran only to the provinces of his own prefecture, how does this relate to the rôle of the enigmatic constitutionarii, for whose position there is no evidence external to these texts ? As noted above (section I), the Gesta senatus have only been transmitted thanks to their preservation as the documentation supporting the petition of the constitutionarii to Valentinian III. This petition does not itself survive but its thrust can be reconstructed from the emperor’s convoluted response of 23 December 443 that follows the Gesta in the Ambrosian manuscript (Mommsen 1905 [1904], pars 2, p. 4) :118

Quantum consulente viro inl(ustri) Fausto praefecto praetorio numinibus nostris subdita senatus amplissimi gesta testantur, vidimus id, quod invictissimus princeps pater clementiae nostrae in custodiendi Theodosiani codicis observatione praecepit, a senatu diligentia maiore munitum, ut hi ad edenda exemplaria haberent tantum licentiam contributam, quos manebat periculum, si quid edita falsitatis habuissent. Et ideo vir inl(uster) p(raefectus) u(rbi), parens amicusque noster, ad cuius diligentiam pertinet observare diligentius, quod pro omnium cautela decrevit senatus, sciet vobis licentiam in edendis exemplaribus contributam, confectionem quoque memorati corporis vestro tantum periculo procurandam, nec habeant vel de editione vel de confectione commercium, cum ad vos certum sit redundare de falsitatis discrimen, interminatione multae precibus comprehensae et sacrilegii poena constringi tam cognitionale officium quam eos, qui nostris minime paruerunt constitutis, omni obreptione cessante.

  • 119 The unstated subject of habeant appears to be equated with the collective cognitiale officium.

We have seen, with Faustus, vir illuster praetorian prefect, conferring with our authority and as far as the appended proceedings of the most ample senate bear witness, that what the most invincible emperor, the father of our clemency, ordained to be observed for the protection of the Theodosian Code had been reinforced with greater diligence by the senate, so that it was solely those that had the licence granted them to publish copies whom the risk hung over, if the publications possessed anything false. And therefore, the vir inluster prefect of the city, our relative and friend, to whose care it pertains to observe more carefully what the senate decreed for the security of all, should know that the licence to publish copies has been granted to you, as well as the responsibility of manufacture of the aforementioned work at your risk alone, and that, with every infringement ceasing, they (sc. the officiales)119 shall not have any trade in publication or manufacture, since it is certain that the peril of falsity redounds to you, and that the judicial office is to be constrained by the threatening fine envisaged in the petition and by the penalty for sacrilege just as would those who have not in the least obeyed our regulations.

  • 120 E.g. Wieling 2002, p. 871 : « die beiden Kanzleibeamten Flavius Anastasius und Hilarius Martinus »  (...)
  • 121 primicerius notariorum : von Savigny 1839, p. 219 [268] ; magister scriniorum : Mommsen 1851, p. 37 (...)
  • 122 Volterra 1980, p. 139 [311] ; PLRE II, Anastasius 14, and Martinus 5.
  • 123 Easterner: Mommsen 1905 [1904], p. xi ; easterner and legal scholar : Matthews 2000, p. 49.
  • 124 Matthews 2000, p. 49.
  • 125 Mommsen 1905 [1904], pars 2, p. 3, lines 20-21.
  • 126 Gaudemet 1962, col. 1218 [p. 286].
  • 127 PLRE II, Anastasius 14, p. 82.
  • 128 Atzeri 2007 ; Atzeri 2008, p. 235-259.
  • 129 Morris and Roxan 1977.

40One impediment to appreciating fully the situation that generated this rescript is the assumption generally made concerning the constitutionarii : that is, that they occupied an office in an arm of government.120 However, this is far from certain and, I will suggest, not the most plausible solution. As outlined by Faustus (GS 7, quoted above in section VI.iii), the constitutionarii, Anastasius and Martinus, are to transcribe the three reference copies under the supervision of the vir spectabilis, Veronicianus, whose rank is senatorial but his position not stated, and then on their own responsibility are to retain their copy as the source for publication to the general public. Given his relatively exhalted rank, it has been suggested that Veronicianus occupied a palatine office, such as primicerius notariorum or magister scriniorum,121 whence the proposal that the two constitutionarii were subordinate palatine functionaries,122 who would normally be based at Ravenna at this period. At the same time, on onomastic grounds, it is plausibly proposed that Veronicianus is an easterner, perhaps a law professor, sent west to ensure that Theodosius’ instructions for the preservation of the text are carried out.123 Matthews thus suggests that Anastasius and Martinus might have accompanied Veronicianus westwards.124 On the other hand, combining the acclamation directed at the urban prefect, Paulus, that assigns him the responsibility for ensuring that the public bureaux (scrinia publica) have copies of the Code (GS 5.II.b, lines 3-4),125 with the reminder in Valentinian’s rescript to one of Paulus’ successors about the monopoly of the constitutionarii, Gaudemet imagined Anastasius and Martinus to work on the staff of the urban prefect in Rome.126 John Martindale, misunderstanding that the copy at hand was the very one received by Faustus in Constantinople, interpreted the prefect’s praise for their blameless service in this duty (huic officio) for some time already (GS 7) as indicating that Anastasius and Martinus « had already been engaged for some time on writing out the copy of the Codex presented to the senate » and so were, by implication, in the employ of the praetorian prefect.127 Most recently Atzeri, taking the phrase huic officio in the more concrete sense of « in this office » (i.e. « bureau »), has argued that the pair were relatively lowly functionaries on the staff of the praetorian prefect, perhaps receiving promotion with this task.128 She is certainly right that the lack of any titles of rank for the constitutionarii (in stark contrast to everyone else mentioned by Faustus) is hard to reconcile with tenure of a position of any great significance in the imperial chancery or on the staff of either of the prefects. This observation points the way to a hitherto neglected alternative ; that is, that the constitutionarii were not salaried functionaries at all but freelance scribes, who had been accustomed to earn their livelihood by producing reliable copies of imperial rescripts for private petitioners and perhaps of these and other categories of pronouncement for the use of lawyers. Provision of such a service in an earlier period is implied by the organization of panels of professional witnesses that are attested in the diplomas commissioned by military veterans.129 These diplomas are, of course, personalised and authenticated copies of publicly posted imperial constitutiones. Performance of a similar function by the constitutionarii, perhaps operating under imperial licence to produce authentic copies, is perfectly consistent with what little information we have on them : (i) it accounts for a job description that suggests a preexisting association with the copying of imperial pronouncements ; (ii) it explains why Faustus could justifiably claim that they had an established reputation for reliably copying legal texts ; and (iii) it explains why they would be the obvious choice for taking on this new commission, especially if a fall-off in the number of private petitions might be anticipated in the wake of the Code’s publication. It also explains the importance to Anastasius and Martinus of the exclusive licence on copying. After the production of the three reference copies, the senate’s suggestion that all public bureaux should be provided with copies at public expense would provide a certain guaranteed income. Beyond that they would be dependent on individual commissions to bring in further income from this source. In their previous rôle they will naturally have stayed close to the imperial court, then based at Ravenna.

  • 130 Seeck 1919, p. 366-374 ; Gillett 2001.

41This scenario also helps explain the circumstances that generated Valentinian’s rescript to them five years later. The petition of the constitutionarii might have been prompted by the consideration that they alone were liable to prosecution for defects in the text of publicly circulating copies of the Code but the economic imperative to protect their monopoly on copying will have been equally, if not more, significant. For the licence to produce copies commercially for the public was not a perquisite by which they might supplement a salary but a fundamental part of their income. Taking the phrase cognitionale officium (« judicial » or « court department ») to be synonymous with the unstated plural subject of nec habeant vel de editione vel de confectione commercium (« they shall not have any trade in publication or manufacture »), and given that it is the prefect of the city that is to know that Anastasius and Martinus have the monopoly, it would appear that it is the officiales of his judicial department that are the offenders. Rome, after all, was almost certainly the location of the biggest potential market in the west for the commissioning by members of the public of entire exemplars of, or transcripts of individual texts from, the Code. After the constitutionarii had concluded their business in Rome in 438, they will presumably have returned northwards over the Apennines to rejoin the imperial court, leaving behind them the copy of the Code made for the office of the urban prefect. With the constitutionarii physically remote in Ravenna, it is comprehensible that officials of the urban prefect's department might have succumbed to the temptation to supplement their income by allowing copying from the exemplar of the Code on deposit with them. However, in the wake of the Vandals’ capture of Carthage in 439 and subsequent menacing of Italy’s Tyrrhenian coast, from 440 Valentinian began regularly to spend time in Rome and from 445 the court seems to have shifted its base back to the old capital on a more permanent basis.130 This makes sense of the timing of the petition of the constitutionarii to Valentinian. Now based periodically back in the old capital, Anastasius and Martinus will have become aware of the nefarious activities of the urban prefect's subordinates alluded to in Valentinian’s rescript.

  • 131 Faustus is attested as prefect for the second time by N.Val. 2.2 of 13 August 442, and Paterius, th (...)

42It is not known when the constitutionarii first made their complaint but, if the text of the rescript is correct in reporting Faustus as currently (rather than formerly) praetorian prefect when he referred the matter to the emperor (consulente … numinibus nostris), there would appear to have been a gap of at least fourteen months before Valentinian gave his response.131 In any event, it is clear that the constitutionarii submitted a copy of the Gesta as the sole documentation in support of their claim to hold a monopoly. Had the emperor issued an edict or rescript in response to the suggestions of the senators’ acclamations in the immediate wake of the meeting of 438, it seems improbable that the constitutionarii would have neglected to cite it in their petition and that the emperor not referred back to it. In other words, from 438 until the rescript of 443, it would appear that their monopoly relied solely on the extent to which Faustus, Paulus, and their successors respected the suggestio of the senate (as embodied in the acclamations recorded in the Gesta). It was only with the rescript that the senate’s suggestion was given a legal force binding across the length and breadth of Valentinian’s realm.

IX. The ceremony of 437 reconsidered

  • 132 Socrates, Hist. eccl. 7.44.
  • 133 If historical, the possible incumbent in 437/438 is a Leontius who patronised the cult of St Demetr (...)

43As we have established, it would be entirely in accordance with contemporary expectation that each of the four praetorian prefects would have received their own copy of the Code directly from the emperor (even if not all in person) rather than the prefects of Gaul and Illyricum receive theirs at second hand from their colleagues. That Faustus does not mention this in the Gesta senatus does not automatically render it unlikely. After all, the Gesta reflect Faustus’ subjective account of how he received his copy of the Code. They do not comprise an objective description of the whole process of dissemination. We must understand the event in Constantinople described by Faustus as a ceremony to celebrate the completion of the Code and symbolise its launch rather than as a practical exercise in distribution. The neat symmetry of receipt by the holders of the two most prestigious prefectures in person was, after all, to some extent serendipitous rather than deliberate. After all, Theodosius had originally proposed that the wedding take place in Thessalonike,132 a location that not only would have been closer to a half-way point for the two sovereigns but was also significant in recent dynastic history, as the city where Valentinian had been acclaimed Caesar in November 424, before joining the military expedition to Italy. If the nuptials and hence also this ceremony had been staged in Thessalonike, then the « eastern » recipient would more likely have been Theodosius’ praetorian prefect of Illyricum.133

  • 134 C. Tanta = CJ 1.17.2 (16 Dec. 533), § 23 : Curae autem erit tribus excelsis praefectis praetoriis t (...)
  • 135 Jones, 1964, III, p. 93 [II, p. 1163], note esp. Epp. Arelatenses 8 to Agricola PPo Galliarum, issu (...)
  • 136 Even if we have no explicit western counterpart to NTh 1, as noted by Sirks 2007b, p. 210 and idem (...)

44It is not inconsistent with the testimony of the Gesta senatus and Theodosius’ Novel 1 that, besides the two copies handed directly to the prefects at the launch ceremony, two others were despatched to their absent colleagues, the praetorian prefects of Illyricum at Thessalonike and of the Gauls at Arles in order to serve as reference copies in their respective prefectures. Moreover, such a practice is paralleled later in Justinian’s orders for publication of the Digest in 533.134 Given that Valentinian spent the winter of 437-438 in Thessalonike, even in the absence of Theodosius himself, there will have been opportunity for the prefect of Illyricum to receive his copy of the Code a manu divina. Whether journeying on the Via Egnatia to the Adriatic coast or the whole way back to Italy by sea, the imperial entourage will probably not have arrived back in Ravenna until April of 438. Allowing about four weeks for the journey from Ravenna to Arles at this time of year, a copy of the Code is not likely to have been delivered to the prefect of the Gauls before early May.135 Accepting Lorena Atzeri’s re-dating of the Gesta senatus to 25 May, the advertisement of the appearance of the Code and the production of working copies was potentially more or less simultaneous in the Italian and Gallic prefectures. This timescale, allowing about six months for the copying and dissemination of whatever minimum number of copies was thought sufficient, suits, but does not prove, an intention to establish the Code’s exclusive validity from 1 January 439 simultaneously across the entire empire.136

X. The Roman senate meeting of 438 reconsidered

  • 137 Cf. Matthews, 1993, p. 19, and Matthews 2000, p. 3.
  • 138 E.g., most recently Honoré 1998, p. 259, and Matthews 2000, p. 7.
  • 139 Sirks 2007b, p. 213.
  • 140 See the analyses of Salzman 2002 (summarised in tables 6.1, 6.2, 6.3, p. 228-230) and Cameron 2011, (...)
  • 141 On the promulgation of imperial law by prefectural edicts, see Wieling 2009, p. 1423-1427.
  • 142 GS 6 : Hanc quoque partem inter beneficia aeternorum principum numero, quod per me magnitudini vest (...)

45As noted above (section VI.ii), the involvement of Valentinian III in the ceremony of 437 in Constantinople renders unnecessary the hypothesis that the senate’s meeting of 438 represented a separate formal promulgation of the Code for the western empire.137 Similarly, that Faustus was primarily concerned with the dissemination of reference copies of the Code in his own prefecture, reduces the plausibility of the notion that the senate’s meeting marked the formal reception of the Code in the western empire as a whole, as often assumed.138 If the ceremony recorded in the Gesta had no legal or constitutional function, then we must assume that it served some practical and/or political function. Sirks wonders whether it might have been designed to win the acquiescence of an influential « coterie of pagan senators » to a Christian law code.139 However, aristocratic pagans were an endangered species by this date.140 Nevertheless, there were sensitivities in the political relationship between east and west that needed to be respected. By calling the meeting Faustus engineered a public show of support for the acceptance of a text whose contents might have exacerbated tensions, if they had been scrutinised closely. In this way he defused the kind of resentment that might have been engendered, had this eastern product been imposed in the west merely by the circulation of imperial and/or prefectural edicts.141 Faustus also harnessed the supra-regional moral authority of the senate to propose that the constitutionarii, operating as independent entrepreneurs, be granted the exclusive licence to produce copies for the private market, even if this required subsequent imperial affirmation. At the same time, of course, the meeting, held chez lui, afforded Faustus an opportunity for self aggrandisement in front of his fellows amongst the urban aristocracy. He was able to boast to them of the special distinction that communicating the Code to them conferred upon him.142 Faustus co-opted the senate to assist him in fulfilling the part in the process of dissemination per orbem that Theodosius had entrusted to him. This extended only to ensuring the transmission of his singulus codex throughout his own prefecture. Faustus’ reticence about the Gallic prefecture reflects not a lack of due diligence but a proper respect for the prerogatives of his colleague in Arles.

XI. Theodosius’ Novel 1 and the establishment of exclusive validity

  • 143 Sirks 2007b, p. 214.

46If one then agrees with Sirks that the Gesta senatus are to be accorded no part in the process of formal promulgation in the west, is there any alternative to his interpretation ? The involvement of Valentinian in the launch at Constantinople is sufficient to imply that he approved its contents as the authoritative version of general legislation from the beginning of 313 to the end of 437 in principle. But from what date was it to acquire that status ? Theodosius himself indicates in Novel 2 (quoted above in section II) that the separate and subsequent issue of Novel 1 was necessary to establish the exclusivity of the Code. It is perfectly natural to suppose that in Oriens and the eastern prefecture of Illyricum, versions of Novel 1 appropriate to each of the prefects would have circulated as prefatory constitutions to the full text of the Code, just as did C. Haec, C. Summa, and later (from 534) C. Cordi at the front of Justinian’s Code. In the absence of any surviving eastern examples of the opening of the Code, this cannot, of course, be proven. However, Novel 1 was composed and issued after Valentinian and his entourage had already left Constantinople and may not have come to their attention before they left Thessalonike. In any case, respecting the principle of limited application of future legislation established by Theodosius in promulgating the Code, unless specifically brought to his colleague’s attention and re-promulgated by him, Novel 1 will not have been valid in Valentinian’s portion of the empire. Valentinian may, therefore, have established validity of the Code in the western prefectures by a similar measure but, as Sirks’ has emphasised, « no official confirmation is traceable ».143 On the other hand, the elaborate nature of the safeguards put in place by Faustus for the preservation of the integrity of the Code, as well as the legal liability of the constitutionarii for its faithful reproduction affirmed by Valentinian in 443, really only make sense if its text had some special legal status. Moreover our inability to trace western legislation to establish the exclusivity of the Code is understandable. We have to accept the extent of our ignorance. For, if such a constitution were prefaced to western copies of the Code and circulated with it as an integral part of the text, it is unlikely to have been collected with Valentinian’s post-Theodosian Novels and would have been lost along with the rest of the full text of books one to five. It is also quite natural that it would have been displaced from Alaric’s Breviary by the king’s own Commonitorium and its praescriptio. The later diffusion of Theodosius’ Novel 1 might seem to count against the hypothesis of a Valentinianic counterpart. However, it is possible that it was considered in part complementary, perhaps being fuller in describing the principles for future notification and re-promulgation of legislation, a matter on which Valentinian’s chancery proved to be dilatory.

XII. Conclusions

47In what ways, then, has our understanding of the Theodosian Code and the circumstances of its issue been advanced by this discussion ? First, drawing attention to the slightly lop-sided nature of the Code’s content has highlighted one unfortunate corollary of the enactment of its exclusive validity for the western government: the implicit invalidation of five years’ worth of general legislation. Even if, in practice, this led to only minor inconvenience for lawyers and administrators, it did entail a sacrifice of autonomy and a clear deference to the authority of Constantinople, which was a matter of contemporary political sensitivity. This provides important extra context for the meeting of the Roman senate recorded in the Gesta Senatus. While sharing the view of those scholars, such as Atzeri, who consider a joint promulgation of the Code by Theodosius II and Valentinian III to have taken place in Constantinople in late October or early November of 437, I propose that the subsequent meeting in Rome serves, from the point of view of the prefect Faustus, a primarily political purpose. Once due weight is given to the character of the Code as an eastern creation, the prudence of staging the reception by the senate to establish its credibility to a western audience can be appreciated. By presenting for its approval his physical copy of the Code and the regulations for further copying of the text, as laid down by Theodosius, Faustus skillfully co-opts the senate into the process of its introduction.

48Furthermore secondly, detailed re-examination of the surviving contemporary testimony for the dissemination of the Theodosian Code (the Gesta senatus and NTh 1) has offered a corrective to the prevailing view that overemphasises the rôle of the prefects of Oriens and Italy-Africa-Illyricum. They were responsible for the majority but not the entirety of the process of publication in their respective partes imperii. This helps to provide an explanation, which is plausible both in terms of contemporary political reality and administrative demarcations, for the conundrum of Faustus’ curiously specific concern for the African provinces but neglect of Gaul and Spain. In relation to this, the accuracy of one passage of Faustus’ testimony, which has been widely misconstrued, is vindicated ; once it is appreciated that he is talking about the transcription (not transmission) of the text in three copies, the logic of the process he describes emerges. His primary concern is the provision of reference copies of the Code for the courts of each of the senior judges of appeal within his prefecture : his own, that of the prefect of the city in Rome, and of the proconsul of Africa in Carthage.

49Lastly, as recalled in Valentinian's rescript of 443, the one aspect of the copying process in which the senate went further than the instructions of Theodosius is the designation of the constitutionarii as authorised copyists and publishers for the western empire. In the light of earlier Roman practice, I propose that the most likely solution for their status is as authorised independent agents, rather than salaried functionaries. Ultimately it is only because Anastasius and Martinus cited the Gesta in defence of their exclusive licence, which had been threatened by the activities of staff in the bureau of the urban prefect, that the senate's minutes have been preserved. The trouble taken by Faustus to orchestrate senatorial approval of the processes for controlled dissemination of Code and also the trouble taken by the constitutionarii to elicit an unequivocal ruling on their privilege in 443, are strong indicators that Sirks’ thesis about the Code’s lack of authority in the west before 448 is not probable. Even if, on current evidence, no decisive conclusion can be reached on all these matters, the debate can no longer proceed on the assumption that Novel 1 and the Gesta senatus comprise the whole story.

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Wieling 2002 = H. J. Wieling, Die Einführung des Codex Theodosianus im Westreich, in M. J. Schermaier, J. M. Rainer, L. C. Winkel (edd.), Iurisprudentia universalis : Festschrift für Theo Mayer-Maly zum 70. Geburtstag, Köln, 2002, p. 865-876.

Wieling 2009 = H. J. Wieling, De legum promulgatione et interpretatione, in H. Altmeppen, I. Reichard, M. J. Schermaier (edd.), Festschrift für Rolf Knütel zum 70. Geburtstag, Heidelberg, 2009, p. 1423-1447.

Wołodkiewicz 2009 = W. Wołodkiewicz, review of L. Atzeri, Gesta senatus Romani de Theodosiano publicando, in Revue historique de droit français et étranger, 4e série, 87, 2009, p. 291-294

Wołodkiewicz 2011 = W. Wołodkiewicz, review of L. Atzeri, Gesta senatus Romani de Theodosiano publicando, in Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, romanistische Abteilung, 128, 2011, p. 518-524.

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Notes

1 Salway 2012. I wish to register thanks to Lorena Atzeri, Timothy Barnes, Simon Corcoran, Michael Crawford, Jill Harries, Tony Honoré, Pierre Jaillette, Detlef Liebs, John Matthews, Fergus Millar, Britta Schilling, and Boudewijn Sirks, from whom I have derived inspiration, critical observations, and essential bibliographic assistance, but without implying that any one of them would endorse the position argued here. I wish also to acknowledge the longstanding financial support received by the Projet Volterra from both the UK Arts and Humanities Research Council and the British Academy.

2 See the observations of Barnes 2001, in reviewing Honoré 1998, Harries 1999, and Matthews 2000.

3 Valentinian III (PLRE II, Valentinianus 4) was born 2 July 419, son of Arcadius and Honorius’ half-sister Galla Placidia (Augusta 421-450) and Flavius Constantius patricius (PLRE II, Constantius 17), later Augustus (8 Feb. 421-2 Sept. 421). Licinia Eudoxia (PLRE II, Eudoxia 2) was born in 422.

4 For example, Hänel 1863, p. 69 ; Karlowa 1885, p. 944-945 ; Krüger 1888, p. 286, with n. 6 ; Mommsen, 1905 [1904], pars 1, p. ix-xii ; and in recent years, for example : Harries 1999, p. 59-60, 64-65 ; Liebs 2000, p. 245 ; Jaillette 2009, p. 22-24. One note of dissension is expressed by Barnes 2001, p. 684-685, who prefers to date its exclusive validity from 1 January 438, rather than 439.

5 Clossius 1824 ; for a discussion of the context and impact of this publication see Atzeri 2008, p. 21-37. The standard editions remain Meyer 1905, p. 3-5 (NTh 1) and Mommsen 1905 [1904], pars 2, p. 1-4 (Gesta senatus).

6 So, e.g., Atzeri 2008, p. 229-230.

7 Burgess 2001, p. 79 : Theodosianus liber omnium legum legitimorum principum in unum collatarum hoc primum anno editus (« The Theodosian book of all the laws of the legitimate emperors, collected together, was published in this year for the first time »).

8 Sirks 1985 ; Sirks 1986 ; Sirks 1991, p. 113-114 ; Sirks 2003 ; Sirks 2007a.

9 Sirks 2007b, p. 198-214.

10 Sirks 2007b, p. 212-214.

11 E.g. Liebs 2001 ; De Giovanni 2007, p. 353, n. 119 ; Liebs 2010, p. 535-536.

12 Atzeri 2008, p. 204-211 ; for reviews of which see Sirks 2009, Wołodkiewicz 2009, Salway 2010, Wołodkiewicz 2011, and Nasti 2011.

13 Compare Mousourakis 2007, p. 181 and p. 257 n. 6, with Mousourakis 2003, p. 353.

14 Mommsen 1905 [1904], pars 1, p. xxxii (Brev., praescriptio), p. xxxiv (Brev., Exemplar auctoritatis [Commonitorium]).

15 C. Tanta = CJ 1.17.2.

16 Atzeri 2008, p. 131-132, reading VIII kal. I<u>n. for VIII kal. Ian. at GS 8. Endorsed also by Sirks 2007b, p. 198, idem 2009, p. 252, Wołodkiewicz 2009 and idem 2011.

17 See Dovere 2011 and Nasti 2011, p. 586, for a defence of Christmas Day as symbolic of the divinely providential nature of the delivery of the Code.

18 Hänel 1837, col. 81-89 (Gesta senatus), col. 90-94 (NTh 1); Krüger 1923, p. 1-4 (Gesta senatus), p. 11-12 (NTh 1).

19 Mommsen 1905 [1904], pars 2, p. 1-4.

20 Milan, Biblioteca Ambrosiana, fondo manoscritti, codex C. 29 partis inferioris, fol. 141 recto-142 verso (Gesta senatus), fol. 144 recto-144 verso (NTh 1) ; Atzeri 2008, p. 37-77, esp. 60-63.

21 Volterra 1984.

22 Atzeri 2008, p. 264-286.

23 Codex Ambrosianus C. 29 inf., fol. 142 verso.

24 Mommsen 1851, p. 379 [281] glossed the term as Gesetzabschreiber (« writers-out » or « transcribers of law »).

25 Matthews 2000 ; Atzeri 2008.

26 CTh 1.1.5: … cunctas colligi constitutiones decernimus, quas Constantinus inclitus et post eum divi principes nosque tulimus, edictorum viribus aut sacra generalitate subnixas.

27 Sirks 2007b, p. 36-53, provides an excellent survey of the range of scholarly opinion on motivation.

28 Harries 1993 provides a succinct account.

29 E.g. CTh 1.2.2 of AD 315, 1.1.4 of AD 393, and 1.2.11 of AD 398.

30 Turpin 1987, p. 629.

31 Anon. De rebus bellicis (ed. E. A. Thompson, A Roman Reformer and Inventor, Oxford, 1952), 21.1 : restat unum de tua serenitate remedium ad civilium curarum medicinam, ut confusas legum contrariasque sententias […] iudicio augustae dignationis illumines.

32 On legislative partition see Gaudemet 1954, idem 1957, De Dominicis 1954, and most recently de Bonfils 2012..

33 Bagnall et al. 1987, p. 24-25.

34 Feissel 1991.

35 See Lepore 2000 ; cf. Pietrini 1998, Wieling 2002, p. 890, and Sirks 2007b, p. 12-17.

36 Honoré 1998, p. 255-257.

37 Honoré 1998, p.117.

38 Sirks 2007b, p. 228.

39 Theodosius II transmitted the collection from Constantinople on 1 October 447 (NTh 3) and Valentinian II repromulgated it, after receipt in Ravenna, on 3 June 448 (NVal 1) ; Anthemius confirmed (N.Anth. 2) and ordered the publication of Leo’s original (undated) rescript (N.Anth. 3) on 19 March 468 in Rome.

40 The compiler of the Codex Gregorianus may be the pioneer of this format. For possible fragments of the original text of this work see now Corcoran and Salway 2012.

41 Cf. Archi 1976; Dovere 2011.

42 Barnes 2001, p.684-685.

43 This retrospectively corrected style, stripping Constantine’s co-emperor Licinius of his imperial title, is certainly that used by the Code’s commissioners to refer to the year (see Mommsen 105 [1904}, pars 1, p. ccix, and Bagnall et al. 1987, p. 160).

44 As noted by Meyer 1905, p. xiv : « data igitur est ante Theodosianum emissum ».

45 NTh 1 § 5 : His adicimus nullam constitutionem in posterum velut latam in partibus occidentis aliove in loco ab invictissimo principe filio nostrae clementiae, perpetuo Augusto Valentinianus posse proferri vel vim legis aliquam obtinere, nisi hoc idem divina pragmatica nostris mentibus intimetur (« To these provisions we add that after this no constitution issued, whether in western parts or any other place, by the most invincible princeps, son of our clemency, the perpetual Augustus Valentinian, can be presented (in evidence) or acquire any force of law, unless this specific enactment has been brought to our attention by a divine pragmatic sanction »).

46 For estimates of the original number of texts in the full Code see Sirks 1993, p. 64-65.

47 For the palingenesia of the legislation from AD 379 to 455, see the diskettes accompanying Honoré 1998. For a tabulation of the distribution by geographical origin of just the constitutions of book 16, see Falchi 1989, p. 51-55.

48 Honoré’s catalogue comprises 502 texts for the Honorius and Valentinian III (W93-W596) and 404 texts for the Arcadius and Theodosius II over the same period (E464-E868, including the double-numbered entry E587-588 and the addenda E477a and E860a).

49 Cf. Honoré 1998, p. 252, who, ignoring the break in 432, diagnoses a more extreme imbalance between east and west.

50 Mommsen 1905 [1904], pars 1, p. xxix ; Honoré 1998, p. 174, 251.

51 Honoré 1998, p. 174, 258.

52 CIL VI 41389, lines 13-15: […] delato|rum ut hostium inimicissimo, vindici libertatis, | pudoris ultor<i>.

53 Delmaire 2008, p. 292.

54 NTh 2 § 3 : Eas (sc. leges novellae) igitur, domine sancte fili, Auguste venerabilis, cunctis ex more facias divulgari et invicem mihi et provincialibus et populis orientalibus cavenda observandaque cum suae manus adumbratione transmitti, quaecumque per idem temporis spatium vestra perennitas generaliter promulgavit (« May you, therefore, my lord and holy son, reverand emperor, publish these novels to everyone as established and in turn transmit, with a note in your hand, to me whatever things your Eternity has promulgated in a general fashion over the same space of time that should be heeded and observed by the provincials and people of the Orient »).

55 Honoré 1998, p. 257.

56 PLRE II, Constantius 17, he was Augustus for seven months in AD 421, from 8 February until his death on 2 September.

57 Constantius’ name survives in the heading of four of the six excerpts of western laws of these months in the Code (CTh 3.16.2, 10.10.29, 10.10.30, and 2.27.1) from this period.

58 Millar 2006, p. 54.

59 Bonifatius, Ep. 10 (ed. J. P. Migne, Patrologiae cursus completus, series Latina, vol. 20, Paris, 1845, col. 769B-770B).

60 Migne, PL, vol. 20, col. 771A-B.

61 Falchi 1986.

62 Purpura 2010, arguing (improbably) that the Valentinianic law of 11 June 429, expressing the principle that even the princeps is bound by the law and preserved as CJ 1.14.4, was deliberately omitted by the compilers of CTh (even if he is right that it cannot have belonged where it was restored by Krüger 1923, p. 15, between CTh 1.1.5 and 1.1.6).

63 Hierocles, Synecdemus 657.7-9 (ed. E. Honigman, Le Synekdèmos d’Hiéroklès et l’opuscule géographique de Georges de Chypre, Bruxelles, 1939, p. 21) of Theodosian date (see Jones 1937, p. 515) records Pannonia Secunda as the last province in the diocese of Dacia governed by a standard praeses appointed from Constantinople; cf. Not. Dig. Occ. 1.51, 2.29, of c. 400, which lists it as the first province of the diocese of Illyricum under a consularis appointed by the western court.

64 Cassiodorus, Variae 11.11.9 (of AD 533) : [Placidia] nurum […] sibi amissione Illyrici comparavit factaque est coniunctio regnantis divisio dolenda provinciis (« Placidia bought for herself a daughter-in-law by the loss of Illyricum and so a union of the ruler was made and a lamentable division in the provinces » ).

65 On the period 434-439 as « years of hope » see Heather 2000, p. 8-10.

66 Atzeri 2008, p. 117-118.

67 GS 1 : dum convenissent habuissentque inter se aliquamdiu tractatum, ibi ingressis ex praecepto Anastasio et Martino constitutionarii (« when they had met and held a discussion amongst themselves for some time, and the constitutionarii Anastasius and Martinus having entered on command … »).

68 GS 7 : quem [sc. Veronicianum] amplitudinis vestrae mecum consensus elegit (« [Veronicianus], whom the consensus of your amplitude has chosen with me »).

69 Harries 1999, p. 69.

70 GS 1 : in domo sua, quae est ad Palmam. On localisation of this domus ad Palmam see Guidobaldi 1999.

71 N.Val. 2.2, addressed to him as praetorian prefect was posted up in Trajan’s Forum on 13 August 442.

72 See Matthews 2000, p. 32, 52.

73 Matthews 2000, p. 7.

74 CIL XIV 2165 = ILS 1283 (photograph in Granino Cecere 2005, nr 83, p. 99) : Anicio Ac{h}ilio Glabri|oni Fausto claris|simo viro, quaestori | candidato, praetori | tutilari (!), comitis (!) in|tra consistorium, | tertio praefecto ur|bi, utriusque inpe|rii (hedera) iudicii<s> sublim{it}a|to praefecto praeto|rio Italiae Afric<a>e et (hedera) | Inlyrici, quod et prae|sentibus gloriae et | futuris in{t}citamen|to ad virtutem fore<t> ro|gantibus Aricinis, (hedera) | qui beneficiis et re|mediis eiusdem ampl|issimi viri ab into<le>ra|bilibus necessitati|bus fuerant vindica|ti, ob praestita circa | se beneficia ordo | et cives statuam | conlocaverunt. My punctuation here follows PLRE II, p. 453 and Matthews 2000, p. 7 n. 22, rather than Dessau in CIL XIV (Dessau 1885) and the same author’s ILS.

75 Marcell. com. (Monumenta Germaniae Historica-Auctores antiquissimi, XI, Chronica minora saec. IV. V. VI. VII, 2, Berlin, 1894, p. 79) : Valentinianus … aput Thessalonicam Italiam repetens hiemavit.

76 Unilateral proclamation of this type had become common since the breakdown of arrangements for co-ordinated simultaneous proclamation of consuls in east and west in 411-412 ; on which see Burgess 1986. On the use of interim formulae see Bagnall et al. 1987, p. 26-28.

77 NTh 4 (25 Feb. 438) is dated Theod(osio) A(ugusto) XVI cons(ule), NTh 5.1 (9 May 438) Theod(osio) A(ugusto) XVI et Fausto cons(ulibu)s. See the apparatus of Meyer 1905, p.13-14.

78 NTh 6 (4 Nov. 438 : Constantinople), P.Köln II 103 (Nov./Dec. 438 : Oxyrhynchus, Egypt) ; see Bagnall et al. 1987, p. 411.

79 Volusianus may not have held the urban prefecture as many times as Faustus but was his senior in other respects, having served as quaestor sacri palatii to Honorius before AD 412 and perhaps as long ago as 408, as urban prefect in 417-418, and having held the praetorian prefecture of Italy, Africa, and Illyricum in 428-429, a decade earlier than Faustus (PLRE II, Volusianus 6). On Volusianus sojourn and death in Constantinople see Pietri and Pietri 2000, Volusianus 1, with Matthews 2000, p. 8, n. 24 (for the date 437-438 not 436-437).

80 Gaudemet 1954, p. 322, n. 6. Cf. Sirks 2007b, p. 201, 204-205.

81 Matthews 2000, p. 6, with n. 19 ; Sirks 2007b, p. 203-204.

82 Faustus is conscious that his colleague had been superseded by the time he was speaking, which suits identification with Darius (Pharr 1952, p. 4, n.18 ; PLRE II, Darius 3), last attested in office on 16 Mar. 437 by CTh 6.23.4 (incidentally the latest dated law known from the Code) and certainly out office by on 31 Jan. 438, when NTh 3.1 was addressed to Florentius, now PPo Orientis for the second time (PLRE II, Florentius 7).

83 E.g. Wieling 2002 (on which see Sirks 2007b, p. 199) ; cf. Sirks 1986, p. 275-280, and Sirks 2009, p. 253.

84 So Mommsen 1905 [1904], pars 1, p. xi, « id enim ab hoc aevo alienum est » and Sirks 2007b, p. 198-199 (with discussion of previous bibliography), 210.

85 Matthews 2000, p. 35-49, esp. 43-44.

86 Fl. Paulus v(ir) c(larissimus) et inl(ustris) urbis praefectus, specifically named as present at the ceremony, along with the vicarius urbis aeternae, Iunius Pomponius Publianus vir spectabilis (GS 1 ; PLRE II, Paulus 31, Publianus 2).

87 PLRE II, Aetius 7. He won battle of Mons Colubrarius against Visigoths in Gaul in 438 (Fl. Merobaudes, Pan. 1, fr. IIB 11ff.) and so unlikely to be present, especially if the Gesta are rightly dated to May (cf. Wieling 2002, p. 871, who imagines Aetius present).

88 GS 5.IV, 3-4 : Desideria senatus ut suggeras, rogamus! Dictum XX. Conservator legum, conservator decretorum. Dictum XVI (« We request that you might pass on the senate’s wishes! Said 20 times. Preserver of laws, preserver of decrees! Said 16 times »).

89 Taking sumptu publico with fiant (as Pharr 1952, p. 6) rather than with in scriniis habendi (cf. Matthews 2000, p. 53).

90 Mommsen 1905 [1904], pars 2, p. 3, lines 7-12)

91 My text here reflects the suggestion adhibeantur (for the manuscript’s adscribantur) that was preferred, but not printed, by Mommsen 1905 [1904], pars 2, p. 3. The transmitted reading adscribantur fits better a prohibition against scholia rather than against the special abbreviations (compendia) used in juristic texts, which are usually understood to be the subject of this acclamation. Perhaps the scribe of the Ambrosianus or its archetype had been attracted into the -scrib- stem by the verb of the preceding acclamation. Cf. Nasti 2008, who prefers to keep close to the manuscript and to interpret notae iuris here as precisely legal scholia.

92 GS 5.II.a, 4 : Codices conscripti ad provincias dirigantur! <Dictum> XI (« May the codices written out be despatched to the provinces! Said 11 times »).

93 GS 5.II.b, 3-4 : Ut in scriniis publicis habeantur, rogamus! Dictum XV. Ad curam pertineat praefecturae! Dictum XII (« We request that they be held in public bureaux! Said 15 times. May this be the responsibility of the prefecture! Said 12 times »).

94 GS 5.II.c, 1-4 : Singuli praefecti signacula sua adhibeant! Dictum XV. In officiis suis singulos codices habeant! Dictum XII. Ut ad preces nullae leges promulgentur, rogamus! Dictum XXI. His subreptionibus possessorum ius omne confunditur! Dictum XVII (« Each of the prefects should apply their seals! Said 15 times. They should have individual codes in their offices! Said 12 times. We request that no laws be issued in response to petitions! Said 21 times. By such purloinings of landholders is every right confused! Said 17 times »). Taking possessorum with his subreptionibus = preces of GS 5.II.c, 3 (as Matthews 2000, p. 42, 48), rather than with ius omne (cf. Pharr 1952, p. 6). The specific problem being the emperor’s granting as a favour to one party of tenure of imperial land already occupied on a hereditary lease by another, about which Valentinian III had issued CJ 11.71.5 (11 June 429). On the equivalence of ius commune and generale ius to leges publicae/utilitas publica see Turpin 1985, p. 349 (citing CTh 15.14.12 of AD 395 and CJ 1.22.6 of c. AD 491).

95 C. de const. : … id, quod invictissimus princeps pater clementiae nostrae in custodiendi Theodosiani codicis observatione praecipit, a senatu diligentia maiore munitum (« … that, which the most invincible emperor, father of our clemency, ordained for the protection of the Theodosian Code, had been reinforced with greater diligence by the senate »).

96 Καλλιγράφος : Georgius Monachus, Chronicon (ed. C. de Boer, Leipzig, 1904), p. 604, 8f. On Theodosius’ activity as a copyist of Latin texts in particular, see Cameron 2002, p. 125-126.

97 P.Oxy. 1813 of the fifth or early sixth century (Oxyrhynchus, Egypt).

98 Mommsen 1905 [1904], pars 1, p xi, n. 1.

99 E.g. Gaudemet 1962, col. 1218 [p. 286], Martindale in PLRE II, Anastasius 14, and Martinus 5, Mari 2003, p. 123-124, Mari 2005, p. 232-235, Atzeri 2008, p. 230, and Jaillette 2009, 24.

100 Pharr 1952, p. 6, n. 62, Matthews 2000, p. 49-51.

101 Sirks 2007b, p. 169-171.

102 Krüger 1888, p. 290, followed by Wenger 1952, p. 538.

103 Crescenzi 2003, 295, n. 70, idem 2007, p. 312-314.

104 Not the prefect, as stated anachronistically by Krüger 1888, p. 290 (presumably by confusion with provisions for publication of the Digest in 533 : C. Tanta § 23) and repeated by Wenger 1952, p. 538. Mommsen 1851, p. 379 [281], followed by Atzeri 2008, p. 229, 232, preferred the vicarius of the diocese of Africa.

105 Jones 1964, II, p. 481.

106 Crescenzi 2007, p. 314-315.

107 Atzeri 2008, p. 228.

108 Harries 1999, p. 64 ; Crescenzi 2007, p. 313 ; Atzeri, 2008, p. 230.

109 E.g. Karlowa 1885, p. 945 n. 1.

110 E.g. NTh 13 (13 Aug. 439), § 3 [Thalassius PPo Illyrici] … edictis propositis eam (sc. legem) ad omnium notitiam venire praecipiat ; and NTh 26 (29 Nov. 444), § 7, on which see following note.

111 As occasionally explicitly noted : e.g. two fragments of the same law of 3 Apr. 436 (CTh 8.4.30 and 12.1.187), issued to Isidorus PPo Orientis, have the annotation eodem exemplo Eubulo PPo Illyrici ; NTh 7.4 (6 Mar. 441), addressed Ariobindo magistro militum, ends eodem exemplo Aspari viro inlustri et magistro militum et exconsuli ordinario ; and similarly NTh 26 (29 Nov. 444), addressed Hermocrati PPo Orientis, ends eodem exemplo Theodoro v. inl. PPo Inlyrici. See Sirks 2007b, p. 123-124, 133.

112 Sirks 2007b, p. 211.

113 Mommsen 1851, p. 281 [378] n. 22 ; Atzeri 2007, p. 264 n. 19, eadem 2008, p. 243 n. 100.

114 Heather 2000, p. 8-14. For the situation in the Iberian peninsula specifically, see Kulikowski 2004, p. 176-196.

115 Feissel 1991, p. 448-456 [410-419].

116 A principle established in CTh 11.30.16 (AD 331) ; see Jones, 1964, II, p. 481.

117 GS 5.II.a, 4 : Codices conscripti ad provincias dirigantur! (« May the codices written out be despatched to the provinces! »).

118 On the difficulties of this text, of which the first few lines are heavily based on modern conjecture, see Atzeri 2008, p. 287-314.

119 The unstated subject of habeant appears to be equated with the collective cognitiale officium.

120 E.g. Wieling 2002, p. 871 : « die beiden Kanzleibeamten Flavius Anastasius und Hilarius Martinus » ; Crescenzi 2007, p. 315 : « il Codex Theodosianus formato da funzionari pubblici – i constitutionarii ».

121 primicerius notariorum : von Savigny 1839, p. 219 [268] ; magister scriniorum : Mommsen 1851, p. 379 [281].

122 Volterra 1980, p. 139 [311] ; PLRE II, Anastasius 14, and Martinus 5.

123 Easterner: Mommsen 1905 [1904], p. xi ; easterner and legal scholar : Matthews 2000, p. 49.

124 Matthews 2000, p. 49.

125 Mommsen 1905 [1904], pars 2, p. 3, lines 20-21.

126 Gaudemet 1962, col. 1218 [p. 286].

127 PLRE II, Anastasius 14, p. 82.

128 Atzeri 2007 ; Atzeri 2008, p. 235-259.

129 Morris and Roxan 1977.

130 Seeck 1919, p. 366-374 ; Gillett 2001.

131 Faustus is attested as prefect for the second time by N.Val. 2.2 of 13 August 442, and Paterius, the first of three successors before December of 443, is attested in office already on 27 September 442 (N.Val. 7.2). Perhaps the text of the opening of the C. de const. should be further emended thus: … consulente viro inl(ustri) Fausto <ex> praefecto praetorio numinibus nostris (« with Faustus, vir illuster, <former> praetorian prefect, conferring with our authority »).

132 Socrates, Hist. eccl. 7.44.

133 If historical, the possible incumbent in 437/438 is a Leontius who patronised the cult of St Demetrius at Thessalonike (PLRE II, Leontius 10 = 9 ; cf. Barnes 2010, p. 324-325), the likely base of the PPo Illyrici from 397, when the only mint in the prefecture was established there (see Kent 1994, p. 36-38).

134 C. Tanta = CJ 1.17.2 (16 Dec. 533), § 23 : Curae autem erit tribus excelsis praefectis praetoriis tam orientalibus quam Illyricis nec non Libycis [and the magister officiorum, C. Δέδωκεν § 23] per suas auctoritates omnibus, qui suae iurisdictioni suppositi sunt, eas manifestare (« It will be the duty of the three exalted praetorian prefects, of the East, of Illyricum, and of Libya, to make these laws known by the exercise of their authority to all those subject to their jurisdictions »).

135 Jones, 1964, III, p. 93 [II, p. 1163], note esp. Epp. Arelatenses 8 to Agricola PPo Galliarum, issued at Ravenna on 14 April, was received at Arles on 23 May 418 (Monumenta Germaniae Historica-Epistolae, III, Epistulae Merowingici et Karolini aevi, 1, Hanover, 1892, p. 15). The identity of the PPo Galliarum of 438 is unknown, possibly still Auxiliaris (PLRE II, Auxiliaris 1) or already Eparchius Avitus, the future Augustus of 455-456 (PLRE II, Avitus 5).

136 Even if we have no explicit western counterpart to NTh 1, as noted by Sirks 2007b, p. 210 and idem 2009, p. 253, 257, such an enforcement date may have been stated in a now lost prescript similar to that in Brev., praescriptio (ed. Mommsen 1905 [1904], pars 1, p. xxxii).

137 Cf. Matthews, 1993, p. 19, and Matthews 2000, p. 3.

138 E.g., most recently Honoré 1998, p. 259, and Matthews 2000, p. 7.

139 Sirks 2007b, p. 213.

140 See the analyses of Salzman 2002 (summarised in tables 6.1, 6.2, 6.3, p. 228-230) and Cameron 2011, p. 195-198. Also Rüpke 2008, p. 436, lists no pagan sacerdotes after Fl. Macrobius Longinianus (Nr 1697, p. 690) in AD 408.

141 On the promulgation of imperial law by prefectural edicts, see Wieling 2009, p. 1423-1427.

142 GS 6 : Hanc quoque partem inter beneficia aeternorum principum numero, quod per me magnitudini vestrae ea, quae pro legibus suis statuere dignati sunt, intimarunt (« I also number this as one among the favours of the eternal emperors, that through me they should communicate to your magnitude what they have deemed worthy to establish as their laws »).

143 Sirks 2007b, p. 214.

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Table des illustrations

Titre Fig. 1 - Diagram showing transmission of CTh reported in the Gesta Senatus (after Matthews 2000, p. 51).
Titre Fig. 2 - Diagram showing transmission of CTh (after Sirks 2007b, p. 170).
Titre Fig. 3 - Destinations of the tria corpora copied from Faustus’ archetype (after Salway 2012, fig. 8).
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Benet Salway, « The publication and application of the Theodosian Code », Mélanges de l'École française de Rome - Antiquité [En ligne], 125-2 | 2013, mis en ligne le 19 décembre 2013, consulté le 22 juin 2017. URL : http://mefra.revues.org/1754 ; DOI : 10.4000/mefra.1754

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Benet Salway

University College London – r.salway[at]ucl.ac.uk

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