The publication of the Theodosian Code and transmission of its text: some observations
p. 21-61
Résumés
Cet article présente quelques résultats préliminaires provenant de la deuxième phase de la section britannique du «Projet Volterra», qui examine la réception tardo-antique et médiévale du droit romain (www.ucl.ac.uk/history/volterra). Le témoignage conjoint de la première Novelle de Théodose II et des Gesta Senatus est généralement considéré comme pouvant permettre de comprendre le processus par lequel les exemplaires originaux du Code Théodosien sont diffusés partout dans les deux parties de l’Empire. Certes John Matthews dans Laying Down the Law. A study of the Theodosian Code (2000) et Boudewijn Sirks dans The Theodosian Code. A Study (2007) adhèrent tous deux à cette supposition. Je suggère ici qu’il faut examiner les Gesta avec précaution en veillant à rappeler qu’ils préservent les points du vue du préfet du prétoire Faustus et du sénat de Rome plutôt qu’ils ne sont un rapport impartial et objectif du procédé de transmission et de diffusion du Code. Je propose une autre solution pour la diffusion initiale du Code et examine comment celle-ci transformerait notre compréhension des relations entre les différents manuscrits qui nous sont parvenus.
This paper presents some preliminary conclusions arising from the second phase of the British branch of the «Projet Volterra», which focuses on the late antique and medieval reception of Roman law (www.ucl.ac.uk/history/volterra). The combined testimony of first Novel of Theodosius II and the so-called Gesta Senatus is generally taken as a comprehensive record of the process whereby the original exemplars of the Theodosian Code were distributed throughout both parts of the Empire. This is certainly the assumption behind the recent discussions by John Matthews in Laying Down the Law. A study of the Theodosian Code (2000) and Boudewijn Sirks in The Theodosian Code. A Study (2007). In this paper I suggest that we must treat the Gesta with care, being careful to remember that they preserve the viewpoints of the praefectus praetorio Faustus and the senate of Rome rather than an impartial and objective narrative of how the Code was transmitted and disseminated. I offer an alternative model for the initial dissemination of the Code and examine how this might change our understanding of the relationship of its surviving manuscripts to each other.
Texte intégral
1Singulos codices sua nobis manu diuina tradi iussit per orbem sui cum reuerentia dirigendos («he ordered to be handed to us from his divine hand individual codices to be dispatched throughout the world in reverence of him»). So reported Anicius Acilius Glabrio Faustus, praetorian prefect of Italy, Africa and Illyricum, to the Roman senate in the summer of AD 438 about the event of the previous year1. Consequently, it is to these codices, ceremonially transferred from the emperor Theodosius II to Anicius Faustus and an anonymous prefect of Oriens in Constantinople in late 437, that the surviving tradition of the Codex Theodosianus is generally traced back. Faustus and his anonymous colleague occupied the two most important of the then four praetorian prefectures into which the Empire had been divided since AD 395 (the Gauls and Italy-Africa-Illyricum in the West, Illyricum and Oriens in the East). Accordingly the copy of the Code given to Faustus is taken to represent the source of the western line of its manuscript tradition, that of the praetorian prefect of Oriens the eastern2.
2This is the general consensus on the publication and manuscript tradition of the Theodosian Code that has grown up since 1824, when the Gesta Senatus («minutes of the senate»), in which Faustus’ account survives, were first published3. It is certainly the assumption to be found in two very influential works of the late nineteenth and early twentieth centuries: Otto Karlowa’s textbook of Roman legal history of 1885 and, twenty years later, Theodor Mommsen’s Prolegomena to his edition of the Code4. More recently, the processes of compilation and publication of the Theodosian Code have been the subject of considerable scholarly activity5. Despite divergent opinions on their aspects, recent commentators have adhered, more or less explicitly, to the established view on the Code’s dissemination, which, I wish to emphasise, is perfectly consistent with the surviving evidence. Nevertheless, I intend to demonstrate that the same evidence is equally consistent with an alternative reconstruction of the course of events. This paper is, therefore, intended as a slight corrective to the too ready acceptance of the surviving testimony for the original dissemination of the Code as a comprehensive account. This involves re-examining that testimony both against contemporary administrative and political structures and against the pattern of the text’s actual transmission. The key to this approach is the special attention paid to the geo-political framework. The conclusions proposed will not be revolutionary but do have some minor implications for our understanding of the relationship between the surviving witnesses to the text.
1. The transmission of the Code
3Of course no complete copy of the Code survives from either of the two supposed avenues of descent and not just because of the normal factors governing survival through the medieval manuscript tradition. For the special status of the Code as a compilation of authoritative legal texts meant that it suffered from active neglect when it was deliberately supplanted by subsequent official collections. This happened both within and without the fluctuating frontiers of the late Roman state. After the extinction of the western Empire in the late fifth century, the Theodosian Code continued to serve as one of the sources of law for the Roman populations of the barbarian successor states in Italy, Gaul, Spain, and (probably) north Africa. It was superseded first in the Visigothic kingdom (which at that time extended over the Iberian peninsula and Gaul south and west of the Loire and east of the Rhône south of the Drôme) by the promulgation of the Lex Romana Visigothorum (or Breviarium) by king Alaric II at Tolosa (Toulouse) in 3 February 506. This Alaric established as the sole recognised authority for Roman law within his kingdom6. The primary component of this compilation was a slimmed down version of the Theodosian Code itself, in which much of the more obviously historic material and those regulations relating specifically to the workings of the Roman state were weeded out. The selected constitutions were not edited but were coupled with explanatory interpretationes. The memory of the Code was much more thoroughly extirpated within the Empire by the promulgation of the Codex Iustinianus in 529, which in the form of its second edition (533) was disseminated not just throughout the eastern provinces but eventually also the western areas reconquered by Justinian (Africa, Italy and Dalmatia, and parts of southern Spain)7. As with Alaric’s Breviarium, redundant Theodosian texts were removed but Justinian’s Code also reorganised the material and his compilers were given the power to re-write those texts retained. This less reverent attitude means that the structure and text of the Justinian Code are less faithful guides than those of the Breviarium to these aspects of its predecessor. In the wake of the publication of the Justinian Code the original version of the Theodosian Code disseminated in the eastern provinces was consigned to oblivion. Mommsen identified no manuscript as belonging to the eastern tradition and since then only one stray leaf has come to light, retrieved from the rubbish dumps of Oxyrhynchus in Egypt at the turn of the nineteenth and twentieth centuries8.
4By the mid sixth century, over the territory that had lain within the Roman Empire of 438 the original Theodosian Code potentially remained an active source of law only in that subset of areas untouched by the Visigothic and Justinianic recodifications that happened also still to retain a «Roman» civil society: namely Gaul north and east of the Loire-Rhône line (which had mostly been in Frankish and Burgundian hands in 506) and Raetia. By the mid sixth century, the Merovingian Frankish kingdom had come to encompass all these regions as well as the bulk of Visigothic Gaul, which Clovis acquired after the battle of the campus Vogladensis (Vouillé) in 507, only the year after the promulgation of the Breviarium. The rolling back of the Visigothic realm in Gaul was not accompanied by abrogation of the Breviarium in the conquered areas. Indeed Frankish kings never adopted such a prescriptive attitude to legal authority as did the Visigoths. Thus Merovingian Gaul simultaneously comprised two zones of Roman law (in which the Theodosian Code and Breviarium were current respectively) that were united by the overarching structure of the Gallican church, an institution that had an interest in Roman legal forms9. For most purposes the selection provided by the Breviarium proved handier. It was in these circumstances that, already before the end of the sixth century, a hybrid tradition developed in which Frankish copyists followed the Breviarium for the secular material in books I-XV but reverted to a full version of the Theodosian Code for book XVI, which dealt with ecclesiastical matters (or at least plentifully supplemented the abbreviated book XVI with material from the full Code and elsewhere)10. Hence in various «amplified» forms the Breviarium gained a circulation beyond the region of its original promulgation and continued to be actively copied throughout the Middle Ages, while active copying of the full Code ceased. Perhaps as a result, even from this last stronghold of the Theodosian Code, no complete manuscript survives.
1.1. The manuscripts and Mommsen’s edition
5John Matthews has recently discussed at some length the contribution of the various manuscripts to what is now the standard edition of the Theodosian Code, that published posthumously by Mommsen in 190411. Accordingly, I rehearse only the most salient points here. The first five books of the Code are preserved only in skeleton form through the Breviarium, though more constitutions than Mommsen included can be restored into these books on the basis of their appearance in the Justinian Code12. Our knowledge of the full text of the remaining two-thirds of the Code rests primarily on just two relatively early, but very different, manuscripts (Mommsen’s R[egius] and V[aticanus], fig. 1 and 2)13. The Paris manuscript (R) is written in an uncial script, the Vatican manuscript in half uncial and, while they do not overlap, they join almost perfectly to cover books six to eight and nine to sixteen respectively14. Both manuscripts survived the Middle Ages in France and Mommsen and Ludwig Traube proposed that they were written in sixth-century Gaul, possibly at Lyon.
Fig. 1: Paris, Bibliothèque Nationale, latin 9643, quat. 48 fol. 6 [122] (from Traube 1905, tab. I)

photo: G. Naessens, Halma-Ipel
Fig. 2: Biblioteca Apostolica Vaticana, reg. lat. 886, fol. 193v (from Traube 1905, tab. II)

photo: G. Naessens, Halma-Ipel
6While an attribution to Lyon is highly plausible for R15, the Lyonese origin of V seems to have become a matter of faith for palaeographers in the face of reason16. For it displays «Greek symptoms» in its penmanship and quire numeration and bears two early sets of marginal notes in Latin with further Greek symptoms and, in the more extensive set, the so-called Summaria antiqua17, a reference to taxrate adjustment in Sicily18. If not an import all the way from the east, these characteristics are more easily explained by Italian than Gallic provenance19. Moreover, the script is remarkably similar to that used by Ursicinus, lector of the church of Verona, to copy the Life of Saint Martin and other works, which he finished on 1 August 51720.
Fig. 3: Turin, Biblioteca Nazionale, a II, 2, fol. 14v (apograph by Krueger 1880, p. 42)

photo: G. Naessens, Halma-Ipel
7Only one manuscript (Mommsen’s T[aurinensis], fig. 3) – an uncial text attributed to early sixth-century Italy, palimpsested in the early eighth century and destroyed by fire on 26 January 1904 – attested sporadically to an exemplar covering the full range from books one to sixteen21. This included even a fragment of the list of titles but not the Gesta Senatus that have stood at the opening of all editions of the Code since Gustav Haenel’s of 183722. These Gesta are transmitted only in a 12th-century minuscule manuscript that preserves a unique combination of the Breviarium with the full Code (Mommsen’s A[mbrosianus]), on which see further below (section 2.2)23.
8The roll call of genuine Code fragments that contributed to Mommsen’s edition is completed by a few stray folios: two late fifth-century uncial leaves, palimpsested c. 700, from books XII and XIV that are now preserved in the Cathedral treasury of Halbertstadt24; and fourteen seventh-century uncial leaves from an eighth-century palimpsest, split between Turin and Rome, that preserve bits of books XIV to XVI (Mommsen’s W)25. A marginal cross-reference, in a sixth-century cursive hand, to Justinian’s Institutes III, 16, 2 favours an italian origin for the Halberstadt text26, while W is most probably from Gaul, and plausibly Lyon, since it was recycled along with a seventh-or eighth-century copy of the Lex Romana Burgundionum27.
9Aside from the single leaf from Egypt noted above28, small fragments of one further exemplar of the full Code have subsequently come to light in the binding of late 15th-century volumes now housed in Zürich and Rome29. Here the fifth/sixth-century uncial text of the Code survives beneath an early eighth-century uncial text of Gregory the Great’s Moralia on Job, which had probably belonged the Abbey of Pfavers or Pfäfers (the monasterium Fabariense), a daughter house of Reichenau, located in the bishopric of Chur and founded in 73130. Again a Gallic origin is likely since the palimpsesting may be attributed to Burgundy31. However, these fragments do not extend our knowledge of the text of the Code since they preserve only snippets from books VI, X, and XI that are already fully witnessed by the Vaticanus.
10Besides manuscripts of the Code and Breviarium themselves, the text of a number of individual constitutions is also witnessed in quotations from the Code in various late antique and early medieval works32, the earliest surviving being probably the copying in the Arian bishop Maximinus’ own hand of CTh XVI, 4, 2 and XVI, 4, 1 (in that order) into the margins of a mid fifth-century text of the acts of the Council of Aquileia33. The only extra quotation to have been identified since Mommsen’s edition is the verbatim extract of a constitution of Arcadius and Honorius ex codice Theo[dosiano] in a papyrus fragment of Egyptian provenance, now preserved in Vienna34. Enough survives to show that it relates to a section of the Code now lost, but insufficient to reconstruct any meaningful text.
Fig. 4: Maas’ stemma (from Maas 1906, p. 642 [610], Chapter and page numbers refer to Mommsen 1905)

Fig.5 : Mommsen’s edition and the manuscript support

11Given the lack of overlap between the coverage of the two principal manuscripts (R and V) and the very patchy survival of the other early witnesses, there has been little need for editors to decide between variant readings. Mommsen did not feel the need to construct a stemma to show the relationship of the manuscripts, though in his review of the edition Paul Maas made good the omission (fig. 4).
12The general pattern of manuscript testimony is perhaps more easily appreciated in the following diagram (fig. 5), in which the coverage of the principal authorities is plotted against the organisation of the Code as presented in Mommsen’s edition.
13It is only for books one to five, where the structure and text of the Code have largely to be recovered from the skeleton version in the Breviarium, that the manuscript tradition is more complex. For in Francia the Breviarium had a flourishing afterlife that constrasts with its fate within the Visigothic kingdom. There, as had happened with the Theodosian Code in the Justinianic Empire, the tradition of the Breviarium came to an abrupt halt, when, in the mid seventh-century, the Visigothic kings replaced it with a new Code to be applied to all their subjects, the Lex Visigothorum. And, indeed, only a solitary manuscript of the Breviarium survives from Visigothic Spain, and then only in palimpsest35. Thereafter Frankish Gaul and its successor states remained the last refuge of the Breviarium. Here it continued to be actively copied into the 12th century, leaving a broad and complex manuscript tradition36, until it was eventually displaced as a guide to Roman law by the arrival of the revived Justinianic compilation emanating from the Bologna school.
14For these reasons Mommsen was quite justified in declaring ‘Gaul preserved the Theodosian Code for us’37. The question is whether this Gallic transmission should be traced back to the archetype handed to Faustus in Constantinople, as is generally assumed. In order to answer this, we need to re-examine the nature and content of the evidence for the initial dissemination of the Code in some detail.
1.2. Initial dissemination
15As Matthews observed, in contrast to the tenuous nature of the tradition of its text, of the works transmitted through the medieval manuscript tradition from the period prior to the age of Justinian we are uniquely well informed by contemporary testimony on the genesis, compilation, and initial dissemination of the Theodosian Code38. Surviving (through the Breviarium) from within the body of the work itself, come Theodosius II’s original announcement to the senate in Constantinople of the launching of the project (CTh I, 1, 5 of 26 March 429) and its sequel inaugurating the period of editing (CTh I, 1, 6 of 20 December 435). Then, from the beginning of the collection of Theodosius’ Novellae («new laws») but chronologically second in the collection, comes the emperor’s instruction addressed to Florentius, praetorian prefect of Oriens, to bring to the attention of people everywhere the binding authority of the now completed Code (NTh I of 15 February 438). Whether on the basis of a contemporary record of the Code’s arrival or the subsequent dissemination of this very constitution, the anonymous Gallic chronicler of AD 452 duly noted the Code’s publication in the second year of the 305th Olympiad, equated to year fifteen of Theodosius (counting from 424), i.e. AD 43839.
16This testimony was complemented by the spectacular discovery in 1820 by Walther Friedrich von Clossius of the text that he termed the Gesta in senatu urbis Romae de recipiendo Theodosiani codice40. This text he identified in a composite Codex in the Biblioteca Ambrosiana in Milan that contains Justinian’s Institutes and a copy of the Breviarium version of the Code in a mid 12th-century French or Italian minuscule hand that had been very copiously amplified with material from a full version of the Theodosian Code41. Although the text of the Breviarium that it preserves is truncated, unlike the late antique manuscripts of the full version, it is unique in representing the opening of the work. Accordingly its content has exerted a powerful influence over all subsequent reconstructions of the opening of the Code. It is here that the Gesta Senatus are to be found, followed by a rescript of Valentinian III to the constitutionarii (of 23 December 443), before a list of titles and a copy of Theodosius’ Novel 1 (under the rubric De auctoritate Theodosiani)42. The main text then follows from Brev I, 1, 1 to Brev II, 4, 6, heavily supplemented in book one from the full Code43. The Gesta record the meeting of the Roman senate in 438, most probably held on 25 May44, at which the praetorian prefect Anicius Faustus presented the Code and recounted the circumstances of his receipt of a copy the previous year in Constantinople. The Gesta also lay down procedures for the controlled copying and dissemination of the Code and are closely linked to the subsequent constitutio de constitutionariis, which affirms the monopoly on the business of publishing and making copies of the Code (uel de editione uel de confectione commercium) granted to the constitutionarii Flavius Anastasius and Hilarius Martinus in the Gesta Senatus six years earlier45.
17The collocation of the Gesta Senatus and NTh I in the Ambrosian manuscript is very satisfying aesthetically because of the «metadata» that each provides on the dissemination of the Code. These are mutually complementary in terms of chronology, geography, and procedure. Faustus’ account of his receipt of the Code relates to the original launch of the finished article in the presence of both emperors, Theodosius II and Valentinian III, by presentation to himself and the praetorian prefect of Oriens (GS 1) in late October/November 437. Theodosius’ Novel 1, issued at Constantinople the following February to the praetorian prefect of Oriens, who was usually based in the capital, relates to the publication of the Code and sets a date (1 January) for its exclusive legal validity as source for the constitutions of emperors since Constantine (NTh I, § 3)46. Its import is most easily understood as summarised in the covering letter to the collection of his Novels that Theodosius sent to Valentinian on 1 October 447 (NTh II, pr.):
Postquam in corpus unius codicis diuorum retro principum constitutiones nostrasque redegimus, aliam mox legem pietas nostra promulgauit, quae tam confecto codici uires auctoritatemque tribueret, nec aliter in iudicio quas contineret leges, nisi ex ipso proferrentur, ualere praeciperet.
After we had reduced into the body of one codex the constitutions of previous divine emperors as well as our own, our piety soon promulgated another law which should attribute force and authority to the so complete Code and which should command that the laws that it contains shall not otherwise be valid in court unless they are cited from the Code itself.
18Although in Novel I Theodosius assumes that copies of the Code will be held in the bureaux of the imperial administration (NTh I, § 3: sacris habentur in scriniis), he does not describe any process of dissemination. In the western Gesta Senatus a few months later Faustus fills this lacuna. At first glance these sources together seem to offer a persuasively comprehensive account of the dissemination of the Code in western and eastern portions of the Empire47. Such is the mesmerizing effect of this combination that few modern scholarly discussions have been able to escape from the perspective of these two accounts; that is of the perspectives of Faustus and Theodosius respectively. To do so, one needs to reconsider their context and content in some detail.
2. The Gesta Senatus
2.1. Faustus and the Gesta Senatus
19The first observation to make is that Faustus’ account of his receipt of the Code is presented in what cinematographers would term a double «flashback»; that is, not only is the ceremony of late 437 reported in his address to the senate of mid 438 but the Gesta of that session themselves operate as documentary support to the constitutio de constitutionariis of 443. This latter text explicity states that Gesta had been submitted (subdita senatus amplissimi Gesta) to Valentinian III when consulted by Faustus, once again praetorian prefect (consulente uiro inl(ustri) Fausto praefecto praetorio), evidently to elicit (successfully) an imperial rescript affirming the exclusive right of Anastasius and Martinus to produce copies of the Code. Mommsen imagined these constitutionarii to operate under the supervision of the urban prefect at Rome48. However, as their title suggests, before 438 the livelihood of the constitutionarii will have derived from the production (for a fee) of authenticated copies of imperial constitutions, in which role Faustus observes they had proved themselves faultless over a long period49. They may have pressed for a monopoly of reproduction of the Code in compensation for an anticipated drop off in their regular business. At any rate, they will normally have been found in the train of the imperial court, which from 408 to 439 was based at Ravenna. However, from 440 their base of operations will have moved to Rome, whither Valentinian’s court had migrated and continued to be based until his assassination there in 45550. This move no doubt brought the constitutionarii into the close proximity of the bureau of the urban prefect, the guardian, alongside the praetorian prefect, of the only other archive copy of the Theodosian Code in Italy (GS 7) and probable source of samizdat copies. This explains Valentinian’s indication in the rescript of 443 that the prefect of the City is to be specifically reminded of the monopoly of the constitutionarii and his staff to be reminded of the sanctions threatened for clandestine copying51. The happy accident of Faustus’ return to office as praetorian prefect from 442 to 443 afforded the constitutionarii the occasion to reassert their exclusive right. Having obtained this explicit imperial approval, the constitutionarii no doubt copied it, as a marker of authentification, into all examples of the Code that they subsequently produced, along with the Gesta that it referred to52. Obviously the archetype of the Code used to amplify the Breviarium that descended to the Ambrosian Library manuscript must have been one such copy produced by the constitutionarii after 23 December 443. Mommsen, assuming the entire surviving Code and Breviarium tradition to descend from copies made by the constitutionarii, explained the absence of any trace of the Gesta elsewhere by the fact that of the generally poor preservation of the opening and likelihood that later copyists would have omitted this material53. Conversely, there is no reason to suppose necessarily that the Gesta ever featured in the copies produced by the constitutionarii before 443, let alone in any of the illicit copies whose proliferation since 438 had clearly prompted Faustus’ consultation of the emperor.
20Structurally the Gesta comprise three elements: the narrative composed by the secretary to the senate, Flavius Laurentius; the words addressed to the gathered senators by Faustus, quoted in direct speech; and the senators’ acclamations that intersperse the proceedings, again reported as direct speech, with a note recording the number of times each was repeated. 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, the opening section alludes to lengthy debate and the summoning in of the constitutionarii that had preceded the parts minuted54. This prior discussion no doubt generated the list of quite specific requests incorporated in the acclamations (GS 5) and the entrusting of oversight of the copying process to a uir spectabilis Veronicianus by agreement between Faustus and the senate, mentioned by Faustus in the last section55. Both Mommsen and Matthews identified the otherwise enigmatic Veronicianus as an easterner56. Matthews has pointed out that the rank of the vir spectabilis is appropriate to a veteran law teacher from Constantinople, and made the attractive suggestion that his rôle was that of a legal commissar dispatched by Theodosius to ensure the establishment of robust procedures in Valentinian’s realm57.
21The 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 it58. Leaving aside 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> Flauio Theodosio Aug(usto) <XVI> et Anicio Acilio Glabrione Fausto u(iro) c(larissimo) consulibus (GS 1). 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 in the Palma neigh-bourhood of the city59. It is also surely no accident that Valentinian III’s rescript of 443 was the outcome of an approach by Faustus, holding the office of praetorian prefect for the second time60. 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 his clients, the constitutionarii61. He 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; and conseruator legum, conseruator decretorum); and, in the light of his supreme rank and dignity in summer 438, it seems entirely natural that he should have received the Code on behalf of the western administration the previous winter. 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).
2.2. The launch ceremony of 437
22Faustus presents the publication of the Code as an «ornament of peace» alongside the wedding he had attended in Constantinople on 29 October 437 of the eighteen-year-old western emperor, Valentinian III, to Licinia Eudoxia, the daughter of his cousin Theodosius II (GS 1-2)62:
Anicius Acilius Glabrio Faustus u(ir) c (larissimus) et inl(ustris), tertio expraefecto urbi, p(raefectus) p(raetori) o et consul ordinarius dixit:
Aeternorum principum felicitas eo usque procedit augmento, ut ornamentis pacis instruat, quos bellorum sorte defendit. Proximo superiore anno cum felicissimam sacrorum omnium coniunctionem pro deuotione comitarer, peractis feliciter nuptiis hanc quoque orbi suo sacratissimus princeps dominus noster Theodosius adicere uoluit dignitatem, ut, in unum collectis legum praeceptionibus, sequenda per orbem sedecim librorum compendio, quos63 sacratissimo suo nomine uoluit consecrari, constitui iuberet. Quam rem aeternus princeps dominus noster Valentinianus deuotione socii, affectu filii conprobavit.
Adclamatum est: Noue diserte, uere diserte.
Anicius Acilius Glabrio Faustus uir clarissimus and illustris, three times ex-prefect of the City, praetorian prefect and ordinary consul said:
«The felicity of the eternal emperors proceeds in its increase to the point that it arrays with the ornaments of peace those whom it protects by the outcome of wars. 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 to be established the regulations to be followed throughout the world 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».
Newly eloquent, truly eloquent’was acclaimed.
23The peace referred to is probably not only the outcome of recent successes against the Huns in Pannonia, the Visigoths in Gaul, and the Suevi in Spain but an allusion also to the period of close co-operation between eastern and western courts inaugurated by the five-year-old Valentinian’s betrothal to the two-year-old Eudoxia in 424 and the young boy’s installation as western Augustus by an eastern military expedition in 42564. From the moment of his accession to the status of senior Augustus after the death of his uncle, Honorius, in 423, Theodosius’ actions are consistent with a policy that sought to translate the theoretical sovereignty over the entire Empire, which he had enjoyed as a junior member of the imperial college since 402, into a reality. This is the context in which Faustus’ reference to Theodosius’ wish «to add honour to his world» (orbi suo… adicere… dignitatem) by publication of the compilation of precepts «to be followed throughout the world» (sequenda per orbem) is to be interpreted. I follow Jean Gaudemet here in understanding orbis suus to include also the west65. Moreover, this accords with the near contemporary and independent perspective of the anonymous author of the Gallic Chronicle of 452, where Theodosius is recognised as the reigning emperor for twenty-seven years from 424 (the year to which it dates his elevation to senior Augustus) until his death in 45066.
24That this ceremony in Constantinople was intended to mark the simultaneous launch of the Code in east and west is confirmed not only by the presence of his junior colleague, Valentinian, but also by the newlywed’s positive assent to this matter (quam rem... conprobauit). 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 whole67. This is the purpose of the ceremony next described (GS 3):
Anicius Acilius Glabrio Faustus u(ir) c(larissimus) et inl(ustris), tertio expraefecto urbi, p(raefectus) p(raetori)o et consul ordinarius dixit:
Vocatis igitur me et inl(ustri) uiro illius temporis Orientis praefecto, singulos codices sua nobis manu diuina tradi iussit per orbem sui cum reuerentia dirigendos, ita ut inter prima uestrae sublimitatis notioni prouisionem suam sacratissimus princeps iuberet offerri. In manu est acceptus codex utriusque principis praeceptione directus. Constitutionarii praesentes sunt: si placet amplitudini uestrae, has ipsas leges, quibus hoc idem fieri iusserunt, amplitudo uestra relegi sibi iubeat, ut consultissimis aeternorum principum praeceptis consentanea deuotione pareamus.
Adclamatum est: Aequum est, placet, placet.
Anicius Acilius Glabrio Faustus uir clarissimus and illustris, three times ex-prefect of the City, praetorian prefect and ordinary consul said:
«Therefore, when I and the uir illustris, prefect of Oriens at that time, had been summoned, he 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. The constitutionarii are present; if it please your amplitude, let your amplitude order those very laws, by which they ordered that the thing itself be done, be read back to you, so that we may obey with appropriate devotion the most considered precepts of the eternal emperors».
‘It is reasonable! It does please (us), it does please (us)!’ was acclaimed.
25The blanket of anonymity applied by Faustus to his fellow prefect and recipient of the Code (who ought to be identified as Darius)68 is again typical of the foregrounding of his own rôle. No doubt Faustus was part of a sizeable highlevel delegation from Rome and, in fact, he is not the only senior western senator whom we can place in Valentinian’s entourage in Constantinople. As Matthews has argued, a certain Rufius Antonius Agrypnius Volusianus, a proud member of the urban aristocracy and confirmed pagan, was also present in Constantinople for the wedding69. However, Matthews does not go on to discuss the possible implications that Rufius Volusianus’ presence has for our understanding of Faustus’ position. For, Volusianus was almost certainly Faustus’ senior in age and may have been considered senior in terms of dignity too. Volusianus also had some claim to association with the Code project. His first illustrious post was that of imperial quaestor, held briefly as long ago as 408, and had thus composed some of the very pronouncements collected by Theodosius’ commissioners70. Moreover, his one known tenure of the praetorian prefecture was certainly contemporary with Theodosius’ unveiling of the Code project on 26 March 429 (CTh I, 1, 5) and he may have learned of it while still in office. These factors may explain the remarkable cluster of laws pertaining to his prefecture that made it into the Code71. If the launch of the Code had been long planned to coincide with the wedding, then Volusianus may have had a particular reason for wishing to be present and it is not, then, unreasonable to speculate that Volusianus was originally intended as the western recipient at the launch ceremony. However, if this was the intention, it was thwarted by Volusianus’ serious illness. He was too ill to join Valentinian’s entourage when it departed Constantinople to spend the winter at Thessalonike. Instead, subject to the tender ministrations of his pious niece, Melania, he died in the eastern capital on 6 January 438, having been baptized a Christian at the last, thanks to the initiative of Eudoxia’s nurse, Eleutheria72.
26Whether or not the above reconstruction is correct, Faustus had certainly not arrived in Constantinople already in post as praetorian prefect or yet designated as ordinary consul from the kalends of January next. For, as Matthews stresses, on the closely contemporary statue base dedicated by the town of Aricia in Latium 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»), as the garbled inscription seems to be trying to say73. Faustus’ appointment, then, cannot have predated 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. On the other hand, despite the rare opportunity for co-ordination afforded by the emperors’ presence together, the ordinary consulship that Faustus celebrated on 1 January cannot have been agreed before Valentinian’s entourage left Constantinople. For, had Faustus’ designation been announced in advance, it is hard to understand why the eastern court began the year by dating according to the interim formula Theodosio Aug(usto) XVI cons(ule) et qui fuerit nuntiatus, which survives in the subscripts of the Novels of 438 (NTh I and III)74. It seems, then, that Faustus only successfully extracted the honour of the consulship belatedly from Valentinian, while overwintering at Thessalonike75. So, perhaps 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.
27So it had been as a 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 legal scholars have noted, this would seem to preclude a separate and subsequent moment of publication by Valentinian for the west. Promulgation or approval is certainly not the purpose of the meeting of the senate76. Faustus thus perhaps flatters the Roman senate in claiming that Theodosius really ordered «his provision» (i.e. the Code) to be presented to it as a matter of equally high priority (inter prima uestrae sublimitatis notioni prouisionem suam sacratissimus princeps iuberet offerri). Nevertheless, that Theodosius had back in 429 deliberately sent a copy of the original letter that announced the project to its Constantinopolitan counterpart (CTh I, 1, 5) also to the Roman senate, may be implied by Faustus’ suggestion that the senate orders that very law to be read back to it now (has ipsas leges… amplitudo uestra relegi sibi iubeat). Whether or not the senators of Rome had been previously apprised of this law, they can hardly have been ignorant of the collecting activities of Theodosius’ commissioners or their agents searching out older laws amongst their family papers and the teaching collections of the capital’s law schools, as well as in institutional archives, such as that of the urban prefecture. The greater or equal representation of western material up to 425 in the finished product is indeed a testament to the commissioners’ activity and the level of co-operation with them in Rome and Ravenna. Moreover, Gian Gualberto Archi related the initial inspiration for the project to Valentinian III’s lengthy letter of 7 November 426 to the Roman senate that contains the so-called lex citandi («law of citations») by which the relative authority of juristic writings may be determined77. This constitution Tony Honoré termed a «mini-Code» and identified its author as the future chief Theodosian commissioner, Antiochus, as quaestor to Valentinian during a sojourn in Ravenna78.
2.3. The business of the meeting of 438
28The reading out of the law of 26 March 429 was greeted by a series of forty-three acclamations by the senators (GS 5) that have recently been the subject of a penetrating analysis by Matthews79. What follows builds upon that analysis and adopts its helpful numeration. The sequence comprises twenty-two acclamations addressed to the emperors (5. I), five to Faustus (5. II. a), four to Paulus, prefect of the City (5. II. b)80, four to the two prefects together (5. II. c), four to the magister militum Aetius, currently campaigning in Gaul (5. III)81, and a final group of four to Faustus again (5. IV), culminating in the senators’ request that Faustus report their wishes to the emperor and their characterisation of him as preserver of laws and decrees. This penultimate acclamation provides the key to the immediate purpose of the meeting, since acclamations were habitually used as a means of conveying public opinion and desires to the emperors’ attention. Leaving aside the elements of purely ceremonial adulation (praise of imperial virtues and requests for further honours for Faustus, Paulus, and Aetius), the acclamations of real substance relate overwhelmingly to measures designed to preserve the integrity of the text of the Theodosian Code and ensure its availability, to which is appended an isolated appeal that petitions detrimental to the general interests of landholders not be granted. The emperors are asked that, in order to minimise the risk of interpolations, multiple copies of the Code be made at public expense82, that these be held in public bureaux under seals (in scriniis publicis sub signaculis), and that they be written out fully without either standard or technical legal abbreviations (5. I. c, 5-10). It is suggested to Faustus that copies be made for dispatch to the provinces (5. II. a, 4), while Paulus is given the responsibility of ensuring that copies are held in the public bureaux (5. II. b, 3-4). The two prefects together are enjoined to apply their seals to the copies that are deposited in their offices (5. II. c, 1-2) and are requested that no laws be issued in response to surreptitious petitions because these subvert the rights of landholders (5. II. c, 3-4)83.
29As a package the acclamations are presented as the «wishes of the senate» to be reported by Faustus, in his special capacity as guardian of the laws84. Certainly the series of acclamations as a whole represents more than simply the craven parroting back to Faustus and the others of the wishes of the imperial court. Rather it is an amalgam of the interests of the Code’s publishers and deliverers (Faustus and Veronicianus) and of its users (the senators) as office holders and landowners. It is easy enough to imagine the inspiration of Veronicianus behind the suggestions for the protection of reference copies of the Code and for its transcription without ambiguous abbreviations, on the one hand, and the interests of the senators behind those relating to surreptitious petitions, on the other. The interests of the senators, many of whom were past, present, or aspiring holders of public office, may also be detected behind the concern for the production at public (and not personal, private) expense of multiple copies to be held in the public bureaux (scrinia publica). The commissioning of publicly subsidised copies would also have been of considerable benefit to the constitutionarii, if a copy were intended for the bureau of every provincial governor.
30After a brief exchange reflecting on the particular honour accrued by 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, responding specifically to the senators’ request that multiple copies of the Code be made for keeping in the public offices and to their suggestion that copies be dispatched to the provinces (GS 7):
Erit nunc meae diligentiae secundum dominorum praecepta et desideria culminis uestri, ut hic codex fide spectabilis uiri Veroniciani, quem amplitudinis uestrae mecum consensus elegit, nec non et fide Anastasii et Martini constitutionariorum, quos iam dudum huic officio inseruire praeter culpam probamus, per tria corpora transcribatur, ut, hoc quem detuli in officio praetoriani apicis remanente, paris fidei uiri magnifici praefecti urbi scrinia alterum teneant, tertium uero 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 prouinciam pari deuotione dirigatur, ut illic quoque paris fidei forma seruetur.
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 with the fidelity of the uir 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 role 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 uir 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 role 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.
Fig. 6: Matthews’stemma of the initial dissemination of the Code (after Matthews 2000, p. 51)

31Faustus’ explanation may not be expressed in the clearest fashion but, it seems to me, it has been regularly misconstrued over the last century, primarily because the phrase transcribatur per tria corpora («copied across into three exemplars») has been treated as a equivalent to tradatur per tria corpora («transmitted by three exemplars»). Thus Mommsen criticized Faustus for talking of three exemplars, when he went on to describe four in total85. 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 dispatched to Africa dependent on the latter (fig. 6)86.
32Matthews’ analysis has been embraced by Sirks, who has further refined it by grafting onto this diagram Maas’ stemma. This makes explicit Matthews’ implicit understanding of the link between the category of exemplaria copied by the constitutionarii and the surviving tradition of the Code and the Breviarium (fig. 7)87.
Fig. 7: Sirks’ composite stemma of the Code’s dissemination and manuscript tradition (after Sirks 2007, p. 170)

33However, I contend that when Faustus used the word corpus he had in mind a physical object rather than an abstract category. For, as Traube demonstrated from numerous late antique (mostly sixth-century) parallels, corpus is regularly used to designate a work comprising multiple books (libri) contained in the format of a single volume codex88. Hence its natural application to the sixteen-book Code by Theodosius II himself in his second Novel: corpus unius codicis (NTh II, pr., quoted in section 2.2 above). Thus, as suggested in my translation of GS 7 above, Faustus is to be taken at his word. He may justifiably be convicted of expressing himself poorly in his enumeration of the codices, by which he makes the copy for Africa sound like an afterthought. Nevertheless, 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. First is the archetype that is to remain in his care, then come the three parallel exemplars transcribed from it: (i) a (not the) second copy for the urban prefect; (ii) a (not the) third, to serve as the archetype for all public copies produced by the constitutionarii; and finally (iii) one to serve as a model of fidelity in Africa (fig. 8).
Fig. 8: The relationship of Faustus’ archetype to his tria corpora. (cf. Crescenzi 2007, p. 312-314; Atzeri 2008, p. 228-229).

34If the likely recipient of the copy for Africa is correctly identified as the proconsul, 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 Carthage89. Given the parallel function fulfilled by the proconsul in this respect, the senators’ injunction to keep the copies in the public bureaux under seals (sub signaculis)–a measure designed to preserve their integrity as copies of reference–should probably also be taken to extend to that sent to Africa. This was intended to serve as a «model of equal fidelity» for reference rather than copying. The function of the copies and their relationship to one another can be understood by reference to an earlier Roman authentification practice, that for military diplomas. If the correctness of a law cited in legal proceedings were ever challenged, the Codes in Carthage and Rome would represent a first recourse, just as had the interior text of a diploma. In the most unlikely event that any ambiguity should remain, then the ultimate authority was represented by Faustus’ master copy of the Code, of which those of the urban prefect and and proconsul were parallel authenticated copies, just as veterans’ diplomas had been individual authenticated copies of a master constitution inscribed on bronze in Rome. The status of the tria corpora as copies of reference clarifies the extent of Veronicianus’ quality control rôle; he was charged with insuring the reliability of these three copies of Faustus’ archetype, after which his mission in Italy would be accomplished. The reliability of the subsequent copies was entirely the responsibility of the constitutionarii.
3. The rôle of the prefects
3.1. Faustus’ sphere of responsibility
35If the above analysis is correct, then Faustus’ promise to dispatch a copy of the Code to Africa is not offered e.g. of a general responsibility for provincial dissemination of the Code throughout the western Empire, which duty commentators have frequently assumed on the basis of his participation in the ceremony at Constantinople and the senators’ acclamation that codices be dispatched to the provinces. Karlowa and Mommsen identified the two prefects that received ther copies directly from the emperors as «Hauptpräfekten»/« praefecti primarii» and assumed that their «lesser» colleagues in the Gauls and Illyricum must have received copies at second hand rather than original exemplars90. This interpretation that has been generally endorsed91.
36Moreover, the notion of the primacy of the two larger prefectures (Oriens, comprising five dioceses; Italy, Africa, and Illyricum, comprising four) over the two smaller ones (the Gauls, comprising three dioceses; Illyricum, comprising just two) seems to be supported by contemporary protocol. For, a new two-level hierarchy of status had developed amongst the four praetorian prefectures that had existed since 395. By the 430s Oriens and Italy-Africa-Illyricum, which also happened to host the imperial courts, were clearly considered more prestigious. This differential in prestige is observable in the organisation of the Notitia Dignitatum92, the career patterns of individual office holders and, because the praetorian prefects (just as the emperors) continued to present themselves as a unified college, also in the protocol determining their relative precedence. In a phenomenon parallel to the abandonment of co-ordinated promulgation of annual consuls93, when the political dislocation in the 410s meant that it became impossible to remain reliably informed on the seniority and frequency of appointment of prefects in the opposite half of the Empire, there was a shift to determining the order of prefects’ names according to the political importance of the prefectures. Consequently, as Denis Feissel has demonstrated from the headings of letters and edicts produced by the college of prefects (including examples dated closely either side of the period of the publication of the Code)94, the holders of the prefectures of Italy and Oriens outranked those of the Gauls and Illyricum. Also as with the consular formula, the order of precedence was reversed depending on perspective. The western order was Italy, Oriens, Gaul, Illyricum, the eastern Oriens, Italy, Illyricum, Gaul (though knowledge of the last in each sequence seems to have been rather patchy). However, this protocol of precedence should not be taken to imply the overarching jurisdiction of the greater over the lesser prefectures in each half of the Empire. Rather, 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)95, the lesser prefectures retained a jurisdiction independent of, and parallel to, the greater. Sirks 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 distribution96. Conversely, 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 dispatched to the provinces, reflecting their own vision that encompassed the entirety of the western realm97, 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 diocese of his prefecture. Appreciation of this intention leads naturally to a reassessment of Faustus’ (and Darius’) role at the ceremony in Constantinople in the late autumn of 437 and of the function of the Roman senate’s meeting in the summer of 438.
3.2. The ceremony of 437 reconsidered
37It is tempting to assume from the neat symmetry of the presentation of copies of the Code to the holders of the two chief prefectures that these two prefects were thereby being charged with dissemination of the Code throughout both partes imperii. This impression is reinforced by the universal tone in the valedictory coda to Theodosius’ first Novel, addressed to Darius’ successor as praetorian prefect of Oriens, Florentius (NTh I, § 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 prouinciarum notitiam scita maiestatis augustae nostrae faciat peruenire.
What remains, Florentius my dearest and most beloved father, is 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.
38Taken at face value, this wording seems to imply that Theodosius is charging the praetorian prefect of Oriens with the responsibility of advertising the introduction of the Code throughout the whole pars orientis if not even the entire Empire. However, this phraseology is closely mirrored in the publication clauses of many contemporary imperial constitutions, including examples issued to the praetorian prefect of Illyricum and others attested as issued in copies to both of Theodosius’ prefects98. So it is entirely in keeping with contemporary practice for a parallel copy of this pronouncement (presumably with an alternative personalised coda) to have been sent to Florentius’ colleague, the prefect of Illyricum99. Similarly, it would be entirely in accordance with expectation that each of the four praetorian prefects would have received their own copy of the Code directly from the emperor 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, Faustus is recounting to the senate how he received his copy of the Code, not describing the whole process of dissemination. We must understand the event described by Faustus as a ceremony to celebrate the completion of the Code and symbolise its publication rather than as a practical exercise in distribution. The neat symmetry of receipt by the holders of the two most prestigious prefectures was, after all, to some extent serendipitous rather than deliberate. If this ceremony had been staged in Thessalonike, where Theodosius had originally proposed that the wedding take place100, then the «eastern» recipient would more likely have been Theodosius’ prefect of Illyricum101.
39It is not inconsistent with the testimony of the Gesta Senatus and Theodosius’ Novel I that, besides the two copies handed directly to the prefects at the launch ceremony, two others were dispatched to their absent colleagues, the praetorian prefect of Illyricum at Thessalonike and of the Gauls at Arles. Moreover, such a practice is paralleled later in Justinian’s orders for publication of the Digest102. If the uir spectabilis Veronicianus left Constantinople, with Faustus and his copy of the Code, in the company of the western imperial entourage, we might suppose that the copies destined for Illyricum and Gaul also travelled in his care or that of equivalent officials. 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 during Valentinian’s winter honeymoon in Thessalonike. 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 May103. Accepting Lorena Atzeri’s redating 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 an intention to establish the Code’s exclusive validity from 1 January 439 simultaneously across the entire Empire104.
3.3. The senate meeting of 438 reconsidered
40As noted above (section 3.2), the involvement of Valentinian III in the ceremony of 437 renders unnecessary the hypothesis that the senate’s meeting of 438 represented a separate formal promulgation of the Code for the western Empire105. Similarly, that Faustus was concerned only with establishing procedures for controlled copying 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 assumed106. 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 a influential «coterie of pagan senators» to a Christian law Code107. However, aristocratic pagans were an endangered species by this date108. In his rescript to the constitutionarii of 443 Valentinian III identified their copying monopoly as a particular contribution of the meeting109. In addition, some of the specific suggestions relating to the production of copies voiced in the acclamations may also have gone beyond what Theodosius had laid down. Harries has emphasised the way in which acclamations empowered those making them, granting them «an element of control… over the actions of their rulers»110. This rationale can be extended to the purpose of the meeting as a whole. Dirk Schlinkert has drawn attention to the fact that the whole Code project was very much the child of Theodosius’ imperial consistory111. The imperial courts at Constantinople and Ravenna are unlikely to have considered the presentation of the Code to the Roman senate as a necessary part of the process of its promulgation or distribution. Nevertheless, Faustus himself may have deemed it appropriate to stage the meeting so as to make the senators feel valued. The ceremony flattered them by implying that the senate was still genuinely a part of the decision-making process (e.g. by eliciting their endorsement of Veronicianus’ rôle), as well as appealing to their self interest. The acclamation process gave the senators an occasion to insinuate at least one request of their own. At the same time, of course, the meeting, held chez lui, afforded Faustus an opportunity for self aggrandizement 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 him112. 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. In practice, therefore, his concern to commission copies for public officials from the constitutionarii will only ever have applied to the dioceses of Italy, Africa, and Illyricum. 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.
Conclusion
41The surviving testimony for the dissemination of the Theodosian Code (the Gesta Senatus and NTh I) encourages an exaggerated estimate of the role of the prefects of Oriens and Italy-Africa-Illyricum. Faustus’ political fortune was inextricably bound up with the event of the Code’s publication. Probably as a direct corollary of his participation in the launch ceremony of 437 he received two unanticipated boosts to his social dignity in quick succession (appointment to the praetorian prefecture and the ordinary consulship). Appreciation of this is central to understanding the Gesta Senatus and the purpose of the senate’s meeting that they record. Reading the Gesta and Theodosius’ Novel I from a more objective perspective–that is, in the light of contemporary administrative practice–it is possible to perceive that they are consistent with the parallel distribution of the Code to each of the four praetorian prefects. In fact, the hypothesis that Faustus’ rôle extended only to disseminating the Code within his own prefecture, better accounts for the otherwise curiously specific concern for the African provinces but neglect of Gaul and Spain.
42The hypothesis of a quadripartite transmission of the Code has no great consequence for our understanding for the eastern tradition since the Illyrican tradition has left no trace. The copies used by the redactors of the Justinian Code and the Oxyrhynchus fragment both fall within the prefecture of Oriens. The greatest potential change is in the West. Here, manuscripts stemming from Italy, Africa, and western Illyricum are still most probably to be traced back to the copy Faustus brandished at the senate meeting of 438, whether via the constitutionarii or clandestine copyists. On the other hand the copy of the Code used for the Breviarium and the surviving manuscripts or fragments attributable to the territory of the prefecture of the Gauls in 438 most likely descend from the copy sent to the prefect at Arles. If this Gallic exemplar was indeed a sibling of Faustus’, rather than produced by the constitutionarii from their copy, then the Gallic tradition is brought the small margin of two degrees closer to the prototype. On the other hand, there is no guarantee that any mechanism to control copying at source, as instituted by Faustus, was put in place by any of his colleagues. The distinguishing of separate Gallic and Italian traditions is more important in that it highlights the singular nature of the Ambrosianus. This manuscript represents more than simply a typical amplified Breviarium. Its archetype was a hybrid that married a Breviarium (from the Gallic tradition) with elements, such as the Gesta Senatus and rescript to the constitutionarii, that can only have been drawn from a full Code of Italian origin. The two most likely occasions for this cross-fertilisation are: (i) after the Breviarium penetrated Raetia under Merovingian influence from the mid sixth century onwards113; or (ii) after the Carolingian conquest of the Lombard kingdom in 774, when some knowledge of the Breviarium was introduced to northern Italy114.
43Our findings may be summarised by allocating the surviving manuscripts by provenance according to the prefectures of 438 (fig. 9).
Fig. 9: Attribution of origin of manuscripts by prefecture

44This reveals a greater balance between the Italian and Gallic traditions than Mommsen supposed. On the other hand, Mommsen’s assertion that Gaul preserved the Code for us remains true, given that no copy of the full Code passed down to the modern day unpalimpsested in Italy. Wherever the Vaticanus was written, it owes its survival to its transfer to Merovingian Francia and subsequent preservation in France.
Bibliographie
Des DOI sont automatiquement ajoutés aux références bibliographiques par Bilbo, l’outil d’annotation bibliographique d’OpenEdition. Ces références bibliographiques peuvent être téléchargées dans les formats APA, Chicago et MLA.
Format
- APA
- Chicago
- MLA
ACO
E. Schwartz (ed.), Acta Conciliorum Oecumenicorum, Berlin, 1914.
Archi 1976
G. G. Archi, Teodosio II e la sua codificazione, Napoli, 1976 (Storia del pensiero giuridico, 4).
Atzeri 2008
L. Atzeri, Gesta senatus Romani de Theodosiano publicando. Il Codice Teodosiano e la sua diffusione ufficiale in Occidente, Berlin, 2008 (Freiburger rechtsgeschichtliche Abhandlungen, n. F., 58).
Bagnall et al. 1987
R. S. Bagnall, A. D. E. Cameron, S. R. Schwartz, K. A. Worp, Consuls of the Later Roman Empire, Atlanta, 1987 (Philological Monographs of the APhA, 36).
Barnes 1999
T. D. Barnes, «Theodosian Code» dans G. W. Bowersock, P. R. L. Brown, O. Grabar (éd.), Late Antiquity: A Guide to the Postclassical World, Cambridge, Mass., 1999, p. 721-722.
Barnes 2001
T. D. Barnes, «Foregrounding the Theodosian Code», JRA, 14, 2001, p. 671-685.
Baudi di Vesme 1839
C. Baudi di Vesme, Corpus Iuris Romani I. Ius Anteiustinianaeum, 2. Codex Theodosianus, fasciculus primus, lib. I-IIII, Turin, 1839 [1841].
Bischoff 1966
B. Bischoff, «Biblioteche, scuole e letteratura nelle città dell’alto medioevo», dans Mittelalterliche Studien. Ausgewählte Aufsätze zur Schriftkunde und Literaturgeschichte I, Stuttgart, 1966, p. 122-133 [revised edition from Settimane di studio del Centro italiano di studi sull’alto medioevo, 6. La città nell’alto medioevo, 10-16 aprile 1958, Spoleto, 1959, p. 609-625].
Bischoff 1986
B. Bischoff, Paläographie des römischen Altertums und des abenländischen Mittelalters, Berlin, 1986 (Grundlagen der Germanistik, 24).
Burgess 1986
R. W. Burgess, «The ninth consulship of Honorius, AD 411 and 412», ZPE, 65, 1986, p. 211-221.
Burgess 2001
R. W. Burgess, «The Gallic Chronicle of 452: a new critical edition with a brief introduction» dans R. W. Mathisen and D. Schanzer (éd.), Society and Culture in Late Antique Gaul: Revisiting the Sources, Aldershot, 2001, p. 52-84.
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A. D. E. Cameron, «Vergil illustrated between pagans and Christians. Reconsidering ‘the late 4th-c. Classical Revival’, the dates of the manuscripts, and the places of production of the Latin classics», JRA, 17, 2004, p. 502-525.
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M. Caravale, «Frammenti del Codex Theodosianus conservati presso la Biblioteca dell’Accademia Nazionale dei Lincei e presso lo Staatsarchiv di Zurio», dans Iuris Vincula: Studi in onore di Mario Talamanca, 1, Napoli, 2001, p. 433-487.
CLA
E. A. Lowe, Codices Latini Antiquiores: A Palaeographical Guide to Latin Manuscripts Prior to the ninth-century, Oxford, 1934-1971.
CLA Add
B. Bischoff, V. Brown, «Addenda to Codices Latini Antiquiores », MS, 47, 1985, p. 317-366.
CLA Add II
B. Bischoff, V. Brown, J. J. John, «Addenda to Codices Latini Antiquiores (II)», MS, 54, 1992, p. 286-307.
Clossius 1824
W. F. von Clossius, Theodosiani Codicis genuini fragmenta ex membranis Bibliothecae Ambrosianae Mediolanensis nunc primum edidit, Tübingen, 1824.
Crescenzi 2007
V. Crescenzi, «Testo originale e testo autentico nella tradizione delle compilazioni normative: il caso del Teodosiano», dans G. Crifò, S. Giglio (éd.), AARC, XVI, Napoli, 2007, p. 305-323.
Dold 1926
A. Dold, «Die Halbertstädter Palimspsestblätter mit Bruhstücken aus dem Codex Theodosianus, dem Codex Justinianus und dem Herbarium Pseudoapulei», ZBB, 43, 1926, p. 301-317.
Feissel 1991
D. Feissel, «Praefatio chartarum publicarum. L’intitulé des actes de la préfecture du prétoire du ive au vie siècle», T&MByz, 11, 1991, p. 437-464.
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A. Fernández-Guerra y Orbe, F. de Cárdenas y Espejo, F. Fita y Colomer et al., Legis Romanae Wisigothorum fragmenta ex codice palimpsesto sanctae Legionensis Ecclesiae, Madrid, 1896 (repr. as Código de Alarico II: fragmentos de la ‘Ley Romana’ de los visigodos conservados en un códice palimpsesto de la Catedral de León, with epilogue «sobre Max Conrat (Cohn) y el Breviario de Alarico» by M. Rodríguez Gil, León, 1991).
Gaudemet 1954
J. Gaudemet, «Le partage législatif dans la seconde moitié du ive siècle», dans Studi in onore di Pietro de Francisci, 2, Milano, 1954. p. 319-354 [= J. Gaudemet, Études de droit romain, 1, Sources et théorie générale du droit, Napoli, 1979, p. 129-164].
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A. Gillett, «Rome, Ravenna and the Last Western Emperors», PBSR, 69, 2001, p. 131-167.
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M. G. Granino Cecere, Supplementa Italica–Imagines: Supplementi fotografici ai volume italiani del CIL, Latium Vetus 1 (CIL, XIV; Eph. Epigr., VII e IX): Latium Vetus praeter Ostiam, Rome, 2005.
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R. Gryson, L. Gilissen, Les scolies ariennes du Parisinus latinus 8907. Un échantillonnage d’écritures latines du ve siècle, Turnhout, 1980 (Armarium codicum insignium, 1).
Guidobaldi 1999
F. Guidobaldi, «Palma (ad Palmam)» dans E. M. Steinby (éd.), LTVR, IV, P-S, Roma, 1999, p. 52-53.
Haenel 1837-1842
G. F. Haenel, Codex Theodosianus, Bonn, 1837-1842 [= E. Böcking et al. (éd.), Corpus Iuris Romani Anteiustiniani, II. 2].
Harries 1999
J. D. Harries, Law and Empire in Late Antiquity, Cambridge, 1999.
Honoré 1998
T. Honoré, Law in the Crisis of Empire AD 379-455. The Theodosian Dynasty and its Quaestors, Oxford, 1998.
Izbicki 1983
T. M. Izbicki, «Legal and polemical manuscripts, 1100-1500, in Biblioteca Ambrosiana, Milano», QC, 5/9, 1983, p. 147-176 et 291-320.
Jones 1964
A. H. M. Jones, The Later Roman Empire 284-602. A Social Economic and Administrative Survey, Oxford, 1964, 4 vol. (repr. 1973).
Karlowa 1885
O. Karlowa, Römische Rechtsgeschichte, Bd. 1: Staatsrecht und Rechtsquellen, Leipzig, 1885.
Kent 1994
J. P. C. Kent, The Roman Imperial Coinage, X. The Divided Empire and the Fall of the Western Parts, AD 395-491, London, 1994.
Krueger 1880
P. Krueger, «Codicis Theodosiani fragmenta Taurinensia», AKAW, philosophisch-historische Klasse, 1879, 2, Berlin, 1880, p. 3-104.
Krueger 1923
P. Krueger, Codex Theodosianus, fasc. 1, Liber I-VI, Berlin, 1923.
Krueger 1926
P. Krueger, Codex Theodosianus, fasc. 2, Liber VII-VIII, Berlin, 1926.
Liebs 1987
D. Liebs, Die Jurisprudenz im spätantiken Italien (260-640 n. Chr.), Berlin, 1987 (Freiburger rechtsgeschichtliche Abhandlungen, n. F., 8).
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D. Liebs, Römische Jurisprudenz in Gallien (2. bis 8. Jahrhundert), Berlin, 2002 (Freiburger rechtsgeschichtliche Abhandlungen, n. F., 38).
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E. A. Lowe, «Greek symptoms in a sixth-century manuscript of St. Augustine and in a group of Latin legal manuscripts», dans S. Prete (éd.), Didascaliae: Studies in Honor of Anselm M. Albareda, Prefect of the Vatican Library, Presented by a Group of American Scholars, New York, 1961, p. 279-289 [= E. A. Lowe, Palaeographical Papers 1907-1969, II, ed. L. Bieler, Oxford, 1972, p. 466-474].
Lowe 1964
E. A. Lowe, «Codices rescripti. A list of the oldest Latin palimpsests with stray observations on their origin», dans Mélanges Eugène Tisserant, 5, Archives vaticanes-Histoire ecclésiastique 2 (Studi e testi, 235), Rome, 1964, p. 67-112 [= E. A. Lowe, Palaeographical Papers 1907-1969, II, ed. L. Bieler, Oxford, 1972, p. 480-519].
Maas 1906
P. Maas, «Besprechnung: Theodosianus cum constit. Sirmondianis et leges novellae, ed. Th. Mommsen, P. M. Meyer», GgA, 8, 1906, p. 641-662 [= P. Maas, Kleine Schriften, ed. W. Buchwald, München, 1973, p. 608-628].
Matthews 1993
J. F. Matthews, «The Making of the Text», dans J. D. Harries, I. N. Wood (éd), The Theodosian Code. Studies in the Imperial Law of Late Antiquity, London, 1993, p. 19-44.
Matthews 2000
J. F. Matthews, Laying Down the Law. A Study of the Theodosian Code, New Haven & London, 2000.
Mc Lynn 1996
N. B. Mc Lynn, «From Palladius to Maximinus: passing the Arian torch», JECS, 4, 1996, p. 477-493.
Mitthof 2006
F. Mitthof, «Neue Evidenz zur Verbreitung juristischer Fachliteratur im spätantiken Ägypten», dans H.-A. Rupprecht (éd.), Symposion 2003. Vorträge zur griechischen und hellenstischen Rechtsgeschichte (Rauischholzhausen, 30. Sept.-3. Okt. 2003), Vienna, 2006, p. 415-422 (Akten der Gesellschaft für griechische und hellenistische Rechtsgeschichte, 17).
Mommsen 1904
Th. Mommsen, Theodosiani libri XVI cum constitutionibus Sirmondianis, adsumpto apparatu P. Kruegeri. Textus cum apparatu, Berlin, 1904 [= Mommsen, Meyer, 1904-1905, I, 2].
Mommsen 1905
Th. Mommsen, Theodosiani libri XVI cum constitutionibus sirmondianis adsumpto apparatu P. Kruegeri. Prolegomena, Berlin, 1905 [= Mommsen, Meyer, 1904-1905, I, 1].
Mommsen, Meyer 1904-1905
Th. Mommsen, P. M. Meyer, Theodosiani libri XVI cum constitutionibus sirmondianis et leges novellae ad Theodosianum pertinentes: I, 1: Theodosiani libri XVI cum constitutionibus sirmondianis adsumpto apparatu P. Kruegeri edidit Th. Mommsen. Prolegomena, Berlin, 1905; I, 2: Theodosiani libri XVI cum constitutionibus sirmondianis adsumpto apparatu P. Kruegeri edidit Th. Mommsen. Textus cum apparatu, Berlin, 1904; II: Leges novellae ad Theodosianum pertinentes edidit adiutore Th. Mommseno P. M. Meyer, Berlin, 1905; III: Tabulae sex (L. Traube), Berlin, 1905.
Omont 1909
H. A. Omont, Code Théodosien. Livres VI-VIII. Reproduction réduite du manuscrit en onciale, latin 9643, de la Bibliothèque Nationale, Paris, 1909.
PCBE II
Ch. Pietri, L. Pietri (dir.), Prosopographie chrétienne du Bas-Empire, 2: Prosopographie de l’Italie chrétienne (313-604), 1. A-K, 2. L-Z, Rome, 1999-2000.
Pellegrini 2005
P. Pellegrini, «Il Codice Teodosiano nella Gallia tardoantica: il concilio di Clodoveo», dans A. Saggioro (éd.), Diritto romano e identità cristiana. Definizioni storico-religiose e confronti interdisciplinari, Roma, 2005, p. 179-192 (Studi storici Carocci, 82).
Petrucci et al. 1974
A. Petrucci, G. Braga, M. Caravale, «Frammenti Corsiniani del Codex Theodosianus (sec. VI in.) e dei Moralia in Iob di Gregorio Magno (sec. VIII). Notizia preliminare», RAL, ser. 8, vol. 29, fasc. 7-12, 1974, p. 587-603.
Peyron 1824
A. Peyron, Codicis Theodosiani Fragmenta inedita ex Codice palimpsesto Bibliothecae R. Taurinensis Athenaei in lucem protulit et illustravit, Torino, 1824.
Pharr 1952
Cl. Pharr, The Theodosian Code and Novels and the Sirmondian Constitutions, Princeton, 1952.
PLRE II
J. R. Martindale, The Prosopography of the Later Roman Empire, II. AD 395–527, Cambridge, 1980.
Puggé 1825
E. Puggé, Theodosiani Codicis genuina fragmenta cum ex codice palimpsesto Bibliothecae R. Taurinensis Athenaei edita, tum ex membranis Bibliothecae Ambrosianae Mediolanensis in lucem prolata, inter se disposuit atque edidit Dr. Eduardus Puggaeus, Bonn, 1825.
Salzman 2002
M. R. Salzman, The Making of a Christian Aristocracy: Social and Religious Change in the Western Roman Empire, Cambridge, Mass., 2002.
Scherillo 1940
G. Scherillo, «Un manoscritto del Codice Teodosiano. Cod. Ambros. C. 29 inf. », SDHI, VI, 1940, p. 408-412.
Schlinkert 2002
D. Schlinkert, «Between Emperor, Court, and Senatorial Order: the Codification of the Codex Theodosianus », AncSoc, 32, 2002, p. 283-294.
Seeck 1919
O. Seeck, Regesten der Kaiser und Päpste für die Jahre 311 bis 476 n. Chr. Vorarbeit zu einer Prosopographie der christlichen Kaiserzeit, Stuttgart, 1919.
Sirks 1993
A. J. B. Sirks, «The Sources of the Code», dans J. D. Harries, I. N. Wood (éd.), The Theodosian Code. Studies in the Imperial Law of Late Antiquity, London, 1993, p. 45-67.
Sirks 1996
A. J. B. Sirks, Summaria Antiqua Codicis Theodosiani. Réédition, avec les gloses publiées dans Codicis Theodosiani fragmenta Taurinensia (ed. P. Krueger), Amsterdam, 1996.
Sirks 2007
A. J. B. Sirks, The Theodosian Code. A Study, Friedrichsdorf, 2007 (Studia Amstelodamensia: Studies in Ancient Law and Society, 39).
Stolte 2007
B. H. Stolte, «The use of Greek in the Theodosian Code », dans A. J. B. Sirks (éd.), Aspects of Law in Late Antiquity Dedicated to A. M. Honoré ont the Occasion of the Sixtieth Year of his Teaching in Oxford. Friedrichsdorf, 2007, p. 77-94 (Subseciva Groningana: Studies in Roman and Byzantine Law, 8, 2009 p. 147-159).
Traube 1905
L. Traube, Theodosiani libri XVI cum constitutionibus Sirmondianis et Leges novellae ad Theodosianum pertinentes: Tabulae sex, Berlin, 1905 [= Mommsen, Meyer 1905, III].
Vézin 2005
J. Vézin, «Les manuscrits juridiques en Gaule (ve-viiie s.)», dans A. Dubreucq, C. Lauranson-Rosaz (éd.), «Traditio iuris». Permanence et/ou discontinuité du droit romain durant le haut Moyen Âge, Actes du Colloque International organisé les 9 et 10 octobre 2003 à l’Université Jean Moulin–Lyon 3, Lyon, 2005, p. 93-103 (Cahiers du Centre d’Histoire Médiévale, 3).
Volterra 1984
E. Volterra, «La costituzione introduttiva del Codice Teodosiano », dans Sodalitas. Scritti in onore di Antonio Guarino, 6, Napoli, 1984, p. 3083-3103 [= F. Volterra, Scritti giuridici, 6, Le fonti, Napoli, 1994, p. 499-519].
Wallinga 1992
T. Wallinga, «The continuing Story of the Date and Origin of the Codex Florentinus », Subseciva Groningana, 5, 1992, p. 7-19.
Wenck 1825
K. F. Ch. Wenck, Codicis Theodosiani libri V priores recognovit, additamentis insignibus a Walthero Friderico Clossio et Amedeo Peyron repertis aliisque auxit, notis subitaneis tum criticis, tum exegeticis nec non quadruplici appendice instruxit Car. Frid. Christianus Wenck, Leipzig, 1825.
Wieling 2002
H. J. Wieling, «Die Einführung des Codex Theodosianus im Westreich», dans M. J. Schermaier, J. M. Rainer, L. C. Winkel (éd.), Iurisprudentia universalis: Festschrift für Theo Mayer-Maly zum 70. Geburtstag, Köln, 2002, p. 865-876.
Wood 1993
I. N. Wood, «The Code in Merovingian Gaul», dans J. D. Harries, I. N. Wood (éd.), The Theodosian Code. Studies in the Imperial Law of Late Antiquity, London, 1993, p. 161-177.
Wretschko 1905
A. von Wretschko, «De usu Breviarii Alariciani forensi et scholastico per Hispaniam, Galliam, Italiam regionesque vicinas», dans Mommsen 1905, p. CCCVII-CCCLXXVII.
Notes de bas de page
1 PLRE II, Faustus 8. On the date of the report to the senate, traditionally placed in December, see section 2.1 below.
2 For example Barnes 1999, p. 721; Matthews 2000, p. 52; Crescenzi 2007, p. 313; Atzeri 2008, p. 230.
3 Clossius 1824, p. 2-19.
4 Karlowa 1885, p. 945-946; Mommsen 1905, p. IX-XI.
5 Honoré 1998; Matthews 2000; Schlinkert 2002; Wieling 2002; Crescenzi 2007; Sirks 2007; Atzeri 2008. See also the paper of Andrea Lovato in this volume, p. 63-78.
6 Brev., Exemplar auctoritatis (Commonitorium) (Mommsen 1905, p. XXXIV), l. 13-14: in foro tuo nulla alia lex neque iuris formula proferri uel recipi praesumatur, «in your court no other law or legal formula is to be presumed to be quoted or accepted».
7 Wallinga 1992, p. 16-19, argues that the Justinianic compilation will have been promulgated in Italy in 554, if not already in 540.
8 P. Oxy. 1813 (a parchment) gives substantial parts of the text from CTh VIII, 8, 9 to VIII, 8, 14 (CLA II, 211).
9 Wretschko 1905, p. CCCXV-CCCXVIII; Wood 1993; Pellegrini 2005.
10 Two early «amplified» Breviaria are Paris, Bibliothèque Nationale, codex latinus 12161 p. 65-66, 71-74, 79-80, 87-90 = CLA V, 625 (uncial, sixth-century, Gaul) and Berlin, Staatsbibliothek-Preußischer Kulturbesitz, Hs. Phillipps 1761 = CLA VIII, 1064 (half uncial, later sixth-century, Lyon; of which fol. 161V is reproduced in Traube 1905, tab. III).
11 Matthews 2000, p. 85-120.
12 As done (in italic) in Krueger 1923 and 1926; see Matthews 2000, p. 99-100; Barnes 2001, p. 677.
13 R: Paris, Bibliothèque Nationale, codex latinus 9643 (facsimile edition: Omont 1909) = CLA V, 591; and V: Roma, Bibliotheca Apostolica Vaticana, liber Reginae Sueciae latinus 886 (fol. 193v reproduced in Traube 1905, tab. II) = CLA I, 110.
14 R preserves CTh VI, 2, 12-VIII, 19, 1 (the end of book VIII); V preserves CTh IX, 1, 1-XVI, 10, 12, though with XVI, 4, 6-XVII, 5, 15 lost in a lacuna inherited from its archetype and a number of other copyist’s errors (see Mommsen 1905, p. XLV-XLVI).
15 Mommsen 1905, p. XXXVIII; Traube 1905, p. III.
16 CLA I, 110 and Lowe 1961, p. 280, note 2 [p. 467, note 1] (followed by Bischoff 1966, p. 125, note 8 and 1986, p. 253, note 31, and Vézin 2005, p. 96).
17 Latest edition by Sirks 1996; for discussion see Liebs 1987, p. 177-188; Sirks 2007, p. 216-225.
18 In Sicilia peraequatione facta on CTh XIII, 10, 7. On the «Greek symptoms» see Lowe 1961, p. 280, note 2 [p. 467, note 1].
19 See Cameron 2004, p. 519-522; Stolte 2007, p. 81-82 [p. 149-150].
20 Verona, Biblioteca Capitolare, ms. XXXVIII (olim 36) = CLA IV, 494; Ursicinus’ subscription is on fol. 117r.
21 T: Torino, Biblioteca Nazionale, codex a II, 2 = CLA IV, 440; Lowe 1964, n ° 167, over-written, possibly at Bobbio, with a copy of Iulius Valerius’ Res gestae Alexandri (CLA IV, 439; Lowe 1964, n ° 94) in a cursive minuscule hand. For an apograph of this manuscript, see Krueger 1880.
22 Haenel 1837-1842, col. 81-89; Baudi di Vesme 1839, col. 5-10; Mommsen 1905, p. 1-4; Krueger 1923, p. 1-4.
23 A: Milano, Biblioteca Ambrosiana, fondo manoscritti, codex C. 29 partis inferioris.
24 Halberstadt, Domschatz, Inv. n ° 465-466 (olim Bibliothek des Domgymnasiums, sine numero) = CLA VIII, 1212; Lowe 1964, n ° 55; CLA Add II, p. 306, which were over-written with a half-uncial text of Ps.-Apuleius, De herbis (CLA VIII, 1211; Lowe 1964, n ° 27). Dold 1926, p. 312-315 provides a slightly better transcription than that available to Mommsen.
25 W: Torino, Biblioteca Nazionale, codex a II, 2, fol. 1-6 (now lost) and Roma, Biblioteca Apostolica Vaticana, codex latinus 5766, fol. 25-43, 46-48 = CLA I, 46 + IV, **46, p. 11; Lowe 1964, n ° 164, over-written with Iohannes Cassianus, Collationes III-IV (CLA I, 44; Lowe 1964, n ° 93).
26 Dold 1926, p. 312; Lowe 1964, n ° 55.
27 CLA I, 47; Lowe 1964, n ° 166.
28 London, British Library, Papyrus 2485 = CLA II, 211, published as P. Oxy. 1813.
29 Zürich, Staatsarchiv, C VI 3 = CLA VII, 1016 and Roma, Biblioteca dell’Accademia dei Lincei e Corsiniana, fondo corsiniano 48 C 6 = CLA Add II, 1016; Caravale 2001.
30 CLA VII, 1015; Lowe 1964, n ° 124 and Petrucci, «Storia e paleografia dei frammenti Corsiniani» in Petrucci et al. 1974, p. 587-593.
31 Petrucci in Petrucci et al. 1974, p. 591-592.
32 Mommsen 1905, p. LIX-LXIV.
33 Paris, Bibliothèque Nationale, codex latinus 8907 (= CLA V, 572), fol. 349r, l. 4-43; on which see Gryson, Gilissen 1980, p. 9-11 and Mc Lynn 1996.
34 Wien, Nationalbibliothek, Papyrussammlung (P. Vindob.), L 81 = CLA X, 1529; now fully published by Mitthof 2006.
35 León, Archivo de la Catedral, codex 15 = CLA XI, 1637; Lowe 1964, no 60 (late sixth-/early seventh-century uncial), over-written with Rufinus’ Historia ecclesiastica in a ninth-or 10thcentury Visigothic minuscule hand (Lowe 1964, no 30). For an apograph of this manuscript, see Fernández-guerra et al. 1896.
36 Mommsen 1905, p. VI-VIII, listed forty-five complete or fragmentary manuscript witnesses to the Breviarium itself (not to mention various excerpts and epitomes), which he divided into two main classes, between which there was considerable cross-contamination (Mommsen 1905, p. VI-VIII; Maas 1906, p. 642-644 [609-612]).
37 Mommsen 1905, p. XXXVIII: «servavit nobis Theodosianum Gallia».
38 Matthews 2000, p. 54.
39 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». The collection of Theodosius’ Novels transmitted to us was communicated to Valentinian III in 447 (NTh II) and repromulgated by him to the western Empire in 448 (NVal XXVI), on which see Sirks 2007, p. 210-214.
40 Clossius 1824, p. 2-17, whose edition was swiftly spliced together with the then recently published text of T (Peyron 1824) to produce composite reconstructions of the first five or six books of CTh by law professors at Bonn and Leipzig (Puggé 1825 and Wenck 1825). The standard edition of the Gesta is that published by Mommsen at the beginning of his edition of the Code, Mommsen 1904, p. 1-4.
41 Milano, Biblioteca Ambrosiana, cod. C. 29 inf. The first part, an 11th-century text of Cicero’s De officiis and several orations, occupies fol. 1r-80v; the second part (by a different scribe and originally a separate manuscript), which contains the legal material, comprises 11 numbered gatherings (quires I-VII, biniones VIII-VIIII, quires X-XI), beginning at fol. 81r of the composite manuscript. The Theodosian material begins at binio VIIII (fol. 141r, col. 1) and runs out in the last, mutilated quire XI at fol. 156v, col. 2, whose last few leaves (157v-158r) are filled with Latin verses on the Assumption of the Virgin added at unidentified «Mo(n)t Agut» in 1212. See Clossius 1824; Mommsen 1905, p. XXXIII-XXXIV; Scherillo 1940, p. 408-409; Izbicki 1983, p. 153; Atzeri 2008, p. 37-73.
42 Haenel 1837-1842, Baudi di Vesme 1839, and Krueger 1923 reproduce the sequence of elements precisely (Mommsen 1904 alone omits NTh I as a preface to the Code), although the arrangement may not be authentic to the Code from which they were copied (Volterra 1984; Sirks 2007, p. 74-75 and 202).
43 From CTh/Brev. I, 4 De responsis prudentium to beginning of CTh I, 16/Brev. I, 6 De officio rectoris provinciae, ms. A inserts texts from the full CTh, including the titles CTh I, 6 to I, 15 that are entirely absent from the Breviarium: see Scherillo 1940, p. 410-411; Atzeri 2008, p. 68.
44 The manuscript reports a subscription after the Gesta: Fl(avius) Laurentius exceptor amplissimi senatus edidi sub d(ie) VIII k(alendas) Ian(uarias), «I, Fl. Laurentius, secretary of the most ample senate, published [this] on the eighth day before the kalends of January», i. e. 25 December) but Atzeri 2008, p. 129-132 has proposed a plausible emendation VIII k. Iun. (i.e. 25 May) for Ian. (the obvious lectio facilior for a medieval Christian scribe), cutting in half the received time gap between Faustus’ receipt of the Code in Constantinople and its presentation in Rome.
45 See especially Matthews 2000, p. 31-32.
46 The question of whether post kal(endas) Ian(uarias) refers back to those of the current year, i.e. 438 (as Honoré 1998, p. 126 and 154; Barnes 1999, p. 721 and 2001, p 685; Matthews 2000, p. 6-7; 12 and 79-83), or forward to those of the next, i.e. 439 (as Mommsen 1905, p. IX-XI; Pharr 1952, p. 487; Harries 1999, p. 23 and 60-61; Sirks 2007, p. 164 and 188-189), need not detain us here but see section 3.2 below.
47 See Matthews 2000, p. 6-7 and 31-54; Sirks 2007, p. 188-211.
48 Mommsen 1905, p. XI; Atzeri 2008, p. 233 and 253, prefers the praetorian prefect.
49 GS 7: quos [sc. constitutionarios] iam dudum huic officio inseruire praeter culpam probamus, «whom we have approved as having served faultlessly in this role for a long time already»; Atzeri 2008, p. 242-257, offers alternative interpretations.
50 Seeck 1919, p. 368; Gillett 2001.
51 C. de const.: Et ideo uir inl(ustris) p(raefectus) u(rbi)… sciet uobis licentiam in edendis exemplaribus contributam, «And hence the uir illustris prefect of the City should know of the licence granted to you for producing copies»; interminatione multae… et sacrilegii poena constringi… cognitiale officium, «that the judicial office is to be constrained by the threat of a fine and the penalty for sacrilege». Mommsen 1905, p. XI, identified the office of the urban prefect as the officium cognitiale in question (cf. Matthews 2000, p. 52, who considers the disobedience to lie in the purchase, rather than sale, of unauthorised copies).
52 Sirks 2007, p. 211: Atzeri 2008, p. 265.
53 Mommsen 1905, p. XI: «in reliquis [sc. codicibus] item cogitari poterit de eadem origine, quamquam gesta ab iis absunt, nam plerique initio mutili sunt et in paucis non mutilis fieri potest, ut librarii posteriores gesta omiserint».
54 GS 1: dum conuenissent 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…».
55 GS 7: quem [sc. Veronicianum] amplitudinis uestrae mecum consensus elegit, «[Veronicianus], whom the consensus of your amplitude has chosen with me».
56 Mommsen 1905, p. XI; Matthews 2000, p. 49.
57 Matthews 2000, p. 26-27 and 49. Theodosius’ law CTh VI, 21, 1 (15 March 425) granted a law teacher after twenty years of service the rank of comes ordinis primi with the status of exvicarius, a position considered spectabilis.
58 Harries 1999, p. 69.
59 GS 1: in domo sua, quae est ad Palmam. On localisation of this domus ad Palmam, see Guidobaldi 1999; Atzeri 2008, p. 132-138.
60 Faustus’ second prefecture spanned the period 13 Aug. 442 (NVal II, 2) to 23 Dec. 443 (C. de const.).
61 See Matthews 2000, p. 32 and 52.
62 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.
63 Faustus’ words here echo those of Theodosius’ law launching the Code project that he goes on to read out (CTh I, 1, 5 = GS 4: [tertius codex], qui nostro nomine nuncupatus, sequenda omnibus uitandaque monstrabit).
64 Archi 1976, p. 17-21; Honoré 1998, p. 248-257; Matthews 2000, p. 1-9. Valentinian had been taken to Constantinople by his mother after her quarrel with Honorius (422-423), betrothed to Eudoxia before being proclaimed Caesar at Thessalonike on 23 October 424, and installed as Augustus in Rome on 23 October 425.
65 Gaudemet 1954, p. 322, note 6. Cf. Sirks 2007, p. 201 and 204-205, for the opposite interpretation.
66 Burgess 2001, p. 76-81.
67 Cf. Matthews 2000, p. 6, note 19 and Sirks 2007, p. 205 for different alternatives.
68 Faustus is conscious that his colleague had been superseded by the time he was speaking, which suits identification with Darius (Pharr 1952, p. 4, note 18; PLRE II, Darius 3), last attested in office on 16 March 437 by CTh VI, 23, 4 (incidentally the latest dated law known from the Code) and certainly out office by on 31 January 438, when NTh III, 1 was addressed to Florentius, now ppo Orientis for the second time (PLRE II, Florentius 7).
69 Matthews 2000, p. 1-8; PLRE II, Volusianus 6. An explicit identification with Rome as his patria is displayed in CIL VI, 41385, Rome: [---Ruf] ius Antoni[us / Agrypniu] s Volusianu[s u (ir) c (larissimus) | praefectus] urbi matern[ae / re] stituit.
70 For the pagan quaestor of late 408 (= Volusianus?) see Honoré 1998, p. 234-236.
71 Volusianus was the recipient of 4 constitutions, surviving in 6 fragments in CTh/CJ between 25 Feb. 428 and 11 June 429 (Honoré 1998, p. 251; 253 and 257). This concentration contrasts with the general dearth of western material between 426 and 24 March 432, the date of the latest western law in the Code (CTh VI, 23, 3).
72 PCBE II, Volusianus 1; Vita S. Melaniae graeca 50-56, with Matthews 2000, p. 8, note 24, on year of death as 438 not 437.
73 CIL XIV, 2165 = ILS 1283 (photograph in Granino Cecere 2005, no 83, p. 99), lines 7-12: tertio praefecto urbi, utriusque inpe/rii (hedera) iudicii<s> sublim{it}a/to praefecto praeto/rio Italiae Afric<a> e et (hedera) / Inlyrici, quod…. My punctuation here follows PLRE II, p. 453 and Matthews 2000, p. 7 note 22, rather than Dessau in CIL XIV and ILS.
74 On the implications of the formula, see Sirks 1993, p. 53 and 2007, p. 201. 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.
75 Marcell. com. (MGH AA XI, Chron. Min. 2, p. 79): Valentinianus… aput Thessalonicam Italiam repetens hiemauit.
76 So Mommsen 1905, p. XI, «id enim ab hoc aevo alienum est» and Sirks 2007, p. 198-199 (with discussion of previous bibliography), p. 209-210; Atzeri 2008, p. 180-200.
77 CTh I, 4, 3 (lex citandi); IV, 1, 1; V, 1, 8; VIII, 13, 6; VIII, 18, 9; 10; VIII, 19, 1; CJ 1, 14, 2; 3; 1, 19, 7; 1, 22, 5; 6, 30, 18; Archi 1976, p. 17-21.
78 Honoré 1998, p. 124; 128; 249-251 and 255 (cf. the scepticism of Matthews 2000, p. 24-25 and Sirks 2007, p. 17-29). Mommsen 1905, p. IX, preferred to trace back the initiative to the legislation regulating law teaching at Constantinople (CTh VI, 21, 1; XIV, 9, 3; XV, 1, 53) of spring 425.
79 Matthews 2000, p. 35-49, esp. 43-44; Atzeri 2008, p. 156-157.
80 Fl. Paulus u(ir) c(larissimus) et inl(ustris) urbis praefectus, specifically named as present at the ceremony, along with the uicarius urbis aeternae, Iunius Pomponius Publianus uir spectabilis (GS 1; PLRE II, Paulus 31; Publianus 2).
81 PLRE II, Aetius 7. He won the battle of Mons Colubrarius against the Visigoths in Gaul in 438 (Fl. Merobaudes, Pan. 1, fr. IIB 11f.)
82 Taking sumptu publico with fiant (as Pharr 1952, p. 6; Atzeri 2008, p. 160 and 232) rather than with in scriniis habendi (cf. Matthews 2000, p. 53).
83 Taking possessorum with ius omne (as Pharr 1952, p. 6; Honoré 1998, p. 128; Harries 1999, p. 66) rather than with his subreptionibus = preces of GS 5. II. c, 3 (cf. Matthews 2000, p. 42 and 48). 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).
84 GS 5. IV, 3: Desideria senatus ut suggeras, rogamus!, «We request that you report the wishes of the senate!».
85 Mommsen 1905, p. XI, note 1; Crescenzi 2007, p. 312, note 20.
86 Pharr 1952, p. 6, note 62; Matthews 2000, p. 49-51; Atzeri 2008, p. 228-229.
87 Sirks 2007, p. 166-167; 170 and 210-211.
88 Traube 1905, p. II, see for example the earliest known single volume Bible: Firenze, Biblioteca Medicea Laurenziana, codice Amiatino 1 (= CLA III, 299): praef. fol. 4v: in hoc corpore utrumque testamentum probatur impletum. Cf. Sirks 2007, p. 217.
89 Jones 1964, p. 481; Sirks 2007, p. 211; Atzeri 2008, p. 229 and 232, prefers the uicarius Africae.
90 Karlowa 1885, p. 945, with note 1; Mommsen 1905, p XI.
91 For example Harries 1999, p. 64; Matthews 2000, p. 6-7; 50; 52-53 and 71; Sirks 2007, p. 210-211; Atzeri 2008, p. 229-230.
92 Not. Dign. Or. 1, 2-3: ppo Orientis, ppo Illyrici; Occ. 1, 2-3: ppo Italiae, ppo Galliarum.
93 Burgess 1986; Bagnall et al. 1987, p. 22.
94 Feissel 1991, p. 448-456; note especially (p. 453-454) an edict of 435 by Fl. Anthemius Isidorus ppo Orientis, Fl. Bassus ppo Italiae, Fl. Simplicius Reginus ppo Illyrici (ACO I, 3, p. 69) and (p. 448-449) a letter of 439-442 by Fl. Taurus Seleucus Cyrus ppo Orientis, Fl. Maximus II ppo Italiae, Flavius Valentinus Georgius Hippasias ppo Illyrici (IEph Ia 44).
95 A principle established in CTh XI, 30, 16 (1 Aug. 331); see Jones 1964, p. 481.
96 Sirks 2007, p. 211.
97 GS 5. II. a, 4: Codices conscripti ad prouincias dirigantur!, «May the codices written out be dispatched to the provinces!».
98 NTh XIII (13 Aug. 439), § 3 [Thalassius ppo Illyrici]… edictis propositis eam (sc. legem) ad omnium notitiam uenire praecipiat; and NTh XXVI (29 Nov. 444), § 7, on which see following note.
99 As occasionally explicitly noted: two fragments of the same law of 3 Apr. 436 (CTh VIII, 4, 30 and XII, 1, 187), issued to Isidorus ppo Orientis, have the annotation eodem exemplo Eubulo ppo Illyrici; NTh VII, 4 (6 March 441), addressed Ariobindo magistro militum, ends eodem exemplo Aspari uiro inlustri et magistro militum et exconsuli ordinario; and similarly NTh XXVI (29 Nov. 444), addressed Hermocrati ppo Orientis, ends eodem exemplo Theodoro u. inl. ppo Inlyrici. See Sirks 2007, p. 114-115, 123-124 and 133.
100 Socrates, Hist. eccl. VII, 44.
101 Although uncertain, the possible incumbent in 437-438 is Leontius, who patronised the cult of St Demetrius at Thessalonike (PLRE II, Leontius 10 = 9), the likely base of Arcadius’ ppo Illyrici from 397, when the only mint in the prefecture was established there (see Kent 1994, p. 36-38).
102 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».
103 Jones 1964, III, p. 93 [= 1973, p. 1163], note esp. Epp. Arelatenses 8 to Agricola ppo Galliarum, issued at Ravenna on 14 Apr., was received at Arles on 23 May 418 (MGH, Epistolae III, Epp. Merow. et Karol. aevi I, 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).
104 Even if we have no explicit western counterpart to NTh I, as noted by Sirks 2007, p. 201-203, such may have been stated in a now lost prescript similar to that in Brev., praescriptio (Mommsen 1905, p. XXXII).
105 Cf. Matthews 1993, p. 19; Matthews 2000, p. 3.
106 For example most recently Honoré 1998, p. 259; Matthews 2000, p. 7; Wieling 2002, p. 871 and 875.
107 Sirks 2007, p. 213-214.
108 See the analysis of Salzman 2002, summarised in tables 6.1, 6.2, 6.3, p. 228-230.
109 C. de const.:… uidimus id, quod inuictissimus princeps pater clementiae nostrae in custodiendi Theodosiani codicis obseruatione praecipit, a senatu diligentia maiore munitum, ut hi ad edenda exemplaria haberent tantum licentiam contributam, quos manebat periculum, si quid edita falsitatis habuissent, «we see that what the most invincible emperor, father of our clemency, ordained for the protection of the Theodosian Code, was reinforced with greater diligence by the senate, in that a threat hung over those who had the sole licence granted to publish copies, if they contained anything wrong»; Atzeri 2008 sees the meeting as a formal stage in publication.
110 Harries 1999, p. 69.
111 Schlinkert 2002.
112 GS 6: Hanc quoque partem inter beneficia aeternorum principum numero, quod per me magnitudini uestrae 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».
113 Wretschko 1905, p. CCCXXVII-CCCXXVIII; Liebs 2002, p. 230-235.
114 Wretschko 1905, p. CCCL-CCCLIII.
Auteur
History Department, University College London
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