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p. 99-107
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1The editors of these proceedings have kindly suggested that Huck and I should react to each other’s contribution and I am much obliged to them for the opportunity do so. Huck discusses one question, namely, has the Theodosian Code as we possess it indeed contained all of the imperial constitutions enacted between 311 and 438, or does it represent a selection of these, consisting of only those rules, still valid in 438? to which he adds a third possibility, namely, that the Theodosian compilers had partly implemented selections. As argument for the latter he presents the Sirmondian constitutions. Next to this he makes several remarks to which I also would like to react, but, since they are minor, in a footnote60.
2First, Huck takes CTh I, 1, 6, where the emperors (actually, Theodosius) say that circumcisis ex qua[que] constitutione ad uim sanctionis non pertinentibus solum iu[s] relinquatur. By saying this, they gave the compilers allowance to trim the constitutions. What did they mean by uis sanctionis? Huck translates this as «la teneur même de la mesure», but uis means «force, power», not «content» or «direction». If the latter had been meant, we might have exspected tenor, which is used 33 times in this sense in the Code, like iuxta tenorem praesentis iussionis in CTh V, 6, 13. Vis, on the other hand, may refer to the obligatoriness of a rule or legal act61, like in… donatum, hoc uerbo ea uis continebitur, quam antea scribebamus, ut ea, quae ad instructum possessionis uel domus pertinent, tradenda sint in CTh X, 8, 162. Here the donation is to have fully force, i.e., also the appurtenances to the land or house should be handed over to the donees. Another example of this meaning: NTh I, 5, of 438, where Theodosius rules that no western law posse proferri uel uim legis aliquam obtinere unless he has confirmed it by his own law. Thus, literally translated, we should read «the force of the rule»63. That is perhaps not a common way of expressing oneself but it is still clear what is meant by it and I see no reason to translate it with what I think is in English «the content of the rule». In Late Latin it is not unusual to express oneself ornately, certainly in the letters which make up almost all of the Theodosian Code. The emperor must have meant that the trimming should leave the force of the rule intact, that is, the legal effect the rule was meant to achieve. In other words: uis sanctionis was the core of the text, namely the legal effect of a rule, i.e., the rule as effective rule. The next question is, whether rules, only presently in force, or also rules, already obsolete, could have been meant by this. One may interpret uis as referring also to rules which have no longer force (and uis in that case refers to the force the rule once had), or one may say: a rule has uis and is thus still in force, but since an abolished rule is no longer effective, one should exspect another term to indicate this (i.e., rules, no longer in force). Indeed we see in CTh I, 1, 5 the emperor, in the same context of trimming the constitutions, referring to uerba, quae ad rem pertinent and quae sanciendae rei non ex ipsa necessitate adiuncta sunt. There it also concerns rules, already obsolete (silentio in desuetudinem abierunt). With res the issue to be regulated (sancienda) is meant, but there is understandably no reference to its force, since some have no force anymore. I therefore prefer the second interpretation which, I think, is also more natural in view of the words used.
3Apart from the philological aspect, I did not come to this interpretation of CTh I, 1, 6, pr. just by chance. As I mentioned alongside the above interpretation of CTh I, 1, 6 in my article64, in my research on the corpora nauiculariorum I had not encountered any obsolete law, although I should have, according to Seeck (then, Matthew’s thesis is basically the same what Seeck already in 1919, in his Regesten, said). What seemed to be superfluous repetitions and thus a sequence of obsolete and valid rules appeared to be rules, valid for different corpora and regions, and similarly we see in other cases that what seems to be a senseless duplicate of a rule, is simply a twin enactment for different parts of the empire. For example, CTh XII, 5, 8 and 9 seem to cover the same problem, but one is enacted for Spain and the other for Rome, regulating different situations. As to references to former regulations, there were many but their absence was in general no problem since the later regulation, included in the Code, made clear what was ruled65. Hence my assumption that the compilers had intentionally selected only still valid rules and left out those, abolished or superseded by later ones. Food for Rome66 was the first study in which the consequence of Scheltema’s proposition, that every constitution enacted retained it original validity, notwithstanding its inclusion in the Code67, consequently was implemented. I drew the conclusion that if that were true, and true it proved to be, the validity should have been fixed at the moment of enactment: in course of the research I extended this with the thesis that they had also remained restricted to the original area or group, falling under the administrative power of the enacting emperor (or official), which yielded results. To give another example: CTh VI, 23, 4 of 437 refers expressly to the constitution CTh VI, 23, 3 of 432 and confirms the privileges of the decurions and silentiarii, granted by Valentinian III: i.e., those in the east received what had already been granted to those in the West. We have to realise that these constitutions were issued during the compilation process and their being together in the Code represent therefore the official view, at that moment in vigour, as regards the validity of constitutions. Yet, when so many seemingly superfluous duplicates disappear, what remains of the idea, that the obsolete constitutions were included in the Theodosian Code we possess? And it is parting from this experience, that I came to my interpretation68. It fitted what I found. In that sense it is intertwined and connected with a principle of Food for Rome and the evidence assembled there. There is of course no objection to another argument for the proposition that the compilers indeed only retained the still valid rules, but prior relevant research does not become obsolete by that.
4What Matthews brings forward in Laying Down the Law against my point of view cannot convince. According to him «it seems more natural to read this phrase in the law of 435 as a reiteration of the slightly more expansive statement of the same point in 429»69. I do not know why it should be more natural, when the Code we have is certainly not the Code as projected in the design of 429 – in that case we should try to investigate, what might have changed or been done differently in 435 to result into this – and when the usual argument for that thesis, repetition of the same rule, does not hold anymore. Then, however attractive Matthews’ book is, it does not contain an analysis of the legislation on a special legal subject, but merely – in any case interesting and stimulating – textual and historical analyses. But it is the legal analysis that counts in a legal Code.
5Honoré, on the other hand, while not accepting my interpretation of CTh I, 1, 6, pr., has entered into that question70. His resulting judgment is balanced. Some laws, seeming obsolete, are on closer sight not. Others are, but many come from book XVI, where the compilers may scrupulously have included contradictory laws, and in the end the number of inconsistent laws is, so Honoré, not so great as exspected (which, notwithstanding the understatement, is something different from Huck’s «extrêmement rares») if the compilers had included all the laws they found71. (It always helps to make some calculations. Honoré mentions some 29 constitutions in his footnotes on p. 144-146: if these concerned contradicting laws, there would remain half of it, i.e. some 15 cases, which is, indeed, very low: negligable, if you ask me, on a presumed total of 2777 fragments in the part of the Theodosian Code passed down to us). As to the laws in book XVI, I would concur with his opinion. I too think it likely that this subject contained so much explosive material, such as the question of Arianism, that the emperor and the compilers may have judged it wise to render merely the existing constitutions and leave it thereby. Otherwise the west, where Arianism was strong, might have opposed the Code. But for the rest I see no reason to review my opinion, certainly in view of Honoré’s conclusions. I agree with Huck that Matthews72 dismisses too quickly Honoré’s conclusion, that the compilers had the power to make substantive judgments on the laws, a conclusion which Honoré based on the material found.
6Huck, in his turn, maintains that the ca. 70 cases in which in a constitution of Theodosius’Code reference is made to another constitution not included (by the way, they are simply found by adding all the footnote references in Pharr’s translation to a «not extant»73), are so few, that it is hardly imaginable that the compilers could not have found them. That would be an argument for assuming that the Code was not set up as exhaustive collection of constitutions74. Huck recognises that part of these («mais non la totalité, très loin de là») may have been included in the part of the Theodosian Code transmitted to us and subsequently have been left out by the compilers of Alaric’s Breviary (Huck, note 37). Could that be the case? Of the books I-V (and partly VI) of Theodosius’Code we hardly possess manuscripts. Part of it has been incorporated in Alaric’s Breviary, but the Alarician compilers of course made a choice. Further, a good number of constitutions figure in Justinian’s Code, and Krueger (Krueger 1923) has tried with the help of these to reconstruct the first six books of the Theodosian Code: a courageous, but hazardous task, because already a reliable table of contents lacks here. Mommsen calculated the number of missing fragments at 480. Now first, of course, it should be examined whether the constitutions referred to could überhaupt have been included in the first 6 books. Then, if they could, the question is: is the figure of 480 large enough to allow for these 70 missing constitutions? I think statistically it could for the greater part, but I admit it is just a feeling (although: almost 1 in 8 is not much), but, more important, I do not think all would have fitted in those books regarding their subject: rather the contrary should be the case75. Anyway the question should be phrased differently: if ca. 70 constitutions on a presumed total of fragments of ca. 3 250 have found to have not been included: does that indicate that the compilers on purpose eliminated constitutions (rules), no longer valid, or may it just be the result of lacunes in the archives? 2,15% is not much, so I am inclined to assume the latter: in any case I think it is far from enough to assume on this ground (of course not on other grounds) that the compilers deliberatedly excluded obsolete laws. I, as argued before, assume this, but on other grounds.
7Huck, on the other hand, has a very interesting argument to presume that the compilers selected and left out constitutions which might prove contradictory and by that confusing. It seems to me that should bring also him to a different interpretation of CTh I, 1, 6, pr., because otherwise no change of policy in the editorial work is imaginable – how could the compilers have done such a thing without imperial autorisation? He takes some of the Sirmondian constitutions, not included in the Code, as proof for this by arguing that their inclusion would have caused confusion, so that it is explainable why they were not included. It is an interesting hypothesis and it is really good that this is brought forward. As for my point of view, I of course have no reason or need to prove that they should have been included in the Code.
8Without wanting to enter a discussion whether Huck’s hypothesis is valid or not, I would like to point to several elements in his argument which, I think, pose more problems than perhaps they seem to do at first sight. For example, as regards CS 1 doubts about its authenticity exist, since the tenor of the episcopalis audientia is nowhere else in this way attested, in any case in the Theodosian Code where one precisely would expect it. Huck refers to Cimma for that. She thinks it would have been impossible for a forger to compose such a letter. Moreover, according to her later constitutions indicate that some jurisdiction of this kind must have existed76. Yet these constitutions refer to a voluntary jurisdiction, within the framework of a compromissum to submit the dispute to arbitration, and not an obligatory jurisdiction: besides, the impossibility of appeal should make us cautious. Since the style of the constitutions is not something particular only to the imperial chancery (leaving aside the possibility, that the forger could have resided there), it is the normal epistolary style of the educated class77 which we, for example, also encounter with Symmachus or Cassiodorus. I do not see any reason why an educated person could not have forged CS 1. In view of its contents, which attributes far-reaching powers to bishops not corroborated elsewhere, I keep to its falsity. But even if it were otherwise, there would have been no reason not to include it in the Code. CS 1 would have been enacted by Constantine and therefore been valid for the entire empire, CTh I, 27, 2 by Theodosius II and therefore only for the eastern part: in the western part Sirm. 1, if authentic, would have kept its validity.
9CS 7 and 8 deal with Easter amnesties. According to Matthews there is no reason why they should not have been included in CTh IX, 38 De indulgentiis criminum78. According to Huck, the Easter amnesty took place every year and the compilers will have been faced with a mass of laws dealing with this79. Here the compilers must therefore have selected (but still 5 remain in the title) and the exclusion of CS 7 and 8 would be explainable. I am, in line with of my views, in favour of the exclusion of the obsolete and, with care, of the superfluous (what is superfluous is not by that obsolete! but it helps to give a clearer picture of the existing law), yet here too one has to consider things carefully. Several constitutions in CTh IX, 38 deal with different things, as the Summaria also indicate: 1 with amnesty on occasion of the birth of an imperial child, 2 with amnesty in times of usurpation, 3 with amnesty for accused (capital crimes excluded), 4 with amnesty for who may be tortured (slaves and humiles)[capital crimes excluded], 5 with amnesty for senators, 6 restricts the benefice of amnesty to a single time, 9 with amnesty (rather: in integrum restitutio) for honorati in Lycia, 10 with amnesty for relegati, 11 with amnesty for imperial civil servants who joined the ranks of a usurper, 12 with a general amnesty on occasion of the defeat of an usurper. Only 7 and 8 remain (repeating, it seems, 3 and 4)80. Huck maintains that Easter amnesties were promulgated every year. If that were so, such constitutions would not have been of a general character but incidental and in modern terms administrative acts81. Since only general rules were to be included in the Code, they would have been excluded from it anyway. Those I mentioned before were general rules, to be observed in case of an (incidental) amnesty and their inclusion is correct. So it is not so much a wonder that CS 7 and 8 were excluded, but rather, why after 3 and 4, 7 and 8 are included. If it were negligence on the part of the compilers, we have to wait till all, or at least a greater part of the Theodosian Code has been reseached on this aspect, to know whether this was an incident, or that we see a pattern which indicates that indeed the compilers did not always expurge superfluous or obsolete laws82. Or were they of the opinion that a custom had been established, for which four consecutive constitutions supplied the proof? The inclusion of one of them would in any case have been necessary and sufficient to state the rule, that to capital crimes no Easter amnesty would apply. Or it is because the four do not enumerate all the same crimes, but each differs from the other in that it has something extra83? I cannot give an answer here and further examination is certainly desirable, but it suffices that several acceptable answers may be given.
10As to CS 5, Huck’s argues that Matthews idea, that CTh V, 7 is an «obvious home» for Sirm. 5, does not make sense84. CTh V, 9, De expositis, would make sense, but there CS 5 is not found. And with good reason, so Huck, since CS 5 allows parents and masters to reclaim children exposed as foundlings on account of famine, on the condition that they disburse those who reared the child for the costs incurred. That would conflict with the prohibition of CTh V, 9, 1 and 2, to reclaim such foundlings at all. Yet, CS 5 requires a closer look. CTh V, 9, 1 is the prohibition for the east, CTh V, 9, 2 the prohibition for the west, with the addition, that the person who takes up the foundling should take the bishop as witness for this. CS 5 starts with a sentence on the reclaiming of persons who could not be fed by their parents or masters. This does not contain a rule, it is just a remark, which, however, might fit the rules of CTh V, 9, 1 and 2 (had it been edited by the compilers, such a sentence might have been edited or struck). Then, with porro, the uis sanctionis begins: porro… uindicare must be read in connexion with itaque… prosit, because itaque introduces the sequens. In this part it becomes clear that the emperor deals in the first place with the case that such a child has been bought (conparati): from its parents or master? It does not have to be so, the child may have been exposed, taken up by someone and then sold. Aut fortasse collecti may refer to that: in any case, it is too weak an expression to be considered as the basis of the rule. Central is, that the person who has the child now and had purchased it cannot block it being reclaimed, but in that case he has a right to double the price he paid – and it follows from this, that CS 5 cannot be meant for the case of CTh V, 9, 1 and 2, of mere foundlings – and next to this he has a right to have his expenses, incurred in rearing the child, reimbursed. As such CS 5 would better fit CTh V, 10. The only constitution there, of 329 (thus valid for the entire empire), allows for the sale of a newly born child: the purchaser has a right to its services (I would not assume without more arguments that it would become a slave) and in case it is reclaimed he has also a right to the price paid, provided he had drawn up a deed of the transaction. CS 5 (probably of eastern origin, considering the order of consuls) would have supplemented this: double the price, plus expenses. Perhaps it was indeed included in this title. We have this title only in the form of a reconstruction on basis of Alaric’s Breviary. We do not know what the Alarician compilers left out here. Further, I see in the distribution of CTh V, 9, 1 and 2 to respectively the east and the west another confirmation of my proposition, that what seem to be superfluous duplicates are in fact not and consequently a confirmation that the Code contained merely the rules, still valid (with a reservation as to book XVI, as made before).
11CS 13 should have been placed, according to Matthews, in CTh IX, 45 De his qui ad ecclesias confugiunt. Huck, on the contrary, argues that it should not, since it fixes the area of asylum at 50 passes around the church, whereas CTh IX, 45, 4 fixes it at the entire area covered by the church and its surrounding buildings and terrain. Inclusion would have caused «des malentendus, d’ambiguïtés ou de querelles» and thus exclusion was sensible. Apart from the fact that, in the view of those who favour to see the Code as containing also obsolete and superfluous constitutions, such problems would be solved by the principle lex posterior – c. q. specialis – derogat legi priori – c. q. generali – , so that in that option the exclusion is not warranted, would inclusion have caused such problems85? I do not think so. In case of a conflict the rule most favourable to the defendant most likely would have applied (in dubio pro reo), if both applied. Then, CS 13 was enacted for the west, CTh IX, 45, 4 for the East. The question rather is, why was it not included? Perhaps it was one constitution the compilers, situated in the east, could not get hold of. But CS 13 also grants priests the right to visit prisoners, investigate their cases and bring his intervention before the competent judge to achieve justice, i.e. he has the right to intervene on behalf of a prisoner86. That is quite a right, and Huck does not say that it is elsewhere attested. CS 13 may, like CS 1, be suspected of being a fraud, intended to give the Church a powerful privilege which it actually did not have.
12The last decennia have seen many contributions on questions as whether the Theodosian Code as we have it contains all imperial laws enacted in 311-437 or only those, still valid in 437 (and, implicitly, that the superfluous, such as those superseded by later ones, were struck too) on the basis of CTh I, 1, 5 and I, 1, 6, or on the constitution of the commissions entrusted with the compilation, textual tradition, etc. Much we learned from these. Although the subject is not exhausted, new elements might provide for fresh approaches, which still will take account of all that was said before, the ample Italian literature with many a useful and acute observation, of the ecclesiastical situation in the east and the religious policy of Theodosius (and perhaps more of his sister and wife)87, etc. but will add to these the results of new research. Such influx I think is desirable. The reconstruction of the constitutions as they were before the Code was compiled is such a good project. Yet by all that we should not forget that the Theodosian Code was meant as such, from the year 438 onwards, and that it was meant to have a purpose in law practice, as NTh I, 1, § 3 shows: quamobrem detersa nube uoluminum, in quibus multorum nihil explicantium aetates attritae sunt, compendiosam diualium constitutionum scientiam ex d (iui) Constantini temporibus roboramus, nulli post kal(endas) ian(uarias) concessa licentia, ad forum et quotidianas aduocationes ius principale deferre uel litis instrumenta componere, nisi ex his uidelicet libris, qui in nostri nominis uocabulum transierunt et sacris habentur in scriniis. We can only learn what that all was, if we analyse it in detail: what are the exact rules, what picture of the law emerges from the rules assembled in a title on a negotium, how could they have been applied? Such things should be added, they would enrich the discussion, and that is what I find, notwithstanding my remarks, which I offer with respect and in all scholarly friendship, find so very attractive about Huck’s approach. The idea of subjecting the Code to a comparison with the Sirmondian constitutions as a kind of negative is indeed one way of putting the constitutions of Theodosius’Code to such a test and I am very interested in the outcome88.
Notes de bas de page
60 Regarding the literature in note 1, I would be interested to know what Huck holds of the opinions of, for example, G. G. Archi or J. Gaudemet. Are really all «compilations " pré-théodosiennes"» lost? Don’t we have the Fragmenta Vaticana? (See also Sirks 1985, p. 30-31 and Sirks 1993, p. 60-61 for the de facto predecessors of the Code). On the leges geminatae, Gaudemet has written an interesting analysis (Gaudemet 1957). Did the design of 429 really respond to «une optique qui était celle des historiens du droit»? The only antique legal authors we know to have had an antiquarian interest were Pomponius and Gaius, for the rest all were men of practice. Might not Theodosius simply have meant to say that in a good legal education you learnt to apply the lex posterior derogat legi priori-rule? True, the division of a constitution into parts, distributed over various titles, could imply a change in meaning, as Fusco 1980, already observed. That the Code was meant for the practitioners is clearly said in NTh I, 3.
61 Vis may of course also refer to actual physical power, or to the force of nature, as in uis tempestatis, but that does not concern us here.
62 CTh X, 8, 1: IMP. CONSTANTINVS A. AD AEMILIVM VIRVM PERFECTISSIMVM RATIONALEM. Si quando adnotationes nostrae contineant possessionem siue domum quam donauerimus integro statu donatum, hoc uerbo ea uis continebitur, quam antea scribebamus, cum adiacentibus et mancipiis et pecoribus et fructibus et omni iure suo, ut ea, quae ad instructum possessionis uel domus pertinent, tradenda sint. DAT. VI ID. MAR. MEDIOLANO CONSTANTINO A. III ET LICINIO III CONSS.
63 Thus also Pharr’s translation: «the force of the sanction», Pharr 1952, p. 487. However, translating sanctio with «sanction» is too limited, since the word often indicates in the Later Empire a rule, issued.
64 Sirks 1993, p. 57-58, note 1 and footnote 76.
65 For example CTh XII, 5, 16, which begins with: Delatam uobis a diuo Constantino et Iuliano principibus aeternis equestris ordinis dignitatem nos firmamus. After this an enumeration of privileges follows. In such a case there is no need to include the Constantinian law too.
66 Sirks 1991.
67 Scheltema wrote of the constitutions in Justinian’s Code, but the same was of course valid for Theodosius’Code: see Scheltema 1966 and Van der Wal 1980.
68 Also Sirks 2003, p. 152-153.
69 Matthews 2000, p. 65.
70 Honoré 1998, p. 142-149.
71 Honoré 1998, p. 146. As to his example of CTh XV, 6, 1 and 2, on the prohibition of the maiuma, I would be inclined to explain the apparent contradiction, that lex 1 allows for the maiuma, whereas lex 2 would prohibit it. But 1 allows only the decent version of the maiuma, whereas Lex 2 forbids the dirty form of the maiuma. It may, since it allowed theatrical arts, also have allowed the decent maiuma. And that would fit the two summaria on the constitutions: maiuma sine turpitudine celebrandam, «the maiuma must be performed without indecency»; ludorum festiuitatem maiumae relaxandam, «the festivity of the games [and] of the maiuma must be allowed». Thus there is no contradiction.
72 Matthews 2000 p. 290.
73 Pharr 1952 added to his translation a rich commentary and took the trouble of searching for the laws to which a reference was made.
74 It is an a contrario argument which leaves open the possibility that they were not collected at all since they were not found.
75 The first five books deal with state offices and private law, whereas the missing constitutions are mentioned in the books on public law.
76 Cimma 1995, p. 382-383 and 387-389 (CJ 1, 4, 7; CTh I, 27, 2; XVI, 11, 1).
77 See Van der Wal's illuminating article on this point, Van der Wal 1980.
78 Matthews 2000, p. 128.
79 Huck refers for this to Huck 2003a, p. 192, a work or article which I cannot find.
80 Thus also their summaria.
81 In the terms of CJ 1, 14, 2: leges fiant his dumtaxat negotiis atque personis, pro quibus fuerint promulgata, nec ab aliquo retractentur, thus no general laws.
82 Which I think was likely for book XVI, but for the special reasons I mentioned above.
83 3: laesio maiestatis imperatoris, sepulchri uiolatio, adulterium, ueneficia, maleficia, raptus, homicidium; 4: the same and uiolentia; 7: the same and stuprum, falsus (monetae); 8: the same and incestus, laesio maiestatis domini.
84 Matthews 2000, p. 128.
85 For a deeper discussion of the asylum, see Hallebeek 2004.
86 Pharr translates interuentiones suas apud iudicem conpetentem pro iure moderetur with «according to law he shall direct his intervention before the competent judge», but pro iure is stronger: pro has the sense of «in favour of».
87 See the works of De Bonfils 2001; Barone Adesi 1990; Barone Adesi 1992; Dovere 1995; De Giovanni 1986 and now Millar 2006.
88 Another way is the method, which I applied in Food for Rome (Sirks 1991) and in other places.
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University of Oxford, Fellow of All Souls College
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