Page:Bury J B The Cambridge Medieval History Vol 2 1913.djvu/84

56 treatises taken account of the pertinent rescripts, edicts, etc., already issued and it was therefore only from the time when the series of authoritative jurists ended that the imperial constitutions required collecting. The books of Gregorius and Hermogenianus (Codices Greg. et Herm.) contained those issued down to Constantine's time, which was therefore taken as the starting-point for the additional collection. Theodosius in 429 appointed a Commission of eight, and in 485 another larger Commission of which Antiochus the praefect was named first with other officials and ex-officials of the Record and Chancellery departments and Apelles, a law professor, power being given to call other learned men to their aid. He instructed them, following the precedent of Gregory and Hermogenianus' books, to collect all the imperial Constitutions issued by Constantine and his successors which were either in the form of edicts or at least of general application, to arrange them in the order of time under the known heads of law, breaking up for this purpose laws dealing with several subjects, and while preserving the enacting words to omit all unnecessary preambles and declarations. When this is done and approved they are to proceed to review Gregory, Hermogenianus, and this third book, and with the aid of the pertinent parts of the jurists' writings on each head of law to omit what was obsolete, remove all errors and ambiguities, and thus make a book which should "bear the name of the Emperor Theodosius and teach what should be followed and what avoided in life."

The Theodosian code, technically called, as Mommsen thinks, simply Theodosianus, was published in Constantinople 15 February 438 and transmitted to Rome at the end of the year. The consul at Rome holding the authentic copy in his hands, in the presence of the imperial commissioners, read to the Senate the order for its compilation, which was received with acclamation. We have an account of this proceeding with a record of the enthusiastic shouts of the senators and the number of times each was repeated, some 24 or 28 times. Exclusive authority was given to the code in all court-pleadings and court-documents from 1 January 439, the Emperor boasting that the code would banish a cloud of dusty volumes and disperse the legal darkness which drove people to consult lawyers; for the code would make clear the conditions of a valid gift, the way to sue out an inheritance, the frame of a stipulation, and the mode of recovering a debt whether certain or uncertain in amount.

With the knowledge which we possess of the Vatican Fragments and the Digest and Code of Justinian, we might expect from the above description that the Theodosian Code would contain a selection from the juristic writings as well as the constitutions of a general character arranged under the several titles or heads of law. But the Code, which has in a large part (about two-thirds of Books i-v being lost) come down to us, contains no extracts from the jurists and no constitution earlier than Constantine. So that the exclusive authority which the