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Reform of Law by Theodosius II

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cave fragments preserved in the Vatican Library. They contained both branches of law, extracts from the jurists Ulpian, Paul, and Papinian, as well as Constitutions of the Emperors.

At length the need of an authoritative statement of laws in force was so strongly felt that the matter was taken up by government. Theodosius II, son of the Emperor Arcadius, having previously taken steps to organise public teaching in Constantinople, determined to meet the uncertainties of the law courts by giving imperial authority to certain text writers and by a new collection of the Statute Law. The books of the great lawyers, Papinian, Paul, and Ulpian and of a pupil of Ulpian, Modestinus, were well known and in general use. Another lawyer rather earlier than these, of whom we really know nothing, except his name (and that is only a praenomen), Gaius, had written in the time of Marcus Antoninus in very clear style a manual, besides other works of a more advanced character. The excellence of this manual brought it into general use and secured for its author imperial recognition on a level with the lawyers first named. Another work in great general use was a brief summary of the law by Paul known under the name of Pauli Sententiae. All these lawyers were in the habit of citing the opinions of earlier lawyers and often inserting extracts from them in their own works. Theodosius (with Valentinian, then seven years old) in A.D. 426 addressed to the Senate of Rome an important and comprehensive Constitution, intended to put what may be called the Common Law of Rome on a surer footing. He confirmed all the writings of Papinian, Paul, Gaius, Ulpian, and Modestinus, and added to them all the writers whose discussions and opinions were quoted by these lawyers, mentioning particularly Scaevola, Sabinus, Julian, and Marcellus. The books of the five lawyers first named were no doubt in the hands of judges and advocates generally, but the books of the others would be comparatively rare, and a quotation from them would be open to considerable doubt. It might contain a wrong reading or an interpolation or even a forgery. Theodosius therefore directed that these older books should be admitted as authorities, only so far as they were confirmed by a comparison with manuscripts other than that produced by the advocate or other person alleging their authority. But Theodosius went further. If the writers thus authoritatively recognised were found to differ in opinion, the judge was directed to follow the opinion of the majority, and if the numbers on each side were equal, to follow the side on which Papinian stood and disregard any notes of Paul or Ulpian contesting Papinian's opinion, but Paul's Sententiae were always to count. If Papinian's opinion was not there to decide between equal numbers of authorities, the judge must use his own discretion.

The great portion of law which had been set forth in text-books as reasonable and conformable to precedent and statute having thus been sanctioned, and rules given for its application, Theodosius turned his attention to the Statute Law itself. The jurists had in their various

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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 435 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

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Emperor gave to his code can only be understood to relate to constitutions since Constantine, and he must have relied on the Gregorian and Hermogenian Codes for earlier constitutions still in force, and on the text-books of the lawyers, approved by his constitution of 426, for supplying the requisite details of practical law.

The Code of Theodosius was divided into sixteen books, each book having a number of titles and each title usually containing a number of constitutions or fragments of such. The order of subjects is similar to that of Justinian's Code with some exceptions. Private law is treated in Books ii-v, military matters in vii, crime in ix, revenue law in x and xi, municipal law in xii, official duties in i, and xiii-xv, and ecclesiastical matters in xvi. The names of the Emperors at the time of enactment and the date and the place either of framing or of publication were given with each constitution though they are not wholly preserved. Compared with Justinian's Code it contains a much larger proportion of administrative law and a much smaller proportion of ordinary private law. The Code remained in force in the East and in Italy until Justinian superseded it, though the traces of its use are few. In the West, in Spain, France, and Lombard Italy, it remained in practical use for long, chiefly as part of the Code issued to the Visigoths by Alaric II in 506.

A number of constitutions issued by Theodosius and his successors after the Code and therefore called Novellae (i.e. leges), “new laws," have come down to us-84 in number, the latest of which bearing the names of Leo and Anthemius was issued in 468. Of further legislation by Roman Emperors until Justinian we have only what he chose to retain in his Code.

After the Theodosian Code and before Justinian there were compiled and issued codes of laws for the Romans in Burgundy, for the Ostrogoth subjects in Italy, and for the Romans in the Visigothic kingdom in South France and in Spain; and we have evidence of other laws prevailing in the Eastern part of the Empire, before and after Justinian's time.

In Burgundy about the beginning of the sixth century King Gundobad issued a short code of laws for all his subjects whether Burgundian or Roman. A few subsequent constitutions by him or his successors have been appended to it. Somewhat later he issued a code for his Roman subjects, when suits lay between them only. This code is about half the length of the other but many of the headings of the chapters are the same. The matter is principally torts and crimes (e.g. cattle-lifting), runaway slaves, succession, gifts, marriage, guardianship, process, and some brief rules on other parts of the law. It appears to have been taken from the same sources as the Lex Visigothorum and the particular source is frequently named. But instead of simply repeating selected words of the source, it is rather an attempt at real codification. The name Papianus often given to it arises probably from this Code

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Codes for Ostrogoths and Visigoths

having followed in the MSS. the Lex Visigothorum and the extract fro Papinian which closes that having been taken as the commencement this. Papianus is a frequent mistake for Papinianus.)

For the kingdom of the Ostrogoths in Italy a code of laws w issued by Theodoric about A.D. 500. It is usually called Edictu Theodorici. The code is nearly the same length as the Lex Romar Burgundiorum and much resembles it in character and sources, but do not name them. The contents are torts and crimes, especially attach on landed possessions and cattle-lifting, successions, marriage, serf conduct of judges, process, etc. The first editor, Pithou, had two MS in 1578, but these have completely disappeared.

The Lex Romana Visigothorum is much more important than eithe of the above. It is a compilation promulgated by Alaric II for Roma citizens in Spain and part of Gaul in the twenty-second year of h reign, i.e. A.D. 506. He states in an accompanying letter to Cour Timotheus that it was compiled by skilled lawyers (prudentes) with th approval of bishops and nobles, to remove the obscurity and ambiguit of the laws and make a selection in one book which should be solel authoritative. No power of amending the law appears to have been giver

It contains a large number of constitutions from the Theodosia Code, omitting especially those which relate to administration rathe than general law. Consequently there are few taken from Books vi, vi xi-xiv. Some post-Theodosian Novels follow; then an abridgment o Gaius' Institutes, a good deal of Paul's Sententiae, a few extracts from the Gregorian and Hermogenian Codes, and one extract from Papinian A short interpretation is appended to all of these, except to Gaius an to most of Paul's Sentences, where interpretation is stated not to b required. The author and age of the interpretation are quite unknown It sometimes gives a restatement of the text in other words, sometime adds explanations. The selection of matters for the code shews th intention of giving both Statute and Common Law. The code was n longer authoritative law after Chindaswinth (642–653), but it was used i the schools and assisted largely in preserving Roman Law in the sout and east of France till the twelfth century; and a tradition that i received confirmation from Charlemagne is possibly true. Our knowledg of Books ii-v of the Theodosian Code and of most of Paul's Sentences i due to this compilation, which in modern times has received the name o Breviarium Alarici.

In the lands on the eastern part of the Mediterranean-Syria Mesopotamia, Persia, Arabia, Egypt, and Armenia - a collection of laws evidently translated from Greek, was used under the name of "Laws o Constantine, Theodosius, and Leo," probably composed at the end of th fourth century and enlarged in the fifth, perhaps with later alteration from the Justinian laws. Versions of it in Arabic, Armenian, and several in Syriac, differing in some degree from one another, have bee

Syrian Code. Justinian's Reform

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ately published. The chief portion relates to family law, marriage, dowry, guardianship, slaves, and inheritance, but obligations and procedure are also included. It is supposed to have been compiled for practical use in suits before the bishops and minor ecclesiastics. Differences between the law prevailing in the East and that in the West are sometimes mentioned, e.g. that in the former the husband's marriage gift was only half the value of the wife's dowry. Other differences from the regular Roman Law of the time are the requirement of a written contract for marriage, the recognition of the possession (as in the Gospels) of wives and slaves by demons, punishment of a receiver of others' slaves or serfs by making him a slave or serf, prescription of 30 years for suits for debts, prohibition of purchase by creditor from debtor until the debt is paid, allowance of marriage with wife's sister or brother's widow if dispensation be obtained from the king, many peculiarities in intestate inheritance, privileges, and endowments for the clergy, etc.

Justinian succeeded his uncle Justin in 527 and at once took up the task partially performed by Theodosius, and succeeded in completing it in a more thorough manner than might have been expected from the speed with which it was done. In 528 he appointed a commission of ten, eight being high officials and two practising lawyers, with instructions to put together the imperial constitutions contained in the books of Gregorius, Hermogenianus, and Theodosius, and constitutions issued subsequently, to strike out or change what was obsolete or unnecessary or contradictory, and to arrange the constitutions retained and amended under suitable heads in order of time, so as to make one book, to be called by the Emperor's name, Codex Justinianus. The book compiled by the commission was sanctioned by the Emperor in 529, and it was ordered that no constitution should be quoted in the law courts except those contained in this book, and that no other wording should be recognized than as given there.

The next step was to deal with the mass of text-books and other legal literature, so far as it had been recognised by the courts and by the custom of old and new Rome. In 530 Tribonian, one of the members of the former commission for the code, was directed to choose the most suitable professors and practising lawyers, and with their aid in the imperial palace under his own superintendence to digest the mass of law outside the constitution into one whole, divided into fifty books and subordinate titles. All the authors were to be regarded as of equal rank full power was given to strike out and amend as in the case of the constitutions: the text given in this book was to be the only authoritative one it was to be written without any abbreviations; and, while translation into Greek was allowed, no one was to write commentaries on it. This work, never attempted before and truly described by Justinian as enormously difficult, was "with the divine assistance" completed in

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