Cambridge Ancient Hi.. - Index of

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his commissioners to bring the third codex to completion on the basis of
what had originally been planned as only the first phase. He widened the
scope of the commission’s work on the constitutions which they had collected,
and enlarged its membership. The commissioners were now to take
on the tasks necessaria adicere, ambigua demutare and incongrua emendare. And the
originally intermediate volume was now itself to be called the Codex
Theodosianus. 27
It was promulgated in Constantinople for the eastern empire on 15
February 438, to come into effect on 1 January 439, 28 and during 438 it was
also brought into operation in the west through Valentinian III. The senate
in Rome welcomed its introduction at its meeting on 25 December 438,
when most careful attention was paid to ensuring reliable dissemination of
the Codex throughout the empire; the senate also recognized the danger
that privileges, surreptitiously obtained, would undermine the legal order,
especially the holding of property. 29
The work of assembling the constitutions had been difficult and only
partly successful. In Mommsen’s view the presence of a constitution in the
Codex was determined more by chance than choice. 30 Only the more recent
enactments, since Arcadius, could be taken from the imperial archives in
Constantinople. The commissioners had to find the vast majority of the
earlier ones from other sources in the capital or in the provinces. In the west
many areas had fallen into the hands of the barbarians, and at Rome in 410
there had been widespread destruction. Nevertheless, it was possible to find
many constitutions, even for instance in the records of cases, which had to
set out such constitutions as had been adduced. The archives of the numerous
lower courts would obviously be the source. It was still possible to obtain
many from Carthage, which fell to the Vandals only in 439; also Beirut, where
there was a famous law school (see pp. 253,4 below), contributed a good deal.
The collection was not accurate in every detail: many dates were incorrect,
and it was not comprehensive. The prohibition which accompanied
the promulgation forbade recourse to any enactment from the relevant
period if it had not been included in the codex, but, typically, exceptions
had to be admitted in the case of the specially sensitive areas of military
law and state finance. 31 On the other hand, the fact that the collection was
originally conceived as a stepping stone to a more perfect volume meant
that it had not been purged of much obsolete material. With the help of
the chronological arrangement it was for the user himself to decide what
was still valid and what had been overtaken by later developments. Unfortunately
the insertion of some enactments in the wrong place (leges fugitivae)
made this task difficult.
27 C.Th. i.1.6. 28 Nov. Theod. 1.
29 Gesta senatus Romani de Theodosiano publicando, C.Th. ed. Mommsen, pp. 1ff., esp. 3, lines 8–12; 16;
20–4; 33. 30 Mommsen (1905) 384; also Seeck (1919) 1–18. 31 Nov. Theod. 1.6.
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