1. CODEXTHEODOSIANUS

This project originated in a law dated 26 March 429 (CTh 1:1:5).¹⁸ It outlined a plan for the codification of the law into two codes, and for that purpose a nine member editorial committee was appointed.

The instructions given to the two editorial committees differred on several important points, but they also shared several common charac­teristics, so that one may assume that to a certain extent the latter committee continued the work of the former. The editors were in­structed to collect all the general laws introduced since the reign of Constantine, to which category, indeed, most of the texts in the Code belonged. At the same time, it is clear that the editors were unable to gather all the general laws, because some of the material was lacking in the archives and registers available to them, due to their methods of collection, or because of incorrect distinction between general and non-general laws. In a law from the year 397 (No. 27), Arcadius men­tioned privileges granted to the Jews in the laws of Constantine, Con­stantius, Valentinian, and Valens, but the Code comprised only laws of Constantine on this subject (Nos. 7 and 9). The relevant laws enacted by Constantius, Valentinian, and Valens, which were still known in the chancellery in 397, were not included in the Code. Likewise, Eusebius mentioned a law by Constantine dealing with the ownership of Chris­tian slaves by Jews—to which Theodosius II might have referred in a law from 415 (No. 41)—but this law is not found in the Code. The suppression of the laws of Julian the Apostate relating to the Jews— such as No. 13—may be explained by religious motivations. The edi­tors were not fully consistent in their attempts to eradicate the memory of Julian, as he was mentioned, together with Constantius II, in the inscription of No.

Laws accepted into the Code underwent a three-fold process of codi­fication: (1) dating; (2) arrangement of the laws and of the partial texts into books and chapters by subject matter; (3) linguistic and content editing of the text, through deletions, additions, and corrections.

A. Dating

The texts in the Code were to be arranged in chronological sequence in order to determine their validity under the rule that a later law super­seded an earlier one.²⁰ The dates of the legal documents made it pos­sible to distinguish between authentic and forged documents, and therefore provided a criterion of authenticity. The date, which con­sisted of the chronological location of the specific event—or docu­ment—in a recurrent constitutional cycle, i.e., the annual consulates, or in the continuous rule of a specific ruler, signified the conferment of legitimacy and public force to the document, whether public or pri­vate. This practice resulted in cases of contested validity when private documents were dated by the reign of rulers subsequently declared as illegitimate.²¹ Thus, it is clear that the date appearing upon legal docu­ments had great significance.

Of the 45 laws in the Theodosian Code dealing with the Jews only 31 are correctly dated. The dates given by three of the laws (Nos. 8,

12,    and 46) clearly contradict the prosopographic information sup­plied by the same laws. This information has much greater weight than the date itself in the process of reconstructing the chronology of the texts. For example: according to the Code, No.

B. Systematic Arrangement

The systematic arrangement of the laws into books and chapters ac­cording to topic was one of the main aims of the entire project of codification. Theodosius II indicated in his First Novel that the inten­tion of this arrangement was to facilitate the approach of jurists to this massive collection of legal information.

No. 15 is divided into two sections in the Theodosian Code: CTh 12:1:100 and CTh 12:1:99, although only the second section opened with the words ‘post alia’. Both texts were issued by Gratian, both are addressed to Hypatius, both are dated the 18th or 19th of April 383 (the small discrepancy stemming from a copyist’s error), and both concerned the question of exemptions from liturgies. There is no doubt that in the original law CTh 12:1:100 appeared before CTh 12:1:99. The reversal in order of the two sections within the same chapter, as if they were two separate laws, stemmed from the small error in dates. Reconstruction of the original law is also possible on the basis of indications of division in only one of the texts in the case of No. 38. No. 39 also appears to belong to this group: two texts in the Theodo­sian Code {CTh 2:8:25 and CTh 16:8:19) were given by Honorius, both were addressed to lovius, both are dated 11 April 409, and both deal with various offenses against Christianity, although only CTh 2:8:25 opened with the words ‘post alia’. However, the subjects dealt with in the two laws are not absolutely identical, so that we may have here two separate texts by Honorius, both issued on the same day and both addressed to lovius. The significance of the indications of division is particularly striking in those laws which were divided into more than two sections. No. 48 is divided in the Code into four sections, and placed in four different chapters. Two of these are marked with both ‘et cetera’ and ‘post alia’; these are obviously the middle ones. Of the remaining two, one, presumably the first one, contained only the words ‘et cetera’, while the other was marked only with ‘post alia’, suggesting that it was the final section. The sequence of the two middle sections may then be reconstructed on the basis of their content. No. 49, which was divided in the Code into four sections in four different chapters, may be reconstructed in a like manner. The first and third sections of the original law concluded with the words ‘et cetera’, while the second and fourth opened with ‘post alia’. A more difficult prob­lem is posed by No. 51. Four versions of this law are known: three of them in the Code, and the fourth in the full text of the law as transmit­ted in the Sirmondian collection. Of the three texts in the Code, one appeared in an abridged text without any sign of division (CTh 16:5:62); the second appeared in two texts in two separate chapters (CTh 16:2:46 and CTh 16:5:63); one of the two texts is marked with the words ‘post alia’ and ‘et cetera’ and the other marked only with ‘et cetera’. The third version appeared in two texts within two chapters (CTh 16:2:47 and CTh 16:5:64), the first of which is marked with ‘et cetera’ and the second with ‘post alia’ and ‘et cetera’. These signs clearly indicate that in the second version the final section is missing _i and that this version contains the two middle sections only or, alterna­tively, the first two sections. In the third version the final section is missing. These speculations, based only upon the signs of division, are entirely confirmed by comparison with the complete text of the law found in No. 6 of the Sirmondian collection: the first section, lacking in the second version, contained the proclamation of the restoration of the privileges of the churches which had been abrogated by the tyrant Johannes; the final section, missing in this version, was the order relat­ing to the expulsion of the Jews and pagans and the restrictions im­posed upon them. The final section, lacking in the third version, con­sisted, again, of the restrictions upon the Jews and the pagans. The importance of considering the signs of division in order to recognize the missing sections is also evident in No. 40, its two “twin” texts are marked with the words ‘post alia’ and ‘et cetera’, indicating that two sections are missing: the one preceding the text presented in the Code and the one following it.

As a result of the arrangement of the text by subjects, a text concern­ing several subjects was often included in several chapters, bringing about the phenomenon of ‘leges geminatae’, “twin laws”—identical texts appearing in different places.²² Thus, for example, No. 18 ap­peared in two “twin” texts, as does one of the two versions of No. 40. In No. 29, on the other hand, we find an interesting phenomenon: the text of CTh 12:1:158, cancelling the exemption of the Jews from participa­tion in the liturgies of the curias, was edited to eliminate all reference to Jews, leaving a text of general applicability: CTh 12:1:157. The two texts—the revised version and the original—were then placed one after the other in the same chapter, as if they were two different laws. At times, also, different versions of one law were cited as if they were different laws. This stemmed from the fact that the editors received separately issue- and promulgation-texts of the same laws, or texts de­rived from different archives, such as No. 9, and perhaps No. 40.

An examination of all the laws in the Theodosian Code dealing explicitly with the Jews reveals that a total of 45 laws were divided into 68 texts, which were then arranged by subject among the different books of the Code. Fifty-one of these appeared in Book 16, dealing with the Church and other religions. Chapters 8 and 9 of this book are devoted specifically to the Jews: Chapter 8, containing 29 texts, is headed by the title ‘De ludaeis, Caelicolis et Samaritanis’, “On the Jews, the ‘Heaven-Fearers’ and the Samaritans”; Chapter 9, which contains five texts, is headed ‘ne Christianum mancipium ludaeus ha­beat’, “That a Jew shall not have a Christian slave.” The other texts are scattered throughout the other books of the Code. Book 12, which deals with decurions and the curial liturgies, contains six texts; Book 2 has three texts; Book 3 two texts; the last two books concern personal law. Book 9, concerning penal law, contains two texts, while there is one text each in the following books: Book 7, concerning military matters; Book 8, concerning the lower level of the civil service; Book 13, concerning corporations and the supply of grain to the capitals; Book 15, concerning public entertainments.

C.Linguistic and Content Editing

In addition to the task of compilation, dating and arrangement, the editors were responsible for editing the laws both in terms of style and content. This edited text presented the jurists with clear, usable legal material which had been adjusted to the new circumstances through changes, additions, and deletions.²³ It is clear that the editors removed from the complete text of each law the personal greetings at the begin­ning and end of each law (excepting the case of No. 37, in which the greetings to Donatus are preserved), the rhetorical preamble describ­ing in detail the purpose of the legislation, the rhetorical conclusion, and the detailed directives concerning the promulgation of the law and its application which appeared at the end. As a result of this editorial procedure, nothing was left but the substantive, practical sections of the law, and these, as we have mentioned, were also divided according to subject.

There is no doubt that the texts were edited in terms of both lan­guage and substance, but it is extremely difficult to determine exactly the extent and significance of this editing. This difficulty results from three causes. First, we are not dealing with absolutely stable texts, for even prior to the editing stage they had already undergone changes during their distribution, promulgation, and preservation. Variations among different versions of the same law make any evaluation of the changes it underwent at the editors’ hands very difficult. Second, our knowledge of the process of preservation of the Code is still incom­plete. Not only is the textual tradition of the Theodosian Code insuffi­ciently clear, but sizeable portions of its text are known to us only through later links in their chain of transmission, such as, for example, Alaric’s Breviarium. Finally, one is confronted by the scarcity of com­plete texts of the laws preserved independently of the Code, as in epigraphic sources or private collections, which would permit a com­parison with the abridged and edited texts. It has become very difficult to determine whether a given change was made prior to, during, or after the editing of any one text.

One may venture to approximate the scope and significance of the editing through comparison of the complete texts of three laws as preserved in the Sirmondian collection with their edited sections in the Code (Nos. 10, 35, and 38). Comparison of Sirmondian Constitution No. 4 with CTh 16:8:5 and CTh 16:9:1 (No. 10) is of particular inter­est, as both Sirmondian Constitution No. 4 and the version available to the editors were taken from the version promulgated in Carthage, eliminating the possibility that differences between the texts derive from changes which took place during the course of its distribution and promulgation in various places. If we have a single source, there can be no doubt that textual differences reflect either editing, or changes introduced after the closing of the Code, or both. Examination of the three laws mentioned above reveals that the original texts underwent substantial linguistic editing, which resulted in shorter and clearer texts. No significant changes were made in the content. The linguistic editing required certain omissions, such as phrases which are repeated later, e.g., ‘Illud etenim... subiugari’ in Sirmondian Constitution No. 4, changed in CTh 16:8:5 to ‘Eum qui... punienda’ (No. 10); connec­tive words, such as ‘quapropter’ and ‘iam vero’ (No. 35); items and matters relevant only to their own period, such as the names of the Executive-Agents charged with the application of the law (No. 35). Many of these linguistic changes were intended to render the text clearer; to this end, we find the substitution of ‘quis’ for ‘quispiam’ (No. 10); ‘quis’ for ‘quisquam’ (No. 38); ‘plectendum’ for ‘subdendum’ (No. 38). The editors also made alterations on linguistic grounds, such as the emendation of ‘multitudo. .. tueantur’ to ‘multitudo... tuea­tur’ (No. 38), and ‘litteris... curatoris’ to ‘litteris... curatorum’ (No. 38). There were more substantial changes as well, such as that of ‘aliquem... ritum’ to ‘alicubi... ritum’ (No. 35). The occasional additions were meant to clarify the text, such as the added details in the penal clause in No. 35, and the addition of the word ‘deposcant’ in No. 38. Modern research points to but a small number of glosses interpolated into the body of the texts in the Code, and even these— which have not yet been adequately proved—are partly ascribed to the changes in the text prior to editing (No. 10, n. 12; No. 11, n. 4) and to the textual tradition following the completion of the Code (No. 28, n. 12-13), while only one gloss is attributed to the editors themselves (No. 41, n. 9). There are few paraphrases or changes in the structure of sentences, and even these are intended to make the text clearer and to simplify elaborate rhetorical devices: e.g., the editing of the phrase ‘si quispiam... potiatur’ in No. 10.

It is important to note that considerable changes in content resulted sometimes from the very fact of abridgement when texts were removed from their general context in the original law, or when the specific original significance was eliminated and the text acquired a more gen­eral meaning. A good example of this is No. 29, in which the truncat­ing of the law eliminated its specific meaning—which appeared in the fuller text in CTh 12:1:158—relating to the specific exemption of Jews from the curial liturgies, and which resulted in the creation of a text of general significance on the subject (CTh 12:1:157). One may conjec­ture, consequently, on the basis of this small and random sample (three texts out of 45), that the texts in the Theodosian Code are generally faithful to the original versions of the laws in terms of their content, although not in terms of language.

The Theodosian Code did not survive in its entirety. According to Kruger, only one-fifth of the Code survived directly.²⁴ Mommsen calcu­lated that two-thirds of the total number of letters in the original text of Books 1-5 are missing; that is, only 252,720 of the original 614,000 to 637,000 are extant.²⁵ Most of the known texts concerning the Jews are concentrated in the later books of the Code. The greater part of them can be found in two manuscripts: (1) Vaticanus Reginae 886 (=V)—a sixth-century manuscript which is a primary, and at times exclusive, source for Books 9-16; (2) Eporediensis 35 (=E)—a ninth­century manuscript which contains the Breviarium. Forty-five of these texts appear in both V and E; eight appear in V alone; two texts appear in V and in other manuscripts; six appear in E alone; while one text appears in E and in an additional manuscript. Books 6-8 were preserved only in MS. Parisinus 9643 (=R) from the fifth or sixth century, containing two texts concerning the Jews. The palimpsest Taurinensis a 11:2 (=T) contains fragments from nearly all the books of the Code, including one text pertaining to the Jews not known from any other source, as well as one text which also appears in E, one which appears in R, and one which appears in V. The vast majority of these texts (59 out of 68) are consequently known to us through the tradition of independent Code manuscripts. Three texts from the first books of the Code are known only through the Breviarium: Nos. 17 (CTh 3:1:5); 18 (CTh 3:7:2); 28 (CTh 2:1:10). Thus, there is ground to assume that the large number of texts dealing with the Jews in the latter books of the Code (Books 9-16) are not only the result of an original concentration of these laws in those books, especially in Book 16, but also of the poor level of preservation of the former books against the nearly complete preservation of the latter ones.

The extant texts depend therefore on a small number of manu­scripts, and this dependence is reflected in the deletions, some of which are extremely early. An obvious deletion distorts the text of No. 10, which is preserved in the fourth Sirmondian Constitution, while another deletion, which corrupts No. 42, may simply be an unsuccess­ful abridgement of the full text on the part of the editors. However, most of the deletions are in texts which were preserved in only one manuscript, and no alternative source can supply the missing parts. Nos. 15, 29, and 31 are corrupt as the result of the deletions of phrases from the version presented by V; incidentally, the scholiast of V at­tempted to correct the error in No. 31. Nos. 16 and 48 are corrupt as the result of deletions in the text of E. Nos. 39 and 51 are distorted due to omissions both in V and E; as CJ 1:12:2 gives a full version of No. 39, one may assume that in this case the text of the Theodosian Code available to the editors of the Justinian Code included the pas­sage missing in manuscripts V and E.

It is to be hoped that the discovery of new manuscripts of the Theodosian Code will not only add to the number of the texts dealing with the Jews, but also improve our knowledge of known texts by filling in the lacunae and correcting errors.

Upon the completion of the Theodosian Code, definite rules were established for the application of the laws in the two parts of the Empire: a law went into effect only within the domain of the legislating emperor; in order to take effect in the other half, the second emperor had to promulgate it in his own right (First Novel of Theodosius II, par. 5-6). In accord with this ruling, Theodosius II in 447 sent a collection of Novels which had been enacted since the completion of the Code—including his Third Novel (No. 54)—to Valentinian III to be promulgated in the West. The document issued by Theodosius II on this matter was added to the collection as the Second Novel. The collection was formally promulgated by Valentinian III in 448 (in his 26th Novel) and thereby took effect in the West.

In the East, law No. 54 was abrogated on 16 April 529, when the first edition of the Code of Justinian went into effect, with the explicit abrogation of all the Novels which had been legislated since the com­pletion of the Theodosian Code. However, three abridged texts from it were included in the revised Code which took effect on 29 December 534 (Constitutio Cordi). In the West, on the other hand, No. 54 was included in the first collection of Novels edited in the time of Majorian,²⁶ and from that collection it passed into the Breviarium. In the Visigoth Kingdom, No. 54 thus remained in effect until the abroga­tion of the Breviarium in 654.

2.