Some Quaestors of the Reign of Theodosius II1

Tony Honore

This chapter² has a number of connected aims. One is to confirm the view that the general laws³ of the Later Empire, enacted in the imperial consistory, and in particular those excerpted in the Theodosian Code (henceforth the Code)⁴ were mainly drafted by quaestors⁵.

¹          References to the Codex Theodosianus, Novellae Theodosianae and Codex Justinianus include a line number, lines being counted according to the Mommsen edition of CTh and the Krueger edition of CJust. The counting is continuous, so that if the text as printed runs over to a second page, the number of lines on the first page is added to the number on the second page up to and including the reference.

²          I am grateful for Professor Wulf Eckart Voss for his detailed and helpful comments on an earlier version of this paper. This is not the place to discuss the respects in which our views diverge.

³          CTh 1.1.5.3-4 (26 March 429), 1.1.6.1 (20 Dec 435, both Constantinople) cf CJust 1.14.3 (Ravenna 6 Nov 426).

⁴          In relation to the Code I call CTh 1.1.5 the first directive, and the commission it set up the first commission; CTh 1.1.6 the second directive and the commission it set up the second commission; and NTh 1 of 15 Feb 438 the confirming law.

⁵          Viz by the official called comes et quaestor or quaestor sacri palatii, perhaps dating from Constantine (see Zosimus n.

⁶          Good account by J. Harries, JRS 78 (1988), 148-72.

⁷          Ep. 1.23: ‘concilii regalis particeps... precum arbiter, legum conditor..

⁸          Paneg. diet. M Theod. cons. 17.34: ‘terris edicta daturus, supplicibus responsa venis.’

⁹          Not. dig. Or. 12.3-5; Occ. 10.3-5: ‘sub dispositione viri illustris quaestoris: leges dictandae, preces.’

¹⁰        Zosimus 5.32: ‘ho ta basilei dokounta tetagmenos hupagoreuein.’

¹¹        Paneg. in laud. Anastasii quaest. et mag. 26f: ‘principis auspicio leges et iura gubernans, iustitiae vindex.’

¹²        Variae 6.5.1,2: ‘quaesturam... quam nostrae linguae vocem esse censemus... armarium legum... qui ore principis populos noscitur admonere’ and cf 6.5.6: ‘necesse tibi Palatina,^{[141] [142]} all say much the same thing. But the quaestor thesis, as it may be called, needs stressing. Scholars have so far been reluctant to accept and act on its corollary, that we can in favourable circumstances hope to discover which texts were drafted by which quaestor, and to group laws according to the quaestor responsible for them.

The quaestor thesis fits the view that in the Later Empire government was specialised.

Their role depended to some extent on the importance, somewhat neglected, of constitutional convention in the imperial government. One must not be bemused by the doctrine, which legal historians overplay, that sole legislative power rested with the emperor. Not only did political realities count, but the emperor’s sovereignty, like that of the British Parliament, was limited by procedure and custom.

The reign of Theodosius II, which ran for our purposes from 408, when his father Arcadius died, to 450, suits these themes because in it we know the names of ten quaestors, often the rough dates at which they held office (which in several instances this study makes more precise) and sometimes other details. His extended reign straddles the Code which bears his name. My last four quaestors were in office after it was promulgated in 438, but as two or three of them served on the second Code commission their careers bear on it.

The arguments deployed are mainly based on style and vocabu­lary.^[143] These are likely to convince those who, reading the texts chronologically, will see why certain sequences appear coherent in style and why some seem to have been drafted by lawyers and others not; but there is no sure way of convincing others.

An emperor might draft a law himself, if he was determined to do so or fancied his literary talent, but between Julian and Justinian^[148] emperors seldom did. A text drafted by the quaestor might of course contain phrases taken from the proposal of an official, suggestio, or from materials supplied by officials whom he could call on in the various imperial departments (scrinia), especially the office of petitions (libelli), which possessed legal expertise and could apprise him of the existing state of the law and the relevant precedents. But a broad distinction must be made between substance and style. Thus Nestorius, having become bishop of Constantinople, boasts of his influence on the anti-heretic law of 30 May 428.^[149] But this does not mean that he composed it, merely that he pressed for it and perhaps supplied the extended list of heresies which appear in it (CTh 16.5.65.10-27).

Another warning must concern the texts of the Theodosian Code in which the second commission made certain changes, as the directive of 435 told them to,^[151] some the inevitable result of shortening, others in the interests of clarity. But the extent of these changes should not be exaggerated. Wherever we can judge, they turn out to be no more than the substitution of an odd word here and there. No one lightly tampered with imperial constitutions.

Despite the undoubted pitfalls, a reader who troubles to read the texts chronologically will find that he encounters groups of texts coherent in style and vocabulary. If read consecutively for this period the constitutions in the Code and Theodosian Novels yield at least twelve chronological groups of texts which appear to be by the same hand. These are now set out in a table, to which the reader is asked refer from now on. In it a member of the first Code commission is marked by p, of the second by s; one thanked in the confirming law by t; a lawyer by *, a likely Christian by t.

A.    The quaestor and legislation

Before we come to individuals some general remarks about the office of quaestor and the procedure for enacting general legislation will help.

In what follows an attempt is made to match the ten names of quaestors to the twelve stylistic groups and to say something about the career and outlook of some of those who can be thus matched. No fewer than seven of the ten names, perhaps as many as nine, can plausibly be thought to fit one of the twelve groups. The minimum number of texts treated as forming a group is, apart from one instance, eleven, the maximum thirty-eight. The maximum simply reflects the longest coherent sequence of texts, and extends for just over three years.^[156] To fix a minimum is harder, and depends on striking a balance between the number of texts and the period they cover. The minimum period covered by the groups selected is just under six months,^[157] which is on the short side. Still shorter periods, say of a month or two, are rejected because they raise a doubt whether the person concerned held office as quaestor or merely as a stand-in. The smallest number of texts in a group is eleven,^[158] apart from one group of seven, which is however spread over

3.                 Some Quaestors of the Reign of Theodosius II 73 _a whole year.²⁹ On average a group extends over seventeen months, and runs to twenty-two laws, a decent length and quantity. The actual number and period will be a bit greater, since the quaestor may have drafted laws outside the period of those that survive. There are 341 laws of this period in the Code and the post-Theodosian Code Novels (NTh), an average for 42 years of just over eight a year. Of these 78-79 per cent (between 268 and 272) are attributed to one or other of the twelve quaestors. This reveals a contrast between what seem productive and lean times: an average of nearly sixteen texts a year for the seventeen years when the twelve quaestors were in office, against just under three a year for the rest. Either chance has cut down the number of laws for the apparently lean years or, more likely, vigorous lawmaking alternated with fallow periods.

The dates of the first and last laws in a stylistic group suggest that a quaestor often took office on 1 January, or in the last weeks of the previous year after the wine harvest was in. An attractive hypothesis is that he normally took office on 5 December, the date Mommsen gives for the beginning of the quaestor’s term in both Late Republic and Empire,³⁰ the continuity of the late imperial quaestorship with its forerunners being greater than is sometimes supposed. The quaestor was meant to hold office for not less than a year from the date of appointment and was sometimes renewed for a further year or years.³¹ Of the stylistic groups seven (nos 1, 5, 6, 8, 9, 10, 11) begin with the first surviving law of a calendar year, whose dates range from 19 January to 16 March. Two of them (nos 3, 12) begin with a law dated after 5 December of the previous year which is the last law of that year. Two others (nos 4, 7) begin in November, which might be accounted for if by arrangement with his predecessor these two quaestors-elect began to draft laws a little in advance of formally taking office. In only one case (no. 2) does the first law of a group fall at another time of year, August. A tenure of office also tends to finish with a calendar year or at the wine harvest period (nos 1, 4, 7, 9, 10 with dates ranging from 4 September to 30 December), one of them (no. 10) later than the Mommsen date of 5 December, or with the last law of the year in question (nos 8, 12) or the last before the wine harvest (nos 3, 6, 11). When the stylistic date changes after 5 December one has to bear in mind the possibility that the new quaestor was working on a draft made by his predecessor. But all the evidence suggests a changeover towards the end of a year or the beginning of the next. Only once or twice have we evidence of a change of office in the middle of the year (no. 5, June 426; no. 3/4, between April and November 417).

To understand the quaestor’s role, it is useful to bear in mind the

²⁹        no. 7 (Nov 434 to Nov 435).

³⁰        Staatsrecht II¹ (Leipzig 1874) 500.

³¹        One year: nos 7, 8,10; two years: nos 1, 4, 9,11; more than two years: nos 3, 6,12.

process of legislation.³² The best description comes in an eastern law of 446 (CJust 1.14.8,17 Oct) which brought the senate into the legislative process by requiring that it should discuss and approve any proposed new general law before enactment. From this we can see what the procedure was previously, when the consistory alone was consulted. A proposal for a new law having emerged, for example in a proposal from an official (‘suggestio’), it is discussed (‘tractari’) in the imperial consistory or a restricted group of its members (called variously ‘proceres’, ‘indices’, ‘consistorium’). If after discussion it emerges that a new general law is needed a draft proposal (in modern terms a bill) is formulated (‘tunc allegata dictari’): in one of its uses ‘allegare’ means ‘to put a case or proposal’.³³ At a second meeting the consistory or the inner group discusses the matter, including the draft, a second time (‘denuo recenseri’). If after discussion unanimous agreement is reached on the draft, if necessary as amended,³⁴ the text is finally read out (‘recitari’). The emperor validates it by subscribing it, (‘firmari’), after which it is promulgated.³⁵

Hence for general legislation either two or three meetings were needed, depending on whether one assumes an interval between the second meeting, at which the draft is discussed, and the final stage at which the agreed text is read out and subscribed by the emperor. The quaestor’s role fits into the procedure in the following way. He has (i) to formulate the proposal approved at the first meeting by drafting the new law (‘allegata dictari’), (ii) to read out the draft at the second meeting, (iii) to incorporate in it any amendments agreed at that meeting and (iv) to read out (‘recitari’), the final text to the consistory. I think we should postulate three meetings, in view of the wording of the 446 law and the requirements of orderly deliberation.

The need for unanimity (‘cum omnes consenserint’: ‘omnes’ can hardly mean both consistory and senate considered as bodies) is important, because it shows that the legal doctrine that the emperor has exclusive power to make laws is modified by convention. The opinion of each member of the consistory counted. If at the end of the second meeting opinions were divided, members in the minority might defer to the majority and in particular to the emperor, even so weak a

³²        For a slightly different account see J. Harries, op. cit. 165-6.

³³        Dig. 3.1.1.6 (Ulp. 6 ed); 22.3.26 (Pap. 20 qu); 46.1.71 pr (Paul 4 qu); 48.1.13.1 (Pap. 13 resp).

³⁴        lang=EN-US>Often by a final sentence, as in CTh 16.8.25 (15 Feb 423).

³⁵        CJust 1.14.8 Ad senatum: (my subdivision into stages) ‘Humanum esse probamus, si quid de cetero in publica vel in privata causa emerserit necessarium, quod formam generalem et antiquis legibus non insertam exposcat, (i) id ab omnibus antea tarn proceribus nostri palatii quam gloriosissimo coetu vestro, patres conscripti, tractari, et, si universis tarn iudicibus quam vobis placuerit, tunc (ii) allegata (legata) dictari et sic ea denuo omnibus collectis recenseri et, cum omnes consenserint, tunc demum (iii) in sacro nostri numinis consistorio recitari, ut universorum consensus nostrae serenitatis auctoritate firmetur.’

3,                Some Quaestors of the Reign of Theodosius II 75 one as Theodosius II. But they need not and, if they did not, the matter might properly be deferred or lapse.

B.    Individual quaestors

There follow some remarks about the style and careers of seven quaestors who held office between 414 and 439 and who were either members of one of the Code commissions or are significant figures in the run-up to it. They consist of one major figure, Antiochus Chuzon, the main architect of the Code, and six lesser but not insignificant ones. Want of space obliges me to pass over the rest without comment.

no. 3. CTh 1.7.4 (13 December 414) to CTh 16.9.4 (10 April 417): Flavius Eustathius^[159]

This group of 37 or 38 texts^[160] is marked by technically correct legal language: ‘corporalis traditio’, ‘ususfructus exceptio’, ‘imperfecta donatio’, ‘nullius momenti esse’ (8.12.8.2,3,5,14), ‘filii legitimi’, ‘in sacris patris’, ‘ut sui’ (3.12.4.5,6), ‘testamenti factio’, ‘per interpositam personam’, ‘ab intestato venire’, ‘legitimas intestatorum deferre hereditates’ (16.5.58.14,18,20-1), ‘species traditionis’, ‘retentio usus­fructus’ (8.12.9.2,3). The drafter was clearly a competent lawyer.

His texts are polished and, especially in the earlier part of his tenure, forthright. Here are some examples: (on confirming title to loot) ‘nec enim crimen dissimile est rapere et ei, qui rapuerit, rapta servare’ (9.28.2.4); (on the abuse of tax and debt remission) ‘in suum compendium rapinamque convertere, ut fierent privata debita, quae fuerant publica’ (11.28.10.3-4); (against Eunomians and double baptism) ‘in modum semel nati hominis semel a deo conceditur; pares ceteris sint, qui pares sunt in dogmatis pravitate’ (16.5.58.3,15-6); (on undeserving agentes in rebus) ‘quos vita culpabiles et origo habet ignobiles’ (6.27.18.2); (on combining senatorial and municipal duties) ‘nec enim credimus utrumque per unum, prout convenit, posse compleri’ (12.1.180.4-5); (on by-passing written wills) ‘nemo scriptis proprium auferat robur et non scriptis sub praetextu nostri vel

potentium nominis ingerat firmamentum’ (4.4.5); (on security of tenure for agentes in rebus) ‘nam probata schola et animadversionem vereri iudicis et nullam debet timere contumeliam vilitatis’ (6.27.17.5); (on relaxing formalities in donations) ‘cum observationem iuris contrahere potius quam propagare debeamus; idem sit in his causis usumfructum retinere quod tradere’ (8.12.9.4,8-9). He can use strong language, for example in condemning looting and heresy: ‘contagium quoddam funestae pestis’ (9.28.2.4); ‘execrabilia mysteria’ (16.5.57.6); ‘servilis faex’ (6.27.18.3); ‘nefanda superstitio; caeno propriae sectae’ (16.9.4.6,8). His direct, concrete manner impels him to begin two-thirds of his laws with a sentence in the indicative.^[161]

His texts are not free of superfluous duplication: ‘pari et simili ratione’ (3.12.4.3), ‘spoliatio ac direptio’ (16.5.57.13), ‘sponte atque ultro’ (16.5.58.7), ‘salva atque intemerata’ (6.26.17), ‘militiam vel sollicitudinem’ (6.32.1). His forceful style recalls Nicomachus Flavianus, western quaestor in 388-390,^[162] with whom he shares the phrase ‘nihil commune habere’.title="">^[163] But a reference in one of his laws to ‘right religion’, ‘recta religio’, in contrast to Judaism, points to his being a Christian (16.9.4.5-6).

The style described begins in December 414.^[164] The five earlier laws of 414 are ponderous, with elaborate sentences marked by the use of ‘nec non et/etiam’ (11.28.9.6; 13.3.17.3) and ‘sit/sitque/sint’ (9.40.22.4; 6.2.23.6; 13.3.16.10). The new manner persists, though with diminishing vigour, up to 10 April 417. The next two laws, of 28 July (7.11.2.4) and 27 September (15.11.2.2,5) deploy a rather mechanical formula (‘comperimus... ideoque praecipimus’) which does not comfortably fit the preceding laws, though continuity is not entirely ruled out. After that there is a clear change, with a group of five laws in a more bureaucratic manner, three of them introduced by ‘no one’ or ‘none’.^[165]

The quaestor responsible for the group of 37 or 38 texts between 13 December 414 and 10 April 417 can be identified as Flavius Eustathius. He is cited as quaestor in two of them, dated 15 October 415 (1.8.1.2) and 6 February 416 (6.26.17.1). Given that the first text is from December 414, Eustathius was appointed not long after the influence of Theodosius’ austere sister Pulcheria supplanted that of Anthemius, who had been prefect of the Orient from July 405 to April 414. Eustathius took office as quaestor in December 414^[166] at about the same time as Aurelian, who had been prefect of the orient in 399,^[167] returned to that office in place of Monaxius. Aurelian, perhaps Pul­cheria’s choice as prefect, had been quaestor himself much earlier, about 393^[168] and remained prefect at least until 10 May 416 (7.9.4).

Eustathius’ quaestorship went on into 417, so that the last months of his term were concurrent with Monaxius’ return to office as prefect from 26 August 416 to 27 May 420.^[169] Did the change of prefect account for the repeal of a law earlier in Eustathius’ quaestorship inspired by legal purism? Property given as a gift must henceforth be physically transferred to the donee if ownership was to pass. If the donor retained a life interest and remained in physical control, a common practice, the ownership would not pass to the donee. After Monaxius returned as prefect this inconvenient law was effectively repealed (8.12.9), with apologies, Eustathius drafting the repeal. The laws he addresses to Monaxius as prefect, though recognisably his, are flatter than his earlier compositions (12.1.182, 9.40.23, 11.28.11, 16.2.42, 12.12.15, 6.25.1, 6.24.8, 6.24.9, 8.12.9,16.9.4). This may show that their text was influenced by Monaxius’ proposals. Eustathius went on, after a gap of three years from April 417, to succeed Monaxius as prefect of the Orient between 18 September 420 (7.16.3a) and 19 June 422 (8.4.27). He was consul in 421.^[170]

This lawyer-quaestor who went on to be prefect of the Orient was clearly a figure of some weight. Like other officials a quaestor might propose a new law. The suggestion for the law of 15 October 415 (CJust 1.8.1) came from him, and he is naturally one of those to whom it is addressed. The subject is an item of official infighting. Command posts on the military establishment, praepositurae, had been removed from the lesser register, laterculum minus, under the quaestor’s charge and taken over wholly or for the most part^[171] by the army office, magistri militum. Forty of these posts are now restored to the lesser register and commissions for them are henceforth to be issued by the third clerk in the department of records, scrinium memoriae,^[172] who acted on the quaestor’s instructions. Eustathius had won a notable though incom­plete victory against the army office, which Sallustius later exploited.^[173]

Eustathius’ texts display lawyerly values. He is hostile to petitions to the emperor for benefits or exemptions (1.7.4, 5.12.2), and to the circumvention of the law by the emperor (4.4.5, 14.16.2), soldiers (7.7.5, 7.7.4, 7.9.4) or magnates (3.1.9, 11.28.10, 4.4.5). The very first text of his tenure says that the staff of the army office are not to be dragged by imperial rescript before any court other than that of the master of soldiers, ‘even if someone has by disclosing or suppressing the truth obtained a rescript from our clemency to that effect’.^[174] This is strong meat. But most and perhaps all of these texts of high propriety belong to the period when Aurelian was prefect.

Since Eustathius proceeded in due course to be prefect of the Orient it is worth asking whether the texts of his prefecture show any parallels in style or substance with those of his quaestorship. I have not been able to detect any. From his period as prefect only three scattered texts survive in 420 (7.16.3; 10.1.17) and 421 (16.8.21 Mommsen 412 = 16.2.45 & in part CJust 11.21), then six in a consistent style during the first half of 422.^[175] They have none of Eustathius’ sharpness, even when the subject is the technical one of a soldier’s or office holder’s service fund, peculium castrense (1.34.2 cf. CJust 1.51.7). So far as conclusions can be drawn from this instance, a prefect could influence the substance of legislation; but of the three prefects considered (Aurelian, Monaxius and Eustathius) only Monaxius perhaps influenced the tone of the laws addressed to himself.

The career of the lawyer/quaestor/prefect Eustathius marks the arrival on the scene of a type of public figure who was to be central in the composition of the Code, though he himself was to have no part in it.

no. 4. CTh 6.8.1 (6 November 422) to CTh 2.12.7 (14 November 424): Sallustius^[176]

A roughly equivalent group of 36 laws in a consistent style runs from November 422 for two years.^[177] The quaestor responsible for these was also a lawyer, as his technical correctness shows: ‘praedium urbanum aut rusticum cuiuscumque condicionis’ (12.3.2.5-6: viz ‘res mancipi’ or ‘nec mancipi’), ‘agere ex testamento’, ‘fideicommissi persecutio’, ‘bono­rum possessio secundum/contra tabulas’, ‘edictum divi Hadriani’, ‘de inofficioso agere’, ‘vis codicillorum’, ‘gradus agnationis et cognationis’, ‘in iure praetorio sive civili’ (4.4.7.1-3,7-9,12-14,22-4,26-7,35), ‘dona­tionis titulo’, ‘dominus constitutus possessionis’, ‘non vendita sed legitime donata vel iure successionis adquisita possessio’ (11.20.5.8,11), ‘personales actiones’, ‘actione vel persecutione’, ‘triginta annorum prae­scriptio’, ‘pignus vel hypotheca’, ‘petitio finium regundorum’, ‘post litis contestationem in indicium actione deducta’, ‘pupillaris aetas’, ‘actiones perpetuae’,‘legis ignorantia’(4.14.1.3,5-7,9,17-18,21,25-6,41), ‘dominus causae’, ‘indicati actionem in dominum dari vel domino’, ‘procurator vel cognitor in rem suam’ (2.12.7.2,3-4,7,8-9,11). He was a first-rate jurist, as capable of dealing with awkward problems of costs and ‘res judicata’ (4.18.2) as of turning the classical law of robbery against Christians, true or so-called, who despoil temples and synagogues (CTh 16.10.24). His greatest claim to distinction is to have introduced a decisive aid to security of title, the thirty-year period of prescription (CTh 4.14.1) against ‘perpetual actions’, in a complex law which paid due regard to the transition from the previous state of the law and to existing litigation.

The quaestor insists on strict procedures.^[178] Periods of time (11.30.67.7-8; 11.31.9.6,8-9,11,13; 8.4.28.8; 6.35.14.4,9; 1.34.3.6; 11.20.5.4-7,12,29; 4.14.1.3,6,11,19,25-6,32,34-5,37-38,40), degrees (4.4.7.26,28), amounts (7.6.5.3, CJust 8.10.11.3,5-7, CTh 11.1.33.4-5) and numbers (4.4.7.40,43) are carefully specified. So is the scope of the law, the moment at which it is to take effect and the problem of retrospec- tivity (6.8.1.11-20; 16.8.25.1-5,7-8; 4.18.2.1-2; 6.35.14.11-18; 12.3.2.12­19; 10.19.15.17-22; 10.20.14.6-9). The laws seem to rest on a policy of future strictness, but with this goes some willingness to relax the exist­ing rules, for example as regards practising pagans (if any), though they should be put to death (16.10.23.2-3): and past alienations of curial land in Osroene, though strictly speaking invalid (12.3.2.13). The usual rule of law values are in evidence: emphasis on general laws (16.5.59.4-5; 12.3.2.5), opposition to derogations from them by rescript (4.18.2.2), the pursuit of certainty of title and status, which calls for fixed prescriptive periods (4.14.1, 8.4.28, 6.35.14) and clarity (11.31.9.18), which may call for repeating or explaining a previous law (16.8.27,16.5.61). If any scho­lar still believes in the existence of an imperial vulgar law^[179] he will rapidly be cured by reading this group of texts.

The quaestor’s style flows evenly, his prose more rounded than that of Eustathius. There are some good phrases: (of one who has made good the transition from local to imperial service for ten years) ‘minime conveniatur ulterius, sed privilegia et praemia viri fortis expectet’ (8.4.28.10-11); (of Jews buying Christian slaves) ‘nefas enim aestimamus religiossissimos famulos impiissimorum emptorum inqui­nari dominio’ (16.9.5.23-30); (of those who lose money through the ban on trading in purple etc.) ‘nec est, ut quisquam de abiurato pretio conqueratur, quia sufficit calcatae legis impunitas, nec vacet illi curare de quaestu, cui sua salus esse non debet in pretio’ (10.21.3.10-12); (on the right to claim under a trust) ‘non enim par eademque ratio videtur amittere debita et lucra non capere’ (4.4.7.33-4); (on the restoration to the quaestor of his former powers) ‘placuit nunc clementiae meae vetusti temporis more renovato ad prisca deinceps iura revocare’ (1.8.3.4-5).

His writing proceeds at an even pace with well-balanced clauses. Doublets are common, like ‘sedibus et consessu’ (6.8.1.9), ‘pro cupiditate ac libidine’ (7.4.35.3-4), ‘cedant ac deserant’ (7.15.2.2), ‘absolutum dimissumque iudicium’ (4.18.2.5-6), ‘spiritum audaciam­que compressimus’ (16.8.26.3), ‘sine inquietudine et intermissione’ (6.35.14.10), ‘execrabilium religionum et professionum’ (16.5.61.3), ‘ieiunis et desertis possessionibus’ (11.20.5.14), ‘propriae originis stirpem laremque’ (10.19.15.6), ‘tradita oblivioni et diuturno silentio, otioso nimis ac desidi’ (4.14.1.20,31). He often inverts constructions with the verb ‘esse’: ‘sunt praediti’ (6.8.1.4), ‘sunt ereptae/sublata/ dedicata’ (16.8.25.3,5-6), ‘erit dilatione obnoxius’ (16.9.5.4), ‘erunt obnoxii’ (16.5.60.6), ‘sunt apparitionibus obligati’ (16.5.61.4-5), ‘erit venditio’ (12.3.2.10), ‘esse promissum’ (11.1.33.2), ‘esse subeunda’ (10.20.14.8), ‘erit praescriptio metuenda’ (4.14.1.6), ‘est ordinatus’ (2.12.7.2). Like some other jurists he is free with future tenses: note the examples of its inversion just given and ‘conveniet’ (15.3.6.12, 4.14.1.29,36), ‘damnabuntur’ (16.8.26.8), ‘cohercebit’ (16.10.23.3), ‘sustinebit’ (10.21.3.14), ‘licebit’ (4.4.7.30), ‘debebit’ (11.20.5.22,25, 11.1.33.9), ‘non valebit, amittet’ (11.20.5.27,30), ‘probabuntur’, ‘sub- iacebunt’, ‘constabit’ (10.19.15.9-10,13,21), ‘durabit’, ‘videbuntur’, ‘oportebit’ (4.14.1.10,36,39), ‘sufficiet’ (2.12.7.9).

The quaestor responsible for these thirty-six laws from 6 November 422 to 14 November 424 was Sallustius, who is referred to as quaestor in a text of 26 April 424 (1.8.2 = CJust 1.30.1). In the surviving laws there is a gap between June 422^[180] and Nov 422, so that he probably began to draft laws after the wine harvest of 422 and went through almost to the end of 424, with a steady output of laws, broken by winter gaps of two months in 422-3 and three in 423-4. His quaestorship begins soon after Eustathius’ prefecture ends,^[181] both being lawyers who improved the quaestor’s status. When did his term of office end? The last three laws of 424, in December, are by a verbose and awkward writer, whose texts lack proper connectives, possibly a stand-in during what would otherwise have been another winter gap (CTh 7.4.36, 11.21.3, 1.6.12). His appointment may have been for the calendar years 423-4. By 1 February 425 a more competent quaestor (no.5) is in office. During most and perhaps all of Sallustius’ tenure the prefect of the Orient was Asclepiodotus,^[182] who served from 14 February 423 (7.4.35) to 1 February 425 (15.5.5) and was consul in 423. As a maternal uncle of the empress Eudocia, daughter of a pagan philosopher, he was attacked for sympathy to pagans and Jews (16.8.25; 16.8.27; 16.10.22; 16.10.24.4­13). Several laws of this period evince a dislike of Christians who use religion as an excuse to attack Jews and pagans. The names of heretical sects are boring.^[183] Despite this, Sallustius seems to have been a Christian, speaking of ‘our faith’ (‘nostra tides’: 16.8.26.8), the first appearance of this phrase in a general law.

The law of 26 April 424 (1.8.2) shows that Sallustius was capable of extending Eustathius’ victory over the army office^[184] and repatriating to the quaestorship all the posts attached to the lesser register ‘in accordance with ancient custom’ (‘iuxta consuetudinem priscam’), for which commissions are henceforth to issue ‘at your discretion’ (‘tuo arbitratu’: 1.8.2.2,5). Three days later a pithy law (1.8.3), which Sallustius must have enjoyed drafting, informs Helio Master of Offices^[185] of the reversion to former practice. Justinian preserves these texts (CJust 1.30.1,2) but eliminates Eustathius’ law of 415 (CTh 1.8.1) which had now been overtaken.

We do not know how his career ended. He was not on the first Code commission of 429-35 (1.1.5), though he would have been an obvious choice. The laws of his quaestorship show that in 422-4 a strong current was flowing in favour of rule of law values.

no. 5. CTh 15.5.5 (1 February 425) to CTh 12.12.16 (1 June 426): Anti­ochus senior?^[186]

The next quaestor, able and forceful but with different habits of composition, is the author of fifteen laws between 1 February 425 and 1 June 426.^[187] In literary talent he outdoes Eustathius and Sallustius; on the other hand there is no sign that he was a lawyer. Those who want theatre and circus on Sundays are admonished: ‘aliud esse supplicationum noverint tempus, aliud voluptatum’. It is more vital to honour God than the emperor, ‘cum virtutibus dei omnipotentis ac meritis universi obsequium orbis impenditur’ (15.5.5.12-13,17-18) or again ‘excedens cultura hominum dignitatem superno numini reservetur’ (15.4.1.6). It is likely that the quaestor, who speaks of ‘Christianorum ac fidelium mentes’ (15.5.5.9), was a Christian, since though a pagan would talk of ‘Christiani’ the reference to the faithful implies a commitment. He was a cultivated man, able to cast in appropriate terms the law which reorganised higher studies in Constantinople (14.9.1).

Though the editorial process makes such inferences fragile, it is notable that his laws often begin with nouns or noun equivalents (CTh 15.5.5, 15.1.53, 14.9.3, 6.21.1, 10.10.32, 6.22.8, 6.30.24, 12.12.16). He likes doublets in which the constituent elements are separated in the following manner: ‘virtutibus dei omnipotentis ac meritis’ (15.5.5.17­8), ‘humiliores aliquanto atque angustiores, ministris eorumdem locorum desit aut populis’ (15.1.53.6-8), ‘discipuli sibi invicem possint obstrepere vel magistri, vocum aures quorumdam aut mentes’ (14.9.3.20-2), ‘ad quaestus eius compendiumque devenerit’

(10.10.32.7)     , ‘ut non culmine distinguantur aequali sed tempore’

(6.30.24.7)       . There are striking separations of adjective and noun: ‘maiore quadam imperialis officii necessitate’ (15.5.5.14), ‘ex ipsa ubi versatur inlicite urbe’ (14.9.3.6), ‘laudabilem in se probis moribus vitam’ (6.21.1.8), ‘efficax quod postulaverat postulatum’, ‘ex aequa cum aerario dividere parte’, ‘in eius procul dubio societate’, ‘suam a petitore vindicaturo aerario portionem’ (10.10.32.4-5,7-8,17), ‘ad summum praefecturae pervenisset usque fastigium’, ‘aliquibus professionum et militae meritis’ (6.22.8.3,13), ‘ad inlustrem meruerint magistri a vigiliis atque laboribus procedere summitatem’ (6.10.4.2-3), ‘in summa administrationis sunt positi potestate’, ‘tristi liceat proscriptionis tempestate’ (9.41.1.2-3,5-6), ‘ipsis quodammodo amplissimae tuae sedis obtutibus’ (10.20.16.6), ‘imperalis officium pertinuisse responsi’ (12.12.16.2-3). Two-word phrases are linked in chains: ‘si docendi peritiam facundiamque dicendi, interpretandi subtilitatem, copiam disserendi se habere patefecerint’ (6.21.1.9-10); ‘ad nos insimulatio­num genera, quaestionis ordo, criminum moles, documentorum probationumque pensanda libramenta mittantur’ (9.41.1.6); ‘civitatum postulata, decreta urbium, desideria populorum’ (12.12.16.1). Four of eight instances of ‘modis omnibus/omnibus modis’ in the Codex fall in these laws (14.9.3.10; 10.10.32.17; 6.22.8.6-7; 10.20.16.5).

This tenure of the quaestorship begins after the three clumsy laws of December 424. The end comes between 1 and 22 June 426, when a more pedantic style takes over for the eight laws which survive from June to December of that year.^[188] The prefect of the Orient during the tenure was first perhaps Aetius (May 425^[189]), then from September 425 to the end Hierius.^[190]

Unlike Eustathius and Sallustius, this quaestor cannot be identified with certainty, but he may well have been the senior member of the first Code commission of 429: ‘Antiochus vir illustris exquaestor et praefec­tus’ (1.1.5.23-4), who is attested as a praetorian prefect on 14 October 427.^[191] As Hierius was prefect of the Orient at this time,^[192] Antiochus must have been prefect of Illyricum. The law in question is a set of instructions, mandata, addressed to him at his own instance setting out certain powers of deputy governors of provinces. Since it was not a general law enacted in the consistory (and not drafted by the quaestor of October 427^[193]) it was not included in the Theodosian Code. The text may include elements of Antiochus’ proposal. In it the phrase ‘ad alienandas minorum similiumque eis personarum seu curialium facultates’ presents a parallel to ‘ad inlustrem meruerint magistri a vigiliis atque laboribus procedere summitatem’ from our quaestor’s law of 22 September 425 (6.10.4.2-3).

The argument for the identity of our quaestor with Antiochus senior is not conclusive. But the latter must have been quaestor before 429, indeed before October 427 when the younger Antiochus is drafting laws.^[194] What slots are available? Apart from the groups of laws composed by Eustathius and Sallustius none, apart from this sequence of 425-6, displays the talent one would expect of the senior member of the first Code commission. That post, if not held by a skilled lawyer, should go to someone who combined literary talent with administrative experience.

Antiochus senior was not a member of the second Code commission of 435 (1.1.6.10-6) and is not heard of after 429.

no. 6. CTh 6.24.10 (16 March 427) to CTh 6.27.23 (16 April 430): Antiochus Chuzon^[195]

The next coherent group of constitutions stretches from 16 March 427 to 16 April 430, a full three years, and comprises between thirty-one and thirty-three texts, including the first Code directive of 26 March 429.^{Schoolbook",serif;color:black'>[196]} After a gap of nearly three months between the last pedantic law of the second half of 426 a vigorous and lawyerly quaestor comes on the scene from March 427 and continues until April 430, but at a reduced rhythm after March 429 when the Code project was set on foot.

He was an accomplished lawyer, who uses technically correct language: ‘donationum ante nuptias vel dotis instrumenta’, ‘iura legitimorum’ (3.7.3.1-2,4); ‘rei mobilis vel immobilis dominum’, ‘iusti liberi’ (4.6.8.3,5); ‘non impetratae actionis exceptio’ (2.3.1.2-3); ‘donationis instrumentum ante nuptias’, ‘de traditione minime perquiratur’, ‘etsi... rerum offerandarum in dotem habeat donatio mentionem’ (3.5.13.2-3,6-7); ‘capere ab intestato hereditatem’, ‘ab intestato venire’, ‘ab intestato hereditas’ (5.1.9.3,13,16); ‘ad exac­tionem dotis... dictio vel stipulatio’ (3.13.4.2-3); ‘ante nuptias donatio’, ‘potestatis iure ad parentes revertere’, ‘fructu atque usu... dominum’ (CJust 6.61.2.5,8,9-10); ‘iure frui dominii, potestatis iure frui’ (15.8.2.5); ‘nullo donationis faciendae invicem nullo testamenti aut voluntatis ultimae... iure concesso’, ‘procuratore qui hoc nesciente domino fecerit’ (16.5.65.29-31,40); ‘ineundi contractus vel dissolvendi obligationis causa’ (CJust 10.34.2.3-4); ‘sive ex asse sive ex parte heres sit bonorumve possessor’ (CJust 10.35.1.2-3); ‘validiora esse quae sunt posteriora’, ‘in desuetudinem abierunt’, ‘prudentium tractatibus et responsis’ (1.1.5.8,13,15). His texts like those of other lawyers of the age are hostile to derogations from the general law: ‘cessante omni beneficio principali’ (7.8.14.8); ‘omne beneficium omnisque adnotatio... nullam habeat firmitatem’ (6.2.26.11-13); ‘etiamsi obtinuisse eam speciali adnotatione nostra indulgentiae videantur’ (8.4.29.4). But the attempt to apply this principle ran into opposition from pressure groups and met the snag that it is often not obvious how in a given instance to apply the rule that later laws repeal inconsistent earlier ones. Thus CTh 13.3.18 of August 427 upholds a law on compulsory hospitality expressed in very general terms (7.8.14) less than two months before but makes it subject to exemptions granted by earlier laws to doctors and the liberal arts professions. 13.3.19 later the next year makes another exception in favour of doctors. 10.10.34 exempts those on the emperor’s domestic staff who bid for forfeited property from the requirement that half all such property should go to the fisc. These difficulties help explain why the Theodosian Code directive of 26 March 429 (1.1.5.8) did not instruct the commissioners to omit laws which conflicted with later laws. To do so would have invited endless disputes, and it was better to leave judges, officials and citizens to work out for themselves how to apply the rule that the later law has priority. Thus, though 4.6.8 reverted to an earlier law on succession between parents and natural children and rejected the ‘asperity’ of a recent western one, 4.6.7, the latter was kept in the Code. 5.1.9 repealed a very recent law of Theodosius II (not traceable) as too favourable to the succession of spouses on intestacy.

The laws of this quaestorship favour informality in private transac­tions, such as marriage (3.7.3: valid by the parties’ consent and on the evidence of friends despite the absence of dowry or a marriage cere­mony), giving dowry (3.13.4: once agreed, any words suffice) and making gifts {CJust 8.53.29: they can be made to people unknown to the donor and, if there is no deed of gift, they can be proved in other ways).

The quaestor’s style is clear, accurate and adapted to the subject-matter. It is marked by a construction in which adjectives, participles, verbs and prepositions precede the noun to which they relate but are separated from it by intervening words, typically two, sometimes one, three or more. The examples which follow are mainly of two intervening words: ‘praedictum suo ordine numerum locumque’ (6.24.10.6); ‘promulgatum super hoc cognoverint legem’ (10.20.17.3-4); ‘felicibus pro salute reipublicae expeditionibus’ (7.8.14.2-3); ‘secundo nostrae maiestatis oraculo’ (13.3.18.3-4); ‘praeclaro sunt sacrati collegio’, ‘delatis sibi senatoriis dignitatibus’ (6.2.26.2,5-6); ‘senatoriis se aestimant functionibus eximendos’ (6.27.22.4); ‘hac nostrae mansuetudinis aeterna lege’, ‘in qualibet alia positas civitate’ {CJust 12.5.2.1-2,8); ‘iniungenda publica vel privata necessitate’ {CJust 12.23.13.6 Euxodio csl); ‘deesse recte alias inito matrimonio firmitatem’ {CTh 3.7.3.3); ‘intra ducentorum solidorum est quanti­tatem’ (3.5.13.4); ‘conductisve pro paupertate personis’ (15.8.2.10-11); ‘adhibitis aliis idoneis documentis’ {CJust 8.53.29.3); ‘abreptas tenent ubicumque ecclesias’, ‘si alios sibi adiungant clericos’, ‘omnis innova­tionis adimatur licentia’, ‘ad imam usque sceleris nequitiam’, ‘in certas vix concessa personas’, ‘delatum ad se crimen’ {CTh 16.5.65.2-3,5,15,21­2,51-2,61-2); ‘ad praediorum iubemus comparationem expendi’ {CJust 10.34.2.4-5); ‘non praeiudicante eis novella lege’ (13.3.19.4-5); ‘in utramque dici partem’, ‘pro sui tantum temporis negotiis valitura’, ‘coharentibus prudentium tractatibus et responsis’, ‘in coniunctissima parte alia valebit imperii’, 'in alterius quoque recipiendum scriniis’ (1.1.5.6,14,15,30-2); 'solis cum necessitas exegerit verbis precibus inser­endis’ (CJust 1.19.8.5); 'si qua per calumniam postulatio’ (CJust 1.3.22.1); 'cum impetrabile huius fuerit postulatum’ (CTh 10.10.34.2-3); 'memoratum statutorum numerum’, ‘concessa potiantur militia’ (6.27.23.6-7). A related construction consists of doublets separated by intervening words, as in: 'aut patre conchyliolegulo geniti probabuntur aut matre’(10.20.17.6-7); 'otii tempore et quietis’ (CJust 12.5.2.6-7); 'aut extantibus iustis liberis aut etiam non extantibus’ (CTh 4.6.8.5-6); 'praeter cohortalinem in provinciis et castrensem’ (16.5.65.27-8); ‘sequenda omnibus vitandaque monstrabit’ (1.1.5.17). There are some good examples of chiasmus: 'aptam rei et proposito negotio competen­tem’ (2.3.1.3: this text is notably succinct and elegant); 'ad priorem statum et condicionem pristinam revocentur’ (8.4.29.4-5); 'edictorum viribus aut sacra generalitate subnixas’, 'non fide dubia nec privata adsertione nitatur’ (1.1.5.3,31). There are also some inversions of esse: 'sunt sacrati’ (6.2.26.2); 'est testandi occasio’ (CTh, 5.1.9.5); ‘est reprimenda insania’, 'si sit ingenuus’, 'sunt haereticis promulgata’, ‘sunt initiati mysteriis’ (16.5.65.2,41-2,52-3,56); 'privilegia ... sunt praestita’ (CJust 1.3.22.5).

size=2 color=black face="Century Schoolbook">The quaestor responsible for these was the junior Antiochus, the second senior member of the first Code commission.^[197] He is referred to in the first directive as ‘Antiochum virum illustrem quaestorem sacri palatii’ (1.1.5.24). He may have held the quaestorship for four full years 427-30 or, on Mommsen’s view of the normal date of appointment, from 5 December 426 to 5 December 430. During his tenure first Hierius,^[198] then Florentius^[199] were prefects of the Orient. On the last day of 430 Antiochus had himself already become prefect in succession (11.20.6). He continued as such into March 431 (9.45.4), and corresponded as prefect with Nestorius in September of that year,^[200] when he was also consul. The law of 31 December 430 addressed to him as prefect (11.20.6) effects an important reform of the land tax, with the aim of substituting objective criteria of liability to tax for haphazard privileges.^[201] When this reform was later amended in 444 (NTh 26.13) Antiochus was treated as its author. Although couched in a more bureaucratic style than his, phrases in it echo his favourite separated constructions: 'a principio imperii divae recordationis Arcadii’, 'pro aestimatis per singulos annos habitis’, 'pro rata partis dimidiae portione’, 'ex quarta decima feliciter futura indictione’ (11.20.6.3,7-8,16,23-4). This is a good example of a law on a technical subject in which the text follows a draft submitted by the praetorian prefect, perhaps with little amendment.

Clearly a powerful figure, Antiochus’ year as prefect and consul, 431, was that of the Council of Ephesus. He corresponded in September with Nestorius about the bishop’s return to his monastery after his defeat at the Council,^[202] treating him gently, and also, perhaps later, with Theo- doret,^[203] who praises his choice of provincial governors. He seems also to have sent documents to Pope Celestinus.^{[204] [205]} But his praetorian prefec­ture was short,⁷⁹ whether for reasons connected with the turbulent Council and its theology is uncertain: it would not be surprising if a scholar from Antioch had some sympathy with Antiochene theology. By 28 March 432 Hierius had again become prefect of the Orient.^[206] If Rufinus came between them^[207] he had a very short prefecture.

In any event Antiochus remained an active member of the Code commission, since when Theodosius reorganised it and told the revised commission to begin editing the texts in December 435 he made Antiochus its senior member: 'Antiochus amplissimus atque glorio- sissim(us) praefectorius ac consularis’ (1.1.6.10-11). As such he presided over the completion of the Code and in the confirming law of 15 February 438 Theodosius thanked him for the consistently high quality of his work: 'Antiochus cuncta sublimis’ (NTh 1.7.38-9). He is the first of three commissioners to be singled out for special praise, the others being Maximinus (no. 8) and Martyrius (no. 9), whose quaestorships are discussed below.

John Malalas (346), who mixes up the reigns of Theodosius I and II, says that Antiochus was a native of Antioch, gives his nickname ‘Chuzon’, a name which stuck in the family, since his grandson^[208] also had it, and calls him 'the great’. He may have rebuilt the city walls of Antioch.^[209] Before the end of November 444 he was dead.^[210]

He stood to the Theodosian Code much as Tribonian did to Justinian’s larger-scale compilation: as the main organiser of the enterprise and its dominant legal expert. Each of these entrepreneurs had great talent, but neither was the senior member of the first commission set up by their respective emperors. In both cases a senior non-lawyer was chosen for that role. Organising ability and intellectual power gave Antiochus and Tribonian their chance; they differed in that unlike Tribonian Antiochus was probably a Christian.^[211]

How could derogation from general laws be prevented? How could conflicts between East and West be avoided? By February 428 at latest, it seems to me, Constantinople had resolved that a Code was needed. This would (i) not merely say what amounted to a general law but set out the text of all such laws since Constantine, eastern and western, in a single volume, (ii) abrogate laws not included in the volume, (iii) allow conflicts between the laws included to be settled on the basis that the later prevails over the earlier, and (iv) provide some machinery to avoid future conflicts between East and West. The prospect of a Code made it urgent to undertake such further law reform as was necessary before the Code was enacted. This explains the legislation of 20 February 428.^[214] Though on a small scale, this legislation parallels Tribonian’s Fifty Decisions.

It is impossible to know to what extent the Code project as a whole rested on Antiochus’ initiative, but the detail of the scheme does seem to bear his imprint. A small point to end this assessment of a major figure in the history of the time. Sallustius, composing a bold text about decurions etc. who improperly join the imperial service, writes that all previous laws are repealed and first (‘primum’), decurions are not to join but second (‘dein’), if they do and the local council takes no steps for ten years, they are not to be hauled back (8.4.28.3,6). Antiochus goes one better. In the Nestorius-inspired law of May 428 against heretics he has three steps: first, (‘ante omnia’), churches are to

3.                Some Quaestors of the Reign of Theodosius II 89 be returned to the orthodox; secondly (‘dem’), there are to be fines for creating heretical priests and officials; thirdly ('post haec’), different classes of heretic are distinguished and different disabilities imposed nn each (16.5.65.2,5,8-9). This structure recurs in the first directive on the Code. First Cet primum’), laws and parts of laws are to be arranged under title headings; second (‘dem’), within titles the texts are to be arranged in order of date so that inconsistencies can be settled on the basis that later laws prevail; third, (‘post haec’), unessential parts of laws are to be omitted. The type of mind that sets out what is to be done in a series of steps - something unprecedented so far as the record goes - is exactly what was needed for an enterprise like the Code.

no. 7. CTh 14.16.3 (27 November 434 MS 26 November) to CTh 16.10.25 (14 November 435): Eubulus.^[215]

Little legislation survives from 431 to 433. In 434 after a gap of five months from 18 June (5.12.3, 11.28.15) we have a group of seven laws which run from November 434 to the same month in the following year.^[216] There follows a gap of three months to March 436, when a different style emerges (see no. 8). There are signs that the drafter of these seven texts was a lawyer: 'mutui nomine dare’ (14.16.3.6-7), ‘condere testamentuni, 'agnationis cognationisve hire’, 'censibus adscript! vel iuri patronatus subiecti’ (5.3.1.5,6,10), ‘hire iurando obstricti’ {CTh 10.8.5.4), ‘caduca/vacantia vel caduca’, ‘hire possidere vel vindicare’ (10.8.5.1,8,11). One text shows a typically legal concern with the relation of present to past laws (5.3.1.13-14; 7.8.16.8). He was probably not a Christian.^[217]

Bureaucratic (5.3.1.2-5) yet at times vehement (14.16.3.8,11; 16.10.25.2), his laws, like those of Sallustius, favour inversions of'esse’: "sit perpetuo dedicata’; 'sit solvendum’ (14.16.3.2,7); 'fuerat destinatus’; ‘fuerat adscriptus’ (5.3.1.8,13); 'fuerint ante perfuncti’; ‘fuerint versati’ (6.28.8.3,10); 'fuerint delatae’ (7.8.16.4); 'sunt imitati’; 'esse sortiti’ (16.5.66.5-6); 'fuerit admissum’ (10.8.5.18); 'esse multandum’ (16.10.25.7).

The author of these texts is almost certainly Eubulus, a member of the second Code commission, who was quaestor at the time of the second directive of 20 December 435: 'inlustris ac magnificus comes et quaestor noster’ (1.1.6.11-12). The directive was issued five weeks after the last text in the present group, but though Eubulus is the main draftsman (‘sit divisa capita, fuerit abstractus negotio, fuerit visum’:

1.1.6.5,17-18), the law, as one would expect, also bears traces of Antiochus Chuzon, now called on to preside over the editorial process.^[218] The first directive had listed among members of the Code commission a Eubulus vir spectabilis ex magistro scrinii, no doubt the same person. He held the quaestorship, I suggest, to the end of 435 and went on to the prefecture of Illyricum in 436 (8.4.30 = 12.1.188, 187). So he did not see the Code commission’s labours through to the end and was not thanked in the confirming law of 15 February 438. His is a standard lawyer/head of department/quaestor/prefect’s career. During his tenure of the quaestorship the prefect of the Orient was first Taurus (to 15 December 434), then from 29 January 435 Isidorus.

no. 8. CTh 10.20.18 (8 March 436) to CTh 11.5.4 (28 August 436): Maximinus.^[219]

After a gap from November 435 (see no. 7) a further group of thirteen^[220] laws between March 436 and 28 August 436 fall at a time when Isidorus, consul in 436, was still prefect.^[221] There follows a further gap of seven months before an isolated law of 16 March 437 (6.23.4). These thirteen laws are the most elegant of the period: 'Alexandrinis principalibus, etsi advocatione fungantur, nihilo minus pergrinatio ne incumbat’ (12.1.189.1-2). Their deft constructions and subtle play of sound can best be appreciated by reading aloud. Nothing shows their composer to have been a lawyer or a Christian. Insistence on fixed periods of prescription is relaxed (8.4.30), but retrospection avoided (8.4.30; 12.1.188; 11.1.37.1-2).

This quaestor is fond of the construction by which an adjective or participle precedes the relevant noun, typically with only one word intervening - a lighter version of the figure favoured by Antiochus Chuzon.^[222] Examples are: ‘trecentas paene libras’, ‘innumeris sint constitutionibus prohibitae’, ‘recenti quoque interminatione’, ‘quaesitis multo sudore stipendiis’ (10.20.18.1,5-6,12-13) ‘ullam posthac adspi- raverit dignitatem’, ‘omnibus impetrati honoris insignibus’, ‘in tali eius condicione’, ‘urbano profitetur iudicio’, ‘latarum pridem constitutionum’

3, Some Quaestors of the Reign of Theodosius II 91 (8.4.30.3-5,9-10) ‘parto semel honore’, 'senatoriam suscepti dignitatem’, ‘laborioso administrationis actu’, ‘suarum periculo facultatum’ (12.1.187.2,5-7,9); ‘ullam affectare militiam’, ‘talem ipsius statum’ (12.1.188.4-6,8); ‘diurnos centum et decem modios’ (14.26.2.1-2), ‘civili­bus inhaesit muneribus’ (12.1.191.2); ‘ad omnium perveniat notionem’ (11.5.3.7); ‘pecunariis coherceri dispendiis’ (12.1.190.3-4); ‘in sua tantum civitate’, ‘ad summum pervenerit gradum’, ‘senatoriis minime functionibus’ (12.1.189.3-7); ‘ad publicas nominaverint functiones’, ‘non expectandum esse consensum’ (12.1.192.4); ‘contra generalem huius- modi sanctionem’ (11.1.37.2-4); ‘particulari delegationum notitia’, ‘sin­gulis transmissa provinciis’ (11.5.4.1-2).

One figure he practises to good effect is the chiasmus: (of privileges in Alexandria) ‘ut hoc bene cogniti privilegium consequantur nec eo passim fruantur indigni’ (12.1.191.3-4). We also find a sort of alliterative chiasmus: ‘cohortalis apparitor aut obnoxius cohorti’ (8.4.30.2-3); ‘a corporalibus iniuriis immunes esse censemus’ (12.1.190.2); ‘Cyro rever­entissimo Afrodisiensium civitatis episcopo’ (11.1.37.3); ‘devotioni soli­tae, non subitis calumniis’ (11.5.4.3).

This quaestor is probably the first Maximinus mentioned in the directive of 20 December 435, ‘vir illustris insignibus quaestoriae dignitatis ornatus’ (1.1.6.12). This phrase could be taken to mean that in December 435 when Eubulus was still quaestor Maximinus had been already designated as his successor from 1 January 436. The alternative is to identify our quaestor with the second Maximinus junior to the first, the senior of four ‘spectabiles comites et magistri sacrorum scriniorum’ (1.1.6.14-15), hence presumably head of the department of records, magister memoriae, at the time. In the confirming law of 15 February 438 only one Maximinus is mentioned. An ex-quaestor and literary eminence, ‘vir inlustris ex quaestore nostri palatii eminens omni genere litterarum’, his work for the commission is singled out for praise (NTh 1.39-40). Though doubt has been expressed,^{Schoolbook">[223]} the text of the directive of 435 in which mention of the first Maximinus follows immediately on that of Eubulus points to the first as the quaestor of 436. Moreover the laws of 436 fit a man of literary talent. This quaestor could, unlike Eubulus whose duties in 436 took him to Illyricum (8.4.30 = 12.1.188), have continued to work on the Code commission to the end.

no. 9.NTh 3 (31 January 438) toNTh 18 (6 December 439): Martyrius^[224]

After the isolated CTh 6.23.4 of 16 March 437 follows a hiatus of ten months before a group of twenty-nine laws between January 438 and

December 439.^[225] Given the firm command of classical terms which they display their author was steeped in the law: 'sine liberis vel legitimo herede decesserit non condito testamento’ (NTh 6.15); 'conductor/ locatori... locator/conductori’; ‘non solum inutilia sed pro infectis habeantur’; 'nec stipulationem nec mandatum ullius esse momenti’; 'fideiussorem/locatori’ (NTh 9.20-1,28-9,37-9); 'civitas Romana’ (CJust 2.15.1.6); 'pupillis vel minoribus’; 'sive ab intestato sive iure substitutio­nis’; 'legitima liberorum tutela’; 'bona iure pignoris obnoxia’ (NTh 11.4-5,12-13,15-16,23-4); 'consensu matrimonia contrahere’; 'mittere repudium’ (NTh 12.2); 'matrimonio dissoluto’; 'donatio ante nuptias’; 'pro marito donationem ante nuptias vel pro muliere dotem offerre’; '(res) extantes/consumptas’; 'iure hereditatis/iure peculii’ (NTh 14.4­5,20-1,31-2,66-70); 'testibus septem numero civibus Romanis puberi­bus’; 'uno eademque die nullo actu interveniente’; 'per nuncupationem’; 'extranei scripti’; 'legata ac directae hereditates tutores etiam’ (NTh 16.23-4,42-3,52,77-8,81-2); 'servi quasi nec personam habentes’ (NTh 17.1.17); 'sive per se sive per interpositam in fraudem legis personam aut donationis venditionisve titulo’ (CJust 9.27.6.6-7). He is interested in interpretation ('verba/voluntas’: NTh 9.2-7,22-32), and drafts several reforming laws,^[226] often reviving classical rules. For example it is harsh to impose greater restraints on divorce than did classical law: 'in repudio mittendo culpaque divortii perquirenda durum est veterum legum moderamen excedere’ (NTh 12.5). Indeed proportionality and a sense of limits are the hallmarks of good law: 'maxime moderamen desideratur in legibus’ (NTh 11.2). Rule of law values, in particular favour for general rules and hostility to derogations from them by rescript or adnotation,^[227] prevail (NTh 6.25-6,8.11-12, 5.2.14). The first three instances of 'regula legis/legum’ in the legal sources are found in this tenure (NTh 8.12, 10.1.36, 16.3 cf 9.36). As Martyrius speaks of 'vera religio’ and 'fides noster’ he may well, despite his legal classicism, have been a Christian.^[228]

His compositions flow freely, and his accomplished rhetoric rises at times to splendour, notably in the law on Jews, Samaritans, heretics

3. Some Quaestors of the Reign of Theodosius II 93 and pagans of 31 January 438 (NTh 3) and the confirming law of 15 February 438 (NTh 1). A prominent feature of his style is an asyndeton in which the first word of a phrase is quickly repeated: 'tanti secreti, tantae fabricae... auctorem’; 'neminem ludaeum, neminem Sama- ntam’; ‘non promulgatarum legum... non denuntiati exilii’; ‘quamquam... quamquam’; 'in fortunas eius, in sanguinem’ (NTh 3.10,17,66-7,70-1,73-4); 'si copia immensa... si actionum diversitas... si denique moles’; 'quo pondere... qua actione... quibus verbis’; 'magis imperatorium magisque credidimus gloriosum’; 'in omnium populorum, in omnium provinciarum’ (NTh 1.6,13-14,27-8,46-7); 'neminem ducianum, neminem limitaneum’; 'scilicet opperiri, scilicet optare’ (NTh 4.11,30); 'fundis... sitis per Asianum diocesim, sitis per Ponticam’; 'nequaquam ulterius... nequaquam utriusque obsequiis’; ‘securus vomerem, securus falcem’; 'etiamsi domum, etiamsi domi­cilium’ (NTh 5.1.6,9-10,15-16,21); 'hoc enim armat, hoc nostrum ornat exercitum’; 'ab eorum facultatibus, ab eorum patrimoniis’; ‘non sacra adnotatio, non divina pragmatica’ (NTh 6.3-4,22-3,25-6 cf NTh 5.2.14); ‘omnes conductores, omnes qui per provincias otiantur’ (NTh 7.1.30-1); ‘nulla divinae domus patrocinio, nullo sacrosanctarum ecclesiasum reverentia, nullo qualibet vel cuiuslibet se potentia excusante’ (CJust 11.18.1.15-16); 'contra ius contrave utilitatem publicam’ (NTh 8.14); ‘nullum enim pactum, nullam conventionem, nullum contractum’ (NTh 9.22-3); 'nulla eis inspectio, nulla ingeratur peraequatio, nulla instructio, nulla discussio, nullum ratiocinium imponatur, nihil denique aliud eis mandetur’ (NTh 10.1.27-32); 'licet non dominus, licet iniustus possessor’; 'contra fas contraque leges’ (CJust 2.15.2.3-4,9); ‘nunc maritum, nunc mulierem’ (NTh 12.6); 'nullam iniunctionem, nullam sollicitudinem’; 'omni necessitate omnique fatigatione’ (CJust 12.23.14.7-9); 'quid in publicis thermis, quid in nymphaeis... quid his personis’ (CJust 11.43.5.7-9). Seven of eleven instances of 'quam ob rem/quamobrem’ in the Code and Novels come from this tenure (NTh 3.14; 1.18; 4.10,32; 5.1.18; 10.1.25; 15.1.6).

These laws fall in large part at the time when Florentius^[229] was prefect of the Orient for the second time, from 31 January 438 (NTh 3) to 26 November 439 (CJust 9.27.6), but by the time of the last law (NTh 18) Cyrus^[230] had succeeded him.

The quaestor responsible for these twenty-nine laws is Martyrius, who appears in the directive of 20 December 435 as the second of seven spectabiles comites consistoriani’ (CTh 1.1.6.13), and in the confirming law of 15 February 438 as ‘vir illustris comes et quaestor’ (NTh 1.40-1). He is there thanked as the emperor’s faithful interpreter, 'nostrae clementiae fidus interpres’, the third member of the commission, after

Antiochus and Maximinus, to receive a special commendation.

The confirming law of 15 February 438 falls in the quaestorship of Martyrius, and we need not doubt that the draft is basically his, as is shown by touches like 'nulli retro principum aeternitas sua detracta est, nullius latoris occidit nomen’^[231] and the use of 'quam ob rem’ (NTh 1.18). Other parts of the text however ('tanto lucubrationum tristi pallore’, 'compendiosam divalium constitutionum scientiam’, 'Theo­dosiano non referuntur in codice’: NTh 1.4,19-20,35-6) point to the hand of Antiochus Chuzon.

The quaestorship of Martyrius ran to the end of 439. He was succeeded in 440 by Epigenes, who was responsible for between ten and twelve laws in 440,^[232] but of whom space does not permit a detailed account.

The seven quaestors discussed include five eastern lawyer-quaestors (Eustathius, Sallustius, Antiochus Chuzon, Eubulus and Martyrius) three of whom became prefects, and five quaestors who write as if Christians (Eustathius, Sallustius, both Antiochi and Martyrius). They mark the emergence in high office certainly of lawyers and perhaps of Christian lawyers who, without being fanatics (for the Code avoids doctrinal controversy by including general laws whatever their doctrinal tendency), found it not merely expedient but natural to combine pagan learning with the new faith. Even if many or most lawyers were still pagan, the gradual fusion of these traditions is an important element in the movement for legal unity, reform and codification which issued in the Theodosian Code. For a parallel, note the very different way in which Antioch received the Homeric allusions of the empress Eudocia^[233] in the spring of 438 from its reception of Julian in 362-3.^[234] It is perhaps not irrelevant to the background of the Code that Antiochus Chuzon certainly and Eudocia possibly had connections with Antioch.^[235]