The Background to the Code
Jill Harries
In AD 369, an anonymous petitioner to the emperors Valentinian I and Valens concluded a list of suggestions on financial, administrative and military policy with a proposition that the emperors codify the law: ‘there remains one remedy needed from Your Serenity to cure the evils of the Roman state, that by the judgment of your imperial will you should reject the legal confusions caused by wicked men and cast light on the confused and contradictory pronouncements of the laws’ (De Rebus Bellicis 21.1).
The possibility that the petition may have been received and stored as part of a bureaucratic file in the imperial archives suggests that, even in the rigid and formalised structure of the Later Empire, the tradition of individual subjects’ direct access to the emperor was not yet dead. However, it must be admitted that the Anonymous had no discernible influence on imperial policy. Although a precedent for a codification of imperial laws already existed in the Diocletianic compilations of Gregorian and Hermogenian in the 290s, no progress would be made with the idea for a further sixty years after the Anonymous’ petition until, in March 429, Theodosius II, the Roman emperor in the East, set up the first Code commission (CTh 1.1.5). Eight years later, in 437, the work of compilation and arrangement had been completed and the wedding of Theodosius’ cousin Valentinian III with his daughter Eudoxia was made the occasion of a formal presentation of the Code to the praetorian prefects of Italy and the East. On 15 February 438, Theodosius issued his first ‘new law’, novella, validating the Code in the East, while, in the West, the praetorian prefect who had received the Code from Theodosius presented it to the Roman Senate on 25 December of that year.1The initiative was arguably long overdue.
In a society governed by an autocratic emperor accountable to no one, the outcome of all legal1 Proceedings described in the Gesta Senatus, printed at the start of Mommsen’s edition of the Theodosian Code, 1-4 and translated by C. Pharr, The Theodosian Code (1952), 3-7. disputes and the character of much of the running of the Empire itself depended on an accurate knowledge of the emperor’s will. Litigation was resolved in favour of the party which could produce the most recent imperial opinion, often in the form of a rescript which was relevant to their case. The incentive for forgery was always present; even if a rescript were genuine, its authenticity could be questioned and a case thus prolonged.[2] ludices also suffered from the uncertainty and insecurity engendered by the absence of an independent judiciary. A judge was liable to be appealed against to the emperor, with embarrassing consequences to himself, if he was wrong.[3] In cases of doubt, therefore, the iudex might opt to consult the emperor before passing judgment, through a consultatio. Constantine impatiently objected to this, observing that iudices should only consult him on a few matters, which could not be resolved by judicial sentence, as he was a busy man who did not like being interrupted - and there was always the option of appeal (CTh 9.30.1). A similar attitude was adopted by Valens (AD 365-378), apparently at the prompting of the praetorian prefect, Modestus; Valens avoided the hearing of legal cases ‘believing that the investigation of swarms of legal disputes was designed to humble the loftiness of imperial power’ (Amm. Marc. 30.4.2),[4] a case of negligence which, according to Ammianus, vastly increased the incidence of corruption and collusion in the system. The problem, however, was not of Valens’ creation, but derived from the fear of the emperor’s underlings over the consequences of being wrong.
The emperor, if he handled everything himself, was bound to be overworked. Although a reduction in the number of appeals was not made an explicit aim of the Theodosian Code project, it may well have been a motive; only two years after its promulgation, Theodosius II delegated his hearing of appeals from spectabiles iudices to a two-man court, consisting of the praetorian prefect of the East and the imperial quaestor (CJust 7.62.32).The establishment of the dynasty of Theodosius I in the eastern capital at Constantinople from 395 created conditions for a stable and settled administration capable, at last, of taking a considered look at the question of imperial law in the Empire. A long-standing tendency to accept rescripts, which were issued in response to specific queries, as in practice having universal application, which had been enshrined in the Diocletianic Codes of the late third century, was overturned by Arcadius, father of Theodosius II, in 398; thereafter, rescripts issued in reply to consultationes should apply only to the lawsuits for which they were issued (CTh 1.2.11).[5] This constitution would have had the beneficial result of cutting back on the proliferation of material, genuine or otherwise, which could be cited in trials, but did not remove the basic problem of ignorance of the state of the law itself. It also set a precedent for the Theodosian Code, which, unlike its Diocletianic predecessor, avoided the inclusion of rescripts, resorting instead to the edicta and epistulae, which could be categorised as ‘general laws’.
The Code project also grew out of the character of the young Theodosius’ administration in the 420s. Although much is made of Theodosius’ apparent lack of personal drive, and his tendency to be dominated by the female members of his family,[6] his reign witnessed a cultural renaissance in Constantinople for which he must take some of the credit.
Not only was he the dedicatee of two great historians, the pagan Olympiodorus in 425 and the Christian Sozomen in the 440s,[7] but his court was a magnet for cultured men, including those learned in the law. The same cultural interest motivated Theodosius’ reorganisation of teaching in Constantinople in 425, restricting the numbers of professors in named subjects who were allowed to practise officially and allowing improved facilities to recognised teachers (14.9.3 & 15.1.53). Similar priorities emerge in the Code. The first commission, set up in 429, was instructed to preserve constitutions which had fallen into disuse and been superseded by others ‘valid for their own time only’ (‘pro sui tantum temporis negotiis valituri’), because of the interest of learned, antiquarian diligentiores. In his novella validating the Code in the East in 438, Theodosius returned to the theme, observing that, despite the incentives available to encourage the arts and scholarly pursuits, few people existed with a full knowledge of the ius civile, and ascribing this dearth to the excessive numbers of books, cases and imperial constitutions.[8] Such scholars’ problems were now behind them, thanks to the ‘light of brevity’ shed on previous obscurities by the Theodosian Code.[9] The emphasis on scholarship was not incompatible with Theodosius’ other stated aim, that the Code was to be valid for all law-suits and legal transactions (‘codicis in omnibus negotiis iudiciisque valituri’, CTh 1.1.6, of 20 December 435), as jurisconsults were expected to put their learning at the service of advocates and iudices involved in the conduct of trials, whose own knowledge might be insufficient. Nevertheless jurisprudence was an acknowledged separate discipline: two official law-teachers were set up in Theodosius’ reorganisation of teaching in the capital and both Code commissions, in 429 and 435, contained a legal expert, the scholasticus Apelles in the first and, in the second, Erotius, a iuris doctor.The interest of the Theodosian government in law went far beyond its academic aspect.
In November 426, an oratio was sent to the Roman senate, emanating, nominally, from the four-year-old Valentinian III; in fact, it is more likely to be of eastern inspiration. Valentinian had been restored to the throne of the West in the previous year by his cousin, Theodosius II, many of whose following would still have been present at Ravenna at the time. No doubt the men from the East noted the contrast between the disarray and disorder in the West and the new imperial system emerging in Constantinople. Their urge to impose order, already shown in the new rules for teaching in Constantinople, found expression in the oratio of November 426. Although preserved only in the extracts included in the Theodosian and Justinianic Codes, it was of considerable length. As far as we know, it covered two apparently unrelated topics: the administration of justice and the definition and categories of imperial law;[10] and the law of succession. Not only is the former topic a mini-code in itself and of direct relevance to the Theodosian Code three years later, but the procedure of addressing it to the senate is also paralleled in the setting up of the commissions for both the Theodosian and the first Justinianic Codes, as well as in the formal publication of the former in the West in December 438.In its sections on the administration of the law, the oratio discussed the citation of jurists in court, the so-called ‘Law of Citations’, which gave pre-eminent authority to Papinian, Paulus, Gaius, Ulpian and Modestinus and included various provisions about the authentication of other jurists cited by the five[11] and guidance to iudices about how to proceed, if the jurists did not agree with each other. The purpose of the law was administrative, to ensure that iudices knew which authorities could be cited in their courts and which could not. Such guidance was ^ery necessary, given that iudices had no authority to interpret, still less to make, laws for themselves.
The law should have ensured that a iudex, provided he acted within the rules, could not be taken to task by litigants, or a superior. Of course, the ruling that a decision should be reached by majority vote of the Big Five, rather than by considering who was right, is hardly a model of legal principle, but the aim of the law was not to establish principle but simplify the operation of the courts and, it may be inferred, reduce the volume of appeals.The oratio also offered clarification on how leges generales issued by the emperor were to be observed and identified (CJust 1.14.3). What concerned the drafters of the oratio was the form and appearance of the constitution in question, not its content. A lex generalis was either (1) sent to the senate as an oratio or (2) qualified by the inclusion of the word edictum. These two principal forms of general law were not affected by the occasion to which the lex was a response, be it imperial initiative, petition, referral or legal dispute. Both oratio and edictum would have originated at the highest level, in the imperial consistory, where the form of the law, as well as its content, would have been decided by the emperor and his counsellors.12 All this was also consistent with the criteria used by the Theodosian Code compilers in their selection of appropriate constitutions, as both addresses to the senate and edicta (or leges edictales’) to a general audience, the People, or the Provincials, are contained therein.
Thus far, however, the authors of the oratio had not covered one of the most extensively used forms of legal source to be present in the Code, imperial epistulae addressed to various recipients informing them of the new regulation.13 This is covered in what follows. Having repeated himself on the edictum label, the author of the oratio added further qualifications, namely that a lex was generalis also if it was published throughout the Empire, or if it was explicitly stated that decisions made in one case should apply in the resolution of all similar cases. This allows for epistulae, the means by which laws were communicated to the officials charged with the responsibility of their publication. There was still one snag. Not all the definitions offered would apply to every lex generalis issued. Thus it was possible to issue a lex generalis, which did satisfy some of the criteria but which had limited territorial application. Such a law was not published ‘per
*2 Procedure discussed by Tony Honord, ‘The Making of the Theodosian Code’, ZSS KA (1986), 136-7 and by Jill Harries, ‘The Roman Imperial Quaestor from Constantine to Theodosius II’, JRS 78 (1988), 165-6.
On epistulae and their composition by the magister memoriae and in the scrinia, see Harries, art. cit. in n. 12,150 and 159-64. omnes populos’, throughout the Empire, but designated as valid only in particular provinces or areas, as in, for example, the obvious cases of Rome and Constantinople, where special conditions applied. Laws therefore could be ‘general’ without being universal.14
Leges generales could also be clearly differentiated from rescripta. The oratio of November 426 (CJust 1.14.2) stated that rescripta were prompted by the relationes qy the suggestiones, referrals or reports, of iudices (as general laws might also be) but that they were to apply only to the bodies to which they were addressed.15 This was in accordance with Arcadius’ ruling in 398, and followed him in seeking to tighten up the categorisation of laws and thus to sharpen the definition of leges generales, by indicating what rescripta were - and were not. Rescripts were not orationes qy edicta and, crucially, could not be sent to provincial governors in the form of epistulae to be brought to the attention of all whom he governed by widespread publication. It also followed that rescripts, provided they were recognised as such, would not be included in the Theodosian Code.
The Code, then, was a natural product of its environment and of a government consistently preoccupied with seeking to systematise and to simplify the process of government, with admittedly only partial success, streamlining the teaching of the arts at Constantinople, the citation of jurists in courts and the categorisation of imperial constitutions. The compilers, part of whose task was to arrange constitutions under headings in chronological order, were concerned about the evolution of law from Constantine onwards on specific issues, but they were not worried about the possibility that they might themselves impose anachronistic concepts on their material, some of which went back more than a century. The very idea of ‘general law’ although it existed in practice, had not achieved the refinement of definition accorded to it in 426 for much of the fourth century; despite the theory that rescripts were specific and other forms of imperial constitution were general, the distinction was blurred in practice, until reinstated by Arcadius.
The people who were involved with the construction of the Code itself are discussed by Tony Honoré elsewhere in this volume and the
14 See remarks of B. Sirks, ‘From the Theodosian to the Justinian Code’, Atti dellAccademia Romanistica Costantiniana (1986), 273-5. He notes also double enactments with separate territorial application, e.g. CTh 6.23.2 (Ravenna, 9 March 423) applying to the West, and 6.23.4 (Constantinople, March 17, 437), confirming the law in the East; in CTh 10.19.7, Valentinian I confirms for Illyricum and Macedonia a law passed by Valens and applicable to the East; cf. also CTh 13.5.23 (East, 393) and 24 (West, 395), but note the complication caused by the usurpation of Eugenius in the West from 392 to autumn 394 and the possibility that CTh 13.5.24 is part of an edict to the provincials of Africa containing assurances that the policy of the new western emperor, Honorius, was a continuation of that of Theodosius.
15 ‘nec generalia iura sint, sed leges fiant dumtaxat negotiis quibus fuerint promulgata.’ difficult problems of the making, purpose and sources of the Code are considered in full, from different standpoints, by John Matthews and Boudewijn Sirks. What follows considers the texts as the products of a distinctive and complex administrative system, which requires some analysis in order to appreciate some of the true significance of the Code as an historical source.
The purpose of constitutions was two-fold, to regulate and to communicate. Students of legal history are naturally more concerned about the former, and the nature of the content of the regulations contained in the Code. However, the aim to communicate not only the will but also the character of the emperor to his subjects was an essential part of the methods by which an area extending from Hadrian’s Wall to the Euphrates was kept together by concentrating attention and (it was hoped) loyalty on the central power, as personified by the emperor. The language of the constitutions was therefore expected to be, at the very least, correct and to conform to the literary criteria employed by the rhetors of Late Antiquity; thus the language of law was influenced by considerations which were not strictly legal but which derived from the nature of imperial rule.16
It is uncertain who composed the wording of what were technically always the emperor’s pronouncements in the early part of the fourth century. However, the role of the imperial quaestor,17 a distant descendant of the senatorial quaestor candidatus, who acted as the emperor’s spokesman in the Senate, evolved in the reign of Constantins II (337-361) and Valentinian I (364-375) into that of the emperor’s legal adviser who drafted or ‘dictated’ his laws, a function which was entirely his own by the time of the Notitia Dignitatum in the early fifth century. Analysis of known holders of the post in the fourth century suggests a considerable disparity of legal expertise as the two facets of the quaestor’s persona, as imperial spokesman or legal expert, struggled for prominence: the former is well represented by Ausonius (quaestor 375-6/7), the eloquent poet from Bordeaux, whose legal knowledge seems to have been minimal,18 the latter by Valentinian I’s quaestor, Eupraxius (367-70), who had the courage to correct the irate emperor on the law of treason (Amm. Marc. 28.1.25). By the fifth century, there are signs of some divergence in this, as in so much else, between East and West. In the West, the emphasis on eloquence as the prime qualification for the emperor’s spokesman was retained, to culminate in the early sixth century with Cassiodorus’
Discussed by W.E. Voss, Recht und Rhetorik in den Kaisergesetzen der Spätantike. nlne Untersuchung zum nachklassichen Kauf- und Übereignungsrecht (Forsch, zur ay^Mschen Rechtsgeschichte 9,1982).
18 Harries, art. cit. in n. 12 passim.
Ausonius is taken apart by Tony Honoré, ‘Ausonius and Vulgar Law’, lura 35 (1984, Publ. 1987), 75-85. highly literate rendering of the wishes of the Ostrogothic king in Italy. In the better-documented East, the picture, as Tony Honore’s study below reveals, is more varied, but the primacy of the legal role of the quaestor was well-established and a group of them, drawn from the increasingly professional bureaucracy of the Eastern court, were instrumental in the creation of the Code.
The effect of the quaestor on the content of law was probably limited by the convention that officials made proposals about their own sphere of administration and did not trespass on those of others. This meant that court officials would put up proposals on matters to do with the running of the court bureaucracy, but the main source of suggestiones on the running of the Empire in general would be the praetorian prefects, the authorities to which all provincial governors and vicarii ultimately looked. This is what one would expect from the hierarchical principles on which operated the system of filtering upwards proposals that originated lower down. This consideration tends to diminish the role of the quaestor, whose legal expertise would qualify him as the maker as well as the drafter of laws. The quaestor had no officium or office-staff belonging to him,[12] nor was he associated with provincial government (although many quaestors went on to hold praetorian prefectures). Apart from the laterculum minus, the lesser register of offices {CTh 1.8.1-3), the quaestor had nothing to originate laws about, before he acquired appellate jurisdiction under Theodosius II in 440. This isolation also ensured neutrality: the quaestor had no departmental axe to grind.
Communication between the government and the governed was a two-way process, of which the contents of the Code reflect only the latter part, the pronouncements of the emperor to his subjects. But although emperors allowed for the operation of their own initiative (‘spontaneous motus’ CJust 1.14.3) in formulating constitutions, laws were not in fact made by emperor and consistory in splendid isolation from the world outside. The relationship between emperor at the centre and provincial officials was symbiotic. A suggestio, proposal, from the official backed by a report was the most common means of supplying information from below and prompting an imperial decision. ‘When ambiguity emerges about a new law’, states a constitution of 474 {CJust 1.14.11), ‘which is not established by long usage, there is need both for a suggestio and for the the authority of the emperor’s decision.’[13]
The arrival of a suggestio at court signalled the first stage in the production of a constitution. The document would be discussed by the top palatine ministers and members of the consistory and, after 446, by the senate, and a constitution would then be drafted, usually by the ouaestor. In the course of discussion and drafting, the nature of a proposal could have changed considerably. Many proposals must have been non-controversial and the sheer volume of work would ensure them an easy passage. In other cases, unless members of the consistory had a particular interest at stake (as was not infrequently the case), proposals from high provincial officials had the advantage of coming from men in a position to know what they were talking about. When Monaxius, the Constantinople City Prefect in 408 drafted regulations for oil distribution, they were simply confirmed by the emperor (14.17.15). Later in 427 the prefect of Illyricum, Antiochus, made a more far-reaching proposal that deputies standing in for governors of provinces should have the right to appoint guardians, and to exercise all other judicial powers held by full governors. Theodosius II and Valentinian III agreed to all this ‘in accordance with the schedule of your Eminence’, and the official instructions {mandata) were sent to Antiochus by special messenger {CJust 1.50.2). Antiochus had formerly been quaestor and was two years later to be on the Theodosian Code’s first commission. His combination of drafting and provincial experience and interest in legal matters reflected in the constitution made him an ideal proposer of new regulations. It has to be admitted that both Antiochus and Monaxius served emperors whose delegation of power to the ministers was extensive, perhaps exceptionally so. However their employment is still a valid illustration of the respect paid to men who in areas without political connotations might be expected to know their business best.
Lesser provincial governors were not expected to contact the emperor directly but to send their proposals to the vicarii, who in turn would forward them to receive the approval of the praetorian prefect, whose sanction probably gave proposals of lesser people a better chance in the consistory (CTh 1.15.3). This filtering of proposals through the administrative hierarchy may not always have been observed. Particularly for the fourth century, there are indications that emperors were responding to proposals from consulares and others directly, although that of course says nothing about the route taken by the suggestio to the emperor’s attention in the first place. Constantius II, to take one instance, sent a letter in 349 to Antonius, the dux, military governor, of Mesopotamia on preventing unqualified civil servants from entering the armed forces illegally; the suggestio, Perhaps here no more than a report, had come from the vicarius (CTh 8-44). But emperors were concerned to spread their nets wide in the constant battle for reliable information and therefore tried to ensure access to the accepted channels of communication from the provinces lor all who might have proposals to put.
Proposals were also put from within the palace by heads of department reorganising their staffs or seeking benefits for them and the same procedure seems to have been used. Palatine ministers were of course well placed to ensure imperial decisions in their favour — unless they were in conflict with someone else within the inner circle. Such proposals included one by the comes sacrarum largitionum Trifolius in 385 to Theodosius I about retirements of officials (6.30.8); a proposal about abolishing the unrestricted right of palatine officials to choose the place of trial in a lawsuit (although there were difficulties with this) in 439 (NTh 7.1 but see NTh 7.2 and 4); and a grant in 441 of privileges to the scholae requested by the magister officiorum (NTh 21). This last official, with his overall responsibility for the palatine civil and military services was no doubt an especially prolific source of suggestiones, but his subordinates could also be active. Justin and Justinian in the sixth century in a constitution to Tatian, the magister officiorum, agreed that clerks (adiutores') should be allowed to find replacements if prevented from working, but the proposal had come from Proculus, the magister memoriae, at the instigation of the clerks themselves (CJust 12.19.5.2).
A suggestio could also be merely a report of facts to which the emperor would react without being a proposal. Emperors would request reports, particularly in military contexts, so that the situation could be understood at court and action taken or authority given. Masters of the soldiers were on occasion asked about numbers and location of troops and supplies; such reports were especially needed by emperors absent from the armies themselves. When Honorius and Theodosius (in fact the ministers of the latter, then aged 12) wrote to the master of the soldiers in Thrace, it was in part a response to a report submitted earlier about the numbers of river craft on the Danube to be ordered. The constitution (CTh 7.17.1) authorised provision of these but also required a follow-up report on their requisitioning, so that if the dux failed in his job, he and his staff could be fined. The active supervision of military matters from the centre, albeit at long-distance, is paralleled by other requests for information sent out from Constantinople later in the century. Writing to the master of the soldiers in Illyricum, Anastasius forbade the transfer of troops from one base to another without imperial authorisation and ordered both the master and the praetorian prefect to make a report direct to the emperor (CJust 1.29.4). In case they were in any doubt about what to say, Anastasius told them. They were to list the places from which and the places to which the soldiers were being transferred; the names of the units; their supplies; and, most important, why they were being moved. Short of writing the report himself, Anastasius could hardly have done more. Some twenty years earlier a similar problem had arisen, this time over recruiting, and Zeno required a report on ‘who, how many, in what unit and on what frontier’ these recruits were to be levied (CJust 12.35.17). These constitutions are both in fact requests for information: the binding regulation, not found in the Justinianic Code, would have been Zeno’s and Anastasius’ response to the reports, when they gave written approval to their contents.
Outbreaks of public disorder would have inspired a report from the prefect or other official in charge of law and order, as a matter of routine. A set of constitutions in the Code set a general rule in response to a known specific incident, a violent and prolonged period of sporadic unrest and rioting in Constantinople in the early 400s caused by the bishop John Chrysostom and the attempts by his enemies to get him exiled. This culminated in the burning down of John’s church and the senate-house. The supporters and opponents of John blamed each other and the prefect of Constantinople, Studius, having arrested several of the clergy, held a public enquiry.[14] Despite this, he failed to identify the culprits and reported this to Arcadius. In reply, Arcadius ordered the clergy to be released but deported to their homes, a measure designed to remove them from the temptation to cause further disorders (16.2.37). Also, householders in the city would be penalised if they offered them shelter. Further regulations designed to keep the peace were introduced with a prohibition on slaves and members of guilds, the latter a traditionally fertile source of unruly mobs, from taking part in riots (16.4.4-6). All this was to be publicised in edicts to the people of the city. In this affair, Studius’ report, which conveyed nothing useful, had little importance; Arcadius’ response was a fairly standard set of precautions designed to prevent a recurrence of similar troubles.
Proposals could also come from anyone outside the administration who could gain the emperor’s ear. Members of recognised interest groups could put their case directly. In 380 the navicularii (shipowners) felt that a clarification of their exemption from another public service was required, perhaps because an official or officials unknown were trying to press-gang them into serving, contrary t6 the principle that Romans were not expected to serve the empire in more than one (often onerous) capacity. To prove their exemption from curial burdens, the navicularii collected many ancient constitutions of emperors, no easy task in the fourth century when there was no Code, and submitted a well-researched petition, which the emperor granted, no doubt overwhelmed by the impressive documentation (13.5.16.1).
Many imperial constitutions are addressed to cities, whose embassies had always been admitted and allowed to speak. Sometimes this was without the sanction of the governor on the spot because it was to complain about his activities. In a notorious episode reported by Ammianus, the citizens of Tripolitania sent envoys to Valentinian to complain about the corruption and inefficiency of the local comes Romanus; their representations, which Ammianus calls a relatio, were frustrated by the false advice tendered to Valentinian by the magister officiorum, who was hand-in-glove with the corrupt comes, and by subsequent bureaucratic inertia (Amm. Marc. 28.6.5-30). Other attempts to by-pass officialdom were more successful. In 409 Honorius was informed ‘by public attestation’ that bishops in Africa had been subjected to torture and public humiliation - and that the provincial governors had not made a report about it (Const. Sirm. 14). These assaults took place at the height of the Donatist controversy in the province and the public representations may have emanated from a provincial council more sympathetic to the victims for religious reasons than were the delinquent officials.
For one section of the community, bishops, the innovation made by the conversion of Constantine, that bishops could approach the emperor without fear, was of enduring benefit (see Chapter 6 below). While much of the internal discipline of the church was regulated by the canons of church councils, bishops sometimes found it convenient to request the backing of the secular arm to enforce an ecclesiastical rule. In 420 a proposal which forbade clerics from cohabiting with women other than their mothers, sisters or wives married before ordination was agreed to by the emperors (Const. Sirm. 10.1); the same episcopal representation also requested imperial enforcement of laws against rapists of nuns. The ideas came from the priesthood but the implementation of the constitution was the responsibility of the praetorian prefect to whom the law was addressed. Assistance with policing the church was an imperial priority because of the wider duty of emperors to keep the peace in the cities of the empire. When it was reported in 405 by a deputation of bishops that some former bishops exiled by church councils had not left their cities but continued to cause trouble, it was predictable that the emperor would order the decrees of exile to be enforced (Const. Sirm. 2). Sometimes the prefect acted as the spokesman for the church; in 411/412 the prefect Melitius was reassured that church lands were exempt from certain forms of tax and curial burdens and that ‘the privileges which ancient times granted to the churches’ were guaranteed (Const. Sirm. 11). A constant flow of petitions could also have a cumulative effect, as when in 419 the protection of sanctuary was extended to within fifty paces of church doors and priests were assured of access to prisons to investigate cases of unlawful confinement (Const. Sirm. 13).
Also illustrative of the complexity of communication between subject and emperor is his relationship with the most historically important interest group, the senate in Rome. Representations from the senate on matters to do with itself were made through special delegations or the prefect of the city. Their missions were not always on points of law or even policy.[15] They were the established means of maintaining contact of the flow of information between a body based at Rome and an emperor who was almost invariably elsewhere. They carried at regular intervals messages such as congratulations on anniversaries, or gifts, all of which were designed to preserve both contact and harmony. In return the emperor also sent gifts, as at the New Year, gave entertainments to the Roman people, and entrusted the reading of his addresses to the senate to a distinguished senator of his choice: Symmachus was the lucky man to be thus honoured in 379 (Symm. Ep. 1.95; 3.18). Both senate and emperor used this well-tried route of contact through embassies and formal speeches for more serious matters. In 370, many senators found themselves being tried and executed on a number of charges as a result of a witch-hunt organised by the vicarius appointed by Valentinian, Maximinus. In the course of the judicial investigations, senators were being tortured, with the authorisation, so it was believed, of the emperor himself. An embassy of three senators, the former prefect of the city Vettius Agorius Praetextatus, Venustus a former vicarius and Minervius, representing the lowest of the three official ranks, was sent to protest against this policy, as senators were supposedly exempt from torture. The deputation was heard in the consistory and, thanks to the level-headed conduct of the quaestor Eupraxius, was successful (Amm. Marc. 28.1.24-5). Here, although the contact was initiated by the senate, it was in response to a vagary of imperial policy.
Symmachus’ Relationes as prefect of the city of Rome in 384 provide the most comprehensive picture of the variety of contacts between senate and emperor. Some of these documents are referrals of cases for various legal and non-legal reasons, while others convey news, such as the death of Praetextatus (Rel. 10-12), or complaints about the bad behaviour of officials in Rome (Rel. 21) and Symmachus’ political enemies at court, to whose intrigues he ascribes such diverse matters as false accusations that he was persecuting Christians in Rome and attempts by financial officials to reclaim a debt to the wine treasury allegedly due from Symmachus’ by now defunct father-in-law (Rel. 34). Symmachus knew perfectly well that his were not the only messengers travelling the road to Milan, that the emperor was hearing about events in Rome from many sources - and that court ministers had their own aims to pursue. But, intrigue apart, senate and emperor could between them generate proposals which became law without it being clear which side had come up with the original idea. In 384 Symmachus formally thanked the emperor for two proposed reforms (Rel. 8), first to limit senatorial expenditure, thus helping poorer senators who had either failed to match the extravagant ostentation of their richer colleagues or had beggared themselves trying to do so. Second, priority in making speeches in the senate was taken from those who had gained it because of wealth and generosity and restored to those who had reached the highest offices. These two proposals were made in an imperial oratio, which was then approved by a senatorial resolution. The emperor in his turn was then required to give his authority to the senatorial decision by the making of an imperial law.[16] In the case of the senate, whose own procedures had all the weight of a tradition going back to the Early Republic, the process of consultation and resolution was so complex that it would be difficult even for people on the spot to ascertain where the initiative lay. Symmachus’ relatio on the expenditure proposal implies that the idea came from the emperor, but motives of tact would anyway have led him to suppress mention of an earlier senatorial approach.
The suggestio procedure guaranteed a constant inflow of information, ideas and proposals to be considered by the emperor and his advisers at the centre of the web. Despite the ever-growing power of the court bureaucracy and the failures of emperors after Theodosius I to travel very far or be seen by their subjects, the emperors continued to hear something of their subjects’ complaints, even though direct access must have been ever more strictly limited. The initiative still came (as a rule) from outside the court but decisions on proposals were taken within a context of existing policies and practices. Dominant individuals could influence policy in the areas within their competence, which is why considerable importance must be attached to the praetorian prefects as the most prolific source of proposals affecting the provinces of the Empire. But conflicts of interest and personality inside the court and beyond meant that the process of policy-making was far more complex that any simple description of the procedural system would suggest. Emperors and their ministers set the ‘tone’ of an administration, but would be themselves guided by the assumptions they had inherited or helped to create.
Schoolbook">The Theodosian Code has a distinctive place in a system of imperial rule which had evolved over four centuries and its contents must be understood within that context. Law-giving as a means of communication and control inherited from emperors of the first and second centuries AD continued to build on its heritage under the Later Empire. The process the men of Late Antiquity knew as suggestio was more formalised than before but the need of subjects and officials to communicate their concerns to the centre (which was wherever the emperor happened to be) was as imperative as in the time of Augustus. The Code, therefore, as a compendium of imperial responses to stimuli which were largely external, did not necessarily reflect the preferences of emperors, but the areas of late Roman life on which representations would most vigorously and repeatedly be made. Although some constitutions were oppressive, even violent, in tone and content, they were often evoked by some influential group, in whose interests it was that such regulations should be enforced; the extensive legislation on curiales, for example {CTh 12.1), was drafted to assist men trapped on city councils, in whose interest it was that loopholes offering escape into more prestigious careers could be blocked. Nor does the fact that laws were often repeated indicate that the laws were ineffective (although this could be the case, where all concerned agreed to ignore the imperial will); rather, reiterated requests for clarification indicate the eagerness of subjects and iudices to be accurately informed in cases of doubt. Thus a new emperor might be asked to confirm his agreement with the legislation of his predecessor, or a law issued in one part of the Empire would require confirmation and reissue in the other. Such a system inevitably favoured those who could muster support for their petitions; it bore heavily on the poorest sections of society and could be frustrated by corruption among the bureaucracy, as evidenced in the issue of rescripts ‘against the law’. But the basic structure was, to a great extent, adapted to the expression of the priorities of governors and subjects rather than those of the emperor.
Yet, despite all these external pressures, the character of his administration and of its achievements was the ultimate responsibility of the emperor alone. Ammianus’ summaries of fourth-century emperors at the end of his accounts of each reign from Constantins II to Valens assume that the character of a reign was the character of the emperor, not of his advisers, and Ammianus, as a protector domesticus, one of the elite corps of soldiers attached to the emperor or his chief servants, was in a position to know. The personality of the emperor interacted with his officials who made proposals; they would have taken account of imperial preferences and avoided making proposals that had no chance of success. Theodosius was married to a poetess and a patron of scholars, to whom he offered, as he said himself, ‘great rewards’; his capital was a magnet for men of talent, many of whom worked on the Code; his troops had set in place in 425 in the West, the junior Augustus, Valentinian III; his reign as Augustus of nearly half a century was, despite the threats of the Huns on the Danube, and the over-mighty soldier, Aspar, and eunuch Chrysaphius at court in the 440s, an era of intense cultural activity and, on the whole, of social stability. The Theodosian Code accurately mirrored the emperor’s achievement, as a work of scholarship designed for practical use and a monument to the juristic expertise and political supremacy of the eastern court.