Theodosian Code

Explanation and Analysis

The imperial rescripts of the Theodosian Code are divided into sixteen books by subjects, each one covering such topics as the civil service (Book I), criminal law (Book IX), or church-state relations (Book XVI). Each book is further divided into several titles of closely related laws, and then each rescript is presented individually (in longer rescripts the paragraphs are numbered), preceded by the name of the emperor who issued it and followed by the date and location of its issuance. Sometimes this information is followed by an interpretation added by the bureaucratic committee members who compiled the code. The code fills more than five hundred pages. The excerpts presented here, drawn from Books I, V, VI, IX, XIV, and XV, are representative of the scope of the code.

Book I

The rescripts in this section relate to the code itself. The first four establish basic legal principles: Ignorance of the law is not a defense, and the rescripts do not have retroactive force against crimes committed before the code was enacted. Another principle reflects the greatest difference between Roman law and the common law system used in the United States: Each case is decided based on the relevant laws interpreted by the guidance of the rescripts of the code; a legal decision in one case has no applicability to other cases. Thus new rulings are made not on the basis of precedent but according to governmental policy.

The remaining rescripts pertain to the history and function of the code. They give the history of the code arising in the work of the legal bureaucracy in Constantinople, describing how it derived from the work of the bureaucracy in charge of legal affairs in Constantinople. Rescript 5 is the initial order for the composition of the code based on the model of the older Hermogenian and Gregorian codes. The committee of bureaucrats assigned the work was ordered to compile all rescripts from the time period going back to Constantine, retaining even those that no longer had legal force and authorizing the committee to edit, rewrite, and interpret the rescripts for the sake of clarity. Rescript 6 is the order for the second committee to finish the work of compiling and publishing the code.

Book V

Titles 9 and 10 of Book V discuss the treatment of newborns, including the practices of exposing newborn children and purchasing newborns. Poor families sometimes exposed their children—that is, abandoned them in the wilderness because they could not afford to feed them. Title 9 addresses the issue of exposed children, explaining that abandoned children could be taken by other families and raised as the family's own children or as slaves. Title 10 deals specifically with purchasing newborns and the conditions under which an original owner or a father could recover a child who had been purchased. Like exposed newborns, purchased newborns could be reared as children or as slaves and were valued monetarily as slaves.

An interesting feature of the later rescript of Honorius and Theodosius I in Title 9 reveals that in the Christianizing empire, just as bishops were responsible for keeping baptismal records, a person had to register with a bishop the custody of an exposed child he had received. This practice effectively meant that the trade in infant slaves could be conducted only by Christians; if a slave owner who still practiced the traditional “pagan” religion (and therefore would not be recognized by an episcopal court) was challenged by the parent of an adult slave bought in infancy, he would have no proof to offer the court of his legal rights. This practice is one of innumerable ways in which non-Christians were disenfranchised in late antiquity as part of the imperial policy of spurring the complete conversion of the empire. Early Christians were not at all opposed to the institution of slavery (as is evident in Paul's Epistle to Philemon), for they considered servile status irrelevant to salvation.

Book VI

The three rescripts (13–15) quoted from Title 2 of Book VI deal with the problem of taxing the Roman aristocracy, a class defined at its highest levels by membership in the Senate of either Rome or Constantinople. Rescript 13 states that senators must declare their land holdings or have them confiscated (“vindicated to the fisc”) and that a senator's place of residence would be reported to the tax-collecting bureaucracy (“the palatine bureaus”). It is an almost desperate plea that senators pay their taxes; the rescript would not have been issued if the senators usually did so. The fact that they did not led to the stipulation in the same rescript that senators pay an “alternative minimal tax” of two folles (large gold coins weighing a pound each, at a time when gold was worth relatively far more than it is now). Even this document concedes, however, that senators were often exempt from taxation in return for their government service.

Aristocrats constantly bartered with the central government to escape their taxes in return for their political support. Rescript 14 is typical of the rest of the rescripts of the book, establishing special circumstances for exemption from the tax on land (a glebe is a piece of land) for a small group of senators who must have lobbied for the concession. Rescript 15 declares that members of the Senate (“Council of the most August”), even if they successfully argued their poverty against the minimum tax of two folles, must pay seven solidi (just less than half of a folles), an amount established ten years earlier. This stipulation shows that aristocrats and their lawyers immediately began to work against any new efforts to tax their wealth. One of the increasingly severe problems faced by the Roman Empire in late antiquity was the concentration of more and more land—the main means of producing wealth in the agricultural economy of the empire—in aristocratic hands, as aristocrats were in large measure exempt from taxation. Under those circumstances, it proved impossible to meet the ever-rising defense budgets necessary to protect the empire from the barbarians pressuring it, eventually resulting in the fall of the Western Roman Empire.

Book IX

Title 1 concerns the emperor's accusations of wrongdoings against his own officials. “Provincials” in this rescript refers to provincial governors, and “palatines” refers to bureaucrats in the central administration; “inscriptions” were written, rather than verbal, accusations. This rescript is essentially a whistle-blower law that encouraged private citizens to come forward and make accusations of corruption against government officials. People who made such accusations could receive rewards in the form of social or political advancement as well as a cash payment. Such a law was necessary for the proper running of the bureaucracy, where officials charged with purely administrative duties could easily abuse their powers if their decisions went unchecked. Therefore, the rescript itself says very little about the level of corruption, but the fact that the emperor undertook to hear such cases himself shows that corruption was considered a serious matter and that such cases must have been brought forward only rarely.

Titles 4 and 5 interpret laws relating to the person of the emperor himself. Of course, plotting to assassinate or depose an emperor would be a serious crime (high treason), but Title 4 goes much further, making it a crime merely to criticize the emperor. Even suggesting that times are bad could be construed as an insult to the emperor because he was ultimately held responsible for the condition of the empire. The Roman concept was quite different from the modern concern for freedom of speech; the person of the emperor, who was also high priest of the state religion (and in Christian times was held superior to all bishops and patriarchs, including the bishop of Rome) was considered sacred, so speaking against him was sacrilege. This rescript gave emperors absolute discretion about how they could construe any offensive remarks, even jokes. This provision was in line with the varied practice of earlier emperors. Some, such as Tiberius or Domitian, took even the slightest remark against their persons very seriously, while others, such as Trajan, refused to investigate such accusations as a sign of their respect for liberty. The language of this rescript seems self-contradictory: Although it virtually promises that the emperor will overlook such accusations, it nevertheless instructs people to turn them over to the emperor for his personal investigation.

Title 5 concerns the use of torture in the investigation of high treason. Aristocrats, who were ordinarily immune to torture, could be tortured during investigation into an accusation of treason. Witnesses, however, who tried to inform against those in authority over them would not be heard but rather would be executed themselves. The Romans believed, falsely, that judicial torture was a guarantee of the truth of testimony. Nevertheless, witnesses in criminal cases could be tortured under Roman law, unless they were of aristocratic status. This rescript makes an exception in cases involving high treason. However, it adds that slaves or freedmen who reported their masters or patrons (their former masters who maintained a degree of legal control over them), even for high treason, should not be heard but should simply be executed. A slave's betrayal of a master was seen as tantamount to a son's betrayal of his father, so such accusations were not permitted. This general law applied to any accusation made against a master or a patron, and Constantine specifically put it in force in the case of high treason. As the political situation became more chaotic and treason trials grew more common, however, later emperors rescinded this provision and allowed slaves to testify against their masters, but only in a case of treason.

Title 14 relates to ancient laws against murder. The first two rescripts clarify certain points of interpretation. The first gives the interpretation that killing a child was to be considered murder, a specification that would hardly have been needed unless exposure, which was legal, did not entail a serious risk of killing the exposed infant. By late antiquity exposure had largely become a euphemism for selling an infant into slavery, but in a case in which a child was actually exposed (abandoned in the forest or on the roadside), the likely outcome of death would not constitute murder in the eyes of the law. This rescript also rescinded the traditional right of Roman fathers to punish their children with execution, as Brutus, the hero of the early history of Rome, had done when he discovered his son in a treasonous plot, a right that had in any case long fallen into desuetude. The second rescript granted the right of self-defense against brigands, even in cases in which soldiers had taken to brigandage (another sign of the collapse of state authority in the West).

The third rescript gives a much more extended interpretation. It equates conspiracy to assassinate a government official with the actual murder. The penalty was execution together with confiscation of all the guilty party's property. (The term fisc refers to the state treasury.) The phrase “struck down with the sword” alludes to execution, usually by beheading, as opposed to crucifixion, the form of execution used only for members of the lowest social classes. A son of the guilty person was therefore not only disinherited but also disenfranchised. A daughter of the guilty was to inherit only from her mother's dowry, a piece of property given by a father to his daughter at the time of her marriage and controlled by her husband but legally the possession of his wife. The rest of the dowry would also be confiscated, leaving the widow of the guilty party dependent on her father or her brothers.

Title 15 discusses parricide, the murder of a parent by a child. In the Roman view, parricide went beyond mere crime and overturned the entire natural order. Accordingly, anyone guilty of such an act was to be executed by being sewn into a sack full of serpents and drowned. This method of execution was symbolic, indicating that anyone guilty of parricide had passed out of the human race and become a viper.

Book XIV

Title 9 of this book addresses aspects of the state-run higher education system of the Roman Empire, comparable to the modern-day university system. The interest of the state in providing education was to produce well-trained civil servants. Consequently, the first rescript outlines the responsibilities of students to the government, including registering the change in their place of residence; the rescript also provides guidelines for student behavior. One way to read this rescript is as a protection for future civil servants from their own youthful impulsiveness, which might come back to haunt them with scandal in later years.

The second rescript provided for the maintenance of the state-owned libraries that supported higher studies, and the third regulated professors employed by the state. The state paid the salaries of a certain number of professors in various subjects, not only in Rome and Constantinople but also in other cities, such Athens (especially in philosophy) and Beirut (particularly in law). The third rescript established the number of professorships the empire supported in the two capital cities and prohibited their holders from supplementing their income by taking additional private students, as the point of the state salaries was to make teaching accessible to all students. There were, however, many private teachers in the university towns, and the state-supported professors were generally promoted from their ranks.

Book XV

Title 12 documents the efforts of the Christian emperors to outlaw the gladiatorial shows popular throughout the empire. When this proved impossible because of public demand, the emperors attempted to regulate them. The last rescript forbids senators from employing gladiators. The gladiatorial shows served an important social function. Provided by the state, they enhanced the popularity of emperors, and they were also part of the state welfare system; entry to the games was free, and free food was provided to the audiences. The Christian emperors, however, opposed the games, not only because they involved murder but also because the execution of Christians had in earlier times sometimes been part of the spectacle. Accordingly, Constantine outlawed these practices in the first rescript in Title 12. (Gladiators were generally obtained by promoters from the ranks of condemned criminals). A generation later, Constantine's son Constantius II had not only given up trying to outlaw the shows, which proved too popular to be closed, but actually had to forbid soldiers and government officials from leaving their positions to fight in the arena, drawn in—despite the loss of social status—by the enormous celebrity of gladiators. The final rescript prohibited senators from using gladiators as bodyguards, who could threaten violence for political purposes.