Note 070
From Chapter 44 of the Decline & Fall

See the Theodosian Code, l. i. tit. iv. with Godefroy's Commentary, tom. i. p. 30 - 35.) This decree might give occasion to Jesuitical disputes like those in the Lettres Provinciales, whether a Judge was obliged to follow the opinion of Papinian, or of a majority, against his judgment, against his conscience, etc. Yet a legislator might give that opinion, however false, the validity, not of truth, but of law.

We possess (since 1824) some interesting information as to the framing of the Theodosian Code, and its ratification at Rome, in the year 438. M. Closius, now professor at Dorpat in Russia, and M. Peyron, member of the Academy of Turin, have discovered, the one at Milan, the other at Turin, a great part of the five first books of the Code which were wanting, and besides this, the reports (gesta) of the sitting of the senate at Rome, in which the Code was published, in the year after the marriage of Valentinian III. Among these pieces are the constitutions which nominate commissioners for the formation of the Code; and though there are many points of considerable obscurity in these documents, they communicate many facts relative to this legislation.

  1. That Theodosius designed a great reform in the legislation; to add to the Gregorian and Hermogenian codes all the new constitutions from Constantine to his own day; and to frame a second code for common use with extracts from the three codes, and from the works of the civil lawyers. All laws either abrogated or fallen into disuse were to be noted under their proper heads.
  2. An Ordinance was issued in 429 to form a commission for this purpose of nine persons, of which Antiochus, as quaestor and praefectus, was president. A second commission of sixteen members was issued in 435 under the same president.
  3. A code, which we possess under the name of Codex Theodosianus, was finished in 438, published in the East, in an ordinance addressed to the Praetorian praefect, Florentinus, and intended to be published in the West.
  4. Before it was published in the West, Valentinian submitted it to the senate. There is a report of the proceedings of the senate, which closed with loud acclamations and gratulations.

— From Warnkonig, Histoire du Droit Romain , p. 169 - Wenck has published this work, Codicis Theodosiani libri priores. Leipzig, 1825.
— Note by the Rev. H. H. Milman 1782 (Written), 1845 (Revised)