Codex Theodosianus

CODEX THEODOSIANUS. - This is the title of the great official collection of Roman imperial constitutions, ordered by the emperor Theodosius II and published on 15 February 438 A.D. It embraces the constitutions from Constantine onward, up to the year 438, grouped into 16 books, in turn divided into titles, and in each of these the relevant constitutions appear arranged in chronological order. Its plan of arrangement reproduces the systematic order of the Digest: after the sources, the pars edictalis (books II-IV), then the second part, with new complementary matters (books V-XV) and a book XVI devoted to ecclesiastical law (Krüger, Girard).

The C. T. enjoyed particular fortune in the ecclesiastical milieu because of the profound Christian imprint of the legislation it contains, a fortune that increased when the Church of Rome turned to accepting for the most part its norms for the regulation of its patrimony.

In Italy, the application of the Justinianic texts, which occurred a little more than a century later (554 A.D.), attempted to supplant it, but did not fully succeed, as is confirmed by the survival of institutions (fiducia, sponsio, etc.), which had been abolished in the Justinianic legislation. It survived instead as the law of the Roman people in the other countries that had been part of the Western Empire and that did not have the extension of Justinianic law, and the same barbarian rulers drew from it elements for the compilation of their Roman-barbarian laws (Lex Romana Wisigothorum, Lex Romana Burgundionum). In Italy, even the Gothic king Theodoric drew upon it before the Byzantine reconquest for his Edictum. To the C. T. proper are attached the post-Theodosian Novellae issued in the two empires up to the fall of the Western Empire (476).

Norms that concern religious matters, the discipline of the clergy and the authority of conciliar and canonical provisions in general are found collected in various places. There are some in book II and in book VI, but the most important series is comprised in book XVI, particularly intended to regulate the relations of the Church.

This book is divided into eleven titles, in which the material appears arranged as follows: in title I, De fide catholica, a constitution of the emperors Gratian, Valentinian and Theodosius (referred to later in the Justinian Code) establishes the creed of the Catholic faith according to the teaching of the Apostolic See; in title II, De episcopis, ecclesia et clericis, various constitutions provide for the exemption of the clergy from munera of every kind, recognize the right of clerics to leave their property to the Church, sanction the civil jurisdiction of the bishops' court (episcopalis audientia); civil magistrates are forbidden to interfere in the ecclesiastical hierarchy and discipline, to the ecclesiastical measure of segregation from religious ministry is added the loss of exemption from civil munera, and lastly, in a constitution of the emperors Honorius and Theodosius (C. T., XVI, 2, 44) it is established for clerics of any rank that extranearum sibi mulierum interdicta consortia cognoscant; in title III, De monachis, it is provided that these must live and follow deserta loca et vastas solitudines; in title IV, De iis qui super religionem contendum, those who dissent on religious questions are punished, among other things, with deportation, while in title V, De haereticis, civil and personal penalties are sanctioned against those who, belonging to the various heretical sects, disturb the faith and the people; in title VI, Ne sanctum Baptisma iteretur, the penalty of confiscation of property is provided, among other things, for offenders; in title VII, De apostatis, the capacity to make a will is removed in varying degrees, according to the rank of the one who commits apostasy; in title VIII, De iudaeis caeliciis et samoritanis, penalties are sanctioned with regard to the Jews and the others, with the particular prohibition of proselytism; in title IX, Ne christianum municipium iudaeus habeat, the aim is to establish the civil superiority of the Christian over the Jew; in title X, De paganis sacrificis et templis, the survival of pagan worship and customs is combated, while the defense of the true faith is reaffirmed; in title XI and last, De religione, a constitution of the emperors Arcadius and Honorius of 29 Aug. 399 establishes the following important regulation of competence between the ecclesiastical authority and the civil magistrates for trials in religious matters: « Quotiens de religione agitur episcopos convenit agitare, ceteras vero causas quae ad ordinarios cognitores vel ad usum publici iuris pertinent, legibus oportet audiri ».

The canonical collections received many of these constitutions concerning the privileges of the clergy and the defense of religion, but rather as authoritative testimony alongside the canonical provision; and this too, notwithstanding the abrogative force of the other subsequent imperial code, the Justinian Code.

The first true critical edition of the C. T., prepared by Mommsen, completed by Meyer in 1905 and published under the title Theodosianilibri XVI cum constitutionibus Sirmondianis, is divided into two parts.

Nevertheless, the old edition of Jacques Godefroy (ed. Litter, 7 vols., Leipzig 1736-45 in-fol.) remains of vital importance, because of the very erudite commentary with which it is provided.

Antonio Rota