[Footnote 70: 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, &c. Yet a legislator
might give that opinion, however false, the validity, not of
truth, but of law.
Note: 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. - M.]