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Codifications et réformes dans l'Empire tardif et les royaumes barbares
I - Approches ponctuelles
Les Codes Grégorien et Hermogénien

The Gregorianus and Hermogenianus assembled and shattered

Simon Corcoran

Résumé

The Gregorian and Hermogenian Codes do not survive and so have to be imagined from their remains recycled into other late antique legal works, in particular the Justinian Code. Additional illumination may also be provided if the recent identification of some fragments (Fragmenta Londiniensia Anteiustiniana) as coming from the Gregorian Code is correct. From the various sources, it is clear that the Hermogenian Code consisted almost solely of private rescripts issued by Diocletian and his colleagues in the two years 293 and 294, while the Gregorian Code, consisting mainly but not only of private rescripts, covered the period from Hadrian up to some point in the 290s. Both were arranged thematically under titles (the Gregorianus also in Books), further developing principles of organization from earlier juristic collections, that had brought together both praetorian and non-praetorian legal topics. The two codes were also probably the first legal works to appear in the new “codex” rather than roll format. While the Hermogenian Code was produced by a jurist prominent at Diocletian’s court from texts he himself wrote in the emperors’ names, it is not certain that this was so for the Gregorianus, of whose compiler we know nothing. Nor are the publication dates and relative sequence of the two codes clear, although both must have appeared by c.300. There is no evidence that either existed in more than one formal edition. Whether or not sponsored by Diocletian, the codes mark two important features of Diocletian’s reign. First, they disseminated more widely than ever before a huge range of imperial legal rulings in a coherent and ordered way, serving the needs of not only the state (officials and governors) and professionals (advocates, law-teachers), but also of a citizen population, nominally Roman, but still unfamiliar with Roman legal norms, and eager for any legal advantage. Secondly, the codes mark the supersession of earlier authoritative forms of law-making or exposition (lex, senatus consultum, juristic writing) and demonstrate the emperor’s dominance in the creation and interpretation of normative legal texts.

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Notes de la rédaction

Les textes réunis dans ce dossier par Olivier Huck constituent les actes de la table ronde organisée à l’École française de Rome les 30 juin et 1er juillet 2009, sous l’intitulé éponyme Codifications et réformes dans l’Empire tardif et les royaumes barbares.

Notes de l’auteur

I should like to thank Yann Rivière and Olivier Huck for inviting me to speak at the Rome conference (June 2009). I am grateful for feedback from the audience there, including especially Detlef Liebs, Dario Mantovani and Boudewijn Sirks. Thanks are also due as always to my Projet Volterra colleague, Benet Salway. Earlier versions of this paper were delivered at All Souls College, Oxford (May 2008) and Lille (Dec. 2008). See also, more briefly, Corcoran 2011, p. 428-433.

Texte intégral

Introduction

  • 1 When I spoke in Rome, I alluded to these as the « Cambridge Fragments », but, after finally taking (...)
  • 2 Hänel 1849, p. 444-451. For a summary of the other works which explicitly quote the codes or implic (...)

1As is well-known, the two codes which are the subject of this article, the Gregorianus and Hermogenianus, no longer exist as intact entities. This is a distinction they share with most other pre-Justinianic Roman legal texts, such as the Twelve Tables, the Praetor’s Edict and the juristic commentaries. Thus the codes have to be imagined, perhaps with a dash of speculation and fantasy, from their shattered fragments, which, apart from some parchment scraps recently identified,1 are scattered as citations in various legal works and authors of the fourth to sixth centuries, and were otherwise cannibalized for re-use by Alaric II and especially Justinian. Unfortunately both Alaric and Justinian disappoint. While Alaric gives detailed references, he only took over a minuscule proportion of the two codes.2 By contrast, while Justinian regurgitated a huge amount of material, he both edited it and masked the Gregorian or Hermogenian origins, since, between the authority of the emperors who issued the original rescripts and the authority of Justinian himself who repromulgated them in a new and revised form, there was no place for detailed reference to the two codes in which the texts had lain in the meantime.

  • 3 C. Haec pr. (528), C. Summa 1 (529) [Krüger 1877, p. 1 and 3] ; cf. the Greek version of C. Imperat (...)
  • 4 Only one Gregorian text is preserved in a non-legal source : Augustine, de coniugiis adulterinis II (...)
  • 5 Hänel 1837 is the most recent full text version, although Karampoula 2008, p. 194-251 and 255-317 o (...)

2This leaves us with a problem. In creating the first edition of his Code, Justinian had ordered the recompilation of the three existing codes, Gregorianus, Hermogenianus, and Theodosianus, plus the constitutions enacted since.3 Our presumption is that all the Justinian Code material of Theodosian Code date (i.e. 313-437) is attributable to that code and thus that all earlier material comes from the other two codes. Yet, how to divide up this material between them is not obvious. When we turn to Alaric and the other legal sources, which provide verbatim texts and explicit references,4 we find barely enough for a miserable attempt at palingenesis.5 Nonetheless, the shape and content suggested by this material can be compared to the overall spread of texts in the Justinian Code to create a plausible picture for each of the codes. Yet even so, as we shall see, the boundaries between them are extremely and frustratingly fuzzy, making key aspects of their interpretation very difficult.

The chronological scope and the contents of the codes

3Of explicit citations from the Gregorian Code, the earliest rescript quoted is of Septimius Severus from 196 (Consultatio I, 6), and there are many more for the third century from Severus down to Carus and his sons (Table 1).

Table 1 - Ascriptions to the codes by emperor or year (details taken from Augustine, the Collatio [Lex Dei], Consultatio, Fragmenta Vaticana, Lex Romana Burgundionum, and the Breviary Gregorianus and Hermogenianus plus the Breviary Appendices).

Date/Reign

Gregorianus

Hermogenianus

Severus

1

0

Severus & Antoninus

3

0

Antoninus (Caracalla)

9

0

Antoninus (Elagabalus)

1

0

Alexander

12

0

Gordian III

9

0

The Philips

4

0

Valerian & Gallienus

5

0

Probus

1

0

Carus & sons

1

0

Diocletian & Maximian (undated)

0

2

285

1

0

286

4

0

287

3

0

290

5

0

291

0

1

293

0

12

294

2

11

295

1

1

297/302 ?

1

0

Valentinian & Valens

0

7

  • 6 See Corcoran 2000a, p. 299-301 ; cf. p. 26 for the chronological shape of Diocletianic rescripts in (...)
  • 7 The dating of constitutions, both within and without the Justinian Code, by the bare and uniterated (...)
  • 8 CJ III, 1, 8 ; VI, 1, 3 ; VII, 16, 41 ; VII, 22, 3. See Corcoran 2000a, p. 36 and 280 and 2010, p.  (...)

4There are no pre-Diocletianic Hermogenian ascriptions. For the reign of Diocletian the picture is more complex. The Hermogenian ascriptions cluster heavily in the years 293 and 294, while the Gregorian are spread throughout the 280s and 290s, although predominantly of the earlier dates.6 When we compare these explicit references to the pattern of the Justinian Code material, it seems that all rescripts in that code dating before Diocletian, going back as far as a single text of Hadrian (CJ VI, 23, 1), are from the Gregorianus. The texts of Diocletian up to 290 or perhaps 291 appear to be Gregorianic, and, although the material is plentiful, it is very uneven and some years are barely represented (e.g. 288 and 289). There is little material after the early months of 291 until we reach the years 293 and 294, which provide between them the overwhelming majority of Diocletianic texts, and these would appear to be mostly Hermogenianic.7 There is then a scatter of texts from 295 to 305, including some of the Second Tetrarchy, whose ascription to one or other code is unknown. We can also add four Justinian Code texts of Constantine and Licinius, which seem unlikely to have derived from the Theodosian Code.8 Finally, there is the strange and anomalous case of seven constitutions of Valentinian and Valens from the 360s apparently attributed to the Hermogenianus (Consultatio IX, 1-7).

  • 9 For the rescript system, see Honoré 1994, ch. 2 ; Corcoran 2000a, ch. 3 ; Sirks 2001 ; Connolly 201 (...)
  • 10 Corcoran 2000a, p. 54-57.
  • 11 A classic example is adrogation by a woman, allowed exceptionally by Diocletian, when confirmed by (...)

5Before we go further with trying to make sense of this chronological spread, we should also consider the nature of the code-derived texts that survive. Overwhelmingly the two codes were made up of private rescripts.9 These were imperial replies to petitioners, usually posted up in batches outside the emperor’s residence or in some other prominent place in the city where he happened to be. Code rescripts typically give rulings on or clarifications of points of law. They explain what the law is and do not seek to legislate or innovate in an active fashion, although in practice they were often regarded as so doing. Neither do they decide the case in question in a judicial manner, although petitioners are sometimes told which procedure to follow or which official to approach, if the facts are as they have presented them. Petitioners no doubt hoped that a favourable rescript in practice meant a won case. Given the strong ideology of imperial beneficence, it is striking that some rescripts emphatically tell petitioners that they are in the wrong or have no legal basis for their claims.10 On occasion, however, a rescript makes an exceptional derogation from the law, which, although intended to be a one-off personal grant, might be taken as a precedent. Not surprisingly, such anomalous texts are generally avoided by the code compilers.11 Rescripts would have been written by the a libellis or, by the time of Diocletian, magister libellorum, a palatine official of equestrian rank, who seems often to have been an experienced jurist. Thus the rescripts are in effect juristic responsa camouflaged by being issued in the names of the emperors.

  • 12 Corcoran 2000a, p. 127-128 (CJ I, 23, 3 ; VII, 35, 4 ; IX, 2, 11 ; X, 10, 1).
  • 13 Corcoran 2000a, p. 28, but note p. 300, where this feature is less obvious in the explicit Hermogen (...)

6The codes also included a scattering of edicts, letters to officials and acta of hearings, although my own view, discussed below, is that such items may have been excluded from the Hermogenianus and should perhaps be attributed to the Gregorianus. The two latest Gregorian ascriptions are for an edict and a letter respectively (Collatio VI, 4 (295) ; XV, 3 (297/302 ?)). There are also oddities in the shape of the material, such as the fact that the only texts dated to the year 292 are four letters addressed to office-holders.12 Only one explicit Hermogenian text seems to be a letter to a governor rather than a private rescript, but this is a problematic and anomalous text for two reasons. First, it belongs to 291, thus pre-dating most Hermogenian material, and secondly was apparently also present in the Gregorianus (Collatio VI, 5-6). A further point is that in the material up to 291 the subscripts usually give the date as that of posting up (proposita), while the texts of 293 and 294 usually give the date of subscribing by the emperor (data, scripta, subscripta). There are in fact a great many exceptions to this in both directions, but the pattern has nonetheless been taken to imply that the earlier material derived from copies made from publicly posted rescripts, while the material of 293 and 294 (i.e. essentially the Hermogenian material) was taken directly from the imperial records.13

The organization of the codes by book and title

  • 14 This section depends upon discussions in Sperandio 2001, 2007 and 2005, p. 307-325.
  • 15 Thus for Ulpian’s Ad Sabinum in the Scholia Sinaitica IX, 22 ; XI, 30 ; XII, 34 ; XIII, 35 ; XV, 40 (...)
  • 16 Ammirati 2010, p. 59-60, 79-80.
  • 17 Usage of terms may have differed between east and west (Liebs 1987, p. 136 and 138).

7The broad chronological shape of the material in the two codes is thus clear. How was this material organized ? The Gregorianus was divided up into books (libri) and titles (tituli), the Hermogenianus into titles only. We are perhaps so familiar with this book/title division from the surviving late Roman legal texts that we often overlook a momentous paradigm shift in the organization of literary works, which took place during the course of the third century : namely the shift from roll to codex.14 Instead of dealing with several rolls at once, one could now consult the equivalent material in a single volume and, further, it was much easier both to locate and give references to specific passages. Previously, the classical jurists of the second and early third centuries cited each other’s works by book number, but not by more detailed units or sub-divisions. Tituli referred only to the sections of the Praetor’s Edict. By the fourth century, however, the works of the jurists were being cited by titulus. Initially this may have been for those which were commentaries on the Praetor’s Edict, since an alternative division by chapter (κεφάλαιον) is also attested,15 but titulus quickly became the norm. The development of such sub-divisions is most clearly demonstrated by the contrast between the third-century fragments of Gaius’s Institutes from Oxyrhynchus (P. Oxy. XVII, 1203), in roll format with numbered columns, and the later Antinoopolis fragments of the same work (PSI XI, 1182), in codex format with title rubrics.16 Since the two codes were probably the first significant legal works to appear in codex form, once the roll had been largely superseded, the need to arrange the constitutions in them led to the adoption of tituli, probably because of the significance of the titles of the Praetor’s Edict as a major organizing principle, as we shall see. Division by book was maintained, for the Gregorianus anyway, but this was now solely a matter of thematic division without any consideration of the physical constraints of rolls, although in practice the amount of material in each book within a codex was not dissimilar to that which would have been in each roll. Further, with a work divided by book and title, the codex format allowed for running headers and indexes of titles to aid navigation. While neither code is attested as being called a codex until the fifth century (CTh I, 1, 5 ; 429),17 the fact that references to them by title occur already in the fourth century can generally be taken to indicate that they were indeed in codex form from the start. Further, whether or not the two codes were indeed trail-blazers in their format, certainly those writings of the classical jurists, which continued to be copied, were themselves transferred into codices in due course.

  • 18 The Fragmenta Londiniensia Anteiustiniana (5th C.) seem to show title and constitution numbers adde (...)

8Some title names are explicitly attested for each code, but very few title numbers. Indeed, titles do not seem at first to have been numerated, although this certainly became standard over time, sometimes even for individual constitutions.18 In any case, while the Gregorian Code can be ordered in part from the surviving attested book numbers (individual books are not themselves named or titled), this is not possible for the Hermogenianus, which consisted of a single book. However, Hermogenian himself states the following in relation to his Iuris epitomae :

HERMOGENIANUS libro primo iuris epitomarum : Cum igitur hominum causa omne ius constitutum sit, primo de personarum statu ac post de ceteris, ordinem edicti perpetui secuti et his proximos atque coniunctos applicantes titulos ut res patitur, dicemus.

HERMOGENIAN in the first book of the Epitomes of the Law : Therefore, since all law is established for men’s sake, we shall speak first of the status of persons and afterward about the rest, following the order of the edictum perpetuum and applying titles as nearly as possible compatible with these as the nature of the case admits. (Digest I, 5, 2 ; trans. Watson)

  • 19 Dovere 2005.
  • 20 Stein 1983 ; Marotta 2007a. The fragments of Ulpian’s Institutes Book I are gathered at Lenel 1889, (...)
  • 21 Corcoran 2004, p. 60-63. There could have been something general on civil jurisdiction, following t (...)
  • 22 Scherillo 1934, p. 307 [= 1992, p. 316].
  • 23 Lenel 1889, vol. I, col. 934-946 (Books XII-XIX) ; Scherillo 1934, p. 315-320 [= 1992, p. 323-328].
  • 24 CHV 3 (Krüger 1890, p. 244-245 ; Cenderelli 1965, p. 180) ; Digest XLIX, 14, 46 ; Liebs 1964, p. 12 (...)
  • 25 The title ad legem Corneliam de sicariis et veneficis is attributed to Book IIII, emended to XIIII (...)
  • 26 Thus equivalent criminal law is placed in the last Book of the contemporaneous Pauli Sententiae (V, (...)
  • 27 Cenderelli 1965, p. 177-181.

9Further, the Epitomae actually began with some general observations about law.19 The presence of these titles on law and on persons at the start of the Epitomae shows a debt here to certain institutional works, including Gaius and Ulpian.20 There is no clear evidence that such titles (for instance on the validity of rescripts) stood at the beginning of either code, although this cannot be entirely excluded.21 However, Hermogenian’s otherwise unparalleled explicit reference to the Praetor’s Edict as an organizing principle is mirrored in the shape of the Gregorianus based on its surviving Book numbers and title names, covering Books I to XII.22 Material outside the edictal framework seems to have been added into the final books or titles, as had already been the case with some earlier juristic works, notably Papinian’s Responsa, which could therefore have provided a model.23 In this way, therefore, non-praetorian private law, that is Civil Law or that based upon later leges or senatus consulta, was included. Further, a title on the fiscus certainly appeared in both the Hermogenianus and the Iuris epitomae, although its widespread relevance was clear, since private persons were of course extensively involved in fiscal litigation.24 Titles relating to iudicia publica and criminal law were included in the Gregorianus, and, while their location in a putative Book XIV rests upon emendation of numerals in the Collatio deemed problematic,25 the presence of criminal law towards the end of the code is a reasonable assumption.26 Similar material may to a lesser extent have been present also in the Hermogenianus.27

  • 28 Rotondi 1922, p. 168-169 ; Sperandio 2005, p. 370-375 and 392-395 ; Karampoula 2008, p. 246-251. Sc (...)
  • 29 For CH, see Cenderelli 1965, p. 145-148 and Karampoula 2008, p. 263-272 ; note especially Consultat (...)
  • 30 Harries 1998. On Book V, see Jaillette et al. 2009, p. 103-119.
  • 31 For the reconstruction of the first five books, see the helpful analysis in Matthews 2000, p. 101-1 (...)
  • 32 On the issues regarding the structure of the Gregorianus, see Sperandio 2005, p. 301-375.
  • 33 Scherillo 1934, p. 253, 277, 293 [= 1992, p. 267, 289-290, 304], who argues that CTh followed the s (...)
  • 34 Rotondi 1922, p. 146-185 ; Giomaro 2001 (concentrating on the Theodosian influence).
  • 35 Thus CG I, 10, de pactis (or de transactionibus) (Consultatio IX, 17) matches CJ II, 3, de pactis o (...)
  • 36 The relocation of the ecclesiastical material to the opening of Book I was one of the key changes m (...)

10The Gregorian Code comprised at least thirteen books, although most modern scholars tend to give it fifteen.28 This may explain why the Theodosian Code extended also to fifteen books, if we disregard the unprecedented ecclesiastical Book XVI ; unless, that is, the total represents the Gregorianus and Hermogenianus together as a sixteen book opus. The greater size and scale of the Gregorian Code meant that it could have been more lavish in its title divisions than the Hermogenianus. For instance, where Hermogenian used a joint title de pactis et transactionibus, the Gregorianus seems, like the Justinian Code, to have used two adjacent titles de pactis and de transactionibus.29 Thus the Gregorianus is the more likely model for the imperial codes. However, the similitudo between his and the two earlier codes invoked by Theodosius II (CTh I, 1, 5) did not extend to the shape and balance of the content over the whole Theodosian Code. Private law material, predominant in the earlier codes, is confined to just five of its sixteen books (II-V and half of VIII), generally following the Praetor’s Edict in Books II-IV, with non-praetorian material in Book V, and some further material in Book VIII.30 Otherwise the Theodosianus is concerned with detailed coverage of public and administrative law. It does seem plausible that the Gregorian Code was the model in the “private” books, although a true assessment is difficult since it is precisely the early Theodosian books (I-V), which survive only in a seriously deficient manner, and have to be supplemented from other sources, including the Justinian Code.31 This is in turn problematic, since the Justinian Code is itself used to reimagine the shape of the Gregorian Code, and there is a danger of circular or self-supporting argument.32 Scherillo argued for the Gregorian Code as the dominant model for the Theodosianus, so that, even where the former only covered subjects vestigially, the latter took it as a guide, and, indeed, he went further and supposed that where the Justinian Code differs from the Theodosianus, this was a divergence also from the Gregorianus and would thus represent change introduced by Justinian’s commissioners.33 However, most scholars tend to think that the Diocletianic codes were a poor model for arranging the extensive public law material of the Theodosian Code, and that in those areas Theodosius’s compilers may have needed to exercise greater innovation. As a result, when Justinian’s commissioners came in their turn to create a code, they had a choice of paradigms and, therefore, in the criminal and public law books (I, IX-XII) they generally followed the Theodosianus, while in the private law books (II-VIII) they followed the Gregorianus, although neither was a straitjacket.34 Thus, in both the Theodosian and Justinian Codes, private law material, although reflecting the Gregorian titles, is delayed until the start of Book II, whereas this same material was already present in Book I of the Gregorianus.35 By contrast, the material in Book I of the Theodosianus is primarily constitutional and administrative, in Book I of the Justinianus first ecclesiastical (equivalent to CTh XVI, which it closely mirrored), then constitutional and administrative.36

  • 37 Most of CJ VII, 62, 12-31 is drawn from CTh XI, 30. See Giomaro 2001, p. 421-422 ; cf. p. 312-313.
  • 38 The overlapping texts are CJ VII, 62, 3-4 and 7 (Corcoran – Salway 2012, p. 82-83).
  • 39 For CJ VII, 62 and equivalent material on appeals assigned to a putative Book XV : Krüger 1890, p.  (...)
  • 40 Sperandio 2005, p. 362-366 ; cf. Cenderelli 1965, p. 170 ; Lenel 1889, vol. I, col. 274 (Bk V of th (...)
  • 41 The Gregorian title is inferred from the partial rubric in the London fragments, but seems plausibl (...)
  • 42 Unfortunately, although there are verbal echoes of CJ VII, 62, 6 in the London fragments, there is (...)

11Given our usual reliance upon the Justinian Code for understanding the structure of its missing or deficient sources, the new Fragmenta Londiniensia provide fresh evidence, which illustrates the Gregorian structure more directly and how it is reflected in the Justinian Code order. The Theodosianus covers res iudicata in Book IV and appeals in Book XI, from which latter book came much of the material for CJ VII, 62,37 which Justinian title contains also the material overlapping with the London fragments.38 Scherillo argued that the Gregorian material in CJ VII, 42-60 (including res iudicata) belonged to Gregorianus Book X, and CJ VII, 61-70 (including appeals) to Book XV, suggesting that the Gregorianus had split the material between books in a manner then followed by the Theodosianus, and that the collocation of this material in CJ VII was an innovative deviation of Justinian’s commissioners.39 By contrast, Sperandio suggested that the association of the two types of material should be traced back to Hermogenian and his treatment in his code of Diocletian’s important reforming edict of 294 on appeals.40 It can now be argued, however, that Gregorian material later recycled into CJ VII, 62 most likely appeared under the title Praescriptio rei iudicatae,41 and so would belong most naturally with other material on res iudicata in the Gregorianus Book X. This conclusion would be further strengthened, if Sperandio’s argument is borrowed, but with the edict on appeals assigned to the Gregorian and not the Hermogenian Code (supposing the latter to contain only rescripts), although the edict need not have been under the same title.42 It is certainly reasonable to conclude, therefore, that Justinian’s commissioners were not innovating in bringing together res iudicata and appeals in the same book, but were rather following the Gregorian pattern, and thereby overrode the placement of appeals as they appeared in the Theodosianus.

  • 43 Lactantius, Div. Inst. V, 11, 18-19 ; Lenel 1889, vol. II, col. 975 ; Marotta 2004, p. 80-87 ; Nogr (...)
  • 44 For Christianity as a lawful religion from the time of Gallienus (AD260) onwards, see Barnes 2010, (...)
  • 45 That is, if there is truth in the speculative idea that he is also Diocletian’s magister libellorum (...)
  • 46 Barnes 1976, p. 239-252 ; Digeser 2000, ch. 4 ; Smith 2009 ; Kahlos 2009, p. 38-46 ; now most recen (...)
  • 47 Liebs 2005b, p. 85-88. Note that Constantine had no problem in approving its authenticity only a co (...)
  • 48 Thus Collatio XV, 3 ; Ambrosiaster, Ad Tim. II 3, 7 (CSEL LXXXI/3, p. 312) ; Valentinian III, Nov. (...)

12Since at least some criminal law material was in the Gregorianus, one intriguing question is whether either code contained anti-Christian texts, as we know was the case for Ulpian’s De officio proconsulis Book VII.43 The period favoured for the original publication of each code, the mid 290s, was a time of maximum acceptance and normalization of Christianity just before the storm of the Great Persecution.44 The Gregorianus did include one text, which is usually taken as indicative of Diocletian’s developing policy of enforcing religious conformity, namely the rescript on the Manichees issued from Alexandria, although its date is uncertain (either 297 or 302), as indeed the question of whether it was a later addition to the code (see further below). Since Gregorius is often seen as a Roman chauvinist,45 it would not be entirely surprising if he aligned himself with the intellectual opposition to Christianity that developed at Diocletian’s court, associated especially with Porphyry and Sossianus Hierocles.46 Certainly, the later we place the publication of the Gregorianus, the more likely that there might have been a deliberate choice to include anti-Christian texts and render Christianity once again clearly illicita. However this may be, if any anti-Christian material were present in either code, as it was in Ulpian’s work, it would most likely have been omitted as new copies of these works were made during the fourth or fifth centuries, although there is no direct evidence for this. The same might also be true of the near contemporary pseudonymous Pauli Sententiae, which seem themselves to have used Ulpian’s De officio proconsulis as a source.47 By contrast, the hostility of Christians to Manichees meant that the Manichees rescript did survive in the Gregorianus, and later Christian authors had no problem with citing a pagan emperor’s legislation in this regard.48

The arrangement of constitutions under titles

  • 49 Note, however, Collatio III, 3, 6 and XIII, 3, 1 (both from Ulpian, De officio proconsulis) ; X, 9, (...)
  • 50 Lenel 1889, vol. I, col. 947-952 ; Gualandi 1963, vol. I, p. 428-431 ; Volterra 1968.
  • 51 For the Severan material, see Oliver 1989, nos. 220-243 (some additions noted at Anastasiadis - Sou (...)
  • 52 Migliardi Zingale 2007.
  • 53 P. Oxy. XII, 1407. This employs both Roman and Egyptian dating formulae.
  • 54 Sperandio 2005, p. 101-106. Note that mention of the Gregorian and Hermogenian Codes in the Frag. V (...)
  • 55 On the Fragmenta, see de Filippi 1998 ; Felgenträger 1935.

13How were texts ordered within each title ? The obvious answer seems to be chronologically, as later in the Theodosian and Justinian Codes. However, citations of imperial rescripts in classical juristic works frequently identify emperors and recipients, but seldom provide dating information.49 This is true even in a work such as Papirius Justus’s Libri Constitutionum, which, like the later codes, seems to have contained nothing but rescripts, although these are usually paraphrased in indirect speech, rather than being quoted verbatim.50 However, there is plentiful evidence for the general collecting and later recopying of rescripts, including dating information, as with the many rescripts or rulings issued by Severus and Caracalla during their Egyptian visit of 199-200 (these of course with Egyptian dates).51 Some dossiers of privilege logically present imperial grants or rulings in date order.52 One frustratingly fragmentary papyrus, which once contained extensive imperial titles and subscript dates, moves smoothly from Valerian and Gallienus to Claudius II then Aurelian.53 When we consider the more systematic juristic collection of third-century rescripts other than in the Diocletianic codes, our best if limited evidence is the presence of such material (always bearing dates) in the Fragmenta Vaticana, which reveal no clear employment of a chronological criterion.54 However, it is difficult to tell with the runs of constitutions presented by the Fragmenta whether these preserve the order of the source material or represent arrangement by the work’s author. It is worth noting that the Fragmenta are in some respects not so far from the two Codes in presentation.55 The author seems to have been a younger contemporary of Hermogenian, producing his work some twenty years later. As the modern title suggests and a few surviving quaternion numbers show, the original work was a great deal larger than what we possess, apparently divided into titles (only seven are attested), but not books. The texts contained are arranged without commentary, but, in contrast with the Gregorian and Hermogenian Codes, there is extensive and explicit quotation from the works of the classical jurists (e.g. Papinian, Paul, Ulpian), sometimes interleaved with the rescripts. The codes, of course, ignored the jurists, but otherwise seem to have presented their imperial texts, almost all of which were dated, in a manner similar to the Fragmenta without further commentary, at least beyond what could be inferred from the titles under which they appeared, which may thus have functioned as explanatory lemmata. A user who already knew some law, even if only Gaius’s Institutes, would understand the basic legal position and issues, and many users will have been legal professionals (practising advocates, or teachers and students at law-school). Thus the rescripts in the codes would act as further clarification or perhaps up-to-date exposition of the law, which was one function of such rescripts anyway.

  • 56 For the most recent analysis, see Zanon 2009.
  • 57 Collatio X, 3-6.
  • 58 CGV III, 6, 1-5 ; III, 7, 1-2 ; III, 8. 1-2 ; IV, 11, 1-2 ; IV, 12, 1-2. The two rescripts of CGV I (...)
  • 59 The sequence is reconstructed thus : a rescript of Caracalla, followed by three of Gordian III, the (...)

14Of the surviving pre-Justinian legal works, which use the codes, the Consultatio does not preserve the imperial constitutions that it cites in chronological order even when taken from the same titles, but deals with them as the argument demands.56 Nor does it make it apparent whether this preserves the arrangement as it was within the code titles. By contrast, the Lex Dei (Collatio) cites four Hermogenian rescripts from the title « Depositi » in strict chronological order.57 Perhaps most significant of all, the Breviary Gregorianus, despite its thinness, preserves chronological order in five of the six titles from which it takes more than one constitution.58 In the newly identified Fragmenta Londiniensia, if they are indeed from the Gregorian Code, the provisional reconstruction gives a sequence of four rescripts from the years 241, 239, 244 and 245. The title under which these probably occur may also have begun with a rescript of Caracalla. So there appears at least to be a sequence ordered by emperor.59 Possibly we have reconstructed the order of the fragments incorrectly or misread the consular date for 241, although that for 239 is unmistakeable (Aviola is always distinctive). Or maybe the copyist of the manuscript disordered his rescripts or confused his dates. Nonetheless we can reasonably state that in the code the constitutions within each title were not arranged according to some thematic or didactic progression, but rather were ordered purely chronologically. Whether this meant that texts of later date were supposed to supersede or at least modify the interpretations in the earlier ones is unknown, but this seems unlikely in the absence of rules for use defined by formal imperial promulgation of the codes. In any case, if each code had a single controlling mind and, as we shall see in the case of the Hermogenianus, a single author, we might expect a tendency for the texts to represent a coherent viewpoint.

Hermogenian and his code

  • 60 See discussion at Corcoran 2004, p. 60-63.
  • 61 On Hermogenian, see Liebs 1964, 1987, p. 36-52, and most recently 2010, p. 85-86 ; Honoré 1994, p.  (...)
  • 62 AÉp 1987, 456 and Supplementa Italica, n.s. 8, Rome, 1991, p. 200-202 ; Chastagnol 1989. For his po (...)
  • 63 Barnes 2010, p. 314-316.
  • 64 Honoré 1994, p. 76-86, 190-191 ; Corcoran 2000a, p. 87 ; Liebs 2010, p. 62-64, 69-70, 174-175. For (...)

15In attempting to understand the genesis of the codes, we need to consider their compilers. Unfortunately, unlike the Theodosian and Justinian Codes, there are no introductory prefaces or constitutions for the Gregorianus or Hermogenianus to explain the compilers’ intentions.60 However, for the Hermogenian Code we can make a number of assumptions, which are not unreasonable and are even sometimes based on evidence. First, it would be incredible if the eponymous compiler of the code were not the same man as the contemporary jurist and author of the Iuris epitomae known from the Digest, as I have already presumed. Further, as exemplified by the detailed examinations comparing the texts of the Epitomae and the code rescripts as conducted by Liebs and Honoré, stylistic considerations suggest that the author was in both cases the same.61 Thus Hermogenian was not simply the compiler of rescripts into his code, but he must also have composed those rescripts himself, and he was therefore Diocletian’s magister libellorum. Further, epigraphic evidence first published in 1986 reveals him to have been Diocletian’s praetorian prefect at some point during the period of the First Tetrarchy,62 confirming previously uncertain although still unreliable martyr act evidence.63 It is no surprise that he should have become prefect after previously serving in the scrinia, since this is exactly what Papinian and Ulpian had done under the Severans.64

  • 65 Connolly, 2010, p. 40 suggests that Hermogenian intended the periodic collecting of future years’ o (...)
  • 66 Honoré 1994, p. 177-178 ; Corcoran 2000a, p. 80-82.
  • 67 Corcoran 2000a, p. 27-28 ; Corcoran 2006a, p. 44. For other interpretations, see Connolly 2010, p.  (...)

16Both the specific ascriptions of texts to the Hermogenian Code and the general pattern of rescripts surviving from this period suggest that he assembled the code out of the rescripts that he wrote in 293 and 294, taking them from archive versions or even his own copies, bearing the date of subscribing by Diocletian. Further, there is no explicit evidence that the few surviving letters and edicts of 293-294 were part of his code, despite the tendency of scholars automatically so to ascribe them. Thus the period covered was apparently deliberately chosen to encompass two years’ worth of legally relevant rescripts in a comprehensive manner.65 These start on 1st January 293, there being no private rescripts surviving for 292, and then continue until 30th December 294, followed by a gap until March 295. This span of time may represent the only two complete consular years of his period as magister. There is some slight stylistic evidence that he had already transferred to the court of Maximian as magister by March 295.66 What is not clear is whether the selection of rescripts was made retrospectively or if they were already being written with inclusion in the code in mind. The number of rescripts issued rises significantly towards the end of 294, but this need not denote Hermogenian hastening to fill out his material, but rather that there was a great mass of petitioners who preferred to await Diocletian’s arrival at Nicomedia for the winter rather than to chase the imperial comitatus across the Balkans.67 However, the length and clarity of Hermogenian’s rescripts may suggest that his audience was always intended to be more than the individual petitioner to whom each rescript is addressed.

  • 68 E.g. Cenderelli 1965, p. 143-145.

17Having identified and gathered his material, which was both easily definable and easily accessible, Hermogenian then sorted it according to the titles of the Praetor’s Edict and other suitable headings, which served as clarificatory lemmata, probably without additional editing or emendation of the texts. Some Hermogenianic texts quoted in the Consultatio show abbreviation (e.g. « inter cetera et ad locum », Cons. IV, 10 ; V, 6 ; VI, 12 and 15-19), but I take this as typical of the later author’s practice, picking out a choice passage from a longer rescript, and not as Hermogenian’s own indication of excerpting. As already noted, it is not clear how far beyond core civil law subjects he chose to go, nor whether the code commenced with titles on law or on persons as in the Iuris epitomae. No modern reconstruction allows for early titles on such topics.68 The use of Hermogenian’s own rescripts alone and the possible exclusion of edicts or letters will have kept criminal and especially administrative law material to a minimum.

  • 69 Hänel 1837, col. 65-67 and 1849, p. 450-451. See Corcoran 2006b, p. 47-48.
  • 70 See note 7 above. In 293 Diocletian and Maximian were consuls for, respectively, the fifth and four (...)
  • 71 For this text, which I dub CHV 3, see Hänel 1837, col. 68 ; Krüger 1890, p. 244-245.
  • 72 Both Corcoran 2000a, p. 95-96 and Connolly 2010, p. 80 attribute the curtailing of addressees names (...)

18How the code looked is, I think, preserved in that miserable fragment, the Visigothic Hermogenianus in the Breviary.69 This seems to represent best the original format or layout of the code, even though this only provides us with two texts out of some 2,000 original rescripts. Here, the two subscripts, matching what is also generally the case in the other sources, give the consulships without the emperors’ names or iterations as only Augustis or Caesaribus consulibus, which suggests that this was more than adequate to denote without ambiguity the only two relevant years for the code, 293 and 294.70 Even more significant, however, is the fact that both the texts, plus a third text found in just two manuscripts,71 have headings which name only the recipients. There is no mention of the emperors, usually the most prominent, not to say the most diplomatically important, feature of such texts. This implies that the emperors would otherwise have been the same throughout. Presumably the original code would have mentioned the emperors in its introductory material or opening title (whether or not indicating also the establishment of the tetrarchy and consequent change to the imperial college on 1st March 293). Finally, the recipients all have at least two names, so that the code (as seems also to have been the case with the Gregorianus) recorded the names of recipients quite fully, sometimes with a note of occupation (e.g. miles). These seem to have been reduced to a single name in the Justinian Code tradition, although not necessarily as originally recycled into that code, but probably only in later recopying.72

  • 73 On the possible purpose and audience of the Iuris epitomae, see Dovere 2011.
  • 74 On Modestinus and his career, see Honoré 1994, p. 104-107 ; Liebs 2010, p. 73 ; Dig. XLVII, 2, 52, (...)
  • 75 Inschr. Eph., II, no. 217 ; Marotta 2004, p. 37-100 ; Kantor 2009.
  • 76 For the third-century transformation, see for instance Marotta 2007b. On Ulpian : Honoré 2002 and S (...)
  • 77 Charisius : Lenel 1889, vol. I, col. 57-60 ; Honoré 1994, p. 156-162 ; Liebs 2010, p. 83-84 ; Piace (...)
  • 78 For a complete survey of the contemporary legal literature, see Liebs 1989.
  • 79 Discussed by Liebs 2005b, p. 41-128.
  • 80 Honoré 2002, p. 217-222. For reflections of the Gregorian Code in the Opiniones, see Liebs 2005a, p (...)

19Thus what Hermogenian produced was a book of his own responsa, if hidden behind an imperial mask. The code is essentially a juristic work in shape and content, except perhaps in its use of chronological arrangement for rescripts. Possibly Hermogenian meant it to be used in conjunction with his Iuris epitomae, since they cannot have been published far apart in time, although the exact sequence and timing of the two works is not clear.73 Even so, he was acknowledging that the framing and interpretation of law must now principally come via the mouths of emperors. The emperor’s opinion or ruling trumped almost everything else, and rescripts indeed had been much in demand throughout the third century. The Severan jurists had served the emperors, composing rescripts for them, but also writing their own extensive works. After Modestinus (fl. 210s/230s), however, new generations of jurists did not acquire fully independent auctoritas and become largely invisible.74 Yet the earlier jurists and their existing writings maintained their status. The proconsul of Asia, probably in the tetrarchic period, asked the people of Ephesus to bring forward texts in support of their claims, including not only senatus consulta and imperial rescripts, but also the De officio proconsulis of Ulpian.75 Indeed, Ulpian’s voluminous writings appear almost as a “codification”, lending themselves to canonisation, as part of a process leading to an eclipse of new juristic writing.76 Both Hermogenian and Arcadius Charisius did indeed write their own treatises,77 but these were smaller and less ambitious than those of their Severan predecessors. And in the immediately succeeding period, when new juristic works were compiled in the early fourth century, these were either chains of imperial rescripts and quotations from the old jurists (Fragmenta Vaticana), or else up-dated pastiches masquerading as the work of former times.78 Indeed it was by this means that pseudonymous works like the Sententiae of Paul (explicitly endorsed by Constantine : CTh I, 2, 4)79 and the Opiniones of Ulpian80 entered the juristic canon. Hermogenian therefore stands at the end of the line of jurists who could claim independent status, but was also in part concealed behind the imperial purple, even though the code bore his name. Leges had ceased, senatus consulta were no longer of importance, and now even new juristic writings could not compete with, but were subsumed by, what had become a virtual imperial monopoly of authoritative legal pronouncement and interpretation.

  • 81 Honoré 1994, p. 177 and 182 ; Varvaro 2004 ; Corcoran 2006b, p. 41, 48 and 60 ; Connolly 2010, p. 3 (...)

20The fact that Hermogenian was an imperial official makes the production of his code seem part of imperial legal policy. Diocletian can hardly have been unaware of what was afoot, and the production of a work that was « wall-to-wall » tetrarchs, even if not imperially named (thus neither Codex Diocletianus nor Codex Iovius), looks temptingly like a project of the new tetrarchic order.81 As already said, Hermogenian may have gone west in 295 to serve Maximian, and perhaps produced his code at Milan. Of course, he may have published later as praetorian prefect in the east, or during a period of otium in between bouts of office-holding.

Gregorius and his code

  • 82 Thus Liebs 1987, p. 30 (Gregorius) versus Sperandio 2005, p. 209-214 (Gregorianus).
  • 83 Gregorius occurs almost 40 times in PLRE vols I–III. There are occurrences also in the following : (...)
  • 84 Note especially CTh I, 4, 3, int. (= Brev. I, 4, 1, int.) ; Sperandio 2005, p. 209-218.
  • 85 Honoré 1994, p. 152-155, identifying his magistri nos. 17 and 18 as one man ; Corcoran 2000a, p. 30 (...)
  • 86 Corcoran 2009, p. 417 ; but still considered possible by Liebs 2010, p. 80-81.
  • 87 For overviews of Gregorius’s possible palatine career, see Liebs 1987, p. 30-35, and 2010, p. 81-83 (...)

21For the compiler of the Gregorianus, however, we have absolutely no information whatsoever beyond the mere fact that the code should reflect his name. Even here it is not clear whether this was Gregorius or Gregorianus.82 However, the former is well attested as a name in antiquity, the latter apparently not at all.83 Several later legal sources, which refer simply to Gregorianus, seem to regard this as the name of a person, not a work,84 but that may be retrospective misinterpretation, perhaps by analogy with Hermogenian. A rather different analogy with Hermogenian is drawn by some modern scholars. This would make Gregorius likewise an imperial official, perhaps the anonymous magister libellorum of 285-290 according to Honoré’s stylistic fasti of office-holders.85 However, the idea that he came from the west, serving first Carinus and then passing over to Diocletian should now be rejected following the publication of previously missing Justinian Code subscripts in two folios from the Biblioteca Vallicelliana (Carte Vallicelliane XII, 3), one of which redates a crucial text from January to December 285 (CJ VII, 64, 7).86 After holding office, Gregorius could then have travelled to search the archives in Rome during the Milan conference of Diocletian and Maximian in 290/1, publishing his code shortly thereafter, including at least some western rescripts of Maximian, and perhaps going on to be magister epistularum and magister memoriae.87

  • 88 E.g. the letters to Crispinus governor of Phoenicia (CJ I, 23, 3 ; VII, 35, 4 ; IX, 2, 11 ; IX, 9, (...)
  • 89 Mommsen 1901.
  • 90 Corcoran 2000a, p. 35 and 90. The one certain provenance of a Second Tetrarchy text is CJ III, 12, (...)
  • 91 Sperandio 2005, p. 197-206 ; Corcoran 2008b, p. 297. For the confusions of such headings in the cod (...)

22The earlier view of Mommsen placed importance upon the Syrian or eastern origin of key texts.88 Thereby the conclusion was drawn that Gregorius was a law-professor at Beirut, whose code could have been published in that city,89 where perhaps a revised edition also was prepared under the Second Tetrarchy.90 Further, the prevalence of posting dates in the subscripts may indicate lack of privileged access to the imperial archives, although, as noted above, the pattern is not entirely consistent and the subscripts may have undergone later editing. Similar but more clearly indicative is the number of Diocletianic letters described as exemplum sacrarum litterarum, often without dates, which should imply copying from publicly circulated and displayed pronouncements.91

  • 92 Collinet 1925, p. 16-30 ; Hall 2004, p. 203-206.
  • 93 Thus Liebs 1987, p. 36-37 stresses an eastern background for Hermogenian, based on some Greek featu (...)
  • 94 Liebs 1987, p. 30-35 ; Honoré 1994, p. 155. On the imperial archives, see Varvaro 2007 ; cf. Connol (...)
  • 95 Honoré 1994, p. 151-152 ; Corcoran 2000a, p. 30-31.

23Of course, there is no reason why we should see the bureaucrat and the professor as mutually exclusive categories. Early in the century, in the 200s or 220s, a man with expertise in law could teach, practise, issue responsa, write legal works, sit as an assessor to a magistrate or even in the imperial consilium, and hold office - all in Rome, which was in addition still the chief imperial residence, the seat of the Senate, and locus for the urban praetor. This focus had been lost in the chaos of the third century and was not re-established under the peripatetic tetrarchs. But Beirut had during the century emerged as a formal centre of law teaching.92 Indeed Diocletian gave its students special immunities for the duration of their studies (CJ X, 50, 1). That he would choose leading jurists from there to serve him, as might even be the case with Hermogenian,93 or that his palatine secretaries might go there on leaving office is entirely believable. Indeed, if not his original heimat, Beirut may have become Gregorius’s later locus. It makes an attractive base, if we suppose that it is the one fixed place, where there might have been an increasing treasure-house of material, the result of interested law teachers and practitioners eagerly copying down rescripts publicly posted all over the empire, and then gradually brought to Beirut, either as collections in themselves or embedded in commentaries and other legal works. Imperial texts had become so totemically powerful that people copied them whenever and wherever they could, as witness the numerous texts of Severus and Caracalla deriving from their visit to Egypt (as noted above). The use of rescripts in the Fragmenta Vaticana also suggests the existence of some non-Gregorian collections of similar material. Unfortunately, the pre-Diocletianic rescripts as they survive very seldom carry a place of posting, so that it is difficult to have a clear idea of where texts may have originally been collected. If Gregorius had some imperial sanction for his project, however, then access to the imperial archives, not just in Nicomedia, Diocletian’s favourite city, but also in Rome for the earlier third-century material would be possible.94 We do not know for how long emperors, with increasingly extended absences from Rome, continued to haul back all their paperwork to the city for central storage. However, even if documents were not already being left behind by roving emperors at temporary residences all over the empire in the mid-third century, deposits of archival material probably started to accrue at the more stable tetrarchic capitals from the 280s and could well explain the uneven survival of rescripts in the code. For instance, are the years 288 and 289 largely blank in terms of rescripts because they were stored perhaps in Sirmium, and Gregorius never had time for a proper research visit there ?95

The purposes of the codes

  • 96 E.g. CTh I, 2, 11. See the discussion by Sirks 2007, p. 24-27.
  • 97 Thus Corcoran 2000a, p. 295 imagined this scenario : « Governors could now undertake the task of ad (...)
  • 98 See variously Corcoran 2000a, p. 41-42 and 2004, p. 58 ; Millar 1999 ; Garnsey 2004 ; Humfress 2011 (...)

24Irrespective of whether Gregorius was working in the environment of the imperial court and held palatine posts, it is very tempting to see him and Hermogenian as a pair, with their projects interrelated in some way, whether either or both were acting in an official, semi-official or private capacity. Surely one of the codes at least must have been a response to the other in some fashion. Certainly the 290s witnessed the largest ever collecting and collating of rescripts, and nothing like this was done again on this scale. Rescripts were excluded from his code by Theodosius II.96 One key factor underlying the compilations, whether motivating Diocletian himself or the two compilers, could be the fall-out from the Constitutio Antoniniana. This had created an empire of Roman citizens largely ignorant of Roman legal norms. Certainly many of the Diocletianic rescripts (some composed by Gregorius the magister ?) are seen as being emphatically even chauvinistically Roman (note 45 above), as the Latin-speaking imperial court took root permanently in the east where citizens were not in the majority until after 212. If either code were imperially sponsored, it could have been intended to inform imperfect citizens, even while furnishing a reference-collection for officials at court and providing provincial governors with guidance.97 Further, it was also only after 212 that the law school at Beirut grew and flourished, and one or other of the codes may have been primarily intended to serve a didactic purpose there, to say nothing of their usefulness for practising lawyers. Yet the « codification » process need not be seen only as one of emperors and their palatine lawyers, or even law-professors, trying to force or facilitate people to be Roman, but also as a response to the pressure from citizens eager to use the law to help them win cases, seeing the legal system not as imposing constraint but furnishing opportunity.98 In none of these scenarios, however, do we need to see « codification » in the modern sense of a comprehensive and definitive bounding of the law. The coverage of topics, following earlier juristic models, was not particularly innovative, even if the format was, and neither severally nor jointly could the codes serve as the sole repository of useful or valid legal knowledge. We are still a long way from Justinian.

The interrelationship between and « editions » of the codes

  • 99 Sedulius, Opus Paschale : Epistula ad Macedonium altera, rev. ed., Vienna, 2007 (CSEL X), p. 172-17 (...)
  • 100 Green 2006, p. 159-160.
  • 101 See Corcoran 2008a.
  • 102 Co77 and 182 ; Varva2 n. 2 n. 4he recip;
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        Notes

        1 When I spoke in Rome, I alluded to these as the « Cambridge Fragments », but, after finally taking temporary custody of the fragments in November 2009, learning more of their history and studying them, Benet Salway and I decided to name them the Fragmenta Londiniensia Anteiustiniana. Some of our findings are incorporated into this paper. See further Corcoran – Salway 2010 and 2012. Information can also be found at http ://www.ucl.ac.uk/history2/volterra/texts/fla.htm.

        2 Hänel 1849, p. 444-451. For a summary of the other works which explicitly quote the codes or implicitly reflect their use, see Liebs 2002, p. 100-101 and 2005a, p. 40-41.

        3 C. Haec pr. (528), C. Summa 1 (529) [Krüger 1877, p. 1 and 3] ; cf. the Greek version of C. Imperatoriam maiestatem 2 (J.H.A. Lokin et al. 2010, p. 950-951).

        4 Only one Gregorian text is preserved in a non-legal source : Augustine, de coniugiis adulterinis II, 7 (Hänel 1837, col. 42-43 ; Krüger 1890, p. 241 ; de Churruca 1995).

        5 Hänel 1837 is the most recent full text version, although Karampoula 2008, p. 194-251 and 255-317 offers modern Greek translations. Other versions give Book and title skeletons, sometimes with selective texts : Krüger 1890, p. 236-245 ; Rotondi 1922, p. 154-158 ; Scherillo 1934 ; Cenderelli 1965, p. 143-181 ; Sperandio 2005, p. 389-395.

        6 See Corcoran 2000a, p. 299-301 ; cf. p. 26 for the chronological shape of Diocletianic rescripts in the Justinian Code.

        7 The dating of constitutions, both within and without the Justinian Code, by the bare and uniterated consulships, AA conss. and CC conss., has long been recognized as denoting only 293 and 294 respectively and deriving from the Hermogenian Code. See Mommsen 1860 ; Barnes 1982, p. 52-54 ; Corcoran 2000a, p. 26-27 and 2006b, p. 46-47.

        8 CJ III, 1, 8 ; VI, 1, 3 ; VII, 16, 41 ; VII, 22, 3. See Corcoran 2000a, p. 36 and 280 and 2010, p. 105-106. Since the memory of Licinius was condemned at CTh 15, 14, 1 it would be odd for him to have been retained in Theodosian Code headings.

        9 For the rescript system, see Honoré 1994, ch. 2 ; Corcoran 2000a, ch. 3 ; Sirks 2001 ; Connolly 2010, ch. 2.

        10 Corcoran 2000a, p. 54-57.

        11 A classic example is adrogation by a woman, allowed exceptionally by Diocletian, when confirmed by an imperial adnotatio (CJ VIII, 47, 5), but in practice serving as a precedent (Justinian, Institutes I, 11, 10). See Corcoran 2000a, p. 52-53 ; Mathisen 2002.

        12 Corcoran 2000a, p. 127-128 (CJ I, 23, 3 ; VII, 35, 4 ; IX, 2, 11 ; X, 10, 1).

        13 Corcoran 2000a, p. 28, but note p. 300, where this feature is less obvious in the explicit Hermogenian ascriptions. The perceived pattern may be the result of later editorial interventions. See Sperandio 2005, p. 149-159 ; cf. also Connolly 2010, p. 44-45.

        14 This section depends upon discussions in Sperandio 2001, 2007 and 2005, p. 307-325.

        15 Thus for Ulpian’s Ad Sabinum in the Scholia Sinaitica IX, 22 ; XI, 30 ; XII, 34 ; XIII, 35 ; XV, 40 ; XVI, 43.

        16 Ammirati 2010, p. 59-60, 79-80.

        17 Usage of terms may have differed between east and west (Liebs 1987, p. 136 and 138).

        18 The Fragmenta Londiniensia Anteiustiniana (5th C.) seem to show title and constitution numbers added by a later hand (Corcoran – Salway 2012, p. 67, 71). The titles of the First Edition of the Justinian Code were probably numerated from the start (as in P. Oxy. XV, 1814).

        19 Dovere 2005.

        20 Stein 1983 ; Marotta 2007a. The fragments of Ulpian’s Institutes Book I are gathered at Lenel 1889, vol. II, col. 926-928.

        21 Corcoran 2004, p. 60-63. There could have been something general on civil jurisdiction, following the manner of Edictum Perpetuum I, 1 (Bruns, Fontes, p. 212-213) ; Cenderelli 1965, p. 143 ; Grelle 2001, p. 331 [= 2005, p. 485].

        22 Scherillo 1934, p. 307 [= 1992, p. 316].

        23 Lenel 1889, vol. I, col. 934-946 (Books XII-XIX) ; Scherillo 1934, p. 315-320 [= 1992, p. 323-328].

        24 CHV 3 (Krüger 1890, p. 244-245 ; Cenderelli 1965, p. 180) ; Digest XLIX, 14, 46 ; Liebs 1964, p. 129-130. The equivalent Justinian Code title includes four or five Gregorian-derived constitutions (CJ X, 1, 1-5). Note also Gregorian influence on the Fragmentum de iure fisci (Liebs 2005a, p. 32 and 41). For civic obligations (civilia munera) and municipal law in the Gregorianus, see Grelle 2001, 2002 and 2009.

        25 The title ad legem Corneliam de sicariis et veneficis is attributed to Book IIII, emended to XIIII (Coll. I, 8) ; de accusationibus to Book XVIIII, emended to XIIII (Coll. III, 4) ; de maleficis et Manichaeis to Book VI or VII, also emended to XIIII (Coll. XV, 3). For the manuscript evidence, see Hyamson 1913, p. 176, 188 and 241 ; Frakes 2011, p. 248, 257 and 301-302. For Book XIV proposed as that containing criminal law, see Hänel 1837, p. 42-48 ; Rotondi 1922, p. 167 ; Scherillo 1934, p. 257, 305 [= 1992, p. 270-271, 315], and Karampoula 2008, p. 246-250. See also Sperandio 2005, p. 370-375 for a judicious discussion of what might or might not have belonged in such a book.

        26 Thus equivalent criminal law is placed in the last Book of the contemporaneous Pauli Sententiae (V, 21 : de vaticinatoribus et mathematicis ; V, 23 : ad legem Corneliam de sicariis et veneficis). See Liebs 2005b, p. 111-113. The Justinian Code followed the Theodosian in placing criminal law in Book Nine, in neither work this being the final book, since much public law followed (Scherillo 1934, p. 257-258, 270-277 [= 1992, p. 270-271, 282-289]).

        27 Cenderelli 1965, p. 177-181.

        28 Rotondi 1922, p. 168-169 ; Sperandio 2005, p. 370-375 and 392-395 ; Karampoula 2008, p. 246-251. Scherillo 1934, p. 305-307 [= 1992, p. 315-316] prefers sixteen books. Book XIII is explicitly attested by the Breviary (CGV XIII, 14, 1) and several Fragmenta Vaticana scholia (Frag. Vat. 266a, 272, 285, 288). For the Collatio evidence for Book XIV, see note 25 above.

        29 For CH, see Cenderelli 1965, p. 145-148 and Karampoula 2008, p. 263-272 ; note especially Consultatio VI, 19. For CG, see Krüger 1890, p. 236-237 and Karampoula 2008, p. 194-207.

        30 Harries 1998. On Book V, see Jaillette et al. 2009, p. 103-119.

        31 For the reconstruction of the first five books, see the helpful analysis in Matthews 2000, p. 101-118.

        32 On the issues regarding the structure of the Gregorianus, see Sperandio 2005, p. 301-375.

        33 Scherillo 1934, p. 253, 277, 293 [= 1992, p. 267, 289-290, 304], who argues that CTh followed the spunti of the earlier codes. For discussion of Scherillo especially in relation to Rotondi, see Sperandio 2005, p. 342-370.

        34 Rotondi 1922, p. 146-185 ; Giomaro 2001 (concentrating on the Theodosian influence).

        35 Thus CG I, 10, de pactis (or de transactionibus) (Consultatio IX, 17) matches CJ II, 3, de pactis or II, 4, de transactionibus ; cf. CTh II, 9, de pactis et transactionibus ; Scherillo 1934, p. 254, 260-261 [= 1992, p. 268, 274].

        36 The relocation of the ecclesiastical material to the opening of Book I was one of the key changes made in Justinian’s Code, present already in the First Edition of 529 (Corcoran 2008a, p. 91-92).

        37 Most of CJ VII, 62, 12-31 is drawn from CTh XI, 30. See Giomaro 2001, p. 421-422 ; cf. p. 312-313.

        38 The overlapping texts are CJ VII, 62, 3-4 and 7 (Corcoran – Salway 2012, p. 82-83).

        39 For CJ VII, 62 and equivalent material on appeals assigned to a putative Book XV : Krüger 1890, p. 242 ; Scherillo 1934, p. 303 and 307 [= 1992, p. 313 and 316] ; Rotondi 1922, p. 165 remained agnostic). For res iudicata assigned to Book X : Rotondi 1922, p. 165 ; Scherillo 1934, p. 303 [= 1992, p. 313] ; Sperandio 2005, p. 328.

        40 Sperandio 2005, p. 362-366 ; cf. Cenderelli 1965, p. 170 ; Lenel 1889, vol. I, col. 274 (Bk V of the Iuris epitomae). For the edict on appeals, see CJ III, 11, 1 ; III, 3, 2 ; VII, 53, 8 ; VII, 62, 6 (Corcoran 2000a, p. 171-172), identified also as that cited in CJ VII, 16, 40 (Talamanca 2009).

        41 The Gregorian title is inferred from the partial rubric in the London fragments, but seems plausible (Corcoran – Salway 2012, p. 73-74).

        42 Unfortunately, although there are verbal echoes of CJ VII, 62, 6 in the London fragments, there is no conclusive overlap.

        43 Lactantius, Div. Inst. V, 11, 18-19 ; Lenel 1889, vol. II, col. 975 ; Marotta 2004, p. 80-87 ; Nogrady 2006, p. 40-75.

        44 For Christianity as a lawful religion from the time of Gallienus (AD260) onwards, see Barnes 2010, p. 97-105.

        45 That is, if there is truth in the speculative idea that he is also Diocletian’s magister libellorum of 285-290. See Honoré 1994, p. 154-155 ; Corcoran 2000a, p. 173 and 345, and 2000b, p. 8-9 ; Liebs 2010, p. 82.

        46 Barnes 1976, p. 239-252 ; Digeser 2000, ch. 4 ; Smith 2009 ; Kahlos 2009, p. 38-46 ; now most recently Digeser 2012, in which the attack upon Christianity arises in part from the disputes between Porphyry and Iamblichus.

        47 Liebs 2005b, p. 85-88. Note that Constantine had no problem in approving its authenticity only a couple of decades later (CTh I, 4, 2).

        48 Thus Collatio XV, 3 ; Ambrosiaster, Ad Tim. II 3, 7 (CSEL LXXXI/3, p. 312) ; Valentinian III, Nov. 18, pr. See also Gardner – Lieu, 2004, p. 116-119. Note that the rescript may also be reflected in Pauli Sententiae, V, 21, 2 (Liebs 2005b, p. 103-104). See also the discussion at Shaw 2011, p. 315-322.

        49 Note, however, Collatio III, 3, 6 and XIII, 3, 1 (both from Ulpian, De officio proconsulis) ; X, 9, 1 (Paul, Responsa). For jurists’ access to imperial texts, see the discussion in Varvaro 2007. Note that if the imperial archives were used as a direct source, texts may already have been in chronological order (Connolly 2010, p. 39-40).

        50 Lenel 1889, vol. I, col. 947-952 ; Gualandi 1963, vol. I, p. 428-431 ; Volterra 1968.

        51 For the Severan material, see Oliver 1989, nos. 220-243 (some additions noted at Anastasiadis - Souris 2000, p. 8, 10 and 12), although the list of texts continues to grow (e.g. P. Oxy. LX, 4068 ; P. Oxy. LXXVII, 5114 ; Sammelbuch XXVI, 16787).

        52 Migliardi Zingale 2007.

        53 P. Oxy. XII, 1407. This employs both Roman and Egyptian dating formulae.

        54 Sperandio 2005, p. 101-106. Note that mention of the Gregorian and Hermogenian Codes in the Frag. Vat. (266a, 270, 272, 285, 286, 288) are later scholia giving cross-references, not a sign that the original author used either code. See de Filippi 1998, p. 24-25 ; also Sperandio 2005, p. 115-124.

        55 On the Fragmenta, see de Filippi 1998 ; Felgenträger 1935.

        56 For the most recent analysis, see Zanon 2009.

        57 Collatio X, 3-6.

        58 CGV III, 6, 1-5 ; III, 7, 1-2 ; III, 8. 1-2 ; IV, 11, 1-2 ; IV, 12, 1-2. The two rescripts of CGV II, 4, 1-2 carry the same date.

        59 The sequence is reconstructed thus : a rescript of Caracalla, followed by three of Gordian III, then one of Philip and another of Philip and his son, possibly followed by one of Diocletian and his First Tetrarchy colleagues. See Corcoran - Salway 2012, p. 68-69 and 79.

        60 See discussion at Corcoran 2004, p. 60-63.

        61 On Hermogenian, see Liebs 1964, 1987, p. 36-52, and most recently 2010, p. 85-86 ; Honoré 1994, p. 163-181 ; Corcoran 2000a, p. 85-90 ; Dovere 2005, p. 3-39.

        62 AÉp 1987, 456 and Supplementa Italica, n.s. 8, Rome, 1991, p. 200-202 ; Chastagnol 1989. For his possible later career, see Salway 2006, p. 129-131.

        63 Barnes 2010, p. 314-316.

        64 Honoré 1994, p. 76-86, 190-191 ; Corcoran 2000a, p. 87 ; Liebs 2010, p. 62-64, 69-70, 174-175. For detailed analysis of Severan palatine careers, see Coriat 1997, p. 250-273.

        65 Connolly, 2010, p. 40 suggests that Hermogenian intended the periodic collecting of future years’ output, but given the brevity of most office-holding, such a long-term plan does not seem realistic.

        66 Honoré 1994, p. 177-178 ; Corcoran 2000a, p. 80-82.

        67 Corcoran 2000a, p. 27-28 ; Corcoran 2006a, p. 44. For other interpretations, see Connolly 2010, p. 59-61, 83-97, assessing in particular how “local” petitioners might have been.

        68 E.g. Cenderelli 1965, p. 143-145.

        69 Hänel 1837, col. 65-67 and 1849, p. 450-451. See Corcoran 2006b, p. 47-48.

        70 See note 7 above. In 293 Diocletian and Maximian were consuls for, respectively, the fifth and fourth times and in 294, Constantius and Galerius were consuls each for the first time (Bagnall et al. 1987, p. 120-123).

        71 For this text, which I dub CHV 3, see Hänel 1837, col. 68 ; Krüger 1890, p. 244-245.

        72 Both Corcoran 2000a, p. 95-96 and Connolly 2010, p. 80 attribute the curtailing of addressees names to Justinian’s commissioners, but the paucity of early manuscript witnesses makes it difficult to be certain. Of Justinian Code manuscripts, only the Summa Perusina routinely preserves more than one name, but even then confined mostly to the second half of Book IV between titles 31 and 65 (Patetta 1900, p. 113-135). The best discussion of the problem is still Krüger 1877, p. xv-xvi ; cf. Rotondi 1922, p. 242, 268-283 ; Corcoran 2008a, p. 89. Note that Matthews 2000, p. 219-221 suggests that the Theodosian commissioners followed the constraints of their sources in regard to names.

        73 On the possible purpose and audience of the Iuris epitomae, see Dovere 2011.

        74 On Modestinus and his career, see Honoré 1994, p. 104-107 ; Liebs 2010, p. 73 ; Dig. XLVII, 2, 52, 20 ; CJ III, 42, 5 ; FIRA2 III, 165 ; cf. his almost exact contemporary, Licinius Rufinus (Millar 1999 ; Liebs 2010, p. 70-72). Only some minor figures may be assignable to mid-century (Kunkel 1967, p. 261-263).

        75 Inschr. Eph., II, no. 217 ; Marotta 2004, p. 37-100 ; Kantor 2009.

        76 For the third-century transformation, see for instance Marotta 2007b. On Ulpian : Honoré 2002 and Schiavone 2012, chs. 20-22.

        77 Charisius : Lenel 1889, vol. I, col. 57-60 ; Honoré 1994, p. 156-162 ; Liebs 2010, p. 83-84 ; Piacente 2012.

        78 For a complete survey of the contemporary legal literature, see Liebs 1989.

        79 Discussed by Liebs 2005b, p. 41-128.

        80 Honoré 2002, p. 217-222. For reflections of the Gregorian Code in the Opiniones, see Liebs 2005a, p. 32.

        81 Honoré 1994, p. 177 and 182 ; Varvaro 2004 ; Corcoran 2006b, p. 41, 48 and 60 ; Connolly 2010, p. 39-41.

        82 Thus Liebs 1987, p. 30 (Gregorius) versus Sperandio 2005, p. 209-214 (Gregorianus).

        83 Gregorius occurs almost 40 times in PLRE vols I–III. There are occurrences also in the following : PC I, II and III ; LGPN vols I, IIIA, IIIB, IV and VA ; and Solin 2003. Gregorianus is unattested in any of these volumes, and only appears in the electronic Thesaurus Linguae Graecae in relation to the code. Note a Gregorius as recipient of rescripts at CJ I, 22, 1 and VIII, 50, 9.

        84 Note especially CTh I, 4, 3, int. (= Brev. I, 4, 1, int.) ; Sperandio 2005, p. 209-218.

        85 Honoré 1994, p. 152-155, identifying his magistri nos. 17 and 18 as one man ; Corcoran 2000a, p. 30 n. 38 favours a continuous period in office. For Gregorius as a chauvinistically Roman palatine magister, see note 45 above.

        86 Corcoran 2009, p. 417 ; but still considered possible by Liebs 2010, p. 80-81.

        87 For overviews of Gregorius’s possible palatine career, see Liebs 1987, p. 30-35, and 2010, p. 81-83 ; Honoré 1994, p. 148-155 ; Corcoran 2000a, p. 90 ; for scepticism, see Sperandio 2005, p. 215-218.

        88 E.g. the letters to Crispinus governor of Phoenicia (CJ I, 23, 3 ; VII, 35, 4 ; IX, 2, 11 ; IX, 9, 25) ; also the Damascus incest edict and the Manichees rescript from Alexandria (Coll. VI, 4 and XV, 3). Note, however, that Barnes 2005 argues for emending Damascus to Demessus, near the Danube, reversing my earlier attempt to emend Demessus to Damascus at CJ II, 12, 20 (Corcoran 2000a, p. 131 and 271, and 2010, p. 118 n. 124).

        89 Mommsen 1901.

        90 Corcoran 2000a, p. 35 and 90. The one certain provenance of a Second Tetrarchy text is CJ III, 12, 1 (Maximinus Caesar at Edfu ; Barnes 1982, p. 66).

        91 Sperandio 2005, p. 197-206 ; Corcoran 2008b, p. 297. For the confusions of such headings in the codes, see also Talamanca 2009, p. 1322-1326.

        92 Collinet 1925, p. 16-30 ; Hall 2004, p. 203-206.

        93 Thus Liebs 1987, p. 36-37 stresses an eastern background for Hermogenian, based on some Greek features of his writing, and places him in Phoenicia in 292 before his period as magister.

        94 Liebs 1987, p. 30-35 ; Honoré 1994, p. 155. On the imperial archives, see Varvaro 2007 ; cf. Connolly 2010, 39-40. The devastating fire of 192 at Rome is often thought to have destroyed the pre-Severan records. Note Galen’s recently discovered treatise Avoiding Distress, describing the fire and his losses (Boudon-Millot – Jouanna 2010). Cf. Dio Cassius LXXII, 24, 1-3.

        95 Honoré 1994, p. 151-152 ; Corcoran 2000a, p. 30-31.

        96 E.g. CTh I, 2, 11. See the discussion by Sirks 2007, p. 24-27.

        97 Thus Corcoran 2000a, p. 295 imagined this scenario : « Governors could now undertake the task of administration and justice in their smaller provinces with the codes clutched in one hand and a sheaf of imperial letters … in the other.» ; cf. Connolly, 2010, p. 40. Note also Dovere 2011 on the purpose of the Iuris epitomae.

        98 See variously Corcoran 2000a, p. 41-42 and 2004, p. 58 ; Millar 1999 ; Garnsey 2004 ; Humfress 2011, p. 36-37.

        99 Sedulius, Opus Paschale : Epistula ad Macedonium altera, rev. ed., Vienna, 2007 (CSEL X), p. 172-173. Extensively discussed by Sperandio 2005, p. 239-254 and Dovere 2005, p. 17-32.

        100 Green 2006, p. 159-160.

        101 See Corcoran 2008a.

        102 Corcoran 2006b, p. 42 n. 25.

        103 Corcoran 2000a, p. 32-37 and 89-90.

        104 Thus Corcoran 2004, p. 63-64.

        105 Thus the Gregorianus comes before the Hermogenianus in the Breviary and is mentioned first at CTh I, 1, 5 ; CTh I, 4, 3, int.Brev. I, 4, 1, int. l ; Lex Romana Burgundionum XXIII, 2 ; XXXVIII, 3 ; C. Haec pr. ; C. Summa 1 ; C. Imperatoriam Maiestatem (Greek version) 2 (Lokin et al. 2010, p. 950). The only reverse order I can find is at Basilica Scholia XI, 2(CA), 35, 3 (Scheltema 1953, p. 409).

        106 Collatio XV, 3, dated 31st March at Alexandria, year lacking, to Julianus, proconsul of Africa. The year 297 is widely favoured, especially as the hostility displayed towards Persia seems to fit the period of warfare between the two empires. However, despite the earlier date being slightly better in relation to the preferred publication date of the Gregorianus, I still agree with Barnes (Corcoran, 2000a, p. 135) that the year 302 is historically preferable on the grounds of prosopography, in consideration of the crowded fasti for both the proconsuls of Africa and the urban prefects (Barnes 1976, p. 247-250 ; 1982, p. 111 and 169 ; 2010, p. 386), and of Diocletian’s plausible movements (Barnes 1976, p. 249 ; 1982, p. 55). Note that a new epigram of Palladas appears to confirm that Diocletian only visited Egypt twice (Wilkinson 2012, p. 58-59 and 86-87 and 162-163). It is, however, just about possible that Aelius Helvius Dionysius was proconsul 297-301, not 296-300, leaving 296/7 for Julianus (Bruce 1983, p. 338-340).

        107 Sperandio 2005 p. 251-252, 287-299 and 384 favours some time shortly after 295.

        108 Most recently discussed by Sperandio 2005, p. 164-166.

        109 Gaudemet 1965, p. 36-37 ; Lambertini 1990, p. 83-87 ; Matthews 2001, p. 15 ; Bianchi 2007, p. 16, 120.

        110 Note that Sperandio 2005, p. 254-276 argues against the idea of a Beirut antecessorial edition. Some divergences could also be original to the codes. It is possible indeed, that the teaching and copying practices of the law-schools helped to keep the text of the codes relatively stable.

        111 Gesta Senatus, 5, nos. 19-20. See Matthews 2000, p. 52-53 and Atzeri 2008, p. 221-234.

        112 Thus some duplicate variant rescripts might have entered the Gregorianus from different sources, rather than through later corruption and editing.

        113 Schol. Sin. V, 10 and XIX, 52. See Sperandio 2005, p. 252-253.

        114 Consultatio IX, 1-7. See Volterra 1982 ; Zanon 2009, p. 195-197.

        115 He quotes all the five jurists later included in the Law of Citations (Gaius, Modestinus, Papinian, Paul, Ulpian), but no others.

        116 Collatio V, 3 ; cf. CTh IX, 7, 6.

        117 Fontes Iuris Romani Anteiustiniani2 III, no. 101 ; rev. ed. P. Col. VII, 175 = Sammelbuch XVI, 12692. Its authenticity may, of course, have been demonstrated in a missing part of the legal proceedings.

        118 P. Amherst II 27 (= Corpus Papyrorum Latinarum no. 244 ; Codices Latini Antiquiores suppl. 1802) ; now Pierpont Morgan Library Papyri G27.

        119 The first two words of what is now CJ IV, 30, 4 are quoted in Latin. See P. Berol. Inv. 16976/7 ; Schubart 1945 ; Schönbauer 1953. Suitably both Rotondi 1922, p. 160-161 and Scherillo 1934, p. 297-298, 307 [= 1992, p. 307-309, 316] attribute material from CJ IV, 1-33 to CG III.

        120 As is plausibly done by both Cenderelli 1965, p. 170 and Connolly 2010, p. 199.

        121 Corcoran – Salway 2012, p. 76-79 noting also that attribution to the tetrarchs in CJ manuscripts is not unanimous.

        122 For a preliminary account of the Fragmenta, see Corcoran – Salway 2012.

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        Simon Corcoran, « The Gregorianus and Hermogenianus assembled and shattered », Mélanges de l'École française de Rome - Antiquité [En ligne], 125-2 | 2013, mis en ligne le 19 décembre 2013, consulté le 18 décembre 2017. URL : http://journals.openedition.org/mefra/1772 ; DOI : 10.4000/mefra.1772

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        Simon Corcoran

        University College London – s.corcoran[at]ucl.ac.uk

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