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INSTITUTIONES, A student beginning the study of law was instituted in the subject (institui); i.e. he went through an elementary course of legal instruction under the direction of a competent lawyer. (For an account of Roman legal education, see Bremer, Die Rechts-schulen, u.s.w.) Such introductory study naturally led to the publication of law books of an educational kind, which were called Institutiones. There were various institutional works written by the Roman jurists. Thus Callistratus, who lived under Septimius Severus and Antoninus Caracalla, wrote three books of Institutes. Aelius Marcianus wrote sixteen books of Institutes, under Caracalla, or shortly afterwards. Florentinus, who probably lived in the time of the Antonines, wrote twelve books of Institutes, from which there are forty-two excerpts in the Digest. Paulus also wrote two books of Institutiones. There still remain fragments of the Institutions of Ulpian (see facsimile in Böcking's edition of Ulpian).

But the most important treatise of this kind that we know of was the Institutes of Gaius, in four books or commentaries. They were formerly only known from a few excerpts in the Digest, from the epitome of Gaius contained in the Breviarium of Alaric II. the Visigoth, from the Collatio, and a few quotations in the commentary of Boethius on the Topica of Cicero, and in Priscian. The MS. of Gaius was discovered in the library of the chapter of Verona, by Niebuhr, in 1816. It was first copied by Goeschen and Bethmann-Hollweg, and an edition was published by Goeschen in 1820. The deciphering of the MS. was a work of great labour, as it is a palimpsest, the writing. on which has been washed out, and in some places erased with a knife, in order to adapt the parchment for the purposes of the transcriber. The parchment, after being thus treated, was used by transcribing upon it some works of Jerome, chiefly his Epistles. The old writing was so obscure that it could only be seen by applying to it an infusion of gall-nuts. A fresh examination of the MS. was made by Bluhme, but with little [p. 1.1013]additional profit, owing to the accidental loss of the paper containing the results of his work. A second edition of Gaius was published by Goeschen in 1824, with valuable notes, and an index of the sigla used in the MS. The preface to the first contains a complete demonstration that the MS. of Verona is the genuine Commentarii of Gaius, though the MS. itself has no title. An improved edition of Goeschen, by Lachmann, appeared in 1842. In 1866 an apograph or facsimile of the MS. by Boecking was published, which was based on Goeschen's collation, and some notes made by Bluhme. An entirely new and independent facsimile of the MS. was made by the German philologist Studemund in 1866, 1867, 1868, and published in 1874. It contains many amendments of and some not inconsiderable additions to the readings of Goeschen and Bluhme. The editions of Gaius which have appeared since 1874 have made Studemund's apograph the foundation of their text. The most trustworthy of these is that by Krüger and Studemund.

It appears from internal evidence that Gaius wrote his Institutes under Antoninus Pius and Marcus Aurelius. According to Dernburg (Die Institutionen des Gaius, ein Collegienheft aus dem Jahre 161 A.D.), the work is made up of lectures, which Gaius had previously delivered. It was the favourite text-book in the law schools till it was superseded by the Institutes of Justinian. Of Gaius himself hardly anything is known. His full name has not come down to us. (Cf. Roby's Introduction to the Digest, pt. i. ch. xiii.; Huschke, Gaius; Étude sur Gaius, par E. Gla<*>son, § § 2, 3. For the characteristics of his style, see Kalb, Archiv für Latein. Lexikographie, 1.82, &c.) Gaius belonged to the school of the Sabiniani [JURISCONSULTI]. The jurists whom he cites in his Institutes are Cassius, Fufidius, Javolenus, Julianus, Labeo, Maximus, G. Mucius, Ofilius, Proculus, Sabinus, Servius, Servius Sulpicius, Sextus, Tubero. Many passages in the Fragments of Ulpian are the same as passages in Gaius, which may be explained by assuming that both these writers copied such parts from the same original. Marcian and Ulpian follow a similar system of arrangement to that of Gaius, but it is more probable that they did not copy it from him.

The treatise of Gaius, unlike the Edictum perpetuum and other compilations of Roman law intended for practical purposes, is intended to be arranged on scientific principles, though its order of subjects is frequently confused. Its subject-matter is distributed under the three heads of (1) persons, (2) things, (3) actions--“omne jus quo utimur vel ad personas pertinet, vel ad res, vel ad actiones” (1.8). The contrast between personae and res may have been derived from writings on jus sacrum (cf. Krüger's Gesch. des Quellen, § 24, n. 41, with passages from Augustine there cited). Some writers suppose that this threefold division of law originated with Gaius, but one would rather gather from the way in which he introduces it that it was already well known in the Roman schools. There has been considerable difference of opinion as to the exact nature of the division. It is generally supposed that the first head of it (the first book), which treats of persons, comprehends the status of persons regarded as the subjects of rights; others affirm that it treats of legal capacity, or of the three conditions which correspond to the threefold capitis deminutio. According to Savigny, this part of the work treats only of persons so far as they belong to the familia in the widest Roman acceptation of that term, and so in his opinion the law of persons is equivalent to family law (Savigny, Syst. 1.393). The law of persons consists in fact of the divisions of men into free and slaves, free-born and freedmen, and then notices the different kinds of power which one person may exercise over another--the power of the master over the slave (dominica potestas), the power of the father over his children (patria potestas), the power of a husband over a wife (manus), the power exercised over a person in mancipii causa. Lastly, it treats of tutela, which in its origin was a kind of potestas. Thus the object of the law of persons seems to be, not to describe family relations generally, but to distinguish men according as to whether they are independent or subordinate, capable of acting for themselves or under some incapacity in this respect. The second part treats of res; that is, of property in the widest meaning of the term, comprehending the law of ownership and the law of obligation, which two divisions occupy the second and third books. The fourth book treats of actions or procedure.

It was the object of Justinian to comprise in his Code and Digest or Pandects a complete body of law. But these works were not adapted to elementary instruction, and the writings of the ancient jurists were no longer allowed to have any authority, except so far as they had been incorporated in the Digest. Moreover, the Commentaries of Gaius, the favourite text-book of the schools, were antiquated. It was therefore necessary to prepare an elementary treatise, for which purpose Justinian appointed a commission consisting of Tribonian, Theophilus, and Dorotheus; the two latter were professors of law, and assisted Tribonian in the compilation of the Digest.

The commission was instructed to compose an institutional work which should contain the elements of the law (legum cunabula), and should not be encumbered with useless matter (Prooem., Inst.). Accordingly they produced a treatise, under the title of Institutiones or Elementa (de juris docendi ratione), which was chiefly compiled from the Institutes of Gaius and his res cotlidianae (Const. Imperatoriae, § 6). But though the Institutiones of Justinian were mainly based on those of Gaius, its compilers sometimes followed other works. Thus the, first passage in the Institutes is taken from Ulpian. and the passage (2.17.2, “si quis priori” ) is from the fourth book of Marcian's Institutes (Dig. 36, 1, 29). Florentinus is also used. In some instances the Institutiones of Justinian are more clear and explicit than those of Gaius. An instance of this occurs in Gaius (3.109) and the Institutes of Justinian (3.19, 10). (See Gneist's Institutionum Syntagma.) The Institutiones consist of four books, which are divided into titles. It is supposed that Tribonian only exercised a general superintendence over the work of compiling them, and that Theophilus and Dorotheus each undertook the task of compiling two books. (Cf. E. Grupe, De Justiniani Instit. compositione.) [p. 1.1014]

The arrangement of the Institutes is generally the same as that of the work of Gaius; the difference between them in this respect is chiefly owing to the changes in the Roman law which had been made between the time of Gaius and that of Justinian. The Institutes treat only of Privatum Jus; except that there is a title de officio judicis, and a title on Judicia Publica at the end of the fourth book, which are not treated of by Gaius.

The Institutiones were published and given statutable authority on the 21st November, A.D. 533, shortly before the publication of the Digest.

There are numerous editions of the Institutes. The editio princeps is that of Peter Schoeffer (Mainz, 1468), which contains the gloss. The best modern editions are those of Schrader (1832), with commentary, Huschke (1868), and Krüger (1867, 1st ed.). There is a Greek paraphrase of the Institutes, which has long been attributed to Theophilus, one of the compilers of the Institutes, though, according to several modern authorities, without sufficient evidence. (See Ferrini, Praef.) It throws considerable light on the text of the Institutes, and contains additional information of an historical kind. The best edition of the paraphrase is that of W. O. Reiz, The Hague, 1751, 2 vols. 4to. A new edition is in progress by E. C. Ferrini (Institutionum Graeca paraphrasis Theophilo antecessori vulgo tributa, 1884-5), but only parts of it have as yet appeared.

[G.L] [E.A.W]

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