Gaius
Of the personal history of this famous jurist scarcely any thing is known. Even the spelling of his name has been as fruitful a subject of controversy as the orthography of our own Shakespeare or Shakspere. Some have chosen to write Caius instead of Gaius, and, in favour of this spelling, quote Quintilian (1.7. 23). " Quid? quae scribuntur aliter quam enuntiantur? Nam et Gaius C litera notatur, quae inversa (C) mulierem significat." They understand this passage to mean that the word which is spelt with a C is probounced with a G; but Quintilian is here speaking of
notae, and the true meaning may be; that the word which, when written at length, is written Gaius, and is pronounced as it is written, is yet designated shortly by the
nota C, which is different from its initial letter. Caius was undoubtedly the original spelling, used at a time when the letter C, which occupies in the Roman alphabet the place of Gamma in the Greek, had, in some cases, the power of Gamma. Caius was always pronounced Gaius, and was written in Greek
Γάιος, while in other words, as Cicero, which was written in Greek
Κικέρων, the initial C had a power distinct from Gamma.
It was in the beginning of the sixth century of the city that the letter G was introduced into the Roman alphabet, by Spurius Carvilius (Plut.
Prob. Rom. 54), and thenceforward the difference of pronunciation began to be indi cated by a difference of notation; but in some cases, as Caius and Cneus, the change was slowly intro duced. Probably at the time when Gaius lived, and certainly in the time of Justinian, his name was generally spelt, as it was pronounced, with a G, although the initial
nota C still continued in use.
This appears from inscriptions, and from the best manuscripts.
In the Florentine manuscript of the Digest, the praenomen Gaius is always spelt with a G, there being no difference whether the word is used by itself, or as a praenomen, followed by other names. (Dausquius,
Orthographia Latini Sermonis Vetus et Nova, vol. ii. p. 70, fol. Paris, 1677; Grotefend, in Ersch and Gruber's
Alg. Encyc., under the letter C; Schneider,
Elementarlehre der Lateinischen Sprache, i. ], p. 233.)
In early times the name was trisyllabic, like the Greek
Γάϊος (Catull. 10.30;
Mart. 9.94,
11.37; Stat.
Sylv. 4.9, 22), but, in times of less pure Latinity, it was pronounced as a dissyllable. (Auson.
Epig. 75.)
It had a meaning in ancient Latin, as in modern Tuscan, equivalent to the English
Gay, and was connected by etymologists with the Greek
γάω, whence the names Caius and Caia were thought peculiarly appropriate to the marriage ceremony. " Caii dicti a gaudio parentum," says C. Titius Probus in his treatise
De Nominibus, &c.
As Gaius is known by no other appellation, some have supposed that he had no other, but was either a freedman or a foreigner. Then as to his birthplace : some have fancied that he was a Greek, because he understood Greek; and some that, like Justinian, he was a native of Illyricum, because Justinian thrice calls him Gaius
noster. (Prooem. Inst. § 6, Inst. 4. tit. 18.5; Const.
Omnem. § 1.) Some have thought that Gaius was his gentile or family name, and, relying on the supposed authority of a manuscript of the
Breviarium Alaricianum, or Westgothic
Lex Romana, have given him the praenomen Titus.
The origin of this supposition is probably due to some passages in the
Corpus Juris (e. g. Cod. 6. tit. 3. s. 9), where Gaius is employed as a fictitious name, and is found in connection with other fictitious names, as Titus, Titius, Lucius. Others, believing that Gaius was a praenomen, have attributed to him the cognomen Noster, because not only does Justinian in the passages we have cited so call him, but the phrase Gaius Noster is used by Pomponius in
Dig. 45. tit. 3. s. 39.
It is scarcely necessary to say, that Noster in this form of expression usually refers to that literary intimacy with which we regard a favourite author. Yet, partly because Gaius is called by Justinian Noster, and partly on account of some passages in the mutilated and corrupted Westgothic compendium of the Institutes of Gaius, Vacca and other learned civilians inferred that Gaius was a Christian ! Some, not content with Noster, and misled by a false reading in Gellius (
2.4), have given him the cognomen Bassus, thus confounding him with Gabius Bassus the grammarian.
To proceed to less futile or more plausible conjectures, some have tried to identify Gaius with Laelius, or Laelius Felix, for both Gaius and Laelius Felix wrote notes on Q. Mucius Scaevola. (Gaius, 1.188;
Gel. 15.27.)
In favour of the compound Gaius Laelius Felix are quoted two passages from the Digest, in one of which (
Dig. 5. tit. 3. s. 43) Gaius says, " Et
nostra quidem aetate Serapias, Alexandrina mulier, ad Divum Hadrianum perducta est cum quinque liberis, quos uno foetu enixa est ;" and in the other (
Dig. 5. tit. 4. s. 3), Paulus reports, " Sed et Laelius scribit
se vidisse in Palatio mulierem liberam, quae ab Alexandria perducta est ut Hadriano ostenderetur, cum quinque liberis, ex quibus quatuor eodem tempore enixa (inquit) dicebatur, quintum post diem quadragesimum."
A comparison of these passages is against the identity of Gaius and Laelius, for, not to mention the variation between their accounts, Laelius speaks more circumstantially, as an eye-witness, while Gaius writes as if mentioning a fact which he knew only from rumour.
By the phrase
nostra aetate, he probably intends to denote that the extraordinary birth took place after he himself was born, but the words may have a wider acceptation, and refer to living memory generally.
It has been guessed that Gaius was closely connected by relationship with Pomponius, for, on the one hand, Pomponius calls Gains " Gaius noster" (
l.c.), and, on the other hand, Gaius calls Pomponius simply Sextus (Gaius, 2.218), but it is not certain that, in this last-cited passage, Pomponius is meant, and, if he be, Gaius is not singular in alluding to him by his praenomen simply, for Ulpian does the same. (
Dig. 29. tit. 5. s.1.27.)
Two passages, which closely agree with fragments attributed in the Digest to the
Enchiridion of Pomponius (
Dig. 2. tit. 2. s. 2.22 and § 24), are cited by Joannes Lydus (
De Magistrat. 1.26 and 34), as from the commentary of Gaius on the Twelve Tables. From the contents of these passages, it is not unlikely that something of similar import would be inserted in an introduction to a commentary on the Twelve Tables, and that the agreement between Gaius and Pomponius may have been produced, not by the latter borrowing from the former, but by both borrowing from the same source, namely, M. Junius Gracchanus, who wrote upon the ancient magistracies of Rome. [GRACCHANUS.] But it is also not impossible, that in compiling from the title
De Origine Juris (
Dig. 1. tit. 2), Lydus may have seen the heading of the first fragment, which is taken from Gaius, and have overlooked the heading of the second, which is taken from Pomponius. Yet it must be admitted that he afterwards (1.48) cites as from Pomponius another passage taken from the same second fragment. (
Dig. 1. tit. 2. s. 2.34.)
The first fragment from Gaius, and the second from Pomponius, run together in sense, reading as if the former were the preface to the latter; and in this way, with the simple heading " Gaius li
o. i
o." they are introduced by Magister Vacarius
1 into his elementary work on Roman law. (Wenck,
Magister Vacarius, p. 91.)
One of the conjectures, which has found numerous supporters, is, that the full designation of Gains is C. Cassius Longinus, and that he is referred to by his praenomen simply, in order to distinguish him from an elder C. Cassius, the eminent follower of Capito and Masurius Sabinus, and the head of the Cassiani, a sect to which Gains adheres with strict devotion. C. Cassius is thrice cited in the Digest by his praenomen Gaius, --twice by Javolenus,
libro ii.
ex Cassio, in
Dig. 35. tit. 1. s. 54, and
libro xi.
ex Cassio, in
Dig. 46. tit. 3.78,--and once by Julianus, in a passage where Sabinus and Gaius are coupled. (
Dig. 24. tit. 3. s. 59.) Where Pomponius uses the expression " Gaius noster" (
Dig. 45. tit. 3. s. 39), it is not certain that C. Cassius was not meant, for Pomponius was one of the Cassiani.
There is, however, strong reason for supposing that Pomponius refers to our Gaius, inasmuch as the fragment in which the expression occurs is taken from the 22nd book of Pomponius
ad Q. Mucium, and we know that Gaius speaks of a similar work of his own, "
In his libris, quos ex Q. Mucio fecimus" (2.188). Gaius himself always quotes C. Cassius simply as Cassius, not as C. Cassius. Servius (
ad Virg. Georg. 2.5.306, 307) says, " Apud majores omne mercimonium in permutatione constabat, quod et Gaius Homerico confirmat exemplo." Now, we find from Inst. 3. tit. 23.2, and from
Dig. 18. tit. 1.1, that C. Cassius and Proculus quoted Homer (
Hom. Il. 7.472-
475) to prove that barter was a case of
emtio et venditio. But the very same lines are cited by Gaius (3.141 ), and they seem to have been a trite quotation among the earlier jurists of his school, so that it is doubtful whether our jurist or C. Cassius is referred to by Servius, the commentator on Virgil.
It would be useless to mention all the
niaiseries of those who have written on the age of Gaius. Some divide Gaius Juventius (
Dig. 1. tit. 2. s. 2.42) into two persons, and so make Gaius a disciple of L. Mucius; others perform the same division on Gaius Aulus Ofilius or Gaius Ateius Pacuvius
Dig. 1. tit. 2. s. 2.44), and so make Gaius one of the disciples of Servius Sulpicius.
But the most common error has consisted in the assignation of too late rather than too early a date ; and Hugo's authority (
Civilist. Mag. vol. ii. p. 358-378) for some time gave currency to the opinion which had previously been maintained by Racvardus and Conradi, that Gaius was a contemporary of Caracalla, who is designated in the Digest by the name of Antoninus.
There are certainly some circumstances difficult to account for, which might naturally have led to this belief. The
Institutiones of Gaius were an ordinary text book of instructions before the time when Justinian reformed the legal course appointed for students. Four
libri singulares of the same author (1.
De Re Uxoria, 2. De Tutelis/is, 3 and 4.
De Testamentis et Legatis) were similarly honoured as text books. Such parts of the
Institutiones and the
Libri Singulares as were thought to be of practical use were taught in the lectures of the professors, while other parts were passed over as antiquated. Why was it that Gaius should be preferred for instruction to Papinian, Paulus, and Ulpian, unless he were a more modern and therefore, for some purposes, a more useful writer than those celebrated jurists? Why also, it has been asked, was Gaius, in preference to names as eminent as his, introduced into the Westgothic
Lex Romana? Why were the Institutes of Gains made to serve as a basis for those of Justinian, if it were not that nothing more applicable to the state of the law then in force were extant?
The only answer that can be given to such inquiries is that good elementary works, when they take ground unoccupied before, are not easily dispossessed. Are not
Blackstone's Commentaries, and even
Coke on Littleton, still in the hands of English law students, notwithstanding the legislative changes which have superseded great parts of their contents? Later compilers content themselves with the path of those who have gone before; and we find in the fragments of an elementary work of Ulpian (the
Tituli ex Corpore Ulpiani ), who is now known to have been posterior to Gaius, clear proof of the influence which the earlier jurist exercised over the writings of his successor.
A fact which has occasioned much surprise is, that Gaius is not once quoted in the Digest by any other jurist, unless we except the mention of his name in a passage of Pomponius (
Dig. 45. tit. 3.39), which, as we have seen, may possibly refer to C. Cassius.
The only probable explanation of this fact is that Gaius was rather a teacher of law than a practical jurist, whose opinions derived authority from imperial sanction.
He was not one of the “
prudentes quibus permissum est jura condere” (Gaius, 1.7).
The jurists who were armed with that
jus respondendi, which was first bestowed by Augustus, partook of the emperor's prerogative, and their
responsa had a force independent of their intrinsic reasonableness, and superior to the best considered opinion of an unprivileged lawyer. Except in the case of a very few writers of the highest eminence in their profession, it would at this day be considered a breach of etiquette to cite the opinion of a modern legal author in an English court. For a privileged Roman jurist to refer to a mere teacher of law, however learned, or to an unauthorised, or rather, unprivileged practitioner, however experienced, would probably have been deemed as unprofessional as for an English barrister to cite in court a clever treatise written by a contemporary below the bar, instead of seeking his authorities in the decisions of judges, and in the dicta of the recognised sages of the law.
That this is the true explanation of the silence of other jurists with respect to Gaius may be inferred from a constitution of Theodosius II. and Valentinian III., despatched from Ravenna to the senate of Rome in A. D. 436. (Cod. Theod. 1. tit. 4. s. 3.)
By that rescript the same authority is given to the writings of Gaius as to the writings of Papinian, Paulus, Ulpian, and Modestinus. Hence it may be inferred that Gaius was previously in a different and inferior position with respect to authority.
All the writings of these five jurists (with the exception, subsequently specified, of the
Notae of Paulus and Ulpian on Papinian) are invested with authority, as if to obviate the question as to the date when they were written, for a treatise written by a jurist before he received the
jus respondendi probably derived no legal force from the subsequent gift of that privilege to the author.
This constitution proves the great importance that was attached to the citation of a legal writer by name in the work of another jurist, for it proceeds to make the citation of other writers by the five great jurists we have mentioned a test of the authority of the writers cited. If, for example, Gaius any where cites Julianus, the citation is to be taken as proof that Julianus is a writer of authority ; and legal force is given, not only to the passage or opinion of Julianus so cited, but to all the legal remains which can be proved to belong to Julianus, and which, upon a collation of manuscripts, present a certain text.
The works of Papinian, Paulus, Gaius, Ulpian, and Modestinus (for such is the unchronological order in which these names are mentioned), together with the works of all the other jurists who are cited by any one of them, are made the criteria of legal science. If, in the works of ten jurists, passages can be found in favour of one opinion, and nine jurists only can be cited against the ten, the majority is to prevail.
In case of an equality of opposite opinions, the opinion of Papinian is to prevail, if Papinian have expressed any opinion upon the subject. If not, the matter is left to the decision of the judge.
There is no pre-eminence conferred on any other of the first-named five jurists over a jurist, as, for example, Julianus, who may have been cited by one of the five. Such appears to be the true interpretation of this celebrated citation-law, upon which the researches of Puchta (
Rhein. Mus. für Jurisp. vol. v. p. 141, and vol. vi. p. 87) have thrown important light.
Among the writings of Gaius are no
Quaestiones or
Responsa, which were the titles given by other jurists to treatises relating to cases that arose in their own practice. The
Liber de Casibus of Gaius did not relate to cases within his own practice, and the cases it treated of were sometimes wholly fictitious.
There is a passage in the Digest where Gaius speaks as if lie did not himself belong to the authoritative body of those whose opinion he criticises, " Miror under constare videatur, etc., nam ut apparet, etc." (
Dig. 11. tit. 7. s. 9).
Gaius was probably born before Serapias was introduced to Hadrian (
aetate nostra ), and he wrote, or at least completed, his
Institutiones in the reign of M. Aurelius.
The proof of this is that Antoninus Pius is mentioned by him with the addition
Divus (2.195), and that he speaks of the law of
cretio, as it stood in the region of Marcus, before it was altered by a constitution of that emperor. (Compare Gaius, 2.177 with Ulpian,
Frag. 22.34.)
In like manner, the statements made by Gaius in 3.23, 24, as to hardships in the law of succession which required the correction of the praetor's edict, could scarcely have been written after the senatus consultunm Tertullianum, made in the reign of M. Aurelius and Verus, A. D. 158, and still less after the senatus consultum Orphitianum, made in the reign of Marcus and Commodus, A. D. 178. (Compare Inst. 3. tit. 4. pr., and Capitolinus, in Marco. 11).
Some critics have been so nice as to infer that the beginning of the Institutes of Gaius was written under Antoninus Pius, and the remainder under M. Aurelius. In 1.53. the former emperor is termed
Sacratissimus Imperator Antoninus. So, in 1.102, we have "
Nunc ex epistola optimi Imperatoris Antonini," and, in 2.126, "
Sed nuper imperator Antoninus significarit rescripto." The " Imperator Antoninus" mentioned in 2.126 is not Caracalla, although the same rescript is erroneously cited by Justinian (Cod. 6. tit. 28. s. 4) as one of "
Magnus Antoninus, " which is the peculiar designation of Caracalla. In Nov. 78. 100.5, Justinian falls into an opposite error, in ascribing to Antoninus Pius an act of legislation which belongs to Caracalla. (
D. C. 77.9.)
It is not until after the middle of the second book of the Institutes of Gaius that Antoninus Pius is called Divus--
Hodie ex Divi Pii constitutione, 2.195.
It appears to us that the inference founded on these
minutiae, though probable, is not free from doubt. In 1.7, and 1.30, Hadrian is called Divus Hadrianus. In 1.47, we have Hadrianus without the Divus. Again in 1.55, we have Divus Hadrianus, and the same epithet is applied to Hadrian in every other subsequent passage where his name occurs, except in 2.57.
The mention of Antoninus without the epithet Divus in six passages may possibly have no deeper meaning than the similar mention of Hadrianus in 1.47 and 2.57.
It would be rash to assert that we possess the Institutes of Gaius precisely as they proceeded from his hand in the first edition.
The very passage in 1.53, where Antoninus appears to be spoken of as a living emperor with the epithet
sacratissimus is cited in the Digest (
Dig. 1. tit. 6. s. 1), and there we read "
ex constitutione DIVI
Antonini." A comparison of this fragment, as it appears in the Digest, with the same passage as it stands in the text of Gaius, affords an instructive example of those slight interpolations (
emblemata ) and alterations, in which the compilers employed by Justinian indulged, and by means of which serious obstacles are opposed to the discovery of historical truth by means of minute verbal criticism.
The hypothesis that the Institutes of Gaius, up to 2.151 (where we have for the last time Imperator Antoninus, without Divus), were written in the lifetime of the emperor Pius, is at variance with the probable conjecture of Göschen, who thinks that Gaius, in the lacuna preceding 1.197, treated of a constitution of Marcus.
There are other indications from which the age of Gaius may be closely inferred.
The latest jurist whom he cites is Salvius Julianus, the composer of the
Edictum Perpetuum under Hadrian ; and though there are no fewer than 535 extracts from his works in the Digest, he refers only to thirteen constitutions of emperors, and none of the constitutions lie refers to can be proved to be later than Antoninus Pius.
It would appear from the inscriptions of the fragments s. 8 and s. 9, in
Dig. 38. tit. 17, that he wrote a
liber singularis ad senatus consultum Tertullianum, and another
ad S. C. Orphitianum. This would bring his life to the last years of M. Aurelius; but as there is no mention of these treatises in the Florentine Index, and as treatises on the same subject were written by Paulus, it is not at all unlikely that, in the inscriptions we have mentioned, the name Gaius is put by mistake for Paulus. The Divus Antoninus mentioned by Gaius in the fragments
Dig. 35. tit. 1. s. 90,
Dig. 32. s. 96,
Dig. 36. tit. 1. s. 63.5, and
Dig. 31. s. 56, is, undoubtedly, not Caracalla, but Antoninus Pius.
There is not a single passage in which it can be proved that Gaius refers to Caracalla. From a comparison of
Dig. 24. tit. 1. s. 42 with
Dig. 24. tit. 1. s. 32. pr., an attempt indeed has been made to identify the Prirceps Antoninus mentioned by Gaius in the former passage, with the Antoninus Augustus, Divi Severi filius, mentioned by Ulpian in the latter ; but though Caracalla, who is referred to by Ulpian, mitigated the law against donations between husband band and wife, it does not follow that Antoninus Pius may not previously have introduced the partial relaxation of which Gaius treats.
In the time of Ulpian, there were already several constitutions upon the subject. (Ulpian.
Fragm. 7.1.)
We have said that Gaius was a devoted adherent of the school of Sabinus and Cassius.
This is now clear beyond dispute from a great number of passages in his Institutes (1.196, 2.15, 37, 79, 123, 195, 200, 217, 219-223, 231, 244, 3.87, 98, 103, 141, 167, 168, 177, 178, 4.78, 79, 114).
It had formerly been supposed by some that he belonged to the opposite school of Proculus -- a mistake occasioned chiefly by an erroneous interpretation of
Dig. 40. tit. 4. s. 57. Mascovius and others were induced to rank him among the
Jurisconsulti [
CAPITO], on account of the phrase "
sententia media recle existimantium " (
Dig. 41. tit. 1. s. 7.7), coupled within a few passages in the Digest (
Dig. 17. tit. 1. s. 4,
Dig. 22. tit. 1. s. 19), where, notwithstanding his general leaning to Cassius, he seems to follow the opinion of Proculus, or to quote Proculus with approbation.
Gaius was the author of numerous works.
The following list is given in the Florentine Index :--
Works
Ad Edictum Provinciale, βιβλία λβ [libri 32]. Number of extracts from this work in the Digest,
340.
It appears to have been completed in the lifetime of Antoninus Pius. (
Dig. 24. tit. 1. s. 42,
Dig. 2. tit. 1. s. 11.)
Ad Leges [Juliam et Papiam Poppaeam],
βιβλία δεκαπέντε. (The names added between brackets are the names as they appear in inscriptions of fragments in the Digest.) Number of extracts, 28. Gaius refers to this work in his Institutes (3.54).
It seems to have been published after the death of Antoninus Pius. (
Dig. 31. s. 56.)
Ad Edictum Urbicum [praetoris urbani],
τὰ μόνα εὐρεθέντα βιβλία δέκα. Extracts, 47. The
Edicti Interpretatio, which may have designated the work on the Provincial Edict, together with the work on the City Edict, is mentioned by Gaius in his Institutes (1.188), and was probably written in the reign of Antoninus Pius (
Dig. 30. s. 73.1).
The work on the City Edict was divided into tituli, and the subjects of the books and tituli are occasionally cited in the inscriptions of fragments. Some of the tituli seem to have formed books by themselves (compare the inscriptions of
Dig. 7. tit. 7. s. 4,
Dig. 10. tit. 4. s. 13,
Dig. 38. tit. 2. s. 30); others seem to have comprehended several books.
There were at least two books
De Testamentis, and three
De Legatis (
Dig. 28. tit. 5. s. 32 and s. 33,
Dig. 30. s. 65,
Dig. 30. s. 69,
Dig. 30. s. 73).
Aureon [Aureorum seu Rerum Quotidianarum],
βιβλία ἑπτά. Extracts, 26.
This work, treating of legal doctrines of general application and utility in every-day life, seems to have formed a compendium of practical law.
The name
Aurea was probably a subsequent title, not proceeding from the author, bust given to the work on account of its value. Though, according to the Index Florentinus, it consisted of seven books, only three are cited in the Digest, whence some have conjectured that the last four books are identical with the Institutes of Gaius.
The preferable opinion, however, is, that the
Res Quotidianae and the
Institutiones, though they had much in common, were distinct works. (Savigny's
Zeitschrift, vol. i. p. 54-77; Hugo,
Civilist. May,. vol. vi. p. 228-264.) Justinian, in his Institutes, made considerable use of this
Golden Work (
Prooem. Inst. § 6).
Δοδεκαδέλτου (sic, sed qu.
Δυοδεκαδέλτου vel
Δωδεκαδέλτου)
βιβλία ἕξͅ. Extracts, 20.
This is the work, the beginning of which has been supposed, on account of the citations in Lydus, to resemble part of the
Enchiridion of Pomponius, and to have borrowed some of its historical details from Gracchanus.
Instituton (Institutionum),
βιβλία τέσσαρα. Extracts, 14.
An account of this famous work is given below.
De Verborum Obligationibus, βιβλία γ. Extracts, 12.
Die Manumissionibus, βιβλία τρία Extracts, 5.
Fideicommisson [Fideicommissorum],
βιβλία δύο. Extracts, 12.
This work was published after the death of Antoninus Pius. (
Dig. 35. tit. 1. s. 90,
Dig. 32. s. 96,
Dig. 36. tit. 1. s. 63.5.) A
Liber singularis de tacitis Fideicommissis, not mentioned in the Index, is cited,
Dig. 34. tit. 9. s. 23.
De Casibus, βιβλίον ἕν. Extracts, 7. We have already explained the purport of this work.
Regulation [Regularum],
βιβλίον ἕν.
There is but one extract from this work in the Digest (
Dig. 1. tit. 7. s. 21), unless there is some error in the Index or in the inscriptions. Gaius appears to have written
another treatise in
three books on
Regulae, or rules of law. (
Dig. 50. tit. 17. s. 100 ;
Dig. 47. tit. 10. s. 43.)
Dotalicion [Dotaliciorum]. Though this work is mentioned in the Index, there is not a single extract from it in the Digest.
It is probably the same with the
Liber singularis de Re Uxoria, which was one of the four
libri singulares of Gaius, that were used for instruction in the law schools. (Const.
Omnem, § 1.) Of the other three libri singulares, unless they were extracted from the larger work on the edict, nothing is known.
Ὑποθηκαρίας [Ad formulam hypothecariam],
βιβλίον ἕν. Extracts, 6.
Other works
Besides other titles of works, which have been already incidentally mentioned as not inserted in the Florentine Index, we read Gaius,
ad Edictum Aedilium Curulium Libri duo, in the inscriptions of eleven fragments, and Gaius,
ad Legem Gliciam, in the inscription of
Dig. 5. tit. 2. s. 4. Of the Lex Glicia no mention occurs elsewhere, and consequently the genuineness of the inscription has been doubted. (Bynkerschoeck.
Obs. 2.12.)
Institute
Great as are the intrinsic merits of Gaius as a jurist, he yet owes some of his celebrity to the recent discovery of his genuine Institutes, in a state so nearly perfect, that the resuscitated treatise forms by far the most complete specimen in existence, of an original unmutilated work, which has survived the wreck of classical Roman jurisprudence.
It was a common practice in the middle ages to wash out the relics of antiquity, in order to economise the parchment on which they were written. When washing alone would not expunge the writing--as often happened in the case of manuscripts written on the once hairy side of the parchment--the characters were further scratched out with a knife.
A father of the Church sometimes covered the pages which had before contained the works of some profane dramatist. Not unfrequently the parchment was a second time submitted to the same treatment.
The father who had supplanted the dramatist was himself washed and rubbed out in order, peradventure, to give place to some scholastic doctor.
In the library of the Chapter at Verona is a codex formerly numbered xv., but now xiii., containing a manuscript of the
Letters of St. Jerome (Hieronymus), written over an older manuscript. Nearly one fourth part of the codex was
bis rescriptus, and where this was the case, it seems that St. Jerome had also been the second occupant.
The manuscript first written on the parchment consisted of 251 pages, and each page of 24 lines. One leaf or two pages, 235 and 236, concerning Prescriptions and Interdicts, had been detached from the rest of the manuscript, and escaped being overlaid by St. Jerome.
These two detached pages, together with four other pages detached from some other codex, and containing the fragment of an uncertain author
De Jure Fisci, had been found in the library of Verona before the year 1732, by the celebrated Scipio Maffei.
He describes them in his
Verona Illustrata, Parte Terza, 100.7. p. 464 (8vo. Verona, 1732).
In his
Istoria Teologica (fol. Trento, 1742,) the greater part of both fragments was first published, and in plate x. a facsimile was given of part of the writing of the fragment
De Interdictis. From the
Istoria Teologica, part of this facsimile was copied and republished, not very accurately, in the
Nouxeau Traité de Diplomatique, vol. iii. p. 208. tab. 46 (Paris, 1757). Maffei had observed a correspondence between the fragment
De Interdictis and the 15th title of the 4th book of Justinian's Institutes; but, instead of recognizing Gaius, whose text was the basis of Justinian's work, he supposed that the leaf he had found was part of an interpretation or compendium of Justinian's Institutes, made by some later jurist. To Maffei, however, belongs the credit of having first given to the world two pages of the manuscript of the genuine Gaius.
It had not escaped the notice of Maffei that the manuscript of the letters of St. Jerome was a
codex rescriptus. This appears by his unpublished remarks in the Catalogue of the Library; but he did not know what the subject of the obliterated writing was, and was not aware of the connection between that manuscript and the detached leaf which had drawn his attention.
The fragment concerning Interdicts, published by Maffei, had not been unobserved by Haubold.
He determined to recal it to the memory of German jurists, and prepared an essay for that purpose, which was published at Leipzig in 1816, under the title of
Notitia Fragmenti Veronensis de Interdictis, and is to be found in his collected
Opuscula, vol. ii. p. 327-346.
By chance, while the essay of Haubold was in preparation, but not yet published, in the year 1816, Niebuhr was despatched to Rome by the king of Prussia, as minister to the Apostolic See. On his way, he spent the greater part of two days in examining the cathedral library of Verona, and made wonderfully good use of his limited time. Beside copying the manuscript of the fragment
De Jure Fisci, he copied, fully and accurately, the fragment concerning Interdicts and Prescriptions. and did not hesitate to ascribe the latter fragment to its real author, Gaius.
He proceeded to examine
Codex xiii., and by means of the infusion of nutgalls, was able to decipher the 97th leaf of the obliterated writing, which he at once recognised as an important work of a most ancient jurist, whom he at first supposed to be Ulpian.
The fruits of his researches he communicated by letter to Savigny, by whom they were printed in the third volume of the
Zeitschrift. Savigny added a learned and acute commentary of his own, and put forward the felicitous conjecture, amply verified in the sequel, that the ancient text of codex xiii. contained the genuine Institutes of Gaius, and that the fragment concerning Prescriptions and Interdicts had formerly been a part of that codex.
The fame of this discovery was soon diffused among the jurists of the continent. In May, 1817, the Royal Academy of Berlin despatched to Verona Göschen and Bekker, charged with the task of transcribing the manuscript, and the place of Bekker was shortly afterwards supplied by Bethmann Hollweg.
With scrupulous accuracy did Göschen, assisted by Hollweg, fulfil his difficult commission.
The original manuscript, in the opinion of the palaeographer Kopp (Savigny's
Zeitschrift, vol. iv. p. 475), was anterior to Justinian's legal reforms.
The scribe, like the majority of legal writers in our own country at the present day, employed a great variety of contractions, and whole words were often expressed by initial letters.
The old order of the leaves was much deranged.
There were very few pages where the parchment had not been entirely written over, and, in more than 60 pages, it was
bis rescriptus. The new writing was in general directly over the old.
In order to prepare the parchment, it had been washed, apparently bleached in the sun, and in some places scraped by a knife. Notwithstanding these difficulties, by far the greater portion of the Institutes of Gaius has been preserved to us. Probably not one tenth of the whole work is wanting.
It is true that certain parts of the extant leaves resisted all attempts at decyphering, and that three leaves, namely, the leaf following p. 80, the leaf following p. 126, and the leaf following p. 194, are missing.
The argument of the first missing leaf may be collected from the West Gothic
Epitome, and the whole contents of the second missing leaf have been luckily preserved in an ancient extract, made by the author of the
Collatio Legum Rom. et Mos., but the loss of the third missing leaf is very tantalizing, for it doubtless contained some particulars relative to the old
legis actiones, which we are left without any means of supplying.
A few of the gaps which are occasioned by the impossibility of decyphering are also very lamentable, for they occur in the most obscure parts of the work, -- in parts where the curiosity of the antiquary is raised highest, and all the ingenuity of conjecture possessed by the ablest critics has been unable satisfactorily to fill them up.
The decyphered volume was anxiously looked for. In 1819, the first printed sheet of it appeared, but not until
1821 was the first complete edition of the work brought out by Göschen. Its publication excited an unusual sensation among the jurists of the continent.
It was considered to form an era in the study of Roman Law.
It was found to elucidate doubts, and clear up difficulties, before regarded as hopeless.
By the true explanation it afforded, many an ingeniously constructed theory was demolished. Modern jurists were thus suddenly placed upon a vantage ground, from which they looked down upon their less fortunate predecessors.
The authenticity of the discovered Institutes was beyond dispute.
This was clear from internal evidence, which would prove a forger to have possessed miraculous knowledge and sagacity.
The work was found to agree with the Institutes of Justinian, which were derived from it.
It was the manifest source of the Gothic Epitome.
It contained all the passages cited from the Institutes of Gaius in the Digest, in the
Collatio, by Böethius (Ad Cic.
Topica, 3.5. sub fin.), and by Priscian (
Ars Gram. vi. sub fin.).
The Institutes of Gaius are thought to have been the first work of the kind, not a compilation from previous sources.
As they became a popular manual at Rome, so are they perhaps to the modern student the best initiation into the Roman law, especially if they are read along with the Institutes of Justinian and the
Paraphrasis of Theophilus. They are composed in a clear and terse style, which is well suited to a technical treatise, and does not often fail to satisfy the requisitions of pure Latinity.
The author always has a meaning, and seldom expresses his meaning badly.
The difficulties which occur in his Institutes usually depend either on our ignorance of collateral facts and legal rules, or upon a train of reasoning which demands attention, or upon distinctions which the intellect cannot comprehend without effort. Gaius is not a learned historian ; he seeks not the merit of a critical philologer, and does not push his logic so inconveniently as to assail the latent flaws of established law; but his history, his etymologies, and his logic bear a certain stamp of technical propriety They are good
enough for their purpose of assisting the memory, and facilitating the understanding of legal doctrine.
He does not exhibit the details of refined philosophical analysis, and pursue with lucid order the prescriptions of scientific method; but yet the basis of his arrangement will appear, upon examination, to be solid and profound; and the sequence in which his subjects are treated has been found so practically satisfactory, that it has been received, with little alteration and improvement, by the majority of those who have followed in his track. " Omne jus quo utimur, vel ad personas pertinet, vel ad res, vel ad actiones."
This celebrated division rests on the notion of a
subject, an
object, and a
copula, connecting the subject with the object. Thinkers had not failed to dwell on the elementary distinction between a man and all that was not himself. They had seen that the relations between a man and the rest of the universe were changed and modified by his own acts and by external events.
In the schools of philosophy, these considerations had led to divisions of human knowledge, analogous to the threefold division of law laid down by Gaius. Our author, however, seems to have contented himself with general notions, and not to have formed in his own mind any precise definition of the boundaries between the law relating to persons, the law relating to things and the law relating to actions.
The order of his Institutes may be accounted for by some such analysis as the following:--Law treats of rights. Differences of rights result from permanent differences in those who possess rights--the subject of right--
persons ; and also from differences in that over which rights are exercised--the objects of right--
things. Besides the varieties of rights attributable butable to permanent differences in persons, and natural or conventional differences in things, there are new and altered rights, which arise from external events and from voluntary acts. Of external events, death, which necessitates the devolution of property by
succession, is in law of the utmost importance. From the voluntary legal dealings of men, and other changes of the circumstances in which they are placed, result transitory and particular rights of various kinds, with their corresponding
obligations. Further, in order to redress any violation of those earlier rights, which alone would have to be considered, if men acted legally, the law establishes secondary rights--remedies for violation of right, and rights of action.
The first book of the Institutes of Gaius treats of the distinctions of persons.
In this it follows the genius of the Roman law, which owes much of its distinctive character to the great legal differences that originally subsisted between different classes of men.
There are systems of jurisprudence in which it might perhaps be better to begin with an
average law, not resting on peculiarities of class or
status. Rights commonly rest, in modern systems, on an average level, from which the student may rise or sink to those inequalities of surface which depend on anomalous distinctions; but the law of Rome may rather be compared to a country which has its surface disposed in separate platforms or terraces of considerable extent. Gaius first considers men as free (
liberi ) or slaves (
servi); freemen he subdivides into
ingenui and
libertini ; and
libertini he distinguishes as they are
cives Romani, aut
Latini, aut
Dediticiorum numero. Here naturally he speaks of manumissions. Next, following a division which crosses the former, he divides
personae into those who are
sui juris, and those who are
alieno juri subjectae. Under the latter head he speaks of the child
in potestate parentis, of the wife
in manu mariti, of the slave
in mancipio domini. Persons who are
sui juris are divided into those who are under
tutela, those who are under
cura, and those who are under neither
tutela nor
cura. With the second book begins the law,
quod ad res perlinet. Some things are
divini juris, others
humani juris; some, again, are
corporales, some
incorporales. After explaining these distinctions, Gaius proceeds to the distinction of things into
res mancipi and
res nec mancipi. From the latter distinction (which depends upon technical rules relating to the mode of transferring property), he goes on to investigate the various modes of acquiring and transferring
singulae res, as opposed to the acquisition and devolution of property
in a lump. He is then naturally led to consider
quibus modis per universitatem res nobis acquiruntur, and herein, to treat of
hereditas. He treats of testate succession before intestacy, and arranges under the former head, as a kind of appendix, the law of legacies (
legata) and
fideicommissa; for though these are not proper examples of
acquisitio per universitatem, they cannot be conveniently separated from the law of
hereditas. The third book begins with the law of intestate succession, and proceeds (3.88) to the doctrine of
obligationes. There has been great controversy among modern jurists whether
the law relating to actions does not begin where
obligationes are first introduced to our notice.
The great modern maintainer of the proposition that the law of actions commences with
obligationes was the late Hugo, who discussed the subject at large in his
Civilist. Mag. (vol. iv. p. 1, and vol. v. p. 385), and returned to his favourite proposition in one of his latest essays. (
Götting. Gelethre Anzeigen, 1840, p. 1033-1039.)
He has undoubtedly in his favour the express declaration of Theophilus (3.14. pr., and 4.6, init.), but the opposite view (adopted by Vinnius, Thibaut, and others), which ranks
obligationes with
res, appears to be more in accordance with the form of the Institutes of Gaius.
After treating of corporeal things--things which entitle their owner to the name of
dominus--Gaius passes easily to
obligationes, which are
res incorporates, and give name to a kind of ownership distinct from
dominium. The word
obligatio properly expresses the
connection between the person who has a right and the person who owes the corresponding duty; hence, in ordinary language, its meaning has been transferred to denote the
duty, whereas in legal phraseology it is often employed to signify the
right. It is not unlikely that, from the close relationship between the law of
obligationes and the law of actions, and from the ambiguity of the word
actio, which may apply to acts unconnected with judicial procedure, Gaius, and other jurists who succeeded him, may have avoided any precise definition of their grand division of law, and have placed
obligationes in an intermediate situation, where they might be held to occupy an independent territory, or whence they might be transferred to the territory either of
res or of
actiones, as convenience might dictate.
It we class them with res, we must admit that they require special and separate attention, seeing that they are differently created, transferred, and ended from other res. The
summa divisio of
obligationes is into two species--
obligatio ex contractu, and
obligatio ex delicto (3.88).
In this Gaius differed from the Institutes of Justinian, which, out of the anomalous
obligationes that remain, make two other general species, namely,
obligationes quasi ex contractu and
obligationes quasi ex delicto. Of
obligationes ex contractu there are four kinds :
re contrahuntur, aut verbis, aut literis, aut consensu (3.89). Of
obligationes ex delicto, Gaius also instances four kinds :
veluti si quis furtum fecerit, bona rapuerit, damnum dederit, injuriam commiserit (3.182).
With the fourth and last book Gaius begins the law of actions, as connected with judicial procedure.
After the general division of
actiones into
actiones in rem and
actiones in personam, he treats of the ancient
legis actiones and of
formulae, exceptiones, and
praescriptiones, and he gives an account of the several kinds of
interdicta. With these topics are mingled various rules of law relating to different branches of judicial procedure.
The above is an imperfect sketch of the topics handled in the Institutes of Gaius.
As to his mode of handling them, it is to be observed, that he treats rather of the
dynamics than of the
staties of law,--rather of those events
or forces by which classes of rights begin, are modified or terminate, than of those rights and duties which accompany a given
stationary legal relation. Thus, in treating of the
jus quod ad personas pertinet, when he comes to the
patria potestas, it is not his object to explain the mutual rights and duties of parents and children, but to point out the cases and events in which those rights and duties arise or cease.
Editions
A new edition of this work was loudly called for when
the first edition of 1821 was exhausted, and in 1824 Blume made a fresh collation of codex xiii., and the result of his renewed examination was given to the world by
Göschen, in the celebrated edition of 1824.
An improved reprint of this edition, by Lachmann, was published in 1842, the editor having completed a critical revision, which had been interrupted by the death of Göschen.
This third
editio Goescheniana is at present the
editio optima.
The civilians of the continent have, from the first publication of Gaius, laboured assiduously in interpreting the text, in composing dissertations on the doctrines contained in it, and in conjectural supply of the
lacunae, but no edition of the whole work with a good commentary has yet appeared.
The commentary of Van Assen (Ed. 2d. Lug. Bat. 1838) extends only to the first book.
Heffter's edition of the fourth book, with commentary (4to. Berlin, 1827), is valuable. Heffter's edition of the entire work, without commentary, was originally intended to form the first part of the Bonn (
Corp. Jur. Antejust., but all the copies of this edition have been long since exhausted, and its place has been supplied by an edition superintended by Lachmann. In
Klenze and Böcking's Gaii et Justiniani Institutiones (4to. Berlin, 1829), the texts of the two elementary works are placed side by side, but Gaius is made to yield to the order adopted by Justinian.
Böcking's latest edition of the Institutes of Gaius (12mo. Bonn, 1841) is convenient and useful.
Bibliography
Böcking in the preface of his 1841 edition gives a list of dissertations and other publications which illustrate his author.
The most valuable of these is the learned and imaginative Huschke's essay,
Zur Kritik und Interpretation von Gaius Institutionen, in his
Studien des Rö/m. Rechts (8vo. Breslau. 1830). Further information on the literature connected with Gaius may be found in Haubold's
Instit. Jur. Rom. Priv. Lineam. p. 151. n. (oo), p. 505 (8vo. Lips. 1826), and in Mackeldey's
Lehrbuch des Röm. Rechts, p. 52, n. (
b) (12th ed. Gessen. 1842).
There is a German translation of the first book, with copious notes of little merit, by Von Brockdorff (8vo. Schles. 1824).
There are French translations of the whole work by Boulet (Paris, 1826), Domenget (1843), and Pellat (1844). From the forthcoming volume of notes and commentary, by the last-mentioned eminent professor, much is expected.
In the
Lex Romana Wisigothorum, published under Alaric II. in A. D. 506, for the use of the Roman subjects of the Westgothic kingdom, the Institutes of Gaius appear, remodelled in barbarous fashion. They have been worse treated than the Theodosian Code and other legal works introduced into the same collection; for while a barbarous interpretation (
scintilla) was subjoined to the text of the other works, Gaius was found to be so full of antiquated law, that his text, in its original state, would have been unsuitable to the character of the times. Accordingly, it was so altered and mutilated as not to want an
interpretatio. The Gothic Epitome of Gaius, disfigured and imperfect as it is, is now of little use, since the discovery of the genuine Institutes, except for the purpose of understanding ancient quotations made from it, and of assisting in the restoration of the valuable original.
It consists, according to the ordinary division (for the manuscripts vary in this point), of two books, and contains no abstract of the fourth book of the genuine Gaius, concerning actions.
It has been ably commented upon by
Schulting, who gives a selection from the notes of preceding commentators (Jurisp. Antejust. p. 1-186), and by
Meerman (Thesaurus, vol. vii. p. 669-686).
It is edited by
Haubold in the Berlin Jus. Civ. Ante-Just. and by
Böcking in the Bonn Corp. Jur. Ante-J.
The
Breviarium, or
Lex Rom. Wisig., has been itself the theme of a corrupt abridgment of the second order, in base Italian Latin, interesting, perhaps, to a philological student.
Those who are anxious to see to what extent an ancient monument may be defaced and deformed, may consult the
Lex Romana Utinensis, at the end of the fourth volume of Canciani's
Leges Barbarorum. The following may be taken as a favourable specimen :--" Incipit liber Gagii i. Interpr. Ingenuorum statum unum est. Nam libertorum vero trea genera sunt. Injenui vero stint, qui de injenuos parents nascuntur. Liberti sunt, sicut jam diximus,trea genera : hoc est, cive Romanum, et Latine, et Divicicii."
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