Gallus, C. Aqui'llius
one of the most distinguished of the early Roman jurists--those " veteres
"--who flourished before the time of the empire. Born of an ancient and noble plebeian family, he applied himself to the study of the law, under the auspices of Q. Mucius P. f. Scaevola, the pontifex maximus, who was the greatest jurist of the day. Of all the pupils of Q. Mucius, he attained the greatest authority among the people, to whom, without regard to his own ease, he was always accessible, and ready to give advice. For deep and sound learning, perhaps some of his fellow-pupils, as Lucilius Balbus, Papirius, and C. Juventius, may have had equal or greater reputation among the members of their own profession ; but they did not, like Gallus, exercise much influence on the progress of their art.
He was an eques and senator.
At the end of the year B. C. 67 he was elected praetor along with Cicero, and, in the discharge of his office, greatly signalised himself by legal reforms, of which we shall presently take notice. During his praetorship he presided in quaestiones de ambitu,
while the jurisdiction in cases de pecuniis repetundis
was assigned to his colleague. (Cic. Clu. 54
He never aspired to the consulship, for he was pruden and unambitious, or rather, his ambition was satisfied by the judicial sovereignty which he exercised. Moreover, he dreaded the additional toils of an office to which he felt his declining health unequal. (Ad Att.
1.1.) Of the details of his private life little is known. Pliny (Plin. Nat. 7.1
) says, epigrammatically, that he was even more distinguished for the magnificent mansion which he possessed upon the Viminal I ill than for his knowledge of the Civil Law.
It was in this mansion, the most superb in all Rome (P. Victor, De Urb. Rom. Region.
v.), that his intimate friend, Q. Scapula, suddenly expired while at supper with Gallus. (Plin. Nat. 7.53
In a letter addressed to Servius Sulpicius, in B. C. 46 (ad Fam.
4.6), Cicero speaks of a Gallus, a friend and relative of Servius (vester Gallus
), who lost a promising son, and bore his loss with equanimity ; but though Gallus Aquillius, the jurist, was the friend and legal preceptor of Servius, it is doubtful from the context whether he is the person referred to.
In the Topica,
a treatise which was published in B. C. 44, Gallus is spoken of in the past tense, as no longer living. (Top.
We can only briefly review the professional career of Gallus. Taught, himself, by the great Mucius Scaevola, he could boast of being in turn the principal instructor of Servius Sulpicius, who had previously learned the elements of law from Lucilius Balbus, and combined the excellencies of both his masters; for if Balbus were more esteemed for solid and profound acquirement, Gallus had the advantage in penetration, dexterity, and readiness. (Cic. Brut. 42
.) " Institutus fuit" (Servius), says Pomponius, in the ill-written fragment De Origine Juris
(Dig. i. tit. 2. s. 2.43), " a Balbo Lucilio, instructus autem maxime a Gallo Aquillio, qui fuit Cercinae. Itaque libri ejus
complures extant, Cercinae confectae." Cujas, in his comment on this passage, speaks of Cercina as an island on the coast of Sicily, but no such island is mentioned by the ancient geographers, according to whom Cercina was an island (now Gamalera) in the Mare Syrticum, where Marius lay hid. (Mela, 2.7; Plin. Nat. 5.7
There is some improbability in the supposition that Servius, although he visited Athens and Rhodes (Cic. Fam. 4.12
41), should have passed his time with his preceptor in an island on the coast of Africa--a singular choice of a vacation residence for a busy jurist and his pupils! Hence some critics conjecture that Caecilla, in Etruria (Mela, 2.4), is meant, and others have thought of Sicyon or Corcyra.
It is equally doubtful whether the author of the works said to have been written at Cercina were Servius or Gallus. (Otto, in Serv. Sulpie. Thes. Jur. Civ.
vol. v. p. 1585-6.) If Servius is meant, there is a needless repetition, for Pomponius, referring to Servius, shortly afterwards says, " Hujus volumina complura extant."
In the time of Pomponius, some works of Aquillius Gallus were extant, but copies of then were scarce, and their contents were not such as to conduce to their popularity. Servius Sulpicius incorporated the works of Gallus, and of other disciples of Mucius, in his own writings, completed what they had left imperfect, and, while he acknowledged his obligations to their productions, he at once secured them from oblivion, and deprived them of the chance of independent fame, by the superior attraction of his own style. By Ulpian, Gallus is cited at secondhand from Mela, ill Dig. 19
. tit. 1. s. 17.6.
It is remarkable, that we are not acquainted with the title of any one of his works, though he is often quoted in the Digest. Thus, lie is loosely quoted by Labeo (Dig. 33
. s. 29.1), by Africanus (Dig. 28
. tit. 6. s. 33.7), by Cervidius Scaevola (Dig. 28
. tit. 2. s. 29), by Licinius Rufinus (Dig. 28
. tit. 5. s. 74), by Javolenus (Dig. 40
. tit. 7. s. 39, pr.), by Florentinus (Dig. 46
. tit. 4. s. 18.1), by Paulus (Dig. 30
. s. 127; Dig. 34
. tit. 2. s. 32.1), by Ulpian (Dig. 8
. tit. 5. s. 6.2 ; Dig. 30
. s. 30.7, Dig. 43
. tit. 24. s. 7.4).
This unspecific mode of quotation shows that his original works were not in men's hands, and the same inference may be deduced from the silence of the old grammarians, who never illustrate the usage of words by citations from Aquillius Gallus. His authority, however, is invoked by Dionysius of Halicarnassus (lib. iii. p. 200, ed. Sylburg.), for the statement that, on one occasion, when the sewers were out of repair, the censors agreed to pay 100 talents for their cleansing.
Aquillius Gallus early acquired high reputation as a judex, and Cicero frequently appeared as an advocate when his friend sat upon the bench. Already, in B. C. 81, the youthful orator pleaded the cause of Quintius before Gallus (Gel. 15.28
), and, a few years afterwards, Gallus was one of the judices on the trial of Caecina.
In the latter case (pro Caec.
27), Cicero lavishes very high encomiums on his knowledge, ability, and industry, as well as his just and merciful disposition.
The speech Pro Cluentio
was also addressed to Gallus as a judex. Cicero himself resorted for legal advice to his friend, although, in a question relating to a right of water, he says that he preferred consulting M. Tugio, who had devoted exclusive attention to that branch of the law (pro Balb.
20). Callus, on the other hand, when he was consulted on questions which involved controverted facts rather than legal doubts, used to refer his clients for advice and assistance to Cicero, as the great orator and skilful advocate (Topic.
It is probable that Gallus was deficient in oratorical power, for on no occasion do we find him complimented by Cicero on any such gift. Among the important causes which he heard was that of Otacilia, who had carried on an adulterous intrigue with C. Visellius Varro. Varro, being seriously ill, and wishing to make her a present, which, if he died, she might recover from his heirs
under colour of a debt, permitted her to charge against him in a settled account the sum of 300,000 sesterces, but, as he did not die so soon as she expected, she brought an action against himself
to recover the amount with interest.
This impudent demand was upset by the legal authority and learning of Aquillius Gallus, who was appointed judex in the case. (V. Max. 8.2
Such was Gallus in practice, as counsel and judex, skilful in his art, with armour always bright, and weapon always keen.
But he possessed higher qualifications, which were perhaps not sufficiently appreciated by his contemporaries.
He had a strong love of equity, and a strong dislike to chicanery and fraud, and a clear perception of the points in which justice was defeated by technicalities.
It would have been too daring an attempt to disturb the artificial system of Roman jurisprudence by a legislation which, though it remedied some of its defects, was not in harmony with its established rules. Accordingly, Gallus applied his ingenious and inventive mind to the contrivance of legal novelties, to which his authority was sufficient to give currency, because, while they cured evils, they disturbed no settled notions. To explain all his improvements in the law would exceed our limits, but there are three which deserve special mention -- his formulae, 1st, for the institution of heirs; 2d, for releasing legal claims; and, 3d, for procedure in case of fraud.
As to the first head, a testament might have been broken, if it nominated a stranger as heir, passing over a suus heres,
though such heres should be born after the testator's death.
This latter event was provided for by a formula invented by Aquillius Gallus.
He also provided a form, which was adopted on his authority, for the institution, as heres, of a postumus,
who was not a suus heres.
. tit. 2. s. 29, Dig. 28
. tit. 6. s. 33.7, Dig. 28
. tit. 5. s. 74.)
As to the second head, he devised a summary mode of giving a general release of all obligationes.
An obligatio could only be dissolved altogether by some mode appropriate to the mode in which it had been contracted; but the nature of an obligatio might be altered by its renewal in another form (novatio
), after which the legal incidents of the old obligatio were extinguished.
In order, therefore, to prevent the necessity of various modes of release, where there might be obligations of various kinds, Aquillius Gallus devised the plan of first turning by a novalio
every existing obligatio into a single verborum obligatio,
which might be dissolved by acceptilatio,
or a fictitious acknowledgment that the obligatio had been discharged. A. undertakes by sponsio
to pay to B. the value of every obligation of every kind by which A. is bound to B.
The former obligationes being thus merged in the sponsio,
all claims are released at once by a fictitious acknowledgment by B. that he has received from A. the stipulated payment. Such are the principles upon which is founded the celebrated Stipulatio Aquilliana,
the form of which is given in Dig. 46
. tit. 4. s. 18.1, and in Inst. 3. tit. 29.2.
As to the third and most important head, the formulae in case of fraud -- that improvement which swept every species of wickedness out of its last lurking-place (everriculum maliciarum omnium
)--from what is said by Cicero, in De Nat. Deor.
3.30, and De Off.
3.14, we have strong reason for concluding, that if the clause in the praetor's edict, which is preserved in Dig. 4
. tit. 3.1, was introduced before the time when Gallus was praetor, the mode of proceeding in the judicium de dolo malo,
and the legal remedies against fraud, at least received important improvements from his hands. Hugo, however, thought that the formulae de dolo malo
were nothing more than new clauses in contracts. (R. R. G.
p. 861, ed. 1832.)
The definition of dolus malus
was a vexata quaestio.
According to Gallus, there was dolus malus, "quum esset aliud simulatum, aliud actum."
He was noted for definitions in other cases. His definition of litus
as the place " qua fluctus alludit,"
has been often cited as happy though metaphorical. (Cic. Topic.
7; Quint. Inst. Or.
iii. c. ult.)
The jurist Aquillius Gallus (who is not recorded ever to have been tribune of the plebs) was not the proposer of the Lex Aquillia, which is a plebiscitum of earlier date (Inst. 4. tit. 3.15), having been mentioned by Brutus (Dig. 9
. tit. 2. s. 27.22) and Q. Mucius (ibid.
s. 39. pr.). Furthermore, we must not (as the compiler of the Florentine Index to the Digest appears to have done) confound Aquillius Gallus with the later jurist Aquila.
The inscription in Gruter (p. 652. No. 6), in which mention is made of L. Aquillius Gemellus, the freedman of the jurist, is probably spurious.
Bertrandus, De Jurisp.
2.9; Guil. Grotius, De Vitis ICtor.
1.8.5-8; Maiansius, ad XXX ICtor. Frug. Comment.
vol. ii. p. 57-126; Heineccius, De C. Aquillio Gallo, ICto celeberrimo
vol. ii. pp. 777-9; Zimmern, R. R. G.