INSTITUTIONES
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]
