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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 (i.
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 Gaios, while in other words, as Cicero, which was written in Greek Kikeron,
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.
In early times the name was trisyllabic, like the Greek Gaios (Catull.
x. 30; Mart. ix. 94, xi. 37; Stat. Sylv. iv. 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 gao, 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 (ii. 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, i. 188; Gell. xv. 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",
and, on the other hand, Gaius calls Pomponius simply Sextus (Gaius, ii. 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. i. 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. 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
(i. 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 lio. io". they are
introduced by Magister Vacarius into his elementary work on Roman law.
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"
(ii. 188). Gaius himself always quotes C. Cassius simply as Cassius, not as C.
Cassius. Servius (ad Virg. Georg. ii. v. 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 (Il. vii. 472-475) to prove that barter was a case of
emtio et venditio. But the very same lines are cited by Gaius (iii. 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 niaiscries 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 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 Tduli 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 permnissum
est jura condere (Gaius, i. 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 have thrown
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.
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 (ii. 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, ii. 177 with Ulpian, Frag. xxii. 34). In like manner,
the statements made by Gaius in iii. 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.
Some critics have been so nice as to infer that the beginning of the
Institutes of Gaius was written under Antoninuss Pius, and the remainder under
M. Aurelius. In i. 53. the former emperor is termed Sacratissimus Imperator Antoninus.
So, in i. 102, we have "Nunc ex epistola optimi Imperatoris Antonini", and,
in ii. 126, "Sed nuper imperator Antoninus significarit rescripto". The "Imperator
Antoninus" mentioned in ii. 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. c.
5, Justinian falls into an opposite error, in ascribing to Antoninus Pius an act
of legislation which belongs to Caracalla (Dion Cass. lxxvii. 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, ii. 195. It appears to us
that the inference founded on these minutiae, though probable, is not free from
doubt. In i. 7, and i. 30, Hadrian is called Divus Hadrianus. In i. 47, we have
Hadrianus without the Divus. Again in i. 55, we have Divus Hadrianus, and the
same epithet is applied to Hadrian in every other subsequent passage where his
name occurs, except in ii. 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 i. 47 and ii. 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 i. 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 ii. 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 Goschen, who thinks that Gaius, in the lacuna
preceding i. 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. vii. 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 (i. 196, ii. 15, 37, 79, 123, 195, 200, 217, 219-223, 231, 244,
iii. 87, 98, 103, 141, 167, 168, 177, 178, iv. 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 hint among the Herciscundi, 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 Cassins, 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
1. Ad Edictum Frovinciale, biblia lb [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)
2. Ad Leges [Juliam et Papiam Poppaeam], biblia dekapente. (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 (iii. 54).
It seems to have been published after the death of Antoninus Pius. (Dig. 31. s.
3. Ad Edictum Urbicum [praetoris urbani], ta mona eurethenta biblia deka. 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 (i. 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, aiid 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).
4. Aureon [Aureorum seu Rerum Quotidianarum], biblia hepta. 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. Justinian, in his Institutes, made considerable
use of this Golden Work (Prooem. Inst.6).
5. Dodekadeltou (sic, sed qu. Duodekadeltou vel Dodekadeltou) biblia hexi. 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.
6. Instituton (Institutionum), biblia tessara. Extracts, 14. An account of this
famous work is given below.
7. De Verborum Obligationibus, biblia g. Extracts, 12.
8. Die Manumissionibus, biblia tria Extracts, 5.
9. Fideicommnnisson [Fideicommissorum], biblia duo. 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.
10. De Casibus, biblion hen. Extracts, 7. We have already explained the purport
of this work.
11. Regulation [Regularum], biblion hen. 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.
12. 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.
13. Hupothekarias [Ad formulam hypothecariam], biblion hen. Extracts, 6.
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.
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, 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 Traite de Diplomatique, vol. iii. (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.
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
Goschen 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 Goschen, assisted by Hollweg, fulfil his difficult commission.
The original manuscript, in the opinion of the palaeographer Kopp, 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 Goschen. 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 Boethius (Ad Cic. Topica, iii. 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 (iii.
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 tile proposition
that the law of actions commences with obligationes was the late Hugo, who discussed
the subject at large in his Civilist. Mag., and returned to his favourite proposition
in one of his latest essays. He has undoubtedly in his favour the express declaration
of Theophilus (iii. 14. pr., and iv. 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 contracts,, and obligtio ex delicto (iii. 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 (iii. 89). Of obligationes ex delicto, Gaius
also instances four kinds : veluti si quis furtum fecerit, bona rapuerit, damnum
dederit, injuriam commiserit (iii. 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
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 [p. 203]
xiii., and the result of his renewed examination was given to the world by Goschen,
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 Goschen. 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.). In Klenze and Bocking'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. Bocking's
latest edition of the Institutes of Gaius (12mo. Bonn, 1841) is convenient and
useful. The editor in the preface 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 Ro/m. Rechts (8vo. Breslau. 1830). d.
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 interyretatio.
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.), and by Meerman (Thesaurus).
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".
This text is from: A dictionary of Greek and Roman biography and mythology, 1873 (ed. William Smith). Cited Nov 2005 from The Perseus Project URL below, which contains interesting hyperlinks
- A dictionary of Greek and Roman biography and mythology (ed. William Smith)
Related to the place
C. Furius, was duelumir nvaalis in B. C. 178, during the war against the Istrians. He had ten ships at his command, to protect the coast as far as Aquileia. In B. C. 170 he served as legate, and was stationed in the island of Issa, with only two ships belonging to the islanders. But as the Roman senate feared lest Gentius, king of the Illyrians, should commence hostilities, eight ships were sent to him from Brundusium. (Liv. xli. 5, xliii. 1.)
Gallus, Anicius (L. Anicius, L.F.M.N. Gallus), was praetor in B. C. 168, and conducted the war against Gentius, king of the Illyrians, who had formed an alliance with Perseus of Macedonia against the Romans. L. Anicius Gallus was stationed at Apollonia, and on hearing what was going on in Illyricum, he resolved to join App. Claudius, who was encamped on the banks of the river Genusus, to co-operate with him against the Illyrians; but as he was soon after informed that Illyrian pirates had been sent out to ravage the coasts of Dyrrhachium and Apollonia, Anicius Gallus sailed out with the Roman fleet stationed at Apollonia, took some of the enemy's ships, and compelled the rest to return to Illyricum. He then hastened to join App. Claudius, to relieve the Bassanitae, who were besieged by Gentius. The news of the arrival of Anicius Gallus frightened the king so much, that he raised the siege, and withdrew to his stronglyfortified capital of Scodra, and a great part of his army surrendered to the Romans. The clemency of the Roman praetor led the towns to follow the example of the soldiers, and Gallus thus advanced towards Scodra. Gentius left the place to meet his enemy in the open field; but the courage thus displayed did not last, for he was soon put to flight, and upwards of 200 men being killed in hurrying back through the gates, the king, terrified in the highest degree, immediately sent the noblest Illyrians as mbassadors to Anicius Gallus to beg fora truce of three days, that he might have time to consider what was to be done. This request was granted. Gentius hoped in the meantime to receive reinforcements from his brother Caravantius, but being disappointed, he himself came into the Roman camp, and surrendered in a most humble manner. Anicius Gallus now entered Scodra, where he first of all liberated the Roman prisoners, and sent Perperna, one of them, to Rome, with the intelligence of the complete reduction of Gentius. The whole campaign had not lasted more than thirty days. The Roman senate decreed public thanksgivings for three days, and Anicius Gallus, on his return to Rome, celebrated a triumph over Gentius. In B. C. 155 he was one of the ambassadors sent to call Prusias to account for his conduct towards Attalus. (Liv. xliv. 17, 30, 31, xlv. 3, 26, 43; Polyb. xxx. 13, xxxii. 21, xxxiii. 6; Appian, Illyr. 9.)
This text is from: A dictionary of Greek and Roman biography and mythology, 1873 (ed. William Smith). Cited Dec 2005 from The Perseus Project URL below, which contains interesting hyperlinks
Gabinius, A.? Gabinius, in B. C. 167, was placed by L. Anicius in the command of a garrison at Scodra in Illyricum, after the subjugation of king Gentius. (Liv. xlv. 26.)
- A dictionary of Greek and Roman biography and mythology (ed. William Smith)