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AH 7201 63.2

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1883. Mar 30, Minot Fund

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PREFACE.

SOME apology may be thought necessary for a new edition of the Institutional Commentaries of Gaius, with Translation and Notes, in presence of the two excellent ones we already possess from the pens of Mr. Poste and Messrs. Abdy and Walker. It is that neither of these incorporates the results of Studemund's revision of the Verona Codex.

I began this book with no other intention than that of correcting from his Apograph my own copy of the text previously in use. I soon found that the margins were insufficient to contain the amendments his fac-simile revealed, and that every here and there an interleaved note was required. Before long I was so impressed with the value of the corrections and additions that it became a matter of regret to me that they were not accessible to students. So I set myself, in the hours I could spare from other duties, to prepare an edition for college use; and, to make it more serviceable, I eventually resolved to add to it a translation and notes.

Had the recent editions of Krueger, Huschke, and Polenaar, which all embody Studemund's amendments, been published earlier, my task probably would never have been undertaken ; they are the work of much more competent hands than mine, directed by profound knowledge of their subject, and by great critical and palæographical experience. But that of Krueger, edited in conjunction with Studemund himself, did not appear until the end of 1877; Huschke's appeared last year; and the last part of Polenaar's only in the beginning of the present one. Their successive publication has contributed to the delay in the appearance of the present volume; for they occasioned three revisions of my text after its completion, that I might have the opportunity of introducing any readings of theirs that seemed to me preferable to my own. It was with agreeable surprise I found how little those I had adopted varied from those of Krueger and Huschke; frequently when I differed from them I accepted their interpretations without hesitation ; sometimes, notwithstanding my unbounded respect for the authority of two such masters, I have unfortunately felt constrained to adhere to my own humble opinion, and mention its divergence in the footnotes.

To affirm that the Institutes of Gaius are worthy of being submitted to the student in as complete and perfect a form as it is possible to give them, is happily at the present day superfluous; they are everywhere regarded and studied as the necessary complement of those of Justinian. In the one we have the outlines of the nearly completed fabric of Roman jurisprudence, when its law and equity had almost ceased to be distinguishable; in the other we have before us the separate fabrics of the jus civile and the jus honorarium, and can see the portals of the latter opening to those who have been repulsed from the former. In other words, we can trace step by step in the pages of Gaius the process whereby Rome's natural law was developed alongside her civil law, and the way prepared for that matured jurisprudence which the compilations of Justinian have preserved.

In the short Introduction that follows will be found all that it seems essential for the student to know of Gaius and his Institutes, of the Verona Codex and Studemund's Apograph. I have particularly to request his attention to the explanations he will find there of the peculiarities of typography it has been considered expedient to employ in the text and translation.

To the Institutes of Gaius I have appended what are commonly known as Ulpian's Fragments,-a portion, and unfortunately all we possess, of an abridgment by an unknown hand, made probably in the early part of the fourth century, of his Book of Rules. In regard to them and their author I have also said a few words in the Introduction.

To both I have added a copious Alphabetical Digest. I well remember the difficulties I experienced in my student-days from the want of such a conspectus ; and I cherish the hope that it may prove of service to some who are only commencing their study of the law of Rome. To others also it may possibly be found useful, who have no intention of devoting themselves to jurisprudence, yet are occasionally puzzled by allusions they find to its rules and institutions in the pages of the classical writers.

Some corrigenda are noted on p. 435.
EDINBURGH, November, 1879.

INTRODUCTION.

I. GAIUS.

1. His Period and Place in Jurisprudence.
2. His Institutes.
3. The Verona Codex.
4. Studemund's Apograph.
5. The Present Edition.
6. Typographical Explanations.
7. The Translation and Notes.

1. Gaius' Period and Place in Jurisprudence.—Of the history of Gaius we unfortunately know little ; for though he was Gaius Noster, as Justinian calls him, with the Byzantines of the fifth and sixth centuries,--the Gaius whom we all know so well, -he is unmentioned by any of his contemporaries or successors of the classical period. That before the death of Hadrian he was old enough to take note of passing events we gather from an observation of his own in a passage from his pen preserved in the Digest; and internal evidence testifies that his works were written in the reigns of Antoninus Pius and Verus and Marcus Aurelius. Whether he was a Roman or a provincial jurist is a matter of controversy. The latter view is espoused by Mommsen, who has assigned his reasons for entertaining it in an elaborate paper in the Jahrbuecher des gemeinen deutschen Rechts, vol. iii, p.1; but Huschke, whose opinion on any question of Ante-Justinianian law or its history must always be received with the utmost respect, seems inclined to arrive at a different result. Whether or not he possessed the jus respondendi, which he himself describes in $7 of the First Book of his Institutes, is also disputed: some, relying on the fact that Justinian's instructions to his Digest Commissioners were to make use only of those authors who had the imperial licence, and that Gaius is one whom they utilised to a large extent, maintain the affirmative; while others think that in his case, and because of his repute in the schools, those instructions were disregarded

It is quite certain that we have no record of any of his Responses ; and there is good reason to think that he was not so much a practitioner as a teacher and a literary jurist. He himself refers in his Institutes to three or four earlier works: one on the writings of Q. Mucius Scaevola, one on the Edict, one on Bonorum Possessio, and another on the Rights of Patrons. On the Edict, both urban and provincial, he wrote voluminously; and amongst other treatises of his from which passages are preserved in the Digest the more important are his Commentary on the Twelve Tables and his Libri Rerum Cottidianarum,-his Aurea or Golden Sayings, as they came to be called at a later period. To the last Justinian specially refers in his preface to his Institutes. From the remains of them which we possess it is impossible to judge of their purpose; they are written more carefully and elaborately than one would expect to be the case with daily jottings, as some regard them, and rather give the impression of being materials for a more ambitious work, which its author did not live to complete.

2. His Institutes.—The Institutionum Commentarii Quattuor, reproduced in the following pages, seem to have been written partly in the reign of Antoninus Pius, partly in that of Marcus Aurelius. It has been suggested that they are not directly the work of Gaius, but rather notes of his lectures made by an auditor. There are no doubt turns of expression in them that afford grounds for such a surmise; but taking them as a whole they do not convey the idea of the record of a spoken discourse; they are much more of the nature of a text, requiring exposition and illustration by a speaker. Had they not been a genuine work of Gaius' they could hardly have enjoyed the reputation which caused them to be used as the elementary text-book from the time of the establishment of the Constantinople law-school in 425 down to that of Justinian's reforms in 533, to be drawn upon so largely as authoritative statements of Roman law in the Collatio Legum Romanarum et Mosaicarum in the beginning of the fifth century, and to be epitomised by Alaric's commissioners for his Lex Romana Visigothorum in 506.

That Justinian, in the Institutes that bear his name, had borrowed largely from the earlier ones of Gaius, was a fact well known; but it was not until the Verona Ms. was deciphered that

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