Page images

pre-eminent auctoritas, or exclusive legislative authority, equal to that of four other jurists, Papinian, Ulpian, Paulus, and Modestinus.

Besides his Institutions, Gaius was the author of many other treatises, of which fragments are preserved in the Digest, and some of which are alluded to by Gaius in the Institutions. For instance, he wrote a treatise on Edictum Urbicum, 1 188, which, as opposed to Edictum Provinciale, probably embraced the edicts of the Praetor urbanus, the Praetor peregrinus, and the Aedilis curulis ; a commentary on the Twelve Tables, another on the lex Papia Poppaea, another on the works of Quintus Mucius, besides a treatise on Res quotidianae, and the above-named treatise on Sc. Orphitianum and another on Sc. Tertullianum.

The name of the recently discovered work does not appear in the MS.; but from the proem to Justinian's Institutes appears to have

. been INSTITUTIONES, or to distinguish it from the systems of Rhetoric which also bore this name, INSTITUTIONES IURIS CIVILIS.

From the way in which it is mentioned by Justinian, we may infer that for 350 years the élite of the youth of Rome were initiated in the mysteries of jurisprudence by the manual of Gaius, much as English law students have for many years commenced their labours under the auspices of Blackstone. It is probably in allusion to the familiarity of the Roman youth with the writings of Gaius that Justinian repeatedly calls him (e. g. Inst. proem, 6 ; Inst. 4, 18, 5; and in the Constitution prefixed to the Digest, and addressed ad Antecessores, § 1), 'our friend Gaius' (Gaius noster). The shortness of the time that sufficed Tribonian and his colleagues for the composition of Justinian's Institutes (apparently a few months towards the close of the three years devoted to the compilation of the Digest, Inst. proem) is less surprising when we see how closely Tribonian has followed the arrangement of Gaius, and how largely, when no change of legislation prohibited, he has appropriated his very words. .

Certain internal evidences, as already noticed, fix the date at which portions of the Institutions were composed. The emperor Hadrian is spoken of as Departed or Deceased (Divus) except in 1 § 47 and 2 57. Antoninus Pius is sometimes (1 $ 53, 1 § 102)

1 named without this epithet, but in 2 § 195 has the style of Divus. Marcus Aurelius was probably named, 2 § 126, and the Institutions were probably published before his death, for 2 $ 177, as above mentioned, contains no notice of a constitution of his, recorded by

[ocr errors]
[ocr errors]

Ulpian, that bears on the matter in question. Paragraphs 3 $ 24, § 25 would hardly have been penned after the Sc. Orphitianum, A.D. 178, or the Sc. Tertullianum, A.D. 158.

An apograph or facsimile edition of the Veronese MS. has been published in the last year by Studemund, and we may hope that the learned editor will shortly publish a version of the text containing the emendations suggested by the apograph. In the meantime I have reprinted the very judicious edition of Gaius given by Gneist in his Syntagma Iuris Romani, with, however, a few variations, which are indicated in an Appendix.

In the text of Gaius, the words or portions of words which are purely conjectural are denoted by italics. The orthography of the Veronese MS. is extremely inconstant. Some of these inconstancies it will be seen are retained : e.g. the spelling oscillates between the forms praegnas and praegnans, nanctus and nactus, erciscere and herciscere, prendere and prehendere, diminuere and deminuere, parentum and parentium, vulgo and volgo, apud and aput, sed and set, proxumus and proximus, affectus and adfectus, inponere and imponere, &c. Some irregularities likely to embarrass the reader, e. g. the substitution of v for b in debitor and probare, the substitution of b for v in servus and vitium, have been tacitly corrected. The numeration of the paragraphs was introduced by Goeschen in his first edition of Gaius, and for convenience of reference has been retained by all subsequent editors. The rubrics or titles marking the larger divisions of the subject, with the exception of a few at the beginning, are not found in the Veronese MS. Those that are found are not very apposite, and are supposed not to be the work of Gaius, but of a transcriber. To distinguish them from the others they are accompanied with a translation. The remainder are partly taken from the corresponding sections of Justinian's Institutes, partly invented or adopted from other editors.

An elementary treatise can scarcely make any profession of originality. I have availed myself of lights wherever I could obtain them. And, not to crowd the following pages with references to the writers to whom I am indebted, I must here once for all acknowledge my obligation, not to mention many authors from whom I have borrowed isolated views or quotations, to Austin,

, to Ortolan, to Puchta, to Ihering, to Bethmann-Hollweg, and above all to Vangerow and Von Savigny.

For the sake of students who have used the first edition it may

[ocr errors]

be observed that the principal changes of opinion in this edition relate to the nature of Exceptions and Interdicts.

The principal additions to the commentary relate to the following subjects:

Disposition and the incidents of Ignorance and Compulsion, p. 9:
Coemptio, p. 96:
In integrum restitutio, p. 151:
Juristic persons, p. 153:
Servitudes, pp. 165, 179, 487 :
Testamentifactio and Capacitas, p. 222 :
Ereptio for indignitas, p. 225:
Postumi sui, classification of, p. 235 :
Juxta-tabular and Contra-tabular possession, pp. 229, 238:
Tempus utile, p. 255 :
Institution of another person's slave as successor, meaning of,

[ocr errors]

p. 262 :

Lex Falcidia, operation of, p. 293 :
Mora, p. 302:

Municipalities, Origo, Domicilium, Forum, Lex, Comity of nations, pp. 335, 511 :

Insolvency, p. 351:

Intercessio, Correality, Solidarity, Delegatio, Interventio, pp. 395, 670:

Litis contestatio, p. 445 :
Damages, measure of, p. 469:
Prescription, Nativity of right of action, p. 580:
Simulative dispositions, p. 666.

The translation has been modified (I trust, with advantage, notwithstanding the novelty of certain expressions) in various places, particularly in passages relating to Praetorian succession (Bonorum possessio) and to Exceptio.

As substantive institutions, subject to peculiar incidents and governed by peculiar rules, Bonorum possessio contra tabulas and Bonorum possessio secundum (or, juxta) tabulas require to be denoted by distinctive names, or at least by circumlocutions wherein their distinctive feature appears as a differentia : accordingly they have been respectively rendered by the terms Contra-tabular possession and Juxta-tabular possession.

Exceptio in the first edition was regarded as a defence appealing to Equity or jus praetorium, as opposed to a defence appealing to

Law or jus civile or jus strictum. In the present edition it is regarded, in accordance with the exposition of Savigny, as a defence alleging a collision between the right of the plaintiff and a counter right of the defendant, as opposed to a defence denying the right of the plaintiff: and, wherever significant expressions have been attempted, the translation has been correspondingly modified.

Legis actio, the technical name of the primitive mode of procedure, as presenting a contrast both to an earlier system of violent self-redress and to a later system (marked by diminished jealousy of the magistrate) of magisterial interposition and magisterial discretion, has been invariably rendered by the term Statuteprocess.




Foundation of Rome.

578—535. Servius Tullius. Division into thirty Tribes. Institution

of Comitia Tributa, Census, Comitia Centuriata.


First secession of the Plebs. Appointment of Tribunes of

the Plebs.


Laws of the Ten Tables promulgated.

450-449. Two additional Tables of Laws. The Patricians incor

porated in the Local Tribes. Lex Valeria Horatia gives legislative power to Comitia Tributa.

[blocks in formation]


Q. Publilius Philo, Dictator, abolishes the veto of the Comitia

Centuriata on the legislative measures of the Comitia

[blocks in formation]


Cnaeus Flavius publishes a calendar of Dies Fasti and



Last secession of the Plebs. Q. Hortensius, Dictator,

abolishes the veto of the Senate on the legislative measures of the Comitia Tributa.


First issue of silver coins at Rome.

First gladiatorial exhibition at Rome.



Lex Silia about this time.

« PreviousContinue »