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

the extent of his obligations to them was disclosed. It was impossible to discover it from the West Gothic Epitome, in two books, of the matter contained in the first three of the genuine Commentaries; and comparison of the Justinianian Institutes with passages in the Digest that bear to be excerpted from those of Gaius showed no more than this, that in several places the later work was a literal transcript of the earlier. But now we know, that although other books dating from the Antoninian period were brought into requisition by the authors of the Justinianian compilation, and that a good deal of new matter was clumsily introduced to adapt it to the existing state of the law, not only was Gaius taken as their model in plan and construction, but his text was really made the basis of theirs.

3. The Verona Codex. In 1732, and again in 1742, Scipio Maffei, in describing some of the manuscripts in the Chapter Library at Verona, referred to and printed a stray leaf, which he supposed had been cut either out of a copy of the Pandects or out of some compendium of Justinian's Institutes, and of which the greater part dealt with the subject of interdicts. Somehow this escaped the notice of the jurists until 1816, when Haubold lighted upon it, and at once came to the conclusion it was a leaf from the long-lost Gaius. Almost at the same moment, by a curious coincidence, Niebuhr was passing through Verona, visited the library, came upon the same leaf, and arrived at the same conclusion. But simultaneously he made a much more important discovery; for, underneath what had previously passed for no more than a copy of the Epistles of St. Jerome, he detected the very copy of the Institutes of Gaius from which the leaf in question had been extracted.

Niebuhr's discovery was promptly communicated to Savigny; and in the following year, at his suggestion, Goeschen and Bekker were deputed by the Prussian Academy of Sciences to proceed to Vero na to make a transcript. Bekker having soon afterwards been prevented by other duties from going on with the undertaking, Bethmann-Hollweg became Goeschen's associate. Their task was no easy one; for not only had the MS. of St. Jerome to be removed, but on some leaves an intermediate writing; and the difficulty of reviving the original characters was increased by the fact that in many places they had been erased with pumice-stone, and the parchment thus rendered susceptible of serious injury from the

use of even the mildest chemicals. They succeeded so far, however, as to be able to give to the world in the end of 1820 the first edition of the complete Institutiones or Institutional Commentaries of Gaius.

Two years later Blume was in Verona, and seized the opportunity to revise those pages of the MS. that had yielded Goeschen his least fruitful results. It appears from a communication of Blume's to one of the German law journals in 1864, that, through loss in transit by post of a communication to Hugo, the world never got the full benefit of his readings. This is the more to be deplored, as it is to his somewhat reckless use of chemicals, far more powerful than those Goeschen had ventured to employ, that some pages of the MS. have been reduced to a condition which leaves even the most sanguine little ground for expectation that they will ever be deciphered.

4. Studemund's Apograph.-Although Boecking, in 1866, published what he called an Apograph of the Verona Codex, yet it was in reality produced not from the original, but from the copies made by Goeschen, Hollweg, and Blume, preserved in the Royal Library at Berlin. Leaving out of account as of little value what was done by Tedeschi in 1856, the only conscientious revision of the MS. that has been accomplished since Goeschen and Hollweg's is that of Studemund, commissioned, as they had been, by the Prussian Academy. He began his labours in 1866, and in 1867 and 1868 had the benefit occasionally of the advice and assistance of Mommsen and Krueger. Interruptions from various causes, and the deplorable condition of some of the leaves, made the revision a work of years; but when completed the results were considered so valuable, that the same learned body at whose instigation the task had been commenced resolved that jurisprudence should have the benefit of them in a reproduction approaching as nearly as possible to a fac-simile. Types truthfully representing the letters of the MS., with its abbreviations and other marks, were cast for the purpose from a photographic reproduction of one of the sheets; and the Apographum was eventually published in a magnificent quarto volume in the beginning of 1874.

The MS., it must be admitted, displays many imperfections. It seems to have been written, as the best judges are at one in thinking, in the earlier half of the sixth century, and probably, as the

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