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tum, occurs in 2 $ 195, and looks like an annotation transferred by a transcriber from the margin to the text. As this use of the word is very barbarous and comparatively recent, Huschke is inclined to believe that the century preceding Justinian is the earliest date that can be assigned to the MS.
In a year after Niebuhr's discovery the whole text of Gaius had been copied out by Goeschen and Hollweg, who had been sent to Verona for that purpose by the Prussian Royal Academy of Sciences, and in 1820 the first edition was published. Since that time the text has been gradually purified by the labours—the wonderful learning, ingenuity, and patience—of many distinguished German jurists and scholars.
Little is known about Gaius, not even his family name (cognomen), or gentile name (nomen), for Gaius is merely an individual name (praenomen). The word Gaius' is a trisyllable in the classical period, for instance, in the versification of Catullus, Martial, and Statius; but at a later period, e.g. in the versification of Ausonius, it is contracted into a dissyllable.
Respecting his date, we know that he flourished under the emperors Hadrian (A.D. 117-138), Antoninus Pius (A.D. 138-161), Marcus Aurelius Antoninus (A.D. 161-180), and Commodus (A.D. 180–192). Gaius himself mentions that he was a contemporary of Hadrian, Dig. 34, 5, 7, pr. He apparently wrote the First Book of his institutions under Antoninus Pius, whom he mentions, $ 53, § 74, § 102, without the epithet Divus (of divine or venerable memory), a term only applied to emperors after their decease, but in the Second Book, $ 195, with this epithet. The Antoninus mentioned, $ 126, is either Pius or Marcus Aurelius Philosophus. Respecting the rules of Cretio, 2 § 177, Gaius appears not to be cognizant of a constitution of Marcus Aurelius mentioned by Ulpian, 22, 34. That he survived to the time of Commodus appears from his having written a treatise on the Sc. Orphitianum, an enactment passed under that emperor.
As the opinions of Gaius are not quoted by the subsequent jurists whose fragments are preserved in the Digest, it has been inferred that Gaius was a public teacher of jurisprudence (jus publice docens), who never in his lifetime obtained the highest distinction of the legal profession, the title of juris auctor (jus publice respondens). Valentinian, however, after his death raised Gaius to the position of juris auctor, that is, gave to his writings 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) 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
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
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:
p. 262 :
Lex Falcidia, operation of, p. 293:
Municipalities, Origo, Domicilium, Forum, Lex, Comity of nations, pp. 335, 541 :
Insolvency, p. 351 :
Intercessio, Correality, Solidarity, Delegatio, Interventio, pp. 395, 670:
Litis contestatio, p. 445 :
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