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Introduction. xi

equitable interpretations and fictions, upon the old Civil Law. A few words upon these two points will not be out of place. There is a chapter in Mr Merivale's able History of the Romans under the Empire, which is most deserving of consideration by the student of Gaius. It is the one in which he speaks of the events that marked the reign of the Emperor Antoninus Pius1. The historian there passes in review the political elements of Roman Society at that time. Among the phenomena most deserving of attention two are especially noticed, the position of the Provincials in the state and the extension of the franchise on the one hand, and the relation of the Jus Civile and the Jus Gentium on the other. On the former head the narrative treats first of the struggles of the foreigners to obtain a participation in the advantages of Quiritary proprietorship, next of the gradual extension of Latin rights, and afterwards of full Roman rights, till the latter were in the end enjoyed by all the free population of the Empire. One or two passages deserve quotation simply for the sake of their illustration of the proposition we shall maintain— that Gaius held it a leading object to illustrate that part of the law that had the highest interest for the practitioners of the day, viz. the legal rules and the method of procedure by which the transactions and suits of the peregrini were affected.

Mr Merivale tells us then "that great numbers had gained their footing as Roman Citizens by serving magistracies in the Latin towns, but the Roman rights to which they had attained were still so far incomplete that they had no power of deriving an untaxed inheritance from their parents. Hence the value of citizenship thus burdened and circumscribed was held in question by the Latins. Nerva and Trajan decreed that those new citizens, as they were designated, who thus came in, as it was called, through Latium, should be put on the same advantageous footing as the old and genuine class." Again he says, "great anxiety seems to have been felt among large classes

to obtain enrolment in the ranks of Rome Hadrian was

besieged as closely as his predecessor. Antoninus Pius is

1 Ch. Lxvi1.

xii Introduction.

celebrated on medals as a multiplier of citizens." From these facts we can draw the conclusion that a large portion of the most important and lucrative business for lawyers in Rome at the period when Gaius wrote consisted of suits in which the Peregrini were concerned, and therefore that a knowledge of the rules of law by which they were affected was of the highest value. Hence it is easy to account for the constant and close attention bestowed by Gaius upon the Latinitas, and upon all legal matters relating to it, throughout the Commentaries.

It would, however, be impossible to deal with these topics apart from that very remarkable phenomenon that must catch the eye of every reader of Roman law, viz. the Jus Gentium and its influence upon the Praetorian Courts. Here again Mr Merivale must be our authority, for he has shewn most clearly how useless was the civil law of Rome in respect of questions between foreigners or between citizens and foreigners. He has described the anomalous relations of the Jus Civile and the Jus Gentium in the Flavian Era, and has drawn attention to the important position occupied by the Edict of the Praetor. To his narrative we can but refer, but the inference we would draw from that narrative is that the attraction and value of Gaius's work to its first readers lay precisely in the fact that upon all these points (points as we see of the highest value at that time to the practising lawyer), his rare knowledge of pleading and procedure and his nice appreciation of the value of equitable remedies made him an authority of the highest rank, and that these topics were never disregarded when an allusion to them or illustration from them was possible.

3rd. As to the shape in which the work of Gaius was first given to the world we have already intimated our opinion. It was not a systematic treatise composed and prepared for publication like the Institutes of Justinian, but a sketch of lectures to be delivered on the legal questions most discussed at the time, corrected and amplified afterwards by the lecturer's own recollections of his vivd voce filling-up, or by reference to notes taken by some one of his auditors1.

1 After this conclusion had been satisfaction of finding their views come to by the Editors they had the borne out by an excellent monograph Introduction. xiii

That the Commentaries are not intended to be a brief Compendium is plain. In a Compendium every topic is touched upon, none treated at excessive length. Gaius, on the contrary, omits many subjects altogether, as dos, peculium castrense, the rules as to testamenta inoffiriosa and the quarta legitima (although the cognate subjects of institution and disinheritance are amply discussed), all the real contracts except mutuum, the "innominate" contracts, quasi-contracts, and quasi-delicts, the rules as to the inheritance of child from mother or mother from child, &c. &c. Other topics he discusses at inordinate length; the subject of the Latinitas is explained fully twice, viz. in 1. 22 et seqq. and again in in. 56 et seqq.; the description of agnatio in 1. 156 is repeated almost word for word in in. 10, and with the very same illustrative examples; the circumstances under which the earnings of others accrue to us are catalogued in n. 86, and again in nearly the same phraseology in 111. 163; so too there is a double discussion of the effect of the Litis Contestatio, first in in. 180, 181, secondly in iv. 106—108. Huschke, who assumes the Commentaries to have been from the beginning a systematic treatise, says that Gaius would not have investigated the same subject twice, nor have stayed the progress of the reader to recall him to what had been already described, unless he had allowed the earlier books to pass from his hands and so could not by reference to them discover that he was passing a second time over the same ground: and hence he frames a theory that the Commentaries were published in parts. "This hypothesis," says Huschke, "explains why on many points there is a second notice fuller and more accurate than the first."

But the second reference is not always more full and accurate than the first. Many proofs of this might be given, but we will only ask the reader to compare the passages II. 35—37 and in. 85—87, and say whether the latter adds anything to the knowledge imparted to us in the former. So also in other instances, as II. 58 and in. 201.

published only a few months back Institutional des Gaius, ein Colleby Dr Dernburg of Halle, of which gienheft aus dan Jahre 161 nach they have since made free use. Die Christi Geburt. Halle, 1869.

xiv Introduction.

The lecture-hypothesis explains this peculiarity far better. When a systematic treatise is composed, the author can simply refer his reader back on the occasion of an old topic cropping up again; but in a lecture this is impossible, and to prevent a misconception or to guard against a defect of memory on the part of his audience the lecturer repeats his former statements even at the risk of being tedious. This too, if thoroughly acquainted with his subject, and if delivering a course of lectures old and familiar to him by constant repetition, he is almost certain to do, as Gaius has done, in a form identical even in its verbiage with the first enunciation.

Besides these obvious arguments for the view here adopted, Dr Dernburg brings forward others of a more refined and subtle complexion. The abundance of examples, a well-known device of a lecturer to maintain attention; the commencement of a new subject with such examples rather than with a dry statement of a legal maxim: the-introduction of sentences such as "Nunc transeamus ad fideicommissa. Etprius de hereditatibus despiciamus" which serve excellently to give the auditor time to make his notes in a lecture-room, but are unnecessary and wearisome in a set treatise; the repetition of an idea in a new wording for the same end of giving rest to the hearer, as in the description of the parts of a. formula " all these parts are not found together, but some are found and some are not found," &c. &c; the marked antitheses, such as "heres sponsoris non tenetur, fidejussoris autem heres tenetur" the identity of phraseology rivetting attention when it proceeds from a speaker, the want of change being wearisome on the part of a writer; all these circumstances are pressed into the service of his and our argument. Hence we may fairly assert that the nature of the commentaries is such as we affirmed it to be at starting.

But whatever be the irregularities and omissions arising from the character of the work, it must still rank high, not only as the first law-book, on which all other legal treatises have been based, but as possessing an intrinsic value of its own for the light it throws upon old features of Roman life and Roman customs, for its keen appreciation of the aid which History lends to Law and Legislation, and for its philological spirit. Introduction.

To the lawyer desirous to know the detail of Roman practice the fourth book alone would be enough to render the volume priceless; to the classical student seeking to acquaint himself with the outline of Roman law for the better comprehension of the classical historians, orators and poets, Gaius is at once an author more agreeable to peruse, because his language although not of the golden, is still an admirable specimen of the silver age, and beyond all comparison superior to the utterly debased style of Justinian, and more valuable as an authority because his law is that of a period only a century and a half posterior to Cicero, whilst Justinian is separated from him by more than five hundred years.

We have now to touch upon a few points more intimately connected with the present translation.

The text relied upon is in the main that of Gneist, but in the fourth book frequent employment has been made of Heffter's variations and suggestions, for upon that book Heffter is the leading authority. Gneist's edition, as is well-known, is a recension of all the German editions prior to 1857, the date of its publication. The chief of these editions we ought perhaps to enumerate; as to the others the reader will find full information in the preface to Bocking's fourth edition, published at Leipzig in 1855. The Editio Princeps of 1820 was brought out by Goschen, four years after Niebuhr's discovery of the manuscript Upon Bluhme's fresh collation of the MS. a second edition, embodying his discoveries, corrections and suggestions, was given to the world by Goschen in 1824. It is of this edition that Bocking remarks: "Hujus exempli quam diu nostris suus stabit honor, nunquam pretium diminuetur." Death interrupted Goschen in his task of bringing out a third edition, but his work was completed and published by Lachmann in 1842. Bocking's editions appeared successively in 183 7, 1841, 1850 and 1855. Heffter's elaborate commentary and carefully emended text of the fourth book bears the date 1827.

From all these and from other editions of minor importance Gneist drew up a text in 1857. To this text, as was said above, we have generally adhered, retaining also Gneist's plan of printing in italics those words and sentences which have been

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