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Introduction.

very narrow limits. Its excellencies, literary and juridical, have been judged of from one work alone; and whilst the whole range of classical writers has been eagerly travelled over by the teacher and the student, the author and the reader, the style, the language, and the logic of some of Rome's greatest thinkers and ablest administrators have been utterly neglected, or at best noticed in vague and careless reference. If in addition to the Institutes of Justinian the reviving taste for Roman jurisprudence shall promote a closer and more careful study of the language and thought of the old jurisconsults, as exhibited in the books of the Digest, it may confidently be predicted that in every department of knowledge will the student of imperial Rome be a gainer; that our store of information as to her manners and customs, her legislation, the private life of her citizens, and, last though not least, her language itself, will be largely increased.

The University of Cambridge has, however, wisely confined the attention of its law students for the present to the great work of Gaius, (a translation of which is now offered to the public,) and to the Institutes of Justinian, so far as an acquaintance with the original language of the legal sources is concerned. For the present we say, because it is to be hoped that the Digest itself may after a while be recognized as a fit subject for the student's preparation, when with increased facilities an increased taste for the fontes ipsissimi juris has been engendered; and that excerpts of its most practical parts may be made hereafter to constitute a portion of his legal course. Indeed there seems no reason to doubt that far more extensive use will in time be made of the sources of Roman law, and that Ulpian, Gaius, and others of the ante-Justinianean compilers of legal histories and legal forms, will be as much recognized as forming a part of Roman Law study as the Institutes of Justinian have been and are.

On Gaius himself, his name, his country, the works he composed, his position amongst the lawyers of Rome, his fame in later times, the story of the loss and wonderful recovery of his Commentaries, and the influence of that work on the treatise of Justinian, there is no need to dilate. All that can be told the reader on these and other points in connection with his life Introduction. vii

and writings is so fully and ably narrated in the Dictionary of Greek and Roman Biography by Dr Smith, that it is sufficient to refer him to it. There are, however, one or two matters deserving of more particular attention.

In the first place, as regards Gaius himself, it is important to remember that whatever reputation he acquired in later days, and however enduring has been his fame as the model for all systematic treatise-writers on law, in his own time he was only a private lecturer. Unlike many of the distinguished lawyers who preceded him, and others equally distinguished who were his contemporaries, he never had the privilege condendi jura, injure respondendi. That he was a writer held in eminent distinction in Justinian's time is clear from the large number of extracts from his works to be found in the Digest1, and there is good reason to believe that he was a successful and popular lecturer; but it is strange that with all his rare knowledge and laborious research he did not emerge from his comparative obscurity. It may be that the very learning for which he was pre-eminent unfitted him for public life. His love of investigation, his strong liking for classification and arrangement, and his studious habits, possibly gave him a distaste for a form of practice in which all these qualities are of much less importance than rapidity of judgment, prompt decision, and aptness for argumentative disputation. He was one of those men like our own Austin; lawyers admirably fitted for the quiet thought and learned meditation of the study, but averse from the stir and bustle of the forum; but not the less valuable members of the profession which they silently adorn.

A comparison of the excerpts from the writings of Gaius in the Digest with those from Ulpian, Paulus, Papinian, and others, to whom was granted the privilege of uttering responsa, will show that there is in Gaius, as his Commentaries also evince, an

1 A catalogue of these excerpta quoted in the Digest, of which there

will be found in the article above are as many as 535, is laboriously

mentioned in the Dictionary of Greek stated in the Jurisprudentia Restituta

and Roman Biography. The Index of Abraham Wieling, pp. 7—20,

Florentinus merely gives the titles of and the Palingenesia of C. F. Hom

the books composed by Gaius. The mel, Vol. I. pp. 55—126.

number of passages from these

viii Introduction,

unreadiness to give his own opinion upon contested questions, a strong inclination to collect and put side by side the views of opposite schools, and a constant anxiety to treat a legal doctrine from an historical rather than a judicial point of view. In Ulpian and Paulus, and men of that stamp, we meet with decisive and pithy opinions upon legal difficulties, an abundant proof of firm self-reliance and indifference to opposite views, and a lawyer-like way of looking at a doctrine as it affects the case before them, rather than accounting for its appearance as a problem of Jurisprudence or Legislature; with them it is the matter itself which is of primary importance, with Gaius it is the clearing up of everything connected with the full understanding in the abstract of the subject on which he is engaged. To this peculiar turn of his mind we are probably indebted for his keen appreciation of the help which history affords to law, and for the large amount of reference to archaic forms and ceremonies which proceeds from his pen.

From Gaius himself the transition to his Commentaries is natural. Three or four topics present themselves for notice upon that head: (i) Their nature and object; (2) the effect upon them of certain constitutional reforms that had been and at the time of their publication were being carried out at Rome; (3) the mode in which they were first presented to the public.

ist. As to the nature and object of Gaius' Commentaries :— There is an opinion pretty commonly accepted as correct, that this volume was written like the corresponding work of Justinian for the express purpose of giving a general sketch of the rules and principles of the private law of Rome, and that it was intended to be a preliminary text-book for students. That this gives a very incorrect notion of the aim of Gaius and the nature of his work is clear, partly from a comparison of it with that which was intended to be a student's first book on law (viz. the Institutes of Justinian), and partly from the analysis of its subject-matter. What Gaius really had in view was, not the publication of a systematic treatise on private law, but the enunciation, in the shape of oral lectures, of matter that would be serviceable to those who were studying with a view to practice. The work itself, as we shall show presently, was not Introduction.

directly prepared for publication, but was a republication in a collected form of lectures (the outline of which perhaps had been originally in writing and the filling-up by word of mouth,) when the cordial reception of the same by a limited class had suggested their being put into a form to benefit a wider circle of students. The contents of the book will bear out this view. Thus, in the first part, Gaius speaks of men as subjects of law, shews what rights they have, points out who are personae and who are not, who are under potestas and manus, who can act alone and who require some legal medium to render their acts valid. In fact, the main object of the whole of this first part is to render clear to his hearers how those who are of free birth stand, not only in relation to those who are not, but in relation to the law. Hence there is no attempt at explaining the nature of Law and Jurisprudence, no classification of the parts of Law, no aiming at philosophical arrangement and analysis, but a simple declaration of the Roman law as it affects its subjects, men, illustrated of course by historical as well as by technical references. Hence we understand why there is nothing in the shape of explanation of the rules relating to marriage, of the relative position of father and son, of patron and client, nothing of the learning about the peculium, or about the administration of the property of minors and wards. In short, this portion of the Commentaries might be styled the general Roman law of private civil rights, cleared from all rules connected with special relations. One special matter, however, is discussed with much attention and detail, viz. the position of the Latini in relation to private law; but of this anomaly we shall speak at more length presently.

So far for the first portion of the work :—The second is of the same nature, viz. a declaration of the general rules of law as affecting Res. Here the arrangement is as follows :—In the first place Gaius gives us certain divisions of Res drawn from their quality and specific nature; he then proceeds to explain the form and method of acquisition and transfer of separate individual Res, whether corporeal or incorporeal, prefacing his notes upon this part of his subject with a short account of the difference between res mancipi and res ncc mancipi: from this Introduction.

he goes on to describe the legal rules relating to inheritances and to acquisitions of Res in the aggregate (per universitatem), interspersing his subject with the law relating to legacies and fideicommissa; last come obligations, which are discussed as incorporeal things not capable of transfer by mancipation, in jure cessio, or tradition, but founded on and terminated by certain special causes. In this part of his work it is very important to bear in mindl that the reader is not to look for a detailed account of the force and effect of obligations, and of the specific relations existing between the parties to them by their creation and extinction, for upon these matters Gaius does not dwell. His chief aim here, as it was in the subject of inheritance, is to show how they began and how they were ended. Thus then this second part of the Commentaries may be entitled "The objects of Law, their gain and loss."

The third part of the Commentaries is entirely confined to the subject of actions. Here too if the book be compared with the parallel part of Justinian's Institutes a striking difference in their nature will be visible. Gaius's work is in every respect a book of practice: it considers actions as remedies for rights infringed; it discusses the history of the subject, because the actual forms of pleading in certain actions could not be explained without an examination into their early history; it dwells upon the various parts of the pleading with a care that is almost excessive; points out the necessity and importance of equitable remedies; in fact, goes into a very technical and very difficult subject in a way that would be uncalled for and out of place in a mere elementary treatise on law.

2nd. The influence of certain political changes then going on at Rome upon Gaius's treatise have now to be noticed. Even to an ordinary reader of the Commentaries two remarkable features in them are visible. One the elaborate attention bestowed on the relation of the peregrini to the existing legal institutions of Rome, the other the constant references to the effect of the establishment of the Praetorian courts, with their

1 We are indebted to Bucking's sis of the Commentaries, especially short but valuable Adnotatio ad for the particular fact here advertTabidas systematkas for this analy- ed to.

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