PREFACE.

IN the year 1816, Niebuhr noticed in the library of the Cathedral Chapter at Verona a manuscript in which certain compositions of Saint Jerome had been written over some prior writings, which in certain places had themselves been superposed on some still earlier inscription. On communication with Savigny, Niebuhr came to the conclusion that the lowest or earliest inscription was an elementary treatise on Roman Law by Gaius, a treatise hitherto only known, or principally known, to Roman lawyers by a barbarous epitome of its contents inserted in the code of Alaric 2, king of the Visigoths (§ 1, 22, Comm.). The palimpsest or rewritten manuscript originally contained 129 folios, three of which are now lost. One folio belonging to the Fourth Book (§ 136-§ 144) having been detached by some accident from its fellows, had been published by Maffei in his Historia Teologica, A.D. 1740, and republished by Haubold in the very year in which Niebuhr discovered the rest of the codex.

Each page of the MS. generally contains twenty-four lines, each line thirty-nine letters; but sometimes as many as forty-five. On sixty pages, or about a fourth of the whole, the codex is doubly palimpsest, i. e. there are three inscriptions on the parchment. About a tenth of the whole is lost or completely illegible, but part of this may be restored from Justinian's Institutes, or from other sources; accordingly, of the whole Institutions about one thirteenth is wanting, one half of which belongs to the Fourth Book.

From the style of the handwriting the MS. is judged to be older than Justinian or the sixth century after Christ; but probably did not precede that monarch by a long interval.

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. In 1874 Studemund published an apograph or facsimile volume, the fruits of a new examination of the Veronese MS.; and in 1877 Studemund, with the assistance of Krueger, published a revised text of Gaius founded on the apograph; and I have to acknowledge the courtesy of those distinguished scholars in permitting their text to be printed by the Clarendon Press for the purposes of this edition.

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 emperor 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.

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 supposed not to be the work of Gaius, but of a transcriber. 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.

The present edition differs from its predecessors not only by various corrections and additions, and by adjustment of the trans