§ 20.: The Institutes of Gaius; their place in the Literature of Law.
The Institutes of Gaius are a product of this activity; for it is necessary that a great deal of detailed and special work shall be done in a science before a good handbook on the subject can be written for the use of students. The name of Gaius’s work does not appear in the manuscript; ‘but Ref. 163 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 Juris 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 fix the date at which portions of the Institutions were composed. The Emperor Hadrian is spoken of as departed or deceased (Divius) 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 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.’ It has, however, been held that Gaius when he wrote the Institutions was acquainted with the Sc. Tertullianum, and that a mention of it occupied a gap in the manuscript which is found in 3. 33. See the commentary on this passage.
The discovery of the text of the Institutions was made in 1816. In that year ‘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. In 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 II, 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.’
‘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.’
§ 21.: The Life and Works of Gaius.
Of the life of Gaius we know little. Even his full name has been lost; for, if ‘Gaius’ is the familiar Roman praenomen Ref. 164, he must have had a family or gentile name as well. It is probable that he was a foreigner by birth—a Greek or a Hellenised Asiatic; but it is also probable that he was a Roman citizen, and possible that he taught at Rome. It is not likely that he belonged to the class of patented jurisconsults; for his opinions are not quoted by the subsequent jurists whose fragments are preserved in the Digest; it has even been inferred that he was not a practising lawyer; for amidst his voluminous writings there is no trace of any work on Quaestiones. His treatises may all have been of a professorial kind. They included, beside the Institutions, Commentaries on the Provincial Edict and the Urban Edict; a work on the Lex Julia et Papia Poppaea; a Commentary on the Twelve Tables; a book called Aurea or Res Quotidianae, treating of legal doctrines of general application and utility in every-day life; a book on Cases (apparently of a hypothetical character); one on Rules of Law (Regulae); and special treatises on Verbal Obligations, Manumissions, Fideicommissa, Dowries, and Hypotheca. He also wrote on the Tertullian and Orphitian Senatusconsults. Gaius’s Commentary on the Provincial Edict is the only work of the kind known to us. It is not necessary to believe that this Provincial Edict was the edict of the particular province (perhaps Asia) of which he was a native. It may have been a redaction of the elements common to all Provincial Edicts Ref. 165.
The value attached to Gaius’s powers of theoretical exposition, and to the admirable clearness and method which made his Institutions the basis of all future teaching in Roman law, must have been great; for, in spite of the fact that he was not a patented jurisconsult, he appears by the side of Papinian, Paulus, Ulpian, and Modestinus, in the ‘Law of Citations’ issued by Theodosius II and Valentinian III in 426 a. d. The beginning of this enactment runs Ref. 166: ‘We accord our approval to all the writings of Papinian, Paulus, Gaius, Ulpian, and Modestinus, granting to Gaius the same authority that is enjoyed by Paulus, Ulpian and the others, and sanctioning the citation of all his works.’
Although so little is known of Gaius, yet his date can be approximately determined from the internal evidence of his works. ‘We know that he flourished under the Emperors Hadrian (117-138 a. d.), Antoninus Pius (138-161 a. d.) and Marcus Aurelius Antoninus (161-180 a. d.). 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
