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 Von 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, king of the Visigoths. 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. The word Dimissum, often used in the code of Alaric in the unclassical sense of legatum, 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; e.g. Martial, 11, 36:

'Quincunces et sex cyathos bessesque bibamus,

Gaius ut fiat Julius et Proculus '

(i.e. the sextarius of 12 cyathi being the potatory unit, Drink 5 of wine to 7 of water, 6 of wine to 6 of water, and 8 of wine to 4 of water, to spell the name of Gaius Julius Proculus '); 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 (Departed), but in the Second Book, § 195, with this epithet. The Antoninus mentioned, § 126, is probably 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), see p. 22. 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, perhaps in mastery of the subject and its union of the opposite virtues of brevity and clearness the best elementary treatise of jurisprudence the world has ever seen, 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 inferior 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.

6

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.

On the continent the discovery of the Institutions of Gaius inaugurated quite a new era in the study of Roman law, throwing a flood of light on much that had been hitherto obscure. If English scholars have hitherto fallen behind their continental brothers, it has been principally in their inattention to Roman jurisprudence. Most of them would probably be surprised to hear, what however would not be very far from the truth, that the knowledge of the laws under which Horace and Cicero lived is almost as accessible to any one interested in the inquiry, as is the knowledge of the laws of England of the present day to the English layman. There are signs, however, which promise that this neglect of one of the most valuable branches of classic literature will not be much longer chargeable on English universities and English scholars.

For the Latin text of Gaius I should have been glad to have been able to avail myself of the edition understood to be preparing for publication under the auspices of the Berlin Academy of Sciences, as the result of a new examination of the Veronese MS. by Studemund and Mommsen. An improved version of the text emanating from the labours of such eminent critics cannot fail to be of the highest interest. Some foretaste of the fruits of their labours has been given to the public by Krueger, from whose pamphlet some extracts are given in the Addenda. In the meantime I have thought it best to reprint 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 of my own invention, or are taken from the corresponding sections of Justinian's Institutes.

The present edition is partly addressed to law students who desire to prepare themselves for the intelligent appreciation of the laws of their own country by an acquaintance with the only other system of legal conceptions known to the world, and partly to those not destined to the legal profession who consider some initiation in the principles of jurisprudence as an essential part of a liberal education.

The text is accompanied with a translation which, though principally intended for those who profess little knowledge of Latin, it is hoped may be found useful even to advanced scholars unfamiliar with the conceptions and language of Roman jurisprudence.

The commentary, notwithstanding an anxiety not to alarm the student by its dimensions, occasionally refers to corresponding institutions, like or unlike, of English jurisprudence. The scruples against swelling the bulk of the work by this course were overcome by the conviction that besides being a ready mode of interpreting what might be enigmatic, the citation of likenesses or contrasts from an independent legislation would, if psychologists say truly, be rather an assistance to the memory than a burden.

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