Gaius refers to this work in his Insti-
emperor Pius, is at variance with the probable con- tutes (iii.
emperor Pius, is at variance with the probable con- tutes (iii.
William Smith - 1844 - Dictionary of Greek and Roman Antiquities - b
De Testamentis et Legatis) were similarly
Pomponius, run together sense, reading as if the honoured as text books. Such parts of the Insti-
former were the preface to the latter; and in this tutiones and the Libri Singulares as were thought to
way, with the simple heading “Gaius liº. jº. " they be of practical use were taught in the lectures of the
are introduced by Magister Vacarius * into his ele professors, while other parts were passed orer as
antiquated. Why was it that Gaius should be
* Magister Vacarius taught the civil law in this
country about the middle of the twelfth century, we understand Fountains Abbey, near Ripon, not,
and, after being silenced by king Stephen, seems as Wenck imagines (p. 46. n. 6), an abbey at
to have retired to the abbey De Fontibus, by which | Wells, in Somersetshire.
6
03
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198
GAIUS.
GAIUS.
1
preferred for instruction to Papinian, Paulus, and | This constitution proves the great importance that
Ulpian, unless he were a more modern and there was attached to the citation of a legal writer by
fore, for some purposes, a more useful writer than name in the work of another jurist, for it proceeds
those celebrated jurists? Why also, it has been to make the citation of other writers by the five
asked, was Gaius, in preference to names as emi- great jurists we have mentioned a test of the
nent as his, introduced into the Westgothic Lex authority of the writers cited. If, for example,
Romana ? Why were the Institutes of Gaius Gaius any where cites Julianus, the citation is to
made to serve as a basis for those of Justinian, if it be taken as proof that Julianus is a writer of au-
were not that nothing more applicable to the state thority; and legal force is given, not only to the
of the law then in force were extant? The only passage or opinion of Julianus so cited, but to all
answer that can be given to such inquiries is that the legal remains which can be prored to belong to
good elementary works, when they take ground Julianus, and which, upon a collation of manu-
unoccupied before, are not easily dispossessed. scripts, present a certain text. The works of
Are not Blackstone's Commentaries, and even Coke Papinian, Paulus, Gaius, Ulpian, and Modestinus
on Littleton, still in the hands of English law (for such is the unchronological order in which
students, notwithstanding the legislative changes these names are mentioned), together with the
which have superseded great parts of their con- works of all the other jurists who are cited by any
tents ? . Later compilers content themselves with one of them, are made the criteria of legal science.
the path of those who have gone before ; and we If, in the works of ten jurists, passages can be
find in the fragments of an elementary work of found in favour of one opinion, and nine jurists
Ulpian (the Totuli ex Corpore Ulpiani), who is only can be cited against the ten, the majority is to
now known to have been posterior to Gaius, clear prevail. In case of an equality of opposite opi-
proof of the influence which the earlier jurist ex- nions, the opinion of Papinian is to prevail, if
ercised over the writings of his successor.
Papinian have expressed any opinion upon the
A fact which has occasioned much surprise is, subject. If not, the matter is left to the decision
that Gaius is not once quoted in the Digest by any of the judge. There is no pre-eminence conferred
other jurist, unless we except the mention of his on any other of the first-named five jurists over a
name in a passage of Pomponius (Dig. 45. tit. 3. jurist, as, for example, Julianus, who niay have been
§ 39), which, as we have seen, may possibly refer cited by one of the five. Such appears to be the true
to C. Cassius. The only probable explanation of interpretation of this celebrated citation-law, upon
this fact is that Gaius was rather a teacher of law which the researches of Puchta (Rhein. Mus. für
than a practical jurist, whose opinions derived au- Jurisp. vol. v. p. 141, and vol. vi. p. 87) have
thority from imperial sanction. He was not one thrown important light.
of the prudentes quibus permissum est jura condere Among the writings of Gaius are no Quaestiones
(Gaius, i. 7). The jurists who were armed with or Responsa, which were the titles given by other
that jus respondendi, which was first bestowed by jurists to treatises relating to cases that arose in
Augustus, partook of the emperor's prerogative, their own practice. The Liber de Casibus of Gaius
and their responsa had a force independent of their did not relate to cases within his own practice,
intrinsic reasonableness, and superior to the best and the cases it treated of were sometimes wholly
considered opinion of an unprivileged lawyer. fictitious. There is a passage in the Digest where
Except in the case of a very few writers of the Gaius speaks as if he did not himself belong to the
highest eminence in their profession, it would at authoritative body of those whose opinion he criti-
this day be considered a breach of etiquette to cite cises, “ Miror unde constare videatur, etc. , nam
the opinion of a modern legal author in an English ut apparet, etc. (Dig. 11. tit. 7. s. 9).
court. For a privileged Roman jurist to refer to a Gaius was probably born before Serapias was
mere teacher of law, however learned, or to an un- | introduced to Hadrian (aetate nostra), and he
authorised, or rather, unprivileged practitioner, wrote, or at least completed, his Institutiones in the
however experienced, would probably have been reign of M. Aurelius. The proof of this is that
deemed as un professional as for an English barrister Antoninus Pius is mentioned by him with the
to cite in court a clever treatise written by a con- addition Dirus (ii. 195), and that he speaks of
temporary below the bar, instead of seeking his the law of cretio, as it stood in the reign of Marcus,
authorities in the decisions of judges, and in the before it was altered by a constitution of that em-
dicta of the recognised sages of the law.
peror. (Compare Gaius, ii. 177 with Ulpian, Frag.
That this is the true explanation of the silence xxii. 34. ) In like manner, the statements made
of other jurists with respect to Gaius may be in- by Gaius in iii. 23, 24, as to hardships in the law
ferred from a constitution of Theodosius II. and of succession which required the correction of the
Valentinian III. , despatched from Ravenna to the praetor's edict, could scarcely have been written
Benate of Rome in A. D. 436. (Cod. Theod. 1. after the senatus consultum Tertullianum, made in
tit. 4. 6. 3. ) By that rescript the same authority the reign of M. Aurelius and Verus, A. D. 158,
is given to the writings of Gaius as to the writings and still less after the senatus consultum Orphitia-
of Papinian, Paulus, Ulpian, and Modestinus. num, made in the reign of Marcus and Commodus,
Hence it may be inferred that Gaius was previously A. D. 178. (Compare Inst. 3. tit. 4. pt. , and Capi-
in a different and inferior position with respect to tolinus, in Marco. 11).
authority. All the writings of these five jurists Some critics have been so nice as to infer that
. (with the exception, subsequently specified, of the the beginning of the Institutes of Gaius was written
Notae of Paulus and Ulpian on Papinian) are under Antoninus Pius, and the remainder under
invested with authority, as if to obviate the ques- M. Aurelius. In i. 53. the former emperor is
tion as to the date when they were written, for a termed Sacratissimus Imperator Antoninus. So, in
treatise written by a jurist before he received the i. 102, we have “ Nunc ex epistola optimi Impe-
jus respondendi probably derived no legal force from ratoris Antonini,” and, in ii. 126,“ Sed nuper im-
the subsequent gift of that privilege to the author. I perator Antoninus significarit rescripto. " The
## p. 199 (#215) ############################################
GAIUS.
199
GAIUS.
:-
“ Imperator Antoninus " mentioned in ii. 126 is Princeps Antoninus mentioned by Gaius in the
not Caracalla, although the same rescript is erro- former passage, with the Antoninus Augustus, Divi
neously cited by Justinian (Cod. 6. tit. 28. 8. 4) as Severi filiue mentioned by Ulpian in the latter ;
one of “ Magnus Antoninus," which is the peculiar but though Caracalla, who is referred to by Ulpian,
designation of Caracalla. In Nov. 78. c. 5, Jus mitigated the law against donations between hus-
tinian falls into an opposite error, in ascribing to band and wife, it does not follow that Antoninus
Antoninus Pius an act of legislation which be- Pius may not previously have introduced the
longs to Caracalla. (Dion Cass. lxxvii. 9. ) It is not partial relaxation of which Gaius treats. In the
until after the middle of the second book of the time of Ulpian, there were already several consti-
Institutes of Gaius that Antoninus Pius is called tutions upon the subject. (Ulpian. Fragm. vii. 1. )
Divus - Hodie ex Divi Pü constitutione, ii. 195. We have said that Gaius was a devoted adhe-
It appears to us that the inference founded on rent of the school of Sabinus and Cassius. This is
these minutiae, though probable, is not free from now clear beyond dispute from a great number of
doubt. In i. 7, and i. 30, Hadrian is called Divus passages in his Institutes (i. 196, ii. 15, 37, 79,
Hadrianus. In i. 47, we have Hadrianus without 123, 195, 200, 217, 219–223, 231, 244, iii. 87,
the Divus. Again in i. 55, we have Divus Hadria- 98, 103, 141, 167, 168, 177, 178, iv. 78, 79, 114).
nus, and the same epithet is applied to Hadrian in It had formerly been supposed by some that he
every other subsequent passage where his name belonged to the opposite school of Proculus — a
occurs, except in ii. 57. The mention of Antoni- mistake occasioned chiefly by an erroneous inter-
nus without the epithet Divus in six passages may pretation of Dig. 40. tit. 4. 6. 57. Mascovius and
possibly have no deeper meaning than the similar others were induced to rank him among the
mention of Hadrianus in i. 47 and ii. 57. It Herciscundi (CAPITO), on account of the phrase
would be rash to assert that we possess the Insti- “sententia media recle existimantium " (Dig. 41. tit.
tutes of Gaius precisely as they proceeded from his 1. 8. 7. $ 7), coupled with a few passages in the
hand in the first edition. The very passage in Digest (Dig. 17. tit. 1. 8. 4, Dig. 22. tit. 1. s. 19),
i. 53, where Antoninus appears to be spoken of as where, not withstanding his general leaning to Cas
a living emperor with the epithet sacratissimus is sius, he seems to follow the opinion of Proculus, or
cited in the Digest (Dig. 1. tit. 6. 8. 1), and there to quote Proculus with approbation.
we read “ ex constitutione Divi Antonini. A compa- Gaius was the author of numerous works. The
rison of this fragment, as it appears in the Digest, following list is given in the Florentine Index :-
with the same passage as it stands in the text of 1. Ad Edictum Provinciale, Biblia 1B [libri
Gaius, affords an instructive example of those 32). Number of extracts from this work in the
slight interpolations (emblemata) and alterations, in Digest, 340. It appears to have been completed in
which the compilers employed by Justinian in the lifetime of Antoninus Pius. (Dig. 24. tit. 1.
dulged, and by means of which serious obstacles S. 42, Dig. 2. tit. 1. s. 11. )
are opposed to the discovery of historical truth by 2. Ad Leges [Juliam et Papiam Poppaeam),
means of minute verbal criticism. The hypothesis B. baía Dekanévte. (The names added between
that the Institutes of Gaius, up to ii. 151 (where brackets are the names as they appear in inscrip-
we have for the last time Imperator Antoninus, tions of fragments in the Digest. ) Number of ex-
without Divus), were written in the lifetime of the tracts, 28.
Gaius refers to this work in his Insti-
emperor Pius, is at variance with the probable con- tutes (iii. 54). It seems to have been published
jecture of Göschen, who thinks that Gaius, in the after the death of Antoninus Pius. (Dig. 31. s. 56. )
lacuna preceding i. 197, treated of a constitution 3. Ad Edictum Urbicum (praetoris urbani), td
of Marcus
uova eupedevta B. baía déka. Extracts, 47. The
There are other indications from which the age Edicti Interpretatio, which may have designated the
of Gaius may be closely inferred. The latest work on the Provincial Edict, together with the
jurist whom he cites is Salvius Julianus, the com- work on the City Edict, is mentioned by Gaius in
poser of the Edictum Perpetuum under Hadrian; his Institutes (i. 188), and was probably written
and though there are no fewer than 535 extracts in the reign of Antoninus Pius (Dig. 30. s. 73.
from his works in the Digest, he refers only to $ 1). The work on the City Edict was divided
thirteen constitutions of emperors, and none of the into tituli, and the subjects of the books and tituli
constitutions he refers to can be proved to be later are occasionally cited in the inscriptions of frag-
than Antoninus Pius. It would appear from the ments. Some of the tituli seem to have formed
inscriptions of the fragments 8. 8 and s. 9, in Dig. books by themselves (compare the inscriptions of
38. tit. 17, that he wrote a liber singularis ad Dig. 7. tit. 7. 8. 4, Dig. 10. tit. 4. 8. 13, Dig. 38.
senatus consultum Tertullianum, and another ad tit. 2. & 30); others seem to have comprehended
S. C. Orphitiunum. This would bring his life to the several books. There were at least two books De
last years of M. Aurelius ; but as there is no Testamentis, and three De Legatis (Dig. 28. tit. 5.
mention of these treatises in the Florentine Index, s. 32 and 8. 33, Dig. 30. s. 65, Dig. 30. s. 69, Dig.
and as treatises on the same subject were written 30. s. 73).
by Paulus, it is not at all unlikely that, in the in- 4. Aureon (Aureorum seu Rerum Quotidianarum),
scriptions we have mentioned, the name Gaius is B. Exía érté. Extracts, 26. This work, treating
put by mistake for Paulus. The Divus Antoninus of legal doctrines of general application and utility
mentioned by Gaius in the fragments Dig. 35. in every-day life, seems to have formed a compen-
tit. 1. s. 90, Dig. 32. 8. 96, Dig. 36. tit. 1. s. 63. dium of practical law. The name Aurea was pro-
& 5, and Dig. 31. . 56, is, undoubtedly, not Ca- bably a subsequent title, not proceeding from the
racalla, but Antoninus Pius. There is not a single author, but given to the work on account of its
passage in which it can be proved that Gaius value. Though, according to the Index Floren-
refers to Caracalla. From a comparison of Dig. 24. tinus, it consisted of seven books, only three are
tit. I. a 42 with Dig. 24. tit. 1. s. 32. pr. , an cited in the Digest, whence some have conjectured
attempt indeed has been made to identify the that the last four books are identical with the la-
1
## p. 200 (#216) ############################################
200
GAIUS.
GAIUS.
1
stitutes of Gaius. The preferable opinion, how some profane dramatist. Not unfrequently the
ever, is, that the Res Quotidianae and the Institu- parchment was a second time submitted to the
tiones, though them had much in common, were same treatment. The father who had supplanted
distinct works. (Savigny's Zeitschrift, vol. i. p. the dramatist was himself washed and rubbed out
54—77; Hugo, Civilisl. Mag. vol. vi. p. 228— in order, peradventure, to give place to some scho-
264. ) Justinian, in his Institutes, made consider lastic doctor.
able use of this Golden Work (Prooem. Inst. & 6). In the library of the Chapter at Verona is a
5. Aodekadétov (sic, sed qu. Duošeradentov vel codex formerly numbered xv. , but now xiii. , con-
Awdekaléatou) Beala . Extracts, 20. This is taining a manuscript of the Letters of St. Jerome
the work, the beginning of which has been supposed, (Hieronymus), written over an older manuscript.
on account of the citations in Lydus, to resemble Nearly one fourth part of the codes was bris re-
part of the Enchiridion of Pomponius, and to have scriplus, and where this was the case, it seems that
borrowed some of its historical details from Grac- St. Jerome had also been the second occupant.
chanus.
The manuscript first written on the parchment
6. Instituton (Institutionum), Bibila réocapa consisted of 251 pages, and each page of 24 lines.
Extracts, 14. An account of this famous work is One leaf or two piges, 235 and 236, concerning
given below.
Prescriptions and Interdicts, had been detached
7. De Verlorum Owigationibus, Bibila 7. Ex- from the rest of the manuscript, and escaped being
tracts, 12.
overlaid by St. Jerome. These two detached
8. De Manumissionibus, Bibaia tpla. Extracts, 5. pages, together with four other pages detached from
9. Fideicommisson (Fideicommissorum), Bhula some other codex, and containing the fragment of
dúo. Extracts, 12. This work was published after an uncertain author De Jure Fisci, had been found
the death of Antoninus Pius. (Dig. 35. tit. 1. s. 90, in the library of Verona before the year 1732, by
Dig. 32. s. 96, Dig. 36. tit. 1. s. 63. & 5. ) A Liber the celebrated Scipio Maffei. He describes them
sinyularis de tacitis Fideicommissis, not mentioned in in his Verona Illustrata, Parte Terza, c. 7. p. 464
the Index, is cited, Dig. 34. tit. 9. s. 23.
(8vo. Verona, 1732). In his Istoria Teologica
10. De Casibus, Bibilov év. Extracts, 7. We (fol. Trento, 1742,) the greater part of both frag-
have already explained the purport of this work. ments was first published, and in plate x. a fac-
11. Regularion (Regularum), Bieniov ev. There simile was given of part of the writing of the frag-
is but one extract from this work in the Digest ment De Interdictis. From the Istoria Teologica,
(Dig. 1. tit. 7. 6. 21), unless there is some error part of this facsimile was copied and republished,
in the Index or in the inscriptions. Gaius appears not very accurately, in the Nouveau Traité de Die
to have written another treatise in three books on plomatique, vol. iii. p. 208. tab. 46 (Paris, 1757).
Regulae, or rules of law. (Dig. 50. tit. 17. s. 100; Maffei had observed a correspondence between the
Dig. 47.
Pomponius, run together sense, reading as if the honoured as text books. Such parts of the Insti-
former were the preface to the latter; and in this tutiones and the Libri Singulares as were thought to
way, with the simple heading “Gaius liº. jº. " they be of practical use were taught in the lectures of the
are introduced by Magister Vacarius * into his ele professors, while other parts were passed orer as
antiquated. Why was it that Gaius should be
* Magister Vacarius taught the civil law in this
country about the middle of the twelfth century, we understand Fountains Abbey, near Ripon, not,
and, after being silenced by king Stephen, seems as Wenck imagines (p. 46. n. 6), an abbey at
to have retired to the abbey De Fontibus, by which | Wells, in Somersetshire.
6
03
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198
GAIUS.
GAIUS.
1
preferred for instruction to Papinian, Paulus, and | This constitution proves the great importance that
Ulpian, unless he were a more modern and there was attached to the citation of a legal writer by
fore, for some purposes, a more useful writer than name in the work of another jurist, for it proceeds
those celebrated jurists? Why also, it has been to make the citation of other writers by the five
asked, was Gaius, in preference to names as emi- great jurists we have mentioned a test of the
nent as his, introduced into the Westgothic Lex authority of the writers cited. If, for example,
Romana ? Why were the Institutes of Gaius Gaius any where cites Julianus, the citation is to
made to serve as a basis for those of Justinian, if it be taken as proof that Julianus is a writer of au-
were not that nothing more applicable to the state thority; and legal force is given, not only to the
of the law then in force were extant? The only passage or opinion of Julianus so cited, but to all
answer that can be given to such inquiries is that the legal remains which can be prored to belong to
good elementary works, when they take ground Julianus, and which, upon a collation of manu-
unoccupied before, are not easily dispossessed. scripts, present a certain text. The works of
Are not Blackstone's Commentaries, and even Coke Papinian, Paulus, Gaius, Ulpian, and Modestinus
on Littleton, still in the hands of English law (for such is the unchronological order in which
students, notwithstanding the legislative changes these names are mentioned), together with the
which have superseded great parts of their con- works of all the other jurists who are cited by any
tents ? . Later compilers content themselves with one of them, are made the criteria of legal science.
the path of those who have gone before ; and we If, in the works of ten jurists, passages can be
find in the fragments of an elementary work of found in favour of one opinion, and nine jurists
Ulpian (the Totuli ex Corpore Ulpiani), who is only can be cited against the ten, the majority is to
now known to have been posterior to Gaius, clear prevail. In case of an equality of opposite opi-
proof of the influence which the earlier jurist ex- nions, the opinion of Papinian is to prevail, if
ercised over the writings of his successor.
Papinian have expressed any opinion upon the
A fact which has occasioned much surprise is, subject. If not, the matter is left to the decision
that Gaius is not once quoted in the Digest by any of the judge. There is no pre-eminence conferred
other jurist, unless we except the mention of his on any other of the first-named five jurists over a
name in a passage of Pomponius (Dig. 45. tit. 3. jurist, as, for example, Julianus, who niay have been
§ 39), which, as we have seen, may possibly refer cited by one of the five. Such appears to be the true
to C. Cassius. The only probable explanation of interpretation of this celebrated citation-law, upon
this fact is that Gaius was rather a teacher of law which the researches of Puchta (Rhein. Mus. für
than a practical jurist, whose opinions derived au- Jurisp. vol. v. p. 141, and vol. vi. p. 87) have
thority from imperial sanction. He was not one thrown important light.
of the prudentes quibus permissum est jura condere Among the writings of Gaius are no Quaestiones
(Gaius, i. 7). The jurists who were armed with or Responsa, which were the titles given by other
that jus respondendi, which was first bestowed by jurists to treatises relating to cases that arose in
Augustus, partook of the emperor's prerogative, their own practice. The Liber de Casibus of Gaius
and their responsa had a force independent of their did not relate to cases within his own practice,
intrinsic reasonableness, and superior to the best and the cases it treated of were sometimes wholly
considered opinion of an unprivileged lawyer. fictitious. There is a passage in the Digest where
Except in the case of a very few writers of the Gaius speaks as if he did not himself belong to the
highest eminence in their profession, it would at authoritative body of those whose opinion he criti-
this day be considered a breach of etiquette to cite cises, “ Miror unde constare videatur, etc. , nam
the opinion of a modern legal author in an English ut apparet, etc. (Dig. 11. tit. 7. s. 9).
court. For a privileged Roman jurist to refer to a Gaius was probably born before Serapias was
mere teacher of law, however learned, or to an un- | introduced to Hadrian (aetate nostra), and he
authorised, or rather, unprivileged practitioner, wrote, or at least completed, his Institutiones in the
however experienced, would probably have been reign of M. Aurelius. The proof of this is that
deemed as un professional as for an English barrister Antoninus Pius is mentioned by him with the
to cite in court a clever treatise written by a con- addition Dirus (ii. 195), and that he speaks of
temporary below the bar, instead of seeking his the law of cretio, as it stood in the reign of Marcus,
authorities in the decisions of judges, and in the before it was altered by a constitution of that em-
dicta of the recognised sages of the law.
peror. (Compare Gaius, ii. 177 with Ulpian, Frag.
That this is the true explanation of the silence xxii. 34. ) In like manner, the statements made
of other jurists with respect to Gaius may be in- by Gaius in iii. 23, 24, as to hardships in the law
ferred from a constitution of Theodosius II. and of succession which required the correction of the
Valentinian III. , despatched from Ravenna to the praetor's edict, could scarcely have been written
Benate of Rome in A. D. 436. (Cod. Theod. 1. after the senatus consultum Tertullianum, made in
tit. 4. 6. 3. ) By that rescript the same authority the reign of M. Aurelius and Verus, A. D. 158,
is given to the writings of Gaius as to the writings and still less after the senatus consultum Orphitia-
of Papinian, Paulus, Ulpian, and Modestinus. num, made in the reign of Marcus and Commodus,
Hence it may be inferred that Gaius was previously A. D. 178. (Compare Inst. 3. tit. 4. pt. , and Capi-
in a different and inferior position with respect to tolinus, in Marco. 11).
authority. All the writings of these five jurists Some critics have been so nice as to infer that
. (with the exception, subsequently specified, of the the beginning of the Institutes of Gaius was written
Notae of Paulus and Ulpian on Papinian) are under Antoninus Pius, and the remainder under
invested with authority, as if to obviate the ques- M. Aurelius. In i. 53. the former emperor is
tion as to the date when they were written, for a termed Sacratissimus Imperator Antoninus. So, in
treatise written by a jurist before he received the i. 102, we have “ Nunc ex epistola optimi Impe-
jus respondendi probably derived no legal force from ratoris Antonini,” and, in ii. 126,“ Sed nuper im-
the subsequent gift of that privilege to the author. I perator Antoninus significarit rescripto. " The
## p. 199 (#215) ############################################
GAIUS.
199
GAIUS.
:-
“ Imperator Antoninus " mentioned in ii. 126 is Princeps Antoninus mentioned by Gaius in the
not Caracalla, although the same rescript is erro- former passage, with the Antoninus Augustus, Divi
neously cited by Justinian (Cod. 6. tit. 28. 8. 4) as Severi filiue mentioned by Ulpian in the latter ;
one of “ Magnus Antoninus," which is the peculiar but though Caracalla, who is referred to by Ulpian,
designation of Caracalla. In Nov. 78. c. 5, Jus mitigated the law against donations between hus-
tinian falls into an opposite error, in ascribing to band and wife, it does not follow that Antoninus
Antoninus Pius an act of legislation which be- Pius may not previously have introduced the
longs to Caracalla. (Dion Cass. lxxvii. 9. ) It is not partial relaxation of which Gaius treats. In the
until after the middle of the second book of the time of Ulpian, there were already several consti-
Institutes of Gaius that Antoninus Pius is called tutions upon the subject. (Ulpian. Fragm. vii. 1. )
Divus - Hodie ex Divi Pü constitutione, ii. 195. We have said that Gaius was a devoted adhe-
It appears to us that the inference founded on rent of the school of Sabinus and Cassius. This is
these minutiae, though probable, is not free from now clear beyond dispute from a great number of
doubt. In i. 7, and i. 30, Hadrian is called Divus passages in his Institutes (i. 196, ii. 15, 37, 79,
Hadrianus. In i. 47, we have Hadrianus without 123, 195, 200, 217, 219–223, 231, 244, iii. 87,
the Divus. Again in i. 55, we have Divus Hadria- 98, 103, 141, 167, 168, 177, 178, iv. 78, 79, 114).
nus, and the same epithet is applied to Hadrian in It had formerly been supposed by some that he
every other subsequent passage where his name belonged to the opposite school of Proculus — a
occurs, except in ii. 57. The mention of Antoni- mistake occasioned chiefly by an erroneous inter-
nus without the epithet Divus in six passages may pretation of Dig. 40. tit. 4. 6. 57. Mascovius and
possibly have no deeper meaning than the similar others were induced to rank him among the
mention of Hadrianus in i. 47 and ii. 57. It Herciscundi (CAPITO), on account of the phrase
would be rash to assert that we possess the Insti- “sententia media recle existimantium " (Dig. 41. tit.
tutes of Gaius precisely as they proceeded from his 1. 8. 7. $ 7), coupled with a few passages in the
hand in the first edition. The very passage in Digest (Dig. 17. tit. 1. 8. 4, Dig. 22. tit. 1. s. 19),
i. 53, where Antoninus appears to be spoken of as where, not withstanding his general leaning to Cas
a living emperor with the epithet sacratissimus is sius, he seems to follow the opinion of Proculus, or
cited in the Digest (Dig. 1. tit. 6. 8. 1), and there to quote Proculus with approbation.
we read “ ex constitutione Divi Antonini. A compa- Gaius was the author of numerous works. The
rison of this fragment, as it appears in the Digest, following list is given in the Florentine Index :-
with the same passage as it stands in the text of 1. Ad Edictum Provinciale, Biblia 1B [libri
Gaius, affords an instructive example of those 32). Number of extracts from this work in the
slight interpolations (emblemata) and alterations, in Digest, 340. It appears to have been completed in
which the compilers employed by Justinian in the lifetime of Antoninus Pius. (Dig. 24. tit. 1.
dulged, and by means of which serious obstacles S. 42, Dig. 2. tit. 1. s. 11. )
are opposed to the discovery of historical truth by 2. Ad Leges [Juliam et Papiam Poppaeam),
means of minute verbal criticism. The hypothesis B. baía Dekanévte. (The names added between
that the Institutes of Gaius, up to ii. 151 (where brackets are the names as they appear in inscrip-
we have for the last time Imperator Antoninus, tions of fragments in the Digest. ) Number of ex-
without Divus), were written in the lifetime of the tracts, 28.
Gaius refers to this work in his Insti-
emperor Pius, is at variance with the probable con- tutes (iii. 54). It seems to have been published
jecture of Göschen, who thinks that Gaius, in the after the death of Antoninus Pius. (Dig. 31. s. 56. )
lacuna preceding i. 197, treated of a constitution 3. Ad Edictum Urbicum (praetoris urbani), td
of Marcus
uova eupedevta B. baía déka. Extracts, 47. The
There are other indications from which the age Edicti Interpretatio, which may have designated the
of Gaius may be closely inferred. The latest work on the Provincial Edict, together with the
jurist whom he cites is Salvius Julianus, the com- work on the City Edict, is mentioned by Gaius in
poser of the Edictum Perpetuum under Hadrian; his Institutes (i. 188), and was probably written
and though there are no fewer than 535 extracts in the reign of Antoninus Pius (Dig. 30. s. 73.
from his works in the Digest, he refers only to $ 1). The work on the City Edict was divided
thirteen constitutions of emperors, and none of the into tituli, and the subjects of the books and tituli
constitutions he refers to can be proved to be later are occasionally cited in the inscriptions of frag-
than Antoninus Pius. It would appear from the ments. Some of the tituli seem to have formed
inscriptions of the fragments 8. 8 and s. 9, in Dig. books by themselves (compare the inscriptions of
38. tit. 17, that he wrote a liber singularis ad Dig. 7. tit. 7. 8. 4, Dig. 10. tit. 4. 8. 13, Dig. 38.
senatus consultum Tertullianum, and another ad tit. 2. & 30); others seem to have comprehended
S. C. Orphitiunum. This would bring his life to the several books. There were at least two books De
last years of M. Aurelius ; but as there is no Testamentis, and three De Legatis (Dig. 28. tit. 5.
mention of these treatises in the Florentine Index, s. 32 and 8. 33, Dig. 30. s. 65, Dig. 30. s. 69, Dig.
and as treatises on the same subject were written 30. s. 73).
by Paulus, it is not at all unlikely that, in the in- 4. Aureon (Aureorum seu Rerum Quotidianarum),
scriptions we have mentioned, the name Gaius is B. Exía érté. Extracts, 26. This work, treating
put by mistake for Paulus. The Divus Antoninus of legal doctrines of general application and utility
mentioned by Gaius in the fragments Dig. 35. in every-day life, seems to have formed a compen-
tit. 1. s. 90, Dig. 32. 8. 96, Dig. 36. tit. 1. s. 63. dium of practical law. The name Aurea was pro-
& 5, and Dig. 31. . 56, is, undoubtedly, not Ca- bably a subsequent title, not proceeding from the
racalla, but Antoninus Pius. There is not a single author, but given to the work on account of its
passage in which it can be proved that Gaius value. Though, according to the Index Floren-
refers to Caracalla. From a comparison of Dig. 24. tinus, it consisted of seven books, only three are
tit. I. a 42 with Dig. 24. tit. 1. s. 32. pr. , an cited in the Digest, whence some have conjectured
attempt indeed has been made to identify the that the last four books are identical with the la-
1
## p. 200 (#216) ############################################
200
GAIUS.
GAIUS.
1
stitutes of Gaius. The preferable opinion, how some profane dramatist. Not unfrequently the
ever, is, that the Res Quotidianae and the Institu- parchment was a second time submitted to the
tiones, though them had much in common, were same treatment. The father who had supplanted
distinct works. (Savigny's Zeitschrift, vol. i. p. the dramatist was himself washed and rubbed out
54—77; Hugo, Civilisl. Mag. vol. vi. p. 228— in order, peradventure, to give place to some scho-
264. ) Justinian, in his Institutes, made consider lastic doctor.
able use of this Golden Work (Prooem. Inst. & 6). In the library of the Chapter at Verona is a
5. Aodekadétov (sic, sed qu. Duošeradentov vel codex formerly numbered xv. , but now xiii. , con-
Awdekaléatou) Beala . Extracts, 20. This is taining a manuscript of the Letters of St. Jerome
the work, the beginning of which has been supposed, (Hieronymus), written over an older manuscript.
on account of the citations in Lydus, to resemble Nearly one fourth part of the codes was bris re-
part of the Enchiridion of Pomponius, and to have scriplus, and where this was the case, it seems that
borrowed some of its historical details from Grac- St. Jerome had also been the second occupant.
chanus.
The manuscript first written on the parchment
6. Instituton (Institutionum), Bibila réocapa consisted of 251 pages, and each page of 24 lines.
Extracts, 14. An account of this famous work is One leaf or two piges, 235 and 236, concerning
given below.
Prescriptions and Interdicts, had been detached
7. De Verlorum Owigationibus, Bibila 7. Ex- from the rest of the manuscript, and escaped being
tracts, 12.
overlaid by St. Jerome. These two detached
8. De Manumissionibus, Bibaia tpla. Extracts, 5. pages, together with four other pages detached from
9. Fideicommisson (Fideicommissorum), Bhula some other codex, and containing the fragment of
dúo. Extracts, 12. This work was published after an uncertain author De Jure Fisci, had been found
the death of Antoninus Pius. (Dig. 35. tit. 1. s. 90, in the library of Verona before the year 1732, by
Dig. 32. s. 96, Dig. 36. tit. 1. s. 63. & 5. ) A Liber the celebrated Scipio Maffei. He describes them
sinyularis de tacitis Fideicommissis, not mentioned in in his Verona Illustrata, Parte Terza, c. 7. p. 464
the Index, is cited, Dig. 34. tit. 9. s. 23.
(8vo. Verona, 1732). In his Istoria Teologica
10. De Casibus, Bibilov év. Extracts, 7. We (fol. Trento, 1742,) the greater part of both frag-
have already explained the purport of this work. ments was first published, and in plate x. a fac-
11. Regularion (Regularum), Bieniov ev. There simile was given of part of the writing of the frag-
is but one extract from this work in the Digest ment De Interdictis. From the Istoria Teologica,
(Dig. 1. tit. 7. 6. 21), unless there is some error part of this facsimile was copied and republished,
in the Index or in the inscriptions. Gaius appears not very accurately, in the Nouveau Traité de Die
to have written another treatise in three books on plomatique, vol. iii. p. 208. tab. 46 (Paris, 1757).
Regulae, or rules of law. (Dig. 50. tit. 17. s. 100; Maffei had observed a correspondence between the
Dig. 47.
