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INSTITUTIONUM IURIS CIVILIS
ELEMENTS OF ROMAN LAW
WITH A TRANSLATION AND COMMENTARY
EDWARD POSTE, M. A.
BARRISTER AT LAW
AND FELLOW OF ORIEL COLLEGE, OXFORD
SECOND EDITION, REVISED AND ENLARGED
AT THE CLARENDON PRESS
[ All rights reserred ]
PREFACE TO SECOND EDITION.
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 2, 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 2, in the unclassical sense of lega
tum, 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 ; 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 (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