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sented to the reader, and not Gaius hidden and overburdened with commentary. The text of Gaius is still imperfect, and it is too hazardous to attempt to reconstruct the three missing pages in the MS., after those numbered 80, 126 and 194. The pages of the MS. are marked in the margin of the text. I have supplied obvious corrections in spelling in the received text: also put in words obviously omitted, these being printed in the ordinary type and within brackets : and more conjectural emendations in italics, noting, in almost all cases, the authority for the same.
No one who watches the progress of legal literature in England can fail to observe the recent remarkable development of the study of Roman law in our country. Twenty-nine years ago the learned author of Ancient Law, in his admirable essay on Roman Law and Legal Education', pointed out the fact as even then visible. In that essay, which for its exhaustive reasoning and eloquent advocacy of the merits of the law of Rome can never be too often noticed nor too frequently perused, the writer mentions one special cause why Roman law has a peculiar value to Englishmen. "It is," he says, “not because our own jurisprudence and that of Rome were once alike that they ought to be studied together ; it is because they will be alike. It is because in England we are slowly and perhaps unconsciously or unwillingly, but still steadily and certainly, accustoming ourselves to the same modes of legal thought and to the same conceptions of legal principles to which the Roman jurisconsults had attained after centuries of accumulated experience and unwearied cultivation." Nor should it be forgotten, as he points out, that the literature in which Roman legal thought and legal reasoning are enshrined is the product of men singularly remarkable for wide learning, deep research, rare gifts of logical acumen, and “all the grand qualities which we identify with one or another of the most distinguished of our own greatest lawyers and greatest thinkers.”
It is then a matter for congratulation that what may be
1 Cambridge Essays, published by J. W. Parker and Son in 1856.
fairly called a revival has taken place in this branch of learning; and that in our own University the study of Roman Law, which has always had a footing here, although in later times frequently but a feeble one, has fixed its hold more firmly amongst the other studies of the place. Unfortunately our knowledge of Roman Law has been for many years past circumscribed within very narrow limits. Its excellencies, literary and juridical, have been judged of from one work alone ; and whilst the whole range of classical writers has been eagerly travelled over by the teacher and the student, the author and the reader, the style, the language, and the logic of some of Rome's greatest thinkers and ablest administrators have been utterly neglected, or at best noticed in vague and careless reference. If, in addition to the Institutes of Justinian, the reviving taste for Roman jurisprudence shall promote a closer and more careful study of the language and thought of the old jurisconsults, as exhibited in the books of the Digest, it may confidently be predicted that in every department of knowledge will the student of imperial Rome be a gainer; that our store of information as to her manners and customs, her legislation, the private life of her citizens, and, last though not least, her language itself, will be largely increased.
The University of Cambridge has for some years past included Selected Portions of the Digest in the subjects proposed for the students in Law. Of these I have had the honour to publish for the University Press Syndicate editions in most cases; but a far more valuable contribution to this branch of Legal Learning and Literature is to be found in the Introduction to Justinian's Digest by H. J. Roby, also published among the works which the same Syndicate have had the credit of presenting to the public.
On Gaius himself, his name, his country, the works he composed, his position amongst the lawyers of Rome, his fame in later times, the story of the loss and wonderful recovery of his Commentaries', and the influence of that work on the treatise of
1 Niebuhr discovered the MS. in 1816. It then contained 126 leaves
or 251 pages. One leaf, which had become detached, was found earlier,
Justinian, there is no need to dilate. All that can be told the reader on these and other points in connection with his life and writings is so fully and ably narrated in the Dictionary of Greek and Roman Biography by Dr Smith, that it is sufficient to refer him to it. There are, however, one or two matters deserving of more particular attention.
In the first place, as regards Gaius himself, it is important to remember that whatever reputation he acquired in later days, and however enduring has been his fame as the model for all systematic treatise-writers on law, in his own time he was only a private lecturer. Unlike many of the distinguished lawyers who preceded him, and others equally distinguished who were his contemporaries, he never had the privilege condendi jura, in jura respondendi. That he was a writer held in eminent distinction in Justinian's time is clear from the large number of extracts from his works to be found in the Digest', and there is good reason to believe that he was a successful and popular lecturer; but it is strange that with all his rare knowledge and laborious research he did not emerge from his comparative obscurity. It may be that the very learning in which he was pre-eminent unfitted him for public life. His love of investigation, his strong liking for classification and arrangement, and his studious habits, possibly gave him a distaste for actual practice, in which all these qualities are of much less importance than rapidity of judgment, prompt decision, and aptness for argumentative disputation. He was one of those men like our own John Austin; lawyers admirably fitted for the quiet thought and learned meditation of the study, but averse from the stir and bustle of the forum; yet not the less valuable members of the profession which they silently adorn.
and published by Maffeius in 1732 and 1742, and again by Haubold in 1816. This corresponds to what is now Book iv, SS 134—144, beginning with the words :... TIONE FORMULAE DET...T...I, and ending PRO HEREDE AUT PRO POSSESSOR... Niebuhr's manuscript was far from complete, wanting three entire pages besides fragments of pages here and there.
i A catalogue of these excerpta will be found in the article above
mentioned in the Dictionary of Greek and Roman Biography. The Inde Florentinus merely gives the titles of the books composed by Gaius. An analysis of the passages from these quoted in the Digest, of which there are as many as 535, is laboriously worked out in the Jurisprudentia Restituta of Abraham Wieling, pp. 7–20, and in the Palingenesia of C. F. Hommel, Vol. I. pp. 55–126.
A comparison of the excerpts from the writings of Gaius in the Digest with those from Ulpian, Paulus, Papinian, and others, to whom was granted the privilege of uttering responsa, will show that there is in Gaius, as his Commentaries also evince, an unreadiness to give his own opinion upon contested questions, a strong inclination to collect and put side by side the views of opposite schools, and a constant anxiety to treat a legal doctrine from an historical rather than a judicial point of view. In Ulpian and Paulus, and men of that stamp, we meet with decisive and pithy opinions upon legal difficulties, an abundant proof of firm self-reliance and indifference to opposite views, and a lawyer-like way of looking at a doctrine as it affects the case before them, rather than accounting for its appearance as a problem of Jurisprudence or Legislature; with them it is the matter itself which is of primary importance, with Gaius it is the clearing up of everything connected with the full understanding in the abstract of the subject on which he is engaged. To this peculiar turn of his mind we are probably indebted for his keen appreciation of the help which history affords to law, and for the large amount of reference to archaic forms and ceremonies which proceeds from his pen.
From Gaius himself the transition to his Commentaries is natural. Three or four topics present themselves for notice upon that head : (1) Their nature and object; (2) the effect upon them of certain constitutional reforms that had been and at the time of their publication were being carried out at Rome; (3) the mode in which they were first presented to the public.
ist. As to the nature and object of Gaius' Commentaries:There is an opinion pretty commonly accepted as correct, that this volume was written, like the corresponding work of Justinian, for the express purpose of giving a general sketch of the rules and principles of the private law of Rome, and that it was intended to be a preliminary text-book for students. That this gives a very incorrect notion of the aim of Gaius and the nature of his work is clear, partly from a comparison of it with
that which was intended to be a student's first book on law (viz. the Institutes of Justinian), and partly from the analysis of its subject-matter. What Gaius really had in view was, not the publication of a systematic treatise on private law, but the enunciation, in the shape of oral lectures, of matter that would be serviceable to those who were studying with a view to practice. The work itself, as we shall show presently, was not directly prepared for publication, but was a republication in a collected form of lectures (the outline of which, perhaps, had been originally in writing and the filling-up by word of mouth,) when the cordial reception of the same by a limited class had suggested their being put into a shape which would benefit a wider circle of students. The contents of the book will bear out this view. Thus, in the first part, Gaius speaks of men as subjects of law, shows what rights they have, points out who are personae and who are not, who are under potestas and manus, who can act alone, and who require some legal medium to render their acts valid. In fact, the main object of the whole of this first part is to render clear to his hearers how those who are of free birth stand, not only in relation to those who are not, but in relation to the law. Hence, there is no attempt at explaining the nature of Law and Jurisprudence, no classification of the parts of Law, no aiming at philosophical arrangements and analysis, but a simple declaration of the Roman law as it affects its subjects, men, illustrated of course by historical as well as by technical references. Hence too, we understand why there is nothing in the shape of explanation of the rules relating to marriage, of the relative position of father and son, of patron and client, nothing of the learning about the peculium, or about the administration of the property of minors and wards. In short, this portion of the Commentaries might be styled the general Roman law of private civil rights, cleared from all rules connected with special relations. One special matter, however, is discussed with much attention and detail, viz. the position of the Latini in relation to private law; but of this anomaly we shall speak at more length presently.
So far for the first portion of the work :— The second is of