A Dictionary of Greek and Roman biography and mythology. By various writers. Ed. by William Smith. Illustrated by numerous engravings on wood.

198 GAIUS.'GAIIUS.
preferred for instruction to Papinian,' Paulus, and This constitution proves the'greait 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 anwere 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 proved to belong to
good elementary works, when they take ground Julianus, and which, upon a collation of manuunoccupied before,'are not easily dispossessed. scripts, present a certain text. The works of
Are not Blackstone's Commentaries, and even Coke Papinian, Paulus, Gains, 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which have superseded great parts of their con- works of all the other jurists who are cited by any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 Tituli ex CogpTore 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 opiproof 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 may 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 (Rlhein. Mus. fjir
than a practical jurist, whose opinionsderived au- Julisp. vol. v. p. 141, and vol. vi. p. 87) have
thority from imperial sanction. He was not one thrown important light.
of the pruadentes quibus permissuam est jura condee Among the writings of Gaius are no Quaestioes
(Gaius, i. 7). The jurists who were armed with or Responsa, which were the titles given by other
thatjus 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 critithis 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 unprofessional 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 Divus (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 emdicta 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
senate of Rome in A. D. 436. (Cod. Theod. 1. after' the. senatus consultumn Tertullianum, made in
tit. 4. s. 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 Orphitiaof Papinian, Paulus, Ulpian, and Modestinus. num, made in the reign of Marcus and Commodus,
Hence it may be inferred that Gaits was previously A.D. 178. (Compare Inst. 3. tit. 4. pr., and Capiin 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 Antoninms 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 1inpesrator Antoninus. So, in
treatise written by a jurist before he received the i. 102, we have "Nune ex epistol- optimi Impejus respondei.di.probably derived no legal force from ratoris Antonini," and, in ii. 126, " Sed nuaper imthe subsequent gift of that privilege to the' author. perator Antoninus signsjqcavit rtescripto." The