Institutes of Roman Law. Gaius

by ordering a new trial ^{Ref. 150}. He could of course vary the decisions of his own delegates in matters of extraordinary jurisdiction. In criminal matters the Princeps does not seem to have had the power of altering the decisions of the Quaestiones Perpetuae; but he could probably order a new trial ^{Ref. 151}. There was technically no right of appeal from the Senate to the Princeps ^{Ref. 152}; but the Princeps could exercise what was practically a power of pardon by vetoing the decisions of the Senate in virtue of his Tribunicia Potestas. In the provincial world, the right of appeal was at first regulated in accordance with the distinction between Caesar’s provinces and the provinces of the Roman people. From Caesar’s provinces the appeal lay to Caesar; from the other provinces it came to the Consuls and, at least if it was concerned with a criminal matter, was by them transmitted to the Senate. But we know that this system of dual jurisdiction was breaking down even in the first century of the Principate, and that the appellate jurisdiction of the Princeps was tending to encroach on that of the Consuls and Senate ^{Ref. 153}. The extent to which it had broken down in the time of Gaius is unknown. But we know that, by the end of the second century a. d., the Princeps was the Court of Appeal for the whole provincial world. For this purpose he was usually represented by the Prefect of the Praetorian Guard.

      

       § 18.: The work of the Jurisconsults under the Principate.

      The official organs which made Roman law were now, as under the Republic, assisted by the unofficial or semi-official activity of the jurisconsults. Some of these teachers were now given public recognition as authoritative sources of law. We are told that Augustus granted the right to certain jurisconsults to respond under imperial authority; and this practice was continued by his successors on the throne. Amongst the earlier of these patented jurisconsults was Masurius Sabinus, of the time of the Emperor Tiberius ^{Ref. 154}. The granting of this privilege did not diminish the activity of the unpatented lawyers ^{Ref. 155}, although it doubtless diminished their influence; but it gave the response of its possessor as authoritative a character as though it had proceeded from the emperor himself ^{Ref. 156}. The response was usually elicited by a party to the suit and presented to the Judex ^{Ref. 157}. He was bound by the decision ^{Ref. 158}; but naturally only on the assumption that the facts as stated in the petition which elicited the Rescript were the facts as exhibited in the course of the trial ^{Ref. 159} It may have been understood that the opinion of only one patented counsellor was to be sought in any single case; for in the early Principate there seems to have been no provision determining the conduct of a Judex when the opinions of his advisers differed. Later it must have been possible to elicit the opinion of several patented jurists on a single issue; for the Emperor Hadrian framed the rule that, in the case of conflicting responses, a Judex should be entitled to use his own discretion ^{Ref. 160}.

      

       § 19.: Literary activity in the domain of Law to the time of Gaius.

      The literary activity in the domain of law, during the period which intervened between the accession of Augustus and the time of Gaius, was of the most varied character ^{Ref. 161}. Religious law (Jus Pontificium) attracted the attention of Capito. Labeo wrote on the Twelve Tables. The Praetor’s Edict was the subject of studies by Labeo, Masurius Sabinus, Pedius and Pomponius. The Edict of the Curule Aediles was commented on by Caelius Sabinus. Salvius Julianus, besides his redaction of the Edicts ^{Ref. 162}, produced a work known as Digesta, which perhaps assumed the form of detailed explanations of points of law systematically arranged. Comprehensive works on the Civil Law were furnished by Masurius Sabinus and Caius Cassius Longinus. Other jurists produced monographs on special branches of law, as the younger Nerva on Usucapion, Pedius on Stipulations, Pomponius on Fideicommissa. Some lawyers wrote commentaries on the works of their predecessors. It was thus that Aristo dealt with Labeo, and Pomponius with Sabinus. Other works took the form of Epistolae, which furnished opinions on special cases which had been submitted to their author, and collections of Problems (Quaestiones). Nor was history neglected. There must have been much of it in Labeo’s commentary on the Twelve Tables; and Pomponius wrote a Handbook (Enchiridion), which contained a sketch of the legal history of Rome from the earliest times.

      

       § 20.: The Institutes of Gaius; their place in the Literature of Law.

      The Institutes of Gaius are a product of this activity; for it is necessary that a great deal of detailed and special work shall be done in a science before a good handbook on the subject can be written for the use of students. The name of Gaius’s work does not appear in the manuscript; ‘but ^{Ref. 163} 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 Juris 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 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.’

      ‘Certain internal evidences fix the date at which portions of the Institutions were composed. The Emperor Hadrian is spoken of as departed or deceased (Divius) 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 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.’ It has, however, been held that Gaius when he wrote the Institutions was acquainted with the Sc. Tertullianum, and that a mention of it occupied a gap in the manuscript which is found in 3. 33. See the commentary on this passage.

      The discovery of the text of the Institutions was made in 1816. In that year ‘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. In communication with 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 II, King of the Visigoths (§ 1, 22, Comm.). 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.’

      ‘In