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GA IU S

BY A. M. H O N O R É

O X FO RD
AT T H E C L A R E N D O N PRESS
1962
© Oxford University Press 1962

PRINTED IN GREAT BRITAIN


G A IA E N O S T R A E
P REFACE

P rofessor D a u b e , Mr. B. F. McGuinness, and Professor


Syme each read the whole or part of the manuscript of this book
and made valuable suggestions for its improvement. Mr. J. D. P.
Bolton helped to improve my Latin prose and Mr. D. S. Ruxton
undertook the labour of checking most of the citation tables.
Mr. J. K. B. M. Nicholas kindly read the proofs. To all these
I am grateful. They are in no way committed to the arguments
and conclusions which follow or responsible for the mistakes
which remain. The same is true of Dr. G. E. F. Chilver and
Dr. Alan Watson, to whom I owe a special debt for their
generous help in the field of Roman history and law respec­
tively. Many of their suggestions have been incorporated in the
text and, as it would have burdened the footnotes too much to
acknowledge them one by one, I prefer gratefully to record
their contribution here.
A. Μ. H.
CONTENTS
INTRODUCTION χί
i. Quod Gaius noster dixit i
i i . Call me Gaius 12
h i . The Law Schools 18
IV. The Chronology of Gaius’ Works 46
V. Rome and the Provinces 70
vi. The Mind of Gaius 97
v i i . The Establishment 117
v ili. Gaius in History 126

appen d ix : tabulae laudatoriae

Ad Tabulas LaudatoriasPraefatio 131


i. Sextus Caecilius Africanus 134
ii . Iuventius Celsus filius 137
in . Gai libri ad edicta 141
IV. Gai institutiones (folder between pp. 144 and 145)
V. Gai cetera opera 149
vi. Iavolenus Priscus (folder between pp. 152 and /55)
vii . Salvius Iulianus 155
v ili. Lucius Volusius Maecianus 161
ix. Ulpius Marcellus 164
X. Neratius Priscus 167
χί. Sextus Pomponius (folder between pp. ijo and /7/)
XU. Terentius Clemens 175
XIII. Aburnius Valens 178
XIV. V enuleius Saturninus 179
INDEX 182
INTRODUCTION

T h i s slim volume has been written in an attempt to solve the


mysteries that surround the life of Gaius, the Roman lawyer
who lived in the second century a .d . and became famous or at
least achieved recognition only in the fifth and sixth centuries.
He is the Roman lawyer of whom, as Jolowicz said, we know
at the same time more and less than of any other.
We know that he was alive when the famous Egyptian woman
Serapias was brought to Hadrian with her quintuplets.1 We
know that he wrote a commentary on the Senatusconsultum
Orfitianum, passed in a .d . 178.2 From the fact that no responsa of
Gaius are known or referred to it is deduced that he did not
possess ius respondendi ex auctoritate principis and was not prominent
in politics. And there we meet a blank wall. His name, one of
the commonest praenomina, is hardly better than no name; yet
Gaius tells us that he is a Roman citizen,3 so that he must have
had at least a praenomen and a gentile name, probably also
a cognomen. Roman lawyers were much given to citing their con­
temporaries and predecessors, but, with one disputed exception,
we find no mention of Gaius until in a .d . 426, at least 200 years
after his death, the emperor Theodosius II enacted that his works
should have as much authority as those of the Severan and post-
Severan writers,4 Papinian, Paul, Ulpian, and Modestinus.
Thereafter his reputation rose. Not only were his works the
basis of first-year legal education in the Byzantine schools,5 but
Justinian and his compilers single him out by calling him Gaius
noster. 6 What exactly they mean is one of the themes of this book.
Modern writers tend to explain the mystery of Gaius in one
of two ways. Either they follow Mommsen7 in making him
a provincial, out of touch with and unknown to the busy round

1 D. 34. 5. 7 pr. (Gai. 1 fid.). 2 D. 38. 17. 9; J . Inst. 3. 4 pr.


3 Inst. i. 55, 193. 4 C. Th. i. 4. 3. 5 C.Omnem, 1.
6 Ib id .; C. Imperatoriam, 6; J . Inst. 4. 18. 5.
7 ‘Gaius ein Proyinzialjurist’ (1859), Ges. Sehr. ii. 26.
xii IN T R O D U C TIO N

of the metropolitan lawyer; or they admit that he was a Roman


writing in Rome, but think that his contemporaries and
successors were right in ignoring his contributions to the law.
The opinion of Asher,1 that no one would have called such
a worthless individual noster, is by no means uncharacteristic of
the literature about Gaius. This train of thought has led some123
to the following position: if anything in the works of Gaius
seems original, such as the scheme of his Institutiones, this is
copied from an earlier model. If, on the other hand, the work
of a writer who was famous in his own age, such as Salvius
Iulianus, a contemporary of Gaius, seems to possess defects (no
attention to classification, no statements of general principle),
this is because the compilers omitted the relevant parts of his
work from the Digest.
It is therefore worth while insisting that, if we take the evi­
dence at its face value, Gaius was the originator of no fewer than
three types of legal literature. The first is the institutional book.
Gaius’ Institutiones is the first work of this sort of which we know
(omitting unrecorded models and other trackless monsters). It
is a teaching book; its precise character will be examined later.
It had many imitators in the ancient world; Florentinus,
Ulpian, and Marcianus wrote Institutiones, some on a more
elaborate scale than Gaius. Justinian used Gaius’ book as the
basis of his own students’ book; and through Justinian Gaius
has become the teacher of Europe.
For his Institutes Justinian also used Gaius’ Res Cottidianae?
This was a law book about ‘everyday matters’ (also known by
the title Aurea) and was addressed to the general public. It can
hardly be denied that it was unique4 in Roman legal writing
but it has been argued instead that it was not written by Gaius
and that the compilers were wrong in attributing it to him. How
little foundation there is for this opinion is shown in due course.5
1 ‘Gaius noster’ (1886), 5 g)eil. f . Rechlsgesch. 85, 100.
2 e.g. Krüger, Geschichte der Quellen und Litteratur des römischen Rechts. Citations in
this book are taken from the second German edition (1912). On Gaius and Julian
see pp. 185, 201, 204.
3 C. Imperatoriam, 6.
4 Paul, libri II I manualium is perhaps an imitation. 5 Ch. V I, p. 113.
IN T R O D U C T IO N X lll

Finally, Gaius alone among the Romans wrote a commen­


tary (in thirty books) on the provincial edict. It is not sur­
prising that his work became popular in the provinces of East
and West in post-classical times.1
Neither the Mommsen view nor that which treats Gaius as
a worthless writer is really tenable. What is needed is a thorough
investigation of Gaius’ relations with the lawyers and govern­
ment of his age. But have we the materials to undertake it? The
answer is that we have if we make proper use of the evidence
of history and pay that careful attention to the use of language
which we ought to have learned from modern philosophy.
The historical setting of Gaius’ career is this. During the early
part of the second century a .d . the legal profession was increas­
ingly brought under government control. Hadrian, by a series
of deft administrative measures, undermined what was left of the
independence of the Roman bar. He was helped by Salvius
Iulianus who was shortly to become, under Pius, the dominant
lawyer of the century. Together these two swept away the old-
fashioned schools lawyer and replaced him by the up-to-date
establishment lawyer whose focus of loyalty was the imperial
consilium, not the law school. It is in this context that we must
place the career of Gaius, a man firmly attached to the schools
tradition and, in particular, to the critical, conservative ways
of the ‘Sabinian’ law school.
As to language, the importance of linguistic studies was first
adequately stressed by Professor Daube in his Forms of Roman
Legislation (1956). We are emerging from a dark age in Roman
legal studies in which every difficulty in the texts was evaded
by the hypothesis of interpolation. This encouraged unhistorical
attitudes; for the slow evolution of doctrine during the first
250 years of the empire, miscalled a period, was substituted
a craze for free composition on the part of the Byzantines, an
acte gratuit of worthy civil servants whose scrupulous respect for
the ipsissima verba of the classics is, in truth, their outstanding
quality.2
1 Kunkel, Herkunft und soziale Stellung der römischen Juristen (1952), 192-3.
2 Thus, though nominally Christians, they do not strike out divus as applied to
an emperor.
IN T R O D U C T IO N

Nowadays the search for interpolations lance et licio is dis­


credited and it is already clear that further progress must be
based on the principles that every writer makes his own dic­
tionary and is the criterion of his own authenticity. So far from
legal Latin being a uniform jargon, the jurists have marked
idiosyncrasies. We have less than eighty fragments of Venuleius
Saturninus but even so we can pick out his marks: videbitur for
videtur\l and natura2 as a ground of decision.
To make this clear and lay a foundation for the linguistic
arguments on which I rely I have compiled citation tables
( Tabulae Laudatoriae) for the principal jurists of the age of Gaius
—those who rose to prominence with or just before him, under
Trajan, Hadrian, and Antoninus Pius, during the first sixty
years of the second century. The series begins with Iavolenus
Priscus, consul suffectus in a .d . 86, and ends with Ulpius Marcellus,
the junior member of the consilium of Pius. For the future of
Roman legal studies tables must be compiled for the period
before and after Gaius as well; but the above period suffices for
a limited study such as the present.
The tables are designed to be used in conjunction with Lenel’s
Palingenesia. In the first place they analyse the citations by each
writer of other writers and of the emperors. The analysis
extends not merely to the person cited but to the mode of
citation. Lawyers are apt to have settled linguistic habits, so
that their work lends itself to form-critical techniques. Thus,
Labeo ait is not the same as Labeo existimat. Ait, the word most
commonly used in citation, has at least two uses: it introduces
an exact quotation, usually in indirect speech, and it expresses
‘distance’ or formality. There is a ‘textual’ and a ‘distant’ ait.
From ait we can often deduce a writer’s written sources and
pick out those of his contemporaries with whom he was not on
close terms. Putat and existimat give the gist of an opinion, not
necessarily the exact •words',placet is more emphatic than either.
The present tense is normal for citing the opinion of another
jurist. Its meaning is not temporal: Quintus Mucius ait is correct
1 D. 35. 2. 6; 43. 24. 22. 5; 46. 7. 17.
2 D. 14. 6 . 18; 45. i. 137. 6 ; 45. I . 139.
IN TR O D U C TIO N XV

in the second century a .d ., whenever the opinion expressed is


of current interest. On the other hand the timeless present is
never used for a statement which has the force of law. Thus
respondit, decrevit, rescripsit, censuit are always perfect ;1the perfect
here is ‘decisive’ and focuses attention on the particular legisla­
tive act. While the legislative document itself may contain these
words in the present, a report cannot do so. The senate may
say senatus censet; anyone else must say senatus censuit, or he
would imply that, despite the resolution, the law on the point
remains open for discussion.
Jurists do not always cite other jurists in the present. The
perfect and imperfect are also found; their frequency varies
from writer to writer. There is always some special reason for
the use of a past tense; the sort of reason to look for can be
illustrated from the case of Iavolenus, head of the ‘Sabinian’
law school at the end of the first century. Proculus, the founder
of the rival school, he cites only in the present or with no verb.12
Sabinus, his own predecessor, he cites once in the imperfect,3
otherwise without a verb.4 Servius, a republican lawyer linked
with the Sabinian tradition, he cites sometimes in the present,5
but twice, apart from cases of responsa, in the perfect.6 To
Proculus Iavolenus is distant, to Servius respectful; as to Sabi­
nus, the imperfect reports what Iavolenus heard him say, or
an oral tradition current in the Sabinian school. Again, we
know that Sextus Caecilius Africanus was a particularly slavish
pupil of Salvius Iulianus; in his works we find three direct and
thirty-nine implicit citations of Julian with ait; inquit three
times, notat and putat twice each (all implied). Apart from this
Africanus always uses the perfect or imperfect of Julian : we
find, in express citation, non placebat and probaret once each ; in
implied citation aiebat once, dicebat once, placebat four times,
putabat once, non putabat once, existimavit fifteen times, negavit five

1 W e once find edicebat, used of a praetor. D. 4. 6. 26. 7.


2 D. 24. I . 64; 28. 5. 1 1 ; 29. 2. 62; 32. 100. 2, 3; 35. 1.40.555ο. ι6. 116.
3 D. 45. i. 105.
4 D. 19. 2. 59.
5 D. 23. 3. 79 p r.; 24. 3. 66 p r.; 40. 7. 39. 3.
6 D. 28. I. 25; 32. 29. 2. One of these is a second-hand citation.
XVI IN TR O D U C TIO N

times, putavit six times.1 There could be no clearer proof that,


whereas an exact quotation must be introduced by ait or inquit,
in cases where exact quotation is not intended respect or affec­
tion are expressed by the use of a past tense.
With the help of historical clues we can conclude that the
perfect has several uses. It may indicate that the opinion is out
of date. This is the nearest to a temporal use that we find. The
perfect also records an opinion which is entitled to respect,
something almost having the force of law, as might be said of
the opinion of a lawyer of great authority. Again, it indicates
affection, as in the case of Africanus. The present, apart from
direct quotation, is too frigid for citing a person with whom one
is closely connected. Lastly, the tense may be cited at second
hand from the source which the author is using.
The imperfect also has several uses ; from our point of view it
is the most important tense. Sometimes it may be used to record
what a jurist wrote or said on several occasions, but I do not
recall a text in which this temporal use is clearly established.2
More often the imperfect records opinions expressed orally in
the course of disputation or argument. The usual meaning of
existimabat (as when Iavolenus uses it of Sabinus : is recte existi­
mabat3) is: ‘He expressed the opinion in argument that . . .’. Of
course, if a man expresses the same opinion more than once, the
case for the imperfect is still stronger.
The imperfect can often be used to identify the persons with
whose oral conversation a writer was familiar. This is, in fact,
usually the best clue to the identity of his teachers and colleagues
and so to the tracing of his career. Sometimes the imperfect
records oral tradition, which was more important in the ancient
world than it is now; sometimes it is taken at second hand from
the author’s source.
The citation tables also record double and triple citations,
such as Meratio et Aristoni videtur or Aristoni et Meralio videtur. Both
the coupling of authors and the order in which they are cited
1 The texts are too numerous to set out here; for details see T ab. Laud. I, n. 5.
2 The perfect is usual. D. 47. 2. 12.2 (Iulianus saepissime scripsit). Cf. D. 37. 5. 5. 6;
44. 4. 4. 26. For saepius scribit see D. 37. 14. 16 pr. ; 39. 6. 12.
3 D. 45. i. 105. For a very clear example see D. 28. 4. 3 (Marc. 29 dig.).
IN T R O D U C TIO N xvu

are significant. We know that Neratius was, in general, writing


after Aristo, since he cites Aristo, not vice versa: in fact he
cites Aristo more often than anyone else. But later writers who
couple the two usually name Neratius first.1 A reversal of
chronological sequence, which is quite common in the texts, is
therefore an indication that the jurist cited second is not an in­
dependent source but culled from the works of the jurist cited
first.
After the citation tables come notes on the language of the
various jurists. These cover such topics as the number and
frequency of citations, the use of tenses, the frequency of Greek
words, the mode of introducing and disposing of legal problems,
the arguments relied on, the use of the first person, and the place-
names mentioned.
In a biographical inquiry weight attaches to any use of the
first person which genuinely refers to the writer : as in ‘quod mihi
verum videtur’, not ‘si hominem Stichum comparaverim.’ For the life
of Gaius the use of noster both by and about him is a specially
important clue. Even so, no biography could be attempted with­
out the aid of speculation about his thoughts and motives and
those of his contemporaries. I do not think we should be afraid
of the word ‘speculation5. If the evidence is scanty, which it is,
the proper procedure is to follow the most likely trail and see
where it leads. In the case of Gaius it leads to reasonably firm
conclusions about his name, dates, domicile, and career. If the
conclusions are wrong, they are at least refutable.
Whether the solutions I propose are plausible should be
judged from the book as a whole, not from isolated chapters.
With this in mind, I have sacrificed the discussion of diver­
gent views in order to present a short and, if possible, coherent
story. Even lawyers are partly human, and we should think
of the Roman legal profession in the second century not as a set
of cardboard figures passing the time in intellectual exercises
(though there is an element of this in legal writing) but as men

1 D . 7. 2. 3. 2; 17. 2. 62; 28. 5. 9. 14; 30. 45 pr.; 37. 12. 5; 40. 7. 5 pr. Contrast
D. 23. 3. 20; 35. I . 7 pr. (both triplets in which the chronological order has been
restored).
xviiì INTRODUCTION
with careers to make and views to uphold, as deeply engaged
in the life of their time as politicians or historians.
Legal writing lends itself to anonymity, detachment, and
reserve. But this is only a convention and a facade. With a little
scratching below the surface we can detect the political opinions,
friendships, and enmities of the jurists. It is not given to anyone
to write without revealing himself.
It would be dishonest and ineffective for me to disclaim par­
tiality. Gaius was certainly not the first academic lawyer in
Roman history; on the contrary he represents the culmination
of a long tradition; Labeo and Sabinus in the first century were
both lawyers whose interests were primarily academic and who
made large contributions to the growth of the law. But Gaius
made the decisive contribution to teaching methods, to peda­
gogic literature, and to the art of classification. In lucidity he is
unrivalled. He has some claim at least to be thought of as the
parens ac princeps of the profession of academic lawyer. It is
natural that a colleague in his profession should be concerned
to restore his reputation, and fitting that the university in which
the old ways of teaching to some extent survive should disinter
his bones.
I

Quod Gaius Noster Dixit


A ny discussion of Gaius’ life and work must begin with the one
text in the Digest which, on the face of it, appears to refer to
him. This is in D. 45. 3. 39: Pomponius book 22 ad Quintum
Mucium
Cum servus, in quo usum fructum habemus, proprietatis domino
ex re fructuarii vel ex operis eius nominatim stipuletur, adquiritur
domino proprietatis: sed qua actione fructuarius reciperare possit
a domino proprietatis, requirendum est. item si servus bona fide
nobis serviat et id, quod nobis adquirere poterit, nominatim domi­
no suo stipulatus fuerit, ei adquiret: sed qua actione id reciperare
possumus, quaeremus, et non sine ratione est, quod Gaius noster
dixit, condici id in utroque casu posse domino.
In this text noster is generally held interpolated .11 shall argue
that the prevailing view is wrong.2
The alleged interpolation is not of the sort which leaves any
linguistic traces. The grammatical structure of the sentence
remains the same whether noster is left in or taken out. The
grounds for suspecting interpolation must be other than lin­
guistic. It may be argued that there are interpolations (e.g.
domino proprietatis or sed . . . quaeremus) in the earlier part of the
text.3 This does not affect the issue. Even if there are such
interpolations, this does not prove interpolation in the last sen­
tence, which is linguistically impeccable and presents a clear
rule as to the application of the classical condictio.
If noster is interpolated, the text originally read: quod Gaius
1 Kunkel, Herkunft und soziale Stellung der römischen Juristen, p. 187, n. 341. Index
Interpolationum ad loc. A discussion of the proper form of action is usually classical.
2 I agree in the m ain with Fitting, Über das Alter und Folge der Schriften römischer
Juristen (2nd ed., 1908), 3, 52. For the substantive law cf. D. 12. 1. 31. 1.
3 For non sine ratione see D. 2. 2. 3. 6; 16. i. 19. 5; 37. 4. 17; 39. 2. 44. i. W ith
in utroque casu compare in eodem casu (D. 33. 5. 9. 2: Iui. 32 dig.) ; in eo casu (D .
21. 2. 16. 2: Pomp. 9 Sab.—Proc.) ; in hoc casu (D . 31. 47: Proc. 6 epist.)
825155 B
Q U O D G A IUS N O S T E R D I X I T

dixit.1 If the compilers have added noster it is because they


thought the Gaius referred to was their own favourite Gaius.
Yet they have not added noster in three other places where they
found a reference to ‘Gaius’. Two of these are by Iavolenus,
viz. D. 35. I. 54 pr. and 46. 3. 78 and read respectively ‘in
commentariis Gaii scriptum est’ and ‘in libris Gaii scriptum est’. We
know that Iavolenus cannot refer to our Gaius, because
Iavolenus was ill in a .d . 1062 and probably did not live be­
yond A.D. 120, while Gaius can hardly have been born before
a .d . 105.3 It may be said that the compilers noticed this also,
and so omitted to add noster in these two passages.
The other ‘Gaius’ passage is in Julian.4
Sabinus dicebat utile mihi eius dotis reciperandae iudicium dan­
dum esse: Gaius idem.
Unfortunately we do not know when Julian Ad Urseium
Ferocem was composed. As Julian lived not merely under
Hadrian but under Antoninus Pius and Marcus it is chrono­
logically possible that he was referring to our Gaius. However,
the fact that the mention of Gaius follows on that of Sabinus,
and that Julian nowhere else mentions our Gaius, leads one to
suppose that the Gaius referred to is Gaius Cassius Longinus,5
especially as Iavolenus, one of Julian’s predecessors as head of
the Sabinian law school, uses ‘Gaius’ when he can only mean
Cassius. Also dicebat is more naturally used of a predecessor than
of a younger contemporary. Again, Sabinus and Cassius are
often coupled together by Gaius himself,6 Pomponius,7 and
others. It would not be surprising to find Julian so coupling
them. Finally, the citation is probably attributable to Urseius
Ferox, not Julian; the reason for saying this is that in Julian’s
Digesta there are few citations of other lawyers, and no instance
of a double citation. If so, the Gaius must be Cassius, not our
1 W hich is awkward. ‘Quod Gaius noster dixit’ has a better rhythm , and ‘quod
Aristo dixit’ (D . 18. 5. 1 ; Pomp. 15 Sab.) is smoother.
2 Pliny, Ep. vi. 15. See Ch. I l l , p. 26. 3 See Ch. IV , p. 58.
4 D. 24. 3. 59 (2 ad Urs. Per.)
5 Consul suffectus a . d . 30. Banished from Rome by Nero a . d . 65.
6 D. 2. i. i i p r.; 9. 4. 15; 16. 3. 14. 1; 18. 1. 35. 5; 40. 4. 57; 41. 1. 7. 7 bis.
7 D. 30. 26. 2; 35. I . 6. i ; 45. 3. 6.
Q U O D GAIUS N O STER D IX IT 3

Gaius, because Urseius Ferox wrote not later than Trajan,1


probably much earlier.
It may be said that the compilers realized this, and so
refrained from adding noster in this passage also. They thought
they spotted the one passage out of four ‘Gaian’ passages in the
Digest which really referred to Gaius.
If this is what the compilers did, then I think they were right
in discerning a reference to Gaius. But there is no need to
suppose an interpolation.
There are certain positive reasons for thinking that Pom­
ponius means to refer to Gaius.12 The first is the fact that on
ten other occasions Pomponius refers to Cassius and he always
calls him just Cassius.3 It is true that he may have varied his
usage, as did Iavolenus4 and Julian.5 But the variation would
be much more striking in the case of Pomponius, who uses the
same nomenclature nine times out of ten, than it is in the case
of Iavolenus and Julian,6 who are quite indiscriminate. Pom­
ponius uses a different name: the presumption is that he is
referring to a different man.
Secondly, Pomponius is writing on Quintus Mucius. We know
from Gaius’ Institutes that he also wrote on Quintus Mucius.7
He there speaks of the types of tutelage and continues :
nam de ea re valde veteres dubitaverunt, nosque diligentius hunc
tractatum exsecuti sumus et in edicti interpretatione et in his libris
quos ex Q . Mucio fecimus.

It would therefore be natural for Pomponius, in writing his


own treatise on Quintus Mucius, to refer to what Gaius had
written, if the latter’s work was completed before Pomponius’.

1 Krüger, op. cit. 174-5. Kunkel, op. cit., Nr. 27. He cites Cassius (D. 7. 4. 10.
5 (?) ; 16. I . 16. i ; 30. 104. 1) and Cassius cites him ( D . 44. 5. 1. 10).
2 For further reasons see Ch. I l l , p. 26.
3 D. 4. 8. 40; 22. 6. 3. i ; 29. 2. 99; 30. 26. 2; 34. 2. 21. 2; 35. i . 6. i ; 35. 2. 31 ;
41. i. 27. 2; 45. 3. 6; 46. 3. 17. Cf. D. i. 2. 2. 51.
4 D. 40. 7. 28. i (Gaius Cassius).
5 D. 16. I . 16. 1; 19. 2. 32; 30. 104. 1; 40. 12. 30.
6 But I am not convinced that there is any variation in Ju lian ’s references,
because the ‘Gaius Cassius’ in D. 16. 1. 16. 1 may also be attributable to Urseius
Ferox.
7 Inst. I. 188.
4 Q U O D GAIUS N O S T E R D IX IT

We cannot know directly when Gaius’ work was written, as


nothing survives except this reference; but Pomponius’ 39 books
on the subject were not written before the reign of Antoninus
Pius.1 As we shall see,12 Gaius can hardly have been born after
A.D. 1 2 1 and therefore could well have written his commen­
taries on Quintus Mucius in time for Pomponius to cite them.
Finally, the strongest argument is this: if noster is genuine,
‘Gaius’ can only refer to our Gaius. The tense of dixit is a
strong indication that noster is genuine.3 We shall take these
points in turn, beginning with an examination of the use of
noster by lawyers.
Noster clearly has many meanings. Thus imperator noster45
means the emperor reigning at the time the writer is writing.
I am concerned with the meaning of noster when used by one
jurist to refer to another. In this sense noster means inter alia5 ‘my
law tutor’. Besides the present text we have ten texts of Paul,6
two of Tryphoninus,7 four of Maecianus,8and one of Terentius.9
Paul’s10*texts all refer to Q. Cervidius Scaevola.11 They are as
follows :
In 2. 14. 27. 2: haec et Scaevolae nostro placuerunt
In 3. 5. 18. i : Scaevola noster ait putare se
In 4. 4. 24. 2 : Scaevola noster aiebat
In 10. 2. 46: et ita Scaevolae quoque nostro visum est
In 23. 3. 56. 3 : desinere eum dotalem esse Scaevola noster dicebat
. . . secundum Scaevolae nostri sententiam
In 28. 6. 38. 3: Quintus Cervidius Scaevola noster dicebat
In 27.1.32: idque et Scaevolae nostro placebat
In 42. 5. 6. 2 : Scaevola noster ait
In 37. i i . 10: et Scaevola noster probat posse

1 D. 7. 8. 22. See Ch. IV, p. 56. 2 Ch. IV , p. 61.


3 ‘Gaius’ by itself is not really specific enough. This will have presented a
difficulty to any jurist who wanted to cite his work. M uch the same, of course,
might be said o f ‘Priscus’. Ulp. 11. 28. 4 D. 24. 1. 7. 5, 6.
5 Exclusively, according to Asher, ^ e it.f. Rechtsgesch. v. 93 f.
6 D. 2. 14. 27. 2; 3. 5. 18. i ; 4. 4. 24. 2; 10. 2. 46; 23. 3. 56. 3 bis; 28. 6. 38. 3;
27. I . 32; 42. 5. 6. 2; 37. i i . 10. 7 D. 20. 5. 12. 1; 49. 17. 19 pr.
8 D. 35. 2. 32. 4; 35. I . 86 pr.; 35. 2. 30. 7; 36. 1. 67. 1. 9 D. 28. 6. 6.
10 Iulius Paulus, praefectus praetorio under Alexander Severus.
11 Chief legal adviser of Marcus Antoninus Aurelius. A more distinguished bearer
of this cognomen was Q . Mucius Scaevola (consul 95 b.c.), called by lawyers
‘Quintus M ucius’.
Q U O D GAIUS N O S T E R D IX IT 5

Apart from these ten texts, there are nine others in which
Scaevola is cited by Paul without noster.1 All these texts record
responsa of Scaevola and contain the simple phrase Scaevola
respondit. There is a reason for this use. A responsum is a formal
act: respondit2 is always in the perfect tense, since a responsum
has the force of law and focuses our attention on a particular
occasion. This use of the perfect may conveniently be called the
‘dispositive perfect’; compare decrevit, rescripsit, senatus censuit.
We never read decernit, rescribit, or senatus censet except, of course,
if an actual transcript of the disposition is being recorded.
In relation to a formal act familiarity is out of place. In
relation to a judge, for instance, whose decision in English law
has the force of law, there would be a difference between ‘Smith
J. decided’ and ‘old Smith expressed the opinion that’. So we
can see why Paul uses noster when recording the opinions and
arguments of Scaevola which did not have the force of law, and
omits it when he refers to responsa.
In ten of eleven3 references to Scaevola, apart from responsa,
Paul uses noster. This cannot just refer to some vague attach­
ment—e.g. having been at the same law school. He does not
use noster of anyone else; we are justified in looking for some
close relationship to explain the expression. In fact we have
evidence that Scaevola was Paul’s tutor. In 28. 2.19 (Paul 1 ad
Vitell.) we read:
Scaevola respondit non videri et in disputando adiciebat ideo non
valere, quoniam . . . .
Scaevola is notorious for not giving reasons in a responsum.
Hence the reference seems to be to an oral explanation of the
responsum which would be given while Scaevola was teaching
Paul. A further reason for thinking that Paul was Scaevola’s
pupil consists in the use of the imperfect tense five times in ten
mentions of Scaevola noster. The use of the imperfect, or indeed of
any past tense, when one jurist is citing another, is unusual,
1 D. 28. 2. 19; 33. 4. 16; 33. 7. 18. 4, 5 (idem = Scaevola); 33. 7. 18. 13; 34. 2.
32. 3, 7; 5. i. 49. i ; 7. i. 50.
2 But respondit does not always report w hat is technically a responsum.
3 The eleventh (D . 46. 3. 47. 1) has aiebat and so reports oral discussion. Unlike
ait, aiebat has no implication of distance or formality.
6 Q U O D GAIUS N O S T E R D IX IT

except when a responsum is recorded (there the perfect is stan­


dard form). Apart from responsa, Paul uses the present about
six times more frequently than the past in citing other jurists.1
But for Scaevola he uses the past tenses seven times out of ten,
and the imperfect five times. One function of the past is to refer
to a person in a more intimate way than is possible if one uses
the present. ‘So-and-so says, so-and-so’s view is such-and-such’
is more distant than ‘So-and-so has argued, so-and-so has
advanced the view that such-and-such’. But, of course, there is
a special reason for using the imperfect of one’s own tutor’s
utterances ; one will often be recording not his writings but his
oral statements, what he used to say or what he said in argu­
ment: quod in disputando adiciebat is cited as quod aiebat, dicebat,
quod illi placebat, &c. : a disputation lasts some time and so a state­
ment made in it goes into the imperfect. This is not the only use
of the imperfect tense in citation, but it certainly is the most
obvious one.
Tryphoninus also speaks of Scaevola noster. There are two
texts :
D. 20. 5. 12. i (8 disp.): Scaevola noster restituendam probavit
D. 49. 17. 19 pr. (18 disp.) \ Scaevola noster dubitabat
Claudius Tryphoninus wrote under Septimius Severus and his
successors.2 Consequently he is of the right age to have been
taught by Scaevola. We already know that Scaevola was a
teacher, since he taught Paul. Tryphoninus uses the past tense
on both occasions—imperfect once and perfect once. A reason­
able inference is that Scaevola was the tutor of Tryphoninus
and that the latter is reporting, first, his tutor’s opinion expressed
in writing, and, on the second occasion, what his tutor used to
say in discussion.
By Scaevola noster, then, Paul and Tryphoninus mean ‘my
tutor Scaevola’.3
1 Approximately 370 present to 70 perfect and imperfect tenses: but this repre­
sents only a rough count.
2 Septimius Severus: D. 49.14.50. Caracalla and Geta: D .4 8 .19. 39. Caracalla:
D. 3. i. 11; 49. 15. 12. 17; 27. i. 44 pr. C. J . 1. 9. 1.
3 Also, Tryphoninus does not cite Scaevola without noster; and only Paul and
Tryphoninus annotated Scaevola.
Q U O D GAIUS N O STER D IX IT 7
Next comes Maecianus. In D. 35. 1. 86 pr. he says:
Iulianus noster eum, qui decem dare et ita liber esse iussus esset,
. . . non aliter legatum . . . habiturum . . . .

No main verb is used, but the subordinate clauses require


a past verb to be understood, probably perfect.1 Volusius
Maecianus was active under Antoninus Pius and the divifratres2·
and so he is of the right generation to have been taught by
Julian, who, as head of the Sabinian law school, must have
done some teaching.
There is an objection, however, to translating noster as ‘my
tutor’ in these texts of Maecianus. In another text Maecianus
says {D. 35. 2. 32. 4) :
Vindius noster . . . ait . . . .
M. Vindius Verus3 was consul suffect in a .d . 138 and so,
again, is of the right age to have taught Maecianus. But could
a jurist have two tutors to each of which he stood in the intimate
noster relationship? This seems unlikely.4 The relationship must
have been something different. Fortunately, we know of a close
relationship between Julian, Maecianus, and Vindius. In Vita
Antonini Pii we read:5
M ulta de iure sanxit ususque est iuris peritis Vindio Vero, Salvio
Valente, Volusio Maeciano, Ulpio Marcello, et Diaboleno.
This makes Vindius and Maecianus colleagues in the imperial
council—a relatively small and intimate body—and it is
generally assumed,6 I think rightly, that ‘Salvio Valente’ is
a mistake for ‘Salvio Iuliano, Fulvio Valente’, the latter being
perhaps the Aburnius Valens, who wrote about fideicommissa.'7
There can be little doubt, surely, that noster as used by Maecianus
1 Cf. D. 35. 2. 30. 7: Maec. 8 fid. (Celso et Iuliano nostro placuit); 36. 1. 67. 1:
M aec. 5 fid. (Iulianus noster probat).
2 Vita Pii, 12. Vita Marci, 3. D. 37. 14. 17 pr.
3 Pai. i i . 1223.
4 Cf. D. 1 . 2 . 2. 47: Antistius Labeo, qui omnes hos audivit, institutus est autem a
Trebatio. This points to the tutor-pupil relationship as unique, not shared by two
or more tutors.
5 O p. cit. xii. I.
6 O n the whole subject see Crook, Consilium Principis, 67, n. 5.
7 Pal. i i . 1202. Ch. I l l , p. 27.
8 Q U O D GAIUS N O S T E R D IX IT

and Vindius refers to the relationship of colleagues in the


council.
A more difficult case is that of Terentius Clemens. In D.
28. 6. 6. (4 ad l. lui. et Pap.) he says:
sed hoc ita interpretari Iulianus noster videtur . . . .
This suggests a close relationship with Julian. In D. 35. 1.
64 pr. (5 ad l. lui. et Pap.) we have: Iulianus aiebat', so it looks as
if Julian was Terentius’ tutor, especially as, apart from this
passage, Terentius cites only Labeo in the imperfect.1 But this
is difficult to reconcile with two other passages:2
Operis servi legatis usum datum intellegi et ego didici et Iulianus
existimat.
This seems to imply that Julian did not teach Terentius about
this particular point. It is true that Julian might have been one
of several tutors, but the more probable interpretation is that
Julian was not Terentius’ teacher.
The second passage runs:3
quam rationem Iulianus solet dicere . . . .
It seems that Julian stood in some relationship to Terentius
such that when Terentius was writing book 5 ad l. lui. et Pap.
Julian was absent (aiebat) and when he was writing book 9
Julian was again present (solet dicere). Terentius’ citations are
from Julian lib. 64, 65, and 69. To these we must assign the
dates 152/157 for reasons to be given in Chapter IV. Julian’s
governorships in Germany, Spain, and Africa were held in the
fifties and sixties. It seems likely that Terentius was a colleague
of Julian either on the consilium (in which case the divifratres are
more probable than Pius, since we have a list, no doubt faulty,
of the consilium of Pius4) or as a law teacher. For other reasons
I think the Sabinian school was on its last legs at this period,
and so prefer the hypothesis that Terentius and Julian were
colleagues in consilio.
The conclusions we can draw are as follows. In the cases
where the evidence is most complete (Paul—Scaevola and
1 D. 37. 14. 10. 2 D. 7. 7. 5 (18 ad l. lui. el Pap.).
3 D. 40. 9. 24 (9 ad l. lui. et Pap.). * VitaPii, 12.
Q U O D GAIUS N O S T E R D IX IT 9

Maecianus—Vindius—Julian) we find noster used by one lawyer


of another who was his tutor or colleague in the consilium. In
the cases where the evidence is less complete noster is consistent
with the colleague relationship.1 I provisionally conclude that
if Pomponius wrote Gains noster he intended either to refer to the
tutor-pupil relationship or to some other close relationship,
such as that of colleagues. In the case of Gaius and Pomponius
membership of the consilium is excluded, but the relationship of
teaching colleagues is not. We shall see later that it is possible
to decide between these alternatives.2
The next piece of evidence is Pomponius’ use of the perfect
dixit in quod Gaius noster dixit. Excluding the word respondit and
cases in which no verb is used, Pomponius uses the present
tense more than twice as frequently as the past in citing other
named jurists.3 Dixit is not the report of an oral argument, for
which dicebat would be appropriate, but it would be the proper
tense for reporting something written by Gaius (e.g. on Quintus
Mucius) if Pomponius wished to indicate familiarity and affec­
tion.4
To make the point more clearly let us see how Pomponius
speaks of Cassius.
There are thirteen texts:5 in D. 22. 6. 3. 1. he says:
Cassius . . . Sabinum . . . existimasse refert . . . .
In D. 35. 1.6. i we have:
Sabinus quoque et Cassius quasi impossibiles eas condiciones in
testamento positas pro non scriptis esse, quae sententia admittenda
est.
We should not try to guess the word and tense to be under­
stood : but responderunt is one possibility.
1 The reference need not be complimentary: thus Cicero writes of Pompeius:
Mirandum enim in modum Gnaeus noster Sullani regni similitudinem concupivit. Epist.
ad Att. ix. 7. 3.
2 Ch. II I , p. 26.
3 Present: 134 citations; imperfect: 21; perfect: 34. The figures in Tab. X I,
n. 3 cover also emperors and unnam ed jurists and include respondit.
4 For this use of the perfect, see Africanus’ implicit citations of Ju lian : T ab. I,
n. 5.
5 Including D. 9. 4. 31 and 7. 1. 12. 2 (reference disputable).
IO Q U O D GAIUS N O S T E R D IX IT
In D . 29. 2. 99: Sanctum Cassium praetorem . . . recte
pollicitum ei
In D. 34. 2. 21. 2 we read: Cassius ait consultum se respondisse
In D. 35. 2. 31 we have: secundum Cassii et veterum opinionem
In D. 41. i. 27. 2: Cassius ait proportione rei aestimandum
In D. 45. 3. 6: quae sententia et Cassii et Sabini dicitur
In D. 46. 3. 17: Cassius ait . . . neutrum liberari
In D. 4. 8. 40 : nam et Cassium audisse se dicentem Aristo ait
In D . i. 2. 2. 51. Huic successit Gaius Cassius Longinus

So far we have the opinion of Cassius given in the present


with ait three times; with refert once. Once no verb is used,
twice the sententia or opinio of Cassius is mentioned. Once his
view is reported at second hand through Aristo. The other four
references are unhelpful. There is nothing comparable to the
use of the perfect dixit in quod Gaius noster dixit. On the con­
trary, the tone is distant (naturally, as Cassius was then dead
fifty years or more1).
There is one apparent exception. In D. 30. 26. 2 Pomponius
says:
Cum bonorum parte legata dubium sit, utrum rerum partes an
aestimatio debeatur, Sabinus quidem et Cassius aestimationem,
Proculus et Nerva rerum partes esse legatas existimaverunt, sed
oportet heredi succurri, ut ipse eligat, sive rerum partes sive aesti­
mationem dare maluerit.

The question is whether in a legacy of part, viz. a stated


fraction, of one’s goods, such as one-third, it is the goods them­
selves that must be divided into three, or whether one-third of
their total value must be paid over as a legacy. The Sabinian
and Proculian views having been given, Pomponius dismisses
them all as wrong and gives the heir the choice of the way in
which payment is to be made (he qualifies this right a little, but
not in such a way as to affect the main decision). The perfect
existimaverunt has a special function here ; it follows four writers’
views, all of which are to be swept away by Pomponius; it is
therefore a sort of gesture of dismissal : ‘That is what all those
fellows said; but now here is the right answer.’ Here we see
1 For additional reasons see Ch. I l l , p. 26.
Q U O D GAIUS N O S T E R D IX IT ii

a use of the perfect to indicate something which is out of date,


obsolete. Contrast the reference by Pomponius to Gaius :
et non sine ratione est, quod Gaius noster dixit, condici id in utroque
casu posse domino.
Here Pomponius is using the past not to dismiss, to indicate
that the opinion referred to is obsolete, but rather that he
stands in a close relationship to the person who made it. He
clearly thinks Gaius’ idea a good one : non sine ratione.
A comparison of the ways in which Pomponius speaks of
Cassius in texts which unquestionably refer to Cassius and the
way in which he refers to ‘Gaius’ in this text leads to the con­
clusion that Pomponius was not here referring to Cassius.1 He
was referring to somebody called Gaius and this can hardly be
anyone but the Gaius whom we know. He calls him noster, and
so Gaius was probably Pomponius’ tutor or teaching colleague.
1 I do not rely on the argum ent of Fitting, Über das Alter und Folge der Schriften
römischer Juristen (2nd ed., p. 5), that noster implies that the subject is alive. But
in no case is it demonstrable that noster is used of a dead man, and, if I am right,
it could not be used of someone whose life did not overlap the writer’s. Cassius
died under Vespasian (D . 1. 2. 2. 52) and there is no evidence that Pomponius
wrote before the reign of Hadrian.
II

Call Me Gaius
A mystery surrounds Gaius’ name. He was a Roman citizen,
as will be shown in Chapter V. Consequently he must have had
at least two names, a praenomen and a gentile name; and in the
second century it was most rare for a Roman to lack a cognomen.
Yet he is known to us only by the one name ‘Gaius’.
Tire facts about this name in the second century are as
follows : it was normally a praenomen, in fact one of the com­
monest praenomina. It could also be a gentile name. As Kunkel
has shown,1 most praenomina were also used as roots for gentile
names and there are several examples in the inscriptions of
Gaius as a gentilicium. Lastly it could, though rarely, be a cogno­
men, of which we have a possible example in the Alfenus Varus
Gaius mentioned by Pomponius.2
This does not help unravel the mystery. It shows that on
occasion it would be reasonable to call our jurist just ‘Gaius’.
There would, equally, be occasions for calling Cicero ‘Marcus’,
others for calling him ‘Tullius’, and others for calling him
‘Cicero’. What is obscure is why a person should consistently
and on all occasions be referred to by only one name.
The use of a single name is not completely unprecedented.
It was, indeed, normal in the imperial family, many of whom
would possess the same gentile name. They were commonly
called by a praenomen, e.g. Gaius, or a cognomen, e.g. Vespasianus.
No argument can, however, be drawn from this as to practice
among humbler persons. There are reasons of public necessity
to justify the practice in the case of the imperial family which
do not apply to anyone else.

1 Op. cit. 194 fr. But the examples (notes, pp. 195-6) do not seem to be of
Rom an citizens.
1 D. I . 2. 2. 44. But probably Pomponius has inverted the order of the names.
CALL ME GAIUS 13
One is led to wonder whether in fact Gaius did call himself
by a single name or whether, as Jolowicz suggests, the survival
of a single name is due to an accident of manuscript trans­
mission.1 Such an accident is very unlikely. Gaius wrote at
least ninety-three books ; he was a popular legal writer from the
third century onwards, as is shown by papyrological evidence.2
A person copying his writings would be likely to identify them
at the beginning or the end by giving the title of the work and
the author’s full name, e.g. Gai Sei Institutiones. The second half
of the name might be left out by mistake sometimes, but it is
too much to suppose that the same mistake occurred in relation
to every single work of Gaius.
We must conclude that Gaius’ works were from the very
beginning described as being by just ‘Gaius’. Hence he must
have called himself by that name. (It is true that he need not
necessarily have done so in his private life.) This presents us
with a baffling problem. What motive could explain the act of
a Roman citizen who is really called ‘Gaius Seius’ or ‘Lucius
Gaius’ or ‘Marcus Tullius Gaius’ and yet cuts down his name
to the bare and undistinctive ‘Gaius’?
In the case of a writer, one motive at once springs to mind :
the desire to avoid confusion with another writer with whom
one is closely connected. Gaius belonged to the Sabinian
school, and through it was closely connected with Gaius Cassius
Longinus, founder of the school; the two have in fact been
persistently confused by scholars. Let us see whether Gaius may
have wished to avoid this confusion.
Gaius Cassius Longinus, hereafter called Cassius, was known
to Pliny as ‘Cassius’.3 Iavolenus, writing before Hadrian, refers
to him twice as ‘Gaius’,4 once as ‘Gaius Cassius’.5 Julian Ad
Urseium Ferocem, the date of which is uncertain,6 refers to him
1 Historical Introduction to Roman Law (ist ed.), p. 393.
1 For a Greek work containing extracts from Gaius on the provincial edict see
P. Nessanam Ino. Nr. 11 reprinted in Pal. ii, Supplementum, 5. Cf. Kunkel,
op. cit., 192. For a m anuscript of the Institutes from Egypt in the middle of the
third century, see Pap. Oxy. xvii, p. 173.
3 Ep. vii. 24. 8. 4 Pal. Cass. 9, 11 = D. 35. 1. 54 pr.; 46. 3. 78.
5 Pal. Cass. 10 = D. 40. 7. 28. 1.
6 It m ay well be an early work, a sort of imitation of Iavolenus ex Cassio, since
i4 GALL M E G AIUS

once as Gaius,1 once as Cassius,2 once as Gains Cassius;3 in


Libri ex Minicio he twice cites him as ‘Cassius’;4 in his Digesta
once as ‘Cassius’.5
The first citation comes from Julian’s book 2 on Urseius
Ferox, the second from book i, the third from book 4. Up to
now the usage seems to vary; Cassius is indifferently called
‘Gaius’, ‘Gaius Cassius’, and ‘Cassius’. After Julian’s book 2 on
Urseius Ferox Cassius is never called ‘Gaius’ by itself again and
is nearly always called just ‘Cassius’. The only possible excep­
tion is in Pomponius Ad Chiintum Mucium, published under
Antoninus:6 quod Gaius noster dixit; but this, as has been argued,
does not refer to Cassius.
The usage of Gaius himself and Pomponius is completely
uniform. They always call Cassius simply ‘Cassius’. Gaius so
cites him twelve times in the Institutes,'7six times in the Provincial
Edict,8 once in De Verborum Obligationibus, 9 twice in Res Cottidi-
anae,10 once in De Manumissionibus.11 Pomponius refers to him as
‘Cassius’ ten times, seven times Ad Sabinum1 (written under
Pius), once on fideicommissa, 13 once in his Variae Lectiones, 1 4 pub­
lished after Julian’s Digesta, so not before Pius; once in De Sena­
tusconsultis;15 and by his full name in Liber Singularis Enchiridii.l6
Three other jurists of the Antonine age cite Cassius: Marcellus,
who once calls him ‘Cassius Longinus’,17 Venuleius, who cites

Urseius Ferox was a less distinguished contemporary of Cassius. Ch. I, p. 3,


η. I. Also, it contains more citations than Julian’s Digesta; perhaps a sign of an
early work.
1 Pal. Cass. 65; D. 24. 3. 59. 2 Pal. Gass. 75; D. 30. 104. 1.
3 Pal. Gass. 49 ; D. 16. 1. 16. 1. But the reference may be due to Urseius.
4 Pal. Cass. 59, 105, D. 19. 2. 32; 40. 12. 30.
5 Pal. Iul. 253. 1; D. 19. 1. 24. 1. Cf. Pal. Iul. 705/1; D. 45. 3. 9. 1.
6 D. 45. 3. 39. Ch. I above.
7 Inst. I . 196; 2. 79, 195, 244; 3. 71, 133, 140, 147, 161; 4. 79, 114, 170.
8 Pal. Gass. 14, 36, 43, 50, 55 = D. 2. 1. 11 pr., 2; 9. 4. 15; 13. 3. 4; 16. 3. 14. 1 ;
18. I . 35. 5. 9 Pal. Cass. 128; D. 45. 3. 28. 4.
10 Pal. Gass. 106; D. 41. 1. 7. 7 bis. 11 Pal. Cass. 100; D. 40. 4. 57.
12 Pal. Gass. 63, 73,83, 85, 107, 125, 129 = D. 22. 6.3. 1; 30. 26.2; 34. 2. 21. 2;
35. i . 6. 1; 41. I . 27. 2; 45. 3. 6; 46. 3. 17; Pal. Pomp. 455 (D. 7. 1. 12. 2) is a
possible citation also.
13 Pal. Cass. 89; D. 35. 2. 31. 14 Pal. Gass. 20; D. 4. 8. 40.
15 D. 29. 2. 99.
16 D. I . 2. 2. 51. Another possible citation is D. 9. 4. 31.
17 Pal. Gass. 13; D. 1. 9. 2.
GALL M E GAIUS 15
him three times as ‘Cassius’,1and Maecianus, who once cites him
as ‘Gaius Cassius’.12
The citations fall into a pattern. From about the end of
Hadrian’s rule until the end of the Antonine age there are
forty-seven citations of the name ‘Cassius’ and only one
(Maecianus) of ‘Gaius Cassius’ ; no one calls Cassius ‘Gaius’
any longer. The inference is plain; sometime about a .d . 130-45
there emerged a figure with whom Gaius Cassius Longinus
might be confused. Hence trouble was taken to make it clear that
Cassius, not our Gaius, was being referred to.
To complete the story of references to Gaius, it should be
mentioned that in the Severan age Cassius is still called ‘Cas­
sius’ far more often than ‘Gaius Cassius’; he is never called
‘Gaius’ tout court. Ulpian calls him ‘Cassius’ seventy times, ‘Gaius
Cassius’ nine times. Paul calls him ‘Cassius’ forty-four times,
‘Gaius Cassius’ once. Marcianus twice refers to him as ‘Cas­
sius’.3 In other words, the Severans, when they wish to refer to
Cassius, take pains to avoid confusing him with Gaius.
Gaius himself must have been conscious of the possibility of
confusion; he himself adheres rigidly to ‘Cassius’. Certainly
Gaius respected Cassius; we must ask ourselves what motive
there could have been for the careful discrimination of nomen­
clature which appears before the end of Hadrian’s reign.
If Gaius was called, say, Gaius Seius, then to call himself
‘Gaius’ would make confusion worse confounded. ‘Gaius Seius’
is distinguishable from ‘Gaius Cassius’, whereas ‘Gaius’ is easily
confused with ‘Gaius Cassius’. There is only one possible ex­
planation of Gaius’ shortening of his name; that it was identical
with that of his predecessor. If he too was ‘Gaius Cassius’, still
more if he was ‘Gaius Cassius Longinus’, his behaviour becomes
explicable, though not yet psychologically convincing.
It is quite possible that our Gaius was called ‘Gaius Cassius’
or ‘Gaius Cassius Longinus’. As to ‘Cassius’, we know of
Syrians of that name of the time of Trajan and of Commodus.4

1 Pal. Gass. 61, 116, 127; D. 21. 1. 65. 1; 42. 8. 11; 45. 3. 25.
2 Pal. Gass. 101; D. 40. 5. 35. 3 Pal. Gass. 12, 77; D. 1. 8. 8. 2; 32. 65. 4.
4 P IR 2 G 509, 519. Gf. Cassius Dio (cos. II 229: from Nicaea) PIR 2 C 492;
ι6 CALL ME GAIUS

We also know of a Cassius Longinus, a philosopher who taught


the empress Zenobia and was put to death by Aurelian in
A.D. 272.1 He, too, was from Syria, in fact from Emesa, which
was given ius Italicum by Caracalla;2 and it is in Syria, I shall
argue, that Gaius finally settled. All these were probably
descended from freedmen of Gaius Cassius Longinus or pro­
vincials who, on receiving the citizenship, took the name
‘Cassius’. There is no need for the name to be confined to
socially prominent people. If Gaius himself was the son or
grandson of a freedman of Gaius Cassius, much would be
explained: his name, his modesty, his interest in law.
The fact, if it is a fact, that Gaius was not well connected is
therefore not inconsistent with his having been called ‘Gaius
Cassius Longinus’.
But, even if I am right, it was an extraordinary step for Gaius
to mutilate his name in this way. In imputing motives to him
I am treading on delicate ground ; nevertheless it is possible to
adduce a series of reasons which, singly or in combination,
provide an adequate motive.
Gaius was an uncomfortable man: diffident,3 original,4 and
proud. In expressing his own views he is more restrained and
oblique than other jurists. On the other hand, he is fastidious
and he refuses to rely for authority on any but the first-rate. In
effect, his main authorities are confined to Sabinus, Cassius,
Julian, and Hadrian—all men of the highest distinction. In his
attitude to law teaching and to legal doctrine, Gaius, as will be
seen, was profoundly original. How would such a modest, com­
plex man think of himself in relation to the rich, influential
founder of the Sabinian law school? He would, on the one
hand, see himself as an ordinary man, the man in the street.
Now the Latin for ‘Tom, Dick, or H arry’ was ‘Gaius’. Think of
the marriage ceremony: ubi tu Gaius, ibi ego Gaia. This might
well suggest to Gaius that, for a humble but happy man, the
single name was enough. To call yourself‘Gaius’ is to identify

Cassius Apronianus (legatus of Cicilia before 182/3: also from Nicaea) P1R2
C 485.
1 PIR2 C 500. 2 D. 50. 15. i. 4. 3 Ch. V, p. 81. 4 Ch. V I.
G A L L M E G A IU S 17

yourself with the rank-and-file as opposed to the well-connected,


who comprised the majority of jurists.1
But this is not the whole of the matter. The mystery of Gaius’
name leads to the mystery of Cassius’ name. As we have seen,
Cassius is thrice called, in the surviving fragments, by the
simple praenomen ‘Gaius’.2 Praenomina were less and less used in
the empire. In the case of a prominent man like Cassius, a
senator, such a mode of appellation was, in any serious literary
work, quite irregular. This is not the place to attempt an
explanation of the fact that this anomalous way of referring to
Cassius was current in the Sabinian law school until the emer­
gence of Gaius.3 It has a bearing, however, on Gaius’ choice of
name. While Gaius was ostensibly concerned to distinguish his
name from that of Cassius, the name he adopted would in fact,
at any rate in the Sabinian law school, make people think of
Cassius, who was commonly referred to by the simple prae­
nomen. Gaius is not just identifying himself with the man in the
street, but with the wealthy senator, the VIP. He is teasing
us, in a spirit of mock humility; and if his choice of name
is something of a joke, it is not the only joke in the history of
Roman law.4
1 Perhaps, too, his pupils called him ‘Gaius’ : mutatis mutandis a common practice
today.
2 D. 24. 3. 59; 35. I . 54 pr.; 46. 3. 78.
3 One hypothesis is th at the simple praenomen was adopted as a way of insult­
ing Caligula or Caligula’s memory: our founder, not (of course) the emperor of
ill omen. 4 e.g. Gh. V, p. 83.

825155 C
Ill

The Law Schools


G ai us belonged to and was strongly marked by the Sabinian
law school. I examine in this chapter the character of the
schools and his relation to them.
Pomponius tells us that from the time of Ateius Capito and
Antistius Labeo onwards, i.e. from the Augustan age, there
existed in Rome veluti diversae sectae.1 He does not call them
schools, and secta might mean merely ‘schools of thought’.
Indeed, both in relation to Labeo and Capito and in relation to
their successors, Masurius Sabinus and Nerva, it is the differ­
ences of opinion, dissensiones,1 between the two schools which
Pomponius emphasizes. The sect founded by Labeo, says
Pomponius, was continued by Nerva, Proculus, Nerva filius,
Longinus, Pegasus, Celsus pater, Celsus filius, and Priscus Nera-
tius; that founded by Capito was continued by Masurius
Sabinus, Gaius Cassius Longinus, Caelius Sabinus, Priscus Iavo-
lenus, and finally by Aburnius Valens, Tuscianus, and Salvius
Iulianus.2 In each case the verb succedere is used to describe the
way in which a head of the sect took over from his predecessor.
Succedere in Roman law refers to something passing on death;
one is justified in concluding that the headship passed on death,
not inter vivos. Against this, it may be said that succedere is not
being used in a technical sense. Another argument in favour of
succession on death is that Romans did not retire. Finally, the
number of names listed by Pomponius is small for the period of
time involved, and this is most easily explained not by omis­
sions3 but by the fact that the average tenure of office by the
heads of the schools was a long one. Succession therefore prob­
ably took place on death. It is true that this will have created
a difficulty when Cassius Longinus was banished from Rome by
1 D. i. 2. 2. 47. 2 D. I. 2. 2. 51-53. 3 Krüger, op. cit. 163.
T H E LAW S C H O O L S 19

Nero in a .d . 65. What arrangements were made during his


absence we do not know. Perhaps he left a procurator in Rome,
until his recall under Vespasian.1
From Gaius we hear of two scholae. The one he describes in
the words Sabinus et Cassius ceterique nostrae scholae auctores the , 2

other as Nerva vero et Proculus et ceteri diversae scholae auctores.3


More often he speaks simply of nostri praeceptores4 and diversa
schola,5 or illa scholafi He differs therefore from Pomponius in
using the term schola instead of secta and in beginning from
Sabinus and Nerva, not from Capito and Labeo. Finally we
must notice that Pliny the younger calls Cassius Cassianae
scholae auctor et princepsfi
Pomponius supports Pliny’s evidence so far as the names of
the schools are concerned. After referring to Proculus, he goes
on:
sed Proculi auctoritas maior fuit [viz. than Nerva filius and Longi­
nus] nam etiam plurimum potuit : appellatique sunt partim Cassiani,
partim Proculiani,8 quae origo a Capitone et Labeone coeperat.9
Pomponius could hardly misrepresent the names of the
schools, which would be well known even to laymen, and we
should accept his evidence on this point, corroborated as it is by
Pliny. On the other hand, Pliny is a better authority than either
Gaius or Pomponius on the identity of the founders of the
schools, because both of them can be suspected of parti pris,
while Pliny, as a non-lawyer, cannot.10 I am therefore inclined to
accept the statement of Pliny that Cassius was the founder of
the Cassian school, viz. as an organized teaching establishment,
though doctrinal divergences may go back farther. Neither
1 D . I . 2. 2. 51-52. Probably the banishment involved loss of civil rights, as
Cassius was deportatus in insulam. Tac. Ann. xvi. g. 2 Inst. 4. 7g.
3 Inst. 2. 15. Cf. D. 45. I . 138 pr. (Venuleius 4 stip.) : ceteri diversae scholae auctores.
4 Nineteen times: Inst. i. ig 6 ; 2. 37. 123, ig s, 200, 217, 21g, 220, 231; 3. 87,
g8, 103, 141, 167a, 168; 4. 78, 114; D. 3g. 2. 32 bis (Gai 28 ed. prov.). Cf. nostri·.
2. 223.
s Sixteen times: Inst. i. ig6; 2. 37, 7g, 123, 200, 221, 244; 3. 87, g8, 103, 141,
167a, 168, 178; 4. 78, 7g. Cf. J . Inst. 3. 26. 8.
6 Inst. 2. ig5- Cf. itti: Inst. 2. 223.
7 Ep. vii. 24. 8. 8 Cf. F.V. 266. Ulp. i i . 28.
9 D. I . 2. 2. 52. Cf. D. 3g. 6. 35.3 (Paul 6 ad l. Iul. et Pap.).
10 H e had a practice as an advocate and so was acquainted with the legal world.
20 T H E LAW S C H O O L S

Pomponius nor Gaius actually contradicts this. Nevertheless it


presents us with a problem: if Cassius founded the Cassian
school, why is it that Gaius traces its ancestry back to Sabinus,
Pomponius to Capito, and similarly on the Proculian side?
The answer is fairly obvious. Gaius belonged to the Cassian
school (though he does not use this or any other name). Now
Masurius Sabinus1 was, in the second century, becoming one
of the dominant figures in Roman legal writing. His book on
the ius civile was the standard work on the subject and remained
so right into the Severan age. Works on the civil law from
Pomponius onwards12 took the form of commentaries on Sabinus.
He was, in fact, if we leave Julian on one side,3 the most dis­
tinguished figure, apart from Labeo, of those listed by Pom­
ponius. It would be natural therefore for the Cassians, without
disloyalty to Cassius, to insist on the fact that their intellectual
ancestry went back to both Sabinus and Cassius: Gaius in fact
refers to them both in the same breath, and their names are
often coupled in the texts.4
But if the Cassians were to play at the game of claiming
distinguished ancestors, so could the Proculians. Sabinus was
obviously a more important figure than his opposite number
in Pomponius’ list, Nerva, grandfather of the emperor, who
was a close friend of Tiberius Caesar and a respected figure
but not a great lawyer; he is cited in 35 surviving texts as
opposed to Sabinus in 236.5 If, however, the matter is taken
back a little farther, the Proculians come out on top, because
M. Antistius Labeo was more distinguished than C. Ateius
Capito (401 citations as against 5). Once, therefore, one goes
back beyond the actual founders—presumably Cassius and
Proculus, who gave their names to the schools—a Proculian
1 Granted ius respondendi by Tiberius. D. 1 .2 . 2. 50. Still writing under Nero.
Gaius, Inst. 2. 218.
2 But earlier Sabinus seems to have been rather neglected. Thus, there are only
three references to him in Iavolenus.
3 Not yet famous when Pomponius was writing.
4 In Gaius’ works there are 24 references to Sabinus, 21 to Cassius. They are
mentioned together 15 times, of which eight occur in the Institutes, viz. 1. 196;
2· 79 ) x95 ) 24 4 : 3 · x3 3 > 4 · 79 > 1 14· Cf. Tab. I l l , V s.n. laudationes duplae.
5 Pal. sub nom. M. Cocceius Nerva, Masurius Sabinus.
T H E LAW S C H O O L S 21

would have a strong motive not to stop at the generation of


Sabinus and Nerva but at that of Labeo and Capito.1
One therefore begins to suspect that Pomponius is a Procu­
lian, and this suspicion is confirmed by the fact, first, that the
excellence attributed by him to Proculus seems rather exag­
gerated2 (Proculus is cited in 179 surviving texts, considerably
fewer than Masurius Sabinus, who is not described by Pom­
ponius in the same glowing terms).3
Secondly, Pomponius cheats in his descriptions of the careers
of the heads of the schools. Thus, we are told that both Celsus
filius and Neratius have been consul, the former twice.4 These
were both Proculians. But Priscus Iavolenus was also consul in
86 B.c., and so was Aburnius Valens, in 109—both before Pom­
ponius wrote—yet he says nothing of this. Augustus is made
to offer Labeo a consulship, probably imaginary.5 As against
this, it is true that Pomponius does not mention the consulship
of Pegasus, a Proculian ; and the prevailing view, with which
I disagree, is that the Aburnius Valens who headed the Cassian
law school was the consul’s son, not the consul himself. Never­
theless we are made to feel at the end of Pomponius’ account
that the Proculians have the more prominent men at their head
at the moment of writing.
It is convenient, before turning to Gaius’ relations with the
schools, to clear up the matter of Pomponius. Fortunately the
linguistic evidence that he was a Proculian is fairly strong. It is
of two sorts: first, the number of citations by Pomponius of
known members of the different schools; secondly, the tenses
used in citing them.
As to the first the figures are as follows:
(a) Proculians. Labeo, 51 mentions; Nerva.pater, 5; Proculus,
23; Nerva filius, 2; Longinus, i; Pegasus, 4; Priscus Neratius,
12; Celsus pater, 2; Celsus filius, 15.
1 Cassius himself pushed his ancestry back to Servius Sulpicius. D. 1.2 . 2. 51.
In th at way Labeo too could be outflanked.
2 D. I . 2. 2. 52. Though Proculus has not yet been convincingly identified he
was certainly influential (qui plurimum potuit) and probably held the consulship in
the second half of the first century. 3 D. 1. 2. 2. 48.
4 D. i. 2. 2. 53. 5 D. i. 2. 2. 47. Contrast Tac. Ann. iii. 75.
T H E LA W S C H O O L S

(b) Gassians. Capito, 5; Masurius Sabinus, 17; Cassius, η ;


Caelius Sabinus, 2; Iavolenus, 2; Aburnius, 1; Tuscianus, 1;
Julian, 20. On the Gassian side, Capito, Caelius, Iavolenus,
Aburnius, and Tuscianus are mentioned only in the historical
narrative; on the Proculian side Celsus pater, Nerva filius, and
Longinus receive the same treatment. The totals vary according
to one’s starting-point. If we begin with Cassius and Proculus,
the Proculians win by 57 to 37 ; if from Sabinus and Nerva, they
win by 62 to 54; if from Labeo and Capito, by 113 to 54. The
latter test, however, is misleading; it would make Iavolenus
a Proculian, since he cites Labeo more often than anyone else.
Pomponius, then, cites Proculian authors rather more often
than Gassian, and in this his practice differs from that of the
leading Gassians. Thus, Iavolenus cites Proculus ten times,
Nerva and Pegasus not at all; he cites Sabinus only three times,
Cassius by name only three times; but he wrote fifteen books
Ex Cassio and it must be considered that the sixty-nine fragments
which we have of this work contain implied citations from
Cassius. It is interesting, however, to note Iavolenus’ neglect of
Sabinus, and this confirms our impression that Cassius should
be considered the founder of the school. Of the other Cassian
authors Gaius in the Institutes cites M. Sabinus fifteen times,
Cassius twelve, Caelius Sabinus twice, Iavolenus once, Julian
twice. Of the Proculians he cites Nerva three times, Proculus six
times, Pegasus and the two Celsi not at all. This gives a victory
for the Gassians of 32 to 9 or 17 to 6, according to the genera­
tion from which one starts. In Gaius’ other works the tally is 61
to 15. Julian’s practice is not very helpful; he hardly cites other
authors at all except indirectly, when he is commenting on the
works of Minicius and Urseius Ferox.1 However, even so, the
Cassians come out on top; he cites M. Sabinus fifteen times,
Cassius seven; Proculus eight, Priscus (taking this to mean
Neratius, not Iavolenus) once, Nerva once. The Cassians win
by 22 citations to 10.2
Finally, on the Proculian side the practice of Celsus filius is
1 Probably a pupil of Sabinus. D. 24. 3. 5g.
2 The citation of Celsus (D . 28. 2. 13 pr.) is compilatorial.
T H E LAW S C H O O L S 23

interesting. He cites Proculus eleven times, Nerva twice, Nera-


tius twice, Celsus pater thrice, Sabinus seven times, Cassius
once. This gives the Proculians a majority of 18 to 8. Neratius
Priscus cites Proculus twice and Sabinus once, Celsus pater
once: three Proculians to one Cassian.
These figures show that, when we know with certainty to
which school to assign an author, he is found to cite authors of
his own school more than those of the opposite school; which
is hardly surprising. On this test Pomponius seems to occupy
a middle position, inclining to the Proculian side.
It is true that 416 of the 861 fragments by or referring to
Pomponius, which we possess, come from his books Ad Sabinum ;
and in these we might expect Proculian writers to be cited more
often than Cassian in any event, since the Proculians would be
likely to criticize Sabinus and their criticism would have to be
discussed by a commentator.1 If we take Pomponius’ citations
in books other than those Ad Sabinum we get the following
result: Proculians: Celsus pater 2, filius 4, Neratius 2, Nerva 3,
Pegasus 3, Proculus 6. Cassians: Sabinus 5, Cassius 4, Julian 19.
The Cassians win by 28 to 20, but it is only because of Pom­
ponius’ citations of Julian; if we look at the older generation,
the Proculians are in the majority. There is evidently some­
thing equivocal about Pomponius’ position in relation to the
two schools.
The problem seems baffling, but is solved by an analysis of
the tenses used by Pomponius. In discovering who were a
writer’s teachers, apart from the help occasionally given by the
use of the word noster, the imperfect tense presents the best clue.
It may be used by a lawyer either to record the oral conversa­
tion of his tutor, arguing on a given point, or to present an oral
tradition handed on by those whom the writer has met.12 It
might also be used to record a statement made over and over
1 But this is not borne out by an analysis of Ulpian, Ad Sabinum, who cites as
follows: Sabinus 78, Cassius 43, Iavolenus 4, Iulianus 173 (total 298) ; Labeo 45,
Proculus 12, Nerva io, Pegasus 9, Neratius 20, Celsus 62 (total inch Labeo 158).
2 Cf. Intro, p. xvi. I am not prepared to accept without proof the assumption of
Lenel, Pal. ii. 1201, n. (1), that dicebat shows that the author cited is dead. Certainly
‘he used to say’ does not necessarily carry that connotation nowadays.
T H E LAW S C H O O L S

again in writing by another author, but this seems a less likely


use, or at least one that is likely to be rarer.
Pomponius uses the imperfect twenty-one times in reporting
the opinions of other lawyers: aestimabat once, aiebat seven
times, dicebat three times, existimabat once, putabat six times,
placebat three times. Five of these citations are from Proculians,
and none from Cassians. Certain other writers of an older genera­
tion also figure frequently in the imperfect, and I shall attempt
an explanation of this. Let us take the words seriatim.
Aiebat is used once of Aristo,1 twice of Celsus filius, 2 twice of
Ofilius,3 once of Octavenus,4 once of Pactumeius Clemens.5
Dicebat is used once of Aristo,6 once of Ofilius,7 and once of
Servius.8 Existimabat is used only of Neratius Priscus.9 Putabat is
used of Aristo,10 Celsusfilius,11Octavenus (twice),12Servius13and
Trebatius.14Placebat is used of Aristo,15 Neratius,15 and Ofilius.16
Aestimabat is used once of Neratius.17The same group of writers
therefore recur. Of the generation just before Pomponius, Celsus
filius is mentioned three times, Neratius three times, Aristo four
times; of the veteres Ofilius four times, Servius twice, Trebatius
once. Pactumeius Clemens was a contemporary of Pomponius.18
As regards the veteres, we must suppose that an oral tradition is
being reported ; their surviving writings would not be so numer­
ous that one would report what they ‘used to write’. As regards
Aristo,19it seems likely that the tradition came through Neratius,
whose name is several times coupled by Pomponius20 with that
of Aristo or Aristo and Ofilius. The Trebatius tradition would
descend through Labeo.21 Pactumeius Clemens was roughly con­
temporary with Pomponius; he was consul in 138. Pomponius
is presumably citing his oral statements.22
1 D. 36. I . 74. 2 D. 21. 2. 29 pr.; 13. 6. 13. 2.
3 D. 40. 4. 40. 1; 24. 3. 18. I . 4 D. 40. 4. 61. 2. 5 D. 40. 7. 21. I .
6 D. 46. 3. 16. 7 D. 45. 3. 6. 8 D. 38. 10. 8.
9 -D· 3 4 · 3 · 8· 2. 10 D. 40. 5. 20. 11 D. 18. 5. 1.
12 D. 40. 5. 20; 19. I . 55. 13 D. 4 7 .2 .7 7 .1 . 14 Z>. 4 1 .6 . 3.
15 D. 17. 2. 62. 16 D s6< 8< 4<
17 D. 35. ϊ. 6. i. 18 Consul suffectus a.d. 138. CIL viii. 7059.
19 He lived under Trajan. D. 37. 12. 5.
20 D. 30. 45 pr.; 40. 7. 5; 17. 2. 62. 21 D. 35. 1. 8; 1. 2. 2. 47.
22 Octavenus is the only one of these writers who arguably had a Sabinian
affiliation, in view of D. 36. 1. 69 pr. (quod Octaveno non ineleganter videbatur: Valens
T H E LAW S C H O O L S 25
It looks very much as if Pomponius was educated at the
Proculian law school by Neratius Priscus and Iuventius Celsus,
whom he mentions as the existing heads of the school. They
are, apart from Pactumeius, the only ‘modern’ writers whom
he cites in the imperfect. It also looks as if he was still at the
Proculian school or under its influence when he wrote the Liber
Singularis Enchiridii, which, as we have seen, is angled in favour
of the Proculian view.
But Pomponius did not remain with the Proculians. He
moved to the school which later became known as, and which
I am henceforth going to call, the Sabinian school. The reason
why later generations called it by this name1is, first, that mem­
bers such as Gaius tended to push back its origins so as to
include Sabinus; secondly, the status of Sabinus’ Ius Civile in­
creased as time went by. By the Severan era Cassius had become
a rather shadowy figure in comparison with the Sabinus on
whom Ulpian and Paul were still writing commentaries.
The reasons for thinking that Pomponius moved are as
follows : first, we find him writing thirty-six books Ad Sabinum.
This would be an unnatural thing for a person still at the
Proculian school to do. On the other hand, if he had moved
across, nothing would demonstrate his loyalty better than a
good commentary on the master of the other school. Secondly,
though there are more citations from named Proculians than
Sabinians in Pomponius Ad Sabinum, the proportion is not over­
whelming and is, indeed, notably less than the proportion of
Proculian citations in the works of Iuventius Celsus. Thirdly,
when Pomponius mentions members of the rival schools to­
gether, which happens rarely, he mentions the Sabinians first.
There are two instances: in D. 35. 1. 14 he says Sabinus Proculus
. . . dicunt and in D. 30. 26. 2 Sabinus quidem et Cassius aestima­
tionem Proculus et Nerva rerum partes esse legatas existimaverunt,
which is natural for a person writing a commentary on Sabinus
3 fid.). But Octavenus wrote under Domitian and Trajan, and Valens 6 fid. (D .
4. 4. 33) cites Ju lian 39 dig. (about a . d . 149/153), so that Valens may have taken
his mention of Octavenus from Pomponius.
1 D. 41. i. i i (M arcianus 3 inst.)·, D. 24. i. i i . 3 (Ulp. 32 Sab.—M arcellus);
C.J. 6. 29. 3. i . ; F.V. 266.
26 T H E LA W S C H O O L S

but unnatural for a Proculian. Finally, there is the probability


that Pomponius was an academic lawyer, since he did not give
responsa, held no public office, was interested in legal history, and
wrote more than would have been likely had he had another
occupation besides that of teaching law. Hence he was probably
a teacher at one of the two schools, and the chances are that,
though educated at the Proculian, he taught at the Sabinian;
of course it is not impossible that he may have taught for a
time at the Proculian school first before moving over.1 Such
a move is not inconceivable, any more than a move from
Oxford to Cambridge or vice versa is inconceivable; it is rare,
but is made from time to time, for instance in order to secure
promotion.
If I am right about Pomponius’ relation to the two schools,
we have two additional reasons for thinking that quod Gaius
noster dixit12 does not refer to Cassius Longinus. First, if Pom­
ponius was sentimentally attached to some figure in the remote
past, it would be to Proculus, who is the lawyer he cites most
often after Labeo. Proculus is never called ‘Gaius’. Secondly, it
would have been an undue familiarity for Pomponius to call
Cassius ‘Gaius’, if he had not even been brought up at the
Sabinian law school.3 In fact, as we have seen, Pomponius
regularly calls him ‘Cassius’. We are therefore confirmed in the
view that Pomponius was referring to Gaius, not to Cassius. If
so, the noster must refer to the relationship of teaching col­
leagues, not to that of tutor and pupil.
I now turn to the question of the succession to the headship
of the Sabinian school, which must be considered because of its
bearing on Gaius’ career. Iavolenus Priscus was consul suffectus
in A.D. 86,4 then held a succession of commands, and is last
heard of in io6 or 107 in Rome, where Pliny the younger tells
a story about him.5 He was attending a reading of poetry: the
1 It is questionable whether the appointment would be salaried. Perhaps the
teacher was merely allowed to receive and retain honoraria from his students.
2 D. 45. 3. 39. 3 Celsus calls him ‘Cassius’. D. 33. 7. 12. 20.
4 Kunkel, op. cit., Nr. 23.
5 Ep. vi. 15. 2. For the chronology of Pliny’s Letters see R . Syme, Tacitus,
app. 21.
T H E LAW SC H O O L S 27
poet came to the lines ‘Prisce, tubes’. Iavolenus interjected 4Ego
vero non iubeo’—Pliny comments that he was dubiae sanitatis but
continued to perform his public duties and to give responsa. He
may in fact have been drowsing, or have intended the remark
as a joke. At any rate, since he taught Salvius Iulianus he
probably lived for another fifteen years1 and I take him to have
died about a .d . 120.
The succession to Iavolenus is recorded by Pomponius thus :2
Iavoleno Prisco Aburnius Valens et Tuscianus, item Salvius
Iulianus.
4Successerunt’ is to be understood. Now the prevailing opinion is
that the Aburnius Valens referred to is L. Fulvius G. f. Popin(ia)
Aburnius Valens who was praefectus urbi feriarum Latinarum in
a.d. 118.3 I think it more likely, however, that the person re­
ferred to was C. Aburnius Valens, consul suffectus in a.d. 109.4
My reasons are as follows: the latter, probably the father of
the former, would be born about a.d. 66, which would take him
to the early forties for his consulship suffect. When Iavolenus
died he would be about fifty, not too old to teach, and of con­
sular rank. On the other hand, the son would be in his twenties,
and had reached no rank of importance, the office of praefectus
urbi feriarum Latinarum being a minor one ; later he became
a tribune designate.
We get no real help from a survey of the fragments, twenty-
two in number, attributed to or referring to Valens. For one
thing, this is not necessarily the same Valens as the head of the
Sabinian law school. The father may have been head of the
school; the son may have written De Fideicommissis. D. 49. 14.
42 (book 5 on fideicommissa) contains two references to divus
Traianus, hence was written after a .d . 117. But this does not
help us, because the father was not then too old to write and,
if he became head of the school, may have thought it incum­
bent on him to write something. He may also have been praetor
1 See Ch. IV, p. 49. 2 D. 1. 2. 2. 53.
3 CIL vi 1421 ; P 1 R 1 F 356; IL S 1051 ; Kunkel, Nr. 32. The conferment of this
office by H adrian personally is appropriate for the young son of a distinguished
lawyer. 4 Groag, PIR2 ii, p. ix.
T H E LA W S C H O O L S

fideicommissarius1 and so have acquired an interest in fideicom­


missa.2
Of the second member of this mysterious triumvirate we
know nothing.3 Indeed, he may not even exist; it is possible that
the et between Valens and Tuscianus is a mistake, and that
Tuscianus was merely one of the names of Aburnius Valens.4
Again, one of Iavolenus’ names was Tossianus, and some have
seen a connexion between Tuscianus and Tossianus; in other
words, Tuscianus may be a relative of Iavolenus.
The last of the three is Salvius Iulianus. If my chronology is
correct, he would be only about seventeen when Iavolenus died
and, therefore, over thirty years junior to Aburnius and in
every way socially his inferior. No doubt he was a brilliant and
precocious lawyer and Iavolenus chose him to supply on the
academic side the weight which Aburnius would supply in the
social and political spheres. Perhaps his position was in some
way different from that of Aburnius ; this would account for the
item which Pomponius inserts between ‘Tuscianus’ and ‘Salvius
Iulianus’. But other explanations are possible; the item may be
merely stylistic.
I assume then that Aburnius Valens and Salvius Iulianus
succeeded to the headship of the Sabinian law school about 120.
Salvius Iulianus, however, must have been busy on adminis­
trative duties during at least some parts of Hadrian’s reign. We
know that Hadrian paid him a double salary as quaestor·, also
that he edited the edict for the emperor. There must, therefore,
have been periods during the reign when he was not available
for teaching.
Gaius was connected with the Sabinian school. He refers, as
stated above, to nostri praeceptores seventeen times,5 to Sabinus et
1 Claudius introduced this office. D. 1.2. 2. 32.
2 As Valens 6 fid. cites Julian 39 dig. (D . 4. 4. 33), which is assigned to a . d .
1Φ Ι 15 3 , it seems likely that the writer was not the father. The w riter’s citations
are not notably Sabinian: Iavolenus 1, Julian 2, Pegasus 1, Nerva 1, Atilicinus 1,
Oeta venus 1, Campanus 1.
3 Kunkel, op. cit., Nr. 33.
There was a family of Abumii Tusciani but Kunkel argues that our Aburnius
was not connected with it. Op. cit., p. 153, n. 225.
5 Above, p. 19. Cf. ‘Praeceptores tui’ (sc. Iavoleni) : D. 42. 5. 28.
T H E LAW S C H O O L S 29
Cassius ceterique nostrae scholae auctores once,1 and to Sabinus quidem
et Cassius ceterique nostri praeceptores twice.2 The other side, the
Proculians, he calls diversa schola3 or illa schola4 and once he
refers to Nerva et Proculus et ceteri diversae scholae auctores. 5 It might
be argued that, despite the repetition of the word schola, these
were really schools of thought, not actual teaching establish­
ments; but this is ruled out by the fact that in Gaius nostri
praeceptores is an alternative to nostra schola. Praeceptores must be
teachers. The use of succedere also rules out mere schools of
thought.
If it is said that praeceptores can also be used metaphorically,
the answer is that one does not identify oneself so whole­
heartedly with a set of authors as one does with an actual estab­
lishment. In the Institutes, at any rate, Gaius presents many legal
controversies in the form of disputes between the two schools
and this would be rather pointless unless there were two actual
establishments to one of which Gaius belonged.
There are, nevertheless, some difficulties about Gaius’ use of the
word praeceptor. Among nostri praeceptores he includes Sabinus and
Cassius, who had been dead for over thirty years by Hadrian’s
reign and for at least seventy by the time the Institutes were
published. Praeceptor therefore does not mean, or does not only
mean, ‘teacher’ in the literal sense of ‘tutor’. Perhaps Gaius is
speaking metaphorically of the whole succession of heads of the
Sabinian law school from Sabinus onwards as his teachers. On
the other hand he may be using nostri praeceptores in the sense of
‘our teaching staff’ : he being himself a member of the staff.
But if Gaius is speaking as a fellow member of the staff, he is
still speaking metaphorically, since Sabinus and Cassius and
the others were not present members of the staff, even under
Hadrian. The puzzle therefore remains: is Gaius speaking
(metaphorically in each case) o f ‘my teachers’ or ‘our staff’?
The matter must be considered in the light of the linguistic
evidence. In the Institutes where the references to the two rival

1 Inst. 4. 79. 2 Inst. 2. 195, 1. 196.


3 Sixteen times: see above. Cf. D. 45. 1. 138 pr. (Venuleius 4 slip.).
4 Inst. 2. 195. 5 Inst. 2. 15.
T H E LAW S C H O O L S

schools are all found, apart from one text from the Provincial
Edict,1 Gaius uses the imperfect only thrice in citations, saying
once plerisque placebat2 and once quibusdam placebat 2 Otherwise
the imperfect occurs only in the Urban Edict where it comes in
the phrase veteres utebantur.3 Disregarding the latter instance,
where the imperfect merely reports a verbal usage, we find that
Gaius reports no one’s oral conversation, unless his tutor or
tutors are included in plerique or quidam, which seems unlikely,
as Gaius is reporting a controversy about legis actiones. He calls
no particular lawyer noster or praeceptor meus. We cannot there­
fore identify his tutor from the linguistic evidence, except by
exclusion. Gaius could not have been taught by Masurius
Sabinus, Cassius, or Caelius Sabinus, who were dead before he
was born. Iavolenus is the first possibility;4 Gaius refers to him
only once in the Institutes, using the ‘distant’ present ait.5 (As the
Institutes do not contain reports of the ipsissima verba of different
writers, but merely give an account of their views, we are justi­
fied in describing ait as distant and formal.)
Outside the Institutes there are two references to Iavolenus,
one in book 4 on the X II Tables,6 where Gaius uses ait, and one
in book 8 on the lex Iulia et Papia, 7 where he uses the imperfect
negavit but only with a view to rejecting the opinion of Iavolenus
as incorrect. We are justified in concluding that Iavolenus was
not Gaius’ tutor. Next come Aburnius, Tuscianus, and Julian,
all of whom might, from the chronological point of view, have
been Gaius’ tutors. The first two are not mentioned in the whole
of Gaius; Julian is mentioned twice in the Institutes with placuit
ζ,ηάplacuisse respectively.8This is a respectful mode of reference,
which suggests that the views of the person cited are worth
paying attention to, and is warmer than the rather distant
present placet would be.
In his commentaries in the various edicts Gaius cites Julian
1 D. 39. 2. 32. 2 Inst. 4. 29. Gf. 3. 189. 3 D. 19. i. 19.
But this would involve assigning a much earlier date for Gaius’ birth than I am
prepared to contemplate.
5 Inst. 3. 70.
6 D. 50. 16. 236. I. 7 D. 23. 2. 46.
8 Inst. 2. 218 (placuit); 2. 280 (placuisse).
T H E LAW S C H O O L S 31

twenty-five times, which is far more than the next most cited
lawyers (Sabinus and Cassius with six citations each). The tense
used is the present, apart from sensit1 on one occasion: Gaius
uses ait eight times,2 existimat once,3 inquit once,4 negat once,5 non
putat four times,6 placet three times,7 probat once,8 putat twice,9
scribit once,10sentit once,11 and videtur respondisse once.12 The con­
clusion we may draw from this is that he was not intimately
connected with Julian, otherwise the past tenses would be used
more frequently; that he had not been taught by Julian, other­
wise he would have recorded his conversation at least once
or twice in the imperfect; that he respected him as a lawyer,
otherwise he would not have cited him so frequently; and that
he had access to Julian’s writings, otherwise he would not have
used ait and scribit.
If we turn to Gaius’ other writings, we find that he cites
Julian fourteen times, which is more than any other lawyer, the
nearest this time being Proculus with six citations. The past
tenses are now more frequent;13 they are used five times in all,
including respondit twice,14 dixit once,15 scripsit once,16and placuit
once.17 The present is used nine times; ait thrice,18 negat once,19
scribit twice,20 existimat once,21 sequitur sententiam once,21 sequi
videtur once.21
On the whole we can be fairly sure that Julian was not Gaius’
tutor. If he had been, Gaius would have told us more about the
man whose work he cited so often. It is interesting to note that
Julian is used as a source much less in the Institutes than in the
other works ; the explanation I shall suggest is that the Institutes
were drafted before the other works of which fragments survive.
1 D. 30. 68. 3.
2 D. 5 .3 . 35; 5 .3 .4 1 . i ; 39.6. 31. 3; 15.1.27 pr., 8; 29.1.17. 1; 30.68.3; 46.7.7.
3 D. 1 5 .1 .2 7 .6 . 4 D. 39. 6. 31. 3. 5 D. 1 5 .1 .2 7 .7 .
6 D. 15. I . 27. 4, 5, 7; 46. 7. 7. 7 D. 2. 14.28. 2; 39. 6. 31. i ; 38. I . 22. 1.
8 D. 15. i. 27. 3. 9 D. 2. 14. 30. 1; 7. 2. 5. 10 D. 14. 6. 13.
11 D. 4. 8 . 35. 12 D. 29. I . 17. i .
13 Perhaps Gaius became more reconciled to Julian’s disloyalty as he grew older.
14 D. 34. 5. 5 pr.; 48. 5. 44.
15 D. 40. 7. 31. i. 16 D. 45. 3. 28 pr. 17 D. 44. 7. 5. 5.
18 D. 36. I . 65. 9, 10, 13. 19 D. 36. I. 65. 4.
20 D. 20. I . 15 p r.; 45. 2. 15. 21 D. 40. 4. 57 ·
T H E LAW S C H O O L S

We are left, then, with Aburnius Valens and the ghostly


Tuscianus as the most likely tutors for Gaius. That they were
his tutors is made probable by the fact that Gaius identifies
himself so closely with the Sabinian law school, yet calls no
individual Sabinian noster and refers to no individual in the
imperfect. This suggests that, however highly he thought of the
traditions of the school, he did not think much of his tutors.
I therefore incline to the view that Gaius was a student at the
Sabinian law school when Julian was otherwise engaged. Now,
the rest is speculation; but if Julian was born in 103, he could
have been quaestor at the earliest in 128, when he attained twenty-
five. The traditional date of the editing of the edict is 131, though
this comes from a late and unreliable source.1 Still, Julian may
have had special administrative duties in 129-30. If Julian was
away from teaching from 128 to 131 and Gaius was a student
during those years, this would fit well the dates I propose in
Chapter IV for the birth of Gaius, viz. 110-15. The latter date
is fixed on quite independent grounds; it would take Gaius to
law school at an age between thirteen and twenty, which, as we
shall see, is appropriate for those times;2Julian himself probably
took up the law at fourteen or fifteen.
It seems, then, that the phrase nostri praeceptores in the mouth
of Gaius has an element of irony. Later we shall see that irony
pervades Gaius’ life and work. Mostri praeceptores means ‘my
teachers’ ; but Gaius is adding, in an aside, ‘and I don’t mean
my tutors’. He identifies himself with the school, not the indivi­
dual. Furthermore, he does not call the school Cassiani. He
gives it no name except ‘my own school’. This may be thought
arrogant; perhaps there is some deliberate arrogance in his
manner of writing. Another possible explanation is that Gaius,
as an intellectual who was not socially well connected, wished
to emphasize Sabinus at the expense of Cassius, the former,
unlike the latter, having been relatively poor and politically
insignificant. In the Institutes Sabinus is cited fifteen times to
Cassius twelve. In the Provincial Edict there are six mentions
of each, in Gaius’ other works four of Cassius to three of Sabinus.
1 Jerome, in the fourth century. 2 Ch. IV, p. 4g.
T H E LAW SC H O O L S 33

The balance inclines slightly, therefore, in favour of Sabinus,


more so than in the case of Iavolenus, but less than in that of
Julian. In two passages, as we have seen, Sabinus and Cassius
head the list of nostri praeceptores: they are treated as being
jointly the leading figures in the school. But, if the school was
then known as Cassiani, Gaius might be taken as playing down
the importance of Cassius by putting Sabinus on a level with
him. Gaius, then, wishes to treat the school as common pro­
perty, not as belonging to this or that individual.
This quasi-proprietary attitude to the school is one reason for
thinking that Gaius taught at the Sabinian law school. A con­
nected reason is the fact that his attachment to the details of the
controversies is too great for a mere student. There is a pro­
fessional element in his wish to emphasize the importance of
the controversies and his reluctance openly to admit that the
Sabinians are ever wrong.1 On the other hand, his detachment
is too great for a mere student. He does not, in the Institutes,
ever directly tell us that the Sabinians are right2 and the Pro-
culians wrong or vice versa. We can, however, infer this in some
cases; thus, over the difference between sale and exchange,
Gaius begins with the emphatic statement that the price must
be in money.3 We then learn that the Sabinian view (impliedly
wrong) is that it need not; but all this is set out in Gaius’ usual
oblique way. It is hard to resist the conclusion that his loyalty
is deeper and more complex than that of a mere student.
There are four other controversies between the schools men­
tioned in the Institutes in which we may infer that Gaius thinks
the Proculians right, though he does not directly say so. In
2. 221 the Proculian view is ‘said’ to have been confirmed by
a constitution of Hadrian. In 3. 87 a reason is given for the Pro­
culian view only. In 3. 133 the Sabinian view is by implication
1 In Inst. 2. 195 we are told that hodie, owing to a constitution of divus Antoninus
(Pius), the Proculian view is upheld. This is the only use of hodie in the Institutes and
it is strong evidence that this work was first drafted, later revised. In the original
draft the controversies would be set out; in the later revision it was thought
necessary to mention a change in only one case. I t is rather doubtful whether the
constitution of Pius is in fact relevant to the controversy.
2 An opinion of Sabinus is rejected in Inst. 2. 154.
3 Inst. 3. 141.
825155 D
34 T H E LAW S C H O O L S

‘deservedly questioned’ (merito quaeritur). In 3. 98 it is said


that no good reason can be given for a distinction drawn by the
Sabinians. It may be said, then, that in six schools’ controversies
Gaius tells us indirectly that he favours the Proculian view or
that legislation has resolved the question as the Proculians
argued; and there are no examples on the other side. We must
not conclude that Gaius was a Proculian. It is merely that, in
some cases in which he agrees with the Proculians, he never­
theless, out of loyalty to his own school, presents the matter as
if it were controversial. Again, when he is forced to disagree
with an opinion of Sabinus, as in the case of the theft of land, he
writes as if it were someone else who had held the wrong
opinion :
abolita est enim quorundam veterum sententia existimantium
etiam fundi locive furtum fieri.1

We know from Aulus Gellius1 2 that it was Sabinus who held


this view.3
I assume, then, that Gaius was at one time a teacher at the
Sabinian law school. The most probable time is under Hadrian.
The Institutes constitute lecture notes for an elementary law
course, such as a young law teacher would be required to
give. Of the recent material incorporated in the Institutes the
greater bulk comes from enactments of Hadrian. I return to
this theme in the next chapter, and here merely fix a provisional
chronology.
12 8 -3 1 Gaius at Sabinian law school; student under Aburnius
Valens and (?) Tuscianus.
after 131 Gaius teaching at Sabinian law school.
Gaius was both student and teacher at the Sabinian law
school, and nostri praeceptores means both ‘my teachers’ and ‘our
staff’. Noster, which can mean both ‘my’ and ‘our’, lends itself
to this sort of exploitation.

1 D. 41. 3. 38 (2 rer. cott.). Cf. Inst. 2. 51.


2 Nodes Atticae xi. 18. 13.
Another possible example is Inst. 3. 219, adopting a Proculian view evidenced
in D. 9. 2. 7. 7.
T H E LAW S C H O O L S 35

The Fate and Tradition o f the Schools


At this point I break off the pursuit of Gaius to develop
a theme which is relevant to his life but also presents a wider
interest: the fate and tradition of the schools. We are not told
who succeeded Celsus and Julian as head of the Proculians and
Sabinians respectively. It is quite possible that neither had
a successor. P. Iuventius Celsus was consul for the second time
in 129.1 He is not mentioned as a member of the consilium
of Pius. Either Pius found him too rude2 or decrepit, or he
died before 138. If the latter is true, Pomponius’ move to the
Sabinians is still more easily explained. He had lost his post.
But there is some evidence that the schools were alive in the
fifties. The references in Gaius’ Institutes do not count; it is not
shown that Gaius himself published this work, and if he drafted
it under Hadrian the references to schools’ disputes would be
carried over even when the schools were defunct. But in book
28 on the Provincial Edict3 Gaius says nostri praeceptores putant.
Gaius 8 ad ed. proo. cites Julian 60 digA which must be assigned
to 151/155. Again, Venuleius 4 stip.5 says: Proculus autem et
ceteri diversae scholae auctores existimant. . . . Venuleius 1 stipi cites
Julian 52 dig., so must be dated after 150/154. These references
certainly do not prove that the schools still functioned in the
fifties ; but it is arguable that they would be more natural if that
was the case.
There is some evidence that they were closed by the sixties.
Ulpian quotes Marcellus as follows :7
Idem ait : placuisse scio Sabinianis . . . donationem fieri.
The citation is assigned by Lenel to Marcellus 7 dig.8Marcellus
wrote his Digesta under the divi fratres, therefore in the sixties.9
This is the first time in the sources that the school is called
Sabiniani. If Marcellus was taught at the Sabinian school he
would hardly refer to it in this way. If he was taught at the
1 Kunkel, op. cit., Nr. 29. 2D. 28. 1. 27. 3 D. 39. 2. 32.
4 D. 29. 6. 31. i. 5D. 45. i. 138 pr. 6 D. 4 5 .3 .2 1 .
9 D. 24. i. i i . 3. S p al. M arc. 87.
9 D .4. i. 7 p r.; 17.2. 23.1 ; 28. 4. 3 pr.; 35. 1.48; 37. 8. 3. D. 28.4-3can be dated
A .D . 166 (Pudente et Pollione consulibus).
36 T H E LA W S C H O O L S

Proculian school he should, like Pomponius, have called the


other school Cassiani.1If he was educated at neither, the schools
were no longer important. In fact, there is some slight evidence
that Marcellus was taught by Julian, since he cites only Julian2
and Sabinus3in the imperfect. Julian in turn cites only Sabinus4
and Servius5 in the imperfect. It is no objection that Marcellus
often dissents from Julian’s views; a man is not bound to agree
with his tutor. But, as Julian and Marcellus were colleagues on
the consilium of Pius, the latter may be recording what Julian
said in consili. If, however, Julian taught Marcellus he must have
done so elsewhere than at the Sabinian law school, and there­
fore the school was closed before the end of the reign of Pius,
during the lifetime of its last head, Julian.
This would not be surprising. The schools system would con­
tinue to be attractive only so long as the nominal head had
time for teaching. When the tuition had to be delegated to
others, the prospective student would be better advised to
approach the nominal head privately. He would wish to be
instructed by the influential Julian, not the obscure Gaius or
Pomponius, who would be no help in his political career.
Besides, Julian was not really a schools man and, in par­
ticular, not naturally a Sabinian in outlook. He was not inter­
ested in the old authorities; he only once, for instance, cites
Labeo,6 who is cited eighty-seven times by the Sabinian Ia-
volenus and fifty-one by the Proculian Pomponius. His con­
cern was to adapt the law and reach equitable solutions. But
neither was Julian a keen partisan of his own school; if, as
I think, he appointed Pomponius to teach in the Sabinian
school, he can have attached little importance to schools’ dis­
putes. In any event, his pragmatic, unconceptual treatment of
legal problems and the importance he attaches to equity as
a ground of decision are more in the Proculian than the
Sabinian tradition.
This is the appropriate place to say something of the intellec-

As does Paul, who in some ways follows the Proculian tradition, much later,
D. 47. 2. 18. 2 Σ). 47. 2. 69, 71. 3 D. 9. 2. 36. i.
4 D. 24. 3. 59. s £>. 4I- 5< 2. 2. 6 D. 13. 4. 2. 8.
T H E LAW S C H O O L S 37
tual and political character of the two schools. It is generally
thought that there was no substantial difference between them.
Indeed, if one looks at the detail of legal controversy it is dif­
ficult to detect differences. But from a wider perspective the
schools stood for very different things; it would be strange if
this were not so, for a school can hardly survive without some
‘colour’ or tradition.
It is best to begin with Pomponius’ account, remembering
his bias: he says of Labeo and Capito:1
hi duo primum veluti diversas sectas fecerunt: nam Ateius Capito
in his, quae ei tradita fuerant, perseverabat; Labeo ingenii qualitate
et fiducia doctrinae, qui et ceteris operis sapientiae operam dederat,
plurima innovare instituit.
So far as legal doctrine is concerned, this account of Labeo
is fully justified. Thus, Labeo seems to have been an innovator
in the law of sale.2 Politically, however, it was the reverse of the
truth. Labeo was republican in politics and hostile to Augustus,3
a fact which Pomponius attempts to conceal, whereas Capito
welcomed the new regime. Labeo was progressive in law and
conservative in politics ; this has misled observers who have not
noticed that whilst the legal tradition stemming from Labeo was
continued in the Proculian law school the political outlook of
that school became pro-imperial. The Proculians, following
Labeo, took equity as their guiding principle in legal problems
and this naturally led them to favour strong central govern­
ment and wide administrative discretion—in fact, the new
order—just as in England the equity lawyers of the sixteenth
and seventeenth centuries favoured the Crown.
Equity was emphasized by Labeo himself:4
Haec autem actio (ut Labeo scripsit) naturalem potius in se
quam civilem habet aequitatem, siquidem civilis deficit actio: sed
natura aequum est non esse impunitum . . . .
The same attitude of mind is found, most strikingly, in
Neratius :5
Publiciana actio non ideo comparata est, ut res domino auferatur :
1 D. i. 2. 2. 47. 2 Daube, Studies in the Roman Law o f Sale (1959), ρ· ΐ39·
3 Tac. Ann. 3. 75. 4 D. 47. 4. 1. 1. 5 D. 6. 2. 17.
38 T H E LAW S C H O O L S
eiusque rei argumentum est primo aequitas, deinde exceptio si ea
res possessoris non sit’.

First equity, then a technical exceptio. The Proculian tradition


is summed up by Celsus filius', ius est ars boni et aequi.1
In Pomponius aequitas is used to justify the broad formulation
of a principle of unjust enrichment:2
Nam hoc natura aequum est neminem cum alterius detrimento
fieri locupletiorem.

The Proculian tradition greatly enriched the law of Rome


and Europe, but it has some important defects. The Proculians
do not pay enough attention to classification, nor indeed to the
whole conceptual side of law. They are disorderly; their books
often run to excessive length. Labeo is said to have written
400 books, Pomponius 350. Though not anti-rational, for they
do not believe in extending rules introduced by mistake,3 they
are not concerned to subject the whole body of law to rational
criticism. Neratius says :
Et ideo rationes eorum quae constituuntur inquiri non oportet:
alioquin multa ex his quae certa sunt subvertuntur.

This is an establishment doctrine. What is laid down must


be accepted without question. Such an attitude is inimical to
personal freedom. It is not surprising to find Neratius laying
down the harsh doctrine that three constitute a collegium.4
While one must beware of putting the matter too schematic­
ally, there is no doubt that the Sabinian tradition was different.
It was conservative, rational, republican in at any rate a senti­
mental sense. The Sabinians were attached to principles more
than to men. Gaius’ attachment to the Sabinian law school as an
institution rather than to particular individuals is itself in the
Sabinian tradition. But it is also republican. The republic
possessed institutions, perhaps unworkable. The empire was just
the rule of a man.5

1 D- *· u 1 Pr· 2 D. 12. 6. 14. Cf. D. 50. 17. 206.


3 D. i. 3. 39 (Cels. 23 dig.). 4 D 0> l6- 8
5 I return to this political theme in Ch. V II.
T H E LAW S C H O O L S 39
In legal doctrine reason is the leading concept used by the
Sabinians. This goes back at least to Sabinus and Cassius.1
Sabinus et Cassius magis naturalem rationem efficere putant. . . .
The same tendency appears in Iavolenus, who has two inter­
esting passages:2
Cur non idem in dote promissa respondeatur, ratio reddi non
potest.
The phrase recurs in Gaius.3 In a second text Iavolenus says :4
Labeonis et Ofilii sententia rationem quidem habet, sed hoc iure
utimur ut . . . .
The legal system is to be subjected to rational criticism. We
may have to admit that the law is irrational, but we are not
to be bludgeoned into a refusal to question quae constituuntur.
There were, then, radical differences of outlook between the
schools. But the Sabinian tradition in particular could hardly
survive the process by which lawyers were turned into civil
servants. Julian attempts a characteristic compromise between
reason and the establishment line :5
non omnium, quae a maioribus constituta sunt, ratio reddi potest
but, by implication, this is not true of what is laid down at the
present day.
Though there were many individual variations and though
the traditions were in no sense ‘pure’, this does not mean that
there was no real difference between the two schools. Though
Sabinians make use of equity and Proculians of reason as a
ground of decision, the weight of emphasis is the other way, as
can be verified by reading the notes on the various jurists in the
appendix.
The Severan Age
When the Sabinian and Proculian schools closed, legal educa­
tion continued to be carried on by private tuition. It is still
possible to trace pedagogic groups in the Severan age and,
1 D. 41. I . 7. 7 (Gai. 2 rer. coti.). 2 D. 45. i. 108 pr. 3 Inst. 2. 78; 3. 98.
4 D. 40. 7. 39. 4 (lav. repost. Lab.). 5 D. 1. 3. 20.
T H E LA W S C H O O L S

though it would be misleading to call them Proculian and Sabi-


nian, they retain some of the characteristics of the old schools.
The groups consist, on the one hand, of Cervidius Scaevola
and his pupils Paul, Tryphoninus, and Marcianus and, on the
other hand, of Papinian, Ulpian, and Modestinus.
From the point of view of sources it would be wrong to call
the first group Proculian and the second Sabinian. The follow­
ing table of citations1 by the Severans will show why:2
Tryphoninus Citations by Paul

Modestinus
as percentage of
Marcianus

Papinian
Scaevola

e citations by
•2 Paul and Ulpian
\^Paul

£> combined
1

Sabinians
Caelius Sabinus 1 14 O
Cassius 3 45 2 4 79 36-3
Iavolenus 2 . .
3 . . 4O
Iulianus 6 I IO 6 6 13 544 4 ι 6·8
Masurius Sabinus 4 58 2 2 12 IOI . .
36-5
Proculians
Celsus pater I O
Celsus filius .. 9 4 • . 165 5'2
Neratius Priscus I 39 4 79 I 33 ' 1
Nerva pater 12 16 42-8
Nerva filius 6 I 5 54'5
Pegasus I 0 22 4'3
Proculus 4 41 48 46-1
Pomponius 2 !3 8 314 . . 18-9
Doubtful
Maecianus I 2 I !5 11-8
Marcellus I 18 2 II I 191 I 8-6

Some interesting points emerge: the dominant position of


Julian in the Severan literature and the credit due to Ulpian
for recognizing Celsus’ merits. But the mere counting of citations
does not suffice to divide the Severan writers into groups. On
the other hand, a thorough analysis of the attitude of Paul,
Ulpian, and the others to the writers they cite might help to do
so : but this is beyond the scope of the present work.
1 The figures are approximations, and include proper names only.
2 Nevertheless it will be seen that Paul cites Nerva pater, Proculus, and Pom­
ponius relatively more often than Sabinus, Cassius, and Julian. But the equation
does not hold good of Iavolenus, Pegasus, and, in particular, Celsus filius. It could
be argued that Paul’s sources are mainly Proculian, U lpian’s Sabinian, so far as
the early and late, but not the middle, generations are concerned.
T H E LAW S C H O O L S 41

The group consisting of Scaevola and his pupils does, how­


ever, seem to possess some common characteristics. In the first
place they attach importance to personal relationships, as is
shown by the use of noster and of the imperfect tense. Secondly,
they kept out of trouble, politically speaking, and in this respect
stand in the Proculian tradition of deference to authority.
As was shown in Chapter I, noster is used of Scaevola by both
Paul and Tryphoninus. The reason for classing Marcianus as
a pupil of Scaevola is that Scaevola is of the right age to have
taught Marcianus, that he had other pupils, and that Marcianus
cites him in the imperfect in two passages (ut Scaevola aiebat;1
Cervidius Scaevola consultus putabatz).
Marcianus also uses the imperfect in two other passages, once
of Papirius Fronto3 and once of Octavenus.4 The latter, who is
also cited in the imperfect three times by Pomponius5 and once
each by Ulpian6 and Valens,7 is of too early a date to be
Marcian’s tutor. Papirius Fronto, who is something of a mys­
tery, is cited only by Callistratus and Marcianus. In one of
Marcianus’ citations8 we read :
verius esse existimo, quod et Scaevola notat et Papirius Fronto scribit.
Though this is not decisive, it suggests that Marcianus is
relying, first, on Scaevola’s note (viz. on Julian or Marcellus,
whose works he annotated) and, secondly, on a subsequent book
by Fronto; this would make Fronto a contemporary of Mar­
cianus rather than his tutor; and the fact that Callistratus is
also a contemporary of Marcianus9 points in the same direc­
tion, though it is not decisive. On the whole one is justified in
concluding that Marcianus was taught by Scaevola, until the
contrary is shown.
Paul himself uses the imperfect relatively frequently even
apart from his references to his tutor Scaevola. He so cites
Julian twice,10 Africanus once,11 Quintus Mucius once,12 Labeo
1 D. 46. 3. 47. I . 2 D. 40. 5. 50. 3 D. 15. I . 40 pr. {dicebat).
4 D. 20. 3. I . 2 {putabat). 5 D. 19. 1. 55; 40. 4. 61. 2; 40. 5. 20.
6 D. 40. 7. 9. 2. 7 D. 36. i. 69 pr. 8 D. 30. 114. 7.
9 D. i. 3. 38; i. 19. 3. 2; 12. 3. 10; 49. 14. 2. 6; 50. 2. 11 ; 50. 4. 14. 4.
10 D. 12. 6.60 pr.; 41. 4. 2.4. 11 D. 2 4 .1 .2 . 12 D. 40. 12. 23 pr.
42 T H E LAW S C H O O L S

twice,1 Fulcinius twice,; Proculus twice,8 Neratius once,4 Tre­


batius twice,5 Marcellus twice.6 Of these Julian and Marcellus
were Scaevola’s colleagues in the consilium of Marcus,7 and, Afri­
canus was roughly contemporary with Scaevola, so that the
imperfect in these cases may represent an oral tradition derived
by Paul from Scaevola.
The older citations can all, with the exception of Quintus
Mucius and Fulcinius, be called Proculian or close to the
Proculian tradition. None is clearly Sabinian. Hence, though
Paul’s citations as a whole cannot be termed Proculian, the
oral tradition he conveys can be.
Unfortunately we do not know who taught Scaevola. He
uses neither noster nor the imperfect. Apart from Julian,8 he
cites Labeo,9 Vivianus,10 Marcellus,11 Neratius,12 Sabinus,13 and
Proculus.13 Cassius14 is cited only through Vivianus. Vivianus,
who may have lived under Trajan,15 is perhaps to be assigned
to the Proculian tradition since, apart from the above text, he
cites only Proculus.16 Scaevola also cites Pomponius twice17
and Maecianus once.18 It is to be hoped that a thorough
citation analysis will reveal further clues.
The other group of the late classical age consists of Papinian,
Ulpian, and Modestinus. Though it cannot be termed Sabinian
from the point of view of sources, it displays some Sabinian
characteristics. It does not use noster, rarely cites jurists in the
imperfect, and inclines to place principle above personal loyal­
ties. Of its members Papinian was murdered by Caracalla as a
supporter of Geta, and Ulpian was murdered by the praetorian
guards as a supporter of civilian government.
It must be confessed that the justification for calling these
three a pedagogic group is flimsy. We do, however, know
1 Coll. 2. 5. 1; F.V. i. 2 D. 31. 49. 2; 43. 16. 8.
3 D. 21. 2. 13; 35. 2. 45. i. * D. 16. 2. 4.
5 D. 4. 3. 18. 3; 41. 2. 3. 5. 6 i), 14. 21 ; 26. 7. 16.
7 Vita Marci, 11. 10; D. 28. 4. 3; 37. 14. 17 pr.
8 D. 33. 8. 21 ; 28. 6. 48. i ; 28. 2. 29. 15. » D. 47. 6. 6.
10 D. 29. 7 .1 4 pr. 11 D. 41. 3. 10. 2. 12 D. 33. 5. 18.
13 D. 46. 3. 93. 3. pr. 14 Dm 29. 7. 14.
15 Krüger, op. cit.. Nr. 28. 16 D. 4. 6. 35. g; 21. 1. 17. 4.
17 D. 3. 5. 8; 13. i. 18. is 7). 35- 2. 20.
T H E LA W S C H O O L S 43

that Modestinus was Ulpian’s pupil, because Ulpian tells us


so:1
quod et Herennio Modestino studioso meo de Dalmatia consulenti
rescripsi.
This is the only use of studiosus meus in the history of Roman
law. Ulpian was tough and civilized but not given to fine feel­
ings. Ulpian himself, though we have over 3,000 fragments of
his works, gives only one slender clue to his own legal education.
He once refers to Papinian in the imperfect:2
Papinianus recte putabat . . . .
This does not prove that Papinian taught Ulpian; but Ulpian
does not cite in the imperfect anyone else of the right genera­
tion. On the other hand, Ulpian may be reporting what he
heard Papinian say when he was the latter’s assessor.3 Still, Paul
was also Papinian’s assessor4and has left us over 2,000 fragments
without a comparable phrase.5 Provisionally, I think we are
justified in adopting the hypothesis that Ulpian was taught by
Papinian. It may have to be revised when a complete citation
analysis of the Severan period is available.
Papinian’s legal education, in turn, presents a mystery. He
gives us not the slightest linguistic clue. Some have been misled6
by a passage in Vita Caracalli7 into thinking that he was taught
by Scaevola. The passage runs as follows :
Scio de Papiniani nece multos ita in litteras rettulisse, ut caedis non
adsciverint causam, aliis alia referentibus; sed ego malui varietatem
opinionum edere quam de tanti viri caede reticere. P a p in ia n e
amicissimum fuisse imperatori Severo, ut aliqui loquuntur, adfinem
etiam per secundam uxorem, memoriae traditur; et huic praecipue
utrumque filium a Severo commendatum [eumque cum Severo
professum sub Scaevola et Severo in advocatione fisci successisse]
. . . atque ob hoc concordiae fratrum Antoninorum favisse . . . .
The portion in brackets is a later insertion in the text8 and
most editors shift it to line 4, immediately after imperatori
1 D. 47. 2. 52. 20. 2 D. 24. i. 23. 3 Vita Pescenii Nigri, 7. 4.
4 Vila Alexandri, 26. 6.
s D. 29. 2. 97 (Papinianus putabat) reproduces a discussion in consilio.
6 Jörs in P W i. 572, s.n. Aemilius, no. 105.
7 8. 1-4. 8 SHA, ed. Teubner (Hohl), loc. cit., n. 12.
44 T H E LAW S C H O O L S

Severo. But the information it contains is neither scandalous nor


edifying and is not a mere repetition of the statements found
elsewhere that Septimius Severus was appointed advocatus fisci.1
The statement that Papinian succeeded Severus as advocatus
fisci is not improbable; after all, Papinian was a lawyer. I think,
therefore, that the clause eumque cum Severo professum sub Scaevola
should also be accepted as genuine information.2 But what does
it mean?
Profiteri means to teach, profess, or practise, not to be taught.3
The phrase means ‘Papinian and Severus together did some
teaching under Scaevola’s direction’. Why not? It would be
valuable experience; we know that Scaevola had a number of
pupils. No doubt he would need some help, as he was Marcus’
chief legal adviser. And if Severus and Papinian were appointed
as young men to subordinate teaching posts this strengthens the
case for saying that Gaius and Pomponius were so appointed;
it was an accepted practice.
If Scaevola did not teach Papinian, who did? (Papinian never
cites Scaevola, so it is unlikely that he was taught by him before
teaching under him.) Papinian may have been taught by
Julian. But, if he was a contemporary of Severus, born in 146,
he should have been under instruction in the early or middle
sixties. At this period Julian was engaged in provincial governor­
ships. Papinian cites Julian more often than he cites anyone
else (but this is standard practice). Also, Papinian is the only
one of the three great Severans who can be called a Sabinian
from the point of view of sources. Twelve citations of Sabinus is
a high figure out of a total of thirty-nine, and the proportion in
which he cites Sabinus in relation to Julian (92%) is notably
higher than for Paul (53%) or Ulpian (19%). There is, in fact,
something old-fashioned about Papinian’s use of sources. This
suggests a Sabinian legal education. At the appropriate period,
Vita Getae, 2. 4; Eutropius, 8. 18. 2. The former has: ob hoc quod Severum ille
[viz. Pius] ad fisci advocationem delegerat ex formularia forensi, given as a reason why
Septimius Severus insisted that his children should be called Antoninus. Eutropius
says of Severus : hic primum fisci advocatus, mox militaris tribunus, per multa deinde et
varia officia atque honores usque ad administrationem totius rei publicae venit.
2 Wrongly described by Hohl, loc. cit., as nugae.
3 Pliny, Ep. 2. 18. 3; Suet. Nero, 21; Tiberius, 35; D. 1. 2. 2. 35» 38; 50· 5 · 9 ΡΓ·
T H E LAW S C H O O L S 45
according to arguments to be developed in Chapter V, Gaius
was teaching at Berytus. If the secunda uxor1 through whom
Papinian was adfinis to Severus was Julia Domna, the emperor’s
second wife (and, though this has been challenged,2 it seems
the more natural reading of the text), then Papinian probably
came from the east. Julia Domna’s home was Emesa in Syria.
So Papinian’s tendency to look back to the older Sabinian
sources may have come to him through Gaius rather than
through one of Julian’s pupils in Rome. If Gaius was his tutor
it would be natural, though disreputable, for Papinian not to
mention or refer to a person who did not possess social distinc­
tion or ius respondendi.
The contention that Papinian had an eastern legal education
is strengthened a little if Papinian was Ulpian’s tutor. Apart
from the one text already mentioned,3 Ulpian uses the imper­
fect of no one later than Octavenus and Pegasus.4
Unless Iulianus diceret is taken as a sign of familiarity with an
oral tradition about Julian’s conversation,5it seems that Ulpian
was not familiar with recent oral tradition about the lawyers
prominent in Rome in the Antonine age, such as Cervidius
Scaevola, Ulpius Marcellus, and Julian himself. It would be
surprising if Ulpian, though having access through Papinian to
such oral tradition, nowhere recorded it in the 800 columns
of fragments which survive, and also surprising if Papinian did
not pass on to Ulpian what he had himself heard from these
prominent men. But whether the link of these Syrians with the
Sabinian tradition comes from a local root or through Julian
or one of his disciples is a question on which further research
should be able to throw light.
1 Vita Caracalli, 8 (above, p. 43). 2 Kunkel, op. cit., Nr. 56.
3 D. 24. X. 23. Above, p. 43.
4 Labeo three times (D . 4. 2. 14. 9; 43. 23. 1. 8; 39. 2. 30), Servius three times
(D . 1 9 .1 .13.30; 37. 9. i. 24; 34. 2 .1 9 .17), Pegasus once (D . 39. 5.19.6), Octavenus
once (D . 40. 7. 9. 2), Sabinus and Cassius once (D . 42. 3. 4), Gaius Cassius once
(,D . 4. 6. 26. 7). H e has Iulianus diceret twice (D . 19. 1. xi. 6; 24. 1. 21. 1).
5 H ardly consistent with D. 23. 2. 45. 6 (Ulp.) : qui Iuliani sententiam probant,
dicerent. Cf. D. 24. i. 21. i ; 29. 2. 74. 4; 43. 24. 11. 12.
IV

The Chronology of Gaius’ Works


W e do not possess enough material to fix a very precise chrono­
logy for Gaius’ works. However, it is possible to make reasonable
guesses on the subject and to fit these into an account of his
movements which will be attempted in the next chapter. I do
not claim more for my suggestions than that they are consistent
with the evidence. On the other hand, the generally accepted
chronology is not.
The attempt to date Gaius’ works leads us to the problem of
dating the Digesta of Salvius Iulianus ; the dates of Pomponius’
works also depend on this. The reason is that Gaius and Pom­
ponius both cite this work frequently and so do their contem­
poraries. Unfortunately the problem is a difficult one. On it,
I accept Kunkel’s conclusions1 apart from a few details. His
thesis is that the lawyer Salvius Iulianus, usually called Julian,
is identical with the politician whose life is recorded in an
inscription found at Pupput in 18gg12and that, if this is accepted,
he cannot have been born before about a.d. ioo. I shall suggest
that he may well have been born rather later, and that, in any
case, we are now justified in assigning the works of Gaius and
Pomponius to a period about ten years later than is usually
accepted.
As the matter is central to my thesis, I must say something
about Kunkel’s reasons. He argues that, despite objections
raised by Guarino,3 we must assume the identity of lawyer and
politician until the contrary is demonstrated. The main reason
for this is as follows: Pomponius tells us that Salvius Iulianus
was head of the Sabinian law school under Hadrian.4Justinian

1 lura i (1950), 192, ‘Über Lebenzeit und Laufbahn des Juristen Julians'.
2 CIL viii. 24094; 1 LS 8973. 3 Salvius Julianus (1946), 3 ff.
4 D. I . 2. 2. 53 with 1.2. 2. 49.
T H E C H R O N O L O G Y O F G A IU S ’ W O R K S 47
speaks of Salvius Iulianus as summae auctoritatis homo et praetorii
edicti ordinator1 and again as ipse Iulianus legum et edicti perpetui
suptilissimus conditor.2 There are also non-legal references to his
editing of the edict.3 Jerome, writing in the fourth century,4
attributes the revision to a.d. 131.
If these late references stood by themselves, one would not
give much weight to them. It seems that the compilers could
find no textual authority for the proposition that Julian edited
the edict under Hadrian; if they had found it they would have
incorporated it in Digest 1. 2. They admired and respected
Julian as a precursor of their own, as we can see from the above
citations. Nevertheless, these late references to Julian’s work of
editing agree with the existence of a head of the Sabinian school
called Salvius Iulianus under Hadrian and with the statement
on the Pupput inscription that he was paid twice as much as
anyone else when he was Hadrian’s quaestor, that he was a man
of insignis doctrina, and that after Hadrian’s death he was a sodalis
Hadrianalis. We also know that there was a Salvius Iulianus on
Hadrian’s council.5 It would be a strange coincidence if there
were two such prominent men in the reign of Hadrian called
Salvius Iulianus. It is true that it can be argued that the poli­
tician’s doctrina was not in law but in philosophy; but Hadrian
was interested in administration, and would be more likely to
pay a double salary to a man who could help him draft his
legislation than to one who could inform him about the Platonic
view of the state.
I assume, then, that the lawyer and politician are identical.
If so, then we are in a difficulty about dates. The main evidence
is the Pupput inscription and D. 40. 2. 5. The former reads:
L. Octavio Cornelio p.f. Salvio Iuliano Aemiliano xviro quaestori
imperatoris Hadriani cui divos Hadrianus soli salarium quaesturae
duplicavit propter insignem doctrinam tribuno plebis praetori
1 C.J. 4. 5. 10. i. 2 C. Tanta, 18.
3 Eutropius, 8. 17 (edictum composuit); Aurelius Victor, de Caes. xix. 2
(edictum, quod varie inconditeque a praetoribus prom ebatur, in ordinem com­
posuerit); Epitome Legum (Zachariae, Ius Graeco-Rom. i i . 280: και μετά ταΰτα
Aàpiavòs ό βασιλεύς επιτρέπει Ίουλιανω τω νομικω μετά Σερβίου Κορνελίου συλλέξασθαι
έπιμελώί καί κατά τάζιν νποτιτλώσαί τά νομικά).
4 Chron. a. Abr. 2147· 5 Vita Hadriani, 18. i.
48 T H E C H R O N O L O G Y O F G A IU S ’ W O R K S
praefecto aerarii Saturni item militaris consuli pontifici sodali
Hadrianali sodali Antoniniano curatori aedium sacrarum legati
imperatoris Antonini Augusti Pii Germaniae inferioris legato im­
peratoris Antonini Augusti et Veri Augusti Hispaniae citerioris
proconsuli provinciae Africae patrono decreto decurionum pecunia
publica.
From the Fasti a certain Salvius Iulianus was consul in a .d .
148. It is true that in inscriptions relating to the consul of 148
he is usually called Publius, not Lucius,1 but of this Kunkel’s
explanation seems satisfactory; many Romans of that period had
a plurality of praenomina·, Publius may have been, for example,
the family praenomen, and Lucius may represent some maternal
connexion.2 If this identification is right, then Julian was prob­
ably legate in Germany between 150 and 161, in Spain after
161, in Africa between 168 and 169.3
Now if we knew nothing of Julian’s career as a lawyer, we
should be inclined to assign to him a date of birth about 105.
Normally a person became consul ordinarius about forty-two;4
Julian, however, does not seem to have been nobilis, so that his
career may have been retarded. Even so, he can hardly have
been over forty-five when he was made consul; Kunkel makes
Julian about forty-eight and though there are examples of such
a retarded consulship, there is no obvious reason for the delay
in the case of a man of insignis doctrina, specially honoured in the
quaestorship. On the other hand, when we look at what Julian
himself says, we meet an obstacle.
D. 40. 2. 5. I ulianus eodem libro [i.e. libro quadragensimo
secundo digestorum]. An apud se manumittere possit is qui consilium
praebeat, saepe quaesitum est. ego, qui meminissem Iavolenum
praeceptorem meum et in Africa et in Syria servos suos manumisisse
cum concilium praeberet, exemplum eius secutus et in praetura et
in consulatu meo quosdam ex servis meis vindicta liberavi et
quibusdam praetoribus consulentibus me idem suasi.
If this text is accepted,5 as it must be until its authenticity
1 Kunkel, op. cit. 197, n. (14). 2 Ibid. 199.
3 Ibid. 198; Inscriptions historiques de Tunisie, 699.
4 Syme, Tacitus, appx. 18.
5 Something has perhaps dropped out after meminissem.'. Julian could not have
remembered what Iavolenus did; he remembered what Iavolenus told him he did.
T H E C H R O N O L O G Y O F G A IU S ’ W O R K S 49

is disproved, Julian was writing book 42 of his Digesta after


A.D. 148. But, besides setting a later date of composition for the
Digesta, this text makes us think that legal education at Rome
began at a very young age. Julian, coming from Hadrumetum
in Africa, may have been unusually mature ; and his brilliance
is attested by his reputation as the greatest Roman lawyer, or
at least the greatest after Papinian. Now Octavius Iavolenus
Priscus was legatus in Africa in 83, consul suffectus in 86, legatus in
Germania superior in 90, and thereafter legatus in Syria and
proconsul in Africa.1 In 106 or 107 there occurred the poetry­
reading incident in Rome which makes Pliny the younger call
him a man dubiae sanitatis.2 Perhaps he recovered his health
and, of course, Pliny says that he was still giving responsa and
attending to his official duties. Nevertheless, it would be sur­
prising if he lived and taught more than another fifteen years
after 107. If we allow three years for proper legal‘instruction
and accept Kunkel’s date for Julian’s birth, Julian can still not
have been more than nineteen when he began to be instructed
in the last three years of Iavolenus’ life ; if a more plausible date
for Julian’s birth is accepted (viz. 103), he was only sixteen. It
is true that he does not praise Iavolenus’ instruction or call him
noster. This is consistent with the possibility that Iavolenus was
somewhat decrepit. But, argue it as one may, either the lawyer
and the politician are two different persons, or legal education
began in the teens, rather than in the twenties.
I prefer to accept this latter conclusion rather than to invent
two separate persons called Salvius Iulianus, both prominent at
the same time, one noted as a lawyer, the other honoured for
insignis doctrina by an emperor specially interested in the legal
profession. Many events, e.g. marriage, took place earlier in
ancient Rome than they do now. It may have been the same
with what now seems a subject for maturity, viz. legal educa­
tion.3
It remains to deal with certain arguments in favour of an
1 P IR 1 O 40. 2 Ep. vi. 15. Sanitas probably refers to (physical) health.
3 I f it is true that Septimius Severus, born 146, was made advocatus fisci by
Antoninus Pius, who died in 161, this is another example of legal precocity. Vita
Antonini Getae, 2. 4; Eutropius, 8. 18.
825155 E
5o T H E C H R O N O L O G Y O F G A IU S ’ W O R K S

earlier birth for Julian than that proposed by Kunkel and


myself. The emperor Didius Iulianus was born in 135 or 139.1
Later historians (Eutropius2 and Aelius Spartianus3) attempt
to make Salvius Iulianus either his proavus (great-grandfather)
or to make the emperor his nepos (grandson or nephew). Such
attempts should not be taken seriously: a similarity of cognomen
is a flimsy basis for building up a supposed family connexion;
we find it used in other cases, such as that of the emperor
Tacitus, who claimed, without evidence, to be descended from
the historian.4
Certain other evidence for Julian’s dates must be noticed. In
D. 37. 14. 17 we have a rescript of the divifratres, which contains
this phrase:
Sed et cum ipso Maeciano et aliis amicis nostris iuris peritis
adhibitis plenius tractaremus, magis visum est nepotem neque verbis
neque sententia legis aut edicti praetoris ex persona vel nota patris
sui excludi ex bonis aviti liberti: plurium etiam iuris auctorum, sed
et Salvi Iuliani amici nostri clarissimi viri hanc sententiam fuisse.
This5 has been adduced as evidence that Julian was dead
before 169 (death of Verus), but this is based on the mistaken
idea that the perfect fuisse is appropriate to a dead man’s
opinions, whereas it really shows respect for the person cited.6
The text merely shows that Julian was not present in consilium
on the occasion in question; perhaps this occurred during one
of his two governorships under the divi fratres. Amicus would be
naturally used by an emperor to refer to a member of the con­
silium. Maecianus is so referred to twice in this text.
Another text is D. 4. 2. 18:
nam et imperator Titus Antoninus Claudio Frontino rescripsit.
This comes from Julian dig. 64 and, as Kunkel says, it has
not been shown that this inscription is wrong. Titus Antoninus
is Titus Aelius Hadrianus Antoninus Pius (138-61), the only
Antonine emperor with the praenomen Titus. The dates fit well :
1 Cassius Dio (Xiphilinus), 74. 17. 5; Vita Didii, 9.
2 Breviarium ab Urbe Condita, 8. 17 (nepos). 3 Vita Didii, 1.
4 Vita Taciti, io. 5 A verbal phrase has dropped out before the last clause.
6 Intro., pp. vi-vii.
T H E C H R O N O L O G Y O F G A IU S ’ W O R K S 51

Julian was on book 42 after 148 and on book 64 before 161.1


I propose therefore to work out a provisional chronology for the
composition of Julian’s Digesta based on this evidence provided
by himself. The Digesta contains ninety books. If Julian com­
posed it rapidly—at the rate of, say, nine books a year—it took
him ten years. If he did it slowly, with many interruptions, at
the rate of three books a year, it took him thirty years. If he
worked at the intermediate pace of six books a year, he will
have taken fifteen years in all.
In book i of the Digesta Julian says:2
Saepe audivi Caesarem nostrum dicentem hac rescriptione: ‘eum
qui provinciae praeest adire potes’ non imponi necessitatem pro­
consuli vel legato eius vel praesidi provinciae suscipiendae cogni­
tionis, sed eum aestimare debere, ipse cognoscere an iudicem dare
debeat.
There are three possibilities. Either Caesar noster is Hadrian or
he is Pius3 or the reference is to the office, not the individual
holder. If the first, the Digesta were begun towards the end of
Hadrian’s reign, and composed at the slow three-book-a-year
rate over, say, the period 136-65. If he is Pius, then the Digesta
were not begun until some time after the start of the reign,
since Julian must be given time to hear Pius say this ‘frequently’ ;
the point would not crop up every day. If so, the fast rate (say
I45/9 t0 154-/8) or the medium (say 145 to 159) are possible.
If the reference is to the office, not the particular holder of it,
we have no guidance as to the date of composition at all. Caesar
noster is used, among legal writers, only by Celsus,4 apart from
this passage. Later writers use imperator noster dominus noster or
, 5 , 6

Antoninus Augustus Pius noster.7 This is a slight, perhaps a flimsy,


argument in favour of holding that Julian is referring to Hadrian.
(It would be insulting to the present emperor to refer to a
deceased emperor as ‘so-and-so nostep.)
1 H e was on book 60 not later than the mid-fifties, because Gaius 8 ad ed. prov.
cites lu i. 60 dig. ( D . 39. 6. 31. 1, 3), and it can be shown that Gai. ad ed. prov.
XXX was substantially written under Pius. Below, p. 67.
2 D. I . 18. 8. 3 Vita Hadriani, 18. 1; Vita Pii, 12. 1.
4 D. 22. 3. 13 (30 dig.). 5 D. 30. 73. i (Gai. 3 ed. praet. urb.).
6 F.V. 247 (Paul). 7 D. 40. 5. 42 (Maec. 7 fidi).
T H E C H R O N O L O G Y O F G A IU S ’ W O R K S

The evidence derived from the relation of Julian to Pom­


ponius points, however, to a rapid rate of composition. From
certain texts on legacy of a usufruct1we can deduce that Julian
in book 35 of the Digesta cited Pomponius 5 Ad Sabinum. In 14
dig. Julian refers to Pomponius 13 ad Sab.2 But in 32 ad Sab.
Pomponius cites Julian 44 dig? If the latter identification is
accepted the inference to be drawn is that Pomponius began
writing Ad Sabinum before Julian began his Digesta but that the
latter overtook him. Pomponius is one of the most prolific legal
writers and must have composed quickly; so Julian must have
composed quicker still in order to overtake him. If Julian com­
posed nine books a year he cannot have begun the Digesta
before about 145.
But it may be argued that Pomponius in 32 ad Sab. does not
cite Julian 44 dig. and that D. 41. 3. 31 is really by Paul, not
Pomponius, the inscription being mistaken. This is supported
by the fact that D. 41. 3. 32 is inscribed ‘Pomponius’ not Idem.
On the other hand, Paul wrote only 16 books Ad Sabinum, so
that we have to suppose that the compilers made a mistake
about the number. If they did, we can still conclude that
Julian did not begin his Digesta before 145. The argument is as
follows. Pomponius Ad Quintum Mucium X X X IX was composed
under Pius.4 Pomponius Ad Sabinum XXXV or XXXVI was
written after Ad Quintum Mucium because it is markedly less
Proculian than the latter. But it was completed before Julian’s
Digesta, because, on this hypothesis, Pomponius docs not cite
Julian. Six years at least must be allowed for Pomponius to
write over seventy books under Pius, and so Julian did not
begin his work before 145.
This gives us a terminus a quo and we can fix a terminus ad quern
in the following way. There is evidence that at least the earlier
part of Gaius Ad Edictum Provinciale was written under Pius.5
Gaius 8 ed. prov. cites Julian 60 dig? Julian 64 dig. was written
before 161.7Julian 90 dig? has: aut interpretatione aut constitutione
1 F.V. 88; D. 7. 2. 8. 2 D. 17. 2. 63. 9. 3 D. 41. 3. 31. 6.
4 Below, p. 56. 5 Below, p. 67. 6 D. 39. 6 . 31. I , 3.
7 D. 4. 2. 18. 8 D. I . 3. i i .
T H E C H R O N O L O G Y O F GAI US’ W O R K S 53
optimi principis certius statuendum est. While it is true that the
reference may have been to the office, not the particular holder,
and while Julian may have intended by optimus princeps to
refer to Marcus during some period when Verus was absent in
the east, it seems more likely that he is writing under Pius than
under the divi fratres or under Marcus ruling alone. Julian, as
a man prominent in government, ought not, if he was writing
under the divi fratres, to have overlooked the existence of two
emperors. Further, if he had reached book 64 before 161 he
ought to have reached book 90 before 169. Though the governor­
ship of lower Germany falls into this period, there is no reason
why Julian should not have continued writing. There would
have been long winter nights to fill. Besides, there are few refer­
ences to the views of others in the Digesta·, so Julian need not
have had many books with him. The work is one of maturity;
it gives evidence of long administrative experience and inde­
pendent judgement. It is not a textbook, but rather a collection
of materials and cases arranged under the edictal rubrics. Other­
wise there seems little system in the work. The impression we
derive from reading it is that the materials were collected during
an extensive experience of government and administration;
but the actual composition could have been completed quite
rapidly.
I therefore adopt as a preferred chronology for the composi­
tion of the Digesta the dates 145-59; this presupposes an
average rate of composition of six books a year—nothing out of
the ordinary. Henceforth the preferred date will be given in
brackets after the full range has been stated. Thus Julian 60
dig. = 151/155 (154) and Julian 20 dig. — 142/151 (148). The
outer limits of the full range are fixed on the assumption that
Julian who, after all, must have been an efficient man, would
have finished his work by the time he was sixty-two. The year
136 is taken as the earliest possible date for beginning the work
because time must be allowed for Julian to complete the editing
of the edict under Hadrian before beginning on the major work,
which seems to presuppose the work of editing and to amount
to a first attempt to fuse civil and praetorian law. Unfortunately
T H E C H R O N O L O G Y O F G A IU S ’ W O R K S

the date of the editing is anything but certain. While I agree


with Kunkel1 that the date given by Jerome (131) is not
worthless, no great reliance can be placed on it. At first sight
it seems that some guidance can be obtained from the fact that
in Liber Singularis Enchiridii Pomponius does not comment on the
editing of the edict, either when he mentions Julian2 or when
he mentions the office of praetor.3
Apart from the fact that we do not know when this book was
written, except that it was probably before the end of Hadrian’s
reign,4 there is no reason why Pomponius should have men­
tioned the reform. The fact is that the point of view of Jus­
tinian’s compilers towards it would be quite different from that
of Julian’s contemporaries. To the former the editing of the
edict was a sort of codification, a forerunner of their own efforts,
and so of absorbing interest. To the lawyers of Hadrian’s time
it would not seem revolutionary except in one respect. It would
not, for instance, change the substantive law, apart from minute
details. The mere fact that we know of one nova clausula Iuliani
is an indication that there were no or few others. What is more,
Julian criticizes the edict, which he would not have done had
he been free to revise it as he chose.5 Nor would the change
affect the legal theory that the praetor propounded the edict—
ius reddere or ius dicere as Pomponius puts it.3 Gaius after 161
retains just this language still: ius autem edicendi habent magistratus
populi Romani The change was substantially a political, not
. 6

a legal one. Hadrian took away from the praetors the right to
alter the edict ; he was, as usual, encroaching on the prerogatives
of the republican magistracies. This, though important, was
hardly a point which it would be tactful to mention in a work
on omnes magistratus written under Hadrian. Hadrian himself
would not wish to stress it unduly. He was content to leave
the form while changing the substance. Pomponius shows no
inclination to risk offending Hadrian, whom he calls optimus
1 lura i (1950), 192, 193. 2 £>. 1 .2 .2 .5 3 . 3 £>. 1 .2 .2 .2 7 ,2 8 .
4 D. i. 2. 2. 49.
5 £>■ 37 · 5 · 6: ‘saepe animadverti hanc partem edicti . . . habere nonnullas
reprehensiones.’
6 Inst. i. 6.
T H E C H R O N O L O G Y O F G A IU S ’ W O R K S 55
imperator Hadrianus.1 This does not show that his liber singularis
was written after the promulgation of the revised edict, but it
shows that it may have been.
The silence of legal sources on Julian’s work of editing is
really striking. It may partly be accounted for as above, partly
by legal conservatism, which is apt to play down changes of
substance that are concealed behind similarities of form. At
first, it was not realised that the edict had become a sort of code,
like the twelve tables. Lawyers, such as Pomponius, went on
writing on civil law (Pomponius Ad Sabinum). Then Gaius and
Pomponius began to write treatises on the revised edict : I think
that Gaius was the first to do this, as he was the first to do many
other things. But the lawyers, who were often themselves magis­
trates, could not accept that a clean break had been made in
the praetor’s powers and that their status had suffered a per­
manent diminution. So they pass over the editing and stabiliza­
tion in silence, as they pass over the constitutio Antoniniana,
which effected a legal revolution in substance, while in form
merely extending the franchise.
I conclude that we cannot show the date 131 for the editing
of the edict to be wrong; on the other hand we can place no
great reliance on it.
Now a few words as to the dates of Pomponius’ works. The
only one which was probably written under Hadrian is the Liber
Singularis Enchiridii.2 If Gaius was Pomponius’ colleague, they
may have shared a common interest in legal history, and it
would be natural for the latter’s first piece of research to be
undertaken in that field. His Libri Epistularum (at least twelve)
were probably published after the death of Pius: D. 2. 8. 7 pr.
has
et divus Pius (ut et Pomponius libro epistularum refert) Cornelio
Proculo rescripsit . . .
but this is not certain, since the ‘divus Pius’ may be due to
1 D . 1 .2 . 2 . 49. The phrase could have been used of H adrian in the reign of Pius;
so it is not quite certain that Pomponius’ liber singularis was composed under
H adrian.
2 D. i. 2. 2. 49. But see above, n. 1.
56 T H E C H R O N O L O G Y O F G A IU S ’ W O R K S

Ulpian, not Pomponius. His other Libri Epistularum (twenty


books) were composed after the death of Pius: D. 50. 12. 14
from book 6 has :
et haec divus Antoninus constituit.
Unfortunately ‘Antoninus’ is ambiguous but at least Hadrian
is not spoken of in this way; so that date of book 6 must be
after 161.
Two works can be dated with fair confidence to the reign of
Pius. Pomponius’ Variae Lectiones (not less than forty-one books)
were begun before 149 because Julian 30 dig. cites Pomponius
12 var. lect. l and Julian 30 dig. is assigned to 145/152 (149). But
Pomponius 34 var. lect. cites Julian 7 dig.,2 which is assigned to
138/149 (146), so that the forties are the most likely period for
the composition of this work. Secondly, his thirty-five or thirty-
six books Ad Sabinum must, if we accept that Pomponius wrote
D. 41. 3. 31. 6,3 be assigned to the forties and early fifties,
because Julian 14 dig., assigned to 140/150 (147), cites Pom­
ponius 13 ad Sab., whilst Pomponius 32 ad Sab. cites Julian 44
dig., which is assigned to 149/153 (152). If Pomponius did not
write the above text, then Ad Sabinum should be assigned to the
forties, because Julian is not cited in it, but not to the very early
forties, because Pomponius in writing this work is free of the
predominating Proculian influence which is present in Ad
Quintum Mucium (thirty-nine books) written under Pius. Indeed,
if Pomponius did not cite Julian in Ad Sabinum, it becomes
probable that Julian’s Digesta are to be assigned wholly to the
period after his consulship.
The thirty-nine books Ad Quintum Mucium must have been
written after Gaius Ad Quintum Aiucium but no other Sabinian
, 4

is cited in them. This points to the early years of Pomponius’


teaching career at the Sabinian law school. Yet book 5 was
written after Hadrian’s death, since D. 7. 8. 22 has divus
Hadrianus. The work must belong to the early forties and it can
be argued that Gaius was still at the school at the time.
1 D. 28. 5. 42, if one accepts Lenel, Pal. Iul. 440/2 (ut refert Sextus Pomponius
attributable to Julian). 2 D. 6. 1. 21.
3 Above, p. 52. 4 D. 45. 3. 39 (22 ad Q.M .). H ardly earlier than 142.
T H E C H R O N O L O G Y O F G A IU S ’ W O R K S 57
The seven books Ex Plautio were composed late. Book 3 cites
Julian 56 dig.,1 which is assigned to 151/155 (154). De Senatus­
consultis V may be early: Pomponius speaks of Hadrianus impera­
tor,2not divus Hadrianus. This is far from conclusive, but it would
be natural for Pomponius to write about senatusconsulta at the
same time as he was writing about the magistrates and the sources
of law in Liber Singularis Enchiridii?
The real difficulty is to place the 150 books Ad Edictum in the
scheme of Pomponius’ writings. As the compilers did not have
this work available, it is specially difficult to sort out, from
indirect citations in other authors, the sources used by Pom­
ponius. Two citations by Pomponius of Julian’s Digesta seem
clearly established. In about 61 ed. he cites Julian 12 dig?
( 139/150/146) and in about 98 ed. he cites Julian 41 dig?
(149/153/151). There are several other possible citations by
Pomponius ofJulian6and none by Julian of Pomponius. Though
a definite conclusion is impossible, the evidence points rather to
the fifties and sixties than to an earlier period.
The results achieved for the chronology of Pomponius’ works,
modest as they are, have some bearing on his relations with
Gaius. It has been alleged that Gaius modelled himself on
Pomponius and imitated his works.7 This view rests partly on
a non sequitur·, because Gaius was still writing about 180 and
there is no evidence that Pomponius was then still alive, there­
fore Gaius began writing after Pomponius. The evidence points
rather the other way. Pomponius Ad Quintum Mucium was
written after Gaius Ad Quintum Mucium, which it cites.8 The
subject hardly justified two works, and the natural inference is
that Pomponius was imitating or attempting to outdo Gaius,
rather than the reverse. Again, Pomponius Ad Sabinum was
written after Gaius, in the first draft of his Institutes, had shown
his appreciation of the merits of Sabinus ; and Gaius did not

1 D. 46. 8. 16. i . 2 D. 40. 12. 43.


3 Further arguments for the reign of H adrian: Fitting, op. cit. 37.
4 D. 15. 3. I . 2 {refert Pomponius Iuliamm existimare).
5 D. 39. 2. 18. 5 {Pomponius relata luliani scriptura dicit. . . ) .
6 D. 3. 3. 37. i ; 3. 3. 40; 4. 8. i i . 5; 13. 5. 5. 6.
8
7 Krüger, op. cit. 201, 204. D. 45. 3. 39.
58 T H E C H R O N O L O G Y O F G A IU S ’ W O R K S

write a commentary on Sabinus. Lastly, Pomponius Ad Edictum


may well have been written in large part after Gaius ad ed. prov.
(late fifties, as will be shown below) and almost certainly after
Gaius ad ed. pr. urb., which must be assigned to the earlier
part of Pius’ reign. A study of the dates, therefore, so far from
establishing that Gaius imitated Pomponius, suggests rather
a tendency on the part of Pomponius to rival Gaius by writing
longer books on the same subjects.
All this has been a preliminary to an attempt to fix the dates
of Gaius’ works. One fairly firm date is a .d . 178 when the
senatusconsultum Orfitianum was passed. A text in the Digest is
attributed to Gaius’ liber singularis on this senatusconsultum;r the
work is not, however, listed in Index Florentinus. But it is men­
tioned in the Basilica and it would be wrong to attribute it to
Paul, who in D. 38. 17. 6 pr. covers the same point as Gaius in
D. 38. 17. 9. Since princeps noster shows that the emperor re­
sponsible for the oratio is still alive, the text was written under
Commodus.2
The surviving fragment affords no proof of intellectual
vitality.
Sacratissimi principis nostri oratione cavetur, ut matris intestatae
hereditas ad liberos, tametsi in aliena potestate erunt, pertineat.
Gaius may, therefore, have been very old in, say, a .d . 180 when
he wrote this: but people aged more rapidly in the ancient
world than they do now, and seventy is a more likely upper
limit of age than eighty3 for composing even a liber singularis on
a recent senatusconsultum.
One begins, therefore, by thinking of a date of birth for Gaius
nearer a .d . 110 than 100. The remainder of the evidence must
be drawn from the Institutes. On one view they give us a very
firm date. If the Institutes were composed as a textbook, over
a shortish period, we can assign their date of composition to
the years 160-2 because in Inst. 2. 151a Gaius says rescripto
imperatoris Antonini (there are five earlier references to imperator
1 D. 38. 17. 9.
( Ulp. 26. 7 (imperatorum Antonini et Commodi oratione). So Gaius’ book was
written after M arcus’ death in 180.
3 Seventy-eight was intolerably old. D. 40. 5. 20.
T H E C H R O N O L O G Y O F G A IU S ’ W O R K S 59
Antoninus)1 while in Inst. 2. 195 he says ex divi Pii Antonini con­
stitutione. This is the last reference to Antoninus in the Institutes.
Therefore, it is argued, Gaius was composing the Institutes Book
2 in A.D. 161 when Pius died.
Now if this argument is accepted we could date Gaius’ birth
between roughly a . d . 106 and 121, because the Institutes are
a work of maturity, the first of its type, written without super­
fluous detail, in which problems of classification are attended to
but not over-emphasized, transitions are skilfully effected, and
a good balance of topics achieved. The work is of the sort which
might be written between the ages of forty and fifty-five, not
earlier, when maturity is lacking, or later, when the mind
becomes inflexible.12
The date deduced may not be far wrong, but the assumption
on which it is based cannot be supported. The Institutes are not
a textbook written for publication but are either lecture notes
published by a friend of Gaius (e.g. a pupil after his death) or
lectures published by Gaius himself during his lifetime.3 The
evidence for this proposition consists in the oral character of the
language of the Institutes in comparison with other second-
century works. Thus loquimur or loquamur is found nine times,4
locuti sumus once.5 Though dicere and ait can be used of what is
said in writing, loqui means to speak rather than to say, and
loquimur autem de his and similar phrases mean, I submit, T am
talking a b o u t. . .’ not T am writing about’. Loquor is used twice
by Gaius on the provincial edict, once each in books nine and
ten,6 but not in his other works. It is not found in Julian, Celsus,
Iavolenus, or Pomponius. Secondly, diximus, though it can be
used of what is said in writing, is employed so often in the
Institutes, forty-seven times in all,7 that one is inclined to assign
1 Inst. I. 53, 74, 102; 2. 120, 126. T hat Antoninus means Pius is clear from
a comparison of Inst. 2. 151a with D. 28. 4. 3 ( a . d . 166: secundum divi patris mei
constitutionem).
2 At the present day these ages would have to be put later.
3 Galled commentarii by Gaius, Inst. 2. 23, 145; 3. 33, 54. The word means
‘a short book’ and ‘lecture notes’. Quint. 3. 6. 59.
4 Inst. I . 39, 76, 145; 2. 94, 122, 191; 3. 154; 4. 10, 57.
5 Inst. 2. 191. 6 D. 14. 4. 11 ; 47. 2. 49 pr.
7 Inst. I . 24, 32a, 45, 63, 72, 75 bis, 76, 78, 94, 97, 1 19, 135a, 152, 189; 2. 15,
6o T H E C H R O N O L O G Y OF G A I U S ’ W O R K S

to it an oral rather than a written sense. Celsus and Iavolenus do


not use it at all; nor does Julian, though he has dixi1 and
dixerim.2 There are a number of other phrases used in the
Institutes which prima facie lend themselves to an oral interpre­
tation, such as animadvertere possumus,3 mentionem habuimus,4
rettulimus, and exposuimus It seems reasonable to conclude that
5 . 6

the Institutes were, at least in origin, a set of lecture notes.


If this is accepted, it can be shown that at least twenty years
separate the first draft from the final revision. This follows from
a study of temporal expressions in the work.
In i. 30 we read:
qui ex ea nascitur, ex novo senatus consulto, quod auctore divo
Hadriano factum est, civis Romanus nascitur.
In 2. 143 we read:
Nunc vero, ex novo senatus consulto quod auctore divo Hadriano
factum est . . . .

Either these passages were first written in the early years of


Pius and left unchanged in subsequent revisions or they were
written in the late years of Hadrian, because novus is used only
twice in twenty-five mentions of Hadrian, and divus was added
in a subsequent revision.
In 2. 126 we read:
sed nuper imperator Antoninus significavit rescripto . . . .
These are the only three references to ‘recent’ events in the
Institutes and they took place, two at the latest early in Pius’
reign, the other at some unspecified time during it. On the
other hand 2. 195 has ex divi Antonini Pii constitutione. If these
passages are taken together, it is impossible for the Institutes to
have been composed from start to finish in less than a period of,
say, twenty years, a .d . 141 to 161.
33 ) 36) 65, 85, 105, 114, 116, 124, 135, 179, 181, 183, 206, 243; 3. 45, 51, 56,
101, 109, 126, 170, 178?, 179, 185, 206; 4. 56, 74a, 81?, 100, 129, 135.
1 D. 7. 6. 4; 12. I . 20; 14. 6. 14; 15. I . 37. 2; 30. 84. 4; 30. 94. 1; 33. 5. 9. x;
36. i. 28. 1; 40. 5. 48; 46. 3. 34. 8.
2 D ■3 9 · 5 · 2. 7· 3 Inst. i. 52. 4 InsL 4> 6g
5 I· 39) 87; 2. 228; 3. 201; 4. 85, 153.
6 i. 39, 126; 2. i, 94, 115, 171; 3. 182.
T H E C H R O N O L O G Y O F G A IU S ’ W O R K S 61

Apart from these cases, Gaius uses nunc, hoc tempore, and nostris
temporibus to contrast the new state of the law with the old. Hoc
tempore is used in i . 53 to record a change effected by Antoninus
Pius, and in 2. 57 to record one made by Hadrian.1Nunc is used
in 3. 121 of a change made by Hadrian, and in 1. 102 of one
made by Antoninus (presumably also Pius).2 In 4. 133 nunc and
his temporibus are used of an undated change in the law relating
to praescriptiones. In 1. 112 nostris temporibus2 is used of confarreatio
and in 4. 25 in contrast with the legis actiones. Hodie in 2. 195
refers to a constitution of Pius. The general impression to be
gathered is that the temporal expressions were not all put in at
the same time.
I conclude that Gaius made a first draft of the Institutes during
the reign of Hadrian, or, at the latest, very early under Pius.
It seems preferable to assign the first draft to late Hadrian than
to early Pius, for the following reasons. On the whole, Gaius
seems fairly consistent in referring to dead emperors as divus.
The only clear exceptions are Traianus in Inst. 1. 34 and
Claudius in Inst. 1. 32c. The references to Hadrian all contain
divus except 1. 47 and 2. 57 (the former of which Mommsen
thought a gloss), while none of the references to Antoninus Pius
do so, except 1. 195. What this shows is that the Institutes were
not thoroughly revised after a . d . 161, since if they had been
Antoninus would have been changed to divus Antoninus in more
places than one. On this reasoning, Gaius was not under forty
in 161, and so was not born after 121. Yet it seems that a
thorough revision at least took place during the reign of Anto­
ninus Pius. The Institutes may even have been drafted then,
which would account for the numerous references to divus
Hadrianus. On the other hand, if it was Gaius’ habit to write
divus of a dead emperor, the fact that he does not always do so
of Hadrian is some evidence of a first draft under Hadrian; but
in view of the single instances of Traianus and Claudius, the
evidence is not strong.
1 A lso i . 77.
2 Cf. 2. 227 (since passing of lex Falcidia); 3. 224 (since the time of the X II
Tables) ; 4. 18.
3 Cf. his temporibus: 2. 280; 4. 133; posterioribus temporibus: 2. 253.
62 T H E C H R O N O L O G Y O F G A IU S ’ W O R K S

An argument in favour of a first draft under Hadrian is this :


it seems strange to refer to a ‘recent’ senatusconsultum of a dead
man, as Gaius twice appears to do. Is it not more probable that
Gaius originally wrote ex novo senatus consulto Hadriani and later,
when revising the lectures, added the divus? One other reason
for advancing the theory of a draft under Hadrian is the large
number of references to his works in the Institutes. Gaius cites
him twenty-six times,1 Pius ten times,12 Trajan twice,3 Nero
twice,4 Vespasian once,5 Claudius twice.6 Hadrian accounts for
over half the citations. Even allowing for the fact that Pius was
not the energetic administrator that Hadrian was, ten mentions
of a man who has reigned for twenty-three years is a low figure
in comparison with twenty-six mentions of a man who has been
dead for that number of years. The tentative conclusion we may
draw is that Gaius collected his material and made a first draft
of his Institutes during the reign of Hadrian. A young man tends
to incorporate recent material in his lectures; as he gets older,
he is reluctant to disturb the order of his thoughts. So far as
controversies between jurists are concerned, Gaius was reluctant
to admit that changes had occurred since the time of Sabinus
and Cassius; he treats as open points which were really settled.
His willingness to incorporate so many rescripts of Hadrian
seems to me a sign of youth, and of a greater willingness to
incorporate fresh legislation than recent juristic opinion.
If this conclusion is right, then the draft could be assigned
plausibly to the last years of Hadrian’s reign, for it is at this
period that two of Hadrian’s enactments out of twenty-six would
appear recent. On the other hand, it should perhaps not be
assigned to the very end of Hadrian’s reign, because in 2. 221
we have a schools’ dispute set out, after which Gaius continues
as follows :
quae sententia [the Proculian view] dicitur divi Hadriani con­
stitutione confirmata esse.

1 Jnst. i. 7, 30, 47, 55 bis, 73, 77, 80, 81, 84, 92, 93, 94, 115a; 2. 57, 112, 143,
163, 221, 280, 285, 287; 3. 73, 12 1, 121a, 122.
2 Inst. i. 53 ter, 74, 102; 2. 120, 126, 151a, 195 bis.
3 Inst. i. 34; 3. 72. 4 i m tm 22. 2. ig7_
5 Inst. i. 85. 6 f a t ' j g2C^ g2>
T H E C H R O N O L O G Y O F G A IU S ’ W O R K S 63

It seems clear that the last sentence has been added after the
original draft was made and at a time when Gaius was not in
a position to ascertain the truth about the supposed enactment.1
Another case in which the reference to Hadrian’s legislation has
possibly been added to the original draft occurs in 3. 121,12
about fideiussores:
itaque liberum est creditori a quo velit solidum petere, sed nunc ex
epistula divi Hadriam compeditur . . . .

The present tense of ‘est\ coupled with ‘nunc’, suggests the


inference that the reference to Hadrian has been added later.
On the other hand Gaius may not mean nunc in a strictly
temporal sense; he may merely be contrasting ius civile with
statute law.
Before leaving this topic of the dating of the Institutes I should
say a word about the commonly accepted view that the Institutes
are based on an earlier model or Vorlage. While this cannot be
disproved, there is no reason to assume it. All the difficulties it
is intended to meet can be met by supposing that the Institutes
are lecture notes revised several times over a period of at least
twenty and perhaps as much as forty years. This results in
discrepancies, since some of the earlier material is not brought
up to date (e.g. the references to recent senatusconsulta of
H adrian). Sometimes the lecturer’s later views depart from his
earlier views, but both strands of material are recognizable in
the revised text (e.g. in connexion with real contracts).
The only plausibility which the Vorlage theory possesses comes
from Gaius’ failure to mention depositum, commodatum, and pignus
in the Institutes. His reasons for not classifying these contracts as
real are discussed in Chapter VI. I am here concerned not with
that question but with the reason why he does not mention them
at all in the section on contracts.

1 Cf. Inst. I . 32b. But the argum ent is not strong. People much closer than
Gaius to the imperial government cite constitutions by hearsay. Thus Marcellus,
a member of the imperial consilium, has proxime constitutum dicitur (D . 23. 2. 50).
Cf. D. i. 22. 2 (M arcian i de iud.pub.) ; 35. 2. 1. 14 (Paul 1 ad leg. Falc.) ; 41. 4. 2. 8
(Paul 54 ed.); 49. 14. 18. 9 (M arcian 1 delat.).
2 Cf. I . 77.
64 T H E C H R O N O L O G Y OF G A I U S ’ W O R K S

Neither depositum, commodatum, nor pignus falls within the scope


of the ius civile as depicted by Sabinus and they are not dealt
with in the commentaries on Sabinus. The Institutes, whether it
was first drafted before, after, or at the same time as Julian’s
editing of the edict, is primarily a book about ius civile, with
sidelong glances at praetorian law. It was conceived before the
idea of the fusion of civil and praetorian law had taken root;
this fusion took place gradually as a result of the influence of
Julian’s Digesta, which were not completed until about twenty
years after the first draft of the Institutes (a .d . 154/165 as
against a .d . 135/140). We should therefore expect praetorian
institutions to be admitted only sparingly to the institutional
scheme.
Of the three omitted contracts, pignus was purely praetorian
in the sense that in classical law it seems to have been remediable
only by an actio in factum, which is first evidenced in Julian’s
Digesta, book 11 {c. 146)1 and Gaius ad ed. prov. book 9 (c. 156).2
There was no reason for Gaius to include this, in Hadrian’s
reign or early in the reign of Pius, in civil law contracts. It is
otherwise with depositum and commodatum, because these were
remediable by formula in factum perhaps as early as Quintus
Mucius.3 They were not actionable by formula in ius in the time
of Sabinus, but were in the time of Julian4 and perhaps of
Neratius.5 At best, their reception into ius civile was recent when
Gaius was first drafting the Institutes.
There are two other reasons for not including depositum,
commodatum, and pignus to which I am inclined to attach more
importance. The first is that not all contracts were regarded in
Roman law as contractus, even if they fell within the scope of ius
civile. Fiducia is a bonae fidei negotium and was dealt with in
Sabinus’ Ius Civile book 29 and the commentaries on it. Yet it,
too, is excluded from Gaius’ list of contracts, and the Vorlage
hypothesis will not explain this—unless the Vorlage is pushed
back several centuries. The probable reason for the omission of
fiducia, deposit, and the others is that they were not regarded as
1 D. 13. 7. 13 pr.; 13. 7. II. 5. 2 D. 13. 7. 10.
3 D. 13. 6. 5. 3. 4 D. 16. 3. I. 22. 5 D. 16. 3. i. 21.
T H E C H R O N O L O G Y O F G A IU S ’ W O R K S 65

primarily contractual, but rather as arrangements ancillary to


the delivery or transfer of property.
This in turn is only a partial explanation, since mutuum also
involved the transfer of property, yet is classed as a contract.
I think the clue to the mystery is that the classification of
obligations is older than that of contracts, and the classification
of obligations was originally a classification of condictiones. Hence
mutuum, which gave rise to a condictio, was included in the canon
of contracts, as originally was indebiti solutio, which did not
really belong there. Fiducia, depositum, commodatum, and pignus
were not, however, remedied by condictio, and there was there­
fore no compelling reason for including them.
Some of the apparently out-of-date matter in Gaius must be
attributed to his historical leanings and to his refusal to admit
that disputed points are concluded by the opinions of lawyers,
however eminent. Part of it must be attributed to the influence
of a Socratic approach to teaching, which leads the lecturer to
exaggerate the extent of his doubt and the uncertainty of the law.
There is no need to say more about the supposed model on
which Gaius was working. Certainly he was influenced by the
doctrines and even the literary style current in the Sabinian
school. It is another matter to think that he worked on an actual
document. If there was such a thing, it must have been written
by Sabinus, Cassius, or Iavolenus, and it is strange that no
institutional work of theirs is recorded. Why do we not find
other institutional writers using the same model? Until some
real evidence is produced scepticism is called for. Entia non sunt
multiplicanda praeter necessitatem. I believe that this, like other
theories about Gaius, is influenced by the desire to deny him
credit for inventiveness. The snob, including the vicarious
modern snob, cannot believe that a man who was not promi­
nent in politics or well connected could have invented the
institutional genre.
It seems best, on the whole, to assign to the first draft of the
Institutes a date near but not at the end of Hadrian’s reign : say
about 135-6. Gaius would be not less than, say, twenty when
he was appointed to a teaching post; so he was, on this view,
66 T H E C H R O N O L O G Y O F G A IU S ’ W O R K S

not born after a . d . i i 6 . We know from D. 34. 5. 7 pr. that he


was alive in Hadrian’s reign (nostra quidem aetate ad divum
Hadrianum mulier perducta est).
Let us see if a chronology can be worked out for Gaius’ works.
The first was probably his Libri Ad Quintum Mucium,1since this
is the only work cited by another jurist. Pomponius’ Ad Quintum
Mucium seems to fall early in the reign of Pius, so this is an
indication that Gaius’ own work was earlier.2
We do not know how many books Gaius wrote on Quintus
Mucius. Pomponius wrote thirty-nine. On fideicommissa Pom­
ponius wrote five books. Gaius wrote two, plus one on tacit
fideicommissa. Gaius wrote thirty books on the provincial edict
plus however many he wrote on the urban edict, which is not
easy to discover. The compilers discovered only ten books ; but
whereas in Gaius’ commentary on the provincial edict he treats
of testament, legacy, and liberalis causa in three books,3 in the
Urban Edict there are two books (1, 2) on testament, three on
legacy (3, 4, 5), and two on liberalis causa (7, 8). The proportion
seems to favour the Urban Edict by just over two to one. On
the other hand, there are no surviving citations from other
jurists in the fragments we have of the Urban Edict, and, if this
was deliberate policy on Gaius’ part, it would have reduced the
volume of his work a great deal.
The commentary on the provincial edict, on the other hand,
contains a fair number of citations from other jurists, especially
Julian, though Gaius is never one to stuff his books with foot­
notes. The commentary on the urban edict may, however,
have covered only selected topics. There is really no way of
knowing, and one must therefore provisionally, to avoid under­
estimating Gaius’ output, assume that the Urban Edict ran to
sixty or seventy books. If this is so, Pomponius’ output did not
dwarf Gaius’ so much as one might think; the ratio on the edict
would be three to two. On stipulations Pomponius wrote at
least eight books;4 Gaius wrote three De Verborum Obligationibus.
On the whole, and depending to some extent on how much of
1 Inst. I . 1 8 8 . 2 D. 4 5 . 3. 3g. 3 X v i i , X v i i l , XX.
4 D. 7 5 · 5 · 2; Lenel, Pal. 11 col. 151.
·
T H E C H R O N O L O G Y O F G A IU S ’ W O R K S 67

Gaius on the urban edict is missing, Pomponius seems to have


written between one-and-a-half and three times as much as
Gaius on a given topic. If so, Gaius may have written between
thirteen and twenty-six books on Quintus Mucius and these
should be assigned to the late thirties.
It is convenient to take the Provincial Edict next. In book 1
we have: quae sententia rescripto imperatoris Antonini confirmata est.1
This shows that the work was not begun under Hadrian. In
book 8 we have : ex epistula divi Hadriani.2 In book 11 we read :
nuper ex indulgentia principis Antonini recepta est alia causa dona­
tionis . . . . 3 In book 8, again, there is a citation of Julian 60
dig.,4 to which the date 151/155 (154) is assigned. Verus is not
mentioned in this work; and Antoninus is either Pius or Marcus
reigning alone. Though the latter is not impossible, the year
170 would be rather late to begin what was for Gaius a big
undertaking and also an innovation in legal literature. It seems
best to assign the Provisional Edict, at least for the present, to
the late fifties.
Next we can get assistance from a passage in the Institutes :5
nos, qui diligenitus hunc tractatum exsecuti sumus et in edicti inter­
pretatione et in his libris quos ex Quinto Mucio fecimus, hoc totum
omittimus.
If, as argued above, the main revision of the Institutes took
place during the reign of Pius, we can deduce that at some
point during his reign Gaius had written on Quintus Mucius
and also composed one edictal commentary, but not both.
Gaius is not a slapdash writer and would not put edicti if he
meant edictorum. Edictum standing by itself most naturally means
the Urban Edict. So it seems likely that Gaius wrote on the
urban edict first. This work should provisionally be assigned
to the forties and early fifties. The revision of the Institutes may
be assigned to a date not earlier than 150—in order that Gaius
should have reached an age appropriate to the maturity of the
work—and not after 156, in order that time should be left during

1 D. 2. i. i i pr. 2 D. 46. i. 26. 3 D. 24. 1.42.


4 D. 39. 6. 31. i, 3. 5 Inst. i. 188.
T H E C H R O N O L O G Y O F G A IU S ’ W O R K S

the reign of Pius for the writing of the work on the provincial
edict, or at least a substantial part of it.
In a passage from the Urban Edict we read:1
Vicis legata perinde licere capere atque civitatibus rescripto
imperatoris nostri significatur.
This excludes the reign of the divi fratres. It would be rather
late to be writing the first of two major edictal commentaries
after the death of Pius ; therefore the imperator is probably either
Hadrian or Pius.
Most of Gaius’ other works seem to be late. De Fideicommissis
was composed after the death of Pius; it contains three refer­
ences to divus Antoninus.2 The single book De Tacitis Fideicom­
missis is more likely to be an appendix to two previous books on
fideicommissa than the other way about. The study offideicommissa
seems to have been supplementary to the study of the edict ; and
so the remaining works of a supplementary character (De Ver­
borum Obligationibus IIT, De Manumissionibus) would naturally
belong to the same period. The former contains citations of
Julian 52 dig.3 (150/154/153) and the latter of Julian 64 digA
which is assigned to 152/157 ( 155). Ad Legem Iuliam et Papiam X V
was at any rate finished after the death of Pius since in book 14
we read : ex constitutione divi Antonini.s Ad Legem X II Tabularum VI
contains, in book 3, a citation from Julian 86 dig.,6 which is
assigned to 154/164 (159). De Formula Hypothecaria I contains
a reference to Julian 49 dig.,7 to which the date 154/150 (153) is
assigned. No date can be given to Ad SC Tertullianum /.8 The Res
Cottidianae represent a development of the thought contained in
the Institutes·, and so I assign them provisionally to the seventies.
We are now in a position to attempt a tabulation of the
results so far achieved. I claim no more for it than consistency
with the evidence so far adduced. In the next chapter we shall
see whether the topographical evidence can be used to improve
the dating.
1 D. 30. 73. I . 2 D.32. 96; 35.I . 90; 36. I . 65. 5.
D. 45. 2. 15; 45. 3. 28 pr. * D.40. 4. 57. s D. 31.56.
6 D. 48. 5. 44. 7 d . 2o j i cj pr.
8 Passed under H adrian. J . Inst. 3. 3. 2.
T H E C H R O N O L O G Y O F G A IU S ’ W O R K S 69
103 Birth of Salvius Iulianus.
107 Iavolenus at poetry-reading incident.
112 Birth of Gaius (110-15).
115 Birth of Pomponius.
I I 7-20 Iavolenus teaching Julian.
129-31 Gaius a student at Sabinian law school.
131? Editing of edict by Julian and Servius Cornelius
(perhaps as late as 136).
Thirties Gaius teaching at Sabinian law school.
I35~6 Gaius’ Institutes : first draft (perhaps as late as 140).
Late thirties Gaius: A d Quintum Mucium. Pomponius: Liber
Singularis Enchiridii', De Senatusconsultis V.
138 Death of Hadrian. Accession of Antoninus Pius.
Early forties Pomponius a colleague of Gaius at Sabinian law
school. Pomponius : A d (Quintum Mucium X X X I X .
145 # Julian begins Digesta (136/149).
Forties Gaius: A d Edictum Praetoris Urbani. Pomponius: Ad
Sabinum X X X V I .
I45~9 Pomponius : writing Variae Lectiones XL If i- .
148 Julian consul ordinarius.
Fifties Pomponius: writing A d Edictum CL. Perhaps
finishing A d Sabinum. Gaius: completion of Ad
Edictum Praetoris Urbani.
153 M ain revision of Gaius’ Institutes (150-6).
159 Julian finishes Digesta (154-65).
155-60 Gaius: A d Edictum Provinciale X X X . Pomponius:
Ex Plautio V II?
161 Death of Pius. Accession of divi fratres, Marcus
Antoninus (Aurelius) and Lucius Antoninus
(Verus). Julian in Hispania citerior.
Sixties onwards Pomponius : finishes A d Edictum ; writes Epistularum
X I I and X X . Gaius: final revision of Institutes·,
De Fideicommissis IP, De Tacitis Fideicommissis I;
De Verborum Obligationibus HI', De Manumissionibus
HL·, A d Legem Iuliam et Papiam X V ; Ad Legem X I I
Tabularum VI.
168-9 Julian governor of Africa.
169 Death of Verus. Marcus sole emperor.
Seventies Gaius: Rerum Cottidianarum VII.
178 SC Orfitianum.
180 Death of Marcus. Commodus sole emperor.
180 + Gaius: A d SC Orfitianum I.
V

Rome and the Provinces


I e x a m i n e in this chapter the problems of Gaius’ birth and
citizenship, his home language, and the places where he lived
and taught. My broad thesis is this : though educated at Rome,
Gaius taught and wrote mainly in the provinces; his predica­
ment is that of the Roman in the provinces, not that of the
provincial at Rome.
In his Institutiones Gaius speaks of Roman citizens as nos in two
places. We must put this in perspective. Cives Romani appears
105 times; civitas Romana sixteen times. Nos is used seventy-seven
times impersonally, twice to mean T , 1once to mean ‘we private
individuals’,2 and twice to mean ‘we Roman citizens’.3 We
should be sensitive to unusual uses. I leave the ‘Γ texts on one
side for the moment, and concentrate on the ‘we Roman
citizens’ texts. In Inst. 1. 55 Gaius says, of patria potestas,
Quod ius proprium civium Romanorum est; fere enim nulli alii
sunt homines qui talem in filios suos habent potestatem, qualem nos
habemus.
In i. 193 he says:
Apud peregrinos non similiter ut apud nos in tutela sunt feminae.
In each case he contrasts peregrine institutions. In both the nos
is emphatic; Gaius seems to be identifying himself with his
audience ; and this is natural only if he is speaking to Romans
in a predominantly Greek area. In Rome apud cives Romanos
would have been enough.
There are some further passages: In D. 50. 16. 234 pr.4 we
have : Quod nos hostes appellamus, eos veteres ‘perduelles’ appellabant.
Nos here is not impersonal; it means ‘we nowadays’. This
1 i. 188; 4. 60. 2 2. 7.
3 Cf. Inst. 4. 37: nostris legibus — ‘by Rom an statutes’. 4 2 ad I. X I I tab.
R O M E A N D T H E P R O V IN C E S 71

does not help to establish the details of the topography of Gaius’


life, but it suggests that the six books on the X II tables were,
like the Institutes, a set of lectures.
A more interesting passage is in D. 50. 16. 236 pr.
Cum id, quod nos venenum appellamus, Graeci φάρμα κον dicunt,
apud illos quoque tam medicamenta quam quae nocent, hoc nomine
continentur: unde adiectione alterius nomine distinctio fit. admonet
nos summus apud eos poetarum Homerus . . . .
Here the contrast of ‘we’ and ‘they’ is extremely strong; alto­
gether excessive for an audience in Rome itself.
Lastly we have D. 50. 16. 233. 2:
nam quod nos telum appellamus, illi β έλο ς appellant από το ΰ
β ά λ λεσ θ α ι. admonet nos Xenophon, nam ita scribit . . . .

Here, as in the previous text, nos is used in two different senses.


In the first passage it means ‘we Romans’, in the second it is
impersonal.
The foregoing passages, even if they do not by themselves
prove that Gaius was speaking in the provinces, at least show
that he was a Roman citizen. It may be said that, even so, he
may not have been a citizen by birth or even free-born. This is
very unlikely. In his discussion of status he betrays no signs of
sensitiveness. He is sympathetic towards slaves as he is towards
women;1 and an apparent want of sympathy for dediticii2 is
explained by the fact that incredibile is a technical term used
in the construction of statutes.3 Gaius is in fact firm in uphold­
ing the twofold legislation of Antoninus which protected slaves
against maltreatment: he uses of it the expression, an unusually
strong one for him, utrumque rectefit.A
The presumption must be that Gaius was a free-born Roman.
Above all, Gaius’ dignity speaks for his free birth; he does
not cite contemporary jurists, with the exception of Julian, at
all copiously. A person who treats himself as entitled largely
1 Inst. I. 53, 190.
2 Inst. 3. 75: ‘incredibile videbatur pessimae condicionis hominibus voluisse
legis latorem testamenti faciendi ius concedere.’ Daube, ‘Rabbinic Methods of
Interpretation’ in Hebrew Union College Annual, X X II (1949)? P· 256.
3 Also, dediticii were guilty of serious crimes. 4 Inst. 1. 53.
72 R O M E A N D T H E P R O V IN C E S

to ignore the works of Caelius Sabinus, Iavolenus, Neratius,


Iuventius Celsus, and Pomponius except for an occasional,
distant reference, must be not just a Roman but a free-born
Roman.
The next question is that of Gaius’ home language. Nearly
all his work is in Latin; there are a few Greek phrases and
sentences in it : not as many as in Modestinus, but more than in
some other jurists. His Greek is considered good, and this led to
the theory that he was bilingual by birth and upbringing, and,
hence, born and brought up in the provinces.
On the other hand Gaius’ Latin is generally considered good
and, in its lucidity, unsurpassed.1 There are one or two rather
strange phrases in his later works, such as dubitationis est2 and
videtur dubitatio esse,3 but these cannot serve to throw doubt on
the purity of his Latin in the earlier works. It is natural to
suppose that his home language was Latin. An examination of
the Greek phrases in his works reveals no reason for disputing
this conclusion.
We should remember that we have no work of Gaius written
or drafted before he was, say, twenty-four; his commentary on
the urban edict is the first of whose chronology we can be
reasonably certain. It was probably written under Pius before
the Provincial Edict and published about 138-52, Gaius being
about forty when he finished it. There is no word of Greek in
the extracts we have. Next comes the Provincial Edict. In this
we are told that novalis is called νέασις in Greek,4 that vis maior
is called θβοΰ βία,5 and that καταχρηστικάς there is no difference
between factum and gestum I fear that the latter word is an
. 6

affectation: abusive would have done just as well. So far there is


nothing to show bilingualism. On the contrary, the attitude
revealed is rather that of a Roman who wants to show that he
knows some words of Greek.
Next come the Institutes. In these we have the Greek forms of
1^O n this I adopt the arguments of Kunkel, Herkunft und soziale Stellung der
römischen Juristen, pp. 202 ff.
2 D. 23. 2. 56 (8 ad l. Iul. et Pap). 2 D φ ι, η0 _ 2 (\ de verb. obl.).
4 Pal· Gai *7 4 J D- 50. 16. 30. 2. 5 pai G a; 245; D Iq> 2 25. 6.
6 Pal. Gai 352; D. 50. 16. 58 pr.
R O M E A N D T H E P R O V IN C E S 73

stipulation in 3. 93 and the quotation from Homer in 3. 141.


Neither is written out in the Verona palimpsest. The former is
explained by Gaius’ need in lecturing to Romans living in an
enclave surrounded by Greeks to state the proper words to use
in dealing with them; since stipulation was iuris gentium.1 The
latter is not at all unusual.
Nevertheless, the rhythms of the Institutes suggest bilingual­
ism, and there is some evidence of it under Marcus. Gaius’
commentary on the Twelve Tables has some Greek. Five frag­
ments out of thirty-eight together contain a good deal.12 He has
taken the trouble to look up the laws of Solon.3 At the very
least Greek comes more naturally to Gaius under the divifratres
and Marcus than under Pius.
The conclusion suggested is that Gaius was born and bred in
a purely Roman-speaking area and later moved to a Greek­
speaking or bilingual area.
It has been said that the amount of Greek in Gaius’ works is
no more than could be expected from an educated Roman. If
one were considering any class of writers but lawyers, this
would be a plausible proposition. But statistical study does not
seem to bear it out for legal writers.
A rough measure of the Latinity of a legal writer can be
arrived at by dividing the number of columns which the sur­
viving fragments of his work occupy in Lenel’s Palingenesia by
the number of Greek words contained in them. I have done
this for Gaius’ own generation and for that immediately pre­
ceding and following him. For results see the table on p. 74.
The only persons with a low Latinity ratio—unity or less—are
the later Gaius, Maecianus, Venuleius, and Cervi dius Scaevola.
If it had been usual for lawyers of the second century to use
Greek, we should find more Greek in Pomponius and Julian
and some in Marcellus.
1 This is one reason why Gaius explains that peregrini cannot use ‘spondesne,
spondeo’.
2 Pal. Gai 425, 4 3 5 . 4 36 » 4 37 . 438; D. 50. 16. 233. 2547. 22.4; 50. 16. 236pr., 1;
10. i. 13. It can of course be argued that this is mere literary adornment, to be
expected in a purely academic work, rather than evidence of bilingualism.
3 D. 47. 22. 4.
R O M E A N D T H E P R O V IN C E S

Columns Greek Latinity


words ratio
Africanus 34 II 3-09
Celsus filius 43 6 7-17
Gaius, Edicts . 55 4 13-75
Gaius, Institutes 104 33 3-I5
Gaius, later works 29 119 0-24
Gaius, total 188 156 1*21
Iavolenus Priscus 39 3 I3-00
Iulianus . 184 6 30-67
Maecianus 14 59 0*24
Marcellus 49 0 inf.
Neratius Priscus 22 I 22*00
Pomponius 144 21 6-86
Cervidius Scaevola . IO4 455 0-23
Terentius 5 0 inf.
Valens 4 0 inf.
Venuleius !5 94 o-i 6

The sixty-odd words of Greek in Maecianus are entirely


accounted for by an extract from his De Lege Rhodia',1 at this
point alone Roman law had recourse to the solutions worked
out by a foreign system, and therefore the writer could hardly
avoid the use of some Greek. The case of Venuleius is more
interesting. His Greek citations are literary in character and
come in De Poenis Paganorum Liber Singularis.2 The work is
analytical and shows traces of philosophical influence. There
is no writer of the period who so closely resembles Gaius as
Venuleius, not merely in citing Greek but in his use of authori­
ties, including his preference for older rather than more recent
authors, and in the many indications that he lived at least
partly in the provinces.31 take this work as showing, not that it
was usual for Roman lawyers to use Greek citations, but that
he and Gaius both in some way—perhaps through working or
teaching in the provinces—were out of the main stream of
legal writing in the second century.
Finally, Cervidius Scaevola, though the surviving extracts
1 D. 14. 2. 9. The inscription is Ex lege Rhodia.
2 D. 48. 19. 16. Although I have followed Lenel in ascribing this to Venuleius,
it is in fact inscribed ‘Claudius Saturninus and is probably by a different writer, to
whose age we have no clue.
3 D. 21. I. 65. 2 {Latine sciat)·, D. 48. 2. I2 p r.;4 8 . 19. 16. 9 5 26.7.51; De Officio
Proconsulis Libri IV.
R O M E A N D T H E P R O V IN C E S 75

from his works contain 455 Greek words, is not to be considered


a lawyer who adorns his works with Greek citations. His cita­
tions are, in fact, all extracts from wills or other documents
written in Greek. The fact that he—belonging to a slightly later
generation than Gaius—does not translate the documents pre­
supposes that his readers would be able to understand Greek,
but he does not use the language in the way that Gaius and
Venuleius do.
The argument is not a conclusive one; it may be said that
what Gaius, Venuleius, and, to a certain extent, Pomponius
have in common is that they are academic lawyers. Neverthe­
less, Pomponius uses less Greek than the other two and Gaius,
if my chronology is right, uses more Greek as he gets older. This
lends some slight weight to the view that Gaius moved from
Rome to the provinces and fell progressively under the influence
of Greek culture.
There are indications that Gaius was born or at least brought
up in Rome. His examples are those of a man who thinks of
himself as really or imaginatively in Rome. I hope to show that
he was not really in Rome when he revised the Institutes and
wrote the other extant works. If so, the fact that he imagines
himself there, that he treats Rome as the centre of his world, is
best accounted for by supposing him to have lived there in his
formative years—viz. in the period from his birth to the last
years of Hadrian, when he would be between twenty-five and
twenty-eight years old.
Let us look more closely at Gaius’ Rome-centred examples.
In the commentary on the Urban Edict Gaius gives as an
example of conditional institution si navis ex Asia venerit.1 This
seems to presuppose that one is in Rome awaiting the arrival of
the ship. It is a stock example.12 In the Provincial Edict we have
as examples of stipulationes certae :fundus Tusculanus, homo Stichus,
tritici optimi modii centum, vini Campani optimi amphorae centum.3

1 Pai. Gai io. D. 28. 5. 33. Also in De Verborum Obligationibus D. 46. 1. 72.
2 e.g. (D. 12. 6. 60 pr.; 28. 5. 60. 6; 35. 1. 21; 37. 11. 2. 1; 3 7 · ” · 8 Pr · bis
Ju lian and Celsus). Below, p. 95.
3 Pai. Gai 202; D. 45. 1. 74.
76 R O M E A N D T H E P R O V IN C E S

Again these are examples centred on Rome. They represent


what to a person in Rome would be the best things of their sort
to buy. ‘Tyrian purple’ seems to fall in the same category.1Then
again, in Gaius’ Institutes we have the following stipulation:
‘Ephesi dare spondes?’ followed by the bringing of an action in
which the claim is ‘Romae mihi dare oportere*. z This again pre­
supposes that we are in Rome where the action is brought,
rather than in Ephesus; the example is again a stock one.3
A person who lived all his life in the provinces, however
slavishly he copied his authorities (and Gaius does not do this),
would change the examples given, because they would seem
strange to him. Thus, Oxford authors such as Cheshire intro­
duce examples into their books which involve Oxford. I agree
therefore with Kunkel that Gaius’ choice of examples means
that he naturally thought of himself as being at Rome, and
therefore must have lived at Rome in his formative years.
But there is no need to conclude that Gaius was at Rome
when he wrote the commentaries on the edicts. The imprint
of a metropolis is lasting; that of Rome indelible. A person who
was an exile, even a voluntary exile, would continue to think
of himself as belonging to the capital city. Once one has
acquired a stock of examples in one’s formative years, one
does not readily change them ; and Gaius may have used them
deliberately, even though he was not in Rome and perfectly
realized their inappropriateness to his present position. He may
be indulging a certain nostalgia.
Still stronger evidence is afforded by Gaius’ use of the word
Roma in the Institutes. It is mentioned twenty-three times;4 in
thirteen of them the phrase urbs Roma is used.5 Urbs by itself is
used only twice, viz. in 1. 34 and 2. 279. In each case it is com­
pletely unambiguous, because of the use of urbs Roma in 1. 33
and Roma in 2. 278 respectively. Gaius seems to be taking very
great care to make it clear that by urbs he means Rome and
1 Inst. 4. 53d. 2fnst. 4. 53c (supplied from J . Inst.).
3 D. 45. I. 137. 2 sexies; 45. 1. 137. 4 bis: Venuleius 1 stip.
4 Inst. i. 20 bis, 27 quater, 32b, 32c, 33, 100, 160, 164a, 183? bis, 185; 2.278;
3 · 56; 4 · 53 c> io 4 bis, 105, 109 bis. D. 50. 16. 2 pr., 87 are not in point.
5 Inst. I . 20, 27 quater, 33, 160, 164a, 185; 3. 56; 4. 104 bis, 105.
R O M E A N D T H E P R O V IN C E S 77
not some other place. Now this suggests that he is not writing
in Rome.
A person who lived in Rome would naturally refer to ‘the
city’. One who lived in the provinces would speak of ‘Rome’.
On the other hand ‘the city of Rome’ is a rather pompous phrase
and Gaius is not pompous. The obvious explanation is that
Gaius originally wrote ‘urbs’ when he drafted his Institutes in
Rome, and added ‘Roma’ when he revised them in the provinces.
This is done both for the sake of clarity—and Gaius insists on
clarity—and in order not to appear superior to his students.
We obtain the impression once again that Gaius’ formative
years were spent in Rome, his later years in the provinces.
A further argument can be drawn from the number of Gaius’
references in his Institutes to peregrini and foreign institutions. It
is obvious that all writers on Roman law in the second century
A.D. will have said something about peregrini and no doubt the
compilers have excised the references when they came across
them. What is more, there were plenty of peregrini in Rome.1
But the number of Gaius’ references is impressive. He uses the
word peregrini seventy-two times,2 whereas cives Romani appears
105 times, civitas Romana sixteen times, and nos in the sense of
cives Romani twice. In other words, peregrini have more than half
as many mentions as Roman citizens, and this seems a higher
proportion than is called for if one is lecturing in Rome.
A further argument is that in at least two places the mention
of peregrini is pointless unless the audience is living in or near
a civitas peregrina. Thus in 3. 120 we read
Praeterea sponsoris et fidepromissoris heres non tenetur, nisi si de
peregrino fidepromissore quaeramus, et alio iure civitas eius utatur.
In 3. 96 we are told, in connexion with oaths:
sane ex alia nulla causa iureiurando homines obligantur, utique
cum quaeritur de iure Romanorum, nam apud peregrinos quid iuris
sit, singularum civitatium iura requirentes aliud intellegere poteri­
mus . . . .
1 Thus, from Vespasian’s time discharged soldiers of the praetorian guard were
granted diplomata whereby they received conubium cum peregrinis mulieribus.
2 Zanzucchi, op. cit. 82.
R O M E A N D T H E P R O V IN C E S

In both cases the information is pointless unless the audience


is in a position to ascertain the law of the peregrine state in
question. (It is true that Gaius may have supplemented his lec­
tures at these points with a discussion of the law of the area in
which he was lecturing.)
What is more, Gaius pays special attention to the problems
which would confront a Roman living in the provinces. Thus,
he has a long discussion of mixed marriages of various types.1
He is careful to set out the Greek forms of stipulation to be used
in dealing with peregrini.2 He puts the ius gentium modes of
acquisition before the ius civile modes.3 He tells us—a very
significant point—how to transfer provincial land before we are
told how to transfer land in Italy.4 I find it incredible that
a person writing or lecturing in Rome would not have adopted
the opposite procedure.5 The only explanation can be that the
audience was primarily interested in the transfer of provincial
land.
Let us look at the problem another way. Gaius must have
been in Rome when he attended and taught at the Sabinian
law school.6 There is no record of the existence of branches of
the schools in the provinces ; and a provincial school would not
arouse the intense loyalty that the Sabinian school awakened in
Gaius. Nevertheless, Gaius must have left Rome. First, there is
the fact that his writings, apart from those on Quintus Mucius,
are not quoted by second-century jurists. It may be argued
that this was because ofjealousy, or because they are worthless.
The first opinion gives a possible reason why the leading
establishment lawyers of the Severan period did not quote
Gaius. They were jealous of his popularity. But this does not
apply to Julian, Pomponius, Marcellus, and other writers of the
' Inst . 1.65-96. 2 Inst. 3. 93.
3 Inst. 2. 18 ff. Presumably because his audience would be likely to enter into
transactions with, and might even contain, peregrini.
4 Inst. 2. 21.
5 I t is true that Gaius was lecturing, as we shall see, in places which possessed
tur Italicum and where, therefore, land was presumably conveyed as in Italy. But
neither the audience nor their business relations would be confined to the narrow
strip of land where ius Italicum applied.
6 Gh. I l l , pp. 28 ff.
R O M E A N D T H E P R O V IN C E S 79

second century. Gaius was not a famous man at that time ; they
had nothing to fear from his reputation. Pomponius does indeed
quote Gaius in D. 45. 3. 39.
In a way Gaius may be said to invite ostracism by the fact
that he does not quote his contemporaries much (Pomponius?
once, Neratius three times, Celsus never). They may in some
cases have retaliated by ignoring him. But this does not apply
to Julian. Gaius cites Julian more often than any other writer,
Sabinus and Cassius included. Thus, citation analysis of Gaius
on the three edicts shows that there are forty-six name citations
of lawyers. O f these Julian accounts for twenty-five; he beats
Sabinus and Cassius (six each) in combination by a large
margin. Gaius appreciated Julian’s greatness and there is no
reason why Julian, if he knew of Gaius’ work, should not have
quoted him. The fact that Julian’s works were available to
Gaius but not Gaius’ to Julian can be accounted for on the
hypothesis that Julian was in Rome and Gaius in the provinces.
On the other hand it must be conceded that Julian is not given
to citations; he cites Pomponius only three times.1So the argu­
ment is inconclusive.
Another argument is provided by the fact that Gaius wrote
on the provincial edict. His thirty-book commentary represents
between a quarter and a fifth of his total output. He must have
spent from five to ten years composing it. It has been suggested
by Kunkel2 that a lawyer living in Rome might write on the
provincial edict for the benefit of proconsuls about to take up
their governorships. This is quite true, but he would write only
a short memorandum on the subject, not a lengthy treatise. For
one’s major work one chooses something which will be of prac­
tical use in the place where one is living. Academic lawyers are
altruistic, but human nature does not run to thirty books com­
posed as a favour for prospective governors, some of whom
would have died before the task was completed.
So far as we know, no one but Gaius wrote on the provincial
edict. He must have had a good reason for doing so; and the
1 D. 17. 2. 63. g; 28. 5. 42 (on which see Lenel, Pal. i. 396); F.V. 88.
2 Op. cit. 194.
8o R O M E A N D T H E P R O V IN C E S

most obvious reason is that he was living in a province where


the commentary would be particularly useful. As against this
there is the fact that the provincial edict seems to have differed
little from the urban edict. Why would anyone write on the
same topic twice within a short space? An explanation lies to
hand. When Gaius had completed or made substantial progress1
with his work on the urban edict Julian’s Digesta were pub­
lished, in the late forties or early fifties. Substantial rewriting
was needed, and Gaius preferred to write a shorter work with
a different title rather than to produce a second edition of his
commentary on the urban edict. As he was then working in
the provinces the idea of a commentary on the provincial edict
was a natural one. Once the later work was finished the earlier
would be little read, except for those sections in which Gaius
dealt very much more fully with the subject-matter in the
earlier commentary. It is for this reason, I suggest, that
Justinian’s compilers found only ten scattered books from the
earlier work; another reason may be that, once a commentary
on the provincial edict had been written, lawyers working in
the provinces became more reluctant to consult works specific­
ally devoted to the urban edict. The weight to be attached to
this last point depends on the extent of difference in content of
the two edicts, and of this we are ignorant.
I take it as established that Gaius was brought up in Rome
and left for the provinces at some stage of his career. He was
a Roman in the provinces, not a provincial in Rome. This
leaves three questions unanswered: why did he go, when did
he go, and where did he go?
As to the first we are in the realm of speculation. There are
three possible reasons : Julian, Pomponius, and Hadrian. As to
Julian, he must have returned to law teaching when he had
finished his administrative duties, e.g. after his praetorship or
after the revision of the edict, and Gaius may have lost his post
on that occasion. The latter event is accepted as taking place

He reached at least ch. xxxvii of the edict, corresponding to Ulpian, book 59 :


D. 50. 16. 48 ; Pal. Gai 50. This would take Gaius to about book 50, if the projected
length of his commentary was seventy books.
R O M E AND TH E PRO V IN C ES 81

in 131 for want of better evidence. If I am right in thinking


that Gaius was born about 112, it looks as if Julian’s return
took place too early to explain Gaius’ departure.
The rise of Pomponius may have had a discouraging effect
on Gaius. Pomponius wrote between one and a half times and
twice as much as Gaius in his career as a whole ; and he seems
to have been unusually fertile and fluent. He was also more
self-confident than Gaius.1 Gaius does not add the weight of his
own authority to the solutions he supports, in the direct way
in which other jurists sometimes do. Thus, he does not use such
expressions as quod probo, ego verum puto, ego cum . . . sentio. See. In
the Institutes the only expression remotely resembling this is the
strange magis optinere video of Inst. 2. 280.12 In his other works we
find animadverto once, puto three times and non puto once, miror
quare constare videatur once, and existimavi once.3By contrast Julian
uses4non animadverto, saepe animadverti, arbitror, audivi, dixi, dixerim,
non dubito, non dubitarem, dubito, existimo, non existimo, puto (nine
times), verius puto, non puto dubitandum, cuius sententiae ego sum, in
qua ego quoque sum, respondebimus. Pomponius4 uses puto (over
twenty times) non dubito, non puto, ego non puto, and existimo,
showing less self-confidence than Julian but more than Gaius.
Like Gaius, Pomponius probably did not have ius respondendi.
A still greater contrast with Gaius is found in the language
of Iavolenus4 and Celsus.4 In comparison with both of these
Gaius appears rather lacking in assurance and authority. What
is more, though Pomponius and Gaius seem to have been col­
leagues, and Pomponius uses noster of Gaius, there may well
have been a certain rivalry between them. Otherwise it is
difficult to explain why Pomponius wrote on Quintus Mucius
after Gaius had done so; the subject does not really justify two
treatises, and though it was a reasonable topic for a young man’s

1 Gaius is at times em phatic (e.g. Inst. 3. 193) but very seldom attaches weight
to bis own opinion.
2 Cf. magis placere video (31. 55 pr.).
3 His works contain several ‘defensive’ expressions, e.g. nisi fallor (D . I . 2. 1.);
ut ita dixerim (ibid.); vereor (D . 20. 4. i i . 1); nec me praeterit (Inst. 1. 55, 73;
3. 76; 4. 24); miror quare constare videatur (D. 11. 7. 9).
4 See citation tables II, II I, V, V I, V II, X I, nn. 5.
R O M E AND T H E P R O V IN C E S

first piece of research, when no one had recently written on it,


this was not true when a recent book was available.
It may well be, however, that Hadrian provided the main
motive for Gaiiis’ departure, by certain measures in relation
to responsa which brought the Roman bar under his personal
control. Gaius’ attitude to the rescript which made responsa
technically binding [Inst. i. 7) is discussed later.1Hadrian also,
in a second rescript, adopted an attitude to the grant of ius re­
spondendi which would discourage, on the one hand, those who
knew no law and, on the other, those who lacked self-confidence.
A short excursus is necessary in order to show that Hadrian’s
latter rescript may have had a discouraging effect on the Roman
bar. I am unfortunately not able to agree with the exegeses so
far proposed of the well-known text in which Pomponius re­
ports Hadrian’s answer to certain viri praetorii who asked for ius
respondendi. In D. 1. 2. 2. 49 we read:
primus divus Augustus . . . constituit ut ex auctoritate eius respon­
derent; et ex illo tempore peti hoc pro beneficio coepit; et ideo
optimus princeps Hadrianus, cum ab eo viri praetorii peterent ut
sibi liceret respondere, rescripsit eis hoc non peti sed praestari
solere, et ideo si quis fiduciam sui haberet, delectari se populo ad
respondendum se praepararet.
Professor Daube has summarized the leading views on this
text and added one of his own.2 His idea is that Pomponius
is relating an incident which occurred at the beginning of
Hadrian’s reign, when the beneficia granted by Trajan would
technically have lapsed. He thinks that Hadrian is following
the example of Titus and Nerva in insisting on a block regrant
of beneficia,3 and refusing to make individual exceptions. He is,
in fact, encouraging the viri praetorii to look forward to a block
regrant shortly, and telling them to prepare themselves pro­
vided they have not lost their self-confidence.
But this is an unlikely explanation. For one thing, Pomponius
does not explain the context at all. The reader would naturally
assume that Hadrian was dealing with a petition presented by
those who had not yet obtained the ius respondendi. It is true that
1 Ch. V II, p. 121. 2 £.S.S. 67 (1950), 511. 3 Ibid. 514-15.
R O M E AND T H E P R O V IN C ES 83

Pomponius may have got hold of the wrong end of the stick; if
my chronology is right, he was an infant when Hadrian suc­
ceeded Trajan. But in that case, since he would be writing
twenty years or so after the incident had taken place, he ought
to have explained it better. It would not be fresh in everyone’s
mind. True, Justinian may have omitted part of the explana­
tion, but why should he? Secondly, the suggestion that viri
praetorii who had already been granted ius respondendi in the
previous reign might suddenly lose their self-confidence seems
far-fetched, and if Hadrian said this, he was being gratuitously
offensive.
I believe the solution lies in Pomponius’ optimus princeps
Hadrianus. Pomponius should never have used this fawning
phrase,1but, as he was no fool, he must have had a reason for it.
The reason is that Hadrian’s reply was an extremely witty one.
We must understand the text as follows :
In the time of Augustus the ius respondendi began to be granted.
We must not think that Augustus or his successors would have
forbidden private practice at the Roman bar; that would have
been a tyrannical act, and we should have heard of its political
repercussions. But, the greater the emperor’s powers, the more
important it became to obtain his auctoritas·, so from the time
of Augustus onwards people began to petition for it.
We are to understand that such petitions became numerous,
and that the emperor was pestered by people asking for ius
respondendi. Hadrian received a petition from virip raetorii, men
of mark who, one may suppose, were not advancing quickly
enough in their political careers and thought they would like to
try their hand at the law.2 And so {et ideo) . . . he thought of
a way of answering them that would discourage petitioners and
at the same time raise the level of the Roman bar. They had
asked him ut sibi liceret respondere—implying, of course, but
not exactly saying, that they were asking for ius respondendi
ex auctoritate principis. This was a slapdash, unlawyerly way of
couching the request, and it met with a rebuff. He said to them
hoc non peti sed praestari solere.
1 Unless he was writing under Pius. 2 Like M.P.s wanting to take silk.
84 R O M E AND TH E PR O V IN C E S

This reply has two meanings. The obvious one is as follows :


‘ius respondendi ex auctoritate principis is granted by me of my
own volition; do not apply for it.’ In this Hadrian was merely
extending the practice introduced by Titus and Nerva in re­
spect of beneficia which had lapsed on the death of the previous
emperor. But the reply has an ironical meaning also, which,
however, it demands a certain knowledge of the law to appre­
ciate. Besides meaning ‘grant’, praestare has a technical legal
meaning,1 as in the phrase dare facere praestare oportere in the
formula. In this sense it means to ‘perform’ or to ‘make good’.
Probably the viri praetorii did not see the point at once; but if
they consulted someone who knew the law, he would tell them
that the advice given by the emperor was that respondere (as
opposed to ex auctoritate principis respondere) was a matter of prac­
tice. It was something which you do, not something you ask to
do. Evidently the petitioners did not know much law, or they
would have asked for ius respondendi ex auctoritate principis, not
merely whether they might respondere. ‘Well’, says Hadrian, ‘if
you have enough self-confidence, go and learn some law and
prepare to be granted the right of giving public responsa ; but
don’t expect it until you know a bit more.’
The rescript would become widely known ; it would discour­
age frivolous petitions by unqualified but highly placed Romans.
At the same time, it was not discouraging to those who were
prepared to do some work, unless they lacked self-confidence.
And Gaius, who was not a vir praetorius, was lacking in self-
confidence.2
Gaius’ attitude to Hadrian, whom no doubt he admired as
an administrator, is more likely to have led to his departure
from Rome than his relations with either Julian or Pomponius.
Gaius stood in the republican ius civile tradition of the Sabinian
law school; he would hark back to Qpintus Mucius and the
veteres. Under Hadrian he would see an increasing bureaucrati­
zation of the profession ; there would be little place for such as

So has petere, to bring an action’. A rough English rendering might run: 'this
is not m atter of suit but of sweat.’
1 For a similar joke by H adrian see Vita Hadriani, 20. 8.
R O M E AND T H E PR O V IN C E S 85
himself. He would find the relative freedom of the provinces
attractive. There, far from Rome, no one would mind whether
he possessed ius respondendi ex auctoritate principis.
If this was Gaius’ reason for leaving, he probably left during
or soon after the reign of Hadrian. He was, on my reckoning,
only twenty-six when Hadrian died. On the other hand, he
spent at least a few years teaching at the Sabinian law school;1
he collected a good deal of material which he later used in the
Institutes, and he wrote a work, which may have run to about
twenty books, on Quintus Mucius.2 This will have taken five or
six years. If so, he is likely to have left after 136 or 137. But if
Gaius was still a colleague of Pomponius when the latter wrote
quod Gaius noster dixit, Gaius left Rome after 141.3
Finally, there is the teasing problem: where did Gaius go?
We must now consider Mommsen’s brilliant intuition. He
noticed that in book 6 ad legem Juliam et Papiam Gaius says :
luris Italici sunt Troas Berytus Dyrrachium.4
Mommsen conjectured that, like Ulpian, Gaius put his birth­
place first. Therefore he was born at Troas.
Ulpian, in his florid way, says:5
Sciendum est esse quasdam colonias iuris Italici, ut est in Syria
Phoenice splendidissima Tyriorum colonia, unde mihi origo est,
nobilis regionibus, serie saeculorum antiquissima, armipotens,
foederis, quod cum Romanis percussit, tenacissima : huic enim divus
Severus et imperator noster ob egregiam in rem publicam im­
periumque Romanum insignem fidem ius Italicum dedit.
Gaius would certainly not have put it like that, and it is not
impossible that, in his oblique way, he intended in listing the
three towns to indicate which was his birthplace. If he did,
I rather think his birthplace was Dyrrachium, not Troas. The
three towns are not arranged in topographical order, either east
to west or west to east. They are arranged euphonically, with
the two-syllabled word first, then three syllables, then four. If
' See Ch. I l l , p. 33 f.; Ch. IV , pp. 61. 2 Ch. IV, p. 66.
3 Ch. IV , p. 56. Gaius would have begun work on but not published his
commentary on the U rban Edict before leaving.
4 D. 50. 15. 7. 5 D. 50. 15. i pr.
R O M E AND T H E P R O V IN C E S

one tries to follow the rhythm, the emphasis seems to fall on the
last rather than the first word. The example of the philistine
Ulpian is worthless.
For the reasons already given, I do not think Mommsen is
right about Gaius’ birthplace : at any rate Gaius was educated
at Rome. But Mommsen was right in thinking that Gaius
worked in Alexandria Troas, though he did not give adequate
reasons for believing this.
The first thing to notice is that fragments 6 and 7 of the
Digest title 50. 15 De Censibus are superfluous. In fragment 6
Celsus tells us that Philippi has the ius Italicum.·,1 but Paul tells
us the same in 8. 8, which is a more comprehensive fragment.
Similarly Gaius tells us in 7 about Troas, Berytus, and Dyrra­
chium, but Ulpian in fragment 1. 1 tells us that Berytus has the
ius Italicum, while Paul tells us about Berytus in 8. 3, about
Dyrrachium in 8. 8, and about Troas in 8. 9. There is a great
deal of repetition in this title and the question that presents
itself is: why did the compilers allow it?
Fragments 7 and 8 from Gaius and Paul belong to the edictal
mass and so were handled by the same committee. Inadvertence
can therefore be ruled out. The repetition is deliberate, and can
have only one explanation, viz. that they considered it an honour
to the towns concerned to be mentioned by such famous lawyers.
This is an important conclusion, because it leads us to think
that the compilers included all the towns mentioned by Gaius: they
had no reason to slight other towns, if Gaius mentioned them.
Plenty of towns besides Gaius’ three had the ius Italicum. De
Censibus mentions Philippi (fragment 6) and Caesarea (8. 7).
We are told that Vespasian and Titus gave Caesarea ius Italicum·,
and Philippi was granted it before Gaius’ time, otherwise Celsus
could not have mentioned it.
Either Gaius did not know of these grants of ius Italicum or
he had a reason for not mentioning them. Lenel has surmised
with his usual astuteness that Gaius was discussing the rule that
one was exempt from the penalties of the leges M ia et Papia if
one had three children at Rome, four in Italy, or five in the
1 This was irrelevant information even in its original context. Pal. Cel. 180.
R O M E AND T H E P R O V IN C E S 87
provinces.1 A place in the provinces with ius Italicum ought to
count as part of Italy for purposes of this rule ; so it was neces­
sary to know what places had ius Italicum in order to understand
the working of the leges.
It is not easy to attribute to Gaius ignorance of the fact that
Philippi and Caesarea, important towns, had ius Italicum. If he
was in Rome he could easily complete the list. If he was living
in the east and teaching law, he ought to know anyhow. So he
must be teasing us a little by being selective; and his list does
not purport to be comprehensive.
One naturally suspects that he is connected in some way with
the three towns. This should surprise no one. A Roman leaving
for the provinces would be most likely to go to the places where
there were Roman colonies. One must place oneself in the
position of Gaius in a .d . 136-41. If he was to go east rather than
west, and that was certainly the civilized thing to do, all three
towns would present attractions. I assume that Gaius, not being
then bilingual, though no doubt he could understand Greek as
an Englishman understands French, would not want to settle
in a Greek town such as Athens or Alexandria, where, in any
case, Roman law would not be much use.
Let us look at the matter a little differently. A striking thing
about the three towns is that they lie on the route of a very
plausible journey from Rome to the east. The Antonine route
to the east leads one from Rome to Brindisi, thence across to
Dyrrachium and through Macedonia and Thrace towards
Byzantium.12The route from Dyrrachium goes through Heraclea,
Edessa, and Thessalonica to Amphipolis and Philippi, then on
to Traianopolis whence one can leave the road3 to Byzantium
and proceed via Callipoli to Asia; the branch road passes
through Troas. For the journey on to Berytus one might go
first to Byzantium and then on the itinerarium Antonini through
Bithynia and Galatia;4 the towns of Nicomedia, Ancyra,
Antioch, and Tripoli lie on the route. Such a journey would

1 Pal. Gai 455; F.V. 247; J. Inst. 1. 25 pr.


2 Cuntz, Itineraria Romana, i. 317-23.
3 O p. cit. 333. 1-334. 4 · 4 ° Ρ · cit· J 3 8· 5 - J 4 9 · l -
88 R O M E AND T H E P R O V IN C ES

have taken Gaius to all the places he mentions as having the


ius Italicum’, it would take him through Bithynia and Galatia,
the two peregrine countries whose laws are mentioned in the
Institutes', and it would be the natural route to follow in the
second century. It passes through Philippi and, if Gaius took it,
his failure to mention that Philippi has the ius Italicum seems
the more deliberate. I shall attempt to refine the chronology
suggested in the last chapter for the composition of Gaius’
works on the assumption that Gaius, on leaving Rome, made
a gradual journey to the east, staying first at Dyrrachium, then
moving on the Antonine route down through Greece to Alex­
andria Troas, then ultimately settling in Berytus. Of course, this
is just a speculation. Nevertheless I am not ashamed to indulge
it. Mommsen thought that Gaius’ mention of Troas was ironic,
and I am only carrying his suggestion a stage farther. Secondly,
if Gaius was really a Cassius, he may have wished to visit the
countries of which Gaius Cassius Longinus was governor, and
where Cassii were established. Gaius Cassius Longinus was
successively proconsul of Asia and legatus Augusti pro praetore of
Syria.1 Troas and Berytus fall into his two commands. There
were Cassii in Bithynia and Syria.2 Finally, Cassius was exiled
from Rome by Nero.
If we assume that Gaius went first to Dyrrachium, he wrote
there his commentary on the urban edict. This may be deduced
from the following considerations. First, the commentary was
probably written under Pius.3 Secondly, a text from book 24
contains the phrase, given as an example, si navis ex Asia venerit,
heres esto. This would be inappropriate if written in Troas,
which was in Asia, but quite in order in Dyrrachium. O f course
this only goes to show that the early part of the Urban Edict
was composed before Gaius’ arrival in Troas. Thirdly, it is
likely that a man arriving from Rome a few years after the
revision of the urban edict by Julian would begin by writing
a commentary on that before going on to write on the provincial
edict. In fact, the very idea of writing the latter type of com­
mentary would probably only occur after one had lived for some
1 PIR2 C 501. 2 Ch. II, p. 16. 3 Ch. IV , p. 67. 4 A 28. 5. 33.
R O M E AND T H E P R O V IN C ES 89

time in a province where it was in force. One would begin by


being very ‘Roman’, then go on to become more ‘provincial’.
After a period which might be anything up to twenty years,
depending on the length of the commentary and on how much
of it he finished at Dyrrachium, Gaius would move on to Troas.
There he would compose the commentary on the provincial
edict. Now there is a difficulty about this commentary. Asia
was a senatorial province, and the governor of it was called
proconsul. Dyrrachium also fell into a senatorial province, viz.
Macedonia, of which Epirus was a district. Berytus fell into an
imperial province, of which the governor was a legatus Augusti
pro praetore, usually shortened to legatus. The word for ‘governor’
in a general sense is praeses·, this can be used to refer to any sort
of governor.1
Unfortunately Gaius in his commentary on the Provincial
Edict uses the words praetor2 and proconsul3 almost interchange­
ably. This looks at first sight damaging for the theory here
propounded ; in other words, it looks as if Gaius was writing in
Rome about the provincial edict, and intended to put proconsul
as the appropriate authority in each case, but forgot (as he had
no experience of living in a senatorial province) and automatic­
ally wrote praetor when he should have written proconsul.
In answer to this objection it might be argued that a man who
has lived the first twenty-five years of his life in Rome will be
accustomed to thinking of the praetor as the person who pro­
pounds the edict and so will sometimes write praetor without
thinking. This may partly account for the actual usage.
But Gaius is a careful writer and it is not necessary to account
for his use by carelessness. The word praetor had in fact a wider
meaning than that of the official usually so designated.
In ordinary speech it seems that praetor meant any pro­
vincial governor of senatorial rank, whether he was governing
1 D . i. 1 8 . i.
2 ‘Praetor’. Pal. Gai 55, 5 8 , 76, 112, 130, 157, 220, 223, 302, 306, 3 0 9 = D.
2. ii. 1 ; 2. 2. 4 ; 3. i. 7; 4. 7. 3 1 ; 9· 4· 1 5 ; 6 . 2 . 8 ; 2 7 . 10. 5 ; 1 5 . 1. 2 7 . 2 ;
29· 3 · 1 P r ·; 2 9 . 4 . 1 7 ; 2 9 . 5 . 2 5 . 2.
3 ‘Proconsul’. Pal. Gai 96, ι ο ί bis, 112, 147, 221, 237, 295, 304, 324, 346 = D.
4. 2. 1 9 ; 4 . 3. 2 6 ; 4 . 7. i pr., 4 ; 5 . 3 . 41 ; 14. 5 . i ; 17. 2 . 6 8 . 1 ; 3 8 . 8 . 2 ; 2 9 . 3 .7 ; 11.
7. 7. i ; 2 9 . 2. 5 7 pr.
9» R O M E AND T H E P R O V IN C E S

an imperial or a senatorial province. Asia was a senatorial


province and its governors were always ex-consuls; but there
were proconsuls, not of consular standing, in other senatorial
provinces, like Macedonia; and all, together with the legati
Augusti pro praetore of the imperial provinces, like Syria, could
be classed loosely as praetores.
This use can be demonstrated from Tacitus, though it must
be admitted that Tacitus was strongly averse to the use of
technical terms. He speaks, for instance, of the proconsul of
Bithynia as praetorem Bithyniae,1 of the governor of Achaea, a
senatorial province, as praetorem Achaiae.2 He calls the legatus
Augusti pro praetore in Hispania citerior praetor.3 In Ann. xv. 25
he speaks of qui praetorum finitimas provincias regebant, viz. all
neighbouring governors, whether proconsuls or legates, provided
they were senators.
Still more striking is Ann. ii. 56 : Commagenis . . . tum primum ad
ius praetoris translatis1,i.e. the client kingdom which was then for
the first time made into a province, in fact under a legate. Of
Cn. Piso, consular legate in Syria, Tacitus says huic fascis et ius
praetoris, huic legiones datasA In Ann. iv. 15 Tiberius says: quod
si vim praetoris usurpasset manibusque militum usus foret, spreta in eo
mandata sua ; he is suggesting that one of his procurators had
usurped the functions of the proconsul of Asia.
We may conclude that, whereas praeses was a general word
for any governor of a province, praetor was used for any gover­
nor of senatorial rank. That being so, Gaius’ use of praetor and
proconsul interchangeably is perfectly in order and there is no
reason to think that he is making a slip. A possible objection to
the hypothesis that he wrote the Provincial Edict in one of the
provinces therefore falls away.
The example si navis ex Asia venerit does not occur in the
surviving texts of Gaius on the Provincial Edict, so that it could
topographically have been written in Asia. The commentary
does, however, contain the following examples:5
1 Ann. I . 74. 2 Ann. iv. 43. 3 Ann_ ;v 45- t>
4 Ann. ii. 77. I am indebted to Dr. G. E. F. Chilver for these examples.
5 D · 45 · ! · 74
-
R O M E AND T H E PR O V IN C E S 91
certum est, quod ex ipsa pronuntiatione apparet, quid quale quan­
tum sit, ut ecce aurei decem, fundus Tusculanus, homo Stichus,
tritici Africi optimi modii centum, vini Campani optimi amphorae
centum.
The examples are, so to speak, centred on Italy. They are
such as would naturally be chosen by a person writing in Rome.
But they are probably stock examples from the Sabinian law
school and as none of them is incongruous in Asia, there would
be no reason to change them if Gaius was writing in Troas.
In order to make a reasonable estimate of the time it would
take Gaius to compose his two commentaries on the edict, it is
necessary to say something of his total output and the length of
his working life. As to the total output, this depends on the
estimate we make of the length of the missing part of the Urban
Edict .Taking that commentary as sixty to seventy books in all,
we must add thirty books for the Provincial Edict and twenty
on Quintus Mucius, together with forty-three books of special­
ized monographs and shorter works.1This comes to 153 books—
a substantial output, but not comparable with Pomponius’ 250
to 300 books. Some of Gaius’ works may be missing; but, as the
commissioners ofJustinian’s codification ransacked the libraries
of the Roman world for law books and as Gaius was popular
from as early as the third century, there is probably not a great
deal missing.2 On the other hand I may have overestimated or
underestimated the length of Gaius Ad Quintum Mucium and Ad
Edictum Praetoris Urbani. On the whole 140 to 170 books is a fair
estimate.
Gaius’ working life was a long one, if it is accepted that he
taught and wrote on Quintus Mucius at Rome under Hadrian.
The commentary on the SC Orfitianum cannot have been com­
pleted before a .d . 180; this gives forty-five years as a minimum
working life. If he was born about 112, he would not have begun
teaching before about a .d . 130 when he attained eighteen. The
1 De Verborum Obligationibus III·, De Tacitis Fideicommissis I ; AdSC Tertullianum I ;
Ad SC Orfitianum I; Rerum Cottidianarum I I I ; Regularum I and III·, Ad Legem X II
TabularumVI; Institutionum IV·, De Formula Hypothecaria I ; De Casibus I ; Dotalicion I;
Ad Edictum Aedilium Curulium II; Ad Legem Iuliam et Papiam XV.
2 On the other hand, popularity can be proved only for the Institutes.
R O M E AND T H E P R O V IN C E S

years, if any, which he lived after writing about the SC Orßtianum


would not be very productive ; he was then nearly seventy. I take
his total number of productive years as being between forty-
five and fifty. Dividing 140-70 by 45-50 we get an average quota
of 2-8 to 3-8 books per year. Most people write more freely when
they are young than when they are old and some allowance
must be made for this. It would not be unreasonable to attribute
up to five books a year to Gaius in the years under fifty or to lower
his output to as little as two books a year in his sixties.
Working on this basis, we must allow for the Urban Edict
(60 to 70 books) twelve to twenty years; for the Provincial
Edict (30 books) six to nine years. The commentary on the
edict of the curule aediles would most naturally be written at
the same time as that on the urban edict. This consists of two
books. Thus a total of from 18-29 years is needed for the com­
pletion of the edictal commentaries : less if the Urban Edict was
shorter than estimated. If Gaius left Rome in 136 or 137 the
edictal commentaries would take until between 154 and 166.1
On the whole I propose the following tentative chronology.2
131-6 On staff of Sabinian law school at Rome. ?2θ books
on Quintus Mucius.
c. 136-7 Departure from Rome (perhaps as late as 142).
138-c. 152 At Dyrrachium at least in early years. 60 (?) books on
urban edict and 2 on edict of curule aediles.
c. 152-60 At Troas. 30 books on provincial edict in late fifties.
I now propose to discuss the chronology of the Berytan works.
There are at least three which must be so classed. First, there
are the later books Ad Legem Iuliam et Papiam, since in book 6
Berytus is mentioned as having the ins Italicum, and the point of
this, I have suggested, is that Berytus was one of the places at
which Gaius had lived during his travels or was then living.
Secondly, the Institutes were at least finally revised at Berytus,
because of the mention of legatus (viz. Augusti pro praetore) in
them;3 there being no legatus in Achaia or Asia.
1 If he left as late as 142 he probably began the Urban Edict in Rome. Above,
p. 85.
2 I f it errs it is by being too early rather than too late. The real dates may be as
much as five years later than those proposed.
3 In what follows I have assumed that legatus in Gaius means legatus Augusti pro
R O M E AND TH E PR O V IN C ES 93
There are four Institutes texts which mention proconsul and two
which mention legatus. In Inst. i. 20 Gaius says:
Maiores vero triginta annorum servi manumitti solent adeo ut
vel in transitu manumittantur, veluti cum praetor aut pro consule
in balneum vel in theatrum eat.
Again in 4. 139:
Certis igitur ex causis praetor aut proconsul principaliter auctori­
tatem suam finiendis controversiis interponit.
My idea is that the insertion of proconsul will have been made
when Gaius was lecturing in Dyrrachium or Troas. We now
come to the two legatus texts. In 1. 101, 102 Gaius says:
Item per populum feminae non adoptantur, nam id magis
placuit; apud praetorem vero vel in provinciis apud proconsulem
legatumve etiam feminae solent adoptari. . . . Apud praetorem vero
et in provinciis apud proconsulem legatumve, cuiuscumque aetatis
personas adoptare possumus.
The mention of the legatus would not be appropriate or neces­
sary if Gaius was still in Achaea or Asia. On the other hand, in
Syria it would not be incumbent on Gaius to insert legatus after
praetor or proconsul in every place. One reason is that, as we have
seen, praetor is a general word for provincial governor. Tacitus,
in particular, uses it of a legatus in more than one place.1
Another is that, rhythmically, a phrase with three stresses is
uglier than one with two or four : thus praetor aut proconsul will
do, but praetor aut proconsul aut legatus would be ugly. Gaius,
who has a keen sense of rhythm, never uses the latter phrase.
When he introduced legatus he also introduces provinciis to
give a fourth stress.
Another argument is as follows. Gaius uses the general terms
praetor and praeses much more frequently than he uses proconsul
and legatus. Praetor is used 100 times in all,2 often by itself, but
sometimes in contrast with praeses or one of the others. Praeses is
used thirteen times.3 It looks as if Gaius was conscious of the
praetore, not the proconsul’s legate. This is nearly certain, since D. 40. 2. 7 has
legatus Caesaris.
1 Above, p. 90. 2 Refs, in Zanzucchi, Vocabolario di Gaio, 89.
3 Inst. i. 6, 29, 53, 100, 105, 134, 183, 185, 198, 200; 2. 24, 25, 278. Nine times
94 R O M E AND T H E P R O V IN C E S

need to use terms which would cover not merely the urban
praetor in Rome but the governor of any province, whether
senatorial or imperial. This is easily explained if he himself had
by the time of revision had experience not only of life at Rome
but of both types of province. Therefore, Gaius had reached
Berytus before he finally revised the Institutes.
A third reference to legatus comes in Res Cottidianae. In D.
40. 2. 7 (book 1) Gaius says:
Non est omnino necesse pro tribunali manumittere; itaque
plerumque in transitu servi manumitti solent, cum aut lavandi aut
ludorum gratia prodierit praetor aut proconsul legatusve Caesaris.
This is based on Inst. i. 20 above, but Gaius has added to the
praetor out proconsul the legatus, while managing to achieve a
four-stress rhythm. Now, this text could be used to support an
argument that Gaius moved from a proconsular province to an
imperial one between Inst. 1. 20 and D. 40. 2. 7. If that is so,
we know the exact date of his move to Berytus, because he is
already there in Inst. 1. 102 and Pius died before Inst. 2. 195:1η
other words, Gaius was in the act of revising book 1 at the time
of the move. Attractive as is the idea of catching him moving
house, so to speak, I do not think the suggestion can stand if the
Institutes underwent at least two revisions, as seems likely.1
If the Institutes represent lectures or lecture notes delivered
originally at Rome, then in Dyrrachium and Troas, and finally
revised in Berytus, Gaius would probably wait until he arrived
at Berytus and sorted things out before beginning the final re­
vision, or at least a revision of his lectures. In fact, his final
move would form an appropriate occasion for giving the final
touches to a course on which he had been working for many
years. Though the addition of legatusve Caesaris in Res Cotti­
dianae makes the point more explicitly, the praetor aut proconsul
of the Institutes is not really obscure; because everyone would
in contrast with 'praetor': i. 6, 29, 105, 134, 185, 200; 2. 24, 25; and perhaps 1. 183.
Once in contrast with consul or praetorfideicommissarius: 2. 278. Once in contrast with
what happens at Rom e: 1. 100. Once the contrast is uncertain, owing to a lacuna
in the text: 1. 198. Finally, once 'praesides' is used to relate an experience which,
I surmise, Gaius learned of in the provinces: 1. 53.
1 Ch. IV, pp. 59 ff.
R O M E AND T H E PR O V IN C E S 95

know that a provincial governor was commonly called praetor.


But one cannot entirely exclude the possibility that Gaius was
actually moving in 160 or 161.
The conclusion we reach from the ‘legatus’ reference is that
the greater part of Ad Legem Iuliam et Papiam, together with the
Institutiones and Res Cottidianae, was written or revised in Berytus.
If we now hark back to the chronology proposed in the
previous chapter, we shall see that De Fideicommissis II, and Ad
Legem X II Tabularum VI were composed after the death of Pius
and so probably in the Berytus period. I further assign De
Tacitis Fideicommissis to this period, on the ground that it is
likely to be a coda to De Fideicommissis. Finally, De Verborum
Obligationibus has not yet been discussed.
This work turns out to be extremely informative. In book 2
we read of a stipulation si navis ex Africa venerit.1 In book 3, on
the other hand, we find si navis ex Asia venerit. 2Now in the
writings of Gaius and his contemporaries ships always come
from Asia. This is true of Celsus,3 Gaius himself when writing on
the urban edict,4 Julian,5 Pomponius,6 and Africanus7 (indeed
it continues to be true in the Severan age). Hence Gaius must
have had a special reason for writing si navis ex Africa venerit,
and this can only have been that he was writing book 2 in the
province of Asia where the stock example would be out of place.
By the time he wrote book 3 the example was again appropriate.
Gaius left Asia while he was writing De Verborum Obligationibus.
From this we can deduce with fair accuracy the date of his
departure. The works on verbal obligations, manumission, and
fideicommissa naturally form a sort of tailpiece to the commen­
taries on the edicts. In them Gaius takes up particular topics
which are not fully covered in the edictal commentaries, though
the latter contain something about them. They would naturally
be written after the completion of the Provincial Edict in the
late fifties or early sixties, and so, as they are all short, Gaius
1 D. 45. i. 141. 7. 1 D. 46. i. 72.
3 D. 28. 5. 60. 6. 4 D. 28. 5. 33.
5 D. 4. 8. II. 5; 12. 6 . 6 0 pr.; 18. 6 . 8. 1; 35. 1. 21 ; 37. 11. 2. 1; 37. 11. 8 pr. bis.
6 D. 32. 54.
7 D. 21. 2. 46. 2; 23. 4. 23; 45. i. 63.
96 R O M E AND T H E P R O V IN C E S

left for Berytus not later than the early years of the reign of the
divi fratres. These three works I therefore assign to the transi­
tional period between Troas and Berytus, and to the early or
middle sixties.
The net result is that all the minor works are assigned to the
transition or to Berytus with the exception of Ad SC Tertullianum,
of which we have only one fragment, which affords no clue as to
date,1Dotalicion I (but the name suggests a late ‘Greek’ period),
De Casibus I, De Formula Hypothecaria I, Ad Legem Glitiam 1,2 and
Regularum I 3 and III—only nine books in all, which is not
excessive in view of the slender character of the evidence.
One point which emerges is the importance of the Berytus
period in the work of Gaius : it lasts longer than the others and,
despite Gaius’ increasing age, seems to have been quite produc­
tive. Continuing the suggested chronology, I propose :
Early sixties Move from Troas to Berytus. De Verborum Obligationibus
then being written. Completion of tail-pieces to
edictal commentaries {De Verborum Obligationibus
III; De Manumissionibus III; De Fideicommisis II).
Final revision of Institutes.
Late sixties Ad Legem Iuliam et Papiam XV.
Seventies Ad Legem XII tabularum VI. De Tacitis Fideicommissis I.
Rerum Cottidianarum VII.
180-f- Ad SC Orfitianum I.
This leaves only a few libri singulares to be fitted in. My
general approach to the order of composition of the Berytus
works is as follows : Gaius took the opportunity of a final revision
of the Institutes shortly after his arrival. He then completed the
tailpieces to his commentary on the various edicts; this was
a tidying-up process. He then undertook one last fairly major
work on the Lex lulia et Papia—he would be about fifty-six at
the time. Finally, he published a course of lectures or lecture
notes on the X II Tables4 and, last of all, when over sixty,
summoned up the courage to give the public his own original
ideas for the first time in the Res Cottidianae.
1 D. 38. 17. 8. 2 See Pal. 1. 246.
3 Late, because D. 1.7. 21 gives a rule not found in Inst. 1. 101.
4 After 169 in view of D. 50. 16. 233. 1 (principis, n o tprincipum).
VI

The Mind of Gaius


A t bottom Gaius is very much a Roman, tough, lawyerly,
and independent. But there were many lawyers of that sort at
Rome in the first two centuries a . d ., men who wrote good Latin
and produced sensible arguments, and their place in history is
not comparable with his.
Besides his lawyerly qualities and feeling for the ius civile
tradition, Gaius possessed something more, or, perhaps, ac­
quired something more during his time in the provinces. This
he derived from Greek philosophy,1particularly that of Socrates
and Aristotle.12 I propose in this chapter to give some examples
of this influence.3
The first example concerns the classification of obligations.
Here it is instructive to compare Gaius’ Institutes, where he
largely reflects the ideas of the Sabinian law school, with his
Res Cottidianae, where he feels freer to give his own views, and
which are meant to be read, not merely heard. In the Institutes
he divides obligations into two classes.
3. 88 quarum summa divisio in duas species diducitur : omnis enim
obligatio vel ex contractu nascitur vel ex delicto.
3. 89 Et prius videamus de his quae ex contractu nascuntur; ha­
rum autem quattuor genera sunt : aut enim re contrahitur obligatio
aut verbis aut litteris aut consensu.
3. 90 Re contrahitur obligatio velut mutui datione, mutui autem
datio proprie in his fere rebus contingit &c.
3. 91 Is quoque qui non debitum accepit ab eo qui per errorem

1 He was not unique in this. Thus philosophical influences appear in Celsus.


2 Any Greek town of decent size had schools of philosophy. Gaius could have
attended the Peripatetic school at Ephesus, or have stayed in Athens for a time on
his route to the East. The earliest example of philosophical influence is in book 4
on the Provincial Edict (D . 4 . 5 . 8 ) , to which I assign the date a . d . 1 5 2 + .
3 I am grateful to M r. B. F. McGuinness for his help with this chapter. He does
not, however, fully agree with the interpretations proposed.
825155 H
TH E M IN D OF GAIUS

solvit, re obligatur, nam proinde ei condici potest si paret eum


dare oportere ac si mutuum accepisset.
Taking this passage as a whole, it looks as if indebitum accipere,
like mutui datio, is being presented as an example of a real con­
tract. There are four arguments which show this. First, if all
obligations are divided into contract and delict, indebiti solutio
must fall into one or the other. There is no suggestion that
it falls under delict; so presumably it falls under contract.
Secondly, Gaius expressly states in 3. 89 that he is going to deal
with contractual obligations. Thirdly, mutui datio is stated to be
only one example of a real contract (velut mutui datione: though
velut could possibly be meant as exhaustive, this is unlikely).
If indebiti solutio is not an example of real contract, where are
the others? Finally, the nam in 3. 91 must give the reason why
indebiti solutio is a form of real obligation; otherwise nam would
be pointless. The reason given is that the remedy is the same
in the two cases : the plaintiff sues by a condictio in which the
intentio runs si paret eum dare oportere . The classification is
the same because the remedy is the same.
Against this there is the fact that, whereas in 3. 90 Gaius says
re contrahitur obligatio, in 3. 91 he merely says re obligatur. This
suggests (correctly) that he does not really think that indebiti
solutio is a contract, and this is confirmed by the end of 3. 91 :
sed haec species obligationis non videtur ex contractu consistere,
quia is qui solvendi animo dat magis distrahere vult negotium quam
contrahere.
So, after all, indebiti solutio is, rather tentatively (videtur) stated
not to be a contract. There is really no escape from the con­
clusion that 3. 91 is logically inconsistent with what has pre­
ceded. If indebiti solutio is not a contract, then there are more
than two species of obligation and mutui datio is not one example,
but the only example, of a real contract. Gaius must, then, be
expressing dissatisfaction either with his own previous views or
with those which he has inherited from the Sabinian law school.
Once it is accepted that the Institutes were written over a period
of at least twenty years it is really no surprise to find later views
expressed which conflict with earlier ones.
T H E M IN D OF GAIUS 99

If we turn to Res Cottidianae we find that Gaius has now intro­


duced two changes. The classification of obligations is now
threefold, not twofold; and a new basis has been found for
classifying obligations contracted re. As to the former Gaius
says:1
Obligationes aut ex contractu nascuntur aut ex maleficio aut
proprio quodam iure ex variis causarum figuris.
This should be translated Obligations arise either from con­
tract or from wrongdoing or by operation of law : the latter can
take various forms’. In other words, Gaius has come to the
conclusion that the sort of obligation which arises when money
is paid that is not owing cannot be fitted into either contract or
delict ; so a third category—a miscellaneous category—must be
invented.
Now as to the new basis of classification for ‘real contracts’.
After mentioning mutuum Gaius goes on:2
Is quoque cui rem aliquam commodamus, re nobis obligatur, sed
is de ea ipsa re quam acceperit restituenda tenetur.
Then, as to deposit,3
Is quoque, apud quem rem aliquam deponimus, re nobis tenetur;
qui et ipse de ea re quam acceperit restituenda tenetur.
And as to pledge :4
Creditor quoque, qui pignus accepit, re tenetur : qui et ipse de ea
ipsa re quam accepit restituenda tenetur.
Notice that the basis of classification is very clearly exposed.
In each case the recipient must give back the very same thing
that he received: de ea ipsa re tenetur. The sense in which ‘real
contracts’ are ‘real’, i.e. ‘thing-like’, is that the same thing is
both received and returned. In the case of mutuum, an equiva­
lent quantity and quality of thing is returned, but this does not
really alter the principle. It merely shows that, in the case of
1 D. 44. 7. i pr. 2 D. 44. 7. I . 3. 3 D. 44. 7. 1. 5.
4 D. 44. 7. I . 6. I t could be argued on the basis of D. 13. 7. 1 pr. (Ulp. 40 Sab.)
that pignus is not real but consensual. Gaius is probably right, however: the actio
pigneraticia, which is the contractual action, lay only when there had been delivery.
ΙΟο TH E M IN D OF GAIUS

fungibles, the principle of identity has to be jettisoned. Notice


that the so-called ‘innominate’ contracts are not ‘real’ in this
sense. In exchange, for instance, the thing given in exchange is
not the same as that received, but an equivalent.
What is the source of the changes made by Gaius? They come
from a reading of and reflection about certain passages in
Aristotle, Nicomcichean Ethics, book 5. The following account
of Aristotle does not purport to give the correct interpretation
of his theory of justice—if such a thing is possible—but only
a reasonable interpretation of the sort which would occur to
a lawyer. Thus, it may be that Aristotle intended rectificatory
justice to apply only when a wrong has been done. In that case,
it is a mistake to apply it to the formation, as opposed to the
breach, of contracts; and Gaius was guilty of misinterpreting
Aristotle. But I am not convinced that, for Aristotle, everything
voluntarily undertaken is just, both because of the words he
uses, and because in real life it is obvious that voluntary under­
takings can involve injustice. At any rate, not all voluntary
undertakings were binding in Roman law.
Aristotle divides private transactions (συναλλάγματα ) into vol­
untary (Ακούσια) and involuntary (ακούσια) .1 This corresponds
to—is indeed probably the source of—the division into con­
tracts and delicts. Contracts are voluntary, delicts involuntary.
Aristotle gives a list2 of examples of voluntary transactions, so
called, he says, because the beginning of them (ή αρχή ) is volun­
tary—viz. you enter into them of your own free will, though
you may not be willing later to perform your obligation. The list
is : sale, purchase, loan of money, pledge, loan for use, deposit,
hire. Notice that the four ‘real’ contracts come in a row, except
that Saveισμός is not strictly mutuum but loan for interest (in
mutuum a special stipulatio was needed for the payment of in­
terest).
The next question is: what sort of justice is exemplified by
these different sorts of voluntary transaction? It turns out that
two different varieties of rectificatory justice are involved,
depending on the type of contract. We are told that rectificatory
1 E N 1131*2. 1 E N i \ 3 ia4.
T H E M IN D OF GAIUS IO I

justice (το διορθωτικόν) can apply to both voluntary and in­


voluntary transactions.1 In them justice is a sort of equality,
injustice a sort of inequality, not proportionate but arith­
metical.2 What the judge tries to do in these cases is to restore
exact equality.3 This means evening out loss and gain. In such
transactions to have more than one had at the outset counts as
gain, while having less counts as loss.4 We can now see what it
is that real contracts have in common : in theory the status quo
can be restored by returning the thing borrowed, pledged, or
deposited. They exemplify a species of rectificatory justice in
which proportion plays no part. In sale and hire, on the other
hand, proportional or analogical reciprocity does play a part.
What they exemplify is reciprocity, or the interchange of
services,5 e.g. the exchange of so many shoes for a house or
its monetary equivalent.6 This involves proportion, not arith­
metical equality.7 Such contracts are therefore not ‘real’. (The
same is true of ‘innominate’ contracts such as exchange, since
the thing received is not the same as the thing given.)
One is left with admiration for Gaius’ use of Aristotle. The
‘real v. reciprocal’ classification is implicit rather than explicit
in Aristotle. He does not say how rectificatory justice applies to
the particular contracts he mentions. Gaius thinks this out, and
uses it to extend and rationalize a classification which he has
learned at the Sabinian law school. But where Aristotle is
defective, in not providing for a third source of obligation,
Gaius supplements his work by proprium quoddam ius.
Gaius also makes changes, as between the Institutes and the Res
Cottidianae, in the classification of delicts. First, he changes the
word delictum8 to maleficium, 9 Secondly, he introduces a further
category which is not really maleficium, but is like it. He says:10
Si iudex litem suam fecerit, non proprie ex maleficio obligatus
videtur, sed quia neque ex contractu obligatus est, utique peccasse
1 E N i i 3 i b26. 2 1132*1. 3 E N 1132*8.
4 E N H32bi3 ff. O n one interpretation Aristotle in Book V. iv is speaking only
of involuntary transactions; I take him to refer to both sorts, though the exact
restoration of the status quo ante will be commoner in relation to involuntary
transactions. 5 E N ii3 2 b23, 32.
6 E N 1133*7. 7 E N i1133*11.
133*11. 8 Inst. 3. 88, 182.
« D. 44. 7. i pr.; 44. 7. 4. D. 44. 7. 5. 4; 50. 13. 6.
TH E M IN D OF GAIUS

aliquid intellegitur, licet per imprudentiam, ideo videtur quasi ex


maleficio teneri in factum actione, et in quantum de ea re aequum
religioni iudicantis visum fuerit poenam sustinebit.
Two ideas are found here. The word maleficium is stronger
than delictum, more suggestive of conscious wrongdoing. If, how­
ever, one takes seriously the idea that conscious wrongdoing is
the basis of delictual liability, then cases in which this is absent
must be differently classified. The idea, again, is taken from
Aristotle, as has been shown by Professor Stein.1 Aristotle says
that a judge who has through ignorance given a wrong decision
is not unjust in the legal sense but he is like an unjust man,
taking ‘injustice’ in its primary sense (viz. he has not levelled
things out between the parties in the way which justice re­
quires).2 In Roman law a iudex who gave a wrong decision
actually incurred a legal liability.3 This was not as unfair as it
seems. He could ask a lawyer with the ius respondendi ex auctoritate
principis for an opinion, if he was in doubt ; a properly given
responsum was, according to Hadrian’s rescript,4 binding on him,
and therefore he could not incur liability if he applied it. Gaius
is therefore justified in saying of such a man peccasse aliquid
intellegitur.5
It may be that the phrase litem suam fecit, used of the iudex,
means that he took on himself the responsibility of saying what
the law was instead of consulting an authority.6 The other cases
of quasi-delict are those where things were thrown or poured
from a dwelling (in which case, Gaius says, the occupier
plerumque ob alterius cidpam tenetur aut servi aut liberi), the similar
case of positum aut suspensum, and, finally, the liability of inn­
keepers, &c., for damage or theft. In the latter case Gaius says7
they are liable quasi-delictually
si modo ipsius nullum est maleficium, sed alicuius eorum, quorum
opera navem aut cauponam aut stabulum exerceret; cum enim
neque ex contractu sit adversus eum constituta haec actio et ali-
1 ‘Quasi-delictual obligation’, RIDA v (1958), 563. 2 E N ii3 6 b34.
3 Not properly evidenced before Julian 9 dig. (D . 5. 1. 16), i.e. a . d . 139/149.
4 Inst. 1.7. 5 D. 44. 7. 5. 4.
6 Suggested by Professor Daube. This would not cover mistakes of fact, or
corruption. 7 77 44. 7. ^ g.
T H E M IN D OF GAIUS 103
quatenus culpae reus est, quod opera malorum hominum uteretur,
ideo quasi ex maleficio teneri videtur.
What seems to unite these cases is the existence of a certain
amount of fault (aliquatenus culpae reus est) in choosing bad ser­
vants, not consulting the proper authority, &c., falling short,
however, of conscious wrongdoing (maleficium). It is true that,
if this is the basis of classification, Aquilian liability for culpa
does not fit neatly into it. On that three remarks may be made.
First, Gaius says that liability for culpa under the lex Aquilia is
anomalous.
Inst. 3. 211. Iniuria autem occidere intellegitur, cuius dolo awt
culpa id acciderit; nec ulla alia lege damnum quod sine iniuria
datwr reprehenditwr.
This involves an inconsistent use of the word iniuria. Secondly,
under the lex Aquilia the fault has to be connected directly with
the damage; whereas in the quasi-delicts the defendant’s fault
is more indirectly connected with it. Thirdly, it is not necessary
to suppose that Gaius thought of Aristotle’s distinction between
‘knowing’ and ‘ignorant’ wrongdoing as corresponding exactly
to that between dolus and culpa. He is adapting, not adopting,
Aristotle’s ideas: and, in any case, he clings to the core of
Aristotle’s notion, that there are some cases in which a person,
though not actually unjust, is like an unjust man. One must
admire, again, Gaius’ adaptation of a category which in Aris­
totle was extra-legal for the purposes of classifying remedies in
Roman law. But his ingenuity goes farther, because he in­
vents a fourth category of obligations which are not mentioned
in Aristotle, viz. those where there is no actual contract, but
the obligation is analogous to a contractual one, viz. quasi-
contractual.
Gaius’ first example of these is the case where one person
manages the affairs of another in his absence, without actual
authority {negotiorumgestio).Hesays that, though mutual actions
are given to the absent party and to the one who looks after his
affairs,1
neque ex contractu neque ex maleficio actiones nascuntur: neque
i D. 44. 7. 5 pr.
T H E M IN D OF GAIUS
enim is qui gessit cum absente creditur ante contraxisse, neque
ullum maleficium est sine mandatu suscipere negotiorum admini-
strationem: longe magis is, cuius negotia gesta sunt, ignorans aut
contraxisse aut deliquisse intellegi potest : sed utilitatis causa rece­
ptum est invicem eos obligari.
It is to be understood that this is really the fourth, not the
third category of obligations, though it is placed before quasi­
delicts ; not merely is there no maleficium, but there is no element
of indirect fault such as would justify placing the obligation
under quasi-delicts. What is left is a residuary, miscellaneous,
rag-bag, which has to be defined by exclusion. Either there is
no negotium (συνάλλαγμα) contractual or delictual between the
parties, as in the cases of tutor and ward1or, if there is, it is not
‘voluntary’ on the one hand (as in the case of indebiti solutio)2
and not a maleficium on the other. Notice that Gaius’ hesitancy
about the classification of indebiti solutio3 in the Institutes has
been resolved in the Res Cottidianae;4 this did not prevent Jus­
tinian’s compilers from including both passages in his Institutes
and so producing an inelegancy.5
In sum, the basis of Gaius’ classification of obligations is
Aristotelian, but he has adapted Aristotle very intelligently.
Before we leave book 5 of the Ethics it may be worth noticing
one or two other passages which may throw light on Gaius’
character. He will have known, for instance, of the famous lines
in which Aristotle says that we do not allow a man to rule, but
the law; for the former does everything in his own interest, and
becomes a tyrant.6 He will have known too of the passage
where Aristotle discusses whether it is a form of injustice for
a man voluntarily to take less than his due.7 Modest and
equitable people are thought to do this. But this is not injustice
in a plain, straightforward sense, says Aristotle, because by act­
ing in this way the agent may secure a greater share of glory or
moral excellence (του άπλώς καλοΰ). These parts of Aristotle will
have struck a sympathetic chord. But there are others which did
1 D. 44. 7. 5. I . 2 D. 44. 7. 5. 3. * Inst. 3. 91.
* D. 44. 7. 5. 3. Cf. Gaius’ hesitancy in the classification of m andate. Watson,
The Contract o f Mandate in Roman Law, 111—14.
s J . Inst. 3. 14. 1; 3. 27. 6. 6 FW 1 i34bi. 7 E N i i36bi 7.
T H E M IN D OF GAIUS 105

not. When Aristotle says that justice between master and slave
or father and child is not proper justice, but only analogous,
because a child or chattel is a sort of part of oneself, and no one
chooses to harm himself,1 Gaius is not taken in by the specious
reasoning. In Inst. 1. 53, he says, of the power of slave-owners :
Sed hoc tempore neque civibus Romanis neque ullis aliis homini­
bus, qui sub imperio populi Romani sunt, licet supra modum et
sine causa in servos suos saevire: nam ex constitutione imperatoris
Antonini qui sine causa servum suum occiderit, non minus teneri
iubetur, quam qui alienum servum occiderit. Sed et maior quoque
asperitas dominorum per eiusdem principis constitutionem coerce­
tur: nam consultus a quibusdam praesidibus provinciarum de his
servis, qui ad fana deorum vel ad statuas principum confugiunt,
praecepit ut, si intolerabilis videatur dominorum saevitia, cogantur
servos suos vendere.
Gaius adds his own comment:
Et utrumque recte fit; male enim nostro iure uti non debemus;
qua ratione et prodigis interdicitur bonorum suorum administratio.
He is giving, with his usual obliquity, his reply to Aristotle’s
reasoning that a slave is, as it were, a part of oneself. Pius’
constitution was enacted while Gaius was in the provinces;2
the local Roman slave-owners will have protested, like South
African farmers whose right to flog African labourers is cur­
tailed, and Gaius is at pains to emphasize, at least on this
occasion, his pride in and preference for Roman humanity
rather than Greek sophistry.
Aristotle’s influence over Gaius is shown in at least two other
places. Gaius seems, as I have remarked before, to have rubbed
his students’ noses in legal history. Too much history at an
early stage of a law course is apt, even nowadays, to be
thought repulsive. So Gaius produces a justification for legal
history which is philosophical in character. The most perfect
thing is the one which is settled in all its parts ; and the begin­
ning is the most important part. Besides, just as in pleading one
must have an introduction, not plunge in medias res, so in learn­
ing the same principle applies.3
1 E lf H 3 4 b8. 2 D. I. 6. 2 (ex rescripto divi Pii). 3 D. i. 2 . 1.
ιο6 T H E M IN D OF GAIUS
Facturus legum vetustarum interpretationem necessario prius ab
urbis initiis repetendum existimavi, non quia velim verbosos com­
mentarios facere, sed quod in omnibus rebus animadverto id
perfectum esse, quod ex omnibus suis partibus constaret: et certe
cuiusque rei potissima pars principium est. deinde si in foro causas
dicentibus nefas ut ita dixerim videtur esse nulla praefatione facta
iudici rem exponere : quanto magis interpretationem promittentibus
inconveniens erit omissis initiis atque origine non repetita illotis ut
ita dixerim manibus protinus materiam interpretationis tractare?
Namque nisi fallor istae praefationes et libentius nos ad lectionem
propositae materiae producunt et cum ibi venerimus, evidentiorem
praestant intellectum.
The passage is rather rhetorical; it was probably written when
Gaius was over sixty. Nevertheless, it contains a number of
reasons tending to justify the study of legal history, and we
can add to it sotto voce : ‘So, whether you like it or not, you are
going to have a course of lectures on the Twelve Tables.’
The terminology of ‘parts’ and ‘beginnings’ comes, I think,
from Aristotle.1 One studies a subject best by beginning from
the beginning. So we study politics best by studying the be­
ginnings of society. It is not necessary to insist at length on
this; no one will dispute the importance of /repos' and αρχή in
Aristotle.
Lastly, I must say something of a much more difficult subject,
on which volumes have been written ; the notion of ‘nature’ in
Gaius. In his various works it appears in the form of naturalis
ratio (sixteen times),12 ius naturale (four times),3 iura naturalia
(twice),4 naturalis aequitas (twice),5 natura societatis (once),6 natura­
lis obligatio (once),7*and, as a noun, once in contrast with lex,s
twice in the phrase natura manifestum est.9 Further, naturalis
significatio occurs once,10 and naturalis filius and other relations

1 e.g. Politics 1252*24; Metaphysics Δ 16.


2 Inst. i. i, 89, 189; 2. 66, 69, 79; 3. 154; D. 3. 5. 38; 7. 5. 2. 1; 8. 2. 8; 9. 2.
4 pr.; 13. 6. 18. 2; 41. I. 1 pr.; 41. 1. 3. pr.; 41. 1. 7. 7; 44. 7. 1. 9.
3 Inst. I . 156; 2. 65, 73; D. 43. 18. 2. 4 Inst. 1. 158; D. 4. 5. 8.
5 D. 38. 8. 2; 41. I . 9. 3. 6 Inst. 3. 149?
7 Inst. 3. 119a. 8 Inst. 3. 194.
9 D. 7. I . 45; 44. 7. I . 14. Cf. D. 22. I . 28. 1: cum omnes fructus rerum natura
hominum gratia comparaverit.
10 Inst. 4. 134.
T H E M IN D O F G A IU S 107

nine times.1 This makes thirty-nine mentions of natura in all.


Ius gentium is used fifteen times.2
From a modern point of view it may be that we are inclined
to look askance at the use made by both Aristotle and Gaius of
‘nature’ in relation to law. Nevertheless, we must look at the
question in its historical context. There was no such thing as
Greek law ; Greece is the name of a linguistic area, not, except
briefly under Alexander, of a political unit. Greek states had
a great variety of laws. Aristotle, who was interested in com­
parative law (he made a collection of barbarian customs, νόμιμα,
and pleas of the cities, δικαιώματα πόλεων), noticed that there
were, fortunately, some elements common to the great majority
of systems. Such elements were common because based on nature
—human nature, primarily, but also animal and physical
nature. Thus, men share with plants and animals a common and
natural instinct to propagate their species.3 These natural ele­
ments, common to various systems, represent what is naturally
just, as opposed to what is just by convention.4 Such rules of
natural justice are everywhere valid and do not depend for
their validity on acceptance.4 But this does not mean that
positive law everywhere corresponds to what is natural. Among
men, as opposed to gods, there is a certain variability about the
matter,5i.e. one may find a few cities which do not conform to
the norm, and there will be a certain variability in applying the
principles of natural justice to concrete situations.
We can summarize this doctrine as follows : there are certain
common elements in legal systems, which can be distinguished
from what is peculiar to a given system. Usually it will be found
that these elements (ius gentium) are explained by some good
reason, derived from human, animal, or physical nature. The
common elements are not, however, found in absolutely every
system. There will be variations, and hence the positive law
does not necessarily correspond with ius naturale and ius gentium.
1 Inst. I. 19, 9 7 , 1 0 4 ; 2 . 1 3 6 , 137 bis; 3. 31, 40, 41. F o r naturaliter see, f o r e x a m p le ,
Z». 4 1 . 3 . 5 .
2 Inst. i. I, 5 2 , 7 8 , 8 0 , 8 2 , 8 3 , 8 4 , 8 5 , 8 6 ; 3 . 9 3 , 1 5 4 ; D. 4 1 . 1. 1 p r .; 4 1 . 1. 5 . 7 ;
4 1 . I. 7. 1; 4 1 . I. 9 . 3 . 3 Politics i2 5 2 a2 6 .
4 EM ii3 4 b i8 . 5 is J V T i3 4 b2 8 .
ιο8 T H E M IN D O F G A IU S

This Aristotelian set of concepts is the one used by Gaius in


his Institutes.1Now, in general, Roman lawyers would have very
little use for such an apparatus. Unlike Aristotle, they lived in
a unitary state; they would unhesitatingly have accepted the
principle that the provinces must take their law from Rome,
not Rome from the provinces.2 To the average Roman lawyer
that part of Roman law which was most markedly Roman
would be the central core of the system: res mancipi, patria
potestas, tutela mulierum, and all the rest of it. This was the tradi­
tion in which Gaius was brought up; but it is not the view of
things he has left us in his Institutes.
When Gaius went to live in the provinces he would come
up against the problem which vexed Aristotle: the fact that
foreigners have different rules of law from our own. This led
him, in the course of time, to present the law in a way that was,
from the Roman point of view, back to front. The ius gentium
rules are pushed into the foreground; throughout the Institutes
we feel that there is something inherently superior about these
rules. The ius civile rules, in the narrow sense, are relegated to
second place.
It is interesting to see for what purposes these notions are used
by Gaius. In passing, it should be noted that ius gentium and ius
naturale are not necessarily identical; there may be some com­
mon rules for which no good reason founded on nature can be
given, where, as Gaius once says, naturalis ratio requiritur.3 He
does not, however, give any other examples of this. Now Gaius
uses ‘natural’ of the bonds between persons related by blood,
but not by legitimate marriage ties, more often than for any
other purpose (nine times: see above, to which we must add
three on cognatio*). Next, he uses the ius gentium idea seven times
to support the rule that the status of the child of a mixed or
invalid marriage follows that of the mother.5 I think we are
entitled to say that Gaius approves the actions of Vespasian and
1 I do n o t deny th e p o s s ib ility o f S to ic in flu e n c e o n G a iu s : b u t in v ie w o f th e
f a c t t h a t A r i s t o t l e ’s i n f l u e n c e has been d e m o n s tra te d in o th e r re s p e c ts, it seem s
m o r e lik e ly t h a t G a iu s ’ u s e o f n a t u r a l la w is d e r i v e d f r o m h im to o .
2 C. D e o a u c to re , io . C f. D. 1 .3 . 32. 3 Inst. 2. 79.
4 Inst. i. 156, 158, 189. 5 Inst. 1. 7 8 , 8 0 , 8 2 , 8 3 , 8 4 , 8 5 , 8 6 .
T H E M IN D O F G A IU S log
Hadrian in partially restoring the regula iuris gentium in this
sphere.1
Other uses of natura and ius gentium cover a wide range.
Tutelage is supported by naturalis ratio2 (the young cannot look
after themselves) ; certain modes of acquisition are natural (e.g.
traditio,23 occupatio,4 and capture from the enemy5) ; so is acquisi­
tion by accession when someone builds on one’s land.6 On the
other hand, in cases of specificatio, naturalis ratio fails or, at least,
does not provide a clear answer.7
Partnership (societas) is regarded as natural, on the analogy of
human society.8 Slavery is iuris gentium, 9 so are certain forms of
stipulation.10
It is possible for positive law to be at variance with ius naturale
or ius gentium. It is here that we must carefully distinguish ius
naturale from ius gentium. Thus, in Inst, i . 83 Gaius says of the
rule of ius gentium that the child of an invalid marriage follows
his mother’s status:
Animadvertere tamen debemus, ne iuris gentium regulam vel lex
aliqua, vel quod legis vicem optinet, aliquo casu commutaverit.
The rule is capable of being changed ; but we are made to
feel that the change will not be for the better. Notice the phrase
legis vicem optinere.11On the other hand nature cannot be changed,
and what is naturally the case remains so, whatever the law may
be. We are told this in relation to search lance et licio, where, if
the stolen property is found, iubet id lex furtum manifestum esse.
On this Gaius comments:12
Propter hoc tamen, quod lex ex ea causa manifestum furtum esse
iubet, sunt qui scribunt furtum manifestum aut lege intellegi aut
natura : lege id ipsum de quo loquimur, natura illud de quo superius
exposuimus. Sed verius est natura tantum manifestum furtum
intellegi. Neque enim lex facere potest, ut qui manifestus fur non sit,
manifestus sit, non magis quam qui omnino fur non sit, fur sit, et
qui adulter a ut homicida non sit, adulter vel homicida sit. At illud
1 Inst. i. 84, 85. 2 Inst.i . 1 8 9 . 3 Inst. 2 . 65.
4 Inst. 2. 66. 5 Inst. 2 . 6 9 . 6 Inst. 2 . 73.
7 Inst. 2. 79. 8 Inst.3 . 1 4 9 , 154. 9 Inst. 1. 52.
10 Inst. 3. 93. 11 O n w h ic h se e C h . V I I , p . 120.

12 Inst. 3. 194.
I IO T H E M IN D O F G A IU S

sane lex facere potest, ut proinde aliquis poena teneatwr, atque si


furtum vel adulterium vel homicidium admmsset, quamvis nihil
eorum admiserit.
The law cannot change nature, though it can change the rule
of ius gentium. A law which purports to do this is regarded as
not really creating a new species of wrong, but just imposing
a penalty.
The same theme appears, at an earlier stage in Gaius’ career,
in book 7 of his commentary on the provincial edict. He is
discussing the usufruct of consumable goods, which a senatus
sonsultum authorized.1
Quo senatus consulto non id effectum est, ut pecuniae usus
fructus proprie esset (nec enim naturalis ratio auctoritate senatus
commutari potuit), sed remedio introducto coepit quasi usus fructus
haberi.
Again :
civilis ratio naturalis iura corrumpere non potest.2
So far as I can tell, Gaius has mirrored Aristotle’s thought on
the subject of law and justice with complete fidelity. The use he
makes of the notions is entirely commendable. He favours the
ties of blood rather than the artificial rules of the agnatic family;
he favours informality and is against technicality. There is
nothing reactionary or time-serving in his use of the notion of
‘nature’ and, if it has been put to bad uses since, that is hardly
the fault of Gaius.
Finally, a word about the influence of Socrates on Gaius.
Irony is in its origin a method of teaching. The teacher pretends
not to know the answers : he hopes by putting questions to
exhibit to the student the extent of their common ignorance.
Gaius’ irony, then, was in the first place pedagogic; only by an
extension does he display in the details of his life a form of
dramatic irony. As to his teaching methods, they are plain
enough.
In the Institutes we find at least thirty-seven cases in which
1 D. 7 . 5. 2. i.
2 D. 4. 5. 8.
T H E M IN D O F G A IU S III

a question of law is raised but not decided.1 Many of them are


cases in which there was a controversy between Sabinians and
Proculians. Others are cases in which we are told that ‘some
people’ hold such-and-such a view, but not whether the view is
correct. I have excluded cases in which we are told that the
majority view is so-and-so (plerique putant). O f the fourteen
occasions2 on which the opinions of plerique are given there is
only one where the opinion is stated to be correct. One may, of
course, argue that the majority opinion is always impliedly taken
as correct. Probably the total number of points left undecided
should be a good deal higher, because I have omitted cases in
which, owing to a gap in the text, it is impossible to say whether
the question was decided.
I do not see how this technique can be explained otherwise
than as a Socratic method of teaching. It is not that Gaius has
no firm opinions. Sometimes we do find strong expressions, such
as manifestum est,5plus quam manifestum est,4 apertefalsa est,5 aperte
iniquum erat,6nec ulla dubitatio est,7certe non dubitatur,8non dubitatur,9
sine dubio,10 certe,11 plane,17· recte,15 palam est.1* A firm opinion is
expressed against the tutelage of adult women:15
Feminas vero perfectae aetatis in tutela esse fere nulla pretiosa
ratio suasisse videtur; nam quae vulgo creditur, quia levitate animi
plerumque decipiunt«?· et aequum erat eas tutorum auctoritate
regi, magis speciosa videtur quam vera; mulieres enim quae per­
fectae aetatis sunt, ipsae sibi negotia tractant et in quibusdam causis
dich gratia tuto?· interponit auctoritatem suam, saepe etiam invitus
auctor fieri a praetore cogitur.
It is not that Gaius lacks opinions or the courage to express
them, unpopular as they may be. His restraint has a pedagogic
1 Inst. I. 9 0 , 1 0 6 , 1 2 9 , 1 7 2 , 1 8 4 , 1 8 8 ; 2 . 3 7 , 7 9 , 9 0 , 9 4 , 9 5 , 1 2 3 , 2 0 0 , 2 1 5 , 2 2 3 ,
2 3 1 , 2 3 4 , 2 4 4) 2 6 2 ; 3· 2 8 , 9 1 , 1 03, 1 19, 122, 1 43, 144, 166, 1 6 7 a, 168, 172, 175, 178,
202, 218; 4. 78, 79, 123.
2 Inst. 2. 7, 117, 198, 208, 212, 2 7 6 ; 3. 71, 73, 147, 160, 184, 2 0 8 ; 4. 29, 133.
I h a v e a s s u m e d , w ith th e m a jo r ity o f R o m a n is ts , th a t plerique m e a n s ‘t h e m a j o r i t y ’.
In S i l v e r A g e L a t i n i t u s u a l l y m e a n s ‘s e v e r a l ’ .
3 Inst. i. 1 8 1 , 2 .2 8 , 48. 4 Inst. I . 8 7 ; 4 . 132.
s Inst. 3. 64. 6 Inst. 3 . 40. 7 Inst. 4 . 133.
8 Inst. 3. 193. 9 Inst. 3 . 146. 10 Inst. 2 . 94.
11 Inst. 2. 78, 180; 4. 60. 12 Inst. 2 . 2 0 3 ; 4 .4 . 13 Inst. 4 . 163, 182.
14 Inst. 2. 78, 122; 3. 18, 103; 4. 33, 181. 15 Inst. I . 190.
1 12 T H E M IN D O F G A I U S

purpose. It may be argued that such a technique, however


admirable for lecturing purposes, since it gives the lecturer a
chance to leave his text and throw the discussion open to the
class, is not in place in a published work. There is some force in
this objection, and it is not inconceivable that Gaius did not
himself publish his lectures, but merely revised them thoroughly
on arrival at Berytus. In that case it will have been, as in the
case of Aristotle, one of his friends or pupils who published them
after his death. Aristotle, like Gaius, left a lot of loose ends in his
lecture notes.
Before we leave the philosophical influences on Gaius, it may
be well to mention his dislike of vulgarity, in fact his snobbery.
The word vulgo is used eleven times in the Institutes. Sometimes
the opinion which is so described is indeed one which the man
in the street might hold, e.g. that women of full age are incapa­
ble of managing their own affairs. More often it expresses con­
tempt for a formulation of a legal rule which would not occur
to the man in the street, but which is in some way imprecise, or
incomplete. For instance, Sabino et Cassio placet omnia iudicia
absolutoria esse1 cannot have been a phrase often voiced by the
ordinary Roman citizen. This ‘common’ saying must be one
which Gaius’ students or colleagues used. He is warning them
that it is not enough just to know the current maxim; you must
be able to explain in detail what it means.
Something of the social status of the jurists can be learned
from their use of vulgo (volgo) and vulgus (volgus). The former is
not used by gentlemen in the sense ‘commonly, by the common
people’ as opposed to ‘usually’. Before the Severan age,2 when
there were no gentlemen left, volgo (vulgo) is used in the sense of
‘commonly’ only by Gaius and, less frequently, Julian, who so
uses it four times.3 In addition, there are two instances in
Africanus which are really citations from Julian.4 Vulgus is used
1 Inst. 4 . 1 1 4 .
2 D. 4 3 . 1 6 . I . 2 5 is U l p i a n , n o t P r o c u l u s .
3 D. 9 . 2 . 5 1 p r . ; 1 7 . i . 3 2 ; 4 1 . 3 . 3 3 . 1 ; 4 1 . 5 . 2 . 1. I t m u s t b e a d m i t t e d t h a t it
is n o t e a s y t o e s t a b l i s h i n e v e r y c a s e w h e t h e r t h e r e is a n e l e m e n t o f s n o b b e r y i n th e
use o f volgo a n d volgus.
4 D. 2 8 . 2 . 1 4 . i ; 4 1 . 4 . 11.
T H E M IN D O F G A IU S 113

once by Gains1 and once by Pomponius.2 Gaius and Julian


emerge at the lower end of the social scale; but this did not
prevent Julian from reaching the consulship.
In this chapter I have made certain claims to originality on
Gaius’ behalf—originality in adapting to the law ideas derived
from philosophy. Other instances of originality could be given.
Thus the institutional scheme of division into personae, res, and
actiones is original and has been elegantly studied by M. Villey.3
It is hardly necessary to refute the objections of those who,
because they think such an insignificant man could not have
been original, invent prior sources, of which all trace and men­
tion has been lost, from which Gaius is supposed to have derived
his ideas. It is true that, for instance, the contrast of ‘natural’
and ‘civil’ is used, to a certain extent, by Iavolenus and Celsus.
But their use is not systematic; they do not attempt to make of
law, as Gaius does, a body of rules which can be derived from
and criticized in relation to fundamental principles.
A more serious objection is the idea that Gaius did not write
or at least did not publish the Res Cottidianae. Though there
may be a few post-classical glosses in that work, I see no reason
on linguistic grounds to accept the criticism.
Consider first the use of sources in Res Cottidianae.4 Cassius is
cited twice, Julian once, Nerva twice, Proculus thrice, Sabinus
twice, Trebatius once, plerique once, quidam once, veteres once.
There is nothing here which is not found in Gaius’ other works,
apart from the citation of Trebatius,5 and since Gaius cites
Labeo six times in the Institutes and twice in the Provincial Edict,
this is hardly a cause for suspicion.
In introducing questions of law in Res Cottidianae Gaius uses
quaeritur once,6 quaesitum est once,7 quaeri solet once,8 videamus
once,9 and causa dubitationis est once.10 All these are perfectly
normal except the phrase involving dubitatio. But Inst. 3. 184

1 D. 38. 10. i. 6. 2 D. 50. 16. 162. i.


3 Lepons d’histoire de la Philosophie du droit, ch.ix, xi. 4 See T ab. V.
5 D. 41. i . 5. i . 6 D. 41.i . 7. 11. Cf. D. 3. 3. 46. 3, &c.
7 D . 41. I. 5. I. Cf. D. 9. 2. 32 pr.
8 D. 19. 2. 2. i. Cf. Inst. 2. 90.
9 D. 18. 6. 2. i. Cf. A 21. i. 26, &c. 10 D. 41. 1 .5 . i i .
825155 I
114 T H E M I N D OF G A IU S

has recipit dubitationem, Book 8 ad l. lui. et Pap. has dubitationis est,1


and Book 1 de verb. obi. 1 has videtur dubitatio esse.2 I think we
must just accept that these rather strange phrases involving
dubitatio are characteristic of Gaius, at least in his later years.
The reasons adduced by Gaius in Res Cottidianae are : naturalis
aequitas once,3 naturalis ratio four times,4 aequitas (iniquum erat)
once,5 ratio four times,6 utilitas once,7 benignitas twice,8 con­
venientia twice.9 Ius gentium is mentioned four times and in one
text we have the phrase natura manifestum est.10 There is nothing
here out of harmony with the reasons adduced by Gaius in the
Institutes', even natura manifestum est11 is in the Provincial Edict.
Next we come to the words used in deciding points of law.
Here Gaius makes use of: absurdum videbatur once,12 certe once,13
dubium non est once,14manifestum est twice,15plus quam manifestum est
once,16plane thrice,17 recte four times,18sane twice,19palam est four
times,20 verum est once.21 It is hardly necessary to say that all
these are paralleled elsewhere in Gaius. Of the more moderate
phrases used we have constat once,22 acceptum est once,23 creditur
once,24 alia causa est once,25 aliud sane est once,26 intellegatur once,27
nonpotest intellegi once,28 intelleguntur thrice,29 idem iuris est twice,30
1 D. 23. 2. 46.
2 D. 46. I . 70. 2. Cf. D. 35. 2. 73. i (18 ad ed. prov.).
3 D. 41. I . 9. 3. Cf. D. 38. 8. 2 (16 ad ed. prov.) ; 40. 12. 9 (8 ed pr. urb.)
4 D. 41. i. i pr.; 41. 1. 3 pr. ; 41. 1. 7. 7; 44. 7. 1. 9; Cf. Inst. 1. 1,
5 D. 44. 7. 5 pr. Cf. Inst. 3. 40; 4. 75.
6 D. 41. I . 7. 5, 7, 13; 41. i. 9 pr. Cf. Inst. 2. 54, &c.
7 D. 44. 7. 5 pr. Cf. Inst. 3. 159, 160.
8 D. 17. I . 4; 44. 7. i. 13. Cf. Inst. 3. 160.
9 D. 41. I . 7. 13; 41. i. 9. 2. Cf. Inst. 2. 96.
10 D. 44. 7. I . 14. _ 11 D. 7. I . 45.
12 D. 22. I . 28. I . Cf. D. 38. 2. 7 (absurdum videtur).
13 D. 41. i. 7. 12. Cf. Inst. 2. 78. 14 D. 19. 2. 2. I . Cf. Inst. 4. 74.
15 D. 44. 7. i. 12, 14. Cf. D. 45. 3. 28. 4. 16 D. 44. 7. 5. 2. Cf. Inst. 4. 132.
17 D. 18. 6. 16; 41. I . 3. 1; 41. I . 7. 2. Cf. Inst. 2. 205.
18 D. 17. I . 4; 41. i. 7. 7 bis, i i . Cf. Inst. 4. 163.
19 D. 41.I . 7. 6; 44. 7. 5. i. Cf. Inst. 3. 194.
20 D. 41.I . 5. 6; 41. I . 7. 2; 44. 7. I . 9; 44. 7.5pr. Cf. Inst. 2. 78.
21 D. 18. 6. 2 pr. Cf. Inst. 3. 109. 22 D. 45. 1. 141. 3. Cf. Inst. 2. 17.
23 D. 44. 7. I . 13. Cf. D. 18. I . 53.
24 D. 41. I . 7. 3. Cf. Inst. 2. 30.
25 D. 41. I . 9. 8. Cf. D. 26. 7. 13. 2. 26 D. 41. i. 7. 6.
27 D. 41. I . 7. 13. 28 D. 44. 7. 5. 3. Cf. D. 2. 13. 10. 2.
29 D. 41.I . 5.2, 5; 44. 7. 5. I . Cf. Inst. I . 192; 2. 21.
30 D. 41.i. 7. 9; 44. 7. i. 9. Cf. Inst. 2. 139.
T H E M I N D OF G A IU S 115

dicitur once,1 regula comprobata est once,2 intellegi potest once,3


intellegitur once,4 intellegeris once,5 videntur once,6 videtur seven
times,7 placuit twice,8 placet once,9 non placuit once,10 abolita est
sententia once,11 verius est thrice,12 receptum est once,13 vix est ut id
optineat once.14 There is nothing here which calls for comment,
except that abolita est sententia is not found elsewhere in Gaius.
In Inst. 2. 51 we have sententia improbata est. The phrase vix est ut
id optineat is not exactly paralleled elsewhere, but Inst. 3. 184 has
non optinuit.
Gaius uses the first person to refer to himself in the phrases
diximus (once),15puto (once)16 dicimus (once),17 and videntur mihi
(once).18 All these are found elsewhere except videntur mihi, but
videntur19 is found and so is nobis videtur20 and mihi traditum est]21
there is nothing extraordinary about the phrase.
I conclude that any linguistic argument which seeks to show
that Gaius did not write the Res Cottidianae is devoid of substance.
It is true that the law as stated in Res Cottidianae is not always
the same as that stated in the Institutes. But this is accounted for
on the hypothesis that the Institutes are lectures, perhaps not
intended for publication, while the Res Cottidianae is a book
intended to be read by the public. Consequently the Socratic
technique which is appropriate in teaching is inappropriate
here. Questions must not be left open but decided. In each case
the decision follows naturally on the train of thought disclosed
in the Institutes. Gaius decides the controversy about specificatio,
taking a reasonable middle view.22 He extends the classification
1 D. 44. 7. I . 15. Cf. Inst. i. 114. 2 D. 41. 1. 5. 5.
3 D. 44. 7. 5 pr. Cf. Inst. 2. 181.
4 D. 7. 1 .3 pr. Cf. Inst. 3. 113.
5 D. 41. I . 9. I . Cf. Inst. I . 192 (intelleguntur).
6 D. 40. 4. 24. Cf. D. 29. 3. i i .
7 D. 40. 9. 10; 44. 7. 5. 3, 4 bis, 5, 6 bis. Cf. Inst. 1.64.
8 D. 41. I . 9. 2; 44. 7. 5 pr. Cf. Inst. 2. 91.
9 D. 19. 2. 2. I . Cf. Inst. I . 172. 10 D. 41. 1. 7. 11.
11 D. 41. 3. 38. 12 D. 41. 1.5 . 1; 41. I . 7. 7 bis. Cf. Inst. 3.193.
13 D. 44. 7. 5 pr. Cf. Inst. 3. 105. 14 D. 41. 1. 7. 5.
15 D. 41. I . 5. 3. Cf. D. 9. 4. 27. i . 16 D. 18. 6. 2. i . Cf. D. 39. 4. 13. 3.
17 D. 41. i. 9. 2. Cf. D. 20. 4. i i . 4; 45. i. 141. 2. 18 D. 41. i. 7. 7.
19 D. 12. 2. 31. 20 D. 46. I . 70. 2. 21 D. 40. 4. 57.
22 D. 41. I . 7. 7. Cf. Inst. 2. 79; recte : see above; existimantes: cf. Inst. 3. 184
{qui existimaverunt) and D. 7. 6. 1 pr. (U lp.-M arc.).
T H E M IN D O F G A IU S

of mandates beyond the two divisions mentioned in the Institutes ;1


and in so doing develops the train of thought suggested by the
case of the man who advises another to lend money to a third
person ;2 the reason given for the validity of this in the Institutes
is inadequate and Gaius sidesteps it by providing a better classi­
fication. He also introduces the new classifications of obliga­
tions which have been discussed earlier in the chapter. It has
been argued that they, too, constitute a natural development of
Gaius’ train of thought.
Finally, the substance and language of Res Cottidianae is too
good to be written by anyone but Gaius. Read the extracts
through in the Palingenesia; their Gaian lucidity and precision
will be obvious.3
1 D. 17. 1 .2 . Cf. Inst. 3. 155. Watson, The Contract of Mandate in Roman Law,
111-14.
2 Inst. 3. 156. In D. 17. 1. 4 (2 rer. coll.) Gaius favours the Proculian view as to
excess of authority in mandate, whereas in Inst. 3. 161 he seems to favour the
Sabinian.
3 In general the Res Cottidianae should be regarded as better evidence of the
mind of Gaius and textually more reliable than the Institutes. The latter if, as
seems likely, they were not published during Gaius’ lifetime, must contain editorial
glosses. The former, on the other hand, appears to have been carefully prepared
for publication.
VII

The Establishment
I put forward in this chapter some tentative ideas which may
well be wholly mistaken. They are based on the notion that in
three places in the Institutes Gaius1is exercising his irony at the
expense of the emperor, the government, and the establishment
lawyers. There is a good deal of evidence against this interpreta­
tion. Thus, in D. 38. 17. 9 Gaius speaks of Commodus as
sacratissimus princeps noster. There are four places2 in the Institutes
where, on some readings of the text, Gaius speaks of Hadrian or
Pius as divus s(aeratissimus) HadrianusjAntoninus (but in each case
the reading is disputed). It may be said, then, that Gaius’
attitude to the emperor was one of respect and even abasement.
Again, it may be argued that no one would allow himself even
the mildest irony at the emperor’s or government’s expense in
the second century a . d . T o some extent this objection is met if
Gaius did not intend the Institutes for publication.
There are also some a priori arguments on the other side. If
a republican tradition survived anywhere, it was surely among
the lawyers. What was the point of harping on Quintus Mucius
and the veteres, if not to show one’s admiration for the republican
virtues?
If this was true of lawyers in general, it was still truer of the
Cassii, from the conspirators against Julius Caesar onwards.
Gaius Cassius Longinus, founder of the law school, was at
loggerheads with both Caligula and Nero. That there was a
political tradition which, rightly or wrongly, connected the
Cassii with anti-imperial feeling is shown by a passage in Julius
Capitolinus’ which, as a piece of history, is no doubt a pure
invention:3
1 Inst. i . 5 , 7 ; 2 . 7 . C f . 3 . 32. 2 Inst. 1. 5 3 , 7 7 , 9 4 ; 2 . 2 8 5 .
3 Vita Avidii Cassii, ι. 4 . A f o u r th - c e n tu r y c o m p o s itio n .
T H E E S T A B L IS H M E N T
Hie ergo Cassius ex familia, ut diximus, Cassiorum, qui in C.
/«Hum conspiraverant, oderat tacite principatum nec ferre poterat
imperatorium nomen dicebatque esse eo gravius nomen imperii,
quod non posset e re publica tolli nisi per alterum imperatorem.
The author is writing of the mysterious revolt of the man who,
during his short-lived rule of the East in a . d . 175, was known as
the emperor Gaius Avidius Cassius. It was quickly repressed,
and Marcus took the opportunity of laying down that prosecu­
tions for maiestas could be begun after the death of the accused,
his memory condemned, and his property made forfeit to the
fiscus:1 so much for stoic philosophy.
Avidius was probably not related2 to the tyrannicide or the
founder of the law school, but this does not mean that all
memory of the earlier Cassii had disappeared in Syria and the
East before a .d . 175. Avidius himself and Gaius, who was teach­
ing at Berytus at the time, may each in his own way have been
aware of what the Cassian tradition was supposed to be. One
cannot assume that in the second century intellectual repub­
licanism was dead. Perhaps the sacratissimus princeps3 which
Gaius uses of Commodus is no more than a wise precaution,
designed to avert suspicion of sympathy with the furor Cassianus.
There is need for irony under a tyranny, even a benevolent
tyranny. Of the examples so far given of irony in Gaius, some
may be thought to depend on psychological inferences: the
shortening of his name, the use of nostri praeceptores, the list of
towns with the ius Italicum. But we have, besides these, clear
instances of pedagogic irony, discussed above.4 Gaius not
merely leaves open questions on which he really has a firm view,
but on occasion indicates that the Sabinians are wrong, while
apparently leaving the question undecided. So Gaius was
capable of being ironical.
The first possible example concerns constitutiones principum. In
Inst. I. 2, 5 we have:
1 C.J. 9. 8. 6 pr., 2.
2 He was perhaps a Cassius on his m other’s side; and his career serves to
demonstrate, once more, the existence of Cassii in the East in the second century.
3 D. 38. 17. 9.
4 Ch. I l l , p. 33; Ch. V I, p. n o .
T H E E S T A B L IS H M E N T 1 19

Constant autem iura populi Romani ex . . . constitutionibus


principum. . . .
Constitutio principis est quod imperator decreto vel edicto vel
epistula constituit, nec umquam dubitatum est, quin id legis vicem
optineat, cum ipse imperator per legem imperium accipiat.

Gaius’ general theory about the sources of law, apart from


edicts, is that law is derived from leges, things which are equated
to leges (plebiscita : legibus exaequata), and things which take the
place of leges (legis vicem optinet), viz. imperial constitutions,
senatus consulta, and responsa prudentium. The force of the latter is
attributed to a rescript of Hadrian. Of senatus consulta Gaius
says that there was a doubt about their force; but no doubt has
ever been raised about imperial constitutions.
The phrase nec umquam dubitatum est is a very strong one; it
does not occur elsewhere in Gaius, and in view of the large
number of points which he regards as open to question (quae­
situm est, dubitatur) it is surprising to find him saying of this
question alone that it has never been in doubt. Clearly the state­
ment is untrue. The status of imperial decisions could not fail
to have been discussed in the law schools, though by the time of
Gaius it was settled that they were binding.
Secondly, the reason given by Gaius for the legal validity of
imperial constitutions is inadequate: cum ipse imperator per le­
gem imperium accipiat. The fact that the emperor obtained his
authority from a lex does not mean that he obtained authority
to override lex; in fact, it suggests the opposite conclusion: that,
having derived his authority from lex, he must respect it. Gaius
is telling us, indirectly, that the proponents of imperial author­
ity could think up no better reason than this plainly fallacious
argument.
Against this, it may be argued that Gaius is not giving an
obviously inadequate reason. He is merely referring to the well-
known lex de imperio, which, it may be said, contained an express
grant of legislative powers. Unfortunately, we do not know the
contents of the lex de imperio, apart from a fragment of the lex
relating to Vespasian. The so-called ‘discretionary clause’ could
be construed as conferring by implication legislative powers on
TH E ESTABLISHM ENT

the emperor; but this is not expressly stated {agere facere ius
potestasque sit). On the other hand, such powers may have been
conferred in another portion of the lex which has not been
preserved. Yet it is curious that Gaius says nothing of the con­
tent of the lex : contrast the lex Hortensia, of which he does give
the gist.1
Thirdly, the expression legis vicem optinere is a curious one.
Compare the statement of Ulpian:12 quod principi placuit legis
habet vigorem. Ulpian’s Institutes, from which this comes, seem to
be based on those of Gaius. Yet here he changes Gaius’ wording
rather markedly : Justinian follows him.3
Legis vicem optinere is ambiguous. On the surface it means ‘to
have the place of law’, ‘to count as law’. Hence at first sight
Gaius is saying ‘imperial constitutions represent the law’. But
legis vicem optinere can also mean ‘to be a substitute for law’.
It is clear that Gaius could not truthfully say ‘imperial con­
stitutions are leges’. But he could say ‘they have the force of law’
for which the natural phrase is legis vigorem {vim) habent {optinent).
In contrast with these phrases, legis vicem optinet, while it cer­
tainly conveys that the constitutiones are binding, has rather the
sense of ‘takes the place of lex’, ‘is a substitute for lex’. Apart
from five uses of the phrase in Gaius’ Institutes, 4 it is found only
in Marcianus,5
Condiciones contra edicta imperatorum aut contra leges aut quae
legis vicem optinent scriptae . . . pro non scriptis habentur.
His classification of sources seems to correspond to that of
Gaius and may indeed be derived from Gaius.
Vicem legis is also found in Ulpian : vicem legis tenet vetustas.6
The same author uses vicem optinere1 {heredis, fructuum, rei iudi-
catae,) as does Scaevola {vicem instrumentorum optinere)8 but in
these cases the underlying idea is that, in default of the thing

1 Inst. I . 3.
2 D. I . 4. i pr. Pomponius {D. 1. 2. 2. 12) has pro lege servetur.
3 J . Inst. I . 2. 6. 4 Inst. 1. 4, 5, 7, 83; 4. 118.
5 D. 28. 7. 14. 6 D. 39. 3. i. 23: here lex = term of an agreement.
7 D. 1 8 . 4 . 2 . 1 8 ; 2 2 . I . 3 4 ; 4 4 . 5 . i p r .
8 D. 2 2 . 3. 2 9 p r.
T H E E S T A B L IS H M E N T 121

replaced, lex, instrumentum, res iudicata, one has recourse to the


thing replacing it. In other words, the replacement is a sub­
stitute for the thing replaced. Ulpian does not use vicem optinere
of imperial constitutions; he uses vim optinere1 or vigorem habere.2
I think it possible, therefore, though not perhaps probable,
that Gaius’ passage on imperial constitutions has a secondary
meaning somewhat as follows: ‘though it was at one time ques­
tioned, it is now settled that imperial constitutions have the
force of law. They are not, however, real law, leges, but a sub­
stitute for it, a second best.’ If so, Gaius’ attitude to imperial
constitutions was just that of many an English lawyer towards
statute law.
The second example concerns responsa prudentium. Inst, i . 7
reads :
responsa prudentium sunt sententiae et opiniones eorum quibus
permissum est iura condere, quorum omnium si in unum sententiae
concurrunt, id quod ita sentiunt, legis vicem optinet: si vero dis­
sentiunt, iudici licet quam vefit sententiam sequi. Idque rercripto
divi Hadriani significatur.
Before the time of Hadrian the authority of responsawould sim­
ply depend on the fact that they were given by lawyers author­
ized by the emperor to do so. Hence the weight to be attached
to them would depend on one’s views about the competence of
the emperor to legislate : they could at most count as a sort of
indirect imperial legislation, and so would not be binding unless
one took the view that any expression of the emperor’s wishes
had the force of law and that the grant of ius respondendi ex
auctoritate principis was a sort of delegation of legislative power.
Hadrian altered this by making the responsa technically binding
in certain circumstances.
Even though the responsa were binding for the particular case
in which they were given alone, the reform limited the freedom
of lawyers generally—at least of those who did not have ius
respondendi—to develop the law by interpretatio. Once again, we
notice the subtlety of Hadrian’s methods. On the surface nothing
more was done than to give some useful guidance to indices who
1 D. 47. 12. 3. 5. 2 D. i. 4. i pr.
THE ESTABLISHM ENT

might be in a difficulty if conflicting opinions were addressed to


them. In reality Hadrian secured control over the Roman bar.
In an important case no opinion would be asked of a lawyer
who lacked ius respondendi because his opinion would not be
binding on the trial judge; if his opinion differed from that of
some lawyer who had ius respondendi his opinion would be simply
disregarded. This discouraging state of affairs may have been
one reason for Gaius’ departure from Rome.1
I now return to the text of Gaius i. 7. There is no need to say
more of significatur and legis vicem·, some attention must, how­
ever, be given to the phrase iura condere. Now tura condere is
a strange phrase, found, among legal writers, only in Gaius.2
It recurs in Inst. 4. 30 in an uncomplimentary context :
sed istae omnes legis actiones paulatim in odium venerunt, namque
ex nimia subtilitate veterum qui tunc iura condiderunt eo res
perducta est . . . .
It seems to be formed on an analogy with testamentum condere,3
regnum condere,A &c. Still, it remains odd, since one has a very
nearly free choice as to the contents of a will, or as to where one
will found a civitas or regnum; and perhaps there is a satirical
element in the application of this metaphor to the activities of
lawyers who should be stating what the law is, not inventing
what they would like it to be. Condere legem should be translated
‘lay down the law’; and this phrase is a pejorative one, sugges­
tive of arrogance.
Though not found in legal literature outside Gaius, iura con­
dere occurs in some lay writers, notably Livy. In all three
passages in which it is found in his works5 he applies it to the
decemviri, who were actual legislators, people who, it was
thought, ad condenda nova iura usui fore.6
We know from other sources that Gaius’ view was that
juristic discussion did not conclude questions of law.7 Thus, on
the acquisition of possession per procuratorem Gaius says that it is
1 Ch. V, p. 82. 2 Not in V.I.R. apart from the above two texts.
3 C. 6. 23. 27 pr. * D. i. i. 5.
5 Hist. 3. 33. 5; 3. 34. i ; 34. 6. 8. 6 Ibid. 3. 33. 5.
7 Gaius cites responsa of named jurists only in Inst. 3. 179 ; D. 34. 5. 5 pr. ; 45.
3. 28. 4 ; 48. 5. 44.
THE ESTABLISHM ENT 123

open to question whether one can so acquire,1whereas Neratius,


writing fifty years earlier, says that it is pretty well agreed (fere
conveniat) that one can so acquire possession.2 By a.d. 196 the
acquisition of possession through libera persona generally seems
to have been accepted.3 Now it is generally said that Gaius is
out of date, using an old model, &c. But, even if this is true, the
question remains : why does he choose to be out of date ? Priscus
Neratius was consul and head of the Proculian law school
jointly with Celsus filius under Hadrian.4 Presumably he had ius
respondendi', three books of his responsa are known.5Just as the re­
sponsa of lawyers with ius respondendi would tend, before Hadrian’s
reform, to take on the binding force, such as it was, which
attached to the emperor’s enactments, so the extra-judicial
writings of those lawyers who had ius respondendi would tend,
after Hadrian’s reform, to acquire much the same authority as
responsa. If their extra-judicial opinion was so-and-so, then that
is what they would probably ‘respond’ if the case were to come
up and, therefore, that was probably the law.
But Gaius is not to be pitchforked into admitting that the law
has been changed in this way; he treats the question as if it were
still open—which technically it was. Another example comes
from acceptilatioP Gaius 3. 172 treats it as an open question
whether a partial acceptilatio is valid. Pomponius 26 ad Sab.,
which belongs to the reign of Pius,7 says that a partial acceptilatio
is valid even where the subject of the stipulation is not money
but a slave. This represents a more advanced state of the law
than partial acceptilatio in the case of money, which is naturally
the case that would be dealt with first. Gaius is revising his work
after Pomponius has written, yet he does not state his view. It
may be said that Gaius did not have Pomponius ad Sabinum
available to him, but I am dubious of this. He had Julian’s
Digesta, and if he does not cite Pomponius more than once in all
1 Inst. 2. QPi and on this Watson. ‘Acquisition of possession per extraneampersonam ’ .
Tijd. X X IX (1961), 27.
2 D. 41. 3. 41. 3 C. 7 . 32. I , on which see Watson, op. cit., p. 8 .
4 D. I. 2. 2. 53. 5 Lenel, Pal. Neratius, 72-101.
6 O n which see Watson, ‘The Form and N ature of acceptilatio in classical Rom an
la w ’, RIDA, V III (1961), 391, 400.
7 Ch. IV, p. 56. D. 46. 4. 10.
T H E E S T A B L IS H M E N T

the texts that have survived,1it is probably because he does not


choose to do so.2
Lastly, there is the question of Gaius’ references to the owner­
ship of provincial soil. If Gaius was teaching in the provinces
from the beginning of the reign of Pius onwards, he would
naturally be much concerned with this question. We have two
texts on it. In Inst. 2. 7 we have:
Sed in provinciali solo placet plerisque solum religiosum non fieri,
quia in eo solo dominium populi Romani est vel Caesaris, nos autem
possessionem tantum vel usumfructum habere videmur, utique
tamen, etiamsi non sit religiosum, pro religioso habetur.
The question is whether one can make provincial land
religiosus by burying a corpse in it, and Gaius’ conclusion is that
one can, though the theory advanced by plerique presents an
apparent obstacle to this conclusion, since if one does not own
the land one cannot presumably dedicate it in this way.
Professor A. H. M. Jones has convincingly demolished the
theory that provincial land was owned by the Roman people or
by the emperor.3 But Gaius is not saying that it is: he is saying
that there is a majority opinion to the effect that provincial land
cannot be made religiosus, on the ground that it is state owned.
If Gaius says there was such an opinion, I think we should
accept that there was: this is just the sort of thing that establish­
ment lawyers like Julian and Maecianus would say. But Gaius
does not endorse it; he allows the creation of locus religiosus
despite the existence of the theory. He does not say ‘we have
only a usufruct or possession of provincial land’ ; he says ‘we are
only regarded as having a usufruct, &c.’, viz. by the plerique who
have advanced this theory. It is true that Gaius does not put
the state ownership theory into the subjunctive; he says quia
dominium populi Romani est vel Caesaris not quia dominium populi
Romani sit, but this is explicable.4 For one thing, he would not
1 Inst. 2. 218.
2 If, as is likely, Pomponius did not have ius respondendi, this illustrates Gaius’
attitude to juristic discussion as a whole rather than his attitude to lawyers who
possessed ius respondendi.
3 J R S xxxi (1941), pp. 26-31. Studies in Roman Government and Law, 141.
4 For Proculian arguments presented in the indicative but not endorsed by
T H E E S T A B L IS H M E N T 25
venture to challenge the official opinion directly; for another, it
would be impossible to deny that the state had a sort of eminent
domain—a right to tax and expropriate—over the provincial
land.
Notice further that this is one of the small number of passages
in Gaius in which nos is not impersonal. It here means ‘we
ordinary individuals’ as opposed to the government. This
should in itself put us on our guard.
In Inst. 2. 21 we have the following:
In eadem causa sunt provincialia praedia, quorum alia stipen­
diaria, alia tributaria vocamus, stipendiaria sunt ea quae in his
provinciis sunt, quae propriae populi Romani esse intelleguntur;
tributaria sunt ea quae in his provinciis sunt quae propriae Caesaris
esse creduntur.
The context is a discussion of modes of transfer; provincial
land counts as res nec mancipi for this purpose. This ought in
itself to show that Gaius thinks it can be owned—if it could not
be owned it could not be transferred. As if to underline the
point, Gaius says not that the land belongs to the Roman people
or to Caesar but that it is understood to belong to the Roman
people and believed to belong to Caesar respectively. Finally the
reference to stipendiaria and tributaria makes it abundantly clear,
if it was not so already, that this is a question of public tax law,
not of private law.
I must end by admitting that the evidence for an ironical
interpretation of these three passages in the Institutes is insuffi­
cient. Still, it cannot be completely ruled out.
Gaius see Inst. 2. 15 (dormita sunt . . . non possunt . . . pervenerint . . . solent),
2. 79 (possunt), 2. 244 (habemus . . . possumus), 3. 87 (interest), 4. 78 (non
possum).
Vili

Gaius in History
W h eGaius’ contemporaries heard of his activities in the
t h e r

East we do not know. At any rate, either his works were not
available to them, or they chose not to mention them; the
former seems more likely.
We leave Gaius, then, in 180 or later, writing a one-book
commentary on the SC Orfitianum at Berytus. Fifty years later or
less we read in St. Gregory Thaumaturgus1 of Berytus as a cen­
tre of legal studies to which he followed his own law tutor.
St. Gregory remarks that he could equally well have gone to
Rome to study law. It is impossible to show a direct connexion
between Gaius and the law school of Berytus, but if a tradition
connected him with it, this would partly account for Justinian’s
use of Gaius noster : the founder of our most famous law school.2
Justinian thought highly of the law school of Berytus : Bery­
tensium pulcherrima civitas, quam et legum nutricem bene quis appellet.’3
It would be no surprise if his admiration for Berytus and for
Gaius were interconnected.
The publication of voi. xvii of the Oxyrhyncus Papyri showed
that Gaius’ works soon came to circulate in Egypt;4 a manu­
script of part of the Institutes is there attributed to the middle of
the third century a .d . Whether his other works circulated in
the provinces is less certain; P. Nessenam Inv. No. 11, which
contains lines reproduced in the new Pal., 11. Supplementum
p. 5, has a line (verso 35) which is probably a Greek translation
of an extract from Gaius book 1o ad edictum provinciale, dealing
with locatio conductio ;s it reads :
1 Panegyric, ad Originem V.
2 But if there
had been textual evidence of this, Justinian would have cited it.
3 Const. Omnem, 7. Cf. ibid. 9, 10.
4 Hunt, Pap. Oxy. xvii. 175; Levy, 48 JSS (1928) 532: 'Neue Juristenfragmente aus
Oxyrynchos’.
5 I am indebted to M r. J . D. P. Bolton for his assistance in connexion with this
li ne.
G A IU S IN H I S T O R Y 12 7

] -y ο μισθωσαμςνος γαϊος evi [ · ] .υ τ


i.e. . . . conductor. Gaius in X eiusdem.
But this probably comes from the sixth century. That Gaius’
works circulated elsewhere than in the East is shown by the fact
that he is cited in the Collatio and by the use of Epitome Gai by the
Visigoths. On the other hand, he is ignored by Ulpian, Paul,
Modestinus, and their successors, and it is difficult to attribute
this to ignorance of his works.1
However that may be, Gaius is in a true sense the architect of
Justinian’s codification. First, he is the teacher of the empire.
He reaped the reward which comes to those who write simply.
His works were known in the provinces of both East and West.
Without a simple writer to whom to turn as a guide, Roman
law might well have been swamped or corrupted in the East,
after the extension of the citizenship to all free citizens of the
empire in a.d. 2 i i, as it was in the West. It was Gaius more than
anyone who kept it alive. His Institutes formed at least part of
the first-year course in the law schools before Justinian’s reforms.2
in his autem sex libris Gaii nostri institutiones et libri singulares
quattuor, primus de illa vetere re uxoria, secundus de tutelis, et
tertius nec non quartus testamentis et legatis connumerabantur.
Probably the whole course consisted of extracts from Gaius.
The latter, in his commentary on the provincial edict, devoted
one book (xi) to res uxoria, one (xii) to tutela, and two (xvii and
xviii) to testamenta and legata. On the other hand Paul takes four
books for res uxoria and tutela (xxxv to xxxviii) ; so does Ulpian
(xxxiii to xxxvi). For testamenta and legata Paul takes just over
three books (xlv to beginning ofxlviii) and Ulpian just over two
(1 to beginning of lii). If, then, the libri singulares came from the
edictal commentaries, as seems likely, they came from Gaius
rather than Paul, Ulpian, or Pomponius. The whole first-year
course would be devoted to his works, and this would be the
first introduction to the law of Justinian’s commissioners and
compilers, and of generations before them.3
1 For the numerous texts in which plagiarism of Gaius by Ulpian and Paul is
suspected see Fitting, op. cit. 52-53. 2 Const. Omnem, 1.
3 Also the second-year course, according to Mommsen, Gesammelte Schriften, ii.
2 5 . η · 35·
128 G A IU S IN H I S T O R Y

One’s introduction to the law is apt to leave a lasting impres­


sion. From Gaius students will have derived two main ideas.
The first is the importance of the study of legal history and the
respect due to the past. The Institutes contain a great deal of
obsolete material; one can understand Justinian’s complaints1
that the books were confused (presented, not written, in a con­
fused way), and contained little of practical value. For instance,
the whole of book iv of Gaius’ Institutes, dealing with actions,
was obsolete by the sixth century. On the other hand, the
student would become used to an historical approach. When
Justinian comes to propose a vast rescue operation in the field
of legal history, a disinterring of the past genius of Rome, this
will not seem to minds trained from the beginning by Gaius the
absurd and useless proposal that it would to minds trained in
a purely analytical tradition. Just as Gaius combines an admira­
tion for the veteres with a dislike of technicality, so Justinian and
his compilers have an ambivalent attitude to past controversies.
They like to preserve, even if only to understand; and hence it
is that the Digest itself contains a great deal that is only of
historical interest, such as the title De Origine Iuris et Omnium
Magistratuum et Successione Prudentium, and perhaps also, De
Diversis Regulis luris Antiqui. Much that is preserved in the texts
does not advance the reader’s knowledge of the law: it is amus­
ing, but not necessary, to know that Iuventius Celsus replied
to an inquirer (who, as it happened, 'was called Labeo) : non
intellego quid sit, de quo me consulueris, aut valide stulta est consultatio
tua,2 or that Julian had been told by his teacher Iavolenus that
he manumitted his own slaves with his rod of office when he was
in Africa and Syria.3 To the compilers the past 'was interesting
for its own sake, and this attitude they could not have derived
from Ulpian or Julian or Papinian but only from Gaius noster.
The second lesson the student will have absorbed from read­
ing his Gaius is that legal controversies are to be presented in
the form of a dispute between different writers. Sometimes
Justinian loses patience with the Sabinianorum et Proculianorum
ambiguitates, but, over a wide field, he is content to reproduce in
1 Const. Omnem, i. 2 D. 28. 1. 27. 3 D. 40. 2. 5.
G A IU S IN H I S T O R Y 129

the Digest differing opinions even when he finally decides the


question by imperial exactment. On the one hand, he wants
every question to be settled. On the other hand, his legal back­
ground has led him not to suppress divergent opinions, because
it is by argument and counter-argument that law makes pro­
gress. From this point of view, there is something paradoxical
about Justinian’s whole project; it seems to require the accep­
tance of a static conception of law which is really at variance
with respect for antiquity and for free discussion.
It was only a generation trained by Gaius that could have
conceived the project of codification in the form in which
Justinian did so : not really a codification at all, but the gather­
ing of a vast repository in which, somewhere, the solution to
every legal problem was to be found (this hope has proved to be
in a large measure justified). By Gaius noster, then, the Byzantines
mean in the first place ‘our teacher Gaius’.
The noster is, I think, not merely descriptive but also sym­
pathetic and appreciative. It is not that Gaius and Justinian
were Greeks ; far from it. They were in spirit profoundly Roman.
But they were, both of them, exiles from Rome. Whether
Justinian knew that Gaius had not received the appreciation in
his lifetime that was his due, it is difficult to say. Certainly the
wording of the law of citations seems to show that Theodosius II
was aware that Gaius had not hitherto enjoyed the same official
status as Ulpian and the rest:1
Papiniani, Pauli, Gaii, Ulpiani, atque Modestini scripta universa
firmamus ita ut Gaium quae Paulum, Ulpianum, et ceteros comitetur
auctoritas, lectionesque ab omni eius corpore recitentur.
If Justinian appreciated this, he wished to atone by his use
of the phrase Gaius noster for any neglect his imperial predeces­
sors and the establishment lawyers had shown towards Gaius
and his works. In the end the tables were turned. The diffident
Gaius, without office or rank, rescued them all from oblivion :
the elegant Pomponius,2 the subtle Julian,3 Celsus the arrogant;4
1 C. Th. i. 4. 3. 3 D. 4 1 . 2. 10. I.
3 e .g . th e d o c tr in e o f th e p e n d e n c y o f o w n e rs h ip : D. 7 . 1 . 7 0 . 1.
+ D. 2 8 . I. 2 7 .

825155 K
130 G A IU S IN H I S T O R Y

Papinian, Paul, and Ulpian, pillars of the empire; Proculus,


Sabinus, and the stalwarts of the rival schools; Cassius Longinus
his namesake. All owe their presence in the pages of the Digest
to the peripatetic professor who taught Byzantium to love the
law and, through her, taught Europe too.
AD TABULAS LAUDATORIAS
PRAEFATIO

T abulae quae sequuntur, ut aiunt laudatoriae, ad scholarium


usum, veluti Lenelii Palingenesiae appendices, proferuntur;
in quibus laudationes a iuris consultis scriptoribus qui im­
perantibus Traiano Hadriano Antonino Pio floruerunt factas
ordinare et exhibere conatus sum. Laudationes intellegendae
sunt non tantum eae in quibus alios iuris peritos sive nomine
sive sine nomine laudet auctor sed etiam eae in quibus de
imperatoribus litigantibus privatis mentionem habeat. In non­
nullis fragmentis an re vera lateat laudatio in incerto est. Quod
cum mihi decidendum esset, Lenelii parsimoniam magis quam
Fittingii prodigentiam secutus dictam laudationem reicere et
inter dubias ad finem tabulae collocare antiquius habebam.
Solas personas in his tabulis positas esse, leges edicta senatus
consulta exclusa animadvertendum est; etenim haec in notis
quae tabulas sequuntur sunt indicata.
Ita compositae sunt tabulae, ut a latere sinistro ordinata sint
alphabetice aut nomina eorum quos laudaverit auctor aut, si
desit nomen, descriptiones veluti ‘plerique’, ‘principes’. Ubi
dubium erat quem ‘principem’ aut ‘Priscum’ designare vellet
auctor, illum plerumque eligebam qui verisimilius indicari
videbatur, adhibita tamen descriptione ab auctore usurpata.
Summa in tabula inveniuntur simili modo exposita verba ab
auctore in laudando usurpata, ut ‘ait’, ‘existimat’, ‘rescripto’,
‘visum est’ et similia aut, si deest verbum, ‘nullum verbum’.
Impossibile erat secundum tempora laudationes ordinare cum
non omnibus laudationibus adsignari posset tempus; neque stu­
diosis difficile erit adhibitis tabulis secundum diversa tempora
eas digerere.
Dextro a latere inveniuntur loci ubi unusquisque a iuris
consulto scriptore laudatus est secundum numerationem palin-
geneticam indicati. Nonnumquam evenit ut in uno fragmento
palingenetico inveniantur duo vel plura fragmenta a Digestis
excerpta; quae hoc modo laudavi: 125/1, 125/2 et cetera, posi­
to primo fragmenti palingenetici numero, deinde a Digestis
excerpti. Cum autem inter cuiusque fragmenti a Digestis ex­
cerpti paragraphas saepius distingui oporteat, paragraphae
numerus plerumque alios numeros sequitur, ut: 125/1/5, id est,
fragmentum palingeneticum centesimum vicesimum quintum,
fragmentum a Digestis excerptum primum, paragrapha huius
fragmenti quinta.
Tabulae ad finem laudationes monstratae sunt dubiae, item
duplae, multiplices; quo promptius coniunctiones auctorum
fontesque ab eis usurpati pateant. Cuique auctori adsignatur
index laudatorius, qui ita computatur, ut numerus laudationum
iuris consultorum nomine factarum numero columnarum quae
ab auctoris fragmentis superstitibus in recensione Lenelii
occupatae sint divisus sit. Quot autem actiones laudato adtri-
butae sunt, tot laudationes in numerando intellegendae sunt. Si
ita scriptum est, exempli gratia, apud Pomponium : Labeo negat
et p u ta t. . .’, intellegitur Pomponius Labeonem bis laudasse.
Sequuntur notae per quas praecipue exhibetur quomodo
iuris quaestiones exponat discutiat decidat scriptor; quarum
partes singulas quatenus potui alphabetice ordinavi. In prima
parte exponuntur verba quibus quaestiones iuris introducit
auctor veluti ‘quaeritur’, ‘dubitatur’; in secunda rationes (ex­
cepta absurditate) quas in quaestionibus decidendis adhibet;
in tertia, verba emphatica ab auctore in decidendo usurpata,
ita autem ut sola verba ad iuris regulas pertinentia inclusae
sint, ut ‘recte negat Labeo’, ‘recte talis existimandus est’, non
autem ‘recte peti potest’. In quarta parte exposita sunt verba
minus emphatica ad eundem finem usurpata. Illa verba quae
non auctori sed iuris consulto ab eo laudato adtribuenda sunt
praetermisi; qua de re cum saepius dubitetur, orationem
per modum indicativum auctori, per subiunctivum laudato
adsignavi. Dictas interpolationes ab ipsis iuris consultorum
verbis distinguere non conatus sum; idem et de glossematibus
dicendum est. Licet igitur cuique studioso verba quae sibi non
placeant reicere.
Continent praeterea notae locorum indicationem quibus
A D T A B U L A S L A U D A T O R IA S P R A E F A T IO 133
leges senatus consulta decreta nomine laudaverit, vocabula
Graeca usurpaverit, urbium provinciarumque mentionem fece­
rit iuris consultus. Quod ad leges senatus consulta decretaque
attinet, laudationes sine nomine factas praetermisi. Index Lati­
nitatis cuique auctori ita assignatur ut numerus columnarum
numero verborum Graecorum ab eo usurpatorum divisus sit.
Explicata sunt postremo fragmenta in quibus prima persona
usus est auctor, scilicet cum de se ipso vel de suis locutus est, non
autem de quocumque litigante. Neque illlud abnuerim notarum
tabularumque utilitatem potuisse augeri plurimis modis adhi­
benda exempli gratia' apud quamque laudationem indicatione
an laudati opinionem probet auctor; sed plus valent tabulae
imperfectae quam nullae. Etenim monet nos illud philosophi:
in quavis re excogitanda si non ultimum at certe primum esse
passum verborum studium. Item et in iuris Romani studiis
tabulis inniti, quamvis parum sit patrando, incohando tamen
operi et melius est et tutius.
TABULA LAUDATORIA I
Sextus Caecilius Africanus
Col. Pal. 3 4 + Frag. 130

Q u ib u s a d d e n d ae su n t: alio m odo la u d a n tu r 3. A trid a e (128) A vidius (48/15)


H o m eru s (H o m ericum 128).
Laudatio dubia·. 1. Iu lian u s (1). Sed vide p rim a m notam .
Laudatio dupla·, nulla.

NOTAE
1. L au d a tio n u m 22 in his fragm entis re p e rta ru m a d iuris consultos R om anos
n o m in e lau d ato s sp ectant 14, ad auctores sine no m in e lau d ato s 5. Sed d u b ita n d u m
non est q u in in co m pluribus fragm entis A fricani, u b i scrip tu m est ‘re sp o n d it’,
‘ex istim av it’, et sim ilia, su b au d iri d eb e at ‘Iu lia n u s’. Q uas laudationes subaudiendas
in ter v erb a a b A fricano in quaestionibus decidendis u sitata inserui, orationes et
sententias au tem , quas prodidisse Iu lian u s in tellegendum est, ipso Iu lian o a d trib u i
et in notis ad eum p ertin e n tib u s com m em oravi (T ab. V I I infra).
In d e x lau d ato riu s A fricano assignatur 0-41.
2. V o cab u la G raeca u ndecim u su rp a t in his fragm entis a u c to r (52 p r., 128).
In d e x L a tin ita tis au cto ri assignatur 3-09.
3. T em p u s praesens in his lau d atio n ib u s u su rp a t au c to r novies, perfectum
q u a te r, im p erfectu m in d icativ u m ter, im perfectum subiunctivum semel.
4. In quaestionibus ponendis u su rp a t a u cto r v erb a : evidentius a p p a re b it (io 1/1)
m agis hoc a p p a re b it (68) q u o d c o n stitu tu m est (30) consulebat (scii, consulens: 93)
co n su leb atu r (scii. Iu lia n u s: 28/1, 2, 85) consultus (1, 75, 87 p r., 113/1) q u id
ergo dicem us (52/1) q u id dicem us (106 p r.) q u o d volgo d icitu r (25/1/1) d u b ita tu m
est (3 3 /1) no n im m erito d u b ita b a tu r (56 p r.) n o n im m erito d u b ita b itu r (76)
(« 35 )
T a b u l a L a u d a t o r i a I (cont.)
potest d u b ita ri (75) sim plicius quaerem us (100/35/1) q u ae ri solet (25/1 pr.)
q u a e re b a tu r (7, 63/2, 115/1) q u a e ritu r (11, 22, 37/2/1, 52 p r., 82/5, 110/9) quaesi­
tu m est (13/2, 24/2/5, 42/1, 48/2, 51 p r., i, 53, 70, 71, 77, 88 p r., 89/3, 92 p r., 103,
107 p r., 113/1, 117/1, 118/18, 121 p r., 1) q u o d volgo tra d itu m est (73) illud
tra c ta n d u m est (24/2/2) videam us (41/1) v id en d u m (24/2/5). ,
R atio n es a d h ib e t a u c to r: ae q u ita te m (in iq u u m ex istim ab itu r 52/1) arg u m en tu m
rei (82/3) b en ig n itatem (92 pr.) co m p arab ilita te m (non recte co m p a ra b u n ­
tu r m / ι ) con seq u en tiam (consequens esse p u to 99; consequens v id e tu r esse 110
p r.; nec consequens est 21/3; illu d consequens e rit 41; consequens esse existim o
46; consequens e rit 48/1, 110/8) con trad ictio n em (q u id q u id constituem us verum
esse falsum re p e rie tu r 52 pr.) co n v en ien tiam (54/1; convenit 100/35; secundum
q u o d 52/3, cf. 95/1) necessitatem (58) p ro b a b ilita te m (33/1) ra tio n e m (90/1, 111/1,
116, 123; ra tio n i no n co n g ru it 52/1; q u a ra tio n e 110/8; vix ra tio p a tie tu r 48/10)
u tilita te m (54 p r., 72/1) testatoris v o lu n tatem (52 p r., 1).
V e rb a em p h a tic a u su rp a t a u c to r: a b su rd u m est (41) certe est ab su rd u m (89/2)
a p p a re t (89/3) ce rtu m est (18) certe (110/8) nullo m odo dici conveniet non d u b i­
ta n d u m (97/1) n u lla d u b ita tio erit (24/2/3) d u b ita n d u m non e rit (48/7) procul
d u b io ( 13 / 1, 37/2/1, 66, 71, 82/3, 119 p r.) m in im e d u b ita n d u m (10) m inim e
d u b ita n d u m est (48/8) sine du b io (48/10) d u b ita n d u m non e rit (48/7) non du b ie
(92/1) m u lto m inus d u b ita n d u m (48/8) m inim e p u to d u b ita n d u m erit (101/1)
(81/3) m u lto m agis (48/5, 71) m anifestum erit (61/1) m anifestum est (52/3) nullo
m odo p ro b a n d u m est (81/3) non recte ( m / ι ) neque recte (16) recte (21 p r. bis,
23, 100/35/1) nullo m o d o re cip ien d u m est (48/1) sane (75) v eru m est (109) verum
est cu m eo tam en (99) h acten u s v eru m e rit (100/33) tu n c v erum est cum (21 pr.)
m inim e v eru m est (52/3, 89/3).
I n controversiis decidendis v erb a m inus em p h atica u su rp a t au c to r: constat
(21 p r., 37/2/1, 107/1) id em e co n trario (116) convenit (101 p r.) non sine ra tio n e
d icetu r ( m / ι ) aeq u e d icen d u m est (82/3) non aeque d ic itu r (110/8) rectius
d icetu r (35) dicem us (78/43) rectius d ic itu r (41/1, 75) verius d icitu r (48/2) idem
d icen d u m (75, 110/2) d ic e tu r (21 p r., m / ι ) d ic itu r (21 p r., 52 pr.) non potest
vere dici ( n / i ) aeq u e d icen d u m (114) d icen d u m (9/1, 72/1, 95/1) non ineleganter
d ic e tu r ( n / i ) h aec d icen d a (24/2/5) eadem d icen d a (113/1) eadem d icen d a sunt
(65) ead em d icen d a e ru n t ( i i / ι ) id em erit d icen d u m (27/1) d iceretu r (21 pr.)
non ae q u e dici p o test ( 111 /1 ) non aeq u e id em dici potest (85) pro b ab iliu s d iceretu r
(3 3 /1) efficiet u t (90/1) id em e rit (82/1) id em iuris erit (48/5) eadem e ru n t (121/2)
id em est (67 p r.) rectius ex istim atu r (19) aliter existim andum est (110/7) existi­
m a b itu r (52/1) h a b e n d u m e rit (99) in telleg itu r (12 bis, 29 p r. bis, 40, 74) in tel­
legendus est (68) in tellegendum est (110/35 pr.) intellegi non potest (5 1/1 ) quid
in terest (110/35 P r ·) m ax im e (95/3) m agis est u t (21 p r., 24/2/2, 52 p r. 67 pr.)
m u lto m agis si (71) nec nos m overe d eb e t (90/1) o b servandum (34 pr.) prope
e rit (81/3) p ro p e est (24/2/4) m agis p lacet (21/3, 48/4), p lace t (25 p r., 33 p r.,
n o p r.) p la c u it (48/15) recep tu m est (72/1, 85, 92 p r.) nihil refert (86) potest
id em resp o n d eri (85) sta tu e n d u m (52/3, 110/9) ea res tem p eran d a erit (52/1)
v id e tu r (34 p r., 48/10, 79 p r., n o p r., 115/1) n o n potest videri (57 pr.) non
v id e a n tu r (11) no n possunt videri (85).
5. In Iu lia n o sub silentio la u d a n d o u su rp a t A fricanus v erb a: ait (9/2, 13/1,
2 4 /2 /5 ,2 5 /1 ,3 2 ,3 7 /1 ,4 2 /2 ,4 8 /3 , 9, 54 p r., 61 p r., 63 p r., 1, 64, 71, 72 p r., 1, 2, 73,
79 p r., 81/5, 82 p r., 2, 88/2, 89 p r., 2, 92/1 bis, 95/1, 97 p r., 102/1/3, 109, n o
p r., i, i n p r., 112 p r., 113/2, 116) a ie b a t (110/8) d iceb a t (24/1/2) existim avit
(24/2/5, 30, 42 p r., 48/3, 12, 60/1, 79/1, 87/2, 89 p r., 90 p r., 104, 110/9, i n p r.,
1 15 p r., 121/3) in q u it (88/1, 100/33, I I 6 ) n eg av it (24/2 p r., 31, 51/1, 60 p r.,
102/2) n o ta t (110/35/1 bis) p la c e b a t (48/4, 85, 87/3, 89/2) p u ta b a t (87/1) n o n
(136)
T a b u l a L a u d a t o r i a I ( cont. )

p u ta b a t (97/1) p u ta t (29/1, 118/18) p u ta v it (25/1 p r., 34 p r., 1, 6g, 82/2, 118/16)


resp o n d it (7, 8/1, 12, 13/2, 14, 24/1 p r., 24/2/5, 28/1, 2, 37/2 p r., 42/1, 51 pr.
63/2, 72/3, 75 bis, 76, 77, 81/2, 82/4, 5, 87 p r., 88 p r., 89/1, 92 p r., 93, 95/3,
103, 107 p r., 113/1 bis, 114, 115/1 bis, 117/1, 121 p r., 1, 122).
In su m m a sciendum est A fricanum v erb u m ‘a it’ tricies nonies, ‘a ie b a t’ semel,
‘d ic e b a t’ semel, ‘existim avit’ quindecies, ‘in q u it’ ter, ‘n eg a v it’ quinquies, ‘n o ta t’
bis, ‘p la c e b a t’ q u ater, ‘p u ta t’ bis, ‘p u ta v it’ sexies, ‘p u ta b a t’ semel, ‘n o n p u ta b a t’
sem el, ‘re sp o n d it’ q u ad rag ies in Iu lian o sub silentio la u d a n d o usurpasse.
6. P rim am p erso n am u su rp a t a u c to r u t seq u itu r: ego co n ten d o (a consule te
dictu m ) (37/2/1) dixi (52 p r.) existim o (45, 46, 54/1) ego existim abam (55) p u to
(16, 24/2/3, 56/2, 67 p r., 99, 100/33, 100/35/L IOI/ L i i 0/7)_ m agis p u to (55,
81/3) p u tem defendi posse (55) respondi (quod v erb u m verisim ile est n o n n u n -
q u a m Iu lian o a d trib u e n d u m esse: 29 p r., 48/2, 53, 70, 103).
7. L oca in his fragm entis la u d a t A fricanus: Asia (58, 63/2, 70) C ap ito liu m
(48/3) C ap u a (16 quinquies) Ita lia (78/43) R o m a (78/43 bis, 85).
8. L egem A eliam S entiam la u d a t a u c to r sem el (20 p r.) C orneliam sem el
(21 p r.) F alcidiam decies (14, 48/5 bis, 52 p r. ter, 2, 3, 56/2, 125) SC T reb el-
lian u m sem el (82 p r.) edictum C a rb o n ian u m sem el (37/2/1).
T A B U L A L A U D A T O R I A II
TABULA LA U D A TO R IA II
Iuventius Celsus filius
Col. P al. 43 + F rag. 279

A c tio n e s

|
1a lio m o d o l a u d a t u r

1r a t i o e t a u c to r ita s
1n u llu m v e r b u m

1o b s e r v a r i s o le t

s c r ip tu m e s t
1r e s c r ip s e r a t
e x is tim a v it
d is p lic e b a t

1v id e b a tu r
1c o n s titu it

1r e s p o n d it
r e s c r ip s it
1e x is tim a t

1s e n te n tia
1a d t r i b u it

[re f e r e b a t

sig n ific a t
1e x p o s u it

[ u te b a tu r
1d ix e r u n t

1p la c e b a t

1S u m m a
te m p ta t
1q u a e r i t
1c e n s u it

1p la c u it
d ic e r e t

f a te tu r

1p la c e t
1in q u it

1n e g a t

1n o t a t

1p u t a t
F r a g m e n ta
P e rso n a e '5 P a lin g e n e tic a
S e x tu s A e liu s 1 1 79/1
B r u tu s 1 1 76
/ C aesar . 1 1 2 47
( C a e s a r n o s te r 1 1 242
C a e c iliu s . 1 1 215
C a s s iu s 1 1 164 /2 0
C a to 1 1 2 7 4 /1
C e ls u s p a t e r 1 1 1 3 4 4 /7 , 158, 251
D ru su s 1 1 79/1
L abeo 4 1 1 1 1 1 1 10 10 b is , 43/1 b is ,
6 2 /3 , 76, 1 1 6 /2
b is, 1 2 6 /1 , 168
Q u in tu s M u c iu s
S c a e v o la 1 1 1 1 1 5
68 p r . b is, 7 5 , 7 6 ,
274/1
N e ra tiu s . 1 1 2 199, 2 47
N erv a 1 1 2 8 0 , 91
P r o c u lu s . 3 1 1 1 1 1 1 1 1 11 10, 1 8 /2 /1 , 7 9 /2
b is , 9 1 , 1 2 7 /2 ,
1 5 7 ,1 5 8 ,1 6 0 /2 ,
169, 2 6 0
q u id a m 1 1 1 3 1, 127 p r . , 264/1
q u i e x is tim a r e n t 1 1 2 77
S a b in u s . 1 1 1 1 1 1 1 7 12, 31 b is , 7 6 ,
149, 1 6 4 /1 2 0 ,
199
S e rv iu s 1 1 1 1 4 9 3, 137, 1 6 8 /2 b is
T r e b a tiu s 1 1 126/1
T u b e ro 2 2 1 1 1 1 1 1 10 6 2 /1 /4 , 1, 6 2 /2 /
6 , 116, 1 6 8 /1 ,
1 6 8 /2 te r , 2 69
b is
M a r c u s T u lliu s 1 1 208

Sum m a 1 11 7 1 2 1 1 2 5 2 1 1 1 2 1 2 1 2 2 1 4 1 1 1 1 2 3 1 3 1 1 1 1 68
(139)
T a b u l a L a u d a t o r i a I I {coni.)
Q u ib u s a d d e n d ae su n t: alio m odo la u d a n tu r 13. A urelius Q pietus (67) C ornelius
Felix (70 p r.) D o m itiu s L abeo (113 bis) D ucenus V erus (251 p r.) F irm us (79/2)
F lavius R espectus (13) O talicius C atu lu s (251 p r.) P lo tian a (178 bis) Pom peius
M ag n u s (1) R eb ellian u s (180) Sextus (201).
Laudationes dubiae: 9. Cassius 1 (206) Iu lian u s 1 (177) P lautius ,1 (150) P roculus 1
(122/3) R u tiliu s i (155) S abinus 2 (122/13, 152) Servius 1 (123/1) V ivianus
i (18/1/1).
Laudationes duplae: 2. Sextus Aelius, D rusus 1 (79/1) ; S abinus et Cassius 1 (164/20).
Laudatio tripla: 1. M u ciu s B rutus L abeo 1 (76).

NOTAE
1. L a u d a tio n u m 81 in his fragm entis re p e rta ru m ad iurisconsultos R om anos
no m in e lau d ato s sp ectan t 61, ad im peratores R o m an o s 2, ad auctores sine nom ine
lau d ato s 4. In d e x lau d ato riu s au c to ri assignatur 1. 42.
2. V o c ab u la G raeca in his fragm entis in v en iu n tu r sex (fr. 56, 168/2) necnon
d u b ie la u d a tu m sep tim um (fr. 8). In d e x L atin itatis au cto ri assignatur 7-17.
3. U s u rp a t Celsus in his lau d atio n ib u s tem pus praesens tricies semel, perfectum
sedecies, im p erfectu m in d icativ u m sexies, sub iu n ctiv u m semel, plus q u a m p e r­
fectum semel.
4. I n quaestio n ib u s ponendis u su rp a t Celsus v e rb a : plusculum d u b itatio n is ea
res h a b e t (3 2 /ia ) fingam us (25) finge (22 ter, 73) q u aero (a consulente d ictu m 178)
q u a e re b a tu r (183) q u a e ritu r (5, 55, 90) q u aesitum est (252) tra c ta b itu r (237/1)
videam us (127/6) v id en d u m (106/5).
R atio n es a d h ib e t a u c to r: a e q u ita te m (occurrit aequitas rei 90; n atu ra lis
ae q u ita s 4 4 ; aeq u iu s esse existim o 97; aequius v id etu r 135; b o n u m et aeq u u m 42)
a u c to rita te m (168/2) b en ig n itatem (benignius tam en d icetu r 233) favorem (nec
infavorabilis sen ten tia est 90) ius civile (incivile est 86) ratio n em (suptili ratio n e
2 33; qu o u sq u e ra tio p a titu r 92; m ag n o p ere m e T u b ero n is et ra tio et auctoritas
m ovet 168/2).
Celso p la c e n t v erb a em p h atica, velu ti: ab su rd u m est (18/1/11) nihil aliu d est
q u am (18/2/2, 24) q u id aliu d sunt q u a m (30) certe (3 2 /ib ) n o n est d u b iu m (112,
264 p r.) e rra n t (277) falsa est (250 pr.) falsum est (62/2) recte (199) illud rid i­
culu m est dicere (195/1) plus q u a m rid icu lu m est d u b ita re (113) qu id tam
rid icu lu m est q u a m (106/2) to tu m et in e p tu m et vitiosum est (127/1) v eru m est
(5, 31, 75, 127/2, 160/1) n o n erit v eru m (228) q u id enim m inus verum est (23).
V e rb a m in u s em p h atica u su rp a t a u c to r in quaestionibus decidendis: d icetu r
(233) ex istim andus sum (195/3) nem o existim andus est (168/2) existim andus est
(62/3) facti no n iuris est quaestio (11) in tellegendum est (267) m agis est (171/1)
n im iru m (135, 169) nec m iru m est (168/1) n im iru m facti est quaestio (169) nec
m u ltu m refert (32/1 a) n o n o p tin et (194) p a rv i refert (100/3) pro p iu s est (42)
n o n n e p ro p iu s est (79/2) non ab su rd e responsum est (211/1) v id etu r (26) p rim a
fronte v id e tu r (135) n o n v id eb itu r (54).
5. P rim a m p erso n am u su rp a t a u c to r u t seq u itu r: a p a tre accepi (158) a rb itro r
(273 p r.) n o n a rb itro r (168/2) constituim us vero (22) non tam en a . . . dissentio
(168/2) nec d u b ita v e rim (106/2) m ih i d u b iu m n o n v id etu r (106/5) existim o (124,
143 p r., 180/1, 181) aequius esse existim o (97) existim o n o n ab su rd e posse defendi
(90) ego existim o (53) nec m e fallit (3 2 /id ) n o n intellego qu id sit, d e quo m e
consuleris, a u t valide stu lta est consultatio tu a ( 113 : quod ioci causa Digestis
insinuasse com pilatores m ih i v id en tu r, scilicet q u ia a p p e lla tu r consulens Labeo)
in te rp re ta m u r (265) m ag n o p ere m e m ovet (168/2) m iro r a nem ine anim adversum
(76) p ro cliv io r sum (73) p u to (68/1) falsum p u to (137) respondi (67, 180/1)
( i 4 o)
T a b u l a L a u d a t o r i a I I (coni.)
resp o n d it ( = respondi 32/1, 92, 97, 252) subsisto (42) m ihi verissim um v id etu r
(91) nec video q uid absurde consecuturum sit eam sen ten tiam (3 2 /ib ) m ihi
iustissim a v id etu r esse sententia (79/1).
6. L oca in his fragm entis la u d a ta inveni: A frica (A fricum fru m e n tu m 266/1)
Asia (127/6) C ap ito lium (127/5 ter, 268 bis) G raviscae (G raviscani 252) Pontus
(Pontici i bis) R av en n a (67) P h ilip p i (Philippenses 180/1 bis, 2) R o m a (215)
viam A ureliam (252 bis).
7. L egem A eliam S entiam la u d a t a u c to r sem el (240) A q u iliam tredecies (253/6
bis, 7, 255, 256, 258/1 ter, 260, 261/14, 15, 262 bis) F alcid iam quinquies (55 bis,
133, 140, 183) P ap iam sem el (243) X I I ta b u la ru m ter (258/1 ter) regulam
C ato n ian am semel (250 p r.).
T A B U L A L A U D A T O R I A III
TABULA LA U D A TO RIA I II
Gai Libri ad Edicta
Gol. Pai. 5 5 + F rag. 381

A c tio n e s

a lio m o d o l a u d a n tu r

1v id e tu r r e s p o n d is s e
1s c r ip tu m in v e n io
n u llu m v e r b u m

p l a c e t/p la c e a t
1c o n s titu tio n e s

1e x is tim a t/a n t
d ecrev eru n t

1in d u lg e n tia

1n o n p u t a t

u te b a n t u r
1p u t a t / a n t

s e n te n tia
1r e s c r ip to
1d ix e r u n t

Sum m a
1e p is tu la

p la c u it

p ro b a t

1s c rib it
in q u it

s e n s it

s e n tit
negat
P erso n ae ’5 F r a g m e n ta P a lin g e n e tic a

/ A n t o n i n u s ( P iu s ) im p . 1 1 2 56 p r ., 258
( i m p e r a t o r n o s te r . 1 1 21
C a e liu s S a b in u s 1 1 381
C a s s iu s 1 1 1 1 1 1 6 56 p r ., 2 ; 130, 2 05, 2 3 0 /1 , 2 3 8 /3 /5
D o m i t i a n u s im p . 1 1 45
F u lc in iu s 1 1 3 27 p r.
H a d ria n u s 1 1 199
I u lia n u s 8 1 1 1 4 3 1 2 1 1 1 1 25 6 2 /1 /2 , 6 2 /2 /1 , 116, 145, 1 4 7 /1 , 162, 2 0 1 /1 ,
3 b is , 2 2 3 /p r ., 3, 4 , 5, 6 , 7 b is , 8 , 2 2 7 ,
2 7 9 /1 , 2 9 3 /1 b is , 3 1 2 /3 b is , 363 b is
L abeo . 2 2 172, 183
n o s tr i p r a e c e p to r e s 1 1 2 371 b is
O filiu s . I 1 5 6 /2
P egasus I 1 5 6 /2
p le r iq u e 3 1 1 5 5 4 , 114, 2 9 3 /4 , 3 37, 371
p r in c ip e s 1 1 377
P r o c u lu s 1 1 2 56 p r ., 2
q u id a m 3 1 4 174 p r ., 2 08 p r ., 2 3 8 /1 /2 , 340
M a s s u r iu s S a b in u s 1 1 1 1 1 1 6 56 p r ., 129, 130, 2 3 0 /1 , 2 3 8 /3 /5 , 364
S e rv iu s . 1 1 174 p r.
v e te r e s . 1 1 2 8 p r ., 46

Sum m a . 10 1 1 1 2 1 3 1 1 2 5 1 13 4 1 8 2 2 1 I 1 1 1 1 65
(i43)
T a b u l a L a u d a t o r i a I I I (cont.)

Laudatio dubia·, nu lla.


Laudationes duplae·. 5. Cassius et Pegasus 1 (56/2) Ofilius e t Proculus 1 (56/2)
S abinus et Cassius 3 (130, 230/1, 238/3/5).
Laudationes triplae: 1. S abinus Cassius Proculus 1 (56 p r.).

NOTAE
1. L a u d a tio n u m 65 in his fragm entis re p e rta ru m ad iuris consultos R om anos
nom in e lau d ato s sp ectan t 46, ad im peratores 6, ad auctores sine nom ine laudatos
13. In d e x lau d ato riu s au c to ri assignatur 0-84.
2. V o c ab u la G raeca in his fragm entis in v en iu n tu r 4 (174/2, 245/6, 352 p r.).
In d e x L a tin ita tis au c to ri assignatur 13-75.
3. T em p u s praesens u su rp a t G aius in his lau d atio n ib u s quadragies octies,
perfectu m octies, im p erfectu m semel.
4. I n quaestionibus ponendis u su rp a t a u c to r v erb a: an im ad v e rten d u m e rit
(238/4) q u o d d icitu r (25) licet vulgo d icatu r (44/2) dispiciam us (38/2) m ag n a
d u b ita tio fu it (318/1) sequens d u b ita tio est (297, cf. 38/2,93) qu id ergo est (112/2/5)
sive q u ae ram u s (320) q u a e ritu r (29, 84/3, 183/2, 201/3, 238/3/5, 237/1, 241, 371)
q u aesitu m est (62/2/1, 187 p r., 297) trac tab im u s (238/3/6) videam us (28, 59/3,
146/1, 384, 388/1) videbim us (44/2, 238/1/4) v id en d u m (171 p r., 276/3) vid en d u m
est (62 /2 /p r., 208 p r.).
R atio n es a d h ib e t a u c to r: a e q u ita te m (nec in iq u u m est 305; n o n est in iq u u m
317 p r .; nec v id etu r in iq u u m 185/3; ae q u u m est 88, 225; est in iq u u m 223/8;
in iq u u m est 223/8, 291, 304, 384; in iq u u m e ra t 206; aequissim um est 213 ; n atu ralis
aeq u itas 295) b en ig n itatem (benignius hoc perseq u en d u m est 37) b o n am fidem
(198, 316) cap tio n em (304) co m m o d itatem ( 151 ) consequentiam (consequens
est 3 8/2; consequens est dici 372; sequitur u t 62/1/2, 187 p r.) convenientiam (102,
192, 293/1) iu stitiam (iustum est 88; iustum videri 383) ius civile (62, 315,
346 p r., 356) h o n o rem m atrim o n ii (51) n a tu ra m (n a tu ra m anifestum est 165;
n a tu ra lis ra tio 168/1, 181, 184 p r., 208/2; n a tu ra lia iu ra 107; n a tu ra le ius 356;
cf. n a tu ra lite r 334) ra tio n e m (107, 200/2/2, 310, 359; civilis ra tio n a tu ra lia iu ra
co rru m p ere n o n potest 107; nec enim n atu ra lis ra tio a u c to rita te senatus com ­
m u ta ri p o tu it 16 8 /1 ; scripti iuris ra tio 9; ra tio sim iliter in terv en it 187 p r.)
sim ilitu d in em (317/2) u tilita te m (366; quo b o n u m est 229/2).
In controversiis decidendis u su rp a t G aius v erb a e m p h atica : ab su rd u m est (90,
279 p r.) ab su rd u m v id etu r (273, 289) a p p a re t (105 p r., 112/2/4, 133/ 1> 267/1,
270, 272/3, 299/4, 3 °9 /2) satis a p p a re t (200/2/1, 272/1) certu m est (43 p r., 1 ,4 4 /2 ,
234, 318/4) certe (43/1, 133/1, 201 p r., 245/2, 278, 325) d u b iu m non est ( 161,
312 p r.) n em o d u b ita t (41) cum non d u b ite tu r (10) d u b ita ri n o n o p o rtet (11/16,
6 2 /2 /p r.) n u lla d u b ita tio est (245/2) sine d u b io (249/2/1) hodie n o n d u b ita tu r
(52, 6 2 /2 /p r.) n o n d u b ita tu r (182, 360) sina u lla d u b ita tio n e (208 p r., 268) non
d u b ita ri o p o rtet (119/1) n u llam h a b e t d u b itatio n e m (104 p r.) longe m agis non
d u b ita tu r (223 p r.) n o n ita est (59/3) ra tio m anifesta est (302/1) m anifestum est
(146 p r., 159/1, 165, 302 p r.) plus q u a m m anifestum est (247) m erito (187 p r.)
p a la m est (296/1, 309/2, 318/4) iuris p a la m est (318/4) p lan e (190, 204, 277,
371) recte (31, 58, 112/2/5, 183/2,352/1 bis) sane (55, 56/2, 65/1, 135, 238/2)
verissim um est (238/3/7) v eru m est (62/1/2, 95 p r., 130, 229/1) ita v eru m est si
(3 3 7 )· . , 0
V e rb a m in u s e m p h atica u su rp a t a u c to r u t seq u itu r: accipiem us (208 pr.)
plenius ac cep tu m est (367) accipere debem us (25) adm o n en d i sum us (12/1,
133 p r., 197, 200/1/2, 200/2/2, 377) nec eadem causa est (266/2) colligere possu­
m us (237/1) p o test co n iectu ra cap i (157) constat (19/1, 22, 223/1, 238/1, 279/1)
( i4 4 )

T a b u l a L I I I (cont.)
a u d a t o r i a

sem per constitit (265) constare v id e tu r (238/3/7) co nstitutum est (52) sed no n
co n tra (62/1/1) cred itu r (233) cred itu m est (301/1) actionem d ab im u s (276/4)
d icim u r (123 bis) dicem us (14/2 bis, 38/1, 42, 94, 109, 208/4) id em erit dicen d u m
(370) d icen d u m est (225, 383, 388/1) d ic e tu r (31) p ro b e d icetu r (146/1) dici
potest (90, 133 pr.) d icitu r (78, 112/2/3, 5, 114, 152, 185/1/1, 230 p r.) nih il aliu d
d ici potest (363) n o n p ro p rie dici potest (324/1) d ic u n tu r (323) dicim us (352/1)
p ro b ab iliu s d ic itu r (312/1) v id em u r d icere (352/1) rectius d ic itu r (38 pr.) volgo
d icitu r (44/2) aliu d dici potest (238/1/2) eadem e ru n t (238/3/6) idem est (15 p r.,
232/2, 331, 376) aliud est (266/2) m agis est (44/2, 62/2/2) m agis in usu est (318/2)
eveniet u t (59/3) nefas existim atur (249/2/1) h a b e n tu r (125) ra tu m h a b e n d u m
est (266/2) ita ius h ab e t (283/1) idem iuris est (103, 185/1, 3, 205, 238/3/5, 312/1)
hoc iu re u tim u r (318/1) ig n o ran d u m n o n est (263/2) intellegor (249/2/1) in te l­
legem us (156/1, 169, 200/2/2, 245/2, 7, 380 pr.) intellegenda su n t (156 p r.) in tel­
legendum est (96, 239, 318/4, 371, 387) intellegi non potest (59/2) in telleg im u r
(3^9) intellegim us (50, 105/1, 3, 201/2) intellegitur (26 p r., 40, 59/2, 64, 81/1,
84/2, 112/2/2, 144, 159/2, 166, 177, 185/1 p r., 2 2 3 /8 ,2 3 8 /3 ,2 5 4 ,3 4 4 /1 /3 ,3 4 7 ,
374) d eb en t intellegi (119/1) in telleg u n tu r (107) nec in terest (279 p r.) eandem
in terp re tatio n e m ad h ib ere debem us (337) plenius in te rp re ta n d a est (253) in u tile
est (62/2) q u id m iru m (44/2) nec m overi quem deb et (272/1) observandum
(187 p r.) observari o p o rtet (105/1) observari solent (261) observari d e b e t (211 pr.)
p raecip u e o bservandum est (279/2) nec ad rem p e rtin e t (285 p r., 288/1, 304, 320)
placet (27, 83, 143) p lacu it (16/5, 26/1, 44/2, 223/3, 250/2, 297 bis, 301/1) m agis
placet (84/3) m agis p lacu it (47/1, 196/1) ulterius pro ced en d u m no n est (105/1)
recep tu m est (16 pr. 366) responsum est (241, 272/1) sciendum est (262/1) scire
debem us (263/1) sententia probabilis est (56/2) sen ten tia potest vera videri
(238/1/2) ea serv antur (238/3/5) tem p e ra n d a res erit (105/1) ead em tra c ta ri
possunt (44 p r.) vulgo tra d itu m est (180) longe u tile est (62/1) verius est (93,
208/2, 237/1) n ihil v etat (160/2) visum est (206) constare v id e tu r (325) nec in iq u u m
v id etu r (185/3) conveniens v id etu r (293/1) v id em u r dicere (352) v id em u r (354)
v id e n tu r locum h ab e re (377) v id e n tu r eo p ertin e re (380 p r.) m agis visum est
(187 p r.) n o n v id etu r (49/1, 245 p r., 290) n o n potest videri (75) v id e n tu r (48,
261, 373) n o n v id eb atu r (206) v id etu r (29, 34, 98, 113, 155, 159/2, 185/3, 196/1,
201/4, 226, 238, 293/1/2, 316, 321/1, 374, 385, 388 p r.).
5. P rim am personam u su rp a t G aius u t seq u itu r: dicim us (64) dixim us (11/16,
119/1, 133/1, 176 p r., 208 p r., 2, 367) lo q u im u r (219, 238/2 pr.) m iro r q u a re
constare v id eatu r (325) m ovet m e (371) p u to (276/3) n o n p u to (228) scriptum
invenio (208 pr.) p roxim e tractavim us (238/3/6).
6. L oca in fragm entis la u d a ta in v e n iu n tu r: A frica (A fricum tritic u m 202) Asia
(10) C am p an ia (C am p an u m vinum 202) Ita lia (terra Italica 299/3) R o m a 87 p r.,
T u scu lu m (T usculanus fundus 19 p r., 202).
7. Legem A eliam S entiam la u d a t G aius semel (267/1) A q u iliam quinquies
(43 p r., 183 p r., 208/1, 245/5, 271) C orneliam semel (309 p r.) F a b ia m sem el (342)
F alcid iam decies q u a te r (26 p r., 27 bis, 28 pr. bis, 100, 156/1, 293/4, 318/2, 319
bis, 321 p r., i, 2) Iu lia m sem el (253) X I I ta b u la ru m octies (82, 139, 184/1,
189 pr. 245/5, 263 ΡΓ·> 272/2, 358) SC T re b ellia n u m sem el (267/4).
( 145 )
T abula L audatoria IV (cont.)
Q u ib u s a d d e n d a e su n t : alio m odo la u d a n tu r 11. A g rippina ( i . 62) A nnaeus
Seneca (2. 253) H o m erus (3. 141) L argus (3. 63) L upus (3. 63) M axim us (1. 136)
Pusio (1. 31, 2. 254) P ublius R u tiliu s (4. 35) T rebellius M axim us (2. 253) T u b ero
( i . 136).
Laudationes dubiae: 2. q u id a m 1 (1. 3 2 ); S abinus 1 (4. 170).
Laudationes duplae·. 8. Iu lian u s et Sextus 1 (2. 218); L abeo et Proculus 1 (2. 231);
S abinus et Cassius 6 (2. 79, 244; 3. 133, 161; 4. 114, 170?); Servius Sulpicius et
M asu riu s S abinus 1 (3. 183).
Laudationes triplae: 5. N erv a et P roculus ceterique illius scholae auctores 1 (2. 195) ;
N e rv a et P roculus et ceteri diversae scholae auctores 1 (2. 15); Sabinus et
Cassius ceteriq u e n ostri praeceptores 2 (1. 196; 2. 195); S abinus et Cassius
ceteriq u e n o strae scholae auctores 1 (4. 79).

NOTAE
1. L au d a tio n u m 239 in hoc opere re p e rta ru m ad iuris consultos R om anos
no m in e lau d ato s sp ectan t 63, ad im peratores 45, ad auctores sine nom ine laudatos
120. In d e x lau d ato riu s au cto ri assignatur ο ·6 ι.
2. In palim psesto V eronesi non in v e n iu n tu r vocabula G raeca excepto un o
(1. 64) sed in 3. 93 in serunt editores decem a T h eo p h ilo su p p ed itata necnon in
3. 141 v ig in ti d u o ab In stitu tio n ib u s Iu stinianis tran slata. Q uibus verbis G aio
ad trib u tis in d ex L atin itatis auctori assignatur 3-15.
3. T em p u s praesens u su rp a t au c to r in his com m entariis nonagies ter, perfectum
septuagies sem el, im p erfectum ter.
4. In quaestionibus ponendis u su rp a t G aius v erb a: sequitur u t adm oneam us
(2. 40) opus est u t diligentius adm oneam us (4. 69) hactenus adm onuisse sufficit
(2. 97) inferius a p p a re b it (1. n 8 a ; 2. 197; 3. 183) suo loco ap p a re b it (2. 37)
q u a e vulgo cre d itu r (1. 190) quod vulgo d ic itu r (2. 49, 61, 70, 95) dispiciam us
(1. 12, 51, 125, 143; 2. 86, 99, 100; 3. 55; 4. 114, 115, 138, 161) dissensio intervenit
(2. 215) d u b ita ri potest (1. 129) illu d d u b ita ri potest (3. 95) m ag n am recipit
d u b ita tio n e m (3. 184) d u b ita tu r (2. 63) q u id ergo est? (2. 125, 151a, 212)
exponam us (1. 116) incipiam us (4. 161) u t m anifestum fiat (4. 10) q u o d pars
iuris u t m anifestior fiat (3. 56) q u o d p la c u it (1. 89) si q uaeram us (1. 188; 2. 114;
3. 71, 120) q u am v is fuerit quaesitu m (1. 4 ; 2. 236) quaesitum est (1. 74; 3. 16,
103, 172, 198, 208) q u a e ritu r (2. 79, 82, 94, 95, 200, 212, 244; 3. 71 bis, 87, 96,
119, 122, 143, 144, 146, 147, 156, 167a, 16854. 78» χ25) qu aeri solet (2 .9 0 ; 3. 145)
quaestio est (1. 106) valde q u a e ritu r (3. 122, 141; 4. 20) m erito q u a e ritu r (3. 133)
m a g n a q u aestio fu it (3. 149) q u aeren tib u s p o te rit esse quaestio (2. 234) sive
q u ae ram u s (3. 71) referem us (2. 97) requirentes q u id iuris sit (3. 96) re q u iren d u m
est (2. 116) req u irem u s (2. 114) diligentius requirem us (4. 60) sciam us (2. 88)
tetigisse satis est (3. 54) tra c ta ri p o terit (2. 191) suo loco trad em u s (2. 184)
tran seam u s (1. 142; 2. 246; 3. 88?, 182) videam us (1. 8, 50, 124, 142; 2. 1, 97,
120, 191, 247; 3. 39, 77, 89, 179; 4, 88» χ3ο) videbim us (2. 121; 3. 116, 202).
R atio n es a d h ib e t au c to r: aeq u ita te m (aeq u u m visum est 4. 89; e ra t in iq u u m
4. 75; in iq u itas 1. 84; 3. 41, 73; iuris in iq u itas 3. 25; aequissim um esse visum
est 4. 71; a e q u u m v id e b a tu r 3. 7; in iq u u m e ra t 3. 40; in iq u u m est 4. 116,
n 6 a , 126; est in iq u u m 4. 133; in iq u e 4. 126, 127, 128) ap titu d in e m (2. 172)
b en ig n ita te m (3. 109) co m m oditatem (com m odius est 1. 134; com m odius e ra t 2.
146; com m odius ius 4. 31) co nsentaneitatem (consentaneum visum est 3. 170)
co n seq u en tiam (consequens est 1. 82; 2. 78; consequenter 3. 179) convenientiam
2 55135 L
(146 )
T abula L audatoria I V (coni.)
(convenienter 2. 87; 3. 37; conveniens videtur 4. 63; conveniens esse visum est
3. 8 ; conveniens est 2. 96) diligentiam om issam (p aru m diligenter ea pars legis
scrip ta est 3. 47) elegantiam (1 .8 4 ; 3. 100) b onam fidem (4. 63) ius civile (2. 197)
civile ius (2. 65) civilia iu ra (1. 158) ius n a tu ra le (1. 156; 2. 65, 73) n a tu ra lia iu ra
(1. 158) ius g en tium (1. 1, 52, 78 bis, 80, 82, 83, 84, 85, 86; 3. 93, 154) iustitiam
(4. 126, 128) levitatem anim i (1. 144, 190) n a tu ra m (3. 194 bis) ratio n em
(n atu ralis ra tio 1. 1, 89, 189; 2. 66, 69, 79; 3. 154; v id etu r n u lla ra tio n e factum
4. 24; pretiosa ra tio 1. 190; vix id o n ea ra tio re d d itu r 2. 78; nec ra tio p a titu r 1.
128; ra tio civilis 2. n o ; stricta iuris ra tio 3. 160; ra tio 1. 123, 128; 2. 54, 55,
77, 124, 125, 137, 230; 3. 7, 10, 37, 79; 4. 71, 179) securitatem (longe tutius est
2. 18 1) suptilitatem (3. 94) u tilita te m (3. 109, 160).
In controversiis decidendis u su rp a t au cto r verba e m p h a tic a : erit sane a b su r­
d u m (1 .4 5 ) m u lto m agis accidit (2. 74) a p p a re t (1. 175, 188; 2. 65, 95, 151; 3. 48)
satis a p p a re t (3. 68; 4. 54) certu m est (2. 121 ; 3. 150, 167) certe (2. 78, 180; 4. 60)
est certissim a iuris regula (4. 112) nullo m odo dici possunt (3. 67) d u b ita re n o n d e ­
bem us (4. 60) nec u lla d u b ita tio est (4. 153) sine d ubio (2. 94; 4. 74) d u b iu m non
est (4. 74) n on d u b ita tu r (2. 288; 3. 146) sententia a p e rte falsa est (3. 64) m a n i­
festum est (1. 18 1 ; 2. 28, 48; 3. 216?) plus q u am m anifestum est (1. 87; 4. 132)
ra tio m anifesta est (1. 123) p a la m est (2. 78, 122; 3. 105; 4. 55, 181; p a la m est
intellegere 3. 18) p lan e (2. 205, 218; 3. 151 ; 4. 4) nih il possum us q u a e re re (2.
237) recte (3. 131 ; 4. 70, 163, 182) recte fit (1. 53) rid icu la est (3. 193) sane (1.
61, 77> !34> !79> 192; 2. 60, 104, 121, 146, 177, 197, 265; 3. 96, 98, 100, 183,
194, 197, 212; 4. 74a, 134) supervacuum est (3. 17) verum est (3. 109).
V e rb a u su rp a t m inus em p h atica : a d p ro b a tu r (3.184) ad v ertere debem us (2. 114)
sufficit adm onuisse (1. 188) hoc adm onuisse sufficit (3. 33a) ad m o n en d i sum us
(1. 141; 2. 27, 80, 206; 3. 56, 163; 4. 82, n o , 136, 169) a n im ad v e rtere possum us
(1. 52) an im ad v ertere debem us (1. 83) alia causa est (3. 131 ; 4. 64) a lia causa fuit
(4. 108) in eadem causa est (2. 238) in eadem causa sunt (4. 105) colligim us (1. 74)
co m p ro b ata v id etu r (2. 117) non est co m p ro b a ta (2. 117) im p ro b atae su n t (2. 117)
illud constare v id etu r (3. 69) constat (2. 17, 199, 200, 245; 3. 149, 157, 204) non
constat (3. 178) co n stitu u n tu r (1. 123) co nstitutum est (1. 70; 2. 287) n eque
co n stitu itu r (1. 88) idem contingit (2. 75) convenit (3. 147) c red itu r (2. 30, 105)
c re d u n tu r (2. 11, 21) hoc est quod volgo d icitu r (4. 104, 114, 153) hoc est quod
d ic itu r (4. 58) d icitu r (1. 114 bis, 140; 2. 38; 3. 93, 94, 132, 153, 186, 187, 198;
4. 105, 169) d ic u n tu r (1. 59; 2. 146, 152, 157; 4. 105) dicim us (3. 12, 136, 154a)
dicam us (1. 24) id em dici non debet (1. 171 ) m agis d ic itu r (2. 78) no n est tem ere
d ic tu m (2. 33) dicem us (1. 16, 54, 129, 146; 3. 131 ) possunt dici (2. 146) est illa
d ifferen tia (2. 205) illa differentia est (4. 66) m ag n a d ifferentia est (2. 172) effectum
v id e b a tu r (3. 73) adeo haec ita sunt (3. 156) haec adeo ita sunt (1. 58) hoc ita est
(2. 193) ex istim atur (2. 5) existim antur (2. 157) h a b e n tu r (2. 1, 137, 149a, 161 ;
3. 51) h a b e tu r (3. 65) habem us (1. 175) hoc aliter se h a b e t (2. 50) ne illu d quidem
interest (3. 119) nec interest (1. 89, 136; 2. 144) potest intellegi (2. 181) in telle­
g u n tu r (1. 192; 2. 21; 4. 124) intellegitur (1. 54, 149; 2. 64, 67, 190, 229, 241;
3. 15, 113, 16 1, 166, 185, 2 1 1, 222; 4. 73, 101, 131, 160) intellegim us (2. 220; 4.
15, 33) non difficiliter intellegi potest (3. 219) non in telleg u n tu r (1.64) intellegem us
(1· i5> 24> 32a, 45, 50, 72, 142; 2. 107, 124, 183, 233; 3. 6, 45, ι ο ί , i η ; 4. 135,
155) intellegere possum us (1. 122, 126) non intellegitur (1. 54; 2. 40, 241) non
in telleg eb atu r (2. 40) intellegere debem us (2. 32) intellegere poterim us (3. 96) non
potest intellegi (3. 100) quod iuris est (3. 51) non idem iuris est (3. 176) id em iuris
est (1. 67, 68, 118; 2. 119, 139, 238, 283; 3. 20, 28, 37, 86, 108, 212; 4. 109) ita
iuris est (2. 213) non idem iuris est (3. 176) hoc iure u te b a m u r (2. 126?) alio iure
u tim u r (2. 154; 3. 179, 224; 4. 163) hoc m agis iu re u ti videm ur (2. 195) hoc
( 147 )
T abula L audatoria I V (cont.)
n u n c iu re u tim u r (2. 227) hoc iu re u tim u r ( i. 80) u tim u r hoc iu re (1. 135)
ob serv an d a est (3. 124) observandum est (2. 118, 126, 261; 4. 123) o b servantur
(3· 57, I J 4) n on eo p e rtin e t u t (2. 49) ad re m non p e rtin e t (2. 16) p lace t (1.
172; 2. 92; 3. 166; 4. 116) p lace b at (3. 8) aliud p lacu it (3. 14) p lacu it ( i. 115b,
J47l 2 · 9 1, 9 2, J9Ö bis; 3. 16, 158, 197, 200, 201, 218) m agis p lacu it (1. 101;
3. 114, 145, 146, 197, 200, 201) p ro b a tu r (2. 92) non v id etu r p ro b a ri (3. 184)
co n tra p ro b a tu r (2. 78) m agis p ro b a n t (3. 184) provisum est (2. 134) talem
h ab em u s re g u la m tra d ita m (2. 68) nec re q u iritu r (3. 10) nihil requirim us (1.
139) responsum (3. 198; 4. 11) in sum m a sciendum est (1. 47; 2. 96; 3. 162,
208; 4. 183) sciendum est (2. 248) im p ro b a ta est sententia (2. 51) sententia
non o p tin u it (3. 184) sequim ur (3. 156) significantur (4. 185) significatur
(3. 64; 4. 150) sim ile est (3. 160) m agis speciosa v id etu r q u a m vera (1. 190)
sp e c ta tu r (2. 144) su pervacua v id etu r (1. 78) supervacuum est tra c ta re (3. 17)
transferem us (3. 206) v id e tu r (1. 64, 80, 168; 2. 37, 44, 67, 70, 104, 117, 127,
140, 191, 212, 235, 238 bis; 3. 34, 71, 153, 179, 222 bis; 4. 63, 144) v id eatu r
(2. 64, 79) v id em u r (2. 195; 3. 221, 222; 4. 153 bis) v id e b a tu r (2. 54, 224;
3. 7, 40, 73) v id e n tu r (1. 189, 2. 68, 113, 161; 3. 145) visum est (2. 170; 3. 170;
4. 71, 89) verius v id e tu r (3. 183; 4. 1) incredibile v id eb atu r (3. 75) m elius esse
visum est (3. 13) n on v id e tu r (2. 239; 3. 91, 142) v id e b a n tu r (2. 226, 286a; 3. 223)
v id eb itu r (2. 237).
5. P rim am perso n am u su rp a t G aius u t seq u itu r: cum adm onuerim us (3. 17)
dixim us (1. 24, 32a, 45, 63, 72, 75 bis, 76, 78, 94, 97, 119, 135a, 152, 189; 2. 15,
33, 36, 65, 85, 105, 114, 116, 124, 135, 179, 181, 183, 206, 243; 3. 4 5 ,5 1 , 56, ιο ί ,
lo g , 126, 170, 178? 179, 185, 206; 4. 56, 74a, 81, 100, 129, 135) exposuim us (1 .3 9 ,
126; 2. i, 94, 115, 17 1 ; 3. 182) exsecuti sum us ( i. 188; 3. 33) fecimus ( i. 188)
m en tio n em h ab u im u s (4. 69) indicavim us ( i. 197) lo q u im u r (1. 39, 76, 145;
2. 94, 122, 191 ; 3. 154; 4. 57) lo q u a m u r (4. 10) locuti sum us (2. 191) notavim us
(2. 149a; 4. 60, 133) nec m e p ra e te rit (1. 55, 73; 3. 76; 4. 24) proponem us
(3. 34, 81) referem us (2. 97; 3. 181) rettulim us (1. 39, 87; 2. 228; 3. 201; 4. 85,
153) scio (2. 163, 280) nos scriptum invenim us (4. 60) tradidim us (2. 23; 3. 38;
4. 77) m agis o p tin ere video (2. 280).
6. L oca in his co m m entariis in v e n iu n tu r la u d a ta : B ithynia (B ithyni 1. 193)
E phesus (4. 53c?) G a la tia (G alati 1. 55) G raecia (G raeca vox 3. 93 bis; G raecus
serm o 3. 93 bis) Ita lia (3. 121a, 122 te r; Italicu m p ra ed iu m 1. 120; 2. 31, 63;
Ita lic u m solum 2. 27) R o m a (1. 20, 32b, 32c, 100, 183? bis; 2. 278; 4. 53c, 109
bis; urb s R o m a i. 20, 27 q u a te r, 33, 160, 164a, 185; 3. 56; 4. 104 bis, 105; urbs
i. 34; 2. 279) T y ru s (T y ria p u rp u ra 4. 53d).
7. L egem la u d a t G aius A e b u tiam sem el (4. 30) A eliam S entiam vicies q u a te r
(1. 13, 27, 29 bis, 31, 37, 38, 40, 47 bis, 66, 68 bis, 70, 71, 80 ter, 139; 3. 73 ter,
74, 75) A p p u leiam sexies (3. 122 sexies) A q u iliam undecies (3. 202, 210, 212, 213,
214, 216 bis, 219; 4. 9, 76, 109) A tiliam bis (1. 185, 195) C icereiam te r (3. 123 ter)
C lau d iam bis (1. 157, 171) C orneliam sexies (1. 128; 3. 24 ter, 125 bis) C repereiam
sem el (4. 95) F alcid iam bis (2. 227, 254) F ufiam C an in iam septies (1. 42, 44, 45,
46, 139; 2. 228, 239) F u ria m testam en taria m q u a te r necnon d u b ie sem el (2. 225
bis; 4. 23?, 24 bis) F u ria m de sponsu septies (3. 121 bis, 121a, 122 te r; 4. 22) F u riam
sim p liciter sem el (4. 109) H o rten siam bis (1. 3, 18) Iu lia m sem el (2. 150) Iu liam
et P la u tia m sem el (2. 45) Iulias sem el (de form ulis: 4. 30) Iu lia m iu d iciariam bis
(4. 104 bis) Iu lia m et P a p ia m P o p p aea m sem el (1. 145) Iu lia m et T itia m ter
(1. 185, 195, 195b) Iu lia m d e m aritan d is o rdinibus sem el ( i . 178) Iu n ia m V ellaeam
sem el (2. 134) Iu n ia m tredecies (1. 80, 167; 2. n o , 275; 3. 56 sexies, 57, 70 bis)
L icin n iam sem el (4. 17a) M arciam sem el (4. 23) M iniciam sexies (1. 78 sexies)
O llin ia m sem el (4. 109) P ap iam sedecies necnon d u b ie sem el (2. 111 ?, 206 bis,
(i 48 )
T abula L audatoria I V (coni.)
207, 208, 286a; 3. 42 bis, 44, 46, 47 bis, 49, 50, 51, 52, 53) P in a ria m bis (4. 15
bis) P u b liliam semel (3. 127) S iliam et C a lp u rn iam bis (4. 19) X I I ta b u la ru m
q u ad rag ies q u a te r ( i. i n , 122, 132, 145, 155, 157, 165 bis; 2. 42, 45, 47, 49, 54,
64> 224; 3. 9, i i , 17, 18, 21, 23, 40, 46, 49, 51, 78, 82, 189, 190, 191, 192 bis, 193,
194, 223; 4. i i , 14, 17a bis, 21, 28, 76, 79 bis) V alliam semel (4. 25) V oconiam ter
(2. 226 bis, 274) SC C lau d ian u m ter (1. 84, 91, 160) N ero n ian u m sexies (2. 212,
218 bis, 220, 222 bis cf. i. 33) P egasianum q u ater (2. 256, 258, 259, 286a, cf. 2. 254)
T re b ellia n u m bis (2. 255, 258, cf. 2. 253).
TABULA L AUDAT OR I A V
TABULA L AUDATORI A V
Gai cetera Opera praeter Institutiones et Libros ad Edicta
Col. P ai. 29 + F rag. 140
A c tio n e s

s e n te n tia m s e q u itu r
a lio m o d o la u d a t u r

ex c o n s titu tio n e

d ix is s e v id e n tu r

s e q u i v id e tu r
|e x is tim a t/a n t
a n im a d v e r tit

1p r o b a v e r u n t
c r e d id e r u n t

p u ta v e r u n t

r e s c r ip tu m

v is u m e s t
se n se ru n t
r e s p o n d it
r e s c r ip s it

s e n te n tia

Sum m a
n e g a v it

s c rip s it
p la c u it

p u ta n t

s c r ib it
o r a tio

s e n tit
re fe rt
1n e g a t

n o ta t
d ix it
P erso n ae •a F r a g m e n ta P a lin g e n e tic a

A e liu s G a l l u s . 1 1 440 p r.
a lii . . . . 1 1 4 56
A n t o n i n u s ( P iu s ) im p . 1 1 2 4 3 9 3 /2 , 3 9 7 , 3 9 8 /5 , 4 7 2
C a s s iu s 1 1 1 1 4 4 8 0 , 4 9 1 /4 /7 b is , 5 1 6 /4
p r in c e p s ( C o m m o d u s ) 1 1 507
e x is tim a n te s . 1 1 4 9 1 /4 /7
F u fid iu s 1 1 477
H a d ria n u s 1 1 3 9 2 /2 p r
I a v o le n u s 1 1 2 438, 456
I u lia n u s 3 1 1 1 1 2 2 1 1 1 14 39 2 /1 p r ., 3 9 5 /4 , 3 9 8 /9 , 10,
1 3 , 4 0 0 p r ., 4 3 1 , 4 7 0 /1 ,
4 8 0 te r , 5 0 6 /5 ,5 1 5 ,5 1 6 p r .
L abeo . . . . 1 1 469
N e ra tiu s 1 1 1 3 1, 5, 3 9 8 /1 2
N e rv a p a te r . 1 1 2 4 9 1 /4 /7 b is
N e r v a filiu s . 1 1 477
O filiu s . . . . 1 1 4 2 9 /2
p le r iq u e 1 1 3 4 1 9 , 4 5 6 , 4 9 1 /3 /1
P r o c u lu s 1 1 1 1 1 V 6 4 4 0 , 4 6 9 , 4 9 1 /4 /7 b is , 504,
5 1 6 /4
q u id a m 1 1 3 5 4 2 9 /2 , 4 4 4 , 4 8 0 , 4 9 1 /4 /7 ,
5 1 3 /4
S a b in u s 1 1 1 3 4 8 0 , 4 9 1 /4 /7 b is
S e r v iu s . . . . .. 1 1 439
T r e b a tiu s 1 1 4 9 1 /3 /1
v e te r e s . . . . 1 1 493

Sum m a 7 2 1 1 1 1 1 5 1 2 1 1 4 1 8 2 1 1 2 3 3 2 2 1 1 1 1 1 58
( 15 1)
T abula L audatoria V (coiit.)
Q u ib u s a d d e n d a e su n t: alio m odo la u d a n tu r 6. A tticus (429) H om erus (436)
S erapias A lex a n d rin a (392/2/pr.) Solon (435, 437) X e n o p h o n (425).
Laudatio dubia', nulla.
Laudationes duplae: 6. N erva et Proculus 2 (491/4/7 bis); Sabinus et Cassius 4
(480 bis, 491/4/7 bis).

NOTAE
1. L a u d a tio n u m 64 in his fragm entis re p e rta ru m ad auctores R om anos nom ine
lau d ato s sp ectan t 41, ad im peratores R om anos 6, ad auctores sine nom ine laudatos
i i . In d e x lau d ato riu s au cto ri assignatur 1-41.
2. I n his fragm entis in v en iu n tu r vocab u la G raeca 119 (20 in fr. 425, 37 in fr.
4 3 5 ) 9 in fr· 4 3 6 ) 5 2 in fr· 437) 1 in fr. 438). In d ex L atin itatis auctori assignatur
0-24.
3. T em p u s praesens in his lau d atio n ib u s u su rp at G aius tricies semel, perfectum
vicies, im p erfectu m n u n q u am .
4. I n q uaestionibus ponendis u su rp a t au c to r v erb a: q u o d d icitu r (400/1) quod
volgo d ictu m est (510/5) d u b itatio n is est (456) v id etu r d u b ita tio esse (510/2) causa
d u b itatio n is est (491/4/11) q u a e ritu r (392/2/pr., 402/3 bis, 491/4/11) q u ae ri solet
(501/1) q u aesitu m est (392/2/2, 470/1, 491/3/1, 510/2, 516/4) req u iren d u m est
(395/4) videam us (402/1, 440 p r., 451/1, 480, 499/1) v idendum est (400/2, 402/4,
467) v idebim us (403/1).
R atio n es a d h ib e t a u c to r: aeq u ita te m (ap erte in iq u u m est 398/7; in iq u u m est
424; in iq u u m e ra t 506 p r.) a n tiq u ita te m (491/1/pr.) ben ig n itatem (504; benignius
ac cep tu m est 498/13; benignius est intellegi 394) com m oditatem (392/2/pr.) con­
v en ien tiam (conveniens est 491/4/13; inconveniens erit 418) indifferentiam (nihil
m ale est 398/10) ius civile (3 9 1 ,4 9 1/1/pr. ; incivile est 510/2) ius gen tiu m (491/1/pr.,
491/3/7, 491/4/1, 491/5/3) n a tu ra m (naturalis aequitas 491/5/3; n atu ra lis sim ul et
civilis ra tio 517; n atu ra lis ra tio 4 91/1/pr., 4 91/2/pr., 491/4/7, 498/9, 517; n a tu ra
m anifestum est 498/14; re ru m n a tu ra (495/1, cf. 491/2/2) ratio n em (464, 491/4/13,
4 9 1 /5 /p 1·. bis, 510/5 bis, 516/4; stricta ra tio 491/4/5 iuris ra tio 479) u tilitatem
506 p r. sen ten tiam legis (398/15).
In controversiis decidendis v erb a em p h atica u su rp a t au c to r: a b su rd u m est
(398/7) p e ra b su rd u m est (477) ab su rd u m v id e b a tu r (495/1) ap erte (398/7, 464)
ce rtu m est (510/4) certe (418, 427, 453, 491/4/12) nem o d u b ita t (420) non
d u b ita tu r (427, 462, 470 p r.) n o n solet d u b ita ri (459) d u b iu m no n erit (451/1)
d u b ita ri n o n deb et (519) m inim e d u b ita n d u m est (519/1) n o n d u b iu m est (390
p r.) m anifestu m est (498/12, 14, 516/4) plus q u a m m anifestum est (506/2) m a n i­
festissim um est (430) p a la m est (491/3/6, 491/4/2, 498/9, 506 p r.) p la n e (394,
491/2/1, 491/4/2, 500) recte (395/3, 456, 475/2, 491/4/7 bis, 491/4/11, 504) sane
(480, 491/4/6, 506/1) verissim um est (392/2/1) ita v eru m est si (499 p r.).
V e rb a m inus em p h atica u su rp a t G aius u t seq u itu r: acceptum est (498/13)
a d m itte n d u m est (440/1) ad m o n en d i sum us (398/15, 519/2) a p p a re t (513/8, 9)
con stat (4, 395/1, 491/3/5, 513/3) c red itu r (491/4/3) d icen d u m est (398/15,
403/1, 2, 451/1».513/2, 515, 516/1) d ic tu m est (475/2) d icitu r (395/3, 498/15,
513/5) facilius d ic e tu r (401) d icen d a e ru n t (401) n o n aliu d d icen d u m (402/1)
dicim us (432, 433) po test dici (403/3) alia causa est (491/5/8) aliu d sane est
(491/4/6) h o c est fa te n d u m (395/4) id em iuris est (398/6, 491/4/9, 498/9) intellegi
potest (440 p r., 506 p r.) in telle g atu r (491/4/13) intellegeris (491 /5/1 ) intellegem us
(513/6) intellegi d eb et (510/5) benignius est intellegi (394) intelleg itu r (3, 454,
491/2/2, 491/3/4, 491/4/10, 12, 13, 4 9 4 ΡΓ·, 5 01 Pr ·, 5 ° 6/ 2 bis, 5 ° 6/ 4 , 5 !o / 4 ) n o n
Ο 52)

T abula L audatoria V (coni.)


p otest intellegi (506/3) no n p ro p rie intelleg itu r (506/5) in telleg u n tu r (491/3/2, 5)
n o n p ro p rie in telleg u n tu r (506/1) m agis est (400/2, 510) m elius est (402/1) necesse
est dicam us (461) vix est u t id o p tin e a t (491/4/5) m agis p lacu it (451, 516/1)
p lacu it (491/5/2, 506 p r.) p lacu it conveniens videri esse (392/2/2) p lace t (452,
467, 501/1, 516/2 3) no n p lacu it (491/4/11) recep tu m est (506 p r.) regula
co m p ro b ata est (491/3/5) sciendum est (426, 437) sententia benignior est (504)
sen ten tia eo p ertin et u t (515) ab o lita est sententia (493) id em serv an d u m est
(400 p r.) ten en d u m est (403/4) verius est (477, 491/3/1, 491/4/7) v id eri potest
v eru m esse (444) visum est (398/7) v id etu r (3, 392/2/pr., 398/10, 400/3, 418, 469,
475/ b 489; 506/3, 4 bis, 5, 6 bis) v id en tu r (463, 487).
5. P rim am personam u su rp at au c to r u t seq u itu r: an im ad v erto (418) u t ita
d ix erim (418 bis) dicim us (402/4, 491/5/2, 513/2) dixim us (400/2, 491/3/3) no n
d u b ito (475/1) existim avi (418) nisi fallor (418) com m odius dici p u to (392/2/pr.)
p u to (499/1) trac tan tib u s nobis (467) m ih i tra d itu m est (480) n o n q u ia velim
(418) vereor (402/1) m agis placere video (466) nobis v id etu r (510/2) v id e n tu r m ihi
(4 9 1 /4 / 7 )·
6. L oca in his fragm entis la u d a n tu r: A frica (513/7) Asia (521) A th en ae (437)
B erytus (455) C arth ag o (513/4) D y rrach iu m (455) G raecia (G raeci 425, 435,
436, 478 p r.) R o m a (513/4) T roas (455)._
7. L egem la u d a t A eliam S entiam G aius semel (478) F alcid iam bis (398/11,
509) X I I ta b u la ru m semel (491/4/10); SC S ilanianum semel (464).
( i53)
T abula L audatoria V I (cont.)
Q u ib u s a d d e n d a e su n t: alio m odo la u d a n tu r 23. Aufidius (172/1) G racchus
(227 p r. ter) L icin n ia (227 p r. bis) M aecenas (225) M allius Seneca (130 bis)
Seius O cean u s (130 sexies) Seius S atu rn in u s (130 bis) S tatius P rim us (132)
T e re n tia (225) V alerius M axim us (130 q u a te r).
Laudatio dubia: nulla.
Laudationes duplae: 20. Cascellius T re b atiu s 1(171 p r.); ego et P roculus 1 (186/5)
L ab eo Ofilius 2 (196/1, 4 ); L abeo et Ofilius 1 (196/4); L abeo T re b atiu s g
C173/45 0 4 Pr 7 l 8 l > 18 2 /1, 196/2, 215 p r., 227/1, 2, 233); Ofilius L abeo 1
(185 p r .) ; O filius T re b atiu s 1 (173/1); Proculus Caecilius 1 (225); Q uintus
M u ciu s/G allu s 1 (171/1); Servius Ofilius 2 (171/1, 196 p r.).
Laudationes triplae: 7. L abeo Cascellius T re b atiu s 1 (215/1); L abeo Ofilius
C ascellius 1 ( i g i / ι ) ; L abeo Ofilius T re b a tiu s 2 (186/4, 231); Ofilius Cascellius
item et Servii au d itores 1 (178/1); Ofilius Cascellius T u b ero 1 ( 180 pr.) ; Q uintus
M ucius G allus et ipse L abeo 1 (196 p r.).
Laudatio quadruplae: 1. L abeo Ofilius Cascellius T re b atiu s 1 (164 p r.).

NOTAE
1. L a u d a tio n u m 231 in his fragm entis re p e rta ru m ad iuris consultos R om anos
nom in e lau d ato s sp ectan t 204, ad auctores sine nom ine laudatos 4. In d e x la u d a ­
torius au c to ri assig n atu r 5 -24· L au d a tio n ib u s a b au cto re expresse factis ad d e n d ae
su n t p lu rim a e in libris, quos ex Cassio, ex P lautio, ex posterioribus Labeonis
scripsit Iavolenus, in quibus hos auctores im plicite lau d at.
2. In v e n iu n tu r in his libris vocabula G ra eca 3 (169 p r., 173/3). A n in fr. 239
u su rp a v erit a u c to r q u a rtu m in d u b io m an et. In d e x L atin itatis Iavoleno assignatur
I3 '00·
3. U s u rp a t in his lau d atio n ib u s au c to r tem pus praesens centies ter, perfecto
qu ad rag ies q u a te r, im perfecto decies.
4. In qu aestio n ib u s ponendis dicit Iavolenus: q uid enim dicem us (87) n u m q u id
d u b itas (a consulente d ictu m 90/1) in tu e ri debem us (107) q u a e ritu r (136 pr.)
quaestio est (94) illu d q u ae ri potest (96/1) q u a e re b a tu r (119 p r., 194, 199 p r.,
208/2, 212/8) q u ae ro (a consulente d ictu m 73/2, 75, 83, 85, 86, 87, 89, 90 p r., 91,
93, 95, 104/1, n o , i n , 125/1, 2, 129, 130, 135) an p u tas? (a consulente d ictu m
105) a n p u tes? (a consulente d ictu m 8 4 ,9 7 ,9 8 ) spectare debem us ( 125/1 ) videam us
(2 2 /1 ,1 7 2 /5 ,2 1 0 ).
R atio n es a d h ib e t au c to r: a e q u ita te m (erit iniquissim um 107) b o n am fidem
(124, 202) b en ig n itatem (97) h u m a n ita te m (hum anius est 20) ius civile (m inim e
iu ri civili conveniens est 114 p r.; cf. 37/1, 140, 186/3) in iq u itate m (109) favorem
lib ertatis (22 p r.) n a tu ra m (ex n a tu ra 152; ius et n a tu ra 37/1; cf. 21, 73 p r., 140,
186/3) ra tio n e m (ratio re d d i no n potest 119 p r. ; sum m a scilicet cum ra tio n e
140; cf. 148, 196/4) co nsequentiam (sequitur ergo u t 89, 138) verisim ilitudinem
(verisim ile est 148, 172/4).
In controversiis decidendis v erb a u su rp a t em p h atica a u c to r: a b su rd u m est
(114 p r.) sane ab su rd u m est ( n o ) a p p a re t (199 pr.) sine d ubio (28/3) d u b iu m
n o n est (85) n o n d u b itab im u s (87) falsum est (222) m anifestum est (151/2)
m anifesto a rg u m e n to (102) recte (84, 173/3, 191) n o n recte (182/2) vera est opinio
(101) sen ten tia v era est (164/2, 171 p r.) sen ten tia vera n o n est (108) haec vera
su n t (205) v eru m est (169/1, 171/2, 173/2, 4, 178/1, 180 p r.).
V e rb a m in u s em p h atica u su rp a t a u c to r u t seq u itu r: eadem causa est (157)
d istat ista causa (154) co nstat (168 pr.) d ic u n tu r (233) d ic itu r (140) rectius d icetu r
( χ5 4 )

T abula L audatoria V I (coni.)


(174 p r.) dici non possunt (159) dici non potest (74) distingui o p o rte b it (151/1)
eligendum est (109) h ab e ri non o p o rtet (47 pr.) h a b e n d a est (77) h ab e n d u s est
(139) intellegi non p o terit (114 pr.) intellegi deb et (123) in telleg itu r (67, 116,
136 p r., 214) in te rp re ta ri debem us (134) idem iuris est (46, 153/1, 172/6) aliud
iuris est (31/1) eo iu re u tim u r (166 p r., 207) m agis hoc iu re u tim u r (22/1) quo
iu re u tim u r (224/1) nec nos m overe d eb e t (93) o p tim u m e rit (86) p la c u it (10, 112,
128, 192) propius est (28/2) neque enim recipi potest (114/2) re cep tu m est (176)
referre debem us (167 pr.) responsum est (153 p r.) idem servandum no n est (75)
n on servari d eb et (104/1) p a ru m est u t non subverti posset (131 ) non potest videri
(32/2, 87, 117, 141, 171/2, 209 pr.) nem o potest videri (208/3) videri potest (139)
potest videri (139, 173/1) nec potest videri (87, i n , 141) ne possidere qu id em
potest videri (154) v id etu r (36, 125/1 ) v id e n tu r (26) no n v id e tu r (52, 53).
5. P rim am personam u su rp a t Iavolenus frequentius: aio (212/7) dixi (199/1,
208/1, 212/4, 6) n on d u b ito (70, 74, 88, 90/1, 104/1, 108, 153 pr.) existim o (32/2,
71, 74, 113, 172/2, 189 p r., 197, 212/1, 226) existim am us (167 pr.) ita verum esse
existim o (153 p r.) ego existim o (224 p r.) intellego (85) m e illud m axim e m ovet
(a consulente d ictu m 75) negavi (172/4) p ro b o (185/1, 228, 229) non p ro b o
(172/5) responsum probo (186/2) sen ten tiam p ro b o (181, 182/1, 196 p r., 227/4)
sen ten tiam ego probo (167/1) ego et Proculus probam us (186/5) Puto (78, 84,
96/1, 114/1, 127, 169 p r. bis, 212/8, 9, 223 p r., 1) ego p u to (166 p r., 171/2, 186/3,
196/2, 206, 216) non p u to (73/2, 83, 86, 95, i n , i i 4 p r . ) nec p u to (224 p r.) ego
co n tra p u to (207) verum p u to (171 / 3 , 173/1, 180/1, 215/1, 217, 227/5, 7) ita v eru m
p u to si (189 pr.) ita verum p u to nisi (209/1) in eo p u to quaestionem consistere
(2 1o) m agis p u to convenire ( 171 /4) m agis v eru m p u to ( 186/1 ) interesse p u to ( 147)
n em in em p u to d u b ita tu ru m ( 118) no n p u to d u b iu m esse (89) falsum p u to ( 165,
232) ego falsum p u to (176) p u tav i (172/5) respondi (77, 78, 79, 89, 130, 135,
199 Pr ·) resp o n d it ( = respondi 70, 73/2, 75, 82, 83, 84, 85, 87, 90 p r., 1, 91, 93,
95j 97j 98, 104/1, 105, n o , n i , n g p r . , 123, 124, 125/1, 2, 126, 129) scio (208/2)
ego cu m Servio sentio (221 pr.) ego co n tra sentio (96/1) ego id em sentio (189/1)
n ihil video interesse (210).
6. L oca in his fragm entis la u d a ta in v en iu n tu r: C apitolium (119 p r.) C ap u a
(172/5 ter) C orinthus (C o rin th ia vasa 173/3 bis) F alernus ager (vinum F alern u m
174/1) R o m a (7, 66 bis).
7. L egem A q uiliam la u d a t Iavolenus q u a te r (57, 57/1 bis, 112) C orneliam
semel (89) F alcid iam sexies (58 p r., 58/1 bis, 91 ter).
8. E xem plum n im iae adulationis in fr. 134 in v en itu r : ‘Beneficium im peratoris,
q u o d a d iv in a scilicet eius in d u lg en tia proficiscitur, q u a m plenissim e in te rp re ta ri
deb em u s.’
TABULA L AUDAT OR I A VII
TABULA L A UDAT OR I A VII
Salvius lulianus
Col. Pal. 184 + F rag. 928

A c tio n e s

a lio m o d o la u d a t u r

d ic e n te m a u d iv i

1r e s p o n d it/e r u n t
n u llu m v e r b u m
e x is tim a v e r u n t

resp o n su m est
iu d ic a v e r u n t

1r e s p o n d e tu r
p e rd u x e ru n t
e x is tim a b a t

re s c r ip s it

s e n te n tia
e x is tim a t

Sum m a
d e f in iv it

n e g a v it
d ic e b a t

r e t t u li t
p la c u it

p u ta n t
o p in io

re fe rt
negat
d ix it
P e rso n a e F r a g m e n ta P a lin g e n e tic a
*3
1 1 314
A f ric a n u s .·
1 1 769
T itu s A n to n in u s ( P iu s ) .
1 1 642
A q u iliu s G a llu s ·· 1 1 148
A r is to . . . .
1 1 266 p r.
A tilic in u s
1 1 5
C a e sa r n o s te r
1 1 1 1 1 5 2 5 3 /1 , 7 0 5 /1 , 8 6 5 , 8 7 5 , 888/1
1 C a s s iu s
1 1 92 4 /1
{ G a iu s C a s s iu s
1 1 895
1 G a iu s
1 1 42 0 /1
C e ls u s . . . .
1 1 586
I a v o le n u s
1 1 2 164/8, 69 2 /1
L abeo . . . .
1 1 878
M in ic iu s
1 1 4 6 5 /2
Q u in tu s M u c iu s
N erv a . . . . 1 1 266 p r.
1 1 1 2 1 6 2 4 0 /1 /1 , 3 2 9 /1 /2 , 7 2 4 , 9 0 0 p r ., 9 0 4 , 908
p le r iq u e
3 3 2 3 6 /9 , 4 4 0 /2 , 508
P o m p o n iu s .
1 1 904
P ris c u s
1 2 1 4 8 4 2 2 , 7 5 2 /1 4 , 8 9 2 /1 , 8 9 6 p r ., 8 9 7 , 9 0 3 /1 ,
P r o c u lu s
9 1 5 ,9 2 3
1 1 1 p r.
p r u d e n te s
1 1 1 3 6 5 2 , 8 8 4 /4 , 886
q u id a m
1 2 1 1 1 1 1 7 15 2 3 6 /9 , 25 3 /1 b is , 5 0 8 , 8 6 7 , 8 7 5 , 8 87 p r .,
S a b in u s
1, 8 8 8 /2 , 7 , 8 8 9 , 8 9 5 , 901 p r ., 9 1 3 ,
917
1 1 1 3 2 , 6 2 0 /2 b is
S e rv iu s
2 2 45 b is
V a le r iu s S e v e ru s .
1 1 821/1
v e te re s
1 1 503
V in d iu s
Sum m a 2 9 1 1 1 1 1 2 1 1 1 3 2 1 1 4 1 3 1 21 1 1 1 3 64
( 157 )
T abula L audatoria V I I (coni.)
Q iiibus a d d e n d a e su n t: alio m odo la u d a n tu r 6. m u lier A lexandrina (886)
A ristoteles (886) Bellicus (252/5) C laudius F rontinus (760) Salvius A risto (272)
T eren tiu s V icto r (252/5).

Laudationes dubiae: 6. Cassius 1 ( 374)5 Celsus 2 (539/2, 698/3); Pegasus 1 (277);


P lau tiu s i (503); p leriq u e 1 (868).
Laudatio dupla : nulla.

NOTAE
1. L a u d a tio n u m 70 in his libris re p e rta ru m ad iuris consultos R om anos nom ine
lau d ato s sp ec ta n t 51, ad im peratores R om anos 2, ad auctores sine n om ine laudatos
12. In d e x lau d ato riu s au c to ri assignatur ο·28, quod perpaucus v id etu r. I n his
au te m libris quos a d M in iciu m necnon a d U rseiu m F erocem scripsit Iu lian u s,
intellegendus est illos auctores freq u en ter sub silentio laudasse; sed in his tabulis
conficiendis n o n nisi a p e rte factas lau d atio n es ad num eravi.
2. T em p u s praesens u su rp a t in his lau d atio n ib u s Iulianus decies, im perfectum
bis, p erfectu m tricies septies.
3. V o c ab u la G raeca in his fragm entis in v e n iu n tu r 6 (409, 716/2, 722, 741/2
p r., 888/1). In d e x L atin itatis au cto ri assignatur 30-67.
4. I n quaestionibus ponendis u su rp a t a u c to r v erb a : u t sequens quaestio locum
h a b e a t, co n stitu am u s (608/2/2) q u o d dici solet (Afr. 64) dicet aliquis (756/7)
d u b ita tu r (3/1) d u b ita ri potest (817; A fr. 92/1) q u id ergo est (214, 271/1,
375 p r., 620 p r., 645, 697/7) q u id ergo (756/7) evidentius a p p a re b it (Afr. 89/2)
u t evidentius a p p a re a t (247 pr.) evidentius a p p a re t (Afr. 110/5) u t propius
accedam us, fingam us (3/2) po n am u s (375/2) nih il am plius q u ae ren d u m est (769)
q u a e rit a c to r (879) q u a e re b a t ac to r (923) si hoc quaeris (756/3) q u aero (a
consulente d ic tu m : 108, 372, 375/1, 389/4, 478/10, 553 pr., 556, 563, 569/16 bis,
592/4> 747/7* 821 p r., 869, 871, 872, 877) q u ae ri solet (375/2) q u a e re b a t (923)
q u a e ritu r (1 p r., 92/2, 367/1, 522, 559 p r., 748, 761/23, 803, 806, 857/1, 888 p r.)
q u a e rit (879) q u aesitu m est (74/2, 75, 182, 189, 199/2, 266 p r., 329/2, 335, 336/3,
375/6, 385/8, 415, 458/2/1, 2, 465/1, 2, 520 p r., 526, 552/2/1, 569/1, 582, 586,
5 9 4 /3 /1* 618 p r., 2, 646/1, 717/8, 735/3, 741/1, 756/4* 831, 852, 856, 867, 873,
883, 888/1, 6, 892 p r., 896/2, 907) quod a q u ib u sd am resp o n d etu r (884/4) qu o d
volgo re sp o n d etu r (614/1, 620/1) videam us (375/2, 845, 907) v id en d u m (579)
v id e n d u m n e (Afr. 24/2/5 bis, 93).
R atio n es a d h ib e t au c to r : a e q u ita te m (aeq u u m et b o n u m Afr. 113/1 ; in iq u u m
e rit Afr. 69; aeq u iu s e rit 367/3; a e q u u m est 207, 319, 367 p r., 415, 646 p r., Afr.
79/1, 121 p r .; in iq u u m est 42, 734/10; n o n est in iq u u m 89 p r., 114/2, 377, 646/1,
670, 728/1, 8 51/1; aequissim um est 544/3, 662/3; n o n e rit in iq u u m 334, 385 p r.,
582; n o n in iq u e 10, 58, 389/5; a e q u u m e rit 28/1; aequius est 335, 692/32, Afr.
110/5; aeq u iu s erit 367/3; iniquissim um est 688) b en ig n itatem (3 0 2 ,901/1) b o n am
fidem (118, Afr. 110/3) ca p tio n em (m ag n a cap tio erit 375 p r.) co m m oditatem
(com m odius est 875; com m odissim um est 375/2, 6 8 3 ,8 7 5 ; com m odius co n stitu itu r
465/1) co n seq u en tiam (consequens est 478/10, 520 p r., 620/2, 658, 781, 821/1, Afr.
42/2, 102/1/3 , 1 1 0 /1 ; n ec co n tra riu m videri d e b e t Afr. 24 p r. ; nec c o n tra riu m est
756/7) co n v en ien tiam (711/2) h u m a n ita te m (420, 652) im p u n ita te m (821/2)
iu stitiam (552/2/2) favorem lib ertatis (525, 585 p r., 596/3) necessitatem (neces­
sariu m est 569/11, 581) ra tio n e m (387 p r., 408, 476/1, 496/3, 509/1, 660/11, Afr.
24/2/5, 92/1 ; ra tio iuris 402, 614 p r.; n u lla ra tio est 569/6; n o n om nium ra tio reddi
(158 )
T abula L audatoria V I I (coni.)
potest 730; est ra tio n i congruens 756/7; suptilis ra tio 420, 821/2; ra tio d isp u tan d i
82 1 /2 ; ratio ita p o n en d a est 569/16) rem (argum entum rei 103 p r., 47 5 /2 /4 ; plus in
re est q u am in existim atione 585/1) sententiam legis (259) sim ilitudinem (nec
sim ile est Afr. 92 pr.) u tilitatem (821/2) verborum significationem (888 p r.)
v erb o ru m su p tilitatem (302) verisim ilitudinem (verisim ile est 240/1, 712, Afr.
92 p r .; vero sim ilius est 553 p r., 697 p r.).
In quaestionibus decidendis u su rp a t au c to r verba em p h atica : ab su rd e (821/2)
est ab su rd u m (101) longe absurdius constitui (821/2) a b su rd u m est (Afr. 48/9)
apertissim e (420) a p p a re t (470, 761/1) m anifestius a p p a re t (Afr. 42/1) certe (614/1,
756/1) n ihil d u b ii erit (Afr. 98) procul dub io (Afr. 85) m inus d u b ita n d u m (Afr.
42/1) m in im e d u b ita n d u m (Afr. 8g pr.) non d u b ita tu r (148) nem o u n q u a m
d u b ita v it (92/1) d u b ita ri non o p o rtet (328, 618/6, 726/2) d u b iu m n o n est (89/1,
624, 717/1, 832, 902) n eque d u b itab im u s (3/2) n o n d u b ie (600/2, 734/6) procul
d u b io est (24, 919) sine d ubio (700/3) evidenter (3/2) m anifestius est (246)
m anifestum est (414/1, 526, Afr. 7) m anifeste (697/2) m anifestus est (491) m inim e
(756/7) nem o est q u i nesciat (362) p alam est (409, 412, 490, 614/4, 697/4.)
p la n e (28/1, 223, 439, 497, 552/2/pr., 605, 614/4, 7 9 6 P r -> Afr. 102/1/3) rectissim e
(819/1, Afr. 75) ridiculum est (875) sane (74/2, 734/7, 875) non v eru m erit (3/3)
h actenus verum est (Afr. 73) ita verum est si (756/4, Afr. 72/1) verum est (389 p r.,
585/1, 614/1, 849 bis).
V e rb a m inus em p h atica u su rp a t au c to r: ac cip itu r (901/2) accipi d eb e t (663,
716/2) ac cip iu n tu r (409) accipiendum est (620/1, 860, 913) ita accipiendum (Afr.
113/1) ita accip ienda est (Afr. 113/2) an im ad v erten d u m est (3/3) constitit (888/5)
constat (282, 465/1, 492, 738, 844, 869) satis constat (275/2) cred itu m est (1/1)
d ecursum est (420/1) definiendum est (758) dici potest (734/2, 821/2, 888/1) dici
n o n potest (588, Afr. 42/2) potest dici (359, 440, 496/4, 500, 756/7, 775) dici non
convenit (695) dici possunt (772/2) d icitu r (588, 759, 819/1, 821 pr.) d icetu r
(691/1) eadem dicenda su n t (343/4, 756/6, Afr. 88/2) dicen d a e ru n t (792/4)
d icen d u m est (1/1, 3 p r., 45, 231/1, 509/2) dicendum (Afr. 75, 85, 92 p r., 93 pr.)
dicim us (291/1 ter, 738 bis) m agis dicendum est (3/1, Afr. 24/2/5) d ic u n tu r
(711/1/4) non absurde dici potest (Afr. 7) vid en d u m ne no n sine ra tio n e d ic a tu r
(Afr. 24/2/5) eveniet u t (375/2) existim atur (761/2) existim andus est (75, 343/1,
756 p r., 772/1, 3) existim abitur (478/7) existim anda est (594/1, 705/3) rectius
ex istim atu r (Afr. 25/1/pr.) ex istim an tu r (821/2) existim anda sunt (790) existim ati
sunt (821 pr.) difficile est existim ari (734/7) existim andus ero (748/1) existim andum
est (509/1, 611/1) aliud existim andum (Afr. 72/1, 110/6) n eque existim andum
est (284/2) existim andi sunt (772/4) existim ari deb eb it (747/7) n eq u e existim are
debem us (704/4) facti quaestio est (435/1) facti m agis q u a m iuris quaestio est
(747/7) facti m agis q u a m iuris sunt (336/3) h a b e n d u m (Afr. 122) h a b e n d u m est
(462/1, 518, 906) h a b e tu r (543/3, 739) h a b e n d a est (248) h ab en d u s est (310 p r.,
872) id em est (3/2, 104, 127/2, 284/2, 389/4, 437/3, 691/2) idem iuris est (213,
266/1, 349/3, 585/1, 618/4, 734/O id em iuris erit (614/1, 704/4, 717 p r., 900/1,
Afr. 27/2) intellegi deb et (92/1, 2, 217, 387 pr.) intellegitur (68/1, 103/1, 215,
336/3» 4°4Λ> 4 i6 p r., 440, 490, 522, 541, 543/2, 549/1, 558, 614/6, 626/20, 697 p r.,
2» 717/3» 747/1» 761/2, 794, 841, 862, 871, 884/4) n o n intelleg itu r (387/3, 543/3,
618/7, 625, 786) no n potest intellegi (Afr. 82/2, 5, 89/2) intellegendus est (182,
618/2, 656, 748/3, 772 p r., 873) intellegi possunt (711/1/4) nec in telleg etu r (907)
n o n intelleg etu r (478/7, 618/6) intellegendum erit (811) intellegetur (489/2, 907)
in telleg en d u m erit (459/4, 811) n o n in telle g u n tu r (790) n o n aliu d intelleg itu r
(697 p r.) intellegendum est (343/1, 375 p r.) intellegi potest (Afr. 24/2/pr.)
in telleg eretu r (692/32) in telleg u n tu r (298/1, 761/1, 781) haec in telleg en d a sunt
(302) nifiil in terest (162 pr.) nec interest (754) m u ltu m interest (677, 766/2) non
( 159 )
T abula L audatoria V I I (coni.)
m u ltu m in terest (323) p roclivior est sen ten tia sic in te rp re ta n d a (3/6) in te rp re ta n d a
su n t (427/1) in terp re tatio n e m accipere potest (Afr. 28/2) m agis est (598, 734/2,
3 * 7 9 7 ; Afr· 7 9 Pr ·) m elius est (901/1) nec m iru m (821/2) m u ltu m d istan t (358/2)
n eg av it (? M inicius 852, 869/1) eodem iure observando (758) evidenti argum ento
p ro b a tu r (Afr. 48/3) potius est (Afr. 24/1/2) propius est (558) non p ro d u cen d u m
(Afr. n o p r.) nec ad rem p e rtin e t (Afr. 84) n eque ad rem p ertin e t (697/2) placet
(5 12/ 2* 5 5 2 P r ·* 682, 8 8 i) p lacu it (240/2, 756/4, 765, 893, 896/2) recep tu m est
(525* 724* 819/1) recip ien d u m est (92/1, 812) recipienda est (890) nec refert
(9 2 P r ·, 5 3 9 * 600/1, Afr. 14, 98, 124) refert (244, Afr. 42/1, 61 p r., 110/9) p arv i
refert (496/4) reg u la est (421/1) responsum est (620/1, 717/5, 729, 892 pr.)
resp o n d it (? M in iciu s 856, 866, 870, 877) respondendum est (388/1) idem
serv an d u m (692/26, Afr. 82 p r.) idem servari convenit (670) idem servari conveniet
( 3 0 9 / r / 3 , 686/2) longe m agis servari conveniet (464/1) eadem servanda sunt (Afr.
108) servari o p o rtet (819 p r.) secundum h an c regu lam statu etu r (489/2) contra
sta tu e n d u m (Afr. 110/9) statu en d u m est (821 p r., 842) no n usquequaque v eru m est
214) verius est (179/2, 599, 734/4, 847, 855, 857/1, 873, 886, 888/6) videbor (748/1)
possunt v id eri (758) v erendum ne (456/2) potest videri (387/4, 700/3) no n videor
(Afr. 72/3) n o n v id etu r (75, 280, 611/1, 794, 921, Afr. 25/1/2) nec potest videri
(144) n o n po test videri (214, 694, 766/1 ) visa est (525) visus est (821 p r.) videri
potest (427/2, 694) nec v id eb itu r (600/2, 614/1) v id eb itu r (301, 382, 489/2, 709)
v id e tu r (28/4, 68 p r., 244, 387 p r., 478/10, 500/2, 600 p r., 614/2, 5, 672/1, 695,
7 4 9 , 769, 806, 818/2, 861, 888/5, 901/1, Afr. 14).
5. P rim a m p ersonam u su rp a t Iu lian u s u t seq u itu r: ad firm atu m est m ih i (886)
n o n an im ad v e rto (222, 756/1) saepe an im ad v e rti (372) a rb itro r (614 p r.) audivi
(5) concedim us (291/1) a nobis constitui (821/2) contentus ero (821/2) dico
(791). dixi (189, 199/2, 302, 465/1, 476/4, 512/2, 552/2/1, 569/1, 717/8, 764)
dix erim (747/7) q u o d dico exem plo m anifestius fiet (375/2) n o n d u b ito (700/1)
n o n d u b ita re m (766/2) d u b ito (584, Afr. 110/5) no n existim o (759) m agis existim o
(584/3) existim o (329/2, 389/4, 527, 734 p r., 919) in terrogavi (868) m ovet m e
(310 p r.) p u ta t ( = p u to 868) verius p u to (446, 700 p r.) non p u to d u b ita n d u m
(389 pr·) p u to (37, 84, 389/1/4* 465/2* 500/ 2* 569/13* 700 Pr·, 757) interesse p uto
(854) respondebim us (756/3) respondi (74/2, 92/1, 2, 108, 218, 310 p r., 329/2,
335* 3 6 7 /1* 375/6, 387/4, 389/4, 458/1, 478/10, 520 p r., 526 bis, 553 pr., 556, 559,
569/14, 16, 592/4, 6 18 / 1, 735 p r., 747/7, 871, 879, 883?) respondit ( = respondi 182,
3 7 2* 4 5 8 / 2, 582, 618 p r., 2, 646/1, 679/1, 735/3, 741/1, 806, 831, = ? M inicius
872, 873, 877, = ? U rseius F erox 888 p r., 911, 923) cuius sententiae ego sum (875)
in q u a ego q u o q u e sum (253/1) ego, qui m em inissem . . . quosdam ex servis meis
lib era v i et . . . consulentibus idem suasi (586).
6. L oca in his fragm entis la u d a ta in v e n iu n tu r: A egyptus (886) A frica (586)
A sia (61/5, 163, 249, 318?, 386, 387 p r. bis, 448) C apitolium (154, 468?, 520/1 bis,
594/1 ter, 2 p r., 600/3, 890 bis) C a p u a (594/2/1 bis, 710/3/2) C arth ag o (164/6)
E phesus (164/6, 7, 8, 695, 710/3, 718?) H ip p o (831) Ita lia (56?, 495 bis, 632,
879?) O stia (831) R o m a (164/6, 166, 710/3/2, 718?, 886) Syria (586).
7. L egem la u d a t Iu lian u s A q u iliam vicies quinquies necnon dubie semel (82/4?,
90/1, 544/2 q u a te r, 653, 746, 821 p r., 1, 2, 823/5, 7, 9, 10, 824/1, 2, 825, 827/1, 3,
i i , 828/3, 830, 899 bis, 910) A eliam S en tiam ter (766/2, 767, 775) A tin iam semel
(614 p r.) C o rn eliam nonies (588, 759 ter, 761 p r., 1 bis, 762/1, 806) F alcid iam
vicies septies n ecn o n sem el d u b ie (459/4, 530/12, 13 bis, 543/4, 561 bis, 563 bis,
569/10, 16, 589/1, 731, 732/7 bis, 8, 753?, 755, 756 p r., i, 2, 3, 4, 5, 6, 7, 8
q u a te r) Iu lia m d u b ie sem el (273) Iu lia m de adulteriis semel (832) P la u tia m et
Iu lia m sem el (614/2) X I I ta b u la ru m ter (614 p r., 741 /1, 759) SC M ac ed o n ian u m
sem el (191) N e ro n ian u m sem el (469) P la n cian u m sem el (312) T re b ellia n u m
(ι6ο)
T abula L audatoria V I I (coni.)
decies (89 p r., 560, 564/8, 16 bis, 20, 568 bis, 569/7, 591) co n stitu d o n em
R u tilia n a m semel (619) d ecretu m C arb o n ian u m duodecies n ecnon d u b ie sem el
(3 I 5> 378 p r., 379, 381 semel ? bis, 382, 385 p r., 1, 4, 6, 7, 8 bis).
8. E xem plum asseverationis q u a m falsum esse Iulianus ig n o rare no n p o tu it
in fr. 819/1 in v en itu r, u b i dicit ipsas leges n u lla alia ex causa nos tenere, q u a m
q u o d iudicio p opuli receptae sint.
TABULA L AUD A T OR I A V i l i

825155 Μ
(i6a)

TABULA L AU D A T O R I A V i l i
L. Volusius Maecianus
Col. Pal. 14 - f F rag. 59

Actiones

|
|alio modo laudatur

1nullum verbum
1constituit

1existimat

1sententia
decrevit

Summa
1placuit
1probat

1scribit
1putat
1iussit
Fragmenta
Personae 3 Palingenetica
Antoninus Augustus
Pius imp. 1 1 1 3 1 , 2 7 , 37
Antoninus 3 3 5 8 ter
Aristo 1 1 12
Augustus 1 1 58
Gaius Cassius . 1 1 51
Celsus 1 1 4 1 /7
Tulianus 1 1 1 1 1 1 6 1 3 , 1 8 , 30 / 1, 33/3 ,
4 1 /7 , 4 2 /2
Vindius . 1 i 1 4 2 /4

Summa . 2 4 1 1 1 1 2 1 1 1 1 17
1

Q u ib u s ad d e n d ae su n t: alio m odo la u d a n tu r 4. C ato (18/1) E u d aem o n (58 bis)


T re b iu s G erm anus (56).
Laudatio dubia: i. Iu lian u s 1 (29).
Laudatio dupla: i. Celsus et Iu lian u s noster i (41/7).

NOTAE
1. L au d a tio n u m 2 1 in his fragm entis re p e rta ru m ad iuris consultos R om anos
n om ine lau datos sp ectan t io , ad im peratores R om anos 7. In d e x lau d ato riu s
au cto ri assignatur 0-71.
2. Isdem fragm entis in v en iu n tu r vocab u la G raeca 59 (fr. 58). In d e x L atin itatis
au cto ri assignatur 0-24.
3. T em p u s praesens u su rp a t au cto r in his lau d atio n ib u s sexies, p erfectu m toties.
4. In quaestionibus ponendis u su rp a t M aecianus v e rb a : diffìcile est (30/3)
q u a e ritu r (3/4) quaesitu m est (41/7) in hoc quaestio est (18/1) q u id ergo est?
(52 p r.) tra c ta b a tu r (26).
R ationes a d h ib e t a u c to r: aeq u itatem (quae sententia et a e q u ita te m et ratio n em
m agis h a b e t 42/4; in iq u u m est 52 p r .; in iq u u m erit 15/2) convenientiam (nec
co n tra riu m est 42 pr.) lib ertatis favorem (42/5) sim ilitudinem iuris civilis et
(1^3)
T a b u l a L a u d a t o r i a V i l i (c o n i.)
h o n o ra rii (30/3) in u tilita te m (quid a ttin e b it 45) inverisim ilitudinem (verisim ile
n o n est 41/7) ra tio n e m (42/4, 56). D e n a tu ra li obligatione in fr. 22 lo q u itu r auctor.
V e rb a e m p h a tic a u su rp a t au c to r in quaestionibus decidendis: n o n erit d u b ita n ­
d u m (7) p ro c u l d u b io (16, 41/4) n o n d u b ie (14, 21/1, 30/3) d u b iu m no n est (46)
n o n iuste d u b ita m u s (15/2) d u b ita ri no n potest (34 pr.) q u a m sit rid icu lu m nulli
n o n p a te t (34 p r.) v eru m est (3/3, 19, 41/3) verius est (3/4).
V e rb a m in u s em p h atica u su rp a t seq u en tia: no n absurde ( 15/1 ) non a b re est
d icere (53) n o n a b re su b iu n g etu r (34/1) a n im ad v e rten d u m est (41/2) co n stitu en ­
d u m est (30/3) d ec retu m est (43) idem d ic e tu r ( 15/1 ) d icitu r (52/1) dicen d u m est
(23) a liq u a d u b ita tio re m a n e b it (4g) idem e rit (30/4) in telle g itu r (22) intellectum
est (41/1) in telle g eb atu r (42 p r.) p lacet (26) sciendum est (24) n o n est re cep ta
sen ten tia (51) v id e tu r (2, 5, 41/7) visum est (51)
5. P rim a m p erso n am u su rp a t au c to r u t seq u itu r: credo (15 pr.) no n d u b ito
(30/3) n o n d u b ita b im u s (30/4) n o n du b itav im u s (46) negabim us (3/2) p u to (52 p r .) .
6. L oca in his fragm entis la u d a n tu r: A lex a n d ria (24) Cyclades (58) Ita lia (58)
R o m a (27, 54).
7. L egem F alcid iam la u d a t au c to r sexies decies (4; 28; 41/pr. bis, 1, 2 bis, 4, 5,
7, 8, 9 ; 42/2, 3, 4 bis) Iu lia m d e vi p u b lic a semel (54) R h o d iam semel (58), SC
D a su m ian u m sem el (52 p r.) R u b ria n u m sem el (52 pr.) S ilanianum sem el (56)
T re b e llia n u m undecies (25 bis, 29, 30/3, 33/3 bis, 33/6 ter, 48, 49/1).
8. In schola P ro cu lian a m agis q u a m C assiana studiosum fuisse M aecian u m
cred en d u m est, si q u id em opus est eligere. E ten im C elsum P roculianae scholae
m ag istru m m in im e Cassianis g ra tu m la u d a t et p ro b a t, G ai Cassii au tem senten­
tia m n o n re cip it. Illu d q u o q u e an im ad v e rten d u m est, in fr. 42/4 au c to rem ‘et
a e q u ita te m et ra tio n e m ’ scripsisse, cum quivis au c to r Cassianus m agis ‘ratio n em
et a e q u ita te m ’ scrip tu ru s esset.
Ulpius Marcellus TABULA L A UD A T OR I A IX
Col. P ai. 4 9 + F rag. 292

A c tio n e s

j
J

c o n s titu tio n e m
a lio m o d o la u d a tu r

co m p ro b a v e ru n t

c o n s titu tio n ib u s

est
e x is tim a b a n t

p ro n u n tia v it

est
p u ta v e ru n t

re s c rip tu m
n o n p u ta t

o p in a n tu r

secundum
d e d u c itu r

r e s p o n d it
|p u t a t / a n t

re s c rip s it
e x is tim a t

iu d ic a v it

s e n te n tia
s c rip tu m
d e c re v it

1n e g a b a t

Jp u t a b a t

Sum m a
n e g a v it

1p l a c u i t
p ro b at
o p in io
d ix it
-t-J F ra g m e n ta
P erso n ae cd P a lin g e n e tic a

A lfe n u s 1 1 2 146 , 157


A n to n in u s (P iu s ) im p . 1 2 1 4 19 , 21 p r . , 151 ,
263
A ris to 1 1 118
C a s s iu s L o n g in u s 1 1 20
Iu lia n u s . 1 1 1 3 115 / 6 9 , 7 1 , 121
L abeo 1 1 I u i. 1 0 2 /2
m a io re s 1 1 39
M arcu s 1 1 66

{ im p e ra to r A n to n in u s
A u re liu s A n to n in u s
p rin c e p s
N e r a ti u s P ris c u s
N erv a
1
1
2
1
1
2 1

1
5
1
1

2 6
1
1 2 1 ,2 6 3
177
263
, 199
I u i. 1 0 2 /2
q u a te r

n o n n u lli 1 1 263
p le riq u e . 1 1 1 3 24 2 p r . , 2 6 3 ,
272
p rin c e p s . 1 1 239
p rin c ip e s . 1 1 283
q u id a m 1 1 2 157 , 267
S a b in u s . 1 1 1 3 237/1 b i s , I u i .
455
S a b in ia n i . 1 1 87/3
S e rv iu s 1 1 157
v e te re s 1 1 . . 2 192 / 1 , I u i . 321
Sum m a 1 4 1 1 1 1 2 1 1 1 1 1 1 2 1 1 1 1 2 2 1 4 1 1 1 1 3 39
(165)
T abula L audatoria I X (cont.)
Q u ib u s a d d e n d a e su n t: alio m odo la u d a n tu r 13. C alpurnius L onginus (263)
C ornelius P riscianus (263 bis) C ornelius P roculus (19) G aurus (33) Leo (263)
M arciu s A vitus (21 p r.) Pollio (263) P udens (263) Sulpicius (90) V alerius Nepos
(263 bis) V ib iu s Z eno (263).
Laudatio dubia: n u lla.
Laudatio dupla: 1. L ab eo et N erv a 1 (Iu i. 102/2).

NOTAE
1. L a u d a tio n u m 52 in his fragm entis re p e rta ru m ad iuris consultos R om anos
no m in e lau d ato s sp ectan t 15, ad im p erato res R om anos 14, ad auctores sine
n o m in e lau d ato s 10. In d e x lau d ato riu s au c to ri assignatur 0*31.
2. V o c ab u lu m G raecu m in his fragm entis in v en itu r nullum .
3. T em p u s praesens u su rp a t au c to r in his lau d atio n ib u s decies, p erfectum
sexies decies, im p erfectu m q u ater.
4. I n q u aestio n ib u s ponendis u su rp a t M arcellus v erb a: aliquis dicet (242/1)
q u id dicem us (Iu i. 205/2) aliquis d ix erit (82/1) d u b ita ri potest (245/1) d u b ita tu m
est (263) q u id ergo (263) fingam us (47, 125 p r., 227/4) finge (92, 191, 227/3)
n u m id em sit (227/5) in quis (191) inspiciendum est (92) quaesitum est (64, 213)
q u a e re b a tu r (206/1) q u a e re n d u m est (172) quaeris (242 pr.) qu aeri potest (125/1)
q u a e ritu r (65, 76, 82 p r., 125/2, 219) q u aero (a consulente d ictu m : 33, 90, n o ,
121, 124, 161/1, 178 p r., i, 288, 289, 290, 291, 292) rogo respondeas (a consulente
d ic tu m : 178/1) si hoc v eru m n o n est (218/2) videam us (34 p r., 1, 116, 227/1, 4,
234, 259) v id en d u m (172).
R atio n es a d h ib e t a u c to r: a e q u ita te m (non est a e q u u m n o , 227 p r.; n atu ralis
aeq u itas Iu i. 750; p e rq u a m in iq u u m est Iu i. 630; in iq u u m v id etu r Iu i. 368; nec
a e q u u m e ra t 178/1 ; ra tio et aequitas 21/1 ; n o n in iq u e 92; n o n est in iq u u m 292;
p e rin iq u u m est 107/2 ; ae q u u m est 82/1 ; p leru m q u e a e q u u m est 234) ben ig n itatem
(263) c o m p a ra b ilita te m (120/2) consequentiam (87/2 ; secundum haec 186 pr.)
cred ib ilitatem (192/1) co n trad ictio n em (227/1) d u rita te m (172) h u m a n ita te m
(17 p r., 277) iu stitiam (iustius 73, 107/1; in re d u b ia benigniorem in terp re tatio n e m
sequi n o n m inus iustius est q u a m tutius 263) lib ertatis favorem (150, 263) necessi­
ta te m (Iu i. 569/11) sim ilitudinem (non sem per sim ile est a rg u m e n tu m 33 pr.)
u tilita te m (277) v erisim ilitudinem (287/1, 290) testatoris v o lu n tatem (Iui. 559 p r.).
V e rb a em p h a tic a u su rp a t M arcellus in controversiis decidendis seq u en tia:
a b su rd u m accid et (237/1) quis d u b ita b it (Iui. 495) n o n d u b itam u s (Iui. 405) m inor
vel p ro p e n u lla d u b ita tio est (157) sine d u b io existim andum est (76) sine dubio
(213) n o n d u b iu m est (33) in d u b ita te (120/2) n o n est d u b ita n d u m (165, 248)
m an ifestu m est (270) illud notissim um est ( 17/1 ) p lan e (60, 63/2, 283, 284 p r., Iu i.
569/6) sane (178/1, 227 p r., 5, 237/1, 255, 263) v eru m est (227/1) certe v eru m
est (60).
V e rb a m in u s e m p h a tic a u su rp a t M arcellu s: nec ta m e n ab su rd e sentiet q u i hoc
p u ta v e rit (60) co n stat (4, P om p. 377) co n stab it (108/2) co n stitu tu m d ic itu r (273)
c o n stitu en d u m est (116) n o n et illud credi potest (263) credi potest (Iui. 406)
potest d efendi (120 p r.) defendi potest (108/1) descendendum est (21/1) n o n descen­
d e n d u m est (285/1) id em d icen d u m est (33) dici solet (82 p r.) dici potest (82 p r.,
166, 190) m agis dici p otest (65) m agis d icen d u m est (34/1) d icen d u m est (82/1,
235, 255) ex istim an d u m est (76) ex istim atu r (25) existim andus est (227/2) facti
q u aestio est n o n iuris (27) facti quaestiones su n t (Iui. 290/1) h a b e n d u m est (292)
id e m est (173) in telleg en d u m est (248) intellegi potest (227/3) in telle g u n tu r (18)
in te lle g itu r (254 p r., 271) in te rp re ta n d u m est (283) eo iu re u tim u r (Iui. 559 pr.)
m agis est (227/4, 245/1, 259, 264) o b serv atu r (255) observandum est (252, 269)
(i66)
T abula L audatoria I X (coni.)
p lace t (108/3, 125/2, 134/3> Iu l; 569/7) p lacu it (242 p r., 1) p ro p e est (179)
responsum est (71, 227/3, 261) sciendum est (191, 268) m agis seq uendum est (6)
causa cognita statu en d u m est (174/4) v id e tu r (147, 161 p r., 227/4, 256) non v id e­
tu r (86, 204, 227/5) v id e b a tu r (245/1) m agis v id e b a tu r (261) v id e b itu r (204, 206/2,
2 5 °)·
5. P rim am p ersonam u su rp a t M arcellus u t seq u itu r: ego q u o q u e a d d u c o r u t
p u te m (186/2) ad sentior (272) sequendum aieb a m (263) ego consentire non
possum (82/1) n on denegam us (5) u t sic d ixerim (90, 178/1 bis) dico (153, 254/1)
d ix i (16, 65, 206/1) d u b ito (92) ego d u b ito (242 pr.) existim o (178 p r., 218/1, 2,
Iu l. 552 p r., 633) m agis existim o (267) non existim o (47) existim abim us (82 pr.)
u t in terim o m ittam (286/1) p u to (64, 273) ego p u to (267) c o n tra p u to (Iul. 425)
n on p u ta b a m (177) ego q u ae ram (242/1) respondi (110, 121, 178 p r., 1, 192 p r.)
scio (87/3) vereor (82/1) iustius m ihi v id e tu r (107/1/1).
Saepius in his fragm entis in v en iu n tu r v erba ‘(M arcellus) re sp o n d it’ q u ae an
p ro ‘resp o n d i’ su b stituta sint in in certo est (33 p r., 90, 124, 161/1, 221/1, 277 bis,
278, 279 p r., 280, 281, 282, 283, 284 p r., i, 285/1, 286 p r., 1, 2, 287 p r., 1, 288,
2 8 9 ,2 9 0 ,2 9 1 ,2 9 2 ).
6. L oca la u d a ta in v en iu n tu r: A lexandria (lu i. 425) G e rm an ia (177) R o m a
(146 q u ater).
7. L egem A eliam S entiam la u d a t a u c to r semel (134/1) A q u iliam te r (37, 237/36,
bis) F alcid iam nonies decies (126/1, 172 bis, 178/1, 233, 234, 240, 242 p r. bis,
242/4» 5 » 244, 245/1, 255, 260, Iu l. 455, 562, 565, 589/2) Iu lia m re p e tu n d a ru m
sem el (20) reg iam semel (256) SG R u b ria n u m semel (188) T re b e llia n u m q u a te r
(54, 82/1, 134 p r., 178/1) edictum C arb o n ian u m semel (100).
8. P rim us U lpius M arcellus in fr. 87/3 d e S abinianis lo q u itu r; q u am o b re m in
schola S ab in ian a n u n c u p a ta eum studiosum fuisse cred en d u m non est. N ec tam en
in P ro cu lian a, cum Iu v e n tiu m C elsum non laudet.
TABULA L A UD A T OR I A X
(i 68)

TABULA LAUDATO RIA X


Meratius Priscus
Col. Pal. 2 2 + F ra g . 188

Actiones
alio modo laudatur
concedit/ssisse

rescripserat
existimabat
existimavit

videbatur
respondit

Summa
placuit

scribit
placet

Fragmenta
Personae Palingenetica
Aristo . 1 1 1 1 1 1 6 2 , 15, 3 3 , 5 2 , 53, 59
Atilicinus 1 1 64
Caesar . 1 1 2 101 bis
Celsus pater . 1 1 52
Labeo . 2 ,, 2 47 , 48
Plautius 1 1 64
Proculus 1 1 2 6 4 , 163
Sabinus 1 1 28
Servius 1 ,, 1 11
veteres . 1 1 18 3

Summa 3 1 1 3 2 2 1 1 3 1 18

Q u ib u s ad d e n d ae su n t: alio m odo la u d a n tu r 6. D o m itia N eronis filia (58 bis)


M arcellus auctoris frater (1/43) N ero im p e ra to r (58) P aris (58) R ufinus (1/35).
Laudationes dubiae: 9. A risto 5 (110, 139, 154, 156, 176) N erv a 1 (129) P ro cu ­
lus i (178) A tilicinus Proculus 1 (104).
Laudationes duplae: 2. A risto et Celsus p a te r 1 (52) P roculus et A tilicinus 1 (64).

NOTAE
1. L au d a tio n u m 24 in his fragm entis re p e rta ru m ad iuris consultos R om anos
no m in e lau d ato s sp ectan t 15, ad im p era to rem du ae, ad auctores sine nom ine
lau d ato s u n a . In d e x laudatorius au cto ri assignatur ο·68.
2. V o cab u lu m G raecum in his fragm entis in v e n itu r u n u m (fr. 94). In d e x
L atin itatis au cto ri assignatur 22·οο.
3· T em p u s praesens u su rp at N eratiu s in his lau d atio n ib u s qu in q u ies, p erfectum
septies, im p erfectum bis, plus q u a m perfectum semel.
4. In quaestionibus ponendis u su rp a t au c to r v erb a: quod d ic itu r (13) d u b ita ri
potest (4/1, 30 p r.) q u a e ritu r (55) q u a e ri solet (50) videam us (131) illu d v id en ­
d u m est (35/1). _
R atio n es a d h ib e t au c to r: aeq u ita te m (aequ um est 5, 171; n eq u e ae q u u m est
25; p rim o aequitas, deinde exceptio 16) cap tio n em (contra statu i captiosum e rit
54) inco n seq u en tiam (nec consequens est 48) in cred ib ilitatem (non est credibile
(169)
T abula L audatoria X (cont.)
152) necessitatem p u n ien d i (ut dolus om nim odo p u n ia tu r 30/1) reductionem ad
a b su rd u m (45). I n fr. 42 ita de ratio n ib u s ponendis lo q u itu r au c to r: ‘et ideo rationes
eoru m q u a e c o n stitu u n tu r in q u iri n o n o p o rtet : alio q u in m u lta ex his q u ae certa
sunt su b v e rtu n tu r.’
I n q uaestionibus decidendis v erb a e m p h atica u su rp a t au c to r: sine d u b io (4/1,
35 p r.) d u b iu m n o n est (15) d u b ita ri n o n o p o rtet (23) plan e (15) recte (24) verum
est (32).
M in u s em p h a tic a u su rp a t v erb a: co n stitu tu m est (69) fere conveniat (54) eadem
e t fortius a d h u c d ici possunt (9) id em d icen d u m est (30 pr.) d iceretu r (24)
d icen d u m est (152) potest dici (23) d u b ita ri potest (30 p r.) existim andum est (14)
in te rp re ta ri d ebem us (23) ea in te rp re ta n d a erit (8) ita in te rp re ta n d u m est (13, 36)
intellegendus est (8) sic intellegendum est (11,33) in telleg u n tu r (13) eo iu re u tim u r
(4 P r ·) p la c e t (30 p r., 85) p lace b at (24) propius est (21 p r., 34, 35/1, 39, 51)
re cip ien d u m est (14) regula sequenda est (30/1) respondit (77, 83) m agis tu en d u m
est (82) v id e tu r (29) v id e b a tu r (23) no n potest n o n videri (1/43).
5. P rim a m p erso n am u su rp a t N eratius Priscus u t seq u itu r: existim abam us (24)
nec m e p ra e te rit (23) p u to (47) m ihi v eru m esse v id etu r (52).
6. N u lla loca in his fragm entis la u d a ta in v en iu n tu r, excepto L atio (fr. 63).
7. L eg em A q u iliam la u d a t au c to r sem el (138/16) F alcidiam bis (79, 170; cf.
169) SG N e ro n ian u m sem el (111).
(ΐ7θ
T abula L audatoria X I (cont.)
Q u ib u s a d d e n d a e su n t: ad iecit i : N erva im p. (178/32) d e tra x it 1: T itu s im p.
(178/32) d ix it 1: T h eo p h rastu s (717).
alio m odo la u d a n tu r 135. A burnius V alens (178/53) Publius Aelius (178/38 bis)
Sextus Aelius (178/7, 38 ter) A ppius C laudius (178/7, 24, 36 ter) A quilius Gallus
(178/42 bis, 43) G aius A teius (178/44) A tilius R eg u lu s (319/3) Publius A tilius
(178/38 bis) A ufidius N am u sa (178/44 bis) A ufidius T u cca (178/44) A ugustus im p.
(178/32, 43, 45, 47, 49 bis) B arbarius P hilippus (642) B rutus (178/39 ter, 44)
Iu n iu s B rutus (178/15, 24) C aecidianus (45/10) Caelius Sabinus (178/53 bis) T itus
Caesius (178/44) C alp u rnius Flaccus (217/2) A teius C apito (178/47 ter, 48, 52)
A ulus C ascellius (178/45 q u ater) C assiani (178/52) M arcus C ato (178/38 bis) C inna
(178/44) C laudius im p . (178/32) Cocceius F irm o (817) Coelius A n tip ater (178/40)
C ornelius M ax im u s (178/45) C ornelius P roculus (185) C ornelius S ulla (178/32)
T ib eriu s C o ru n can iu s (178/35, 38) Lucius Crassus (178/40) D em aratus C orinthius
(178/2) D idius Secundus (431) E nnius (178/38) G naeus Flavius (178/7 bis)
F lavius Priscus (178/44) G aius C aesar (178/46) H erm odorus (178/4) H ostilius
M an cin u s (320) Priscus Iavolenus (178/53 bis) C aesar ( = Iulius 178/32, 44)
lim iu s D io p h an tu s (193) G aius Iuventius (178/42) Q u in tu s L igarius (178/46 ter)
L onginus (178/52) B albus Lucilius (178/42, 43) M anilius (178/39 ter) M en a n d er
( 3 19 / 3 ) P u b liu s M ucius iu n io r (178/45) Q u in tu s M ucius senior (178/37) Q u in tu s
M ucius V olusii au d ito r? (178/45) N ero C aesar (178/51) N eratius A ppianus
(825) N e rv a filius (178/52) P acuvius L abeo A ntistius (178/44) P ansa (178/40)
P ublius P ap iriu s ( 178/36) Sextus P apirius (178/2, 42) P arth en iu s (836 bis) G naeus
P om peius (178/40) Sextus P om peius (178/40) P roculiani (178/52) Publicius
G ellius (178/44) P y rrh us (178/36) Q u a rtin u s (178/51) Q u in tilia (844) R em us
(818) R o m u lu s (178/2, 818) R u tiliu s R ufus (178/40) G aius Scipio N asica (178/37)
S em pronius (178/37) S uperbus (178/2) T iberius C aesar (178/48, 49, 51, 836 bis)
Q u in tu s T u b e ro (178/40) T u b ero iu n io r (178/46 ter, 51) M arcus T ullius Cicero
(178/40, 43, 46) T u scianus (178/52) V erginius (178/24) P aulus V erginius (178/40)
V espasianus im p . (178/52, 53 bis) V index V itelliorum servus (178/24) V olusius
(1 7 8 /4 5 )·
Sum m a :
Laudationes dubiae: 14. Cassius et Pegasus 1 (455) Iu lian u s 4 ( n o , 140/3, 362,
842) L ab e o 4 (89/2, 127/5, I 58? 85°) N eratius et A risto 1 (460) Sabinus 2
(107/7, 3 9 ° / 4 ) S abinus et Cassius 1 (366) T re b atiu s 1 (850).
Laudationes duplae·. 10. A risto et O ctavenus 1 (190) Cassius et S abinus 1 (726)
Cassius et veteres 1 (215/1) L ab eo et Sabinus 1 (7 8 i)N eratiu s et A risto 2 (524,
586) P roculus et Pegasus 1 (750/2) S abinus qu o q u e et Cassius 1 (423/1) Sabinus
P roculus i (521/2) T re b a tiu s et L abeo 1 (476).
Laudatio tripla : 1. N eratiu s et A risto et Ofilius 1 (498 p r .) .
Laudatio quadrupla : 1. Sabinus et Cassius . . . Proculus et N erva 1 (448).

NOTAE
1. L a u d a tio n u m 442 in his fragm entis re p e rta ru m ad iuris consultos R om anos
no m in e lau d ato s sp ectan t 361, a d im peratores 30, ad auctores sine no m in e
lau d ato s 16. In d e x lau d ato riu s au cto ri assignatur 2-51. P ra e te re a existim andum
est P o m p o n iu m in libris quos ad Q u in tu m M u ciu m ad S ab in u m necnon ex
P la u tio scrip serit hos auctores sub silentio saepius laudasse.
2. V o c a b u la G ra eca in his fragm entis la u d a ta in v en iu n tu r p ro certo 21, dubie
u n u m (122?, 178/37, 179/2, 4, 190, 717, 751 p r.). In d e x L atin itatis auctori
assig n atu r 6-86.
(172)
T abula L audatoria X I (coni.)
3. T em p u s praesens u su rp a t P om ponius in his lau d atio n ib u s centies tricies
sexies, p erfectum sexagies, im perfectum vicies sem el, plus q u a m perfectum sem el.
4. I n quaestionibus ponendis u su rp a t au cto r v erb a: consulebat (315) q u id
co n tin etu r (240/2) nec co n tu rb a ri debem us (535) quod d ictu m est (281/1) diffi­
cultas erit (254) d u b ita tu m est (748/4) d u b ita ri potest (256/2, 409, 489 p r.)
d u b ita re tu r (231) q uid ergo est (363, 751/2) q uid ergo (751 /1 ) finge (725, 799
p r.) h a e sita tu r (735) inspiciendum (159/1) tu q uid p u tas? (210) q u ae ro (a con­
sulente d ictu m : 201) em ptor q u ae reb a t (306) q u ae ren d u m est (831 p r.) q u aerem us
(285) cu m q u a e ra tu r (701/1) q u a e ritu r (202, 203/2, 286/2, 559/2, 751 p r.) q u ae ri
solet (213) q u aeri potest (210) q u a e re b a tu r (274 pr.) si q u a e re re tu r (356 pr.)
q u aesitu m est (262, 320 bis, 433/1, 702 p r., 831/2) req u iren d u m est (285) rescribe
(208 p r.) u t obiter sciam us (178/49) spectan d u m (150) videam us (574/2, 750/2)
v id en d u m e rit (210) an v id eatu r (255/1) videndum est (161, 212, 307, 369, 444/3,
4 9 3 pr·, 509/2, 530, 600/2/4, 7 5 1/ 2a 8 o 7 P r -> 814/1, 837/1, 838/1) v id en d u m (34,
130/8) videndum ne (64/1).
R atio n es a d h ib et a u c to r: aeq u itatem (aequum est 171/9, 307, 708/3, 4 ; n o n
est in iq u u m 6; nec in iq u u m est 81 ; n a tu ra aeq u u m est 684; in iq u u m est 556/1/5;
681 /1 ; n o n aeq u u m est 616/1 ; h ab e t sum m am aeq u ita te m 748 p r. ; iu re n a tu ra e
ae q u u m est 829; b o n u m et aeq u u m 602; aequissim um est 60, 134; iniquissim um
est 690) am b ig u itatem (779/1, 2) ben ig n itatem (benigna in te rp re ta tio 203/1,
624) co m m o d itatem (388) consequentiam (102/3, 103/1 ) convenientiam (con­
veniens est 238/1, 532; inconveniens est 284; nec co n tra riu m est 348; nec o b stat
quo d 574/2) d u rita te m (590/2) elegantiam (elegans est illa distinctio 226) exem plum
(25 5 /0 h o nestatem (et verius et honestius est 245) h u m a n ita te m (hum anius est
474, 779/2 j hu m anius erit 482/1/2; h u m an itatis in tu itu 394/2; satis in h u m a n u m
est 797/1 ; hu m an ius in te rp re ta ri solem us 203/2) inco g itab ilitatem (361) interesse
p u b licu m (612) ius civile (323, 425, 430/2) lib ertatem (520) n a tu ra m (444/3,
684, 777/1,829) necessitatem (265, 612) ratio n em (rationabilius esse v id e tu r 255/2;
p a r ra tio est 492; non sine ratio n e est 285; eadem ra tio est 208/2; ra tio n e m 262,
552 p r., 712) sanguinem (iura sanguinis nullo iu re civili d irim i possunt (430/2)
legis sen ten tiam (851) verisim ilitudinem (355/1) scribentis v o lu n tatem (296)
testatoris v o lu n tatem (414, 426/1).
In controversiis decidendis u su rp a t Pom ponius v erb a em p h atica u t seq u itu r:
certe (397, 572) certum est (702 pr.) nec u n q u a m convenit (599/2/1) sine d u b io
(68/2, 78, 193, 226, 232, 261 p r., 509/1, 599/2/2, 600/2/3,620, 725) n o n est d u b iu m
(748/4) nem o d u b ita t (253) n u lla d u b ita tio est (394 p r.) d u b ita ri no n potest (201)
sine u lla d u b itatio n e (490/2) non d u b ita tu r (750 p r.) procul d u b io (832) no n erit
d u b iu m (725) n on est d u b iu m (748/4) sine d u b itatio n e (825) p a la m est (206)
p lan e (134, 226, 244) recte (174, 254, 261/1, 264, 294, 303/1, 389, 400 p r., 524
p r., 616/1, 631/2, 726) rectissim e (261/2) sane (307) sen ten tia stolida est (361?)
verissim um est (203/3, 275/1) est verum (555) verum est (244, 246 p r., 290, 336,
509/2, 544, 554/1/2, 751/1, 789 p r., 803/1) ita verum est si (487/1, 584/2, 696/1)
est hoc verum (266) vera est opinio (805/1) v erum n o n est (725) n o n est verum
(514/2, 599 p r., 615/2) nec verum est (799/3) aeque erit vera sen ten tia (244)
v era est definitio (244) vera sunt (322) ex p a rte verum est, ex p a rte falsum (261).
V e rb a m inus em p h atica u su rp a t au c to r: ac cip itu r (797/2) n o n est accip ien d u m
(255/1) ita accipiendum est (281 p r.) sententia a d m itte n d a est (423/1) idem
aestim an d u m est (540/1) an im ad v erti d eb eb it (761/1) an im ad v e rten d u m est (514
p r.) nec aliu d constitui potest (724/4) constat (178/14, 15, 364, 381, 417, 511,
554/2, 593, 646, 688/1, 701/1, 751 p r., 755/2, 768 p r.) co n stab it (394/2) c o n tra erit
(758) co n tra est (601/8, 769 pr.) eo decursum est (433/1) p o test defendi (624)
d icen d u m est (214/1, 238/1, 293/1, 309, 615/1, 2, 620, 681/1, 685, 699/2/1) d ictu m
( i 73 )
T abula L audatoria X I (coni.)
est (722/3) id em d icen d u m est (588) m agis dicen d u m est (249) m elius d icetu r
(600/2/3) d ic e tu r (261/1) m elius est dici (797/1) desinit dici (264) dici d eb e t
(546/2) elegantius dicere p o te rit (210) idem erit d icen d u m (574/2) potest dici (49,
147>427, 512/1, 755/3) d ic itu r (262, 294, 559/1, 615/2, 631/2, 726) idem dicen d u m
est (210, 394/1, 588, 683, 760/3) id em dicim us (696/1) dicim us (497/1, 513,
802) d icen d u m (203/1, 616 p r.) d ic u n tu r (375 pr.) dicem us (178/13) eadem
dicem us (744) id em dicem us (600/2/5) ead em dicenda sunt (699/2/1) ea d icen d a
su n t (471/1) dici n on potest (346) dixim us (178/33) nihil d ista t (496/2) elegans
est d istin ctio (226) id em est (225, 319/2, 487 p r., 724/4, 805/2) idem erit (374
p r., 396/3) illu d ita est (741) potissim um existim ari (750/1) existim atur (320)
facti n o n iuris h a b e t q u aestionem (255/2) fa te n d u m est (750 pr.) id em fiet (783
p r.) h a b e tu r (490/2) h a b e n tu r (231, 521/1/pr.) h a b e n d u m est (706, 731) nec
h a b e n d a est (805 p r.) h ab e ri debet (537/2) idem si (246/1) intelleg itu r (175 p r.,
200 p r., 233, 234/2, 308/4, 319/1, 322, 3 3 4 P r ·, 3 7 9 , 388, 400 p r., 426/3, 451,
496/3, 5 3 3 /L 543 pr·, 1 bis, 552 p r., 554/1, 595/1, 652, 731, 768/1, 776) intellegere
debem u s (208 p r.) in telleg en d a est (376, 715) ita intellegenda sunt (228/1/2)
intellegendus est (493/1) intellegi n o n potest (490/1, 540 p r.) intellegetur (234/1)
in telleg im u r (286/1) intellegim us (513 bis) n o n intellegeretur (246 pr.) intellege­
re tu r (606, 686) in telle g u n tu r (838 pr.) no n in telleg u n tu r (748/1) intellegendum
est (760/3, 805/5, 814 p r., 1) potest intellegi (543 p r.) n o n in telleg itu r (260)
m agis in telleg en d u m (523) intellegor (256/2) nih il interest (129, 238) m u ltu m
in terest (244, 509/2) nec interest (397) in te rp re ta ri solemus (203/2) in te rp re ta n ­
d u m est (296) idem iuris est (564, 768 pr.) hoc iuris est (496 p r.) id iuris est (665)
hoc iu re u tim u r (262, 422/2, 572, 792) u tim u r eo iu re (350) quo iure u tim u r (29)
alio iu re u tim u r (226) latius est (241) locum h a b e t (782 pr.) m agis est (258,
444/3, 669/1, 814/1, 831 p r., 2, 838/1) n o ta n d u m (28) observandum est (827)
o b serv aretu r (426/2) ead em observari conveniet (190) o p tim u m est (252) vix id
o p tin ere p otest (212) eo p e rd u c im u r u t (261 p r.) placet (223, 432, 475, 528/1,
594, 680, 748/4, 757, 799/3, 833) no n p lace t (732) m agis p lacet (403) p lacu it
(178/4, 26, 188, 426/1, 569, 740, 844/7) sen ten tia p o rrig en d a est (2) nec p ra e te r­
m itte n d u m (584/2) definito p ro b a n d a est (246/1) m agis p ro b a tu r (286/2) p ro c ed it
(805/2) pro p iu s est (489 p r., 696/1, 747) p u ta verius esse (193) referri d eb e t (238/2)
n ih il refert (748/5) p a rv i refert (61) resp o n d it (193, 315) responsum est (226,
255/1, 3 19/3s 3 2° p r., 4 9 ° /I > 631/2) resp o n d en d u m est (316) resp o n d en d u m erit
(520) scien d u m est (244, 284, 307) sciendum erit (241) secundum sen ten tiam q u a
u tim u r (384) seq u en d u m est (535) id em serv an d u m (670) id servatur (228/2) nec
n o n est serv an d u m (8) sta tu e n d u m est (616/1 ) statu i deb eb it (778/1) in usu est
(708/8) v eren d u m n e (157/12, 370) videberis (769 p r.) v id e n tu r (213, 489/1, 621)
v id e re tu r (228/2) n o n videris (313) videris (733 p r.) visum est (274 p r.) non
v id e tu r (130/7, 266, 412, 445, 509/1/5, 509/3/6, 601/7, 9) n o n videor (482/1/2)
v id e tu r (130/7, 152, 219, 226, 228/1/3, 231, 244 bis, 248, 255/2 bis, 257, 261 p r.,
286/2, 344, 553/1/4, 638/3, 675/4, 774 p r. bis, 775, 779/2, 831/1) non potest videri
(205 p r.) n o n v id e n tu r (401) n o n est visa (319/3) quasi videaris (563) videbor
(256/2) v id e b itu r (268) verius est (245, 252, 513, 600/2/4, 696/2, 735, 781)
sen ten tia v erio r est (788) vix est u t (805 p r.).
5. P rim a m p erso n am u su rp a t au c to r u t seq u itu r: dixim us (254, 418) u t
dixim us (178/2, 23, 274/1) p ae n e d ixerim (722 pr.) ego didici (a consulente
d ic tu m : 193) d u b ito ? (764/2) n o n d u b ito (349/2) d uxi (a consulente d ic tu m :
190) existim o (756) existim avim us (208 p r.) ego m em o r sum (a consulente d ictu m :
190) m ih i n o n p lace t? (156) verum p u to (696/2) verissim um p u to (389/1)
sen ten tiam p u to v eram (432) m agis p u to (812/1) ita verum p u to (514/1) p u to eum
vere d icere (210) p u to v eru m esse (440 p r.) n o n p u to (715, 741, 746/1, 807 pr.)
( i 74 )
T a b u l a L a u d a t o r i a X I (coni.)

ego n o n p u to (807 p r.) co n tra p u to observari d eb ere (601/10) no n p u to fo rtiter


posse defendi (226) ego p u to distin g u en d u m (769 p r.) p u to verius esse (648)
co n tra p u to (514/1) p u te m (628) p u to rem esse distinguendam (805/3) p u to eadem
dici posse (744) p u to in te rp re ta n d u m (203/1) p u to (226, 409, 474, 580 p r., 616
p r., 737> 7 5 5 /1) velim rescribas (a consulente d ictu m 193) scio (200 p r.) subieci-
m us (244).
6. L oca in h is fragm entis la u d a ta in v e n iu n tu r: A frica (178/46) A lgidum
(178/24) Asia (63/5?, 178/40, 513, 699/2 p r.) A ventinum (178/24) B rundisium
(5 5 3 / 1/4 bis) C apitolium (200 p r., 253 bis, 700) C a p u a (200/1 bis) C arth ag o (319/3;
C arthaginienses 178/37 bis, 319/3) C ercina (178/34 bis) E phesus (E phesius 178/4)
G ades (420/1) G raecae civitates (178/4) H isp an ia (178/32) Ita lia (58?, 178/4,
422/2 bis) cam pus M artiu s (533/2) N arbonensis provincia (178/32) N u m a n tia
(N u m an tin i 320) R o m a (178/40, 47, 319/3 bis, 420/1, 500/2 bis, 642?, 699/2
p r., 1) S ard in ia (178/32) Sicilia (178/32) T iberis (178/31 bis) T ro ia (296).
7. L egem la u d a t Pom ponius A eliam S entiam semel (217/1 ) A q u iliam duodecies
(75 bis, 90, 214/1, 274 p r., 277, 325 bis, 374 p r., 703, 744 bis) F alcid iam bis necnon
d u b ie semel (164?, 215 bis) H ortensiam semel (178/8) X I I ta b u la ru m quindecies
( i 7 8 / 4 5 5? 6 bis, 8, 23, 24, 25, 36, 248, 264, 275/1, 277, 356 p r., 784/2) SC
M aced o n ian u m semel (824) T re b ellia n u m bis (190, 214/1) edictum C arb o n ian u m
sem el (141/8) d ecreta F ro n tia n a sem el (806).
TABULA L A UD A T OR I A X II
(1 76)

TABULA L AU D A T O R I A X I I
Terentius Clemens
Col. P al. 5 + F rag. 37

Laudatio dubia: n u lla. Laudatio dupla : n ulla.

NOTAE
1. L au d a tio n u m 16 in his fragm entis re p e rta ru m ad iuris consultos R om anos
n om ine lau datos spectant 15, ad auctores sine nom ine laudatos u n a m . In d e x
lau d ato riu s au cto ri assignatur 3-00.
2. N u llu m rep eri tu r v ocabulum G raecu m in his fragm entis.
3. T em p u s praesens u su rp a t au c to r in his lau d atio n ib u s decies, perfectum
q u a te r, im perfectum bis.
4. I n quaestionibus ponendis u su rp a t au cto r v erb a: d u b ita ri p o test (5/1) belle
d u b ita tu r (8/2) u t ex p ed iatu r quaestio (5/1) q uid iuris sit? (14) q u a e ritu r (8 p r.,
12, 23 p r.) q u ae ren d u m est (5 p r., 1) quaesitum est (16).
R ationes a d h ib e t au c to r : ae q u ita te m (aequius esse v id e tu r 31 ; iniquissim um
v id e tu r 1) legis sententiam (19 pr.) ratio n em (8/2) u tilitatem (utilius est dicere
5 p r .; rei pu b licae u tilitatem 15/1).
In quaestionibus decidendis u su rp a t T eren tiu s v erb a e m p h a tic a : p lan e (20)
rectissim e (12) sane (8/2) hoc v eru m est (8/1, 29/1).
V e rb a m inus em p h atica u su rp a t u t seq u itu r: idem iuris acco m m o d atu r (19 pr.)
ius co n stitu tu m p e rtin e t (17) ead em e ru n t d icen d a (8/1) eadem d icen d a su n t
(33) id em d icen d u m erit (19 p r.) d icen d u m est (17, 28/1) aliud dici o p o rtet (29/2)
d irim en d u m est (23 p r.) in telle g u n tu r (7) intellegenda est (17) in telleg itu r (18,
21/2) intellegendus est (22, 26) in te rp re ta n d u m (15/1) in te rp re ta ri v id e tu r (11).
( 177 )
T a b u l a L a u d a t o r i a X I I (coni.)
p lace t (19/1, 32) p lacu it (22) responsum est (31) resp o n d etu r (2) no n id em ius
trib u e n d u m (19/2) m agis v id etu r (8/2) v id e b itu r (21 p r.) v id etu r (30, 31).
5. P rim am perso n am u su rp a t au c to r sem el: ego didici (36).
6. Locus in his fragm entis la u d a tu r nullus nisi R o m a (7).
7. L egem la u d a t T eren tiu s A eliam S en tiam bis (16, 21/1) F alcidiam q u a te r
(8/2, 13 ter).

825155 N
TABULA LAUDATO RIA XIII

Aburnius Valens
Col. P ai. 4 + F r a g . 22

Actiones

alio modo laudatur

putavit/erunt
constitutione

pronuntiavit

videbatur
respondit

Summa
scribit
+-» Fragmenta
Personae 3 Palingenetica
Arrianus Severus . 1 1 17 pr.
Atilicinus 1 1 14
Campanus . 1 1 20
Iavolenus 1 ,, ,, 1 22
Iulianus 1 1 , . 2 10, 18
Nerva 1 1 14
Octavenus . 1 1 12 pr.
Pegasus 1 1 2
Traianus imp. 1 1 2 17 pr., 1

Summa 1 1 1 1 3 2 1 1 11

Laudatio dubia·, nulla.


Laudatio dupla : 1. N erva et A tilicinus 1 (14).

NOTAE
1. L a u d a tio n u m 11 in his fragm entis re p e rta ru m ad auctores R o m an o s nom ine
lau d ato s spectant 8, ad im peratores 2. In d e x lau d ato riu s a u c to ri assig n atu r 2-00.
2. N u llu m in v en itu r in his fragm entis v ocabulum G raecum .
3. T em p u s u su rp a t au c to r in his lau d atio n ib u s praesens bis, p erfectum sexies,
im p erfectu m semel.
4. In quaestionibus ponendis u su rp a t A burnius V alens v e rb a : d u b ita b a tu r (10)
q u a e ritu r (15) q u a e re b a tu r (10) quod tra d itu m est (4).
R a tio n e m ad h ib et solam iustitiam (quod est iustius 12 p r.).
In quaestionibus decidendis v erb a u su rp a t em p h atica : d u b iu m n o n est (13 p r.)
recte (10, 14); nccnon m inus em p h atica : constat (16) id em d icen d u m est (12/3)
p lacu it (10, 17/1, 19/1 ) m agis p lacu it (15) v id etu r (20) v id eb itu r (4).
5. P rim a m personam non u su rp at auctor.
6. L o cu m n u llu m in his fragm entis lau d at.
7. Legem Fàlcidiamlaudat auctor bis (11 bis) SC Trebellianum bis (13 pr. bis).
TABULA LAUDATORIA XIV

Claudius Venuleius Saturninus


Col. Pai. 15 + F rag. 78

Actiones
alio modo laudatur

1nullum verbum
existimat/ant

|non putabat
existimabat

|placuit/isse
adiciebant

introduxit

1prohibuit
constituit

1sententia
Summa
epistula

1scribit
Fragmenta
Personae c3 Pai ingenetica
Caelius (Sabinus) 1 1 2/2
Cassius 1 1 1 3 2 /1 , 2 9 pr., 69
ceteri diversae
scholae auctores 1 1 6 0 pr.
Hadrianus imp. 1 1 1 3 3 5 / 1 , 4 2 pr., 4 6
Iulianus . 3 3 5 4 , 5 6 , 5 7 /1
Labeo 8 1 1 10 11 bis, 1 7 / 3 , 1 9 / 1 ,
2 4 /2 , 2 6 /1 bis,
2 7 /3 , 5 3 /7 , 7 2 /2
Lentulus . 1 1 3 5 pr.
Mela 1 1 28
Quintus Mucius 1 1 2 7 3 bis
Nerva filius 1 1 67
Ofilius 1 1 11
Proculus . 1 1 1 1 4 2 7 / 1 /5 , 5 7 pr., 60
pr. bis
quidam 1 1 2 6 /1
Sabinus 2 1 1 4 5 3 / 5 , 6 0 pr., 7 2
pr., 73
Servius 1 1 13
Trebatius 2 1 3 1 1 , 1 7 / 3 , 2 1 /1
veteres 1 1 9 pr.

Summa 1 16 1 1 1 6 1 1 3 1 2 1 4 2 41

Q u ib u s a d d e n d a e su n t: alio m odo la u d a n tu r 13. A m phidam as (52/8) C ornelius


S u lla (35/4, S ulla 35 p r.) C o tta (35/3) D em osthenes (52/6) G labrio (35/1) L epidus
(32) M en o etiu s (52/8) M essala (35/3) N e ratiu s Priscus (45) T a u ru s (32) T rio
(3 5 Ρ Γ·) A n nius V erus (45).
Laudatio dubia : nulla. , . , ,
Laudationes duplae: 3. Ofilius et T re b atiu s 1 (11) ; Q u in tu s M u c iu se t Sabinus 1 (73) ;
P ro cu lu s e t ceteri d iversae scholae au cto res (60 p r .) .
(ί8ο)
T a b u l a L a u d a t o r i a X I V {coni.)
NOTAE
1. L au d a tio n u m 54 in his fragm entis re p e rta ru m ad iuris consultos R om anos
no m in e lau d ato s spectant 35, ad im p erato rem 3, ad auctores sine no m in e la u ­
datos 3. In d ex laudatorius au cto ri assignatur 2-33.
2. V o cab u la G raeca in his fragm entis in v en iu n tu r 94, q u o ru m o m n ia in fr. 52
co n tin en tu r (70 in fr. 52/6, 24 in fr. 52/8). In d ex L atin itatis au cto ri assignatur
ο·ι6.
3. T em p u s praesens u su rp a t a u c to r in his lau d atio n ib u s vicies sexies, perfectum
quinquies, im perfectum ter.
4. I n quaestionibus ponendis u su rp a t au c to r v e rb a : q u id dicem us (59/1)
d u b ita tu r (69) inspiciendum est (53/4) q u a e ritu r (53/2, 59/1) v id e n d u m est
(26 p r.).
R atio n es ad h ib et V enuleius : com m oditatem (com m odius est 4) convenientiam
(secundum q u ae 59/1) n a tu ra m (n a tu ra lite r 19/1 ; n a tu ra 53/6; n atu ra lis obligatio
56 ; n a tu ra venditionis 62).
I n quaestionibus decidendis u su rp a t au c to r v erb a em p h atica : a p p a re t (19 pr.)
certe (26/1) in d u b ita te (64) m anifestum est (8/1) p lan e (56) sane (10) su p er­
v acu u m est (1, 9 p r.) vera est sententia (73).
V e rb a m inus em p h atica u su rp a t V enuleius u t seq u itu r: accipiendae su n t (24/5)
ad icien d u m est (24/2) colligitur (59/1) colligi potest (25) consideranda sunt
(52 p r.) co n stitutum est (32) fere convenit (59/1) dicem us (61) idem d icen d u m est
(35/4) potest dici (72/1) dicendum est (58) nec existim andos (19 p r.) in telleg itu r
(26/1, 72/2) n ih il interest (5) m agis est (53/2) n o n idem o b serv ab itu r (5) idem
o b servandum (64) eadem observanda (35/3) observari d eb e n t (57/1) nec ad rem
p e rtin e t (53/6) placet (74) sciendum est (53/8) idem servandum est (24/4) verius
est (3 p r.) v id etu r (1, 72/2) v id e b itu r (17/5) non v id e b itu r (63, 71) n o n potest
vid eri (70) v id en d u m est (26 p r.).
5. P rim am personam u su rp a t au c to r bis : p u to ( 17/1 ) ego cum . . . sentio (60 p r.).
6. L oca in his fragm entis la u d a ta in v en iu n tu r: A frica (52/9) A th en ae (A thenaei
52/6) Ephesus (53/2 sexies, 53/4 bis) G raecia (G raeci 52/6, 8) M ysia (52/9)
O poens (52/8) R o m a (53/2, 4).
7. S ecundum K unkelii opinionem n o n idem est V enuleius S atu rn in u s iuris
consultus q u i C laudius S atu rn in u s; qu o d verisim ile v id etu r. S im plicitatis tam en
causa L enelii red actionem secutus sum .
8. Legem C orneliam la u d a t V enuleius semel (46) C orneliam in iu ria ru m semel
(3 5 / 4 ) Iu liam iudiciorum p u b lico ru m semel (35/2) Iu liam de vi p riv a ta semel
( 3 3 / 4 ) Iu liam m aiestatis semel (38) Iu liam re p e tu n d a ru m semel (40/2) Iu lia m
peculatus bis (41 p r., 1) P om peiam p arricid ii semel (35/4).
INDEX
Aburnius Valens, 18, 21-22, 27-28, 30, Cicero, 9 n., 12.
32 , 3 4 · Classification, xiii, 97-104.
Achaea, 90, 92. Claudius, 61-62.
Aelius Spartianus, 50. ‘Codification’ of the edict, 54, 69, 88.
Africa, 48-49, 69, 95. Collatio, 127.
Africanus, xv, xvi, 9 n., 41, 73, 95. Commodatum, 63-65, 99.
Alexandria Troas, 85-89, 92-96. Commodus, 15, 117-18.
Alexandria, 87. Constitutio Antoniniana 55.
Alfenus Varus, 12.
Amphipolis, 87. Daube, xiii, 82.
Ancyra, 87. Dediticii, 96.
Antioch, 87. Delicts, 101-2.
Antonine route, 87-89. Depositum, 63-65, 99.
Antoninus, 56, 58—61, 67; see also M ar­ Didius Iulianus, 50.
cus A ntoninus; Pius. Dio Cassius, 15 n.
Lex Aquilia, 103. Divi fratres, 7, 35, 50, 53, 68-69.
Aristo, xvi, xvii, 24. Dotalicion, 96.
Aristotle, 97, 100-10. Dyrrachium, 85-89, 93-94.
Asher, xii.
Asia, 75, 87-88, 90, 92, 95. Edessa, 57.
Augustus, 18, 82, 83. Edictal commentaries, 30-31,67,73,76,
Aurea, xii, 14, 68-69, 94, 96-97, 99, 91; see also Provincial Edict, U rban
101, 104, 113-16. Edict.
Avidius Cassius, 118. Ad Edictum Praetoris Urbani, 30, 66-
69, 72, 80, 88, 91-92, 95.
Berytus, 45, 85-89, 92, 94, 96, 112, 126. Ad Edictum Provinciale, xiii, 4, 35,
Bithynia, 87-88. 52, 66-69, 72, 75> 79-80, 88-92, 94,
Brindisi, 87. n o , 113, 127.
Byzantium, 87. Emesa, 45.
Ephesus, 76, 97 η. 2.
Caelius Sabinus, 18, 22, 30, 40, 72. Epirus, 89.
Caesarea, 86-87. Epitome Gai, 127.
Caligula, 17 n. 3. Equity, 37-38.
Callipoli, 87. Establishment, 38-39, 117-25.
Callistratus, 41. Eutropius, 50.
Capito, 18-20, 22, 37.
Cassian law school, 18-25, 32· De Fideicommissis, 66, 68-69, 95-96.
Cassiani, 19, 36. De Tacitis Fideicommissis, 68-69, 95 ~
Cassii, 15-16, 117. 96.
Cassius Longinus, jurist, 2-3, 9-11, 13- Fiducia, 64-65.
16, 18-20, 22-23, 25-26, 29-32, 39- Fitting, I η., n n.
40, 42, 62, 65, 79, 88, 113, i i 7, 130. Florentinus, xii.
Cassius Longinus, philosopher, 16. De Formula Hypothecaria, 68, 96.
Celsus filius, 18, 21-25, 35, 40, 51, 59, Fulcinius, 42.
60, 73, 79, 81, 95, 113, 123, 128-9. ‘Furor Cassianus’, 118.
Celsus pater, 18, 21-23, 40.
Christianity, xiii n. 2. Gaius : birth, 70-71,75,77,86; name, xi,
Chronological tables, 34, 69, 92, 96. 2, 12-17; home language, 70, 72-75;
182 IN D EX
Gaius— (cont.) 27-28, 30-32, 35-36, 39-42, 44-57,
citizenship, 70-72; domicile, 70, 75- 59-60, 64, 66-69, 73-74, 78, 80-81,
96; legal education, 28-34, 44, 86; 84, 88, 95, 112-13, 123-4, 129.
travels, 87-88; career as teacher, 33- Julius Caesar, 117-18.
34, 59, 62, 80-96; teaching methods, Julius Capitolinus, 117.
65, 105-6, i n - 1 2 ; rate of compo­ Justice, 100-1.
sition, 91-92; dates, xi, 46, 58-69, Justinian, xi-xii, 46, 80, 83, 91, 120,
91-96; diffidence, 81-82, 84; hum an­ 126-30.
ity, 71, 105; independence, 117-25;
irony, 33-34, 85-88, n o , 117-25; Kunkel, 12, 46, 48-50, 54, 76.
opinions, h i ; originality, xii-xiii,
63-65) 101,113; philosophy, 97-111 ; Labeo, xviii, 7 n., 18-22, 24, 36-39, 41-
snobbery, 112. 42, 113, 128.
‘Gaius noster’, xi, i - n , 26, 85, 128-9. Legatus, 92-95.
Galatia, 88. Lenel, xix, 35, 73, 86.
Aulus Gellius, 34. Livy, 122.
Germany, 48-49. Longinus, 21-22.
Geta, 42.
Ad Legem Glitiam, 96. Macedonia, 87, 89-90.
‘Gnaeus noster’, 9 η. Maecianus, 4, 7 ,9 ,15,40,50,73-74, 124.
Greece, 88. De Manumissionibus, 14, 68-69, 95-96.
Greek, 70-75; 87, 129. Marcellus, xiv, 7, 35-36, 40-42, 45, 73-
Guarino, 46.
74‘.
Marcianus, xii, 40-41, 120.
H adrian, xi, xiii-xiv, 13, 15-16, 28- Marcus Antoninus, 2, 44, 53, 67, 69, 73,
29 ) 33 - 35 . 46, 5 1) 53 - 57 . 60-69, 80, 118.
82-85,91, 102, 117, 118, 121-3. Minicius, 22.
Hadrum etum , 49. Modestinus, xi, 40-43, 72, 127, 129.
Heraclea, 87. Mommsen, xi, xiii, 85-86, 88.
Lex Hortensia, 120. Ad Q uintum Mucium, 55, 66-67, 69,
78 , 85, 91.
Iavolenus Priscus, xiv-xvi, 2, 3, 13, 18, Quintus Mucius, 1, 3-4, 9, 41-42, 64,
22, 26-28, 30, 36, 39-40, 49, 59-60, 81, 84, 117.
65, 72, 74, 79, 81, 113, 128.
Institutes, xii, 14, 29-31, 33-35, 58- Ncratius Priscus, xvi-xvii, 18, 21, 23-
69, 72 - 73 , 75 , 81, 9 i - 94 , 96 - 97 , 100, 24 , 37 - 38 , 40, 4 2 , 64, 72, 74, 79, 123.
108, 112, 115-17, 120, 124, 127-8. Nero, 19, 62, 88, 117.
Italy, 77, 91. Nerva filius, 18, 19, 21-22, 40.
Itinerarium Antonini, 87-89. Nerva imperator, 82, 84.
Ad Legem Iuliam et Papiam, 30, 68-69, Nerva pater, 18-23, 25, 29, 40, 113.
92, 94, 96· Nicomedia, 87.
Ius gentium, 107-8. ‘Nos’, 70-71.
Ius Italicum, 8 6 - 8 8 , 9 2 . ‘Noster’, xi, 1-11, 26, 85, 128-9.
Ius naturale, 106-10. ‘Nostri praeceptores’, 19, 24-35, 118.
Ius respondendi, xi, 45,82-85, 102, 123.
Obligations, 97-104.
Jerome, 46, 54. Oeta venus, 24, 41.
Jokes, 17, 82-84, I28. Ofilius, 24, 39.
Jolowicz, xi, 13. SC. Orfitianum , xi, 58, 69.
A. Η. M. Jones, 124. Ad SC. Orfitianum, 58, 69, 91-92, 96,
Julia Domna, 45. 126.
Julian (Salvius Iulianus), xii, xiii, xv,
2-3, 7-9, I3- I 4, l6 > l8, 20, 22-23, Pactumeius Clemens, 24.
IND EX 183
Papinian, 40, 42-45, 128-9, 130. Servius Sulpicius, xv, 24.
Papirius Fronto, 41. Severan age, 39-45, 78, 95, 112.
Paul, xi-xii n. 4, 4-6, 8, 15, 25, 41-42, ‘Si navis ex Asia venerit’, 75, 88, 90, 95.
51, 86, 127-30. Slaves, 61, 105.
Pegasus, 18, 21-23, 40. Socratic method, 65, i n - 1 2 .
Peregrini, 77-78. Spain, 48, 69, 90.
Philippi, 86-88. Stein, 102.
Pignus, 63-65, 99. Syria, 15-16, 45, 49, 88, 90, 93, 118.
Cn. Piso, 90.
Pius, xiii-xiv, 2, 4, 7-8, 35, 50-51, 55- X II Tables, 30, 68-71, 95-96, 106.
56, 59-62, 67-69, 88, 94, 117, 123-4. Tacitus, 50, 90.
Pomponius, 1-4, 9-12, 14, 18-21, 24- Tenses, xiv-xvi, 5, 9, 24-25.
26, 28, 35-38, 40-42, 44, 46, 51, 54- Terentius Clemens, 4, 8, 74.
57, 59, 69, 72-75, 78-84, 95, 113, Theodosius, xi, 129.
123, 127, 129. Thessalonica, 87.
Praeses, 90, 93. Thrace, 87.
Priscus, 22. Tiberius, 20.
Proconsul, 89-90, 93-94. Titus, 82, 84.
Proculian school, 10, 18-45, ! I I > 128. Traianopolis, 87.
Proculus, X V , 18-19, 21-23, 25-26, 29, Trajan, xiv, 3, 15, 42, 61-62, 82-83.
3 1, 4 °, 4 2 , 113, 130. Trebatius, 24, 42, 113.
Provincial Edict, xiii, 14, 35, 52, 66-69, Troas, 85-89, 92-96.
72, 75, 79-80, 88-92, 95, n o , 113, Tryphoninus, 4, 6, 40-41.
127. Tuscianus, 18, 22, 27-28, 30, 32, 34.
Provincial land, 124-5. Tyre, 85.
Tyrian purple, 75-76.
Quasi-contracts, 103-4.
Quasi-delicts, 102-3. Ulpian, xi-xii, 15, 25, 35, 40, 42-43, 45,
85-86, 120-1, 127-30.
Real contracts, 63-65, 97-101. U rban Edict, 30, 66-69, 72, 80, 88, 91-
Regulae, 96. 92 , 95 ·
Republicanism, 38, 117. ‘Urbs R om a’, 76-77.
Res Cottidianae, xii, 14, 68-69, 94 , 96- Urseius Ferox, 2, 3, 13, 22.
97, 99, 101, 104, 113-16.
Responsa prudentium , 121-2. Fulvius Valens, 7, 27, 41, 74.
‘R om a’, 76-77. Venuleius Saturninus, xiv, 14, 35, 73-
75·
Sabinian school, xiii, xv, 8, 10, 13, 18- De Verborum Obligationibus, 14, 66,
45, 46, 69, 78, 84-85, 92, 101, i n , 68-69, 95-96.
118, 128. Verus, 50, 69.
Sabiniani, 35. Vespasian, 19, 62, 119.
Sabinus, xv, xvi, xviii, 2, 16, 18-23, 25, Villey, 113.
29-32, 38, 39-40, 42 , 4 4 , 6 2 , 64-65, Vindius, 7-9.
79 , ” 3 , ^ o - Vivianus, 42.
Cervidius Scaevola, 4-6, 8, 40-42, 45, ‘Vorlage’ theory, 63-65.
73-74, 120.
Septimius Severus, 43-45. Women, 71, i n .
Serapias, χΐ.
Servius Cornelius, 69. Xenophon, 71.
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