198 GAIUS. prefeiTed for instruction to Papinian, Paulus, and Ulpian, unless he were a more modern and there- fore, for some purposes, a more useful writer than those celebrated jurists ? Why also, it has been asked, was Gains, in preference to names as emi- nent as his, introduced into the Westgothic Lex Romana^ Why were the Institutes of Gaius made to serve as a basis for those of Justinian, if it were not that nothing more applicable to the state of the law then in force were extant ? The only answer that can be given to such inquiries is that good elementary works, when they take ground unoccupied before, are not easily dispossessed. Are not Blackstone's Commentaries^ and even Coke on Littleton^ still in the hands of English law students, notwithstanding the legislative changes which have superseded great parts of their con- tents ? Later compilers content themselves with the path of those who have gone before ; and we find in the fragments of an elementary work of Ulpian (the Tituli esc Corpore Ulpiani), who is now known to have been posterior to Gaius, clear proof of the influence which the earlier jurist ex- ercised over the writings of his successor. A fact which has occasioned much surprise is, that Gaius is not once quoted in the Digest by any other jurist, unless we except the mention of his name in a passage of Pomponius (Dig. 45. tit. 3. § 39), which, as we have seen, may possibly refer to C. Cassias. The only probable explanation of this fact is that Gains was rather a teacher of law than a practical jurist, whose opinions derived au- thority from imperial sanction. He was not one of the prudentes quihus permissum est jura condere (Gaius, i. 7). The jurists Avho were armed with th-dt Jas respondendi, which was iirst bestowed by Augustus, partook of the emperor's prerogative, and their responsa had a force independent of their intrinsic reasonableness, and superior to the best considered opinion of an unprivileged lawyer. Except in the case of a very few writers of the highest eminence in their profession, it would at this day be considered a breach of etiquette to cite the opinion of a modem legal author in an English court. For a privileged Roman jurist to refer to a mere teacher of law, however learned, or to an un- authorised, or rather, unprivileged practitioner, however experienced, would probably have been deemed as unprofessional as for an English barrister to cite in court a clever treatise Avritten by a con- temporary below the bar, instead of seeking his authorities in the decisions of judges, and in the dicta of the recognised sages of the law. That this is the true explanation of the silence of other jurists with respect to Gaius may be in- ferred from a constitution of Theodosius II. and Valentinian III., despatched from Ravenna to the senate of Rome in a. D. 436. (Cod. Theod. 1. tit. 4. 8. 3.) By that rescript the same authority is given to the writings of Gaius as to the writings of Papinian, Paulus, Ulpian, and Modestinus. Hence it may be inferred that Gaius was previously in a different and inferior position with respect to authority. J //the writings of these five jurists (with the exception, subsequently specified, of the Notae of Paulus and Ulpian on Papinian) are invested with authority, as if to obviate the ques- tion as to the date when they were written, for a treatise written by a jurist before he received the jiis responderuii probably derived no legal force from tlie subsequent gift of that privilege to the author. GAIUS. This constitution proves the great importance that was attached to the citation of a legal writer by name in the work of another jurist, for it proceeds to make the citation of other writers by the five great jurists we have mentioned a test of the authority of the writers cited. If, for example, Gaius any where cites Julianus, the citation is to be taken as proof that Julianus is a writer of au- thority ; and legal force is given, not only to the passage or opinion of Julianus so cited, but to all the legal remains which can be proved to belong to Julianus, and which, upon a collation of manu- scripts, present a certain text. The works of Papinian, Paulus, Gaius, Ulpian, and Modestinus (for such is the unchronological order in which these names are mentioned), together with the works of all the other jurists who are cited by any one of them, are made the criteria of legal science. If, in the works of ten jurists, passages can be found in favour of one opinion, and nine jurists only can be cited against the ten, the majority is to prevail. In case of an equality of opposite opi- nions, the opinion of Papinian is to prevail, if Papinian have expressed any opinion upon the subject. If not, the matter is left to the decision of the judge. There is no pre-eminence conferred on any other of the first-named five jurists over a jurist, as, for example, Julianus, who may have been cited by one of the five. Such appears to be the true interpretation of this celebrated citation-law, upon which the researches of Puchta {lilmin. Mus.fur Jurisp. vol. V. p. 141, and vol. vi. p. 87) have thrown important light. Among the writings of Gaius are no QuaesHones or Responsa, which were the titles given by other jurists to treatises relating to cases that arose in their own practice. The Liber de Casibus of Gaius did not relate to cases within his own practice, and the cases it treated of were sometimes wholly fictitious. There is a passage in the Digest where Gaius speaks as if he did not himself belong to the authoritative body of those whose opinion he criti- cises, " Miror unde constare videatur, etc., nam ut apparet, etc. (Dig. 11. tit. 7. s. 9). Gaius was probably born before Serapias was introduced to Hadrian (aetate nostra), and he wrote, or at least completed, his Institutiones in the reign of M. Aurelius. The proof of this is that Antoninus Pius is mentioned by him with the addition Divus (ii. 19.5), and that he speaks of the law of crctio, as it stood in the reign of Marcus, before it was altered by a constitution of that em- peror. (Compare Gaius, ii. 177 with Ulpian, /Va^. xxii. 34.) In like manner, the statements made by Gaius in iii. 23, 24, as to hardships in the law of succession which required the correction of the praetor's edict, could scarcely have been written after the senatus consultum Tertullianum, made in the reign of M. Aurelius and Verus, a. d. 158, and still less after the senatus consultum Orphitia- num, made in the reign of Marcus and Commodus, A D. 178. (Compare Inst. 3. tit. 4. pr., and Capi- tolinus, in Marco. 1 1 ). Some critics have been so nice as to infer that the beginning of the Institutes of Gaius was written under Antoninus Pius, and the remainder under M. Aurelius. In i. 53. the former emperor is termed Sacratissimus Liiiperator Aiitoninus. So, in i. 102, we have ^^ Nutic ex epistola optimi Impe- ratoris Antonini^ and, in ii. 126, " -Slerf nuper im- perator Antoninus sujmficavii rescripto.^ The
