Of the personal history of this famous jurist scarcely any thing is known. Even the spelling of his name has been as fruitful a subject of controversy as the orthography of our own Shakespeare or Shakspere. Some have chosen to write Caius instead of Gaius, and, in favour of this spelling, quote Quintilian (1.7. 23). " Quid? quae scribuntur aliter quam enuntiantur? Nam et Gaius C litera notatur, quae inversa (C) mulierem significat." They understand this passage to mean that the word which is spelt with a C is probounced with a G; but Quintilian is here speaking of notae, and the true meaning may be; that the word which, when written at length, is written Gaius, and is pronounced as it is written, is yet designated shortly by the nota C, which is different from its initial letter. Caius was undoubtedly the original spelling, used at a time when the letter C, which occupies in the Roman alphabet the place of Gamma in the Greek, had, in some cases, the power of Gamma. Caius was always pronounced Gaius, and was written in Greek Γάιος, while in other words, as Cicero, which was written in Greek Κικέρων, the initial C had a power distinct from Gamma. It was in the beginning of the sixth century of the city that the letter G was introduced into the Roman alphabet, by Spurius Carvilius (Plut. Prob. Rom. 54), and thenceforward the difference of pronunciation began to be indi cated by a difference of notation; but in some cases, as Caius and Cneus, the change was slowly intro duced. Probably at the time when Gaius lived, and certainly in the time of Justinian, his name was generally spelt, as it was pronounced, with a G, although the initial nota C still continued in use. This appears from inscriptions, and from the best manuscripts. In the Florentine manuscript of the Digest, the praenomen Gaius is always spelt with a G, there being no difference whether the word is used by itself, or as a praenomen, followed by other names. (Dausquius, Orthographia Latini Sermonis Vetus et Nova, vol. ii. p. 70, fol. Paris, 1677; Grotefend, in Ersch and Gruber's Alg. Encyc., under the letter C; Schneider, Elementarlehre der Lateinischen Sprache, i. ], p. 233.)
In early times the name was trisyllabic, like the Greek Γάϊος (Catull. 10.30; Mart. 9.94, 11.37; Stat. Sylv. 4.9, 22), but, in times of less pure Latinity, it was pronounced as a dissyllable. (Auson. Epig. 75.) It had a meaning in ancient Latin, as in modern Tuscan, equivalent to the English Gay, and was connected by etymologists with the Greek γάω, whence the names Caius and Caia were thought peculiarly appropriate to the marriage ceremony. " Caii dicti a gaudio parentum," says C. Titius Probus in his treatise De Nominibus, &c.
As Gaius is known by no other appellation, some have supposed that he had no other, but was either a freedman or a foreigner. Then as to his birthplace : some have fancied that he was a Greek, because he understood Greek; and some that, like Justinian, he was a native of Illyricum, because Justinian thrice calls him Gaius noster. (Prooem. Inst. § 6, Inst. 4. tit. 18.5; Const. Omnem. § 1.) Some have thought that Gaius was his gentile or family name, and, relying on the supposed authority of a manuscript of the Breviarium Alaricianum, or Westgothic Lex Romana, have given him the praenomen Titus. The origin of this supposition is probably due to some passages in the Corpus Juris (e. g. Cod. 6. tit. 3. s. 9), where Gaius is employed as a fictitious name, and is found in connection with other fictitious names, as Titus, Titius, Lucius. Others, believing that Gaius was a praenomen, have attributed to him the cognomen Noster, because not only does Justinian in the passages we have cited so call him, but the phrase Gaius Noster is used by Pomponius in Dig. 45. tit. 3. s. 39. It is scarcely necessary to say, that Noster in this form of expression usually refers to that literary intimacy with which we regard a favourite author. Yet, partly because Gaius is called by Justinian Noster, and partly on account of some passages in the mutilated and corrupted Westgothic compendium of the Institutes of Gaius, Vacca and other learned civilians inferred that Gaius was a Christian ! Some, not content with Noster, and misled by a false reading in Gellius (2.4), have given him the cognomen
To proceed to less futile or more plausible conjectures, some have tried to identify Gaius with Laelius, or Laelius Felix, for both Gaius and Laelius Felix wrote notes on Q. Mucius Scaevola. (Gaius, 1.188; Gel. 15.27.) In favour of the compound Gaius Laelius Felix are quoted two passages from the Digest, in one of which (Dig. 5. tit. 3. s. 43) Gaius says, " Et nostra quidem aetate Serapias, Alexandrina mulier, ad Divum Hadrianum perducta est cum quinque liberis, quos uno foetu enixa est ;" and in the other (Dig. 5. tit. 4. s. 3), Paulus reports, " Sed et Laelius scribit se vidisse in Palatio mulierem liberam, quae ab Alexandria perducta est ut Hadriano ostenderetur, cum quinque liberis, ex quibus quatuor eodem tempore enixa (inquit) dicebatur, quintum post diem quadragesimum." A comparison of these passages is against the identity of Gaius and Laelius, for, not to mention the variation between their accounts, Laelius speaks more circumstantially, as an eye-witness, while Gaius writes as if mentioning a fact which he knew only from rumour. By the phrase nostra aetate, he probably intends to denote that the extraordinary birth took place after he himself was born, but the words may have a wider acceptation, and refer to living memory generally.
It has been guessed that Gaius was closely connected by relationship with Pomponius, for, on the one hand, Pomponius calls Gains " Gaius noster" (l.c.), and, on the other hand, Gaius calls Pomponius simply Sextus (Gaius, 2.218), but it is not certain that, in this last-cited passage, Pomponius is meant, and, if he be, Gaius is not singular in alluding to him by his praenomen simply, for Ulpian does the same. (Dig. 29. tit. 5. s.1.27.)
Two passages, which closely agree with fragments attributed in the Digest to the Enchiridion of Pomponius (Dig. 2. tit. 2. s. 2.22 and § 24), are cited by Joannes Lydus (De Magistrat. 1.26 and 34), as from the commentary of Gaius on the Twelve Tables. From the contents of these passages, it is not unlikely that something of similar import would be inserted in an introduction to a commentary on the Twelve Tables, and that the agreement between Gaius and Pomponius may have been produced, not by the latter borrowing from the former, but by both borrowing from the same source, namely, M. Junius Gracchanus, who wrote upon the ancient magistracies of Rome. [GRACCHANUS.] But it is also not impossible, that in compiling from the title De Origine Juris (Dig. 1. tit. 2), Lydus may have seen the heading of the first fragment, which is taken from Gaius, and have overlooked the heading of the second, which is taken from Pomponius. Yet it must be admitted that he afterwards (1.48) cites as from Pomponius another passage taken from the same second fragment. (Dig. 1. tit. 2. s. 2.34.) The first fragment from Gaius, and the second from Pomponius, run together in sense, reading as if the former were the preface to the latter; and in this way, with the simple heading " Gaius lio. io." they are introduced by Magister Vacarius [*](* Magister Vacarius taught the civil law in this country about the middle of the twelfth century, and, after being silenced by king Stephen, seems to have retired to the abbey De Fontibus, by which we understand Fountains Abbey, near Ripon, not, as Wenck imagines (p. 46. n. 6), an abbey at Wells, in Somersetshire.) into his elementary work on Roman law. (Wenck, Magister Vacarius, p. 91.)
One of the conjectures, which has found numerous supporters, is, that the full designation of Gains is C. Cassius Longinus, and that he is referred to by his praenomen simply, in order to distinguish him from an elder C. Cassius, the eminent follower of Capito and Masurius Sabinus, and the head of the Cassiani, a sect to which Gains adheres with strict devotion. C. Cassius is thrice cited in the Digest by his praenomen Gaius, --twice by Javolenus, libro ii. ex Cassio, in Dig. 35. tit. 1. s. 54, and libro xi. ex Cassio, in Dig. 46. tit. 3.78,--and once by Julianus, in a passage where Sabinus and Gaius are coupled. (Dig. 24. tit. 3. s. 59.) Where Pomponius uses the expression " Gaius noster" (Dig. 45. tit. 3. s. 39), it is not certain that C. Cassius was not meant, for Pomponius was one of the Cassiani. There is, however, strong reason for supposing that Pomponius refers to our Gaius, inasmuch as the fragment in which the expression occurs is taken from the 22nd book of Pomponius ad Q. Mucium, and we know that Gaius speaks of a similar work of his own, " In his libris, quos ex Q. Mucio fecimus" (2.188). Gaius himself always quotes C. Cassius simply as Cassius, not as C. Cassius. Servius (ad Virg. Georg. 2.5.306, 307) says, " Apud majores omne mercimonium in permutatione constabat, quod et Gaius Homerico confirmat exemplo." Now, we find from Inst. 3. tit. 23.2, and from Dig. 18. tit. 1.1, that C. Cassius and Proculus quoted Homer (Hom. Il. 7.472_475) to prove that barter was a case of emtio et venditio. But the very same lines are cited by Gaius (3.141 ), and they seem to have been a trite quotation among the earlier jurists of his school, so that it is doubtful whether our jurist or C. Cassius is referred to by Servius, the commentator on Virgil.
It would be useless to mention all the niaiseries of those who have written on the age of Gaius. Some divide Gaius Juventius (Dig. 1. tit. 2. s. 2.42) into two persons, and so make Gaius a disciple of L. Mucius; others perform the same division on Gaius Aulus Ofilius or Gaius Ateius Pacuvius Dig. 1. tit. 2. s. 2.44), and so make Gaius one of the disciples of Servius Sulpicius. But the most common error has consisted in the assignation of too late rather than too early a date ; and Hugo's authority (Civilist. Mag. vol. ii. p. 358-378) for some time gave currency to the opinion which had previously been maintained by Racvardus and Conradi, that Gaius was a contemporary of Caracalla, who is designated in the Digest by the name of Antoninus. There are certainly some circumstances difficult to account for, which might naturally have led to this belief. The Institutiones of Gaius were an ordinary text book of instructions before the time when Justinian reformed the legal course appointed for students. Four libri singulares of the same author (1. De Re Uxoria, 2. De Tutelis/is, 3 and 4. De Testamentis et Legatis) were similarly honoured as text books. Such parts of the Institutiones and the Libri Singulares as were thought to be of practical use were taught in the lectures of the professors, while other parts were passed over as antiquated. Why was it that Gaius should be
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. Cassius. The only probable explanation of this fact is that Gaius was rather a teacher of law than a practical jurist, whose opinions derived authority from imperial sanction. He was not one of the
prudentes quibus permissum est jura condere(Gaius, 1.7). The jurists who were armed with that jus respondendi, which was first 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 modern legal author in an English court. For a privileged Roman jurist to refer to a mere teacher of law, however learned, or to an unauthorised, 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 written by a contemporary 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 inferred 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. s. 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. All 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 question as to the date when they were written, for a treatise written by a jurist before he received the jus respondendi probably derived no legal force from the subsequent gift of that privilege to the author. 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 authority ; 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 manuscripts, 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 opinions, 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 (Rhein. Mus. für Jurisp. vol. v. p. 141, and vol. vi. p. 87) have thrown important light.
Among the writings of Gaius are no Quaestiones 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 lie did not himself belong to the authoritative body of those whose opinion he criticises, " Miror under 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 (2.195), and that he speaks of the law of cretio, as it stood in the region of Marcus, before it was altered by a constitution of that emperor. (Compare Gaius, 2.177 with Ulpian, Frag. 22.34.) In like manner, the statements made by Gaius in 3.23, 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 consultunm Tertullianum, made in the reign of M. Aurelius and Verus, A. D. 158, and still less after the senatus consultum Orphitianum, made in the reign of Marcus and Commodus, A. D. 178. (Compare Inst. 3. tit. 4. pr., and Capitolinus, in Marco. 11).
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 1.53. the former emperor is termed Sacratissimus Imperator Antoninus. So, in 1.102, we have " Nunc ex epistola optimi Imperatoris Antonini," and, in 2.126, " Sed nuper imperator Antoninus significarit rescripto." The
There are other indications from which the age of Gaius may be closely inferred. The latest jurist whom he cites is Salvius Julianus, the composer of the Edictum Perpetuum under Hadrian ; and though there are no fewer than 535 extracts from his works in the Digest, he refers only to thirteen constitutions of emperors, and none of the constitutions lie refers to can be proved to be later than Antoninus Pius. It would appear from the inscriptions of the fragments s. 8 and s. 9, in Dig. 38. tit. 17, that he wrote a liber singularis ad senatus consultum Tertullianum, and another ad S. C. Orphitianum. This would bring his life to the last years of M. Aurelius; but as there is no mention of these treatises in the Florentine Index, and as treatises on the same subject were written by Paulus, it is not at all unlikely that, in the inscriptions we have mentioned, the name Gaius is put by mistake for Paulus. The Divus Antoninus mentioned by Gaius in the fragments Dig. 35. tit. 1. s. 90, Dig. 32. s. 96, Dig. 36. tit. 1. s. 63.5, and Dig. 31. s. 56, is, undoubtedly, not Caracalla, but Antoninus Pius. There is not a single passage in which it can be proved that Gaius refers to Caracalla. From a comparison of Dig. 24. tit. 1. s. 42 with Dig. 24. tit. 1. s. 32. pr., an attempt indeed has been made to identify the Prirceps Antoninus mentioned by Gaius in the former passage, with the Antoninus Augustus, Divi Severi filius, mentioned by Ulpian in the latter ; but though Caracalla, who is referred to by Ulpian, mitigated the law against donations between husband band and wife, it does not follow that Antoninus Pius may not previously have introduced the partial relaxation of which Gaius treats. In the time of Ulpian, there were already several constitutions upon the subject. (Ulpian. Fragm. 7.1.)
We have said that Gaius was a devoted adherent of the school of Sabinus and Cassius. This is now clear beyond dispute from a great number of passages in his Institutes (1.196, 2.15, 37, 79, 123, 195, 200, 217, 219-223, 231, 244, 3.87, 98, 103, 141, 167, 168, 177, 178, 4.78, 79, 114). It had formerly been supposed by some that he belonged to the opposite school of Proculus -- a mistake occasioned chiefly by an erroneous interpretation of Dig. 40. tit. 4. s. 57. Mascovius and others were induced to rank him among the Jurisconsulti [CAPITO], on account of the phrase " sententia media recle existimantium " (Dig. 41. tit. 1. s. 7.7), coupled within a few passages in the Digest (Dig. 17. tit. 1. s. 4, Dig. 22. tit. 1. s. 19), where, notwithstanding his general leaning to Cassius, he seems to follow the opinion of Proculus, or to quote Proculus with approbation.
Gaius was the author of numerous works. The following list is given in the Florentine Index :--
[J.T.G]