one of the most distinguished of the early Roman jurists--those " veteres"--who flourished before the time of the empire. Born of an ancient and noble
plebeian family, he applied himself to the study of the law, under the auspices of Q. Mucius
P. f. Scaevola, the pontifex maximus, who was the greatest jurist of the day. Of all the
pupils of Q. Mucius, he attained the greatest authority among the people, to whom, without
regard to his own ease, he was always accessible, and ready to give advice. For deep and sound
learning, perhaps some of his fellow-pupils, as Lucilius Balbus, Papirius, and C. Juventius,
may have had equal or greater reputation among the members of their own profession ; but they
did not, like Gallus, exercise much influence on the progress of their art. He was an eques
and senator. At the end of the year quaestiones de ambitu, while the jurisdiction in cases de
pecuniis repetundis was assigned to his colleague. (Ad Att. 1.1.) Of the details of his private life little is
known. Pliny (De Urb. Rom. Region. v.), that his intimate friend, Q.
Scapula, suddenly expired while at supper with Gallus. (ad Fam. 4.6), Cicero speaks of a Gallus, a friend and
relative of Servius (vester Gallus), who lost a promising son, and bore
his loss with equanimity ; but though Gallus Aquillius, the jurist, was the friend and legal
preceptor of Servius, it is doubtful from the context whether he is the person referred to. In
the
We can only briefly review the professional career of Gallus. Taught, himself, by the great
Mucius Scaevola, he could boast of being in turn the principal instructor of Servius
Sulpicius, who had previously learned the elements of law from Lucilius Balbus, and combined
the excellencies of both his masters; for if Balbus were more esteemed for solid and profound
acquirement, Gallus had the advantage in penetration, dexterity, and readiness. (De Origine Juris (Dig. i. tit. 2. s. 2.43), " a
Balbo Lucilio, instructus autem maxime a Gallo Aquillio, qui fuit Cercinae. Itaque libri ejus complures extant, Cercinae confectae." Cujas, in his comment on this
passage, speaks of Cercina as an island on the coast of Sicily, but no such island is
mentioned by the ancient geographers, according to whom Cercina was an island (now Gamalera)
in the Mare Syrticum, where Marius lay hid. (Mela, 2.7; Brut.
41), should have passed his time with his preceptor in an island on the coast of Africa--a
singular choice of a vacation residence for a busy jurist and his pupils! Hence some critics
conjecture that Caecilla, in Etruria (Mela, 2.4), is meant, and others have thought of Sicyon
or Corcyra. It is equally doubtful whether the author of the works said to have been written
at Cercina were Servius or Gallus. (Otto, in Serv. Sulpie. Thes. Jur.
Civ. vol. v. p. 1585-6.) If Servius is meant, there is a needless repetition, for
Pomponius, referring to Servius, shortly afterwards says, " Hujus volumina complura
extant."
In the time of Pomponius, some works of Aquillius Gallus were extant, but copies of then
were scarce, and their contents were not such as to conduce to their popularity. Servius
Sulpicius incorporated the works of Gallus, and of other disciples of Mucius, in his own
writings, completed what they had left imperfect, and, while he acknowledged his obligations
to their productions, he at once secured them from oblivion, and deprived them of the chance
of independent fame, by the superior attraction of his own style. By Ulpian, Gallus is cited
at secondhand from Mela, ill
Aquillius Gallus early acquired high reputation as a judex, and Cicero frequently appeared
as an advocate when his friend sat upon the bench. Already, in pro Caec. 27),
Cicero lavishes very high encomiums on his knowledge, ability, and industry, as well as his
just and merciful disposition. The speech Pro Cluentio was also
addressed to Gallus as a judex. Cicero himself resorted for legal advice to his friend,
although, in a question relating to a right of water, he says that he preferred consulting M.
Tugio, who had devoted exclusive attention to that branch of the law (pro
Balb. 20). Callus, on the other hand, when he was consulted on questions which involved
controverted facts rather than legal doubts, used to refer his clients for advice and
assistance to Cicero, as the great orator and skilful advocate (Topic.
12.). It is probable that Gallus was deficient in oratorical power, for on no occasion do we
find him complimented by Cicero on any such gift. Among the important causes which he heard
was that of Otacilia, who had carried on an adulterous intrigue with C. Visellius Varro.
Varro, being seriously ill, and wishing to make her a present, which, if he died, she might
recover from his heirs under colour of a debt, permitted her to charge
against him in a settled account the sum of 300,000 sesterces, but, as he did not die so soon
as she expected, she brought an action against himself to recover the
amount with interest. This impudent demand was upset by the legal authority and learning of
Aquillius Gallus, who was appointed judex in the case. (
Such was Gallus in practice, as counsel and judex, skilful in his art, with armour always
bright, and weapon always keen. But he possessed higher qualifications, which were perhaps
not sufficiently appreciated by his contemporaries. He had a strong love of equity, and a
strong dislike to chicanery and fraud, and a clear perception of the points in which justice
was defeated by technicalities. It would have been too daring an attempt to disturb the
artificial system of Roman jurisprudence by a legislation which, though it remedied some of
its defects, was not in harmony with its established rules. Accordingly, Gallus applied his
ingenious and inventive mind to the contrivance of
As to the first head, a testament might have been broken, if it nominated a stranger as
heir, passing over a suus heres, though such heres should be born after
the testator's death. This latter event was provided for by a formula invented by Aquillius
Gallus. He also provided a form, which was adopted on his authority, for the institution, as
heres, of a postumus, who was not a suus heres.
(
As to the second head, he devised a summary mode of giving a general release of all
obligationes. An obligatio could only be dissolved altogether by some mode appropriate to the
mode in which it had been contracted; but the nature of an obligatio might be altered by its
renewal in another form (novatio), after which the legal incidents of
the old obligatio were extinguished. In order, therefore, to prevent the necessity of various
modes of release, where there might be obligations of various kinds, Aquillius Gallus devised
the plan of first turning by a novalio every existing obligatio into a
single verborum obligatio, which might be dissolved by acceptilatio, or a fictitious acknowledgment that the obligatio had been discharged.
A. undertakes by sponsio to pay to B. the value of every obligation of
every kind by which A. is bound to B. The former obligationes being thus merged in the sponsio, all claims are released at once by a fictitious acknowledgment by
B. that he has received from A. the stipulated payment. Such are the principles upon which is
founded the celebrated Stipulatio Aquilliana, the form of which is given
in
As to the third and most important head, the formulae in case of fraud -- that improvement
which swept every species of wickedness out of its last lurking-place (everriculum maliciarum omnium)--from what is said by Cicero, in De
Nat. Deor. 3.30, and De Off. 3.14, we have strong reason for
concluding, that if the clause in the praetor's edict, which is preserved in judicium de dolo malo, and the legal remedies
against fraud, at least received important improvements from his hands. Hugo, however,
thought that the formulae de dolo malo were nothing more than new
clauses in contracts. (R. R. G. p. 861, ed. 1832.)
The definition of dolus malus was a vexata quaestio. According to
Gallus, there was dolus malus, "quum esset aliud simulatum, aliud actum." He was noted for
definitions in other cases. His definition of litus as the place " qua
fluctus alludit," has been often cited as happy though metaphorical.
(Cic. Topic. 7; Quint. Inst. Or. iii. c. ult.)
The jurist Aquillius Gallus (who is not recorded ever to have been tribune of the plebs)
was not the proposer of the Lex Aquillia, which is a plebiscitum of earlier date (Inst. 4.
tit. 3.15), having been mentioned by Brutus (ibid. s. 39. pr.). Furthermore, we must not (as
the compiler of the Florentine Index to the Digest appears to have done) confound Aquillius
Gallus with the later jurist Aquila.
The inscription in Gruter (p. 652. No. 6), in which mention is made of L. Aquillius Gemellus, the freedman of the jurist, is probably spurious.
Bertrandus, De Jurisp. 2.9; Guil. Grotius, De Vitis
ICtor. 1.8.5-8; Maiansius, ad XXX ICtor. Frug. Comment. vol. ii.
p. 57-126; Heineccius, De C. Aquillio Gallo, ICto celeberrimo in Opusc. vol. ii. pp. 777-9; Zimmern, R. R. G. vol.
1.77.