Institutes of Roman Law. Gaius
| EASTERN EMPIRE. | |
| A. D. | |
| 364-378 | Valens, Emp. |
| 378-392 | Theodosius I, Emp. |
| 395-408 | Arcadius, Emp. |
| 408-423 | Theodosius II, Emp. |
| 425-450 | Theodosius II, Emp. |
| 450-457 | Marcian, Emp. |
| 457-474 | Leo I, Emp. |
| 474 | Leo II, Emp. |
| 474-491 | Zeno, Emp. |
| 491-518 | Anastasius I, Emp. |
| 518-527 | Justin, Emp. |
| 527-565 | Justinian, Emp. |
| Tribonian. | |
| 528 | Code ordered. |
| 529 | Code published. |
| 530 | Digest ordered. |
| 533 | Digest and Institutes published. |
| 534 | Revised edition of Code published. |
HISTORICAL INTRODUCTION
In order to justify the character of this introductory essay it is necessary to say a few words about the intention with which it is written. The reader must regard it mainly in the light of an introduction to the Institutes of Gaius, not in the light of a disinterested sketch of the history of Roman Law. Had it been intended to have the latter character, both some of its omissions and some of its inclusions would be wholly unjustifiable. The most signal of the omissions is the neglect to give an adequate treatment to the stage of Roman Law which yields to no other in importance—the stage at which it passes from the religious to the secular sphere, from Fas to Jus. One of the chief questions which is, or should be, agitating students of Roman Law at the present day, is that of the period at which this transition was effected. For, if it is true that Roman Law retained its priestly character and its religious sanctions to a late period of the Republic Ref. 002, then the traditional history of the Twelve Tables is an improbability, and the account given by Cicero and other writers of the legislation and procedure of the Monarchy and early Republic is an anachronism. The student of Gaius, however, is not very intimately concerned with this far-reaching historical question; and I have been content to state my general adherence to the traditional view without attempting to justify it by evidence.
Amongst subjects included in this sketch, which have little direct bearing on the history of Roman Law, I may mention the descriptions of the structure of the different Comitia at Rome and the account of the manner in which the powers of the Princeps were conferred. From the point of view of the general history of the civil and criminal law in a State it is not of much importance to determine the particular mode in which a legislative assembly is constituted, or the precise manner in which a sovereign (whether nominal or real) is invested with his authority. But these historical questions do to some extent underlie subjects which are treated by Gaius; and, as it was not found convenient to deal with them at any great length in the commentary, a place had to be found for them in this introduction.
§ 1.: The Unification and Extension of Roman Law.
The history of Roman Law begins for us with the traditions that have been preserved concerning the Roman Monarchy. The existence of a Monarchy such as that described for us by annalists like Livy and Dionysius, implies the existence of a consolidated State, with a central legislative and executive power and a tolerably uniform system of law. In the Monarchy, however, and even in the early Republic it seems that the system of law was not marked by perfect uniformity, since the two classes of Patricians and Plebeians, which made up the Roman State, appear to have been distinguished, not only by the possession of different political privileges, but also by the possession of different systems of customary law Ref. 003. It is even possible that a further divergence of practice may have existed in the most primitive society, or societies, out of which the City and Monarchy of Rome developed—that a considerable amount of autonomy in legal relations may have existed in the Clans (Gentes) and Villages (Vici), out of which the earliest Rome was formed. The history of Roman law, from its beginning to its close, would thus be marked by a process of gradually increasing unification. First the customs of the Clans were merged in the customs of a State; but this State consisted of two classes, Patricians and Plebeians; and each of these classes seems to have had a customary law of its own. Then an attempt was made to create a uniform system; and this uniformity was probably secured by making patrician law approximate as closely as possible to plebeian—the law of the few to the law of the many. A further advance was made when Rome had become the mistress of Italy. Italian customs were made ultimately to conform to those of the leading State, and the free cities of Italy became the municipalities of Rome. Lastly, Rome had created an Empire. For a very long period she adopted the wise and cautious policy of recognizing, as far as possible, the local and tribal law of the cities and peoples under her control. The recognition of this local or tribal law was not, however, merely a symptom of the favourite Roman principle of non-interference. It was also a sign that the privileges of Romans and Italians were not possessed by provincials; for the conferment of Roman citizenship,