Roger writing the LAWmag
25
Apr 2012

The 1816 Discovery of the Institutes of Gaius: One Small Step for Niebhur, One Giant Step for Mankind

We now know that the ancient Roman jurist known as Gaius (circa 150 A.D.) was to the Roman law and its successor, civil law, what William Blackstone was to the common law (see the Biography of Gaius).

Timetable of World Legal History logo

References to Gaius were ubiquitous in the ancient Roman law texts, especially in the Theodosian Code and the subsequent Justinian's Institutes.

It was obvious that during his lifetime and thereafter, he had greatly shaped the development of Roman law more than any other single jurist.

But all original texts of Gaius great collections of legal opinions, his code, had never been found, presumed lost or destroyed. Glimpses, extracts and portions could be taken from other sources but his actual encyclopedia of law, known to have once existed, seemed lost forever, and not to have survived the ravages of over 1,500 years and numerous geo-political upheavals in Europe since the end of the Holy Roman Empire.

Legal historians had sadly accepted the loss of this tremendous body of work. Considering the amount of time that had passed since Gaius' death, finding a copy of his Institutes seemed increasingly unlikely. At the time of Gaius, not every jurist had the financial resources to have their legal opinions consolidated into book form. Even by the time of Justinian, historical and irreplaceable Roman law books were becoming hard to find, especially since they were written in Latin, a language increasingly irrelevant.

The 1816 Discovery of the Institutes of Gaius: One Small Step for Niebhur, One Giant Step for Mankind One day, in 1816, a German historian Barthold George Niebuhr (1776-1831) was researching Roman history and was rooting through ancient collections of the Cathedral Library of Verona, Italy. He was not looking for law texts; he was looking for the Epistles of St. James.

In a letter he wrote to the German jurist, Carl von Savigny [see 1814, The Thibaut-Savigny Controversy: German Codification v Common Law], Berlin, on September 4, 1816, Niebuhr shared his incredible discovery:

"The Cathedral of Verona possesses a library extremely rich in very old Latin parchments. Fortunately for it, about the middle of the eighteenth century, a thoroughly learned prebendary - a rare phenomenon even then - Gian Jacopode Dionigo, by name, examined and arranged the whole of its contents. And some time after, Antonio Mazzoti, a very honest and industrious librarian, made an excellent catalogue of them.

"The first thing that fell into my hands, on opening the chest containing the manuscripts, was a very thin little volume of extremely ancient single and double leaves of parchments, which, according to the title page, were collected from the dirt and rubbish by the said Dionigo in 1758. Most of them are biblical fragments, from perhaps the sixth to the eleventh century, and a note, by the hand of their diligent collector, exhibits their contents.

"But almost instantly I espied among them two fragments of quite a different kind, whose nature he did not understand, and of which lie has, therefore, omitted all notice. I have only espied this fragment that nothing might be overlooked.

"But now comes the main piece of news I have to announce, namely, that there is preserved at Verona, as much of Ulpian as would fill a small octavo volume, of which, however, I was only able to copy a single leaf by way of a specimen and attestation, which I herewith transmit to you for publication....

"At Verona my lucky star was again in the ascendant, for I found the Codes XIII, containing the Epistles of St. Jerome, a pretty thick quarto volume of the 9th Century, which is a complete Palimpsest, except about a fifth part of the leaves, which are new, some of the part written over is of a theological, but by far the greater portion of a judicial nature. It is written by the same hand as the fragment of Gaius, from which we may conclude that the cathedral chapter or the Church at Verona, was once in possession of several works on jurisprudence which the ecclesiastics afterwards used up; and that it had these books before Justinian's time and under King Theodoric.

"My transcript is as exact a representation of the original as it was possible to make, without tracing it through transparent paper.

"My dear Savigny, here lies a treasure waiting for your hands to dig it up; a bait that shall lure you over the Alps to us, or will you persuade some one else to come?

"You will not suffer this discovery, which is exactly what you have been wishing for so ardently, to be  lost for want of someone to make use of it. But whoever comes let him not depend merely upon his own eyes. Let him bring with him the best chemical re-agents to bring out the writing, and also a good magnifying glass."

GaiusNiebuhr placed in the envelope to Savigny, a small transcript of what he believed to be the legal writings of Ulpian.

On October 17, 1816, Niebuhr wrote a follow-up letter:

"If the letter I wrote you from Venice arrived punctually, dear Savigny, (of which, however, I do not feel at all confident,) and found you at Berlin, I am certain that you must have written to me, for my discoveries at Verona were, I should think, almost enough to induce you to order post-horses on the spot and set out for Italy yourself."

Niebhur knew he was onto something but it was not, as he thought, a treasure of Ulpian.

What he had found was an intact copy of the complete Institutes of Gaius, fortuitously conserved in the bowels of the church monastery at Verona, Italy, with the religious custodians completely unaware of this diamond in their collection.

Niebhur had sent but a fragment of the manuscript to Savigny but it was enough to excite the Royal Academy of Berlin to send a delegation to Verona to reproduce the original entirely.

Four years later, the Institutes of Gaius was translated to German and published at Berlin and later republished in French and in English.

Not only has this discovery by the mild-mannered German historian now made the complete Gaius available to posterity, but it also confirmed the standing of Gaius in the development of the Roman law:

"The discovery of the Institutes of Gaius (was) the most interesting and valuable literary discovery of modern times....

"No works ever produced a more remarkable revolution in the study of the Roman law."1

REFERENCES:

  • Barthold Georg Niebuhr, B. G., edited by Susan Winkworth, The Life and Letters' of Niebhur (London: Chapman and Hall, 1852), pages 52-53
  • Roman Jurists and Codes, 1 American Civil Law Journal, 71 (1873 - NOTE 1)

Posted in Legal History
on
by

Attached Images

  • The 1816 Discovery of the Institutes of Gaius: One Small Step for Niebhur, One Giant Step for Mankind