The XII. Tables undoubtedly performed one important function of every true code. They collected together rules of law from a variety of quarters which owed their existence to very different historical causes. It is for this reason that an epoch of great or even violent political change has usually been found to be an essential condition for the formal re-publication of a nation's laws. It is almost impossible to determine now, as it probably was even in the days of Cicero, how much of the materials of the XII. Tables belonged to well-ascertained Roman usage; how much to modifications of that usage introduced by the Decemvirs; how much to foreign law deliberately introduced from without; and how much to new legislative enterprises which were the momentary result and expression of political contests between different classes of society.

So far as the history of the formation of Roman law is concerned, it is sufficient to notice that the framing of the XII. Tables had the effect of bringing a variety of kinds of law on to a common and level platform. They were thus always before the eyes of the people as one integral whole, and were in the best possible situations for inviting disputation and criticism at the hands of legal practitioners, and for supplying a basis for direct statutory innovations or judicial decisions as new circumstances called for them.

CHAPTER II.

THE GROWTH OF THE UNWRITTEN LAW (Fus Civile.)

§ 1. The Period from the Date of the XII. Tables (B.C. 450) to the Birth of Cicero (B.C. 106).

IN tracing the whole outward history of the Roman "Civil Law," strictly so called-up to the time of Justinian, it is convenient to break it up into three periods; namely, that between the era of the XII. Tables, say B.C. 450, and the birth of Cicero, B.C. 106; that between the era of Cicero and the era of Modestinus, the last of the race of the great Roman jurists, say about A.D. 245; and the period between this and the death of Justinian, in A.D. 565. The first of these periods is of the length of nearly four hundred years, while that of each of the two later periods is about three hundred years. The greater length of the first period is conformable to the slowness of the growth of all the elements of the Roman state up to within a hundred years of the close of the republic. Cicero's own writings afford such a valuable mass of evidence of the state of the law in his time, of the past history of the law, and of the attitude of the Roman lawyers of his day to the older law that the era of Cicero presents, on more grounds than one, a natural close to one legal period and the commencement of another.

There seem to have been two main directions in which, apart from direct statutory legislation and the exercise of the Prætor's judicial functions (to be described later on), Roman law progressed, as it were spontaneously, between the era of the XII. Tables and that of Cicero. These are

the gradual increase in simplicity, regularity, and certainty, of procedure; and the incessant interpretation, whether of the rules of law contained in the XII. Tables or of current customary maxims, which was conducted by an increasing class of men whose tastes, social positions, or public duties led them to give a special amount of study to the historical and logical development of law.

Two glimpses are afforded us at intervals of about a hundred years of wide-spread changes in procedure brought about by nothing else, so far as the narrative discloses, than the public spirit of individual citizens. The

story is that about B.C. 310, Lucius Flavius, the Dig. (i. 2). son of a freedman, and secretary to the censor, Appius Claudius Cæcus, obtained access, whether with or without the concert of his master, to that part of the law a knowledge of which had hitherto been confined to select classes of persons in the community, such as the patricians generally or the Pontifices. These secluded portions of the law appear to have covered not only the actiones legis—that is, the ceremonies of judicial procedure-but also the actus legitimi, or the technicalities of private legal transactions. To the former head belonged the formula-that is, the typical shapes which all pleading must necessarily assume; to both heads belonged the rules of the calendar (the " Fasti ") which determined what legal acts or proceeding could or could not take place on particular days.

It is said that Flavius, either by possessing himself of a book belonging to his master, or by persistently seeking advice on points of legal practice and comparing the answers, succeeded in preparing and publishing a work in which all that part of the law acquaintance with which was hitherto confined to a few was laid open to all. This work was called the "Jus Flavianum," in the same way that an earlier work, related to have been compiled by Papirius in the time of the kings, was named the "Jus Papirianum."

Another tradition records that the patrician jurists framed new rules and invented a cipher with the view of keeping them secret. These new rules were, however, a

C

hundred years after (B.C. 200), divulged to the people by Sextus Ælius Catus, in a work called the "Jus Elianum." A work of this Elius Catus, probably the very work here alluded to, is described by Pomponius, the author of the long historical passage at the opening of the Digest, writing about A.D. 20, as existing in his day. It was called "Tripertita" on the ground of its containing, first, the law of the XII. Tables, then, an "interpretation," and thereto woven-in as supplementary matter (subtexitur), the legis actio applicable. This work is further characterized as comprising the "cradle of law" (cunabula juris). The intimation thus supplied of the contents of this early legal treatise is extremely interesting, both as marking the actual elements out of which the Roman civil law was developed, and also as a proof of the gulf of legal thought which separated the two periods of B.C. 200 and A.D. 120.

With respect to the general value of the stories relating to the sudden and wide-spreading effect of the publication of the "Fasti" and forms of proceedings by Flavius and Ælius, it may well be supposed that they rather indicate long operating tendencies than strictly correspond to the state of the facts. Procedure, and all that pertains to procedure, is, in some of its aspects, that part of the law which is most secluded from the view of the public; which must needs be traditionally passed on by one generation of professional practitioners to another; and which, in consequence, the least admits of the minute and almost imperceptible changes which the other part of the law silently experiences.

It thus happens that laws of procedure are peculiarly apt to lag behind the rest of the law in respect of their adaptation to national wants, and it is only when a great political crisis occurs, or the national intellect is otherwise spasmodically roused, that the process of administering justice undergoes the renovation which it has long needed. It is probable that the alleged discovery and the public-spirited activity of Flavius were only links in a chain of causes which had long been tending to compel a thorough reform in the mode of administering justice. The orderly habits,

the commercial relations, and the social institutions of the Romans in the fourth century before the Christian era must have rendered it increasingly injurious to the public wellbeing for it to remain within the discretionary power of a privileged class to deny, to delay, or to obstruct public justice.

The description given by Pomponius of the "Tripertita" further illustrates the important connection in early times between the evolution of the processes for administering justice and that of the substance of the general law. The earliest part of all law is necessarily procedure, because it is only at the moment at which an alleged right comes into question that the validity of the right itself is ascertained. It is by the intervention of the primitive arbitrator or magistrate that custom assumes the fixity, the cogency, and the universality, of true law.

An attentive study of the surviving fragments of the XII. Tables discloses the vastly superior importance in the eyes of the primitive legislator of that part of the law which describes and restricts remedies over that part which confers rights or imposes duties. The influence of the early leges actiones (under which expression were gathered not only formal processes for setting the law in motion under the cognizance of judicial authority, but also certain extrajudicial acts by which a person was allowed in certain cases to take the law into his own hands) in moulding the law into shape, and more especially in moulding the minds and sentiments of all persons concerned in administering or advising upon it, is clearly exposed to view in the historical parts of Gaius' Institutes, and in the curious and half-satirical allusions of Cicero. It was by the Prætor's influence as will be shown later on-assisted by direct legislation, that the true provinces of what have been called "substantive" and "adjective" law were clearly determined.

However great was the influence brought to bear on the formation of the Roman civil law of the simplification and promulgation of remedial processes, the most effective instrument by which this law was brought out of its con