fined and purely customary stage, as exhibited at the time of the XII. Tables, to what it was even in the days of Cicero, was the independent mental labour bestowed upon it by the growing class of professional lawyers.

It would, of course, be an anachronism to allege that during this period there existed any true legal profession in the modern sense. But for the purpose of modifying and creating law there were all the essential elements of one. There were, first, the privileged officials, such as the Pontifices, whose customary functions obliged them to be familiar with legal formalities in order to determine their validity at certain times or under certain special circumstances. There were, secondly, the public magistrates, who were either engaged in superintending the general administration of justice, or in devising legislative measures, mostly of a constitutional kind, for the amendment of the law. There was, thirdly, the whole class of the patricians, whose relations to their clients obliged them to be familiar with all the parts of the law by which their clients' interests might be affected, in order to reply to questions which might be proposed to them, to appear on behalf of their clients before a public tribunal, or possibly to give the requisite security for their Cic. De Orat. clients which a creditor or plaintiff might demand (ad respondendum et ad agendum et

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ad cavendum).

The picture presented of the relations between the learned patrician and his clients, in respect of the communication of legal aid, is an extremely attractive one, and has often been drawn by Cicero and later writers. The first aspect in which he appears is that of a man either sitting leisurely at home or walking in the public places of the city, and freely giving counsel and information to all persons entitled to ask for it on all sorts of topics-legal, moral, and practical. The next aspect in which he appears, is that of one taking up a more formal position at the entrance of his house, dispensing opinions on points carefully prepared and submitted, while the younger patricians stand around with their note-books in their hands, taking down the law

from the mouth of the master and laying up in store for themselves a capacity for hereafter becoming authorities on civil law to the next generation. The next aspect belongs to a later period, when Augustus and succeeding emperors conceded, as will be described later on, special privileges to juris-consults selected by themselves.

It would seem, however, that though the responsibility of advising his clients in matters of law would rest upon every patrician, yet that it soon came about not only that some patricians bestowed a more devoted study on the subject than others, but that these invited to attend their audiences all persons whatever who needed advice on matters of special complexity. Tiberius Coruncanius (before B.C. 250), the first plebeian Pontifex Maximus, is mentioned by Pomponius as the first who made a "profession" of law, and though no writing of his was then in existence, yet a variety of answers and brief comments have been handed down. Seneca (A.D. 60) Ep. cxiv. alludes to some of these in a passage which quaintly denotes their antiquarian character. In complaining of orators of his day who are always borrowing words belonging to the older time, he says, "They keep using words out of the XII. Tables, and going back to Appius and Coruncanius."

This growing study of law as a special science was largely stimulated and supplemented by what Pomponius calls the "disputatio fori," that is, the actual legal arguments that were conducted in courts of justice. Pomponius, indeed, says that the joint result of actual forensic controversy and the unwritten logic evolved by special legal students constituted the Roman civil law. Two consequences rapidly followed. One was that eminent jurists betook themselves to writing legal treatises, of which we have a most remarkable instance in Quintus Mucius Cicero, De Scævola, the Pontifex, so nobly commemorated Orat. i. 39; by Cicero, who is said to have written one Dig. (i. 2). treatise on the civil law, the whole of which he distributed into eighteen books, and another treatise on legal definitions or maxims, from which there are four extracts in the

Digest. The other consequence was the gradual rise of a lower order of legal teachers, who instructed the young for a fixed remuneration. The proper history, however, of these teachers, who became afterwards publicly recognized as "professors," and of the scholastic institutions for the study of law, belongs to a later period, in the account of which they will shortly find their place.

In reflecting on the general influences to which the Roman civil law, strictly so called, owed its formation during the period of four hundred years which elapsed between the publication of the XII. Tables and the birth of Cicero, it is impossible not to be struck by the spontaneous legal energy which wrought up the hard, narrow, and formal principles of the primitive law into the exuberant and plastic system which prevailed at the close of the period. If it is true that the personal instrument through which this energy chiefly appears to have manifested itself was the Prætor, it is none the less true that the material with which he worked was a mass of rules and principles rapidly undergoing spontaneous changes, wholly independent of anything he could do for them.

The basis of the law is always assumed to be the institutions and usages of which the XII. Tables were the abbreviated summary. But this summary was always regarded as ascertaining the field, and not as limiting the scope, of legal development. The" interpretation" of the written letter of the law was always regarded as a proper and worthy function of a cultivated and statesmanlike intellect. The controversial "disputes" of the Forum, instead of degenerating into bickering and pettifogging, only assisted, by the flash of contesting minds, to precipitate inevitable logical conclusions. Hence the general soundness of political life enforced and protected the notion that legal principles were not matters of accident or capricious disposition, but belonged to the realm of an inexorable logic.

It is even apparent from the writings of Cicero that the severely logical character of law led to its technical study, elevated as that was held to be, being treated as one

degree lower in dignity than that of the political orator, or even the forensic advocate. The interesting Cic. Brutus, passage in which Cicero compares the attain- xl., xli. ments of Scævola and of Servius Sulpicius discloses a certain consciousness in the contemporary Roman mind of the inferiority of the purely logical exercise to which an exclusive study of law gave rise, as contrasted with the nobler uses of the intellect called for by a philosophical, rhetorical, or merely political concern with law.

No doubt, in Cicero's own mind, always tempted to be diffuse and imaginative, there lurked a certain impatience with, and scorn of, all sorts of antiquated legal formalities, even the most indispensable. He sometimes indulges himself in not only deriding obsolete ceremonials which had survived their usefulness, but in talking of the very flesh and bones of the Roman as of all other possible legal systems, as if such topics were nauseous to every enlightened and public-spirited intellect.

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Thus Cicero's own writings would supply the proof, if proof were not abundantly supplied elsewhere, Cic. Murenâ, that by his time the Roman civil law had, quite xii.; De Orat. independently of all that express legislation and the interposition of the Prætor could effect, marched forward in an even, rapid, and strictly logical course; that it had drawn to itself the absorbed attention of the most luminous thinkers of the day; and that, while it had long ceased to be cabined and confined by the bands of early local usage, it had none the less retained the severe lines and landmarks which the national capacity for legal logic impressed and perseveringly maintained.

§ 2. The Period from the Birth of Cicero (B.C. 106) to the era of Modestinus (A.D. 245).

The period of the life of Cicero included events of wide political importance to Rome, which of themselves could not but have had a profound and lasting influence on the structure of Roman law. But it would be an historical

as much as a political error to consider such catastrophes as the Social, Servile, and Civil wars as sudden and incalculable phenomena, rather than as the necessary development of a long train of ceaselessly operating causes.

For the purpose of strictly legal history, it is only necessary here to advert to the inappropriateness which the circumscribed legal rules and institutions of early Roman law must have soon disclosed as they came to be applied to persons, things, and places, wholly diverse from those amidst which they had grown up. For a long period the intervention of the Prætor Peregrinus, and subsequently of the other Prætors and provincial governors, succeeded in straining the older Civil Law so as to enable it to bear the constantly increasing weight cast upon it.

How much these magistrates contributed, and in what ways, will be the special subject of a later chapter. It is here to be noted that the two main directions in which their characteristic work displayed itself was in amplifying and simplifying procedure, and, in cases where moral claims seem to come into competition with strict legal rights, supporting the former as against the latter. It is obvious that legal reformation of these sorts, widely important as it was, could never be sufficient to meet the exigencies of such a rapidly expansive community as that of the Roman State. The true need was that of an internal reconstitution of the very kernel of the Civil Law, and it was because the Romans showed themselves capable of effecting this by a series of almost imperceptible changes that they proved themselves masters of that part of the art of government which consists in justly regulating the relationships of private, social, and commercial life.

The modes in which this process of reconstitution were gradually effected, up to nearly the close of the republic, have been already dwelt upon. But it was in the last century of the republic and at the commencement of the empire that the demands for an adequate legal system, based upon notions of moral justice and a peremptory logic, became most urgent. It is remarkable that Julius Cæsar,