thereupon to base a generalization as to the normal fortunes of early law. The truth is that, though the XII. Tables do undoubtedly present the phenomenon, not without a parallel elsewhere, of an early popular resistance to a monopoly of legal knowledge on the part of a privilegedclass, yet the lesson to be learnt from an attentive study of the fragments of the Tables is in favour of the superior tenacity and the richness of unwritten or customary law as compared with any form of written law. The paragraphs, as they stand, are little more than brief legal maxims or mementos of settled legal principles, which must have owed all their life, and even their meaning, to a quantity of special notions widely diffused abroad, as well as to an infinity of detailed usages, of which no account whatever is contained in the words of the law itself. These usages and notions underwent constant and progressive change, and the import of the almost consccrated maxim was silently and correspondently changed likewise; but the words of the maxim were never altered, and the only result of invasions of the older law brought about by direct legislation or by the interposition of the Prætor was that the maxim became disused or obsolete. This seems already to have become the case in Cicero's time, though even at a far later date a sentence of the tables is still occasionally quoted with the sort of deferential respect now paid in England to a few words in Magna Charta. Thus the history of the XII. Tables exhibits, first, the fullness and richness of the customary law, which, inde-pendently of legislation, had grown up in Rome before the middle of the fourth century of her existence; secondly, the firm hold retained by this customary law on the habits and sentiments of the people all through the time of the republic and well into the days of the empire; and, thirdly, the service which a brief and legibly compressed form of written law may render to the unwritten mass of the law in maintaining its integrity and directing its development. * See the antiquarian aspects of the XII. Tables, described with almost superstitious fondness, in Cic. de Orat., lib. i. xliii., xliv. ކ It has been observed that the XII. Tables exhibit, on the face of them, that early stage of law in which sins, crimes, and civil injuries are as yet imperfectly, if at all, distinguished one from another. It may be doubted whether that early stage had not been passed before the XII. Tables were composed, inasmuch as the rules regulating burials and the uncontrolled exhibition of grief on the occasion of them might be proper matters of purely police cognizance in certain conditions of society; and the accurate distinction between crimes and civil injuries is only made in the most mature era of a legal system. But, apart from the historical light which the substance of the XII. Tables sheds on the manners of the people at the time, it is important to notice that, in fact, all the leading departments of a complete legal system found their place in them. The constitution of the family, and the institution of guardianship; the security of property in its different kinds, including "servitudes;" the transfer of property, and the succession to property, testamentary and intestate; the protection of contracts; the recognition of rights to reputation; the punishment of fraud and theft; and the detailed methods of administering justice; these are a series of topics with which the XII. Tables were almost exclusively concerned, and on each of which they laid down a clear, broad, and guiding principle. Thus it is no mere antiquarian sentiment which makes the XII. Tables the starting-point of the history of Roman law. They not only contain the germ of all the later law, but for centuries they supplied the leading principles to which all doubtful questions were referred. True it is that many of the institutions and rules sanctioned by the Tables soon died out, and some were probably on the verge of expiring at the very time they were refreshed with a spurious vitality. But in a growing society law is always more vegetative and changing than any-even the most adequate formal expression of it can be. It is much to say for a brief compendium of a nation's laws that it preserves all the grain, even though it incorporates some of the husks also. 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 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 |