of their law. Among the works of Gaius quoted in the Digest is a Commentary in six books on the Code of the Twelve Tables. Cicero tells us that in his youth boys were accustomed to commit them to memory, but in his later years this practice had gone out of use. The copies of them must have been very abundant; it is much to be regretted that none has been preserved to modern times. The quotations from the Twelve Tables found in extant works of ancient authors are quite numerous: the collected fragments number more than a hundred. In general, they are very short. Some of them, especially those quoted by the grammarians, preserve the antique Latin forms of the early republic; but the most are modernized in language.

The general character of the law-system embodied in this code will be a subject of consideration in the next lecture.

LECTURE IV.

PROGRESS OF THE ROMAN LAW DURING THE REPUBLICAN PERIOD.

THE early Roman law of the Twelve Tables was simple, but highly formal, having many forms of speech and action which were rigorously insisted on. This formalism is illustrated-1. In prosecuting for a money debt, by sacramentum or judicial wager; dangers to the plaintiff from overstating or misstating his claim. 2. In bringing an action to recover a piece of land, where, over a representative clod, the parties asserted their claims of right (vindicatio), and challenged each other in a sacramentum. 3. In buying and selling res mancipi (lands, buildings, slaves, horses, cattle), where a process called mancipatio or mancipium must take place, with five Roman citizens of full age as witnesses, and a sixth as libripens (balance-holder). 4. In making a valid testament, where the testator had to make a formal sale of his estate, with all the ceremonies of mancipation, to a so-called familiae emptor (purchaser of the estate). Value of such forms in authenticating legal transactions, and in making the parties sensible of the gravity and the binding force of their own acts.

The Romans from an early period were led to recognize the distinction between acts and relations of law which were peculiar to themselves, and those which they had in common with other nations. To the former they gave the name of jus civile (in its narrower sense: not all law that belonged to Roman citizens, but law that belonged only to Roman citizens): the latter they called jus gentium (law of nations, but very different from our international law, to which the Latin jus fetiale, or law of heralds, made some approach). This distinction gained importance for the Romans, as they came more and more into connection with foreigners. They saw too that the jus gentium, being common to all

nations, had its foundation in a conformity to universal reason and justice. And they learned to regard such conformity, where it could be shown to exist, as proof that a rule of law belonged to the jus gentium.

The liberalization of the law during the republican period was largely a progressive limitation of the jus civile and extension of the jus gentium. It was effected to a great extent by the agency of the prætor, and through the actions or legal remedies set forth in his annual edict. Here, without formally opposing the old law, he often modified or nullified its working. Thus, when there was a testament suitably authenticated, but made without the formalities above mentioned, the prætor allowed the successor named in it to receive the estate, not as heres (heir), but as bonorum possessor (actual holder of the property) with the same practical rights as if he was an heir. So, where a person had bought a horse or a house without the ceremonies of mancipation, he was only bonorum possessor, not dominus (owner), until undisputed possession for one or two years had made him owner by usucapion; but in the mean time the prætor allowed him to sue and be sued, as if by usucapion he had become

owner.

We see here the use of legal fictions, which are found to an equal or greater extent in English law: most remarkably in the fictitious collusive procedure of a common recovery, by which the judges nullified a statute which Parliament had refused to repeal. Such cases make it evident that the law-making power, which resides in the people, is not always exercised in the way of direct legislation, but to an important extent through the action of the courts. There is in every country a great deal of law, recognized and enforced, which never came from a legislator or a legislature, but has grown up in the practice of the courts. This law may even run counter to the legislative; but in such cases it does not usually maintain a direct opposition: it rather seeks its end by some indirection, fiction, or evasion. In this country it has a means of attack, more open and effective, in the power of pronouncing on the constitutionality of any statute.

THE Roman law in the time immediately succeeding the legislation of the Twelve Tables was of a-very simple character. This is only what we should expect to find. The complexity of a law-system must depend on the complexity of the relations which are to be

regulated by it. In a petty republic, having all its territory within a day's march of the capital, among a population of primitive life and manners, confined to a few branches of industry, and holding little intercourse with outside peoples, the law must have been very different from the highly-developed system of the later republic, whose dominion extended over a large part of the world's area, and included nearly all of the world's civilization. But you may be less prepared to hear that this simple law of the early Romans was of a very formal character. Almost all actions which the law recognized as valid, as creating rights and obligations among men, had to be performed in a certain fixed way, with prescribed words and ceremonies; and a deviation in any particular from the established form destroyed the validity of the whole transaction. Let us look at some examples illustrating this marked feature of the early Roman law.

And, first, let us suppose that a man wishes to recover a money debt of ten thousand pounds, which he claims to be due to him. Under the later law, as briefly described in the last lecture, the creditor would bring his debtor into the prætor's presence; and the prætor, after hearing the allegations of the two parties, would make out a formula, or written statement of the claim, something in this style: "Let Titius be judge. If it appear that Numerius is bound to pay ten thousand pounds to Aulus, then condemn Nume

rius in the sum of ten thousand pounds; if not, acquit him." This formula he would then place in the hands of Titius, the appointed judge, for investigation and decision. But in the early period of which we are now speaking, in the first centuries of the republic, the procedure was quite different. When the parties came before the prætor, the plaintiff set forth his claim in these prescribed words: Aio te mihi x millia aris dare oportere (I affirm that you are bound to pay me ten thousand pounds); to which the defendant replied in similar terms: Nego me tibi x millia æris dare oportere (I deny that I am bound to pay you ten thousand pounds). The plaintiff then said: Quando negas, te sacramento quingenario provoco (since you deny the claim, I challenge you in a wager of five hundred pounds); and the defendant again responded: Quando ais neque negas, te sacramento quingenario provoco (since you affirm the claim, and do not deny it, I challenge you in a wager of five hundred pounds). Each party then deposited the five hundred pounds, the amount of the sacramentum, or wager; or, if it was not deposited, gave security for its payment. The two parties then summoned each other in terms which are not reported by our authorities, but were doubtless fixed and constant, to appear on a certain day before the standing court of ten judges (the decemviral court), to try the issue thus joined between them. You will observe the very singular shape which is here given to