legum. Like the dies fasti and nefasti, they were kept a profound secret from the community at large: so that, though the letter of the law was open to the inspection of every citizen, it was impossible for any one to avail himself of it in the courts, without the aid of the initiated." This violation of justice, gross and

evident as it was, continued for a long time to hold its ground; supported by the religious veneration of the whole people, as well as by the political influence of the Patricians. The institution was one that could not be so openly attacked as many others, which the Plebeians had succeeded in altering. The secret was carefully kept, and the actiones long remained a profitable mystery to those who had invented them. A fortunate circumstance, however, at length effected the subversion of the whole system. One Cneius Flavius Cæcus, the son of a freedman, had been employed as the secretary of Appius Claudius,

to

Actiones compositæ sunt, quibus inter se homines disceptarent: quas actiones ne populus, prout vellet, institueret, certas solennesque esse voluerunt; et appellatur hæc pars juris LEGIS ACTIONES, id est, legitimæ actiones.-Omnium tamèn harum (legum) et interpretandi scientia et actiones apud collegium Pontificum erant. (Dig. Lib. 1. Tit. II. fr. 2. § 6.)

Veteres illi, qui huic scientiæ præfuerunt, obtinendæ atque augendæ potentiæ suæ causà, pervulgari artem suam noluerunt. (Cic. De Orat. Lib. 1. cap. 41.) See Gravina de Jur. nat. Gentium et XII. tabularum. cap. LXXIX.

transcribe a collection of the actiones which his master had made; and, either at the instigation of the Patrician, who might wish to ingratiate himself with the Plebeians, or more probably without his knowledge, published the manuscript. This was an important service rendered to the Plebeian caste; the more so as the compilation of Claudius contained the solution of all the mystery respecting the calculation of the calendar. The want of a sufficient insight into the whole system of the fasti and the actiones, renders it difficult at present to account for the intimate connexion that evidently reigned between both; but it cannot be doubted that the discovery made by Flavius entirely removed the veil which it had been the object of the Patricians to throw round every circumstance relating to the administration of public justice.

The Plebeians appear to have been fully aware of the value of the knowledge they had

Anno Urbis. 449.-Civile Jus, repositum in penetralibus pontificum, evulgavit, fastosque circà forum in albo proposuit, ut quando lege agi posset sciretur. (Tit. Liv. Lib. Ix. cap. 46.) Nec pauci sunt auctores, Cneium Flavium scribam fastos protulisse, actionesque composuisse. (Cicer. Ep. ad Atticum Lib. vi. 1.) Cùm Appius Claudius proposuisset, et ad formam redegisset, has actiones, Cneius Flavius, scriba ejus, libertini filius, subreptum librum populo tradidit. (Dig. Lib. I. Tit. II. fr. 2. § 7.)

acquired. Flavius was loaded with honours,t and the code which he had made public was ever afterwards known by the appellation of Jus CIVILE FLAVIANUM. Yet, notwithstanding their estimation of the privilege they had gained, by being admitted to a knowlege of all the mysteries of practical jurisprudence, they allowed the Patricians to invent a new system of forms; and the wheels of justice became clogged with other obstacles." How the Plebeians could suffer the creation of other legal mysteries, after they had felt the effects of the former, seems at first sight an enigma only to be solved by supposing that their religious prejudices were worked upon by the priesthood. A little attention, however, to the dates of the different changes that took place in the nature of the religious establishment at Rome, will shew that, before the new system of forms was generally adopted, the office of pontiff must have been

Cicero. Ep. ad Atticum. Lib. vi. 1.-Adeò gratum fuit id munus populo, ut tribunus plebis fieret, et Senator, et ædilis curulis. (Dig. Lib. I. Tit. II. fr. 2. § 7.) See on this subject Heinecc. Hist. Jur. Rom. § XLVIII. Hugo. Hist. § CLXXXII.

" Inventus est scriba quidam, Cneius Flavius, qui cornicum oculos confixerit, et singulis diebus ediscendos fastos populo proposuerit, et ab ipsis cautis jurisconsultis eorum Sapientiam compilarit. Itàque irati illi, quòd sunt veriti ne, dierum ratione pervulgatâ et cognitâ, sine suâ operâ lege posset agi, notas quasdam composuerunt, ut omnibus in rebus ipsi interessent. (Cicero. Orat. pro Muranâ. cap. 11.)

open to the Plebeians;w nor can it be doubted that the discovery of Flavius was instrumental in procuring them the privilege. Still, as the secrets of law had not ceased to be considered secrets of religion, the vulgar were always excluded from a participation in the knowlege of them. It has been supposed, on the authority of a passage in Cicero already quoted, that the new code of legal forms was written in a sort of cypher, expressly invented for the purpose.* But this precaution, if it was ever used, was surely an unavailing one. If intended to prevent the secret from being divulged by persons in the rank of Flavius, who might be anxious to court popular favour by giving it publicity, it was wholly useless; since it would have been sufficient to keep the manuscript from the inspection of all but the privileged class. If meant to ensure it from being explained by those whose profession obliged them to be conversant with the mystery, it would have been

The publication of the Jus CIVILE FLAVIANUM, took place in the year of the city 449. The first plebeian pontiffs were elected in 452, or thereabouts. See antè page 105. Tit. Liv. Lib. IX. cap 46. Lib. x. cap. 9.

There is much difference of opinion on this point. The difficulty rests with the expression notas composuerunt. (Pro Muranâ. cap. 11.) See Ritter not. ad Heinecc. Hist. Jur. Rom. § XLIX. Ernesti. Clav. Ciceron. voc. NOTA. and the authorities there quoted. It is not improbable that the note, were analogous to the concepta verba, or formulæ, mentioned by Gaius. (Inst. Com. iv. § 30.)

evidently nugatory, as indeed the event proved; for, about a century after the publication of the Jus Flavianum, the whole system was again brought to light, and that by a Patrician.

Sextus Ælius, (the same whom Ennius has surnamed the crafty) was the author of this second publication. In a political point of view, its importance certainly cannot be put in competition with that of the Jus Flavianum. It does not appear that the Jus Elianum effected, or was intended to effect, any revolution in the practice or in the knowledge of the civil jurisprudence. Long before the period of its publication, both orders of the state were admitted indiscriminately to the offices of the priesthood: the science of interpretation was no longer a mystery to any class of the people, nor were the Plebeians excluded from the exercise of the legal profession. Ælius could not therefore have been actuated by any feeling of hostility towards his fellow jurisconsults, nor was the work which bore his name calculated to injure their interests in any degree. The formal proceedings of the courts were only a supplementary part of his celebrated composition: the code of the twelve tables, accompanied by a commentary, which their antiquity no doubt rendered, even in that time,

See Chap. v. post.