PROBLEMS OF ROMAN LEGAL HISTORY 321 



those by which Anglo-American law and equity have been developed. 

 This fundamental similarity is not generally appreciated, because the 

 mode in which the Roman law was developed is not commonly under- 

 stood. We read in every legal history that the Roman civil law was 

 cast into the form of a code, the famous Twelve Tables, about four 

 and a half centuries B. c., and that the further development of this 

 law was accomplished chiefly by interpretation of the Twelve Tables. 

 We read also that the interpretation which was accepted as author- 

 itative, and by which the law was developed, did not proceed from 

 judges, but until the third century B. c. from a college of priests, 

 and after that time from a small number of private citizens who 

 were known as juris prudentes. The English common law, on the other 

 hand, as we all know, has been built up by judicial decisions: it is 

 simply the permanent practice of the tribunals. At first glance it 

 does not seem as if these two processes were analogous. On closer 

 inspection, however, the differences are seen to be superficial. The 

 law of the Twelve Tables was not a code in the modern sense of the 

 word; it was simply a collection of the principal rules of early 

 Roman customary law. From the point of view of comparative juris- 

 prudence, it belongs to the same class as the continental German 

 leges and the Anglo-Saxon dooms of the early Middle Ages (fifth to 

 the ninth centuries). It has recently been asserted by a prominent 

 Italian historian that the Twelve Tables were probably a private 

 compilation, and that the story of their construction by the decemvirs 

 and of their submission to and acceptance by the Roman popular 

 assembly deserves no more credit than the legend of the slaying of 

 Virginia which forms a part of the narrative of the decemviral 

 activity. Still more recently this thesis has been defended with great 

 ingenuity by a distinguished French legal historian. I myself have 

 not been convinced by their arguments; I still cling to the belief that 

 the essential part of the Roman story is probably correct, and that the 

 Twelve Tables were probably accepted by a Roman assembly as 

 the German leges were accepted a thousand years later by German 

 tribal assemblies. For my present purpose, however, the answer 

 to this historical question is not material. In the later Republic the 

 compilation known as the Twelve Tables was officially regarded as 

 a lex; it was revered as a charter of popular rights and as the cradle 

 of the civil law; but it was interpreted with a| much freedom as if 

 it had been merely a private statement of the rules governing the 

 administration of justice in a far-away and semi-barbarous age. It 

 really exercised little more influence on the administration of justice 

 during the last century of the Roman Republic than the laws of 

 Alfred exercised upon the administration of justice in the reign of 

 Elizabeth. The compilation had been surrounded for generations by 

 a growing mass of interpretation, which had so modified and sup- 



