The Twelve Tables Part 1

The Twelve Tables.

by Anonymous.

INTRODUCTION

The legal history of Rome begins properly with the Twelve Tables. It is strictly the first and the only Roman code,[1] collecting the earliest known laws of the Roman people and forming the foundation of the whole fabric of Roman Law. Its importance lies in the fact that by its promulgation was subst.i.tuted for an unwritten usage, of which the knowledge had been confined to some citizens of the community, a public and written body of laws, which were easily accessible to and strictly binding on all citizens of Rome.

Till the close of the republican period (509 B.C.-27 B.C.) the Twelve Tables were regarded as a great legal charter. The historian Livy (59 B.C.-A.D. 17) records: "Even in the present immense ma.s.s of legislation, where laws are piled on laws, the Twelve Tables still form the fount of all public and private jurisprudence."[2]

This celebrated code, after its compilation by a commission of ten men (_decemviri_), who composed in 451 B.C. ten sections and two sections in 450 B.C., and after its ratification by the (then) princ.i.p.al a.s.sembly (_comitia centuriata_) of the State in 449 B.C., was engraved on twelve bronze[3] tablets (whence the name Twelve Tables), which were attached to the Rostra before the Curia in the Forum of Rome.

Though this important witness of the national progress probably was destroyed during the Gallic occupation of Rome in 387 B.C., yet copies must have been extant, since Cicero (106 B.C.-43 B.C.) says that in his boyhood schoolboys memorized these laws "as a required formula."[4] However, now no part of the Twelve Tables either in its original form or in its copies exists.

The surviving fragments of the Twelve Tables come from the writings of late Latin writers and fall into these four types:

(1) Fragments which seem to contain the original words (or nearly so) of a law, "modernized" in spelling and to some extent in formation;

(2) Fragments which are fused with the context of the quoter, but which otherwise exhibit little distortion;

(3) Fragments which not only are fused with the sentences of the citer but also are much distorted, although these preserve in paraphrase the purport of the provisions of a law;

(4) Pa.s.sages which present only an interpretation (or an opinion based on interpretation) or a t.i.tle or a convenient designation of a law.

Only in very few cases do we know or can we conjecture the number of the tablet whereon any law appeared. Consequently of the arrangement very little is ascertainable and the attribution of some items to certain tablets is debatable. The probable order of the fragments, which total over 115, has been inferred from various statements and from other indications of ancient authors.

The amount of detail apparently varies either with the importance of the matter or with the degree of general or particular knowledge of the subject supposed by the commissioners to be held commonly by the citizens. The style is characterized by such simplicity and by such brevity that the meaning in some instances borders upon obscurity,--at least so far as modern interpretation is concerned.

The value of the Twelve Tables consists not in any approach to symmetrical cla.s.sification or even to terse clarity of expression, but in the publication of the method of procedure to be adopted, especially in civil cases, in the knowledge furnished to every Roman of high or low degree as to what were both his legal rights and his legal duties, in the political victory won by the plebeians, who compelled the codification and the promulgation of what had been largely customary law interpreted and administered by the patricians primarily in their own interests.

THE TWELVE TABLES[5]

TABLE I. PROCEEDINGS PRELIMINARY TO TRIAL

1. If he (the plaintiff) summon [the defendant] to court (_in ius_), he (the defendant) shall go. If he (the defendant) go not, he (the plaintiff) shall call a witness thereto. Then only he (the plaintiff) shall take [the defendant] by force.

2. If he (the defendant) attempt evasion or take to flight, he (the plaintiff) shall lay hand [on the defendant].

3. If disease or [old] age shall be an impediment, he who shall summon [the defendant] to court (_in ius_) shall grant [him] a conveyance; if he (the plaintiff) shall not wish, he (the plaintiff) shall not spread [with cushions] a covered carriage.

4. For a freeholder (taxpayer whose fortune is valued at not less than 1,500 _a.s.ses_[6]) a freeholder shall be surety (_vindex_) [for his appearance at trial]. For a proletary (non-taxpayer whose fortune is rated at less than a freeholder's) any one who shall be willing shall be surety (_vindex_).

5. When they (the parties) come to terms, [an official] shall announce [it].[7]

6. If they (the parties) agree not on terms, they shall state [their]

case in the _comitium_ (meeting-place) or, in the _forum_ (market-place) ere noon. Both (parties) shall appear in person and shall argue the matter.

7. [If one of the parties shall not have appeared,] after noon [the judge] shall adjudge the case (_lis_) in favor of him present.

8. If both (parties) be present, sunset shall be the time-limit [of the proceedings].

9. [Both parties shall post] sureties (_vades_) and subsureties (_subvades_) [for their appearance].

TABLE II. TRIAL

1. The legal action of solemn deposit (_sacramenti actio_) [demands that each litigant shall wager either 500 _a.s.ses_ or 50 _a.s.ses_]: 500 _a.s.ses_ for solemn deposit (_sacramentum_) when the subject of the dispute [is valued at] 1,000 _a.s.ses_ or more, 50 _a.s.ses_ when [estimated at] less [than 1,000 _a.s.ses_]. [But] if the controversy concerns the liberty of a human being [, however valuable may be the person], the solemn deposit (_sacramentum_) [shall be] 50 _a.s.ses_.

2. A dangerous disease or a day appointed [for the hearing of a case]

with an alien [, when the latter is a party] ... If any of these (circ.u.mstances) be an impediment for judge (_index_)[8] or arbitrator (_arbiter_)[9] or party (_reus_),[10] on this account the day of trial shall be deferred.

3. Whoever shall have need of evidence, he shall go on every third day[11] to cry[12] before the doorway [of the witness's house].

TABLE III. DEBT

1. Of debt acknowledged and for matters judged in court (_in iure_) thirty days shall be allowed by law [for payment or for satisfaction].[13]

2. After that [elapse of thirty days without payment] hand shall be laid on (_ma.n.u.s iniectio_) [the debtor]. He shall be brought into court (_in ius_).

3. Unless he (the debtor) discharge the debt or unless some one appear in court (_in iure_) to guarantee payment for him, he (the creditor) shall take [the debtor] with him. He shall bind [him] either with thong or with fetters, of which the weight shall be not less than fifteen pounds or shall be more, if he (the creditor) choose.

4. If he (the debtor) choose, he shall live on his own [means]. If he live not on his own [means], [the creditor,] who shall hold him in bonds, shall give [him] a pound of bread daily; if he (the creditor) shall so desire, he shall give [him] more.

5. Unless they (the debtors) make a compromise, they (the debtors) shall be held in bonds for sixty days. During those days they shall be brought to [the magistrate] into the _comitium_ (meeting-place) on three successive market-days and the amount for which they have been judged liable shall be declared publicly. Moreover on the third market-day they (the debtors) shall suffer capital punishment (_capite poenae_) or shall be delivered for sale beyond the Tiber [River].

6. On the third market-day they (the creditors) shall cut pieces.[14]

If they shall have cut more or less [than their shares], it shall be with impunity (_s[in]e fraude_).

TABLE IV. PATERNAL POWER

1. A dreadfully deformed child shall be killed quickly.

2. If a father thrice surrender a son for sale, the son shall be free from the father.[15]

3. [To repudiate his wife her husband] shall order her to mind her own affairs, shall take [her] keys [, shall expel her].

4. Into a legal inheritance he who has been in the womb (_in utero_) is admitted [, if he shall have been born].[16]