The Twelve Tables Part 4

[31] This strip is reserved as a path between any two estates belonging to different owners. Both owners can walk on the whole s.p.a.ce, but neither owner can claim possession of the strip through continued usage.

[32] In view of the ancient tradition that the decemvirs sent to Athens a committee to study the laws written by Solon (c. 639 B.C.--c.

559 B.C.) for the Athenians (Livy, _op. cit_., III. 33. 5), it may not be out of place to record what Gaius (_ob. c_. 180 A.D.) reports about marking boundaries (_Digesta_, X. 1. 13): "We must remember in an action for marking boundaries (_actio finium regundorum_) that we must not overlook that old provision which was written in a manner after the pattern of the law which at Athens Solon is said to have given.

For there it is thus: 'If any man erect a rough wall alongside another man's estate, he must not overstep the boundary; if he build a ma.s.sive wall, he must leave one foot to spare; a building, two feet; if he dig a trench or a hole, he must leave a s.p.a.ce equal or about equal in breadth to depth: if a well, six feet; an olive tree or a fig tree he must plant nine feet from the other man's property and any other trees five feet.'"

While there is no evidence whatever that any enactment of the Twelve Tables reproduced in any form the terms of the Athenian statute here quoted, still the Twelve Tables may have contained some such provisions.

[33] What were these conditions we know not; all that we have from this item are the unbracketed words, which are quoted as examples of how words change their meanings and which are a.s.signed to the Twelve Tables.

[34] Some scholars suppose that only branches over fifteen feet above ground are meant. In any case the idea is that shade from the tree may not damage a neighboring estate.

[35] We know that this item was interpreted to include prose as well as verse.

[36] Slander and libel are not distinguished from each other in Roman Law.

[37] The severity of the penalty indicates that the Romans viewed offence not as a private delict but as a breach of the public peace.

[38] Apparently an incantation against a person, for the ninth statute in this Table treats such practice against property.

[39] The penalty points to an incurable maim or break, because the next statute seems to provide for injuries which can be mended.

[40] Thus the injured person or his next of kin may maim or break limb for limb. Cf. the Mosaic _lex talionis_ recorded in _Leviticus_, 24.

17-21.

[41] Most scholars connect this fragment with damage to property and conjecture that the rest of it must have been concerned with compensation for accidental damage.

[42] That is, the animal which committed the damage may be surrendered to the aggrieved person.

[43] From the context, wherein the unbracketed words are preserved, we can reconstruct the sense of this statute.

[44] Not apparently into one's own fields, but to destroy these where these were.

[45] Apparently into one's own fields by means of magical incantation.

[46] Properly the G.o.ddess of creation, occasionally (by extension) the G.o.ddess of marriage, usually the G.o.ddess of agriculture, especially the G.o.ddess of cultivation of grain and of growth of fruits in general.

Ceres is represented commonly as a matronly woman, always clad in full attire of flowing draperies, crowned either with a simple ribband or with ears of grain holding in her hand sometimes a poppy, sometimes a scepter, sometimes a sickle, sometimes a sheaf of grain, sometimes a torch, sometimes a basket full of fruits or of flowers, seated or standing in a chariot drawn by dragons or by horses.

[47] That is, the slayer must call aloud, lest he be considered a murderer trying to hide his own act.

Our sources leave it uncertain whether the law forbids that a thief be killed by day, unless he defend himself, with a weapon, or the law permits that a thief be killed, if he so defend himself.

[48] A southern spur of the Capitoline Hill, which overlooks the Forum, and named after Tarpeia, a legendary traitress, who, tempted by golden ornaments of besieging Sabines, opened to them the gate of the citadel, of which her father was a governor during the regal period.

As they entered, the enemy by their shields crushed her to death: Tarpeia was buried on the Capitoline Hill, whereon stood the citadel, and her memory was preserved by the name of the Tarpeian Rock (Rupes Tarpeia), whence certain cla.s.ses of condemned criminals, in later times, were thrown to their death.

[49] Our sources tell us that a person who searched for stolen property on the premises of another searched alone and naked, lest he be deemed later to have brought concealed in his clothing any article, which he might pretend then to have found in the house, save for a loincloth and a platter, on the latter of which he probably placed the stolen articles when found. We hear also that a man could inst.i.tute a search in normal dress, but only in the presence of witnesses. If in the latter case stolen goods were discovered, the thief on conviction was condemned to pay thrice their value for _furtum conceptum_ (detected theft). But in either case, if the accused householder could prove that a person other than himself for any reason had placed the stolen articles in his house, he could obtain from that person on conviction damages of thrice their value for _furtum oblatum_ ("planted" theft). Search by platter and loincloth (_lanx et licium_) became obsolete; search with witnesses present survived.

[50] The ancient commentators take this statute to mean "double in kind" not in value: for example, two cows surrendered for one cow stolen.

[51] That is, neither a thief nor a receiver of stolen goods, whether acquired through purchase or by other method, can acquire t.i.tle to property in stolen goods through long possession of such.

[52] The uncia (whence our "ounce") is the unit of division of the as and is used also as one-twelfth of anything. One-twelfth of the princ.i.p.al paid yearly as interest equals 8-1/3%.

[53] This originally is a religious penalty, whereby the person is sacrificed. But sacer comes to mean "a person disgraced and outlawed and deprived of his property."

[54] At a sale (_mancipium_ or _manc.i.p.atio_) the buyer in the presence of five adult citizens had his money weighed by another adult citizen who held scales for this purpose.

This practice obtained originally ere the introduction of coinage.

[55] That is, enactments referring to a single citizen, whether or not in his favor.

[56] Caput includes also privileges of citizenship (_civitas_).

[57] Commonly known as the _comitia centuriata_, an a.s.sembly which comprised all citizens. To this a.s.sembly a citizen convicted in court on a capital charge had the right of appeal (_ius provocationis_) at least as early as the pa.s.sage of the Lex Valeria in 509 B.C., for Cicero claims that the pontifical as well as the augural books state that the right of appeal from the regal sentences had been recognized (De Re Publica, 11. 31. 54).

[58] This statute is quoted by Cicero (De Legibus, III. 4. 11), who inserts censores (censors) as the subject of the last verb _loca.s.sint_ (have placed). But the last clause must have been "modernized" either by Cicero or in his source, because the promulgation of the Twelve Tables in 449 B.C. antedated the creation of the censorship, which can not be traced higher than 443 B.C., if we can believe Livy's account of its inst.i.tution (op. cit., IV. 8. 2-7). Before that time the consuls superintended the lists of citizens.

[59] The first provision doubtlessly descends from a primitive tribal tabu. Cicero supposes that the second provision is due to danger from fire (De Legibus, II. 23. 58).

[60] In view of the simplicity enjoined in some of the following statutes of this Table, for the decemvirs apparently took a dim view of extravagant funerals, this statute seems to mean that a rough-hewn pyre without elaborate smoothness of its wooden material suffices for the cremation-couch of a citizen.

[61] Cicero says that some older interpreters suspected that some kind of mourning-garment was meant by _lessus_, but that he inclines to the interpretation that it signifies a sort of sorrowful wailing (De Legibus, II.23.59)

[62] This provision is aimed at the common custom of prolonging mourning by gathering and preserving unburied some part of the corpse.

When this part (_os resectum_) later had been buried, then only mourning ceased. It is possible that some Romans may have thought that cremation might be wrong or that its ceremony was inadequate.

[63] That is, in such a case a limb could be carried to Rome and then buried.

[64] That is, a garland or a chaplet or a wreath as a prize of achievement.

[65] A chattel, for example, is a slave or a horse who wins a wreath for the owner.

[66] Cicero says that this statute seems to suggest fear of disastrous fire (_De Legibus_, II. 24. 61).

[67] In the burning-mound also ashes were buried.

[68] This statute proved so unpopular that it soon was repealed by the Lex Canuleia in 445 B.C.

[69] This process of "taking a pledge" is the seizure and the detention of a debtor's property or part thereof to induce the debtor to pay the debt before any other legal action will be taken.

It will be noticed that the two instances given in this statute concern Sacred Law, with which by antic.i.p.ation the fourth statute of this Table likewise is concerned. Modern scholars place these two provisions among the Supplementary Laws despite the temptation to set these among the statutes of Table X, of which all but one item come from Cicero's discussion of Sacred Law in his _De Legibus_, II. 23.

58-24. 61, in the concluding portion of which Cicero seems to speak with some finality that he has given all the regulations regarding religion found in the Twelve Tables. Moreover these two rules come from Gaius, who flourished more than two centuries after Cicero. But if every Supplementary Law resembling the subject-matter of Tables I-X should be advanced to the appropriate position forward, few would be the statutes left in Tables XI-XII. It is merely coincidental that some of the statutes among the Supplementary Laws should concern topics already treated, for from the Romans we must not remove the faculty of aftersight.

[70] Some scholars seek to place this provision in Table VIII, where it seems properly to belong, despite its traditional position here.

This dislocation, coupled with that of the preceding provision, well ill.u.s.trates how hopeless is our reconstruction of the order of the regulations of the Twelve Tables.

[71] That is, apparently, if a person with or without fraudulent intent had held and claimed as his a thing which a judicial court now decided belonged to another party.