EARLY HISTORY OF THE ROMAN CONSTITUTION, ORIGIN AND CHARACTER OF THE TWELVE TABLES
IMPERATORIS IUSTINIANI INSTITUTIONUM ( Introduction)
by J. B. Moyle, D.C.L.
of Lincolnโs Inn, Barrister-at-Law,
Fellow and Late Tutor of New College, Oxfordย Fifth Edition (1912)
THE COMITIA, OR LEGISLATIVE ASSEMBLIES OF ROME
The earliest of these was the comitia curiata, which, when convoked for certain kinds of business, such as the sanctioning of testaments (Inst.ย ii. 10. I), was called comitia calata. Whatever opinion may be held as to the names and ethnic origin of the three tribes (Ramnes, Luceres, and Tities or Quirites) from whose union the Roman state is mythically said to have sprung, it cannot be denied that the populus Romanus, when we first known anything certain about it, actually consisted of three tribes, each of which comprised ten curiae, which each curia consisted of a number of gentes, and each gens of an indefinite number of families, between which there was originally perhaps a genuine tie of blood, which gradually became a mere fiction, respected and supported for the sake of the ancient family worship and religious rites. The family was thus not merely a microcosm of the state; the populus contained the tribe, the tribe the curia, the curia the gens, the gens the family, the family the individual; to belong to the first a man must also belong to the last member of the series; or rather we should say that primitive law takes little account of individuals, but of groups, that is to say, of families or gentes only.
The comitia curiata, and in fact the whole constitution, was based on this family, gentile, and tribal organization. The comitia curiata, which was the popular assembly, was composed of all the males of the gentes, without any distinction between father and those in his power; it was thus a gathering arranged on the principle of real or fictitious relationship, in which the voting was ‘curiatim,’ each curia expressing its opinion on the matter in hand in turn. But the services of the great majority of able-bodies citizens were constantly required by the military exigencies of a state which as yet drew no distinction between a stranger and an enemy; consequently, to superintend the general conduct of affairs, there was a council or senatus consisting, after Tarquinus Priscus, of three hundred of the patres gentium, a hundred from each tribe… The nomination of the king, or supreme executive magistrate, lay with the senate, but required confirmation by the comitia… On the other hand, it was to the populus alone, assembled in its comitia, that the legislative function belonged, though this function could not be called into action without the authority of the senate, which alone possessed the right of submitting subjects for deliberation, and of initiating changes of law; it was the populus which decided upon war and peace, and which chose the king nominally, and the senators actually: but in the exercise of all these rights it had to wait for action to be first taken by the probouleutic body, whose members it chose itself, but whose personal constitution, when once selected, it could modify only in a constitutional manner.
ORIGIN OF THE PLEBS
The military temper and strong organization of the Roman people resulted in a continuous addition of territory to the domains of the city; little districts, principally of Latin population, were constantly being annexed, and their villages razed, the inhabitants being encouraged to flock towards Rome, because thus they could be most easily cowed into obedience and hindered from rebellion. These immigrants were at first settled on the stretch of land, bordering the three hills of the populus, known from them as esquiliae; as their numbers swelled, King Ancus, who was afterwards honoured as founder of the plebs, assigned them the Aventine as a dwelling-place. This was the population which became the plebs, and which played so important a part in the strictly legal, no less than in the constitutional, history of Rome.
The question how to deal with them became daily a more pressing political problem. To incorporate them into the existing tribe-economy was out of the question… the plebs must remain a body apart from the populus, and therefore its members could have no political rights. But there seemed no reason why the private should not be separated from the public elements of the law; and the result — whether it should be ascribed to a happy accident, or to the deep-seated legal instincts of the Romans — was that the plebs were made a participator in all those rights which, in the later law, are usually described as the private rights involved in the Roman civitas… The Roman principle of political exclusion led to considerable results in the field of pure law; it produced a duplication of institutions… In fact, the communication of private rights to the plebs led to a vast development of private law. Had the Ropman populus contrived to live apart by itself in arrogant isolation: had it stubbornly refused to recognise a tittle of right in any man who was not a member of itself; had it, in short, not happily hit upon the device of separating the public from the private portion of the ius Romanum, the history of Roman jurisprudence would in all probability have been far different from what it has been.ย [For a different view of the original position of the plebs, in the main derived from Mommsen, see the article ‘Rome’ in the Encyclopaedia Britannica, ninth edition, p. 736.]
REFORMS OF SERVIUS TULLIUS
The importance of the plebs, on account no less of its wealth and military use as infantry than of its numbers, became daily more obvious; it was clear that the time at which its political position should be recognised could not long be deferred. It was of Servius, of whom it is related (Cic. de Republ. ii. 21) that he attained the royal dignity by plebeian support, who practically effected its recognition.
The plebs could not possibly be brought within the political constitution by means of the personal principle of family, gentile, and tribal connection. Servius thus had to cast about for a new system of political association, and a basis for this was found in the principle of local contiguity. He divided the territory of Rome into local tribes (or rather ‘parishes’), each with its own president, each occupying a certain district, and each responsible for a certain quota of taxation and a certain military contingent. Four of these were ‘tribus urbanae,’ other, the number of which seems to have fluctuated with circumstances, ‘tribus rusticae’; but the formerly only had any political influence until the plebeian succession, though it is possible that for political purposes the members of the country belonged to the town tribes also. Nor can it reasonably be doubted — despite the dissent of Niebuhr — that this tribal arrangement comprehended the patricians, the old populus in its three tribes. Its very object was to make the plebs an integral element in the state, and this could not have been done unless the reform of Servius had embraced every citizen, every inch of Roman soil.
The second reform of Servius Tullius in its origin was military, but it eventually led to an important constitutional development… To reduce the prominence of the distinction between plebs and patricians, if not to sweep it away altogether, it was necessary to disconnect the military organization from the old constitution of curiae and gentes; to substitute for this principle a new one; to base the military system on a new idea. This new principle, this new idea, were those of timocracy. The leading feature in Servius’ second reform was his division of the whole body of freeholders (assidui), which could be called on for infantry service, into five classes, in which each man’s position was determined by the amount of his property: at first, no doubt, of his property in land only… To this proprietary classification corresponded an arrangement of the fighting men in centuries or companies of a hundred. Of cavalry there were eighteen centuries, six of which were drawn from the old populus, in accordance with the plan of Tarquinius Priscus, and twelve from the plebs…
It is, however, the political side of the centurial organization which is of most interest in the history of Roman law, though this was not a working reality until after the expulsion of the kings. The principle which underlay its application to this branch of the national life was this — that a man ought to have an influence in public affairs proportioned to the burdens which he bore in defending the state against its external foes. On the expulsion of the kings we find the centurial organization adapted to a new political assembly, the comitia centuriata, which was destined to throw the old assembly of the patricians at once into the shade, and so engross the discussion of public questions, such as war and peace, legislation as to matters affecting the constitution, the choice of magistrates, and the decision of all judicial proceedings which involved the ‘caput’ of a Roman citizen… The political, however, were not precisely identical with the military centuries; the proportion between the classes was the same, but by the addition of a proletariate suffrage the number of military companies was exceeded by the number of votes in the comitia by one.
PLEBS V. PATRICIANS; ORIGIN AND CHARACTER OF THE TWELVE TABLES
With the expulsion of the sons of Tarquinius Superbus (circa 509 B.C.) the kingly government of Rome came to an end. The act had been that of the patricians; but the plebeians were in full accord with them. The constitutional functions of the king, subject to certain limitations in respect of judicial authority, were vested in two supreme magistrates of co-ordinate authority, who were chosen from year to year, and called at first praetors, and later consuls; of the first two who were elected one was the plebeian L. Junius Brutus. It would seem too that the plebeians now gained theย entrรฉeย into the senate — at least, henceforward two classes of senators are distinguished — patres and conscripti. But no provision apparently was made to secure an adequate senatorial representation of the plebs, and after Brutus there is no plebeian consul for very many years. This will make it clear at once that, though the plebs commanded an overwhelming majority in the comitia, its political influence in general was far less real than might be supposed. A mine of gunpowder is harmless unless there be some one to apply the match; and the practical helplessness of the plebeians will be comprehended if we remember three facts. In the first place, no citizen could constitutionally bring any matter before the centuries except one or the other of the consuls. In the second place, the senate still preserved its probouleutic function; that is to say, even a consul could not submit a single question to the comitia until it had previously been discussed by the senate, and its reference to the larger assembly had been approved by that body. Thirdly, it was required that all elective or legislative acts which needed a religious sanction should be confirmed by a lex curiata in the comitia of that name, in which it will be remembered that patricians alone were entitled to take part; such confirmation was essential, for instance, to the validity of consular elections, for on consuls a lex curiata alone could confer the imperium, and of all alterations in the constitution.
The enactment of the Twelve Tables was preceded by a period of discontent and even active agitation, and the relations of the two parties were still in a sort of ferment, and incapable of satisfactory adjustment except by some constitutional reform of more than ordinary comprehensiveness… The first secession of the plebs seems to have been occasioned principally by financial distress. Unsuccessful wars against the allies of the royal familiy of the Tarquins had largely increased taxation, and taxation fell in the main on the plebeians alone. The patricians availed themselves of their comparative freedom from financial burdens to cast the net of usury round the plebs, and the severe form of execution in vogue for debt was abused for political purposes. Returning from a campaign, the plebeian section of the host occupied a hill in the vicinity of Rome, subsequently known as the Mons Sacer, and refused to re-enter the city. There they were joined by the rest of the plebs, and threats uttered of a permanent secession, and of the establishment of an opposition state. The patricians saved themselves from a catastrophe which would have thrown the history of Rome centuries backward, and, in all probability, totally altered its character, by conceding certain reforms, by surrendering certain of their privileges. An agreement was concluded between the two orders, by which the plebs were in future to have two special elective magistrates of their own — a number very shortly raised to five, and then to ten — whose office none could hold unless he himself were a plebeian. The function of these ‘tribunes of the plebs’ was to protect members of their own order against the consuls, and those who violated their personal liberty or security were to be outside the law; they were not, like the consuls, magistrates of the Roman people, and therefore could not take the political intiative. Gradually, however, this limited authority was thrown into the shade by the unrestricted right of veto which is so familiar to readers of Roman history, and which eventually enabled the tribune to paralyse the whole machinery of government…
The patricians controlled the entire administration of justice; it was the consul who presided over the preliminary stage of every action, and if he did not decide it out of hand, the judges were most usually the patrician decemvirii, upon whom this function had been cast by Servius Tullius; it was the pontifices themselves, members of the patrician caste, who interpreted the law, and solved its knotty problems. Moreover, the very enforcement of the law depended on the observance of minute forms and technicalities of which, by reason of their implication with the ius sacrum, the plebeian could know little or nothing… In the year 462 B.C. the tribune Terentilius had procured a resolution of the plebs, ‘ut quinque viri creentur legibus de imperio consulari scribendis,’ which the senate refused to send on to the comitia centuriata. Nothing daunted, he proposed, in the next year and in the same way, a codification of the whole law by decemviri. This last hint was taken, after an interval of ten years, by the patricians; they consented (451) that the powers of consuls and tribunes should for a while be suspended, and the whole authority of the state entrusted to ten commissioners, on whom was imposed the task of codifying the public and private law of Rome. In that same year they submitted to the people a code of ten tables, which, along with two tables added in the following year, were accepted, as genuine statute law, by the comitia. These were the celebrated Twelve Tables.
[Literary] references to an embassy which the Romans sent to Greece to search out the laws of her cities, and especially those which Solon had given to Athens, have led many historians to believe that a large proportion of the decemviral legislation was derived from foreign sources, and some even to suppose that the whole of it, in substance, was Greek law. It would seem that in point of fact no theory was ever wider of the truth: the foreign influence was trifling, and left little or no trace whatever on the private portion of the code. A consideration of the task of the decemvirs confirms a conclusion suggested by such knowledge as we possess of the results of their labours. To remove the uncertainty of the law, which was an inevitable consequence of its form, as in the main unwritten custom and tradition, and which favoured capriciousness in its administration by the magistrate: so far as possible, to place all freemen, irrespective of their birth or order, on the same footing in respect of legal right and duty; and to put an end to plebeian discontent arising from economical conditions — these were the chief objects to be attained, and it would not seem that their attainment would be promoted by even a liberal adoption of foreign usages. In the extant portions of the Twelve Tables there are unmistakeable traces of the equalising policy: the ius sacrum was to a considerable extent stripped of its exclusive character, and the law of procedure, as to which we have important fragments, was settled upon a basis which gave justice a chance of being fairly administered by saving from magisterial caprice the decision of most points upon which the successful bringing of an action depended. How far the Tables were a complete codification of existing rules must always remain somewhat doubtful. It appears beyond dispute that being intended as an exposition of the general civil law, applicable to all classes alike, they did not regulate practices or institutions peculiar to either order, such as the older forms of marriage and adoption; nor did they include the leges regiae, law and religion having now been differentiated. Much again relating to the effects of legal acts and dispositions, which was a matter of common knowledge and formed no subject of dispute, remained, as we might say, ‘common law,’ the familiar possession of every citizen, and the same remark may be made of many laconic aphorisms similar to others which we know to have been embodied in the Tables. Finally, it may be observed that the enactment of the Twelve Tables is also direct evidence of the independent position which private law had won for itself under plebeian auspices, and at the same time starts it on a new career of development; it was no longer the peculiar province of the plebeian order; but having been sanctioned by the whole populus in its comitia, it began to be looked on more by all parties as the best security for order and prosperity. But this is part of a subject on which there is great diversity of opinion, and to which we shall shortly return — the relation, at Rome, of private to public law.
English lawyers in particular will fully appreciate the advantage which was secured by the expression of the law in a more scientific and therefore more convenient form than that in which it had hitherto been clothed. But it was a still larger boon that provision was made for its being generally known to all citizens who cared to make themselves acquainted with it. Historical analogy would perhaps lead us to suppose that the knowledge of the law had hitherto been engrossed by the patrician caste, as represented by the pontifices, who are described in a passage of Pomponius (Dig. 1. 2 2. 6) as the only masters of the legal rules and forms of procedure at that time binding. But it has already been suggested that private law was to a large degree of plebeian creation, and the sole possession of legal knowledge by a dominant aristocracy is truer of the Greek oligarchies than of Rome, of which we may, with some qualification, accept the view of the German historical school of jurists, who assert that the material law was no secret, being founded on the common legal consciousness (Rechtsbewusstsein) of the nation, as evidenced and attested by its usages and customs. Still, it is of no avail to know the law, if one cannot get one’s rights protected and enforced by action; and of the forms of actions, as already observed, the plebeian could know little, through their implication with the ius sacrum. The decemviral legislation introduced simplicity and uniformity into these; it was exposed in a public place for all to read, and from the fact that in Cicero’s boyhood the Roman youth was used to learn the Twelve Tables by heart, it is evident that they were long used as the foundation of a legal education as, in the three centuries and a half preceding the legislation of Justinian, a master of the Institutes of Gaius was considered the proper groundwork of an adequate knowledge of the law. For nearly a thousand years they remained the only complete legislation which professed to embrace the whole positive law of Rome, and though in point of fact the greater part of their original substance was repealed or modified by subsequent enactments, the Roman citizen, even under the Empire, always continued to revere them as the solid basis of the noble system of jurisprudence by which all his rights and duties were determined; and it was only by the great work of Justinian that, nine hundred and eighty-four years after their enactment, they were formally deprived of their authority.
… There appears no doubt that the first three Tables dealt with civil procedure, from summons down to execution of judgment. According to a recent authority on the subject (M. Voigt, Die xii Tafeln, 1883) the fourth regulated inheritance, both testamentary and intestate, and patria potestas: the fifth various titles to property, servitude, and contract: the fifth and sixth related to divorce and the two varieties of guardianship: the seventh to delict and usury: the eighth to a variety of topics, including the relations of adjoining proprietors and certain criminal matters: the ninth continued the latter subject, and prescribed the procedure on criminal prosecutions: the tenth regulated interment; while the last two made provision for appeals from the action of the magistrates, and contained other subordinate enactments. The scantiness of the law relating to contract is noteworthy.
Lex Duodecim Tabularum
Table I. Proceedings Preliminary to Trial.
1. โ If the plaintiff summons the defendant to court the defendant shall go. If the defendant does not go the plaintiff shall call a witness thereto. Only then the plaintiff shall seize the defendant.
2. โ If the defendant attempts evasion or takes flight the plaintiff shall lay hand on him.
3. โ If sickness or age is an impediment he who summons the defendant to court shall grant him a vehicle. If he does not wish he shall not spread a carriage with cushions.
4. โ For a freeholder a freeholder shall be surety ; for a proletary anyone who wishes shall be surety.
5. โ There shall be the same right of bond and of conveyance with the Roman people for a steadfast person and for a person restored to allegiance.
6. โ When the parties agree on the matter the magistrate shall announce it.
7. โ If they agree not on terms the parties shall state their case before the assembly in the meeting place or before the magistrate in the market place before noon. Both parties being present shall plead the case throughout together.
8. โ If one of the parties does not appear the magistrate shall adjudge the case, after noon, in favor of the one present.
9. โ If both parties are present sunset shall be the time limit of the proceedings.
10. โ . . . sureties . . . subsureties . . . with platter and loincloth . . .
Table II. Trial.
1 a. โ The penal sum in an action by solemn deposit shall be either 500 asses or 50 asses … It shall be argued by solemn deposit with 500 asses, when the property is valued at 1,000 asses or more, but with 50 asses, when the property is valued at less than 1,000 asses. But if the controversy is about the freedom of a person, although the person may be very valuable, yet the case shall be argued by a solemn deposit of 50 asses. . . .
1 b. โ An action by demand for a judex . . . concerning that which is claimed in accordance with a stipulation . . . concerning division of an inheritance among joint heirs.
2. โ . . . a serious sickness . . . or a day appointed for the hearing of a case with an alien . . . If any of these circumstances is an impediment for the judex or for the arbiter or for either litigant, on that account the day of trial shall be postponed.
3. โ Whoever needs evidence shall go every third day to shout before the doorway.
Table III. Execution of judgment.
1. โ Thirty days shall be allowed by law for payment of confessed debt and for settlement of matters adjudged in court.
2. โ After this time the creditor shall have the right of laying hand on the debtor. The creditor shall hale the debtor into court.
3. โ Unless the debtor discharges the debt adjudged or unless someone offers surety for him in court the creditor shall take the debtor with him. He shall bind him either with a thong or with fetters of not less than fifteen pounds in weight, or if he wishes he shall bind him with fetters of more than this weight.
4. โ If the debtor wishes he shall live on his own means. If he does not live on his own means the creditor who holds him in bonds shall give him a pound of grits daily. If he wishes he shall give him more.
5. โ . . . Meanwhile they shall have the right to compromise, and unless they make a compromise the debtors shall be held in bonds for sixty days. During these days they shall be brought to the praetor into the 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 shall suffer capital punishment or shall be delivered for sale abroad across the Tiber River.
6. โ On the third market day the creditors shall cut shares. If they have cut more or less than their shares it shall be without prejudice.
Table IV. Paternal Power.
1. โ A notably deformed child shall be killed immediately.
2 a. โ To a father . . . shall be given over a son the power of life and death.
2 b. โ If a father thrice surrenders a son for sale the son shall be free from the father.
3. โ To repudiate his wife her husband shall order her . . . to have her own property for herself, shall take the keys, shall expel her.
4. โ A child born within ten months of the father’s death shall enter into the inheritance . . .
Table V. Inheritance and Guardianship.
1. โ . . . Women, even though they are of full age, because of their levity of mind shall be under guardianship . . . except vestal virgins, who . . . shall be free from guardianship . . .
2. โ The conveyable possessions of a woman who is under guardianship of male agnates shall not be acquired by prescriptive right unless they are transferred by the woman herself with the authorization of her guardian . . .
3. โ According as a person has made bequest regarding his personal property or the guardianship of his estate so shall be the law.
4. โ If anyone who has no direct heir dies intestate the nearest male agnate shall have the estate.
5. โ If there is not a male agnate the male clansmen shall have the estate.
6. โ Persons for whom by will . . . a guardian is not given, for them . . . their male agnates shall be guardians.
7 a. โ If a person is insane authority over him and his personal property shall belong to his male agnates and in default of these to his male clansmen.
7 b. โ . . . but if there is not a guardian for him . . .
7 c. โ . . . Administration of his own goods shall be forbidden to a spendthrift. . . . A spendthrift, who is forbidden from administering his own goods, shall be . . . under guardianship of his male agnates.
8. โ If a Roman citizen freedman dies intestate without a direct heir, to his patron shall fall the inheritance . . . from said household . . . into said household.
9. โ Those items that are in the category of accounts due to the deceased . . . shall be divided among the heirs by ordinary operation of law in proportion to their shares of the inheritance. . . . Debts of the estate of a deceased shall be divided, according to law, among the heirs, proportionally to the share of the inheritance that each acquires.
10. โ . . . Action for division of an estate shall be available for joint heirs wishing to withdraw from common and equal participation . . .
Table VI. Ownership and Possession.
1. โ When a person makes bond and conveyance, according as he specified with his tongue so shall be the law.
2. โ . . . It shall be sufficient to make good those faults that have been named by his tongue, while for those flaws that he has denied expressly, when questioned about them, the vendor shall undergo a penalty of double damages . . .
3. โ Warranty of prescriptive right in land shall be for two years to acquire ownership. . . . Of all other things . . . prescriptive right shall be for one year to acquire ownership.
4. โ Against an alien a warranty of ownership or of prescriptive right shall be valid forever.
5. โ . . . If any woman is unwilling to be subjected in this manner to her husband’s marital control she shall absent herself for three successive nights in every year and by this means shall interrupt his prescriptive right of each year.
6 a. โ If the parties join their hands on the disputed property when pleading in court . . .
6 b. โ Both conveyance and surrender in court . . . shall be confirmed.
7. โ . . . Interim possession shall be granted in favor of liberty.
8. โ One shall not take from framework timber fixed in buildings or in vineyard . . . One shall be permitted neither to remove nor to claim stolen timber fixed in buildings or in vineyards, . . . but against the person who is convicted of having fixed such timber there an action for double damages shall be given.
9. โ . . . Whenever the vines are pruned, until the timbers are removed . . .
Table VII. Real Property.
1. โ . . . Clearance shall be two and one-half feet . . .
2. โ . . . in an action for regulating boundaries . . .
3 a. โ . . . inclosure . . . inherited plot . . .
3 b. โ . . . cottages . . .
4. โ Ownership by prescriptive right . . . shall not be within five feet.
5 a. โ If they disagree . . .
5 b. โ . . . Three arbiters shall regulate boundaries . . .
6. โ The width of a road . . . shall be eight feet on a straight stretch, on a bend . . . sixteen feet.
7. โ They shall build and repair the road : unless they keep it free from stones one shall drive one’s beast or carriage where one wishes.
8 a. โ If rain water damages . . .
8 b. โ If a watercourse conducted through a public place does damage to a private person the said person shall have the right to bring an action . . . that security against damage may be given to the owner.
9 a. โ . . . Branches of a tree shall be pruned all around to a height of fifteen feet.
9 b. โ If a tree from a neighbor’s farm has been felled by the wind over one’s farm, . . . one rightfully can take legal action for that tree to be removed.
10. โ . . . It shall be lawful to gather fruit falling upon another’s farm.
11. โ Articles sold . . . and delivered shall not be acquired by the purchaser, unless he pays the price to the seller or in some other way satisfies the seller, as, for example, by giving a surety or a pledge . . .
12. โ A slave is ordered in a will to be a free man under this condition : ” if he has given 10,000 asses to the heir ” ; although the slave has been alienated by the heir, yet the slave by giving the said money to the buyer shall enter into his freedom. . .
Table VIII. Torts or Delicts.
1 a. โ Whoever enchants by singing an evil incantation . . .
1 b. โ . . . If anyone sings or composes an incantation that can cause dishonor or disgrace to another . . . he shall suffer a capital penalty.
2. โ If anyone has broken another’s limb there shall be retaliation in kind unless he compounds for compensation with him.
3. โ . . . If a person breaks a bone of a freeman with hand or by club, he shall undergo a penalty of 300 asses ; or of 150 asses, if of a slave.
4. โ If one commits an outrage against another the penalty shall be twenty-five asses.
5. โ . . . One has broken . . . One shall make amends.
6. โ If a quadruped is said to have caused damage an action shall lie therefor . . . either for surrendering that which did the damage to the aggrieved person . . . or for offering an assessment of the damage.
7. โ If fruit from your tree falls onto my farm and if I feed my flock off it by letting the flock onto it . . . no action can lie against me either on the statute concerning pasturage of a flock, because it is not being pastured on your land, or on the statute concerning damage caused by an animal . . .
8 a. โ Whoever enchants away crops . . .
8 b. โ . . . Nor shall one lure away another’s grain . . .
9. โ If anyone pastures on or cuts by night another’s crops obtained by cultivation the penalty for an adult shall be capital punishment and, after having been hung up, death as a sacrifice to Ceres . . . A person below the age of puberty at the praetor’s decision shall be scourged and shall be judged as a person either to be surrendered to the plaintiff for damage done or to pay double damages.
10. โ Whoever destroys by burning a building or a stack of grain placed beside a house . .ย shall be bound, scourged, burned to death, provided that knowingly and consciously he has committed this crime ; but if this deed is by accident, that is, by negligence, either he shall repair the damage or if he is unable he shall be corporally punished more lightly.
11. โ Whoever fells unjustly another’s trees shall pay twenty-five asses for each tree.
12. โ If a thief commits a theft by night, if the owner kills the thief, the thief shall be killed lawfully.
13. โ By daylight . . . if a thief defends himself with a weapon . . . and the owner shall shout.
14. โ In the case of all other . . . thieves caught in the act freemen shall be scourged and shall be adjudged as bondsmen to the person against whom the theft has been committed provided that they have done this by daylight and have not defended themselves with a weapon ; slaves caught in the act of theft . . . shall be whipped with scourges and shall be thrown from the rock ; but children below the age of puberty shall be scourged at the praetor’s decision and the damage done by them shall be repaired.
15 a. โ The penalty for detected and planted theft shall be triple damages . . .
15 b. โ . . . by platter and by loincloth . . .
16. โ If a person prosecutes for theft which is not of the type wherein the thief is caught in the act … the thief shall settle the loss by paying double damages.
17. โ Title to a stolen article . . . shall not be acquired by prescriptive right . . .
18 a. โ . . . No person shall practice usury at a rate of more than one twelfth . . .
18 b. โ . . . A thief shall be condemned for double damages and a usurer for quadruple damages.
19. โ From a suit about an article deposited . . . an action for double damages shall be given.
20 a. โ If guardians are suspect in their administration there shall be the right to accuse them as such . . .
20 b. โ If . . . guardians steal a ward’s property . . . there shall be an action . . . against a guardian for double damages ; each guardian shall be held for the entire sum.
21. โ If a patron defrauds a client he shall be accursed.
22. โ Unless he speaks his testimony whoever allows himself to be called as a witness or is a scales-bearer shall be dishonored and incompetent to give or obtain testimony.
23. โ . . . Whoever is convicted of speaking false witness shall be flung from the Tarpeian Rock.
24 a. โ If a weapon has sped accidentally from one’s hand, rather than if one has aimed and hurled it, to atone for the deed a ram is substituted as a peace offering to prevent blood revenge.
24 b. โ If anyone pastures on or cuts stealthily by night . . . another’s crops . . . the penalty shall be capital punishment, and, after having been hung up, death as a sacrifice to Ceres, a punishment more severe than in homicide.
25. โ . . . for administering a drug.
26. โ . . . No person shall hold nocturnal meetings in the City.
27. โ These guild members shall have the power . . . to make for themselves any rule that they may wish provided that they impair no part of the public law . . .
Table IX. Public Law.
1/2. โ Laws of personal exception shall not be proposed. Laws concerning capital punishment of a citizen shall not be passed . . . except by the Greatest Assembly . . .
3. โ A judex or an arbiter legally appointed who has been convicted of receiving money for declaring a decision shall be punished capitally.
4. โ . . . the investigators of murder . . . who have charge over capital cases . . .
5. โ . . . Whoever incites a public enemy or whoever betrays a citizen to a public enemy shall be punished capitally.
6. โ For anyone whomsoever to be put to death without a trial and unconvicted . . . is forbidden.
Table X. Sacred Law.
1. โ A dead person shall not be buried or burned in the City.
2. โ . . . More than this one shall not do : one shall not smooth a funeral pyre with an ax.
3. โ . . . Expenses of a funeral shall be limited to three mourners wearing veils and one mourner wearing an inexpensive purple tunic and ten flutists. . . .
4. โ Women shall not tear their cheeks or shall not make a sorrowful outcry on account of a funeral.
5 a. โ A dead person’s bones shall not be collected that one may make a second funeral.
5 b. โ An exception is for death in battle and on foreign soil.
6 a. โ . . . Anointing by slaves is abolished and every kind of drinking bout . . . there shall be no costly sprinkling, no long garlands, no incense boxes . . .
6 b. โ . . . A myrrh-spiced drink . . . shall not be poured on a dead person.
7. โ Whoever wins a crown himself or by his property, by honor, or by valor, the crown is bestowed on him at his burial . . .
8. โ . . . Nor gold shall be added to a corpse. But if anyone buries or burns a corpse that has gold dental work it shall be without prejudice.
9. โ It is forbidden . . . to build a new pyre or a burning mound nearer than sixty feet to another’s building without the owner’s consent.
10. โ It is forbidden to acquire by prescriptive right a vestibule of a sepulcher or a burning mound.
Table XI. Supplementary Laws.
1. โ . . . There shall not be intermarriage between plebeians and patricians . . .
2. โ . . . regulations concerning intercalation . . .
3. โ . . . regulations concerning days permissible for official legal action . . .
Table XII. Supplementary Laws.
1. โ . . . There shall be introduced a seizure of pledge against a person who buys an animal for sacrifice and does not pay the price ; likewise against a person who does not make payment for that animal which anyone lets to him for this purpose, that the lessor may spend money received therefrom on a sacred banquet, that is, on a sacrifice.
2 a. โ If a slave commits a theft or does damage to property . . . .
2 b. โ From delinquency of children of the household and of slaves . . . actions for damages shall be appointed, that the father or the master may be permitted either to undergo assessment of the claim or to deliver the delinquent for punishment . . .
3. โ If one has obtained an unjustifiable grant of interim possession and if his adversary wishes . . . the magistrate shall grant three arbiters ; by their arbitration . . . the unjustifiable holder of interim possession shall settle the plaintiff’s loss of enjoyment of the thing by paying double damages.
4. โ It is forbidden to dedicate for consecrated use a thing concerning whose ownership there is a controversy ; otherwise a penalty of double the value involved shall be suffered . . .
5. โ . . . Whatever the people ordain last shall be legally valid.
Unplaced Fragments.
1. โ Nancitor (shall obtain) in the Twelve Tables is the same as nactus erit (shall have obtained) or prenderit (shall have seized).
2. โ Quando (when, since, et cetera) . . . in the Twelve Tables . . . is written with c as its last letter (quandoc).
3. โ When sub vos placo (I beg you) is said almost exclusively in prayers it means that which supplico (I beseech) signifies, as in the laws transque dato (and he shall surrender) and endoque plorato (and he shall shout).
4. โ Dolo malo (by malicious deception) : what . . . was added malo (malicious) . . . either is an archaism, because in the Twelve Tables it was written thus by the old writers, or is a constant epithet attached to dolus (deception) . . .
5. โ The Twelve Tables indicates in several laws that it is allowed to appeal from any judgment and penalty.
6. โ The ancestors wished no . . . bond for binding good faith to be firmer than a sworn oath. This the laws in the Twelve Tables indicate.
7. โ Eight kinds of penalties are in the laws : fines, shackles, flogging, retaliation in kind, ignominy, exile, death, slavery . . .
8. โ Formerly they used only bronze coins, and these were asses, double-asses, half-asses, quarter-asses ; nor any gold or silver coin was in use, just as we can understand from the Law of the Twelve Tables.
9. โ By two negative words the law, as it were, permits rather than prohibits . . .
10. โ Detestatum (having renounced under oath) means testatione denuntiatum (having renounced by attestation).
11. โ During that very time almost, that I may speak like the decemvirs, a law concerning a limitation of thirty years had been promulgated.
12 a. โ Duicensus (twice assessed, doubly assessed) in the Twelve Tables means deuteron apogegrammenos (registered a second time).
12 b. โ A person was called duicensus (twice assessed, doubly assessed) when he was assessed with another, that is, assessed with his son.
13. โ Only sunrise and sunset are mentioned in the Twelve Tables ; after several years was added also midday.
DUODECIM TABULARUM LEGES [Latin Text]
TABULA I
Si in ius vocat, ito. Ni it, antestamino. Igitur em capito.
Si calvitur pedemve struit, manum endo iacito.
Si morbus aevitasve vitium escit, iumentum dato.
Si nolet, arceram ne sternito.
Assiduo vindex assiduus esto.
Proletario iam civi quis volet vindex esto.
nex . . . forti sanati . . .
Rem ubi pacunt, orato. Ni pacunt, in comitio aut in foro ante meridiem caussam coiciunto.
Com peroranto ambo praesentes. Post meridiem praesenti litem addicito. Si ambo praesentes,
solis occasus suprema tempestas esto.
vades . . . subvades . . .
TABULA II
<Actor dicito:> ex sponsione te mihi . . . dare oportere aio. Quando tu negas, te praetor iudicem sive arbitrum postulo uti des.
. . . morbus sonticus . . . aut status dies cum hoste . . . quid horum fuit unum iudici arbitrove reove, eo dies diffissus esto.
Cui testimonium defuerit, is tertiis diebus ob portum obvagulatum ito.
TABULA III
Aeris confessi rebusque iure iudicatis XXX dies iusti sunto.
Post deinde manus iniectio esto. In ius ducito. Ni iudicatum facit aut quis endo eo in iure vindicit,
secum ducito, vincito aut nervo aut compedibus XV pondo, ne maiore aut si volet minore vincito.
Si volet suo vivito, ni suo vivit, qui eum vinctum habebit, libras faris endo dies dato. Si volet, plus dato.
Tertiis nundinis partis secanto. Si plus minusve secuerunt, se fraude esto adversus hostem aeterna auctoritas <esto>.
(Aulus Gellius, 20 I 46: Erat autem ius interea paciscendi ac nisi pacti forent habebantur in vinculis dies LX. Inter eos dies trinis nundinis continuis ad praetorem in comitium producebantur, quantaeque pecuniae iudicati essent, praedicabatur. Tertiis autem nundinis capite poenas dabant,aut trans Tiberim peregre venum ibant.)
TABULA IV
Si pater filium ter venum duit, filius a patre liber esto.
TABULA V
Uti legassit super pecunia tutelave suae rei, ita ius esto. Si intestato moritur, cui suus heres nec escit, adgnatus proximus familiam habeto. Si adgnatus nec escit, gentiles familiam habento.
(Gaius I .155: Quibus testamento…tutor datus non sit, iis lege XII [Tabularum] agnati sunt tutores.)
Si furiosus escit, adgnatum gentiliumque in eo pecuniaque eius potestas esto. . . . ast ei custos nec escit . .
Ex ea familia . . . in eam familiam.
TABULA VI
Cum nexum faciet mancipiumque, uti lingua nuncupassit, ita ius esto.
Si qui in iure manum conserunt tignum iunctum aedibus vineave sei concapit ne solvito . . .. duplione . . . quandoque sarpta, donec dempta erunt.
(Gaius, I, 111: Lege XII tabularum cautum est, ut si qua nollet usu in manum mariti convenire, ea quotannis trinoctio abesset atque eo modo cuiusque anni [usum] interrumperet.)
TABULA VII
. . . ambitus . . . sestertius pes . . .
Si iurgant . . . tres arbitri . . .
Viam muniunto: ni sam delapidassint, qua volet iumento agito.
Si aqua pluvia nocet . . .
TABULA VIII
Qui malum carmen incantassit . . .
Si membrum rup<s>it, ni cum eo pacit, talio esto.
Manu fustive si os fregit libero, CCC <assium>, si servo, CL <assium> poenam subito si iniuriam faxsit, viginti quinque poenae <asses> sunto.
. . . rup<s>it . . . sarcito.
Qui fruges excantassit . . . neve alienam segetem pellexeris . . . <capite>. . . si nox furtum faxsit, si occisit, iure caesus esto.
Luci . . . si se telo defendit, . . . endoque plorato.
Lance et licio <ito>.
Si adorat furto, quod nec manifestum erit . . ., <duplione damnum decidito>.
Patronus si clienti fraudem fecerit, sacer esto.
Qui se sierit testarier libripensve fuerit, ni testimonium fatiatur, inprobus intestabilisque esto.
Si telum manu fugit magis quam iecit, <arietem subicito>.
TABULA IX
<privilegia ne inroganto.>
<de capite civis nisi per maximum comitiatum . . . ne ferunto.>
TABULA X
Hominem mortuum in urbe ne sepelito neve urito.
. . . hoc plus ne facito: rogum ascea ne polito.
Mulieres genas ne radunto neve lessum funeris ergo habento.
Homine mortuo ne ossa legito, quo post funus faciat.
Qui coronam parit ipse pecuniave eius honoris virtutisve ergoduitur ei . . .
Neve aurum addito. At cui auro dentes iuncti escunt. Ast in cum illo sepeliet uretve, se fraude esto.
TABULA XI
<conubia plebi cum patribus>
(Cicero. De Republica, II 36-37: Qui [Xviri] cum X tabulas summa legum aequitate prudentiaque conscripsissent, in annum posterum Xviros alios subrogaverunt…qui duabus tabulis iniquarum legum additis…conubia haec illi ut ne plebei cum patribus essent, inhumanissima lege sanxerunt.)
. . . dies intercalandi . . .
. . . dies fasti . . .
TABULA XII
Si servo furtum faxit noxiamve no<x>it.
Si vindiciam falsam tulit, si velit is . . . tor arbitros tris dato, eorum arbitrio . . . fructus duplione damnum decidito.
[451-450 B.C.E]
