The Project Gutenberg EBook of The Twelve Tables, by Anonymous
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Title: The Twelve Tables
Author: Anonymous
Release Date: January 24, 2005 [EBook #14783]
Language: English
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THE TWELVE TABLES
_prefaced, arranged, translated, annotated_
BY P.R. COLEMAN-NORTON
PRINCETON UNIVERSITY
DEPARTMENT OF CLASSICS
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 substituted 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 mass 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) principal
assembly (_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) Passages which present only an interpretation (or an opinion based
on interpretation) or a title 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 classification 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 _asses_[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 _asses_ or 50 _asses_]: 500
_asses_ for solemn deposit (_sacramentum_) when the subject of the
dispute [is valued at] 1,000 _asses_ or more, 50 _asses_ when
[estimated at] less [than 1,000 _asses_]. [But] if the controversy
concerns the liberty of a human being [, however valuable may be the
person], the solemn deposit (_sacramentum_) [shall be] 50 _asses_.
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
(circumstances) 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 (_manus 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]
TABLE V. INHERITANCE AND GUARDIANSHIP
1. Women shall remain under guardianship (_tutela_), even though they
shall become of full age (_perfecta aetas_)[17] ... the Vestal Virgins
are excepted [and] shall be free [from control].
2. The mancipable (conveyable or movable) possessions of a woman who
is under tutelage of [her] agnates[18] shall not be acquired
rightfully by usucapion (long usage or long possession), save if these
(possessions) by herself shall have been delivered with the sanction
of [her] guardian (_tutor_).[19]
3. According as a person shall have ordered regarding his property or
the guardianship (_tutela_) of his estate, so shall be the law (_ita
ius esto_).
4. If a person die intestate (_intestatus_) and have no self-successor
(_suus heres_), the [deceased's] nearest male agnate shall have
possession of the estate.
5. If there be no male agnate, the [deceased's] clansmen[20] shall
have possession of the estate.
6. To persons[21] for whom a guardian (_tutor_) shall not have been
appointed by will (_testamentum_), to them [their] agnates shall be
guardians.
7. If a person be insane (_furiosus_), if there be not a guardian
(_custos_) for him, rightful authority over his person and over his
property shall belong to [his] agnates and [in default of these] to
[his] clansmen. If a person be a spendthrift (_prodigus_), he shall be
prohibited from [administering his own] goods and he shall be under
the guardianship (_curatio_) of [his] agnates.
8. If a freedman (_libertus_) shall have died intestate without
self-successor, [his] patron (_patronus_) shall take the inheritance
of a Roman citizen-freedman ... from said household into said
household.
9. Items which are in the category of debts [due to or incurred by a
deceased person] shall be divided [among his consuccessors] by mere
operation of law (_ipso iure_) [in proportion] to [their] portions of
the inheritance.[22]
10. Apportionment of an estate (_actio familiae erciscundae_)
[occurs], when coheirs (_coheres_) wish to withdraw from common [and
equal] participation [in the inheritance].[23]
TABLE VI. OWNERSHIP AND POSSESSION
1. When a person shall make bond (_nexum_) and conveyance
(_mancipium_), according as he has specified with [his] tongue, so
shall be the law (_ita ius esto_).
2. Both conveyance (_mancipatio_) and surrender in court (_in iure
cessio_) are confirmed.
3. Articles which have been sold and delivered are not acquired by the
buyer otherwise than if he has paid the price to the seller or has
satisfied him in some other way, that is, by providing a guarantor
(_expromissor_) or a security (_pignus_).
4. It shall be sufficient to make good those [faults] which have been
named by [one's] tongue, [while] for those [flaws] which he (the
vendor) has denied expressly [, when asked about these,] he (the
vendor) shall undergo a penalty of double [damages].[24]
5. For a loyal person and for a person restored to allegiance there
shall be the same right (_ius_) of bond (_nexum_) and of conveyance
(_mancipium_) with the Roman people.[25]
6. Against an alien (_hostis_) title of ownership (_auctoritas_) shall
be [valid] forever.[26]
7. A prescriptive title (_usucapio_) of movable things is completed by
one year's [possession], but [a prescriptive title] of an estate and
of buildings [is completed] by two years' [possession].
8. A person [who had been a slave and] who has been declared to be a
free man [in a will on some condition], if he shall have given 10,000
[_asses_] to the heir, although he (the slave) has been alienated by
the heir, by giving the money to the purchaser shall enter into his
freedom.
9. If any woman [not married by _confarreatio_[27] or by
_co-emptio_[28]] be unwilling to be subjected in this manner [by
_usus_ (possession)] to the hand of her husband (_in manum mariti_),
she shall be absent [from his house] for three successive nights in
every year and by this means shall interrupt the _usus_ (possession)
of each year.[29]
10. If the (the parties) join [their] hands [on the disputed property
when pleading] in court (_in iure_), [the actual possessor shall
retain provisional possession; but, when it is a case of personal
freedom, the magistrate] shall grant the right of claim (_vindicia_)
[provisionally to the party] asserting [the person's] freedom.
11. [If he find that another has used his timber (_tignum_)[30] in
building a house or in supporting vines,] a person shall not dislodge
from the framework the timber fixed in buildings in vineyard; [but he
shall have the right of action] for double [damages] against him who
has been convicted of fixing [such timber].
12. Whenever [the vines] have been pruned, until fruit shall have been
gathered [therefrom, the owner shall not recover the timber].
TABLE VII. REAL PROPERTY
1. [Ownership] within [a strip of] five feet [along a boundary] shall
not be acquired by long usage (_usucapio_).[31]
2. The way round [each outer wall of a building] shall be two and
one-half feet.
3. If they (the parties) disagree, boundaries shall be marked by three
arbitrators (_arbiter_).[32]
4. [Regulations relating to] inclosures, inherited plots,
cottages.[33]
5. The width of a road [extends to] eight feet on a straight
[stretch], [but it extends to] sixteen [feet] on a bend.
6. [Neighboring] persons shall mend the roadway. If they keep it not
laid with stones, one shall drive [one's] beast vehicles [across the
land] where one shall wish.
7. If rain-water do damage [through artificial diversion from its
natural channels, the offending owner] shall be restrained by an
arbitrator (_arbiter_).
8. If a water-course directed through a public place shall do damage
to a private person, to the [same] private person shall be [the right
to bring] an action (_actio_), that damage shall be repaired for the
owner.
9. Branches of a tree may be lopped all around to a height of fifteen
feet.[34] If a tree on a neighbor's farm [be bent crooked] by the wind
[and] lean over one's farm, [one can take] legal action (_agere_) for
removal of that [tree or at least of the offending part of it].
10. [The owner of a tree] may gather its fruit which falls upon
another's farm.
TABLE VIII. TORTS OR DELICTS
1. If any person had sung or had composed a song,[35] which caused
slander[36] or insult to another person ... he should be clubbed to
death.[37]
2. A person who had sung an evil spell ...[38]
3. If a person has broken another's limb (_membrum_),[39] unless he
make agreement [for compensation] with him, there shall be retaliation
in kind (_talio_).[40]
4. If a person has broken or has bruised a bone with hand club, he
[shall] undergo a penalty of 300 [_asses_, if] to [an injured]
freeman, [or] of 150 [_asses_,] if to [an injured] slave.
5. If a person shall have done [simple] harm (_iniuria_) to another,
penalties shall be 25 _asses_.
6. [If] a person shall have caused loss ... [41]
7. If a quadruped shall be said to have caused damage (_pauperies_),
legal action (_actio_) [shall be sanctioned] either for the surrender
of the thing which made the damage[42] or for the offer of assessment
for the damage.
8. [If a person] pasture [his] cattle [on a neighbor's land, he shall
be liable to a legal action].[43]
9. He who has enchanted crops[44] ... nor should he decoy another's
corn ... [45]
10. For pasturing on or for cutting secretly by night [another's]
crops acquired by tillage [shall be] in the case of an adult hanging
and death [by sacrifice] to Ceres;[46] a person under the age of
puberty (under 15 years of age) [shall] either be scourged at the
discretion [of the magistrate] or make composition by [paying] double
[damages] for the harm [done].
11. Who shall have destroyed by burning a building or a stack of corn
set alongside a house is ordered to be bound, scourged, burned to
death, provided that knowingly and consciously he shall have committed
this; but if this be by accident [, that is] by negligence, either he
is ordered to repair the damage or, if he be too poor to be competent
for such punishment, he shall be chastised more lightly.
12. Any person who shall have felled wrongfully (_iniuria_) other
persons' trees shall pay 25 asses for every [tree].
13. If theft has been done by night, if [owner] has killed him (the
thief), he (the thief) shall be [held] killed lawfully (_iure_).
14. It is forbidden that a thief be killed by day ... Unless he (the
thief) defend himself with a weapon, even though he (the thief) shall
have come with a weapon, unless he (the thief) shall use that weapon
and shall resist, you shall not kill him. And even if he (the thief)
resist, [you] shall shout [, that some persons may hear and
assemble].[47]
15. In the case of all other thieves caught in the act [it is
ordained] that freemen be scourged and be adjudged [as bondsmen] to
the person against whom the theft has been committed, provided that
they had done this by day and had not defended themselves with a
weapon; that slaves caught in the act of theft be whipped with
scourges and be thrown from the rock;[48] that boys below the age of
puberty (under 15 years old) be flogged at [the magistrate's]
discretion and that damage done by them be repaired.
16. Thefts which have been discovered through [use of] platter and
loincloth [shall be punished just as if the culprits had been caught
in the act]. For cases of stolen goods discovered (_furtum conceptum_)
[by other means than by platter and loincloth] or introduced (_furtum
oblatum_) the penalty is triple [damages].[49]
17. If a person plead on case of theft, in which [the thief] shall not
be caught in the act, [the thief] shall compound for the loss by
[paying] double [damages].[50]
18. A stolen thing is debarred from prescription (_usucapio_).[51]
19. No person shall practise usury at a rate of more than
one-twelfth[52] ... [if he do,] a usurer shall be condemned for
quadruple [damages].
20. In a suit concerning an article deposited [with a person who has
failed to return the article] legal action (_actio_) for double
[damages is granted].
21. [If] guardians (_tutor et curator_) [be suspected of
mal-administration, there is] the right to accuse [them] on suspicion
... the legal action (_actio_) against guardians (tutor) [shall be]
for double [damages].
22. If a patron (_patronus_) shall have defrauded a client (_cliens_),
he shall be forfeited solemnly (_sacer_).[53]
23. Whoever shall have allowed himself to be called as a witness or
shall have been a scales-bearer (_libripens_),[54] if he [as a
witness] pronounce not his testimony, he shall be dishonored and
incapable of giving evidence (_intestabilis_).
24. The penalty for false testimonies [is] that any person
who has been convicted of speaking false witness [shall be]
precipitated from the Tarpeian Rock.
25. If a weapon has sped from one's hand rather than [if the wielder]
has hurled [it, ... he shall atone for the accidental deed by
providing] the substitution of a ram [as a peace-offering to prevent
blood-revenge].
26. [For administering] a noxious drug ...
27. No person shall hold nocturnal meetings in the city.
28. Members of guilds have the power to make for themselves any
binding rule which they may wish, provided that they violate nothing
in accordance with public law (_publica lex_).
TABLE IX. PUBLIC LAW
1. Laws of personal exception (_privilegium_)[55] shall not be
proposed.
2. [Laws] concerning the person (_caput_)[56] of a citizen shall not
be passed except by the greatest assembly (_maximus comitiatus_)[57]
and through those whom they (the consuls)[58] have placed upon the
registers of the citizenry.
3. A judge (_iudex_) or an arbitrator (_arbiter_) legally (_iure_)
appointed, who has been convicted of receiving money for declaring a
decision, shall be punished capitally (_capite_).
4. [Provisions pertaining to] the investigators of murder (_quaestor
parricidii_) [appointed to have charge over capital cases].
5. Whoever shall have incited a public enemy (_hostis_) or whoever
shall have delivered a citizen (_civis_) to a public enemy shall be
punished capitally (_capite_).
6. It is forbidden to put to death ... unconvicted any one whomsoever.
TABLE X. SACRED LAW
1. A dead person shall not be buried or burned in the city.[59]
2. More than this shall not be done. The funeral pyre (_rogum_) shall
not be smoothed with the axe.[60]
3. [Expenses of a funeral shall be limited to] three [mourners
wearing] veils and one [mourner wearing] small purple tunic and ten
flute-players.
4. Women shall not tear their cheeks or have a _lessus_ (sorrowful
outcry)[61] on account of the funeral.
5. The bones of a dead person shall not be collected that one may make
a funeral afterward.[62] An exception is for death in battle or on
foreign soil.[63]
6. Anointing by slaves and every kind of drinking-bout is abolished
... [there shall be] no costly sprinkling, no myrrh-spiced drink, no
long garlands, no incense-boxes.
7. Whoever wins a crown (_corona_)[64] himself or through his
chattel[65] or by his valor, [a crown] is bestowed on him [, when he
is burned or buried] ... on him (who has won it) and on his father [it
shall be laid] with impunity (_sine fraude_).
8. This also shall not be done: to make more than one funeral and to
spread more than one bier for one person.
9. Gold shall not be added [to a corpse]. But him whose teeth shall
have been fastened with gold, if a person shall bury or shall burn him
with that (gold), it shall be with impunity (_sine fraude_).
10. It is forbidden for a new pyre (_rogum_) or a burning-mound
(_bustum_) to be erected nearer than sixty feet to another person's
buildings without the owner's consent.[66]
11. It is forbidden for a vestibule of a sepulcher (_forum_) and a
burning-mound (_bustum_)[67] to be acquired by usucapion.
TABLE XI. SUPPLEMENTARY LAWS
1. Intermarriage (_conubium_) between plebeians and patricians shall
not occur.[68]
2. [Regulations] concerning intercalation.
3. [Declaration concerning] days deemed favorable for official legal
action (_dies agendi_).
TABLE XII. SUPPLEMENTARY LAWS
1. [There shall lie] a levy of distress (_pignoris capio_)[69] against
a person who has bought an animal for sacrifice and pays not the
price; likewise against a person who makes not payment for that
yoke-beast which any one has lent for this purpose, that therefrom he
may raise money to spend on a sacred banquet (sacrifice).
2. If a slave shall have committed theft or shall have done damage ...
with his master's knowledge ... the action for damages (_actio
noxalis_) is in the slave's name. Arising from delicts committed by
children and by slaves of a household ... actions for damages (_actio
noxalis_) shall be appointed, that the father or the master can be
allowed either to undergo assessment of the suit (_litis aestimatio_)
or to deliver [the delinquent] for punishment.[70]
3. If a person has taken [a thing by] a false claim,[71] if he should
wish ... the magistrate shall grant three arbitrators (_arbiter_); by
their [adverse] arbitration (_arbitrium_) ... [the defendant] shall
compound for loss caused by [paying] double [damages from enjoyment of
the article].[72]
4. It is forbidden to dedicate for consecrated use (_in sacrum_) any
thing of which there is a controversy [about its ownership]; otherwise
a penalty of double [the amount involved] shall be suffered.[73]
5. Whatsoever last the people have ordained, this shall be binding and
valid (_ius ratumque_).[74]
UNPLACED FRAGMENTS
There are extant about a dozen fragments of whose place in the Twelve
Tables we are ignorant. In nearly every instance these fragments
consist of only one word or phrase, which later Latin antiquarians
have preserved to illustrate an ancient spelling or to explain an
archaic usage or to point a definition.
The longest fragment only is worth reproduction for the present
purpose: To appeal from any judgement (_inuicium_) and sentence
(_poena_) is allowed.[75]
NOTES
[1] The code was known under two titles: _Lex Duodecim Tabularum_ (Law
of Twelve Tables) and _Duodecim Tabulae_ (Twelve Tables).
[2] _Ab Vrbe Condita_, III. 34. 6. This claim--that these statutes
were the source of all public and private law--is exaggerated. Rather
the code is chiefly an exposition of private law, derived from
customary law, which already existed, and contains some public and
religious law as well.
For another estimate see Cicero, _De Oratore_, I. 44. 195, where the
advocate asserts that "the small manual of the _Twelve Tables_ by
itself surpasses the libraries of all the philosophers both in weight
of authority and in wealth of utility."
[3] Such is the almost unanimous tradition; but one source says ivory
(_eboreas_). Since some scholars scout the use of ivory in Rome at
that time, the emendation of _eboreas_ to _roboreas_ (wooden) is
suggested.
[4] _De Legibus_, II. 23. 59: _ut carmen necessarium_.
[5] Words between [ ] complete the sense of a sentence. Words between
( ) are either definitions or translations.
[6] The _as_ originally was a bar (one foot in length) of _aes_
(copper), then a weight, then a coin weighing one pound and worth
about $.17. From time to time the _as_ was reduced in weight and was
depreciated in value, until by the provisions of the Lex Papiria in
191 B.C. the _as_ weighed one-half ounce and was valued at $.008.
[7] Some scholars suggest that this statute should be translated thus:
"When the parties agree on preliminaries, each party shall plead."
[8] The _index_ hears cases in which a fixed amount is to be adjudged.
[9] The _arbiter_ hears cases in which an indefinite sum is to be
assessed.
[10] At this time in the language _reus_ means any litigant; in later
Latin _reus_ is restricted to signify the defendant.
[11] Perhaps "on every other day" or "on three market-days" is meant.
[12] This means, we suppose, that the litigant requiring evidence must
proclaim his need by shouting certain legal phrases before the
residence of the person who is capable of supplying such evidence and
who thereby is summoned to court.
[13] Some scholars suggest that the Latin represented by the words
"and for matters in court" should be omitted and that the passage
should open "For persons judged liable for acknowledged debt", thus
restricting the period of thirty days' grace only to matters of debt.
Even if this view be correct, it disproves not the probability that
the thirty days applied to various kinds of cases.
[14] "Shall cut pieces" (_partes secanto_) is explained variously: "to
divide the debtor's functions or capabilities", "to claim shares in
the debtor's property", "to divide the price obtained for the sale of
the debtor's person", "to divide the debtor's family and goods", "to
announce to the magistrate their shares of the debtor's estate"; the
old Roman writers, however, understand by the phrase that the
creditors can cut their several shares of the debtor's body!
[15] In primitive times a father can sell his son into slavery. If the
buyer free the son, the son reënters his father's control (_patria
potestas_).
Here apparently we have an old _formula_ surviving in a sham triple
sale, whereby a descendant is liberated from the authority of an
ascendant, or after a triple transfer and a triple manumission the son
is freed from his father and stands in his own right (_sui iuris_).
[16] Otherwise (an interpretation probably, perhaps not a paraphrase):
"After ten months from [the father's] death a child born shall not be
admitted into a legal inheritance."
[17] "Full age" for females is 25 years. For keeping women of full age
under a guardian almost no reason of any worth can be urged. The
common belief, that because of the levity of their disposition
(_propter animi levitatem_) they often are deceived and therefore may
be guided by a guardian, seems more plausible than true.
According to Roman Law of this period a woman never has legal
independence: if she be not under the power (_potestas_) of her
father, she is dependent on the control (_manus_) of her husband or,
unmarried and fatherless, she is subject to the governance (_tutela_)
of her guardian.
[18] Agnates (_agnati_) are relatives by blood or through adoption on
male side only; cognates (_cognati_) are blood-relatives on either
male or female side. The family of the _ius civile_ is the agnatic
family; the family of the _ius gentium_ is the cognatic family.
[19] Beside a guardian (_tutor_) for a child of certain age (sixth
statute of this Table; cf. p. 7, n. 21) there is provided also a
guardian (_custos_, later _curator_) for a lunatic and for a prodigal
(seventh statute of this Table).
[20] Clansmen (_gentiles_) are persons all belonging to the same clan
(_gens_) as the deceased and of course include agnates, when these
exist.
[21] Boys between the ages of 7 and 15, girls between the ages of 7
and 13, women neither under paternal power (_patria potestas_) nor
under marital control (_in manu mariti_).
[22] Another version of this provision reads thus: "Debts bequeathed
by inheritance shall be divided by automatic liability (_ipso iure_)
proportionally [among the heirs], after the details shall have been
investigated."
[23] That is, the judicial division of an estate by a _iudex_ among
the disagreeing coheirs.
[24] That is, double the proportionate part of the price or of the
things transferred.
[25] This statute is set in Table I by some scholars.
[26] This probably means that a foreigner resident in Roman territory
never can obtain rights over any property simply by long possession
(_usu-capio_) thereof; but the meaning of _auctoritas_ in this clause
is disputed. At any rate _usucapio_ is peculiar to Roman citizens.
This provision sometimes is placed in Table III by scholars.
[27] This is an exclusively patrician type of wedding, wherein is made
a mutual offering of bread in the presence of a priest and ten
witnesses.
[28] This type of wedlock, used originally by plebeians, is a
fictitious sale, by which a woman is freed from either _patria
potestas_ or _tutela_. It comes perhaps from the primitive custom of
bride-purchase.
[29] This method explains how a wife can remain married to a husband
without remaining in his _manus_ (rights of possession). If the _usus_
be interrupted, the time of the _usus_ must begin afresh, because the
previous possession (_usus_) is considered as cancelled.
[30] Apparently _tignum_, as "timber" in English covers material for
construction, includes every kind of material used in buildings and in
vine-yards.
[31] This strip is reserved as a path between any two estates
belonging to different owners. Both owners can walk on the whole
space, 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 massive
wall, he must leave one foot to spare; a building, two feet; if he dig
a trench or a hole, he must leave a space 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 assigned 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 goddess of creation, occasionally (by extension) the
goddess of marriage, usually the goddess of agriculture, especially
the goddess 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 classes 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 institute 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 title 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
principal 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 _mancipatio_) 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 assembly which
comprised all citizens. To this assembly a citizen convicted in court
on a capital charge had the right of appeal (_ius provocationis_) at
least as early as the passage 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 _locassint_
(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 institution (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 anticipation 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
illustrates 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.
[72] Retention of the article is deemed to have brought the defendant
some profit; therefore he must pay double this profit.
[73] Cf. second paragraph in note [69] _supra_.
[74] That is, the most recent law repeals all previous laws which are
inconsistent with it.
[75] Cicero says that many laws in the Twelve Tables exhibit this rule
(_De Re Publica_, II. 31. 54).
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