[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 re├źnters 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).