were elected in it, and its resolutions (plebiscite) became directly binding on plebeians. The XII. Tables, twenty years later, were the fruit of the agitation of the plebeians for a revision and written embodiment of the law. In 449 plebiscite were—subject presumably to auctoritas patrum—declared by the lex Valeria-Horatia binding on the whole populus, while about the same time, or perhaps a little earlier, the patrician-plebeian comitia of the tribes was instituted.[1] By the lex Canuleia of 445 B.C. intermarriage between patricians and plebeians was sanctioned. Repeated protests by the plebeians against the monopolization of the public domain land by members of the higher order resulted in the definite admission of their right to participate in its occupation by one of the Licinian laws of 367 B.C. The long course of cruel oppression of insolvents (mainly plebeians) by their patrician creditors was put an end to by the Poetilian law about 326 B.C., depriving nexal contract of its privileges and generally prohibiting the use of chains and fetters on persons incarcerated for purely civil debt. By the Hortensian law of about 287 B.C. plebiscita were declared binding (presumably without auctoritas patrum) on the whole body of citizens. And from 421 B.C., when one of their number first reached the regular state magistracy as quaestor, down to 252 B.C., when one was elected pontifex maximus, the plebeians gradually vindicated their right as citizens to share in all the honours of the state. There is also evidence that plebeians were early in the Republic admitted to the senate and also to the comitia curiata.
The legislative bodies during the present period were thus three in number: the comitia of the centuries, the concilium Legislative bodies. plebis and the comitia tributa. As to the comitia of live the curies, it seems to have hardly concerned itself with general legislation, but met merely to confer imperium on the higher magistrates and to sanction testaments and adrogations of the gentiles. The legislation of the centuries dealt for the most part (though the XII. Tables were enacted by it) with questions affecting public and constitutional rather than private interests. It could be convened only by a magistrate having military imperium, i.e. at first only the consuls, for the reason that it was theoretically a military assembly met for civil purposes (exercitus civilis). It is called in the XII. Tables comitiatus maximus. Its procedure was cumbrous and ill-adapted for legislation. As to the relation of the concilium plebis to the comitia tributa there is much controversy. The old opinion which identified them is now generally abandoned. According to Mommsen[2] they differed in the following points: (1) The comitia was an assembly of the whole people voting in tribes instead of centuries, while the concilium was an assembly of the plebs alone; (2) the comitia was always convoked and presided over by a patrician magistrate (often the praetor), while the concilium had to be convoked and presided over by a plebeian official (usually a tribune); (3) in the comitia auspices had to be taken beforehand, but not in the concilium; (4) an enactment of the comitia was a lex binding on all the popular, while an enactment of the concilium was a plebiscitum binding only on the plebs. It is, however, not possible to take Mommsen's view that plebiscita were not binding on the whole populus prior to the lex Hortensia, without disregarding distinct statements of Livy as to the lex Valeria-Horatia and the lex Publilia.[3] But whatever the relation of these two legislative assemblies to each other may have been originally, it is certain that the Hortensian law equalized them so far as their effects were concerned, and, looking to the small number of patricians compared with the plebs, it would probably be a matter of indifference in which assembly the vote was taken. The greater part of the legislation dealing with the private law in the later Republic consisted of plebiscita.
ii. The XII. Tables.
Causes of their Enactment.—The change from monarchy to republic brought of itself no benefit to the plebs, but rather the reverse. One of their chief complaints was against the administration of justice. They complained that they were kept in ignorance of the laws, and that in particular the consuls used their magisterial punitive powers (coercitio) unfairly and with undue severity when a plebeian was the object of them. The state of matters gradually became so intolerable that in the year 462 B.C., according to the ancient tradition, a proposal for a statute was made by C. Terentilius Arsa, one of the tribunes, by which a commission should be appointed to draw up a code of laws in writing. He carried a rogation in the concilium plebis to this effect. The senate at first strenuously resisted, but after a few years was induced to give way, and its assent to the proposal was obtained.
Tradition records that the first practical step towards its realization was the despatch of a mission to Athens, to study Compilation of the XII. Tables. the laws of Solon and collect any materials that might be of service in preparing the projected code. On the return of the commissioners in 452 B.C. all magistracies were suspended, and a body of ten patricians, called decemviri legibus scribundis, was appointed with consular powers, under the presidency of Appius Claudius, for the express purpose of putting the laws into shape. Before the end of the ensuing year (451) the bulk of the code was ready and was at once passed into law by the comitia of the centuries and published on ten tables (whether of brass or wood is doubtful), which were set up in the Forum. Next year, owing to additions being found necessary, the decemvirate was renewed, with, however, a change of membership (some plebeians being chosen), and in the course of a few months it had completed the supplemental matter. On the downfall of the decemvirate, these new laws, after being duly accepted by the comitia, were published on two other tables, thus bringing the number up to twelve. The code then received the official name of Lex XII. Tabularum.
The foregoing account of the enactment of the Tables is an attempt to summarize what is stated by Livy and other Roman Authenticity. writers on the subject. Though inconsistent and sometimes even contradictory about details, these writers are on the main facts in concordance. Until a few years ago, the fact of the publication of such a code about the date above given had been accepted by modern historians, even the most iconoclastic, without question; unlike the leges regiae, the XII. Tables had always been regarded as authentic. But in his History of Rome, published in 1898, Professor Pais of Turin[4] emitted the view that the decemviral code was really a private compilation made about the year 304 B.C. by Cn. Flavius, the scribe of Appius Claudius the censor, and probably at the latter's instigation; or, in other words, that it was just the so-called Jus Flavianum which all writers had hitherto regarded as a work dealing with the styles of legis actiones and the calendar of court days. In Pais's view the annalists, in accordance with a habit of theirs, duplicated the same event by counterfeiting an earlier Appius Claudius, &c., in order to magnify the antiquity and authority of the laws collected by Flavius, while the whole account of the decemviral legislation was invented by them. More recently Professor Lambert of Lyons has attempted by similar arguments to prove that the XII. Tables were a private compilation of customs already in observance, and of sacerdotal and other rules already in circulation, made about 197 B.C. by the jurist Aelius Paetus, and were in fact identical with the Tripertita or Jus Aelianum, which had always heretofore been supposed to contain merely a recension of the Tables with an interpretation and commentary.[5] This is not the place to discuss these theories. Though of course incapable of positive disproof, the weight
- ↑ There is diversity of opinion about this. Mommsen thinks the comitia tributa was earlier than the XII. Tables, and that the lex Valeria-Horatia applied to it. See next note.
- ↑ Mommsen, Röm. Forschungen, i. 177 seq.; Röm. Staatsrecht, iii. 322 seq.
- ↑ Livy, iii. 55, 3; viii. 12, 14.
- ↑ Pais, Storia di Roma (Turin), i. 566 seq.
- ↑ Nouvelle Revue historique (1902), xxvi. 149 seq.; Revue générale du droit, nos. 5 et 6; Mélanges, Appleton (1903), pp. 126 seq.
