of presumptive evidence is against them; they have hitherto found little or no support from other Romanists, and they have, in our opinion, been sufficiently refuted on philological and other grounds by Girard[1] and others.[2]
There were provisions in the Tables that were almost literal renderings from the legislation of Solon; and others bore a Sources. remarkable correspondence to laws in observance in Greece, but they may have been only indirectly borrowed.[3] By far the greater proportion of them, however, were native and original,—not that they amounted to a general formularization of the hitherto floating customary law, for, notwithstanding Livy's eulogium of them as the “fountain of the whole law, both private and public,” it seems clear that many branches of it were dealt with in the Tables only incidentally, or with reference to some point of detail. The institutions of the family, the fundamental rules of succession, the solemnities of such formal acts as mancipation, nexum, and testaments, the main features of the order of judicial procedure, and so forth,—of all of these a general knowledge was presumed, and the decemvirs thought it unnecessary to define them. What they had to do was to make the law equal for all, to remove every chance of arbitrary dealing by distinct specification of penalties and precise declaration of the circumstances under which rights should be held to have arisen or been lost, and to make such amendments as were necessary to meet the complaints of the plebeians and prevent their oppression in the name of justice. Probably very little of the customary law, therefore, was introduced into the Tables, that was already universally recognized, and not complained of as either unequal, defective or oppressive. Only one or two of the laws ascribed to the kings (assuming their greater antiquity) reappeared in them; yet the omission of the rest did not mean their repeal or imply denial of their validity, for a few of them continued still in force during the Empire, and are founded on by Justinian in his Digest. Neither apparently were any of the statutes of the Republic anterior to the Tables embodied in them, although for long afterwards many a man had to submit to prosecution under these laws and to suffer the penalties they imposed.
The original Tables are said to have been destroyed when Rome was sacked and burned by the Gauls. But they were probably Remains. at once reproduced, and transcripts of them in more or less modernized language must have been abundant if, as Cicero says was still the case in his youth, the children were required to commit them to memory as an ordinary school task. This renders all the more extraordinary the fact that the remains of them are so fragmentary and their genuineness in many cases so debateable. They were embodied, as above mentioned, in the Tripertita of Sextus Aelius Paetus in the year 197 B.C., who probably republished them in somewhat modernized language and from whose work, it is thought, all later writers took their contents. They must have formed the basis of all the writings on the jus civile down to the time of Servius Sulpicius Rufus, who first took the praetor's edicts as a text; and they were the subjects of monographs even by authors later than Sulpicius, amongst them by M. Antistius Labeo in the early years of the Empire, and by Gaius, probably in the reign of Antoninus Pius. Yet a couple of score or so are all that can be collected of their provisions in what profess to be the ipsissima verba of the Tables, though in a form in most cases more modern than what we encounter in other remains of archaic Latin of the 4th century of the city. These are contained principally in the writings of Cicero, the Noctes Atticae of Aulus Gellius, and the treatise De verborum significatione of Festus; the two latter dealing with them rather as matters of antiquarian curiosity than as rules of positive law. There are also many allusions to particular provisions in the pages of Cicero, Varro, Gellius and the elder Pliny, as well as in those of Gaius, Paul, Ulpian and other ante-Justinian jurists; but these are not to be implicitly relied on, as we have evidence that they frequently represent the (sometimes divergent) glosses of the interpreters rather than the actual provisions of the statute. Reconstruction has therefore been a work of difficulty, and the results far from satisfactory, that of the latest editor, Voigt, departing very considerably from the versions generally current during the last half-century.[4]
In form the laws contained in the Tables were of remarkable brevity, terseness and pregnancy, with something of a rhythmical General characteristics. cadence that must have greatly facilitated their retention in the memory. Rarely, if ever, were the rules they embodied permissive; they were nearly all in the imperative mood, sometimes entering into minute detail but generally running on broad lines, surmounting instead of removing difficulties. Their application might cause hardship in individual instances, as when a man was held to the letter of what he had declared in a nexum or mancipation, even though he had done so under error or influenced by fraudulent misrepresentations; the decemvirs admitted no exceptions, preferring a hard-and-fast rule to any qualifications that might cause uncertainty. The system as a whole is one of jus as distinguished from fas. In the royal laws execration (sacratio capitis, sacer esto) was a common sanction; but in the Tables it occurs only once pure and simple, and that with reference to an offence that could be committed only by a patrician,—material loss caused by a patron to his client (patronus, si clienti fraudem faxsit, sacer esto). In all other cases the idea that a crime was an offence against public order, for which the community was entitled in self-protection to inflict punishment on the criminal, is prominent. Hanging and beheading, flogging to death, burning at the stake, throwing from the Tarpeian rock,—such are secular penalties that are met with in the Tables; but often, though not invariably, the hanging and so forth is at the same time declared a tribute to some deity to whom the goods of the criminal are forfeited (consecratio bonorum). The Tables also recognize the system of self-help.
The manus injectio of the third Table—the execution done by a creditor against his debtor—was probably in essence the same procedure as under the kings, but with the addition of some regulations intended to prevent its abuse. Against a thief taken in the act the same procedure seems to have been sanctioned; it was lawful to kill him on the spot if the theft was nocturnal, or even when it was committed during the day if he used arms in resisting his apprehension. According to Cicero there was a provision in these words: “si telum manu fugit magis quam jecit, arietem subicito”; this is perhaps just a re-enactment in illustrative language of the law attributed to Numa, that for homicide by misadventure—“if the weapon have sped from the hand rather than been aimed”—a ram was to be tendered as a peace-offering to the kinsmen of him who had been slain. The original purpose must have been to stay the blood revenge, but in the Tables it can only have been intended to stay the prosecution which it was incumbent on the kinsmen of a murdered man to institute. So with talionic penalties: “si membrum rupit ni cum eo pacit, talio esto”—such, according to Gellius, were the words of one of the laws of the Tables, and they undoubtedly recognize talion, “an eye for an eye, a tooth for a tooth”; while at the same time regulating it by enabling the injured man to bring an action and sanctioning a money recompense (Wehrgeld) in lieu of it.[5]
The structure of the provisions of the Tables was not such as to enable the plain citizen to apply them to concrete cases, or to Interpretation of the Tables. know how to claim the benefit of them in the tribunals, without some sort of professional advice. Pomponius states that no sooner was the decemviral legislation published than the necessity was felt for its interpretation, and for the preparation by skilled hands of styles of actions by which its provisions might be made effectual. Both of these duties fell to the pontiffs as the only persons who, in the state of civilization of the period, were well qualified to give the assistance required; and Pomponius adds that the college annually appointed one of its members to be the adviser of private parties and of the judices in those matters. The interpretatio, commenced by the pontiffs and continued by the jurists during the Republic, which, Pomponius says, was regarded as part of the jus civile, was not confined to explanation of the words of the statute, but was in some cases their expansion, in others their
- ↑ Textes, pp. 3-4; Nouv. Rev. hist. xxvi. 381 seq.
- ↑ Erman, Z. d. Sav. Stift. (1903), xxiii. 450; Lenel, Z. d. Sav. Stift. (1905), xxvi. 498.
- ↑ The decemvirs may have obtained them either from Magna Graecia or from Etruria, as the story of a mission to Athens is improbable.
- ↑ Dirksen's Übersicht der bisherigen Versuche zur Kritik u. Herstellung d. Zwölf-Tafel-Fragmente (Leipzig, 1824), supplies the basis of almost all the later work on the Tables anterior to that of Voigt. Schoell, in his Legis XII. Tab. reliquiae (Berlin, 1866), made a valuable contribution to the literature of the subject from a philological point of view. His version has been adopted substantially by Bruns in his Fontes juris, i. 16 seq. (6th ed. by Mommsen and Gradenwitz), and Girard in his Textes (3rd ed., Paris, 1903). See also Muirhead, Historical Introduction (2nd ed., 1899), and Wordsworth, Fragments and Specimens of Early Latin (Oxford, 1874), pp. 253 seq. The last-named writer in a subsequent part of his volume (pp. 502-38) has added notes, historical, philological and exegetical, which constitute a valuable commentary on the Tables as a whole. Voigt's two volumes, under the title of Geschichte und System des Civil-und-Criminal-Rechtes wie Processes, der XII. Tafeln nebst deren Fragmenten (Leipzig, 1883), contain an exposition of the whole of the earlier jus civile, whether embodied in the Tables or not. The history of them occupies the first hundred pages or thereby of the first volume; his reconstruction of fragments and allusions—a good deal fuller than any earlier one and supported by an imposing array of authorities, which, however, often rest on arbitrary assumptions—is in the same volume, pp. 693-737.
- ↑ There is little doubt that talio was actually enforced under the decemviral code, just as it was under the Jewish and Mahommedan codes, and as we see it among semi-civilized communities (e.g. the Abyssinians) at the present day. See Code of Khammurabi, 196 seq.; Leviticus xxiv. 20; Lane, Modern Egyptians, p. 94. Many references are given by Lenel in Z. d. Sav. Stift. xxiv. 509.
