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The Law of the Twelve Tables
A brief discussion of the creation and content of the Law of the Twelve Tables, Lex Duodecim Tabularum.
During the early years of the Republic, a major cause of the political strife between the patricians and plebeians was the manner in which the law was administered by the patricians. The law itself was uncertain and was not made known to the plebeians. Judgments were given on the basis of custom, which was not written down and which was subject to manipulation by the patrician judges. The law remained within the purview of a small number of patrician scholars. This led to abuses and harsh administration by magistrates and consuls drawn only from the patrician class who naturally favored patrician interests. This was particularly so with regard to the occupation and use of public lands.
Tradition holds that in the year 462 B.C., Tribune Gaius Terentilius Arsa proposed that the consular powers ought to be defined by a committee of five men. The plebeians supported this proposal but the Senate refused to do so. Ten years later, in 452 B.C., three representatives of the Roman people purportedly visited Greece to study the code of laws propounded by Solon. When they returned to Rome, a committee of ten patricians was appointed to compile tables of the law. The group was called the Decemvirs and they produced ten tables of law which eventually were approved by the Senate and the Comitia Centuriata. Two years later, another commission was created which included plebeians. This group generated an additional two tables of the law. Together with the ten produced by the Decemvirs, the tables were known as the Lex XII Tabularum or the Twelve Tables. The Romans literally venerated both the concept and the content of the Twelve Tables, which remained the basis of the law of Rome for over a thousand years. The originals of the Twelve Tables have been lost, presumably during the sack of Rome by the Gauls in 390 B.C. Our knowledge of the content of the Twelve Tables is necessarily derived indirectly from alternate sources (such as the writings of Cicero and other legal references and from certain literary works). The Twelve Tables were not created to promulgate new law. Rather they were designed as a compendium of existing custom, which was written down so that the plebeians would finally be in a position to know what the law was so they did not need to wonder whether it was being applied fairly in any given dispute. According to L. B. Curzon, the Twelve Tables were organized as follows: Tables I, II, III: civil procedure and forms of execution Table IV: the patria potestas Tables V, VI, VII: guardianship, inheritance, and property Table VIII: crimes Table IX: public law Table X: sacred law Tables XI, XII: supplemental laws L.B. Curzon, Roman Law (1966), at 22 § 2(b). Reconstruction is difficult because of the fragmentary nature of our information sources. When Romans spoke or wrote of the Twelve Tables, they took for granted the fact that any literate person would have memorized them at a very young age. References to the Twelve Tables are more in the nature of glosses than iteration. Nevertheless, it is apparent that large segments of the law one might expect to have found set forth in the Twelve Tables is missing. For example, although sacred law is touched upon, there is no discussion of the state cults or of the functions or acts of priests. Nor is there anything concerning the preservation of private cults. It seems noteworthy that no religious ceremony, prayer or invocation of the gods was required for the transfer of property (even land) nor was an oath required to make a contract. Many matters of private law appear to have been omitted from the Twelve Tables. Alan Watson lists the following as omitted (or possibly just missing): (1) The requirements for marriage, including minimum age, necessary consents, prohibited degrees of relationship and personal status. Only one provision WAS included—the prohibition on intermarriage between a patrician and a plebeian. This is always treated as an innovation in the ancient sources, which is no doubt the reason it was inserted. (2) Dowry. This was not included, no doubt because there were no special rules specific to dowry which could be created by stipulatio or by delivery. (3) Stipulatio was the oldest Roman form of contract. Presumably the law on stipulatio was considered to be settled and well known. However, the contract of depositum, a more recent development, was the subject of a clause in the Twelve Tables. (4) Slavery, including grounds for enslavement and manumission. However, there was a clause that dealt with a slave who was freed by a will upon fulfillment of a condition. (5) The will made in the comitia calata (testamentum comitiis calatis) is not covered. The will by bronze and scales (testamentum per aes et libram) was included, presumably because it was an innovation that arose in practice without "official" authorization as an adaptation of mancipatio and therefore needed to be confirmed as valid. (6) The Twelve Tables also fail to address the ways of acquiring ownership, with the exception of usus (long use). Transference of property is, however, covered. (Property was acquired through occupatio (taking what was not already owned), fructum separatio or perceptio (the separation or gathering of fruits), thesauri inventio (the finding of treasure), accessio(the joining of things belonging to different owners) and specificatio (the making of a new thing out of things belonging to different owners).) (7) The Twelve Tables do not mention the three basic elements of theft, which the Romans treated primarily as a private wrong (the delict of furtum), namely the physical activity needed to commit theft, the necessary state of mind in the wrongdoer, and the basis of the distinction between furtum manifestum and furtum nec manifestum. We actually have proof that this subject was not contained in the Twelve Tables because the distinction between "manifest" and "non-manifest" was still being hotly debated a thousand years later—in the time of Justinian—with no mention of the Twelve Tables. See A. Watson, The State, Law and Religion: Pagan Rome (1992), at 14-17. |
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