Lex Duodecim Tabularum

Lex Duodecim Tabularum The enactment of the Twelve Tables was the outcome of plebeian agitation for an exaequatio juris between the two orders in the state. In the year B.C. 462 the tribune of plebs C. Terentilius Arsa had obtained a resolution of the plebs for the appointment of five persons, with the object of enacting laws for the definition of the consular imperium; but this the senate, the stronghold of the patricians, had refused to send on to the Comitia Centuriata (Liv. 3.9). In the next year he proposed a codification or definite statement of the whole law by a commission of ten; but this, though carried by the plebs, was equally unsuccessful in its later stages (Liv. 3.10; Dionys. A. R. 10.3). In B.C. 454, however (Dionys. A. R. 10.52, 54), the senate so far yielded as to assent to a plebiscitum, pursuant. to which three commissioners were to be sent to Athens and the Greek cities in order to make themselves acquainted with their laws. On their return, after two years' absence, it was proposed (B.C. 451) that all the ordinary magistracies should be suspended, and the whole authority of the state vested in ten patrician commissioners, including the three who had been to Greece ( decemviri legibus scribundis ) from whom there was to be no provocatio, and who were directed to codify the public and private law of Rome (Dionys. A. R. 10.54-57; Liv. 3.32, 33). The plebeians consented to stand out of the commission only under express reservation of their previously established rights and liberties (Liv. 3.32). This proposal was carried through the Comitia Centuriata and Curiata without opposition (Liv. 3.34; Dionys. A. R. 10.32). The decemviri were appointed by the comitia of the centuries, being presided over by Appius Claudius, Consul designate; but they took the administration of affairs by turn, the insignia of office being used only by him who for the time being represented the executive (Liv. 3.33). Ten Tables of laws were prepared during the year, and after being approved by the senate were confirmed by the Comitia. Centuriata and Curiata: two further tables (which Cicero, de Rep. 2.37, calls tabulae iniquarum legum ) were added in the next year, these having been prepared by decemviri among whom were (according to Dionys. A. R. 10.58) three plebeians, though Livy (4.3) does not suggest that there had been any change in the constitution of the commission. Cicero's remark may be due to the fact that the prohibition of conubium between plebs and patricians was enacted by the eleventh Table (Dirksen, Uebersicht, &c., p. 740). In their integrity, the whole Twelve Tables were first published in B.C. 449, after the downfall of the decemviri (Liv. 3.54, 57); they are mentioned by the Roman writers under a great variety of names (e. g. Leges Decemvirales, Lex Decemviralis, Leges Duodecim, Duodecim Tabularum, or lex or leges simply); and, being the only attempt at codification of the jus civile until Justinian's time, are spoken of by classical writers throughout Roman history as the fundamental element of the system: by Tacitus as finis aequi juris, by Livy as corpus omnis Romani juris and fons publici privatique juris.

Some doubt has been cast, but without reason, on the story of the embassy to the Greek states, which preceded the enactment of the Twelve Tables. Pomponius (Dig. 1, 2, 2, 3 and 4) also refers to assistance given to the decemviri by an Ephesian named Hermodorus, who was living as an exile in Italy; but the assistance consisted perhaps more in interpreting the laws brought back by the commissioners from Greece than (as Pomponius hints) in the suggestion of new legislation. At any rate, this last tradition was confirmed by the fact of a statue having been erected in the Comitium at Rome in memory of Hermodorus; but it did not exist in the time of Pliny (Plin. Nat. 34.21). The foreign source of some of the laws was acknowledged by the Romans themselves: e. g. Cicero attributes to Solon the original of the rules as to burial (de Leg. 2.25, 64). Similarly Gaius, in his Commentary on the Twelve Tables, where he is speaking of Collegia (Dig. 47, 22, 4), says that the members of Collegia may make what terms they please among themselves, if they thereby violate no publica lex; and he adds that this rule seems to be taken from the legislation of Solon, to whom also (Dig. 10, 1, 13) he refers for the origin of certain rules as to boundaries and the actio finium regundorum. But that the decemviral legislation contained any considerable element of foreign law is in the highest degree improbable. The law as previously established seems to have been handed down in the main, if not entirely, by oral tradition; and whether it be true or not that the patricians were especially cognisant of it, it is certain that the plebeians had suffered largely from having no certain or full knowledge of its intricate rules and formulae. What they desired primarily was a plain and clear statement in writing ( legibus scribundis ) of the law as it stood: it was only in the jus publicum that they wished for change, and that only so far as was required to place the two orders on a tolerable equality in respect of civil and political rights. The caprice of the magistrate who administers the law is best guarded against by those over whom it is administered having a clear knowledge of its provisions.

The laws were cut on tablets of bronze and put up in a public place (Liv. 3.57; Diod. 12.56), though Pomponius, in the passage of the Digest already referred to, says that the material of the Tablets was ivory (see Zimmern, Geschichte des röm. Privatrechts, vol. i. p. 101). It is commonly supposed that they were destroyed in the burning of the city by the Gauls some sixty years after their enactment, but the passage of Livy on which this is based (6.1) is just as conclusive against as for the supposition. The Romans of the age of Cicero had no doubt of the genuineness of the collection which then existed; and if we may believe Cyprian (Ep. 2, 4, ad Donat. de gratia Dei), the Twelve Tables, were exposed in the forum as late as the third century of our era. Cicero speaks of learning the text of them by rote ( ut carmen necessarium ) when a boy (de Leg. 2.4, 23), and up to his time the chief juristic work of the lawyer class seems to have been their interpretatio--the extension of a rule of the Twelve Tables (or of other early statutes, such as the Lex Aquilia) to cases not strictly within its letter: but shortly before the fall of the Republic, as he tells us (de Leg. 1.5, 17), the jurists had abandoned the jus civile, and taken to commenting instead on the Praetor's Edict. Of actual commentaries on the Twelve Tables we hear of one by Sextus Aelius Paetus Catus in his Tripartita, a work which existed in the time of Pomponius [JUS AELIANUM]. Others. were written by another Aelius, by Atilius (Cic. de Leg. 2.2. 3, 59; Dig. 1, 2, 2, 38), by Labeo (Gel. 1.12, 7.15, 20.1), and finally by Gaius: this was in six books, from which twenty excerpts are preserved in the Digest. The decemviral legislation, though largely modified (especially in the parts of it relating to public law) by subsequent enactments, was not formally repealed till the time of Justinian, nearly 1000 years after its first establishment. No complete copy of its text has come down to us, but about 100 fragments, partly incomplete, have bees collected from citations and references in classical and juristic literature.

It remains to give a short account of the contents of the Twelve Tables, so far as they can be gathered from the extant fragments and the notices of earlier writers.

• I. The personal freedom and civil equality of citizens was secured by the exclusion of all capital sentences except those delivered by the Comitia Centuriata (Cic. de Leg. 3.1. 9, 44; de Republ. 2.36, 61; pro Sest. 30, 65), by the recognition as provisionally free of a man whose free status was called in question, and by the prohibition of privilegia.
• II. Freedom of individual action within the domain of private law was secured by the recognition of contracts and testaments.
• III. Certain points of private law were more precisely defined which would otherwise have endangered the security of rights of property, or opened the door to harshness and oppression: especially as regards (a) usucapion and the restrictions imposed on property in the interest of neighbours; (b) the law of debt and the rights of unsatisfied creditors; (c) family law (manus, patria potestas, tutela, and conubium between patricians and plebeians); and (d) inheritance, especially on intestacy.
• IV. Capital penalties were prescribed for false witness, judicial partiality or corruption, incendiarism, nocturnal theft of crops, and libel; and the right of appeal from condemnation to any of these was given to every citizen (Cic. de Republ. 2.31).
• V. Private poenae were established for injuria, theft, and certain kinds of damnum.
• VI. The mode of summons and the procedure in actions generally were defined and regulated, especially with a view to preventing capricious exercise of his authority and jurisdiction by the magistrate; and
• VII. Certain sanitary and sumptuary rules were laid down as to the interment of dead bodies.

The most celebrated attempt to re-arrange the extant fragments of the Twelve Tables in the order in which they originally stood, or to reconstruct the Tables themselves, is that of Jacobus Gothofredus (Heidelberg, 1616): on this and similar works there is an admirable critique by Dirksen, Uebersicht der bisherigen Versuche zur Kritik und Herstellung des Textes der Zwölf-Tafel-Fragmente, 1824; and especially M. Voigt, Civil und Criminalrecht der Zwölf Tafeln. Cf. also Schöll, Leg. XII. Tab. reliquiae, Leipzig, 1866; Bruns, Fontes juris Rom. antiqui, ed. 4 (Tübingen, 1880), pp. 14-37; and Puchta, Institutionen, vol. 1. § § 54, 55.