The Twelve Tables

The Twelve Tables

Introduction

Duodecim Tabularum. Tradition tells us that the code was composed by a commission, first of ten and then of twelve men, in 451-450 B.C., was ratifed by the Centuriate Assembly in 449 B.C., was engraved on twelve tablets (whence the title), which were attached to the Rostra before the Curia in the Forum of Rome.

Table I. Proceedings Preliminary to Trial

1. If the plaintiff summons the defendant to court the defendant shall go. If the defendant does not go the plaintiff shall call a witness thereto. Only then the plaintiff shall seize the defendant.

2. If the defendant attempts evasion or takes flight the plaintiff shall lay hand on him.

3. If sickness or age is an impediment he who summons the defendant to court shall grant him a vehicle. If he a does not wish he shall not spread a carriage with cushions.

4. For a freeholder’ a freeholder shall be surety; for a proletary anyone who wishes shall be surety.

5. There shall be the same right of bond and of conveyance with the Roman people for a steadfast person and for a person restored to allegiance.

6. When the parties agree on the matter the magistrate shall announce it.

7. If they agree not on terms the parties shall state their case before the assembly in the meeting place or before the magistrate in the market place before noon. Both parties being present shall plead the case throughout together.

8. If one of the parties does not appear the magistrate shall adjudge the case, after noon, in favor of the one present.

9. If both parties are present sunset shall be the time limit of the proceedings.

10. Â… sureties Â… subsureties Â… with platter and loincloth …

Table II. Trial

1a. The penal sum in an action by solemn deposit shall be either 500 asses or 50 asses … It shall be argued by solemn deposit with 500 asses, when the property is valued at 1,000 asses or more, but with 50 asses, when the property is valued at less than 1,000 asses. But if the controversy is about the freedom of a person, although the person may be very valuable, yet the case shall be argued by a solemn deposit of 50 asses. …

1b. An action by demand for a judex … concerning that which is claimed in accordance with a stipulation … concerning division of an inheritance among joint heirs.

2. … a serious sickness … or a day appointed for the hearing of a case with an alien … If any of these circumstances is an impediment for the judex or for the arbiter or for either litigant, on that account the day of trial shall be postponed.

3. Whoever needs evidence shall go every third day to shout before the doorway.

Table III. Execution of Judgment

1. Thirty days shall be allowed by law for payment of confessed debt and for settlement of matters adjudged in court.

2. After this time the creditor shall have the right of laying hand on the debtor. The creditor shall hale the debtor into court.

3. Unless the debtor discharges the debt adjudged or unless someone offers surety for him in court the creditor shall take the debtor with him. He shall bind him either with a thong or with fetters of not less than fifteen pounds in weight, or if he wishes he shall bind him with fetters of more than this weight.

4. If the debtor wishes he shall live on his own means.” If he does not live on his own means the creditor who holds him in bonds shall give him a pound of grits daily. If he wishes he shall give him more.

5. … Meanwhile they shall have the right to compromise, and unless they make a compromise the debtors shall be held in bonds for sixty days. During these days they shall be brought to the praetor” into the meeting place on three successive market days, and the amount for which they have been judged liable shall be declared publicly. Moreover, on the third market day they shall suffer capital punishment or shall be delivered for sale abroad across the Tiber River.

6. On the third market day the creditors shall cut shares. If they have cut more or less than their shares it shall be without prejudice.

Table IV. Paternal Power

1. A notably deformed child shall be killed immediately.

2a. To a father …shall be given over a son the power of life and death.

2b. If a father thrice surrenders a son for sale the son shall be free from the father.

3. To repudiate his wife her husband shall order her… to have her own property for herself, shall take the keys, shall expel her.

4. A child born within ten months of the father’s death shall enter into the inheritance …

Table V. Inheritance and Guardianship

1. …Women, even though they are of full age, because of their levity of mind shall be under guardianship … except vestal virgins, who Â… shall be free from guardianship …

2. The conveyable possessions of a woman who is under guardianship of male agnates shall not be acquired by prescriptive right unless they are transferred by herself with the authorization of her guardian …

3. According as a person has made bequest regarding his personal property or the guardianship of his estate so shall be the law.

4. If anyone who has no direct heir dies nearest male agnate shall have the estate.

5. If there is not a male agnate the male clansmen shall have the estate.

6. Persons for whom by will … a guardian is not given, for them … their male agnates shall be guardians. If a person is insane authority over him and his personal property shall belong to his male agnates and in default of these to his male clansmen.

7b. … but if there is not a guardian for him …

7c. … Administration of his own goods shall be forbidden to a spendthrift. … A spendthrift, who is forbidden from administering his own goods, shall be … under guardianship of his male agnates.

8. If a Roman citizen freedman dies intestate without a direct heir, to his patron shall fall the inheritance …said household … into said household.

9. Those items that are in the category of accounts due to the deceased …shall be divided among the heirs by ordinary operation of law in proportion to their shares of the inheritance. … Debts of the estate of a deceased shall be divided, according to law, among the heirs, proportionately to the share of the inheritance that each acquires.

10. …Action for division of an estate shall be available for joint heirs wishing to withdraw from common and equal participation …

Table VI. Ownership and Possession

1. When a person makes bond and conveyance, according as he specified with his tongue so shall be the law.

2. It shall be sufficient to make good those faults that have been named by his tongue, while for those flaws that he has denied expressly, when questioned about them. vendor shall undergo a penalty of double damages …

3. Warranty of prescriptive right in land shall be two years to acquire ownership. … Of all other things, prescriptive right shall be for one year to acquire ownership.

4. Against an alien a warranty of ownership or prescriptive right shall be valid forever.

5. … If any woman is unwilling to be subjected in this manner to her husband’s marital control she shall absent herself for three successive nights in every year and by this means shall interrupt his prescriptive right of each year.

6a. If the parties join their hands on the disputed property when pleading in court …

6b. Both conveyance and surrender in court Â… shall be confirmed.

7. … Interim possession shall be granted in favor of liberty.

8. One shall not take from framework timber fixed in buildings or in vineyard … One shall be permitted neither to remove nor to claim stolen timber fixed in buildings or in vineyards, … but against the person who is convicted of having fixed such timber there an action for double damages shall be given.

9. … Whenever the vines are pruned, until the timbers removed …

Table VII. Real Property

1. … Clearance shall be two and one-half feet …

2. … in an action for regulating boundaries …

3a. … inclosure… inherited plot…

3b. … cottages …

4. Ownership by prescriptive right …shall not be within five feet.

5a. If they disagree …

5b. … Three arbiters shall regulate boundaries …

6. The width of a road …. shall be eight feet on a straight stretch, on a bend …. sixteen feet.

7. They shall build and repair the road: unless they keep it free from stones one shall drive one’s beast or marriage where one wishes.

8a. If rain water damages …

8b. If a watercourse conducted through a public place does damage to a private person the said person shall have the right to bring an action … that security against damage may be given to the owner.

9a. . . . Branches of a tree shall be pruned all around to a height of fifteen feet.

9b. If a tree from a neighbor’s farm has been felled by the wind over one’s farm, … one rightfully can take legal action for that tree to be removed.

10. … It shall be lawful to gather fruit falling upon another’s farm.

11. Articles sold … and delivered shall not be acquired by the purchaser, unless he pays the price to the seller or in some other way satisfies the seller, as, for example, by giving a surety or a pledge …

12. A slave is ordered in a will to be a free man under this condition: “if he has given 10,000 asses to the heir”; although the slave has been alienated by the heir, yet the slave by giving the said money to the buyer shall enter into his freedom..

Table VIII. Torts or Delicts

1a. Whoever enchants by singing an evil incantation …

1b. … If anyone sings or composes an incantation that can cause dishonor or disgrace to another … he shall suffer a capital penalty.

2. If anyone has broken another’s limb there shall be retaliation in kind unless he compounds for compensation with him.

3. … If a person breaks a bone of a freeman with hand or by club, he shall undergo a penalty of 300 asses; or of 150 asses, if of a slave.

4. If one commits an outrage against another the penalty shall be twenty-five asses.

5. … One has broken … One shall make amends.

6. If a quadruped is said to have caused damage an action shall lie therefor … either for surrendering that which did the damage to the aggrieved person … or for offering an assessment of the damage.

7. If fruit from your tree falls onto my farm and if I feed my flock off it by letting the flock onto it. .. . no action can lie against me either on the statute concerning pasturage of a flock, because it is not being pastured on your land, or on the statute concerning damage caused by an animal …

8a. Whoever enchants away crops …

8b. … Nor shall one lure away another’s grain …

9. If anyone pastures on or cuts by night another’s crops obtained by cultivation the penalty for an adult shall be capital punishment and, after having been hung up, death as a sacrifice to Ceres … A person below the age of puberty at the praetor’s decision shall be scourged and shall be judged as a. person either to be surrendered to the plaintiff for damage done or to pay double damages.

10. Whoever destroys by burning a building or a stack of grain placed beside a house …, shall be bound, scourged, burned to death, provided that knowingly and consciously he has committed this crime; but if this deed is by accident, that is, by negligence, either he shall repair the damage or if he is unable he shall be corporally punished more lightly.

11. Whoever fells unjustly another’s trees shall pay twenty-five asses for each tree.

12. If a thief commits a theft by night, if the owner kills the thief, the thief shall be killed lawfully.

13. By daylight … if a thief defends himself with a weapon … and the owner shall shout.

14. In the case of all other … thieves caught in the act freemen shall be scourged and shall be adjudged as bondsmen to the person against whom the theft has been committed provided that they have done this by daylight and have not defended themselves with a weapon; slaves caught in the act of theft …, shall be whipped with scourges and shall be thrown from the rock; but children below the age of puberty shall be scourged at the praetor’s decision and the damage done by them shall be repaired.

15a. The penalty for detected and planted theft shall be triple damages.

15b. … by platter and by loincloth …

16. If a person prosecutes for theft which is not of the type wherein the thief is caught in the act … the thief shall settle the loss by paying double damages.

17. Title to a stolen article … shall not be acquired by prescriptive right.

18a. … No person shall practice usury at a rate of more than one twelfths.

18b. … A thief shall be condemned for double damages and a usurer for quadruple damages.

19. From a suit about an article deposited …, an action for double damages shall be given.

20a. If guardians are suspect in their administration there shall be the right to accuse them as such …

20b. If … guardians steal a ward’s property … there shall be an action … against a guardian for double damages; each guardian shall be held for the entire sum.

21. If a patron defrauds a client he shall be accursed.

22. Unless he speaks his testimony whoever allows him self to be called as a witness or is a scales-bearer shall be dishonored and incompetent to give or obtain testimony.

23. … Whoever is convicted of speaking false witness shall be flung from the Tarpeian Rock.

24a. If a weapon has sped accidentally from one’s hand, rather than if one has aimed and hurled it, to atone for the deed a ram is substituted as a peace offering to prevent blood revenge.

24b. If anyone pastures on or cuts stealthily by night … another’s crops … the penalty shall be capital punishment, and, after having been hung up, death as a sacrifice to Ceres, a punishment more severe than in homicide.

25. … for administering a drug.

26. … No person shall hold nocturnal meetings in the city.

27. These guild members shall have the power … to make for themselves any rule that they may wish provided that they impair no part of the public law.

Table IX. Public Law

1-2. Laws of personal exception shall not be proposed. Laws concerning capital punishment of a citizen shall not be passed … except by the Greatest Assembly …

3. A judex or an arbiter legally appointed who has been convicted of receiving money for declaring a decision shall be punished capitally.

4. … the investigators of murder … who have charge

5. Whoever incites a public enemy or whoever betrays a citizen to a public enemy shall be punished capitally.

6. For anyone whomsoever to be put to death without a trial and unconvicted … is forbidden.

Table X. Sacred Law

1. A dead person shall not be buried or burned in the city.

2. … More than this one shall not do: one shall not smooth a funeral pyre with an ax.

3. … Expenses of a funeral shall be limited to three mourners wearing veils and one mourner wearing an inexpensive purple tunic and ten flutists . …

4. Women shall not tear their cheeks or shall not make a sorrowful outcry on account of a funeral.

5a. A dead person’s bones shall not be collected that one may make a second funeral.

5b. An exception is for death in battle and on foreign soil.

6a. … Anointing by slaves is abolished and every kind of drinking bout … there shall be no costly sprinkling, no long garlands, no incense boxes …

6b. … A myrrh-spiced drink … shall not be poured on a dead person.

7. Whoever wins a crown himself or by his property, by honor, or by valor, the crown is bestowed on him at his burial …

8. … Nor gold shall be added to a corpse. But if any one buries or burns a corpse that has gold dental work it shall be without prejudice.

9. It is forbidden … to build a new pyre or a burning mound nearer than sixty feet to another’s building without the owner’s consent.

10. It is forbidden to acquire by prescriptive right a vestibule of a sepulcher or a burning mound.

Table XI. Supplementary Laws

1. … There shall not be intermarriage between plebeians and patricians …

2. … regulations concerning intercalation …

3. … regulations concerning days permissible for official legal action.

Table XII. Supplementary Laws

1. … There shall be introduced a seizure of pledge against a person who buys an animal for sacrifice and does not pay the price; likewise against a person who does not make payment for that animal which anyone lets to him for this purpose, that the lessor may spend money received therefrom on a sacred banquet, that is, on a sacrifice.

2a. If a slave commits a theft or does damage to property …

2b. From delinquency of children of the household and of slaves … actions for damages shall be appointed, that the father or the master may be permitted either to undergo assessment of the claim or to deliver the delinquent for punishment …

3. If one has obtained an unjustifiable grant of interim possession and if his adversary wishes … the magistrate shall grant three arbiters; by their arbitration … the unjustifiable holder of interim possession shall settle the plaintiff’s loss of enjoyment of the thing by paying double damages.

4. It is forbidden to dedicate for consecrated use a thing concerning whose ownership there is a controversy; otherwise a penalty of double the value involved shall be suffered …

5. Whatever the people ordain last shall be legally valid.

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

LEX DUO′DECIM TABULA′RUM. In the year B.C. 462 the Tribune C. Terentilius Arsa proposed a rogation that five men should be appointed for the purpose of preparing a set of laws to limit the Imperium of the consuls (Liv. III.9). The Patricians opposed the measure, but it was brought forward by the tribunes in the following year with some modifications: the new rogation proposed that ten men should be appointed (legum latores) from the plebs and the patricii, who were to make laws for the advantage of both classes, and for the “equalizing of liberty,” a phrase the import of which can only be understood by reference to the disputes between the two classes (Liv. II.10; Dionys. X.3). According to Dionysius (X.52, 54) in the year B.C. 454 the Senate assented to a Plebiscitum, pursuant to which commissioners were to be sent to Athens and the Greek cities generally, in order to make themselves acquired with their laws. Three commissioners were appointed for the purpose. On the return of the commissioners, B.C. 452, it was agreed that persons should be appointed to draw up the code of laws (decemviri Legibus scribundis), but they were to be chosen only from the Patricians, with a provision that the rights of the Plebeians should be respected by the decemviri in drawing up the laws (Liv. III.32, &c.). In the following year (B.C. 451) the Decemviri were appointed in the comitia centuriata, and during the time of their office no other magistrates were chosen. The body consisted of ten Patricians, including the three commissioners who had been sent abroad: Appius Claudius, Consul designatus, was at the head of the body. The Ten took the administration of affairs in turn, and the Insignia of office were only used by him who for the time being directed the administration (Liv. III.33). Ten Tables of Laws were prepared during the year, and after being approved by the Senate were confirmed by the Comitia Centuriata. As it was considered that some further Laws were wanted, Decemviri were again elected B.C. 450, consisting of Appius Claudius and his friends; but the second body of Decemviri comprised three plebeians, according to Dionysius (X.58), but Livy (IV.3) speaks only of Patricians. Two more Tables were added by these Decemviri, which Cicero (de Repub. II.37) calls “Duae tabulae iniquarum legum.” The provision which allowed no connubium between the Patres and the Plebs is referred to the Eleventh Table (Dirksen, Uebersicht, &c., p740). The whole Twelve Tables were first published in the consul­ship of L. Valerius and M. Horatius after the downfall of the Decemviri, B.C. 449 (Liv. III.54, 57). This the first attempt to make a code remained also the only attempt for near one thousand years, until the legislation of Justinian. The Twelve Tables are mentioned by the Roman writers under a great variety of names: Leges Decemvirales, Lex Decemviralis, Leges XII, Lex XII tabularum or Duodecim, and sometimes they are referred to under the names of Leges and Lex simply, as being pre-eminently The Law.

The Laws were cut on bronze tablets and put up in a public place (Liv. III.57; Diod. XII.26. Pomponius (Dig. 1 tit. 2 s2 §4) states that the first Ten Tables were on ivory (tabulae eboreae): a note of Zimmern (Gesch. des Röm. Privatrechts, vol. I p101) contains references to various authorities which treat of this disputed matter. After the burning of the city by the Gauls (Liv. VI.1), an order was made to collect the old foedera and leges; for, as it has been well remarked, Livy’s words, which are supposed to imply that the Twelve Tables were lost, and restored or reconstructed, may just as well mean that they were not lost. Indeed, the juster interpretation of the passage is, that they were looked for and were found. However this may be, neither the Romans of the age of Cicero nor at any time after had any doubt as to the genuineness of the collection which then existed.

The legislation of the Twelve Tables has been a fruitful matter of speculation and inquiry to modern historians and jurists, who have often handled the subject in the most uncritical manner and with utter disregard to the evidence. As to the mission to the Greek cities, the fact rests on as much and as good evidence as most other facts of the same age, and there is nothing in it improbable, though we do not know what the commissioners brought back with them. It is further said that  p689 Hermodorus an Ephesian exile aided the Decemviri in drawing up the Twelve Tables, though his assistance would probably be confined to the interpretation of Greek laws, as it has been suggested (Strabo, p642, Casaub.; Pompon. de Orig. Juris, Dig. 1 tit. 2 s2 § 4). This tradition was confirmed by the fact of a statue having been erected in memory of Hermodorus: but it did not exist in the time of Pliny (Plin. H. N. XXXIV.5).

The Twelve Tables contained matters relating both to the Jus Publicum and the Jus Privatum (fons publici privatique juris, Liv. III.34). The Jus Publicum underwent great changes in the course of years, but the Jus Privatum of the Twelve Tables continued to be the fundamental law of the Roman State. Cicero speaks of learning the laws of the Twelve Tables (ut carmen necessarium) when a boy (de Leg. II.4, 23); but he adds that this practice had fallen into disuse when he wrote, the Edict having then become of more importance. But this does not mean that the fundamental principles of the Twelve Tables were ever formally repealed, but that the Jus Honorarium grew up by the side of them and mitigated their rigour or supplied their defects. There is indeed an instance in which positive legislation interfered with them, by the abolition of the Legis actiones; but the Twelve Tables themselves were never repealed. They became the foundation of the Jus Civile; and they continued to exist together with the unwritten Law. The Law which grew up in the course of time existed in harmony with the Twelve Tables, and was a development of their fundamental principles. It is a remarkable circumstance in the history of Roman Law and a proof of the practical skill of the Romans, that long before Jurisprudence was a science, the doctrine of Successio per Universitatem was so completely and accurately stated in the Law of the Twelve Tables, that the Jurists of the best period could find nothing to improve (Cod. 3 tit. 36 s6; 10 tit. 2 s25 § 9, 13; 4 tit. 16 s7; 2 tit. 3 s26; Savigny’s System, &c. I. p383). The Roman writers speak in high terms of the precision of the enactments contained in the Twelve Tables, and of the propriety of the language in which they were expressed (Cic. de Re. IV.8; Diodor. XII.26). That many of their provisions should have become obscure in the course of time, owing to the change which language undergoes, is nothing surprising; nor can we wonder if the strictness of the old law should often have seemed unnecessarily harsh in a later age (Gell. XVI.10). So far as we can form a judgment by the few fragments which remain, the enactments were expressed with great brevity and archaic simplicity.

Sextus Aelius Paetus Catus in his Tripartita commented on the Twelve Tables, and the work existed in the time of Pomponius [Jus Aelianum.] Antistius Labeo also wrote a commentary on the Tables, which is mentioned several times by Gellius (I.12, VI.15,º XX.1). Gaius also wrote a Comment on the Tables in six books (ad legem XII tabularum), twenty fragments of which are contained in the Digest, and collected by Hommelius in his Palingenesia (I.117). There were also other commentaries or explanations of the Laws of the Twelve Tables (Cic. de Leg. II.23, 25).

The notion which has sometimes been entertained that the Twelve Tables contained a body of rules of law entirely new, is not supported by any evidence, and is inconsistent with all that we know of them and of Roman institutions. It is more reasonable to suppose that they fixed in a written form a large body of customary law, which would be a benefit to the Plebeians, inasmuch as the Patricians were the expounders of the law; and it would be to the Patricians a better security for their privileges. One of the two last tables contained a provision which allowed no Connubium between Patricians and Plebeians; but it is uncertain whether this was a new rule of law, or a confirmation of an old rule. The latter seems the more probable supposition; but in either case it is clear that it was not one of the objects of this legislation to put the two classes on the same footing. Modern writers often speak inaccurately of the Decemviral legislation, and of the Decemviri as enacting Laws, as if the Decemviri had exercised sovereign power; but they did not even affect to legislate absolutely, for the Ten Tables were confirmed by the Comitia Centuriata, or the sovereign people, or, as Niebuhr expresses it, “when the Decemviri had satisfied every objection they deemed reasonable, and their work was approved by the Senate, they brought it before the Centuries, whose assent was ratified by the Curies, under the presidency of the colleges of priests and the sanction of happy auspices.” (Vol. II p313.) The two new Tables were confirmed in the same way, as we may safely conclude from the circumstances of the case (Liv. II.37, 57). It makes no difference that the sovereign people did not vote on the several laws included in the Tables; such a mode of legislation would have been impracticable, and, as Niebuhr observes, was not conformable to the usage of ancient Commonwealths. How far the Decemviri really were able, by intrigue or otherwise, to carry such particular measures as they wished to insert in the Tables, is a different question: but in form their so‑called legislation was confirmed, as a whole, as a whole, by the sovereign, that is, the Roman people, and consequently the Decemviri are improperly called Legislators; they might be called code-makers.

It is consistent with the assumption that the Twelve Tables had mainly for their object the embodying of the customary law in writing, to admit that some provisions were also introduced from the laws of other states. Indeed, where the Roman law was imperfect, the readiest mode of supplying the defects would be by adopting the rules of law that had been approved by experience among other people, and were capable of being easily adapted to the Roman system. Gaius, in his Commentary on the Twelve Tables, where he is speaking of Collegia (Dig. 47 tit. 22 s4), says, that the members of Collegia may make what terms they please among themselves, if they thereby violate no Publica Lex; and he adds, this Lex seems to be taken from one of Solon’s, which he quotes. And in another passage, when he is speaking of the Actio finium regundorum (Dig. 10 tit. 1 s13), he refers to a law of Solon as the source of certain rules as to boundaries (see also Cicero, de Leg. II.25). It is a possible case that the Romans had no written law before the enactment of the Twelve Tables, except a few Leges, and if this was so, the prudence of applying to those states which had bodies of written law, if it were only as samples and patterns  p690 of the form of written law, is obvious. However, what was actually received of foreign law could not be more than a few rules of an arbitrary nature, which in no way depend on the peculiar system of law of any country. The Jus Privatum was hardly and indeed could hardly be affected by any rules of foreign law; and as to resemblance between Roman Law and the Law of any Greek states, that is no ground for a conclusion that the Roman rules are derived from the Greek.

The fragments of the Twelve Tables have often been collected, but the most complete essay on their history, and on the critical labours of scholars and jurists, is by Dirksen, Uebersicht der bisherigen Versuche zur Kritik und Herstellung des Textes der Zwölf-Tafel-Fragmente, Leipzig, 1824. Zimmern’s Geschichte, &c. contains references to all the authorities on this subject; and Puchta’s Institutionen, &c. I. § 54, 55, 73, 78, some valuable remarks on them.