The Twelve Tables Part 3

3. [Declaration concerning] days deemed favorable for official legal action (_dies agendi_).

TABLE XII. SUPPLEMENTARY LAWS

1. [There shall lie] a levy of distress (_pignoris capio_)[69] against a person who has bought an animal for sacrifice and pays not the price; likewise against a person who makes not payment for that yoke-beast which any one has lent for this purpose, that therefrom he may raise money to spend on a sacred banquet (sacrifice).

2. If a slave shall have committed theft or shall have done damage ...

with his master's knowledge ... the action for damages (_actio noxalis_) is in the slave's name. Arising from delicts committed by children and by slaves of a household ... actions for damages (_actio noxalis_) shall be appointed, that the father or the master can be allowed either to undergo a.s.sessment of the suit (_litis aestimatio_) or to deliver [the delinquent] for punishment.[70]

3. If a person has taken [a thing by] a false claim,[71] if he should wish ... the magistrate shall grant three arbitrators (_arbiter_); by their [adverse] arbitration (_arbitrium_) ... [the defendant] shall compound for loss caused by [paying] double [damages from enjoyment of the article].[72]

4. It is forbidden to dedicate for consecrated use (_in sacrum_) any thing of which there is a controversy [about its owners.h.i.+p]; otherwise a penalty of double [the amount involved] shall be suffered.[73]

5. Whatsoever last the people have ordained, this shall be binding and valid (_ius ratumque_).[74]

UNPLACED FRAGMENTS

There are extant about a dozen fragments of whose place in the Twelve Tables we are ignorant. In nearly every instance these fragments consist of only one word or phrase, which later Latin antiquarians have preserved to ill.u.s.trate an ancient spelling or to explain an archaic usage or to point a definition.

The longest fragment only is worth reproduction for the present purpose: To appeal from any judgement (_inuicium_) and sentence (_poena_) is allowed.[75]

NOTES

[1] The code was known under two t.i.tles: _Lex Duodecim Tabularum_ (Law of Twelve Tables) and _Duodecim Tabulae_ (Twelve Tables).

[2] _Ab Vrbe Condita_, III. 34. 6. This claim--that these statutes were the source of all public and private law--is exaggerated. Rather the code is chiefly an exposition of private law, derived from customary law, which already existed, and contains some public and religious law as well.

For another estimate see Cicero, _De Oratore_, I. 44. 195, where the advocate a.s.serts that "the small manual of the _Twelve Tables_ by itself surpa.s.ses the libraries of all the philosophers both in weight of authority and in wealth of utility."

[3] Such is the almost unanimous tradition; but one source says ivory (_eboreas_). Since some scholars scout the use of ivory in Rome at that time, the emendation of _eboreas_ to _roboreas_ (wooden) is suggested.

[4] _De Legibus_, II. 23. 59: _ut carmen necessarium_.

[5] Words between [ ] complete the sense of a sentence. Words between ( ) are either definitions or translations.

[6] The _as_ originally was a bar (one foot in length) of _aes_ (copper), then a weight, then a coin weighing one pound and worth about $.17. From time to time the _as_ was reduced in weight and was depreciated in value, until by the provisions of the Lex Papiria in 191 B.C. the _as_ weighed one-half ounce and was valued at $.008.

[7] Some scholars suggest that this statute should be translated thus: "When the parties agree on preliminaries, each party shall plead."

[8] The _index_ hears cases in which a fixed amount is to be adjudged.

[9] The _arbiter_ hears cases in which an indefinite sum is to be a.s.sessed.

[10] At this time in the language _reus_ means any litigant; in later Latin _reus_ is restricted to signify the defendant.

[11] Perhaps "on every other day" or "on three market-days" is meant.

[12] This means, we suppose, that the litigant requiring evidence must proclaim his need by shouting certain legal phrases before the residence of the person who is capable of supplying such evidence and who thereby is summoned to court.

[13] Some scholars suggest that the Latin represented by the words "and for matters in court" should be omitted and that the pa.s.sage should open "For persons judged liable for acknowledged debt", thus restricting the period of thirty days' grace only to matters of debt.

Even if this view be correct, it disproves not the probability that the thirty days applied to various kinds of cases.

[14] "Shall cut pieces" (_partes secanto_) is explained variously: "to divide the debtor's functions or capabilities", "to claim shares in the debtor's property", "to divide the price obtained for the sale of the debtor's person", "to divide the debtor's family and goods", "to announce to the magistrate their shares of the debtor's estate"; the old Roman writers, however, understand by the phrase that the creditors can cut their several shares of the debtor's body!

[15] In primitive times a father can sell his son into slavery. If the buyer free the son, the son reenters his father's control (_patria potestas_).

Here apparently we have an old _formula_ surviving in a sham triple sale, whereby a descendant is liberated from the authority of an ascendant, or after a triple transfer and a triple manumission the son is freed from his father and stands in his own right (_sui iuris_).

[16] Otherwise (an interpretation probably, perhaps not a paraphrase): "After ten months from [the father's] death a child born shall not be admitted into a legal inheritance."

[17] "Full age" for females is 25 years. For keeping women of full age under a guardian almost no reason of any worth can be urged. The common belief, that because of the levity of their disposition (_propter animi levitatem_) they often are deceived and therefore may be guided by a guardian, seems more plausible than true.

According to Roman Law of this period a woman never has legal independence: if she be not under the power (_potestas_) of her father, she is dependent on the control (_ma.n.u.s_) of her husband or, unmarried and fatherless, she is subject to the governance (_tutela_) of her guardian.

[18] Agnates (_agnati_) are relatives by blood or through adoption on male side only; cognates (_cognati_) are blood-relatives on either male or female side. The family of the _ius civile_ is the agnatic family; the family of the _ius gentium_ is the cognatic family.

[19] Beside a guardian (_tutor_) for a child of certain age (sixth statute of this Table; cf. p. 7, n. 21) there is provided also a guardian (_custos_, later _curator_) for a lunatic and for a prodigal (seventh statute of this Table).

[20] Clansmen (_gentiles_) are persons all belonging to the same clan (_gens_) as the deceased and of course include agnates, when these exist.

[21] Boys between the ages of 7 and 15, girls between the ages of 7 and 13, women neither under paternal power (_patria potestas_) nor under marital control (_in manu mariti_).

[22] Another version of this provision reads thus: "Debts bequeathed by inheritance shall be divided by automatic liability (_ipso iure_) proportionally [among the heirs], after the details shall have been investigated."

[23] That is, the judicial division of an estate by a _iudex_ among the disagreeing coheirs.

[24] That is, double the proportionate part of the price or of the things transferred.

[25] This statute is set in Table I by some scholars.

[26] This probably means that a foreigner resident in Roman territory never can obtain rights over any property simply by long possession (_usu-capio_) thereof; but the meaning of _auctoritas_ in this clause is disputed. At any rate _usucapio_ is peculiar to Roman citizens.

This provision sometimes is placed in Table III by scholars.

[27] This is an exclusively patrician type of wedding, wherein is made a mutual offering of bread in the presence of a priest and ten witnesses.

[28] This type of wedlock, used originally by plebeians, is a fict.i.tious sale, by which a woman is freed from either _patria potestas_ or _tutela_. It comes perhaps from the primitive custom of bride-purchase.

[29] This method explains how a wife can remain married to a husband without remaining in his _ma.n.u.s_ (rights of possession). If the _usus_ be interrupted, the time of the _usus_ must begin afresh, because the previous possession (_usus_) is considered as cancelled.

[30] Apparently _tignum_, as "timber" in English covers material for construction, includes every kind of material used in buildings and in vine-yards.