Twelve Tables

Ancient Rome
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According to Roman tradition, the Law of the Twelve Tables (Latin: Leges Duodecim Tabularum or Duodecim Tabulae) was the legislation that stood at the foundation of Roman law. The Tables consolidated earlier traditions into an enduring set of laws.[1][2]

The Twelve Tables are sufficiently comprehensive that their substance has been described as a 'code',[3] although modern scholars consider this characterisation exaggerated.[2] The Tables were a sequence of definitions of various private rights and procedures. They generally took for granted such things as the institutions of the family and various rituals for formal transactions. The provisions were often highly specific and diverse.[4]

Drafting and development

The Twelve Tables of Roman society were said by the Romans to have come about as a result of the long social struggle between patricians and plebeians. After the expulsion of the last king of Rome, Tarquinius Superbus, the Republic was governed by a hierarchy of magistrates. Initially, only patricians were eligible to become magistrates and this, among other plebeian complaints, was a source of discontent for plebeians. In the context of this unequal status, plebeians would take action to secure concessions for themselves using the threat of secession. They would threaten to leave the city with the consequence that it would grind to a halt, as the plebeians were Rome's labor force. Tradition held that one of the most important concessions won in this class struggle was the establishment of the Twelve Tables, establishing basic procedural rights for all Roman citizens in relation to each other.[5] The drafting of the Twelve Tables may have been fomented by a desire for self-regulation by the patricians, or for other reasons.[2]

Around 450 BC, the first decemviri (decemvirate - board of "Ten Men") were appointed to draw up the first ten tables. According to Livy, they sent an embassy to Greece to study the legislative system of Athens, known as the Solonian Constitution, but also to find out about the legislation of other Greek cities.[6][7] Some scholars dispute the veracity of any claim that the Romans imitated the Greeks in this respect[8] or suggest that they visited the Greek cities of Southern Italy, and did not travel all the way to Greece.[9] In 450 BC, the second decemviri started to work on the last two tables.

The first decemvirate completed the first ten codes in 450 BC. Here is how Livy describes their creation,

"...every citizen should quietly consider each point, then talk it over with his friends, and, finally, bring forward for public discussion any additions or subtractions which seemed desirable." (cf. Liv. III.34)

In 449 BC, the second decemvirate completed the last two codes, and after a secessio plebis to force the Senate to consider them, the Law of the Twelve Tables was formally promulgated.[10] According to Livy (AUC 3.57.10) the Twelve Tables were inscribed on bronze (Pomponius (Dig. 1 tit. 2 s2 §4) alone says on ivory), and posted publicly, so all Romans could read and know them.

Some of the provisions are procedural to ensure fairness amongst all Romans in the courts, while other established legal terms dictating the legality of capital crimes, international homicide, treason, perjury, judicial corruption, and writing slanderous poems.[11] The Romans valued keeping peace in the city and the Twelve Tables were a mechanism of establishing and continuing peace and equality.[11]

Laws of the Twelve Tables

Following are excerpts from this very important table of laws:

TABLE I Procedure: for courts and trials
TABLE II Trials continued & Theft
TABLE III Debt
TABLE IV Rights of fathers (paterfamilias) over the family
TABLE V Legal guardianship and inheritance laws
TABLE VI Acquisition and possession
TABLE VII Land rights & crimes
TABLE VIII Torts and delicts (Laws of injury)
TABLE IX Public law
TABLE X Sacred law
TABLE XI Supplement I
TABLE XII Supplement II

Table III: Debt

The laws the Twelve Tables covered were a way to publicly display rights that each citizen had in the public and private sphere.  These Twelve Tables displayed what was previously understood in Roman society as the unwritten laws.  The public display of the copper tablets allowed for a more balanced playing field between the Roman patricians who were educated and understood the laws of legal transactions, and the Roman plebeians who had little education or experience in understanding law.  By revealing the unwritten rules of society to the public, the Twelve Tables provided a means of safeguard for Plebeians allowing them the opportunity to avoid financial exploitation and added balance to the Roman economy.

Featured within the Twelve Tables are five rules about how to handle debtors and creditors. These rules show how the ancient Romans maintained peace with financial policy.  In his article Development of the Roman Law of Debt Security, Donald E. Phillipson states the Twelve Tables were, “A set of statues known as the Twelve Tables that was passed by an early assembly served as the foundation of the Roman private law.  The Twelve Tables were enacted in the mid-fifth century B.C. as the result of a conflict among social classes in ancient Rome.”  (page 1231-1232).[12] Phillipson also describes the leniency of the relationship between debtor and creditor on how it was changed and arranged in the 5th century B.C. and how Roman law surrounding it was tweaked within the Twelve Tables that initially drew out the legal boundaries surrounding debt.  Specially discussing the influence of creditors rights, Phillipson states, “In the fifth century B.C. only movables were pledged under pignus, although any res in which bonitary ownership was held was capable of being pledged. However, by the late Republic, land and buildings were increasingly pledged in pignus arrangements. This increased usage paralleled the expansion of creditors' rights with respect to the pledged property. The right of possession and seizure (jus possidendi) and the right of foreclosure and sale (jus distrahendi) were probably the most important of the developing creditors' rights. These increased creditors' rights also encouraged and contributed to the expansion of the types of res in which bonitary ownership, and thus pignus arrangements, were possible. For example, the use of pignus expanded to include usufructs, rustic servitudes, rights of way, and even pledges themselves by the second century A.D.” (page 1239).[12]

In the book, The Twelve Tables, written by an anonymous source due to its origins being collaborated through a series of translations of tablets and ancient references, P.R. Coleman-Norton arranged and translated many of the significant features of debt that the Twelve Tables enacted into law during the 5th century.  The translation of the legal features surrounding debt and derived from the known sources of the Twelve Tables are stated as such

“1. Of debt acknowledged and for matters judged in court (in iure) thirty days shall be allowed by law [for payment or for satisfaction].

2. After that [elapse of thirty days without payment] hand shall be laid on (manus iniectio) [the debtor]. He shall be brought into court (in ius).

3. Unless he (the debtor) discharge the debt or unless some one appear in court (in iure) to guarantee payment for him, he (the creditor) shall take [the debtor] with him. He shall bind [him] either with thong or with fetters, of which the weight shall be not less than fifteen pounds or shall be more, if he (the creditor) choose.

4. If he (the debtor) choose, he shall live on his own [means]. If he live not on his own [means], [the creditor,] who shall hold him in bonds, shall give [him] a pound of bread daily; if he (the creditor) shall so desire, he shall give [him] more.

5. Unless they (the debtors) make a compromise, they (the debtors) shall be held in bonds for sixty days. During those days they shall be brought to [the magistrate] into the comitium (meeting-place) on three successive market[…]”[13]

The five mandates of that the Twelve Tables encompassing debt created a new understanding within social classes in ancient Rome that insured financial exploitation would be limited within legal business transactions.

Women

The Twelve Tables have three sections that pertain to women as they concern estates and guardianship, ownership and possession, and religion, which give a basic understanding as to the legal rights of females.

One of the aspects highlighted in the Twelve Tables is a woman's legal status and standing in society. Women were considered to be a form of guardianship similar to that of minors,[14] and sections on ownership and possession give off the impression that women were considered to be akin to a piece of real estate or property due to the use of terms such as "ownership" and "possession".[14] The Twelve Tables also took religion into consideration, forbidding women from harming themself by tearing or lacerating their face and from making loud noises during the funeral - actions that were permissible for men at the time.[14] The lack of explanation of legally sanctioned male behavior at funerals implies that men were allowed to act freely and only women had to suppress and internalize their emotions. 

Influence and significance

Roman civilians examining the Twelve Tables after they were first implemented.

The Twelve Tables are often cited as the foundation for ancient Roman law. Although faced with many issues, the Twelve Tables provided a premature understanding of some key concepts such as justice, equality, and punishment.[15] While these ideas were not fully understood, the Twelve Tables play a significant role in the basis of the early American legal system. Political theorists, such as James Madison have highlighted the importance of the Twelve Tables in crafting the United States Bill of Rights.[16] In addition, the Twelve Tables include the idea of capital punishment as means of retribution in early Roman society.[15] As noted by early Roman historians, the first settlers in Rome were often prisoners, slaves, and outlaws of neighboring states. As a result, it was extremely paramount that the Twelve Tables laid out specific punishments for crimes such as thievery and murder.[15] The idea of property was also perpetuated in the Twelve Tables, they emphasizes different forms of property such as money, land, and slaves.

Although legal reform occurred soon after the implementation of the Twelve Tables, these ancient laws provided social protection and civil rights for both the patricians and plebeians. At this time, there was extreme tension between the privileged class and the common people resulting in the need for some form of social order. While the existing laws had major flaws that were in need of reform, the Twelve Tables eased the civil tension and violence between the plebeians and patricians.[17]

While currently the Twelve Tabes are not enforced in practice, their influence and significance is still evident in the modern day. For example, the Twelve Tables are tied into the notion of Jus Commune, also known as "common law." Some countries including South Africa and San Marino still base their current legal system on aspects of common law.[17] In addition, in the modern day, law school students throughout the world are still required to study the Twelve Tables as well as other facets of Roman Law in order to better understand the current legal system in place.[18] Although the original twelve laws are extremely outdated, the influence of the Twelve Tables is still present today.

Sources

The Twelve Tables are no longer extant: although they remained an important source through the Republic, they gradually became obsolete, eventually being only of historical interest.[2] The original tablets may have been destroyed when the Gauls under Brennus burned Rome in 387 BC. Cicero claimed[19] that he learned them by heart as a boy in school, but that no one did so any longer. What we have of them today are brief excerpts and quotations from these laws in other authors, often in clearly updated language. They are written in an archaic, laconic Latin (described as Saturnian verse). As such, though it cannot be determined whether the quoted fragments accurately preserve the original form, what is present gives some insight into the grammar of early Latin. Some claim that the text was written as such so plebeians could more easily memorise the laws, as literacy was not commonplace during early Rome. Roman Republican scholars wrote commentaries upon the Twelve Tables, such as L. Aelius Stilo,[20] teacher of both Varro and Cicero.[21]

Like most other early codes of law, they were largely procedural, combining strict and rigorous penalties with equally strict and rigorous procedural forms. In most of the surviving quotations from these texts, the original table that held them is not given. Scholars have guessed at where surviving fragments belong by comparing them with the few known attributions and records, many of which do not include the original lines, but paraphrases. It cannot be known with any certainty from what survives that the originals ever were organised this way, or even if they ever were organised by subject at all.[2]

Footnotes

  1. ↑ Jolowicz, H. F. Historical Introduction to the Study of Roman Law (Cambridge, 1952), 108
  2. 1 2 3 4 5 Crawford, M. H. 'Twelve Tables' in Simon Hornblower, Antony Spawforth, and Esther Eidinow (eds.) Oxford Classical Dictionary (4th ed.)
  3. ↑ Mommsen, T. The History of Rome trans. W. P. Dickson (London, 1864) 290
  4. ↑ Steinberg, S. 'The Twelve Tables and Their Origins: An Eighteenth-Century Debate' Journal of the History of Ideas Vol. 43, No. 3 (1982) 379-396, 381
  5. ↑ du Plessis, Paul (2010). Borkowski's Textbook on Roman Law (4th ed.). Oxford. pp. 5–6, 29–30. ISBN 978-0-19-957488-9.
  6. ↑ Livy, 2002, p. 23
  7. ↑ Durant, 1942, p. 23
  8. ↑ Steinberg, S. 'The Twelve Tables and Their Origins: An Eighteenth-Century Debate' Journal of the History of Ideas Vol. 43, No. 3 (1982) 379-396
  9. ↑ Grant, Michael (1978). History of Rome (1st ed.). Prentice Hall. p. 75. ISBN 0-02-345610-8.
  10. ↑ McCarty, Nick "Rome The Greatest Empire of the Ancient World", The Rosen Publishing Group, 2008
  11. 1 2 3 4 5 6 7 8 Ronald., Mellor, (2013-01-01). The historians of ancient Rome : an anthology of the major writings. Routledge. ISBN 9780415527163. OCLC 819515201.
  12. 1 2 Phillipson, D. E. (1968). Development of the Roman Law of Debt Security. Stanford Law Review,20(6), 1230. doi:10.2307/1227498
  13. ↑ Coleman-Norton, P. R. (1960). The twelve tables. Princeton: Princeton University, Dept. of Classics.
  14. 1 2 3 Hurri, Samuli (November 2005). "THE TWELVE TABLES" (PDF). NoFo. 1: 13–23.
  15. 1 2 3 Gary, Forsythe. A Critical History of Early Rome: From Prehistory to the First Punic War. 1st ed., University of California Press, 2005, www.jstor.org/stable/10.1525/j.ctt1ppxrv.
  16. ↑ Denis, Fustel De Coulanges Numa. The Ancient City a Study on the Religion, Laws, and Institutions of Greece and Rome. Baltimore: Johns Hopkins UP, 2010. Print.
  17. 1 2 "Law in Ancient Rome, The Twelve Tables - Crystalinks". www.crystalinks.com. Retrieved 2017-05-08.
  18. ↑ Baker, Keir (2016-04-11). "Studying Roman law: Juno it's more useful than you'd think". The Guardian. ISSN 0261-3077. Retrieved 2017-05-08.
  19. ↑ Cic. Leg. 2.59
  20. ↑ cf. Funaioli GRF p57
  21. ↑ Cicero, Brutus 205; Aulus Gellius, Attic Nights 16.8.2.

Works cited

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