CHAPTER XI.

THE CODE OF THE TWELVE TABLES.

§ 1. Few remains of the XII Tables. § 2. Difference of character in the first X and last II Tables. § 3. Political ordinances of the X Tables. § 4. Laws for protection of Person and Property. § 5. Iniquitous provisions of the II Tables. § 6. Advantages resulting from the Code to the Plebeians.

§ 1. THE Twelve Tables were considered as the foundation of all law, and Cicero always mentions them with the utmost reverence. But only fragments remain, and those who have bestowed the greatest labour in examining these can give but an imperfect account of their original form and contents.

§ 2. It is probable that the purpose of Terentilius and his followers, in urging the framing of a Code of laws, was to establish an equality of rights for both Orders,-Patricians and Plebeians, Lords and Commons. Now it will be seen in the following short statement that some laws had a contrary effect, and tended to widen the breach. These unequal laws were believed by the ancients to belong to the Two last Tables, which were enacted by the second Decemvirs, and which were unduly favourable to the extreme patrician party, while the Ten Tables of the first Decemvirs were just and equal for all."

§ 3. We will first review those POLITICAL ordinances of the Ten Tables, by which the first Decemvirs sought to establish equality between the Orders.

(1.) It has been already stated that they divided the supreme authority. All the old offices were, for the time at least, abrogated; and the state was to be governed by a Council of ten, consisting of five Patricians and five Plebeians. This reasonable rule fell to the ground when the Decemvirate

"Livy (iii. 34) calls them "fons omnis publici privatique juris."

↳ Cicero de Republicâ, ii, 37. So Appius boasts at the close of the first Decemvirate "se. . omnia jura summis infimisque aequasse." Liv. iii, 34.

was abolished; and hence the contentions between the Orders were renewed (as we shall see) with great virulence.

с

(2.) The Patricians and their Clients were now probably first included in the Plebeian Tribes; and when we speak of Clients, we must now comprehend also the Freedmen (libertini), who were a large and increasing class. Henceforth, therefore, the three old Patrician Tribes now, or before this, became obsolete; and henceforth a Patrician was known not as a Ramnian, a Titian, or a Lucerian, but as a Burgess of the Pollian, Papirian, or some other local Tribe. The term Populus Romanus, which (as before remarked) had been applicable in some measure to the united body of Patricians and Plebeians since the time when both Orders were comprehended in the Comitia of the Centuries, was now more properly and strictly so used, though the time of their full and perfect union was yet to come.

(3.) In consequence of this ordinance a great alteration followed both in the Comitia Centuriata and in the Comitia Tributa; but as these alterations were rather future consequences of the last-mentioned ordinance, than a distinct ordinance of the Decemvirs, it will be more convenient to notice them hereafter.e

§ 4. We will now notice a few provisions of those laws, which were intended to PROTECT THE PERSON AND PROPERTY of private citizens.

(1.) It was enacted that any person claimed as a Slave should be left at freedom till such time as the alleged master proved his claim good. This was the law violated by Appius in the case of Virginia.

(2.) The power of a Father over his Children was made less absolute. By the old law the son was as much at the mercy of

They were called libertini absolutely, but liberti in reference to their patron. Thus Tiro was Cicero's libertus, but when spoken of simply he was a libertinus.

d All slaves who became free remained attached to their former master as his freedmen, and he was now called not their master (dominus), but their patron (patronus), the very same term which was used in respect to his clients. It is indeed probable that the increase in the number of Slaves and Freedmen was among the causes of the gradual decay of the relation of Patrons and Clients.

See Chapt. xxxv. § 11 sqq.

his father (in potestate patris) as a slave. Henceforth by three sales, real or fictitious, the son might acquire independence or become sui juris.

(3.) The law of Debt was left in its former state of severity.' But the condition of borrowing money was made easier; for it was made illegal to exact higher interest than 10 per cent. For that this is the meaning of foenus unciarium has been clearly proved by Niebuhr. Uncia (derived from unus) is one of the twelve units into which the as was divided, each being one-twelfth part of the whole. Now of the capital is 8 per cent. ; but as the old Roman year of ten months appears to have been retained in use for purposes of business, we must add two months' interest at the same rate; and this amounts to 10 per cent. for the year of twelve months.

(4.) No Private Law or privilegium—that is a law to impose any penalty or disability on a single citizen, similar in character to our bills of attainder-was to be made.g

(5.) There was to be an Appeal to the People from the sentence of every magistrate; and no citizen was to be tried for his life except before the Comitia of the Centuries.

It is remarkable how constantly laws of this kind were renewed, from the time of the first law of appeal passed by Valerius Poplicola in the first year of the Republic. The right of Appeal was one of the demands made by Duillius on behalf of the Plebeians at the fall of the Decemvirs; and one of the first acts of the new Consuls was to provide that there should be such appeal. All these laws were finally absorbed in those of Porcius Læca, passed more than two centuries later. These were the famous Porcian laws "de capite et tergo civium," by which it was enacted that no Roman citizen should be put to death or scourged without trial before the Centuries.h

f See above, Chapt. vii. § 7.

Cicero pro Sestio 30, pro Domo 17.

h Three Porcian Laws of Appeal are mentioned by Cicero, de Rep. ii. 31. The author of the principal Law was no doubt P. Porcius Læca, Tribune in the year 197 B.C.; for we have coins with P. LAECA on the obverse, and on the reverse a person appealing with the Legend PROVOCO. The fullest notice of them occurs in Cicero's fifth Oration against Verres (de Suppliciis), 53–67. See the fine passage in c. 66: "Facinus est vincire civem Romanum, scelus verberare, prope parricidium necare,-quid dicam in crucem tollere?" In

These Laws may be compared to our Act of Habeas Corpus, which provides that no man shall be imprisoned by the sovereign or his officers without having his person produced in open court and allowed a fair trial. And as in turbulent times this Act is sometimes suspended by the proclamation of military law, so at Rome the Laws of Appeal might be suspended. This was done in the earlier times by the appointment of a Dictator, and afterwards by a resolution of the Senate, "that the Consuls should see that the Commonwealth suffered no injury." By such a resolution the Consuls were invested with dictatorial power; they possessed the imperium within the walls of the city, and might put any dangerous citizen to death. Thus it was that the Senate proceeded against the Gracchi, and against the Catilinarian conspirators.

(6.) With regard to the laws of inheritance and contracts, they are of too intricate and technical a nature to be satisfactorily treated in a work like this. The decemviral laws on this head generally made the conveyance of property easier and more certain, favoured the power of leaving property by will, and endeavoured to secure the fulfilment of contracts. These laws are well worth careful study, for they were the foundation of the great Code of laws known in later times by the name of the Roman or Civil Law, which still prevails in Italy, Germany, and other parts of Europe.

§ 5. On the whole, therefore, it is clear that the legislation of the first Decemviral Council was honest and fair, and really tended to introduce equal rights both in law and government for the whole nation.

But there are some laws which had a directly contrary effect, and these (as has been said) are, by the ancients, attributed to the Two last Tables of the Code.

(1.) The old law or custom prohibiting all Intermarriage (connubium) between the two Orders was now formally confirmed, and thus a positive bar was put to what is conjectured to have been the primary aim of Terentilius and the Tribunes,

virtue of the principle established by these Laws, St. Paul "appealed to Cæsar," for the Emperor then represented the Roman People. The phrases varied:-Provoco ad Populum, Appello Cæsarem.

iSee Chapt. xxxv. § 19.

namely, to procure an equalisation of the two Orders. No such consummation could be looked for, when the Code of national law proclaimed them to be of different races, unfit to mingle one with the other.

It is impossible to conceive any enactment that could more tend to dissever the two Orders, and produce greater bitterness of feeling between them. At the time of passing it the law was thought to be injurious chiefly to the Plebeians; and to their feelings and their pride it was injurious. But the class to whom it was really most injurious was the Patrician; for if they had been compelled to intermarry among themselves alone they would soon have dwindled into a very small number of families, as has been proved by experience in many cases.k It is probable that the wiser and more moderate of the Patricians knew this, and therefore it was that this law was repealed shortly after, without much opposition, by the Tribune Canuleius.

(2.) To this may be added the celebrated law by which any one who wrote lampoons or libels on his neighbours was liable to be deprived of civil rights (diminutio capitis). By this law the poet Nævius was punished, when he assailed the great family of the Metelli.m

(3.) We may also mention that no attempt was made to divide the Public Land more equitably. Hence we shall find that Agrarian Laws remained a ready instrument in the hands of all enemies of the Patricians and wealthy Plebeians, whether true patriots or brawling demagogues.

§ 6. But notwithstanding these unequal laws, there can be no doubt that by the Code of the Twelve Tables the Plebeians. gained a considerable step towards the adjustment of their differences with the Patrician Lords. It was another century and more before these differences were completely settled.

Niebuhr quotes the case of the baronial families of Bremen, who by such restricted marriages were in fifty years diminished by one-third. By the Act of Union with Scotland it was forbidden to create any more Scottish peerages. At the Union 154 Peers were on the Roll. In 1812 71 of this list had disappeared. A few of these were forfeited, and some dormant; but far the greater number were extinct,—and this, though there was no law prohibiting marriage with commoners.

Cic. de Rep. iv. 10, Horat. 2 Serm. i. 82.

m

Chapt. xxxvii. § 14.