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+*** START OF THE PROJECT GUTENBERG EBOOK 14783 ***
+
+THE TWELVE TABLES
+
+
+
+_prefaced, arranged, translated, annotated_
+
+BY P.R. COLEMAN-NORTON
+
+PRINCETON UNIVERSITY
+
+DEPARTMENT OF CLASSICS
+
+
+
+
+INTRODUCTION
+
+
+The legal history of Rome begins properly with the Twelve Tables. It
+is strictly the first and the only Roman code,[1] collecting the
+earliest known laws of the Roman people and forming the foundation of
+the whole fabric of Roman Law. Its importance lies in the fact that by
+its promulgation was substituted for an unwritten usage, of which the
+knowledge had been confined to some citizens of the community, a
+public and written body of laws, which were easily accessible to and
+strictly binding on all citizens of Rome.
+
+Till the close of the republican period (509 B.C.-27 B.C.) the Twelve
+Tables were regarded as a great legal charter. The historian Livy (59
+B.C.-A.D. 17) records: "Even in the present immense mass of
+legislation, where laws are piled on laws, the Twelve Tables still
+form the fount of all public and private jurisprudence."[2]
+
+This celebrated code, after its compilation by a commission of ten men
+(_decemviri_), who composed in 451 B.C. ten sections and two sections
+in 450 B.C., and after its ratification by the (then) principal
+assembly (_comitia centuriata_) of the State in 449 B.C., was engraved
+on twelve bronze[3] tablets (whence the name Twelve Tables), which
+were attached to the Rostra before the Curia in the Forum of Rome.
+Though this important witness of the national progress probably was
+destroyed during the Gallic occupation of Rome in 387 B.C., yet copies
+must have been extant, since Cicero (106 B.C.-43 B.C.) says that in
+his boyhood schoolboys memorized these laws "as a required
+formula."[4] However, now no part of the Twelve Tables either in its
+original form or in its copies exists.
+
+The surviving fragments of the Twelve Tables come from the writings of
+late Latin writers and fall into these four types:
+
+(1) Fragments which seem to contain the original words (or nearly so)
+of a law, "modernized" in spelling and to some extent in formation;
+
+(2) Fragments which are fused with the context of the quoter, but
+which otherwise exhibit little distortion;
+
+(3) Fragments which not only are fused with the sentences of the citer
+but also are much distorted, although these preserve in paraphrase the
+purport of the provisions of a law;
+
+(4) Passages which present only an interpretation (or an opinion based
+on interpretation) or a title or a convenient designation of a law.
+
+Only in very few cases do we know or can we conjecture the number of
+the tablet whereon any law appeared. Consequently of the arrangement
+very little is ascertainable and the attribution of some items to
+certain tablets is debatable. The probable order of the fragments,
+which total over 115, has been inferred from various statements and
+from other indications of ancient authors.
+
+The amount of detail apparently varies either with the importance of
+the matter or with the degree of general or particular knowledge of
+the subject supposed by the commissioners to be held commonly by the
+citizens. The style is characterized by such simplicity and by such
+brevity that the meaning in some instances borders upon obscurity,--at
+least so far as modern interpretation is concerned.
+
+The value of the Twelve Tables consists not in any approach to
+symmetrical classification or even to terse clarity of expression, but
+in the publication of the method of procedure to be adopted,
+especially in civil cases, in the knowledge furnished to every Roman
+of high or low degree as to what were both his legal rights and his
+legal duties, in the political victory won by the plebeians, who
+compelled the codification and the promulgation of what had been
+largely customary law interpreted and administered by the patricians
+primarily in their own interests.
+
+
+
+
+THE TWELVE TABLES[5]
+
+
+TABLE I. PROCEEDINGS PRELIMINARY TO TRIAL
+
+1. If he (the plaintiff) summon [the defendant] to court (_in ius_),
+he (the defendant) shall go. If he (the defendant) go not, he (the
+plaintiff) shall call a witness thereto. Then only he (the plaintiff)
+shall take [the defendant] by force.
+
+2. If he (the defendant) attempt evasion or take to flight, he (the
+plaintiff) shall lay hand [on the defendant].
+
+3. If disease or [old] age shall be an impediment, he who shall summon
+[the defendant] to court (_in ius_) shall grant [him] a conveyance; if
+he (the plaintiff) shall not wish, he (the plaintiff) shall not spread
+[with cushions] a covered carriage.
+
+4. For a freeholder (taxpayer whose fortune is valued at not less than
+1,500 _asses_[6]) a freeholder shall be surety (_vindex_) [for his
+appearance at trial]. For a proletary (non-taxpayer whose fortune is
+rated at less than a freeholder's) any one who shall be willing shall
+be surety (_vindex_).
+
+5. When they (the parties) come to terms, [an official] shall announce
+[it].[7]
+
+6. If they (the parties) agree not on terms, they shall state [their]
+case in the _comitium_ (meeting-place) or, in the _forum_
+(market-place) ere noon. Both (parties) shall appear in person and
+shall argue the matter.
+
+7. [If one of the parties shall not have appeared,] after noon [the
+judge] shall adjudge the case (_lis_) in favor of him present.
+
+8. If both (parties) be present, sunset shall be the time-limit [of
+the proceedings].
+
+9. [Both parties shall post] sureties (_vades_) and subsureties
+(_subvades_) [for their appearance].
+
+
+
+
+TABLE II. TRIAL
+
+1. The legal action of solemn deposit (_sacramenti actio_) [demands
+that each litigant shall wager either 500 _asses_ or 50 _asses_]: 500
+_asses_ for solemn deposit (_sacramentum_) when the subject of the
+dispute [is valued at] 1,000 _asses_ or more, 50 _asses_ when
+[estimated at] less [than 1,000 _asses_]. [But] if the controversy
+concerns the liberty of a human being [, however valuable may be the
+person], the solemn deposit (_sacramentum_) [shall be] 50 _asses_.
+
+2. A dangerous disease or a day appointed [for the hearing of a case]
+with an alien [, when the latter is a party] ... If any of these
+(circumstances) be an impediment for judge (_index_)[8] or arbitrator
+(_arbiter_)[9] or party (_reus_),[10] on this account the day of trial
+shall be deferred.
+
+3. Whoever shall have need of evidence, he shall go on every third
+day[11] to cry[12] before the doorway [of the witness's house].
+
+
+
+
+TABLE III. DEBT
+
+1. Of debt acknowledged and for matters judged in court (_in iure_)
+thirty days shall be allowed by law [for payment or for
+satisfaction].[13]
+
+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-days and the amount for which they have been
+judged liable shall be declared publicly. Moreover on the third
+market-day they (the debtors) shall suffer capital punishment (_capite
+poenae_) or shall be delivered for sale beyond the Tiber [River].
+
+6. On the third market-day they (the creditors) shall cut pieces.[14]
+If they shall have cut more or less [than their shares], it shall be
+with impunity (_s[in]e fraude_).
+
+
+
+
+TABLE IV. PATERNAL POWER
+
+1. A dreadfully deformed child shall be killed quickly.
+
+2. If a father thrice surrender a son for sale, the son shall be free
+from the father.[15]
+
+3. [To repudiate his wife her husband] shall order her to mind her own
+affairs, shall take [her] keys [, shall expel her].
+
+4. Into a legal inheritance he who has been in the womb (_in utero_)
+is admitted [, if he shall have been born].[16]
+
+
+
+
+TABLE V. INHERITANCE AND GUARDIANSHIP
+
+1. Women shall remain under guardianship (_tutela_), even though they
+shall become of full age (_perfecta aetas_)[17] ... the Vestal Virgins
+are excepted [and] shall be free [from control].
+
+2. The mancipable (conveyable or movable) possessions of a woman who
+is under tutelage of [her] agnates[18] shall not be acquired
+rightfully by usucapion (long usage or long possession), save if these
+(possessions) by herself shall have been delivered with the sanction
+of [her] guardian (_tutor_).[19]
+
+3. According as a person shall have ordered regarding his property or
+the guardianship (_tutela_) of his estate, so shall be the law (_ita
+ius esto_).
+
+4. If a person die intestate (_intestatus_) and have no self-successor
+(_suus heres_), the [deceased's] nearest male agnate shall have
+possession of the estate.
+
+5. If there be no male agnate, the [deceased's] clansmen[20] shall
+have possession of the estate.
+
+6. To persons[21] for whom a guardian (_tutor_) shall not have been
+appointed by will (_testamentum_), to them [their] agnates shall be
+guardians.
+
+7. If a person be insane (_furiosus_), if there be not a guardian
+(_custos_) for him, rightful authority over his person and over his
+property shall belong to [his] agnates and [in default of these] to
+[his] clansmen. If a person be a spendthrift (_prodigus_), he shall be
+prohibited from [administering his own] goods and he shall be under
+the guardianship (_curatio_) of [his] agnates.
+
+8. If a freedman (_libertus_) shall have died intestate without
+self-successor, [his] patron (_patronus_) shall take the inheritance
+of a Roman citizen-freedman ... from said household into said
+household.
+
+9. Items which are in the category of debts [due to or incurred by a
+deceased person] shall be divided [among his consuccessors] by mere
+operation of law (_ipso iure_) [in proportion] to [their] portions of
+the inheritance.[22]
+
+10. Apportionment of an estate (_actio familiae erciscundae_)
+[occurs], when coheirs (_coheres_) wish to withdraw from common [and
+equal] participation [in the inheritance].[23]
+
+
+
+
+TABLE VI. OWNERSHIP AND POSSESSION
+
+1. When a person shall make bond (_nexum_) and conveyance
+(_mancipium_), according as he has specified with [his] tongue, so
+shall be the law (_ita ius esto_).
+
+2. Both conveyance (_mancipatio_) and surrender in court (_in iure
+cessio_) are confirmed.
+
+3. Articles which have been sold and delivered are not acquired by the
+buyer otherwise than if he has paid the price to the seller or has
+satisfied him in some other way, that is, by providing a guarantor
+(_expromissor_) or a security (_pignus_).
+
+4. It shall be sufficient to make good those [faults] which have been
+named by [one's] tongue, [while] for those [flaws] which he (the
+vendor) has denied expressly [, when asked about these,] he (the
+vendor) shall undergo a penalty of double [damages].[24]
+
+5. For a loyal person and for a person restored to allegiance there
+shall be the same right (_ius_) of bond (_nexum_) and of conveyance
+(_mancipium_) with the Roman people.[25]
+
+6. Against an alien (_hostis_) title of ownership (_auctoritas_) shall
+be [valid] forever.[26]
+
+7. A prescriptive title (_usucapio_) of movable things is completed by
+one year's [possession], but [a prescriptive title] of an estate and
+of buildings [is completed] by two years' [possession].
+
+8. A person [who had been a slave and] who has been declared to be a
+free man [in a will on some condition], if he shall have given 10,000
+[_asses_] to the heir, although he (the slave) has been alienated by
+the heir, by giving the money to the purchaser shall enter into his
+freedom.
+
+9. If any woman [not married by _confarreatio_[27] or by
+_co-emptio_[28]] be unwilling to be subjected in this manner [by
+_usus_ (possession)] to the hand of her husband (_in manum mariti_),
+she shall be absent [from his house] for three successive nights in
+every year and by this means shall interrupt the _usus_ (possession)
+of each year.[29]
+
+10. If the (the parties) join [their] hands [on the disputed property
+when pleading] in court (_in iure_), [the actual possessor shall
+retain provisional possession; but, when it is a case of personal
+freedom, the magistrate] shall grant the right of claim (_vindicia_)
+[provisionally to the party] asserting [the person's] freedom.
+
+11. [If he find that another has used his timber (_tignum_)[30] in
+building a house or in supporting vines,] a person shall not dislodge
+from the framework the timber fixed in buildings in vineyard; [but he
+shall have the right of action] for double [damages] against him who
+has been convicted of fixing [such timber].
+
+12. Whenever [the vines] have been pruned, until fruit shall have been
+gathered [therefrom, the owner shall not recover the timber].
+
+
+
+
+TABLE VII. REAL PROPERTY
+
+1. [Ownership] within [a strip of] five feet [along a boundary] shall
+not be acquired by long usage (_usucapio_).[31]
+
+2. The way round [each outer wall of a building] shall be two and
+one-half feet.
+
+3. If they (the parties) disagree, boundaries shall be marked by three
+arbitrators (_arbiter_).[32]
+
+4. [Regulations relating to] inclosures, inherited plots,
+cottages.[33]
+
+5. The width of a road [extends to] eight feet on a straight
+[stretch], [but it extends to] sixteen [feet] on a bend.
+
+6. [Neighboring] persons shall mend the roadway. If they keep it not
+laid with stones, one shall drive [one's] beast vehicles [across the
+land] where one shall wish.
+
+7. If rain-water do damage [through artificial diversion from its
+natural channels, the offending owner] shall be restrained by an
+arbitrator (_arbiter_).
+
+8. If a water-course directed through a public place shall do damage
+to a private person, to the [same] private person shall be [the right
+to bring] an action (_actio_), that damage shall be repaired for the
+owner.
+
+9. Branches of a tree may be lopped all around to a height of fifteen
+feet.[34] If a tree on a neighbor's farm [be bent crooked] by the wind
+[and] lean over one's farm, [one can take] legal action (_agere_) for
+removal of that [tree or at least of the offending part of it].
+
+10. [The owner of a tree] may gather its fruit which falls upon
+another's farm.
+
+
+
+
+TABLE VIII. TORTS OR DELICTS
+
+1. If any person had sung or had composed a song,[35] which caused
+slander[36] or insult to another person ... he should be clubbed to
+death.[37]
+
+2. A person who had sung an evil spell ...[38]
+
+3. If a person has broken another's limb (_membrum_),[39] unless he
+make agreement [for compensation] with him, there shall be retaliation
+in kind (_talio_).[40]
+
+4. If a person has broken or has bruised a bone with hand club, he
+[shall] undergo a penalty of 300 [_asses_, if] to [an injured]
+freeman, [or] of 150 [_asses_,] if to [an injured] slave.
+
+5. If a person shall have done [simple] harm (_iniuria_) to another,
+penalties shall be 25 _asses_.
+
+6. [If] a person shall have caused loss ... [41]
+
+7. If a quadruped shall be said to have caused damage (_pauperies_),
+legal action (_actio_) [shall be sanctioned] either for the surrender
+of the thing which made the damage[42] or for the offer of assessment
+for the damage.
+
+8. [If a person] pasture [his] cattle [on a neighbor's land, he shall
+be liable to a legal action].[43]
+
+9. He who has enchanted crops[44] ... nor should he decoy another's
+corn ... [45]
+
+10. For pasturing on or for cutting secretly by night [another's]
+crops acquired by tillage [shall be] in the case of an adult hanging
+and death [by sacrifice] to Ceres;[46] a person under the age of
+puberty (under 15 years of age) [shall] either be scourged at the
+discretion [of the magistrate] or make composition by [paying] double
+[damages] for the harm [done].
+
+11. Who shall have destroyed by burning a building or a stack of corn
+set alongside a house is ordered to be bound, scourged, burned to
+death, provided that knowingly and consciously he shall have committed
+this; but if this be by accident [, that is] by negligence, either he
+is ordered to repair the damage or, if he be too poor to be competent
+for such punishment, he shall be chastised more lightly.
+
+12. Any person who shall have felled wrongfully (_iniuria_) other
+persons' trees shall pay 25 asses for every [tree].
+
+13. If theft has been done by night, if [owner] has killed him (the
+thief), he (the thief) shall be [held] killed lawfully (_iure_).
+
+14. It is forbidden that a thief be killed by day ... Unless he (the
+thief) defend himself with a weapon, even though he (the thief) shall
+have come with a weapon, unless he (the thief) shall use that weapon
+and shall resist, you shall not kill him. And even if he (the thief)
+resist, [you] shall shout [, that some persons may hear and
+assemble].[47]
+
+15. In the case of all other thieves caught in the act [it is
+ordained] that freemen be scourged and be adjudged [as bondsmen] to
+the person against whom the theft has been committed, provided that
+they had done this by day and had not defended themselves with a
+weapon; that slaves caught in the act of theft be whipped with
+scourges and be thrown from the rock;[48] that boys below the age of
+puberty (under 15 years old) be flogged at [the magistrate's]
+discretion and that damage done by them be repaired.
+
+16. Thefts which have been discovered through [use of] platter and
+loincloth [shall be punished just as if the culprits had been caught
+in the act]. For cases of stolen goods discovered (_furtum conceptum_)
+[by other means than by platter and loincloth] or introduced (_furtum
+oblatum_) the penalty is triple [damages].[49]
+
+17. If a person plead on case of theft, in which [the thief] shall not
+be caught in the act, [the thief] shall compound for the loss by
+[paying] double [damages].[50]
+
+18. A stolen thing is debarred from prescription (_usucapio_).[51]
+
+19. No person shall practise usury at a rate of more than
+one-twelfth[52] ... [if he do,] a usurer shall be condemned for
+quadruple [damages].
+
+20. In a suit concerning an article deposited [with a person who has
+failed to return the article] legal action (_actio_) for double
+[damages is granted].
+
+21. [If] guardians (_tutor et curator_) [be suspected of
+mal-administration, there is] the right to accuse [them] on suspicion
+... the legal action (_actio_) against guardians (tutor) [shall be]
+for double [damages].
+
+22. If a patron (_patronus_) shall have defrauded a client (_cliens_),
+he shall be forfeited solemnly (_sacer_).[53]
+
+23. Whoever shall have allowed himself to be called as a witness or
+shall have been a scales-bearer (_libripens_),[54] if he [as a
+witness] pronounce not his testimony, he shall be dishonored and
+incapable of giving evidence (_intestabilis_).
+
+24. The penalty for false testimonies [is] that any person
+who has been convicted of speaking false witness [shall be]
+precipitated from the Tarpeian Rock.
+
+25. If a weapon has sped from one's hand rather than [if the wielder]
+has hurled [it, ... he shall atone for the accidental deed by
+providing] the substitution of a ram [as a peace-offering to prevent
+blood-revenge].
+
+26. [For administering] a noxious drug ...
+
+27. No person shall hold nocturnal meetings in the city.
+
+28. Members of guilds have the power to make for themselves any
+binding rule which they may wish, provided that they violate nothing
+in accordance with public law (_publica lex_).
+
+
+
+
+TABLE IX. PUBLIC LAW
+
+1. Laws of personal exception (_privilegium_)[55] shall not be
+proposed.
+
+2. [Laws] concerning the person (_caput_)[56] of a citizen shall not
+be passed except by the greatest assembly (_maximus comitiatus_)[57]
+and through those whom they (the consuls)[58] have placed upon the
+registers of the citizenry.
+
+3. A judge (_iudex_) or an arbitrator (_arbiter_) legally (_iure_)
+appointed, who has been convicted of receiving money for declaring a
+decision, shall be punished capitally (_capite_).
+
+4. [Provisions pertaining to] the investigators of murder (_quaestor
+parricidii_) [appointed to have charge over capital cases].
+
+5. Whoever shall have incited a public enemy (_hostis_) or whoever
+shall have delivered a citizen (_civis_) to a public enemy shall be
+punished capitally (_capite_).
+
+6. It is forbidden to put to death ... unconvicted any one whomsoever.
+
+
+
+
+TABLE X. SACRED LAW
+
+1. A dead person shall not be buried or burned in the city.[59]
+
+2. More than this shall not be done. The funeral pyre (_rogum_) shall
+not be smoothed with the axe.[60]
+
+3. [Expenses of a funeral shall be limited to] three [mourners
+wearing] veils and one [mourner wearing] small purple tunic and ten
+flute-players.
+
+4. Women shall not tear their cheeks or have a _lessus_ (sorrowful
+outcry)[61] on account of the funeral.
+
+5. The bones of a dead person shall not be collected that one may make
+a funeral afterward.[62] An exception is for death in battle or on
+foreign soil.[63]
+
+6. Anointing by slaves and every kind of drinking-bout is abolished
+... [there shall be] no costly sprinkling, no myrrh-spiced drink, no
+long garlands, no incense-boxes.
+
+7. Whoever wins a crown (_corona_)[64] himself or through his
+chattel[65] or by his valor, [a crown] is bestowed on him [, when he
+is burned or buried] ... on him (who has won it) and on his father [it
+shall be laid] with impunity (_sine fraude_).
+
+8. This also shall not be done: to make more than one funeral and to
+spread more than one bier for one person.
+
+9. Gold shall not be added [to a corpse]. But him whose teeth shall
+have been fastened with gold, if a person shall bury or shall burn him
+with that (gold), it shall be with impunity (_sine fraude_).
+
+10. It is forbidden for a new pyre (_rogum_) or a burning-mound
+(_bustum_) to be erected nearer than sixty feet to another person's
+buildings without the owner's consent.[66]
+
+11. It is forbidden for a vestibule of a sepulcher (_forum_) and a
+burning-mound (_bustum_)[67] to be acquired by usucapion.
+
+
+
+
+TABLE XI. SUPPLEMENTARY LAWS
+
+1. Intermarriage (_conubium_) between plebeians and patricians shall
+not occur.[68]
+
+2. [Regulations] concerning intercalation.
+
+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 assessment 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 ownership]; 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 illustrate 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 titles: _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 asserts that "the small manual of the _Twelve Tables_ by
+itself surpasses 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
+assessed.
+
+[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 passage
+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 reënters 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 (_manus_) 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
+fictitious 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 _manus_ (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.
+
+[31] This strip is reserved as a path between any two estates
+belonging to different owners. Both owners can walk on the whole
+space, but neither owner can claim possession of the strip through
+continued usage.
+
+[32] In view of the ancient tradition that the decemvirs sent to
+Athens a committee to study the laws written by Solon (c. 639 B.C.--c.
+559 B.C.) for the Athenians (Livy, _op. cit_., III. 33. 5), it may not
+be out of place to record what Gaius (_ob. c_. 180 A.D.) reports about
+marking boundaries (_Digesta_, X. 1. 13): "We must remember in an
+action for marking boundaries (_actio finium regundorum_) that we must
+not overlook that old provision which was written in a manner after
+the pattern of the law which at Athens Solon is said to have given.
+For there it is thus: 'If any man erect a rough wall alongside another
+man's estate, he must not overstep the boundary; if he build a massive
+wall, he must leave one foot to spare; a building, two feet; if he dig
+a trench or a hole, he must leave a space equal or about equal in
+breadth to depth: if a well, six feet; an olive tree or a fig tree he
+must plant nine feet from the other man's property and any other trees
+five feet.'"
+
+While there is no evidence whatever that any enactment of the Twelve
+Tables reproduced in any form the terms of the Athenian statute here
+quoted, still the Twelve Tables may have contained some such
+provisions.
+
+[33] What were these conditions we know not; all that we have from
+this item are the unbracketed words, which are quoted as examples of
+how words change their meanings and which are assigned to the Twelve
+Tables.
+
+[34] Some scholars suppose that only branches over fifteen feet above
+ground are meant. In any case the idea is that shade from the tree may
+not damage a neighboring estate.
+
+[35] We know that this item was interpreted to include prose as well
+as verse.
+
+[36] Slander and libel are not distinguished from each other in Roman
+Law.
+
+[37] The severity of the penalty indicates that the Romans viewed
+offence not as a private delict but as a breach of the public peace.
+
+[38] Apparently an incantation against a person, for the ninth statute
+in this Table treats such practice against property.
+
+[39] The penalty points to an incurable maim or break, because the
+next statute seems to provide for injuries which can be mended.
+
+[40] Thus the injured person or his next of kin may maim or break limb
+for limb. Cf. the Mosaic _lex talionis_ recorded in _Leviticus_, 24.
+17-21.
+
+[41] Most scholars connect this fragment with damage to property and
+conjecture that the rest of it must have been concerned with
+compensation for accidental damage.
+
+[42] That is, the animal which committed the damage may be surrendered
+to the aggrieved person.
+
+[43] From the context, wherein the unbracketed words are preserved, we
+can reconstruct the sense of this statute.
+
+[44] Not apparently into one's own fields, but to destroy these where
+these were.
+
+[45] Apparently into one's own fields by means of magical incantation.
+
+[46] Properly the goddess of creation, occasionally (by extension) the
+goddess of marriage, usually the goddess of agriculture, especially
+the goddess of cultivation of grain and of growth of fruits in
+general.
+
+Ceres is represented commonly as a matronly woman, always clad in full
+attire of flowing draperies, crowned either with a simple ribband or
+with ears of grain holding in her hand sometimes a poppy, sometimes a
+scepter, sometimes a sickle, sometimes a sheaf of grain, sometimes a
+torch, sometimes a basket full of fruits or of flowers, seated or
+standing in a chariot drawn by dragons or by horses.
+
+[47] That is, the slayer must call aloud, lest he be considered a
+murderer trying to hide his own act.
+
+Our sources leave it uncertain whether the law forbids that a thief be
+killed by day, unless he defend himself, with a weapon, or the law
+permits that a thief be killed, if he so defend himself.
+
+[48] A southern spur of the Capitoline Hill, which overlooks the
+Forum, and named after Tarpeia, a legendary traitress, who, tempted by
+golden ornaments of besieging Sabines, opened to them the gate of the
+citadel, of which her father was a governor during the regal period.
+As they entered, the enemy by their shields crushed her to death:
+Tarpeia was buried on the Capitoline Hill, whereon stood the citadel,
+and her memory was preserved by the name of the Tarpeian Rock (Rupes
+Tarpeia), whence certain classes of condemned criminals, in later
+times, were thrown to their death.
+
+[49] Our sources tell us that a person who searched for stolen
+property on the premises of another searched alone and naked, lest he
+be deemed later to have brought concealed in his clothing any article,
+which he might pretend then to have found in the house, save for a
+loincloth and a platter, on the latter of which he probably placed the
+stolen articles when found. We hear also that a man could institute a
+search in normal dress, but only in the presence of witnesses. If in
+the latter case stolen goods were discovered, the thief on conviction
+was condemned to pay thrice their value for _furtum conceptum_
+(detected theft). But in either case, if the accused householder could
+prove that a person other than himself for any reason had placed the
+stolen articles in his house, he could obtain from that person on
+conviction damages of thrice their value for _furtum oblatum_
+("planted" theft). Search by platter and loincloth (_lanx et licium_)
+became obsolete; search with witnesses present survived.
+
+[50] The ancient commentators take this statute to mean "double in
+kind" not in value: for example, two cows surrendered for one cow
+stolen.
+
+[51] That is, neither a thief nor a receiver of stolen goods, whether
+acquired through purchase or by other method, can acquire title to
+property in stolen goods through long possession of such.
+
+[52] The uncia (whence our "ounce") is the unit of division of the as
+and is used also as one-twelfth of anything. One-twelfth of the
+principal paid yearly as interest equals 8-1/3%.
+
+[53] This originally is a religious penalty, whereby the person is
+sacrificed. But sacer comes to mean "a person disgraced and outlawed
+and deprived of his property."
+
+[54] At a sale (_mancipium_ or _mancipatio_) the buyer in the presence
+of five adult citizens had his money weighed by another adult citizen
+who held scales for this purpose.
+
+This practice obtained originally ere the introduction of coinage.
+
+[55] That is, enactments referring to a single citizen, whether or not
+in his favor.
+
+[56] Caput includes also privileges of citizenship (_civitas_).
+
+[57] Commonly known as the _comitia centuriata_, an assembly which
+comprised all citizens. To this assembly a citizen convicted in court
+on a capital charge had the right of appeal  (_ius provocationis_) at
+least as early as the passage of the Lex Valeria in 509 B.C., for
+Cicero claims that the pontifical as well as the augural books state
+that the right of appeal from the regal sentences had been recognized
+(De Re Publica, 11. 31. 54).
+
+[58] This statute is quoted by Cicero (De Legibus, III. 4. 11), who
+inserts censores (censors) as the subject of the last verb _locassint_
+(have placed). But the last clause must have been "modernized" either
+by Cicero or in his source, because the promulgation of the Twelve
+Tables in 449 B.C. antedated the creation of the censorship, which can
+not be traced higher than 443 B.C., if we can believe Livy's account
+of its institution (op. cit., IV. 8. 2-7). Before that time the
+consuls superintended the lists of citizens.
+
+[59] The first provision doubtlessly descends from a primitive tribal
+tabu. Cicero supposes that the second provision is due to danger from
+fire (De Legibus, II. 23. 58).
+
+[60] In view of the simplicity enjoined in some of the following
+statutes of this Table, for the decemvirs apparently took a dim view
+of extravagant funerals, this statute seems to mean that a rough-hewn
+pyre without elaborate smoothness of its wooden material suffices for
+the cremation-couch of a citizen.
+
+[61] Cicero says that some older interpreters suspected that some kind
+of mourning-garment was meant by _lessus_, but that he inclines to the
+interpretation that it signifies a sort of sorrowful wailing (De
+Legibus, II.23.59)
+
+[62] This provision is aimed at the common custom of prolonging
+mourning by gathering and preserving unburied some part of the corpse.
+When this part (_os resectum_) later had been buried, then only
+mourning ceased. It is possible that some Romans may have thought that
+cremation might be wrong or that its ceremony was inadequate.
+
+[63] That is, in such a case a limb could be carried to Rome and then
+buried.
+
+[64] That is, a garland or a chaplet or a wreath as a prize of
+achievement.
+
+[65] A chattel, for example, is a slave or a horse who wins a wreath
+for the owner.
+
+[66] Cicero says that this statute seems to suggest fear of disastrous
+fire (_De Legibus_, II. 24. 61).
+
+[67] In the burning-mound also ashes were buried.
+
+[68] This statute proved so unpopular that it soon was repealed by the
+Lex Canuleia in 445 B.C.
+
+[69] This process of "taking a pledge" is the seizure and the
+detention of a debtor's property or part thereof to induce the debtor
+to pay the debt before any other legal action will be taken.
+
+It will be noticed that the two instances given in this statute
+concern Sacred Law, with which by anticipation the fourth statute of
+this Table likewise is concerned. Modern scholars place these two
+provisions among the Supplementary Laws despite the temptation to set
+these among the statutes of Table X, of which all but one item come
+from Cicero's discussion of Sacred Law in his _De Legibus_, II. 23.
+58-24. 61, in the concluding portion of which Cicero seems to speak
+with some finality that he has given all the regulations regarding
+religion found in the Twelve Tables. Moreover these two rules come
+from Gaius, who flourished more than two centuries after Cicero. But
+if every Supplementary Law resembling the subject-matter of Tables I-X
+should be advanced to the appropriate position forward, few would be
+the statutes left in Tables XI-XII. It is merely coincidental that
+some of the statutes among the Supplementary Laws should concern
+topics already treated, for from the Romans we must not remove the
+faculty of aftersight.
+
+[70] Some scholars seek to place this provision in Table VIII, where
+it seems properly to belong, despite its traditional position here.
+
+This dislocation, coupled with that of the preceding provision, well
+illustrates how hopeless is our reconstruction of the order of the
+regulations of the Twelve Tables.
+
+[71] That is, apparently, if a person with or without fraudulent
+intent had held and claimed as his a thing which a judicial court now
+decided belonged to another party.
+
+[72] Retention of the article is deemed to have brought the defendant
+some profit; therefore he must pay double this profit.
+
+[73] Cf. second paragraph in note [69] _supra_.
+
+[74] That is, the most recent law repeals all previous laws which are
+inconsistent with it.
+
+[75] Cicero says that many laws in the Twelve Tables exhibit this rule
+(_De Re Publica_, II. 31. 54).
+
+
+
+
+
+End of the Project Gutenberg EBook of The Twelve Tables, by Anonymous
+
+*** END OF THE PROJECT GUTENBERG EBOOK 14783 ***