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Laws of the Twelve
Tables
450
BC In the early republican period, matters between private individuals
were settled by customary law rather than by leges.
In the
framework of the social struggle, the growing complaints of plebeians at the
arbitrary application of the unwritten law by the ruling elite of patricians
lead to the formulation of Laws of the Twelve Tables.
This codification
was preceded by direct contacts with the Greek world (including Greek colonies
in Southern Italy), where there were already important models such as the
codification by Solon (640
– 560 BC).
"Solon was commissioned to draw a new code of laws
in order to solve a civil crisis threatening the fabric of Athens as a
city-state." - Kelcy Sagstetter
A rising tide of class warfare had
reached a critical point because wealthy landowners had enslaved or
impoverished most of the poor farmers.
Solon canceled all debt and
ended the wide-spread practice of debt-slavery.
In ancient Roman society their
is a relation between patronus ("patron") and
cliens ("client").
Patricians, or upper-class Romans,
were patrons to
plebian clients.
The patrons
provided many types of support to their clients who, in turn,
rendered services and loyalty to
their patrons.
The number of
clients and sometimes
the status of clients
conferred prestige on the
patron.
The patron is
the protector, sponsor, and benefactor of the client; the
technical term for this protection
was patrocinium.
Benefits
a patron might confer include
legal representation in court,
loans of money,
influencing business deals or
marriages, and supporting a
client's candidacy for political office or
a priesthood.
In Rome a client was a free
man who entrusted himself to another and received protection in
return.
This ancient
oath of fealty carries through into the current age and can be seen being
exercised by presidential cronies.
Clientship was a hereditary social status
consecrated by usage and
recognized, though not defined or enforced, by the law.
Clients were expected to offer their
services to their patron as needed.
A freedman became
the client of his former master.
A patronage relationship might also
exist between a general and
his soldiers, a founder and
colonists, and a
conqueror and a dependent
foreign colony.
'CLIENS' contains the same element as the verb
cluere, to "hear" or
"obey," and to Niebuhr equivalent with the German word hoeriger, "a
dependent."
"In the time of Cicero, we
find patronus in the sense of adviser, advocate, or defender, opposed to cliens
in the sense of the person defended, or the consultor; and this use of the word
must be referred, as we shall see, to the original character of the patronus.
The relation of a master to his liberated slave (libertus) was also
expressed by the word patronus, and the libertus was the cliens of his
patronus.
Any Roman citizen who wanted a protector, might attach
himself to a patronus, and would thenceforward be a cliens.
Strangers
who came into exilium at Rome might do the same (jus applicationis).
Distinguished Romans were also sometimes the patroni of states and
cities, which were in a certain relation of subjection or friendship to Rome;
and in this respect they may be compared to colonial agents, or persons among
us, who are employed to look after the interests of the colony in the mother
country; except that among the Romans such services were never remunerated
directly, though there might be an indirect remuneration.
This
relationship between patronus and cliens was expressed by the word Clientela,
which also expressed the whole body of a man's clients." - George Long, Fellow
of Trinity College: A Dictionary of Greek and Roman Antiquities,
published John Murray, London, 1875
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.
Table II. Trial 1a. The
penal sum in an action shall be either 500 assēs or 50 assēs.
It shall be argued by solemn deposit with 500 assēs, 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 assēs.
If the controversy is about
the freedom of a person the case shall be argued by a deposit of 50 assēs.
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. If circumstances are 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.
3. Unless the debtor discharges the debt adjudged or
unless someone offers surety for him in court the
creditor shall take the debtor and
bind him either with a thong or with fetters.
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.
5. They shall have the
right to compromise, and unless they compromise
the debtor shall be held in
bond for sixty 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.
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.
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 take her property, take the keys and 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 of full age,
because of their levity of mind shall be under guardianship except vestal
virgins, who shall be free from guardianship.
2. The conveyable possessions of a woman under
guardianship of male authority shall not be acquired by
prescriptive
right unless 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 authority shall have the estate.
5. If
there is not a familial authority the male clansmen shall have the estate.
6. Persons for whom by will a guardian is not given, their
male authority shall be
guardians.
If a
person is insane authority over him and his personal property shall belong to
familial authority and in default of these to his male clansmen.
7. A
spendthrift,
forbidden from administering his own goods, shall be under guardianship of his
familial authority.
8. If a Roman citizen freed man dies intestate
without a direct heir, to his patron shall fall the inheritance.
9.
Debts of the estate shall be divided among the heirs proportional to the share
of inheritance.
10. Action for division of an estate shall be available
for joint heirs wishing to withdraw.
Table VI. Ownership and Possession
1.
When a person makes bond
and conveyance, his verbal contract is a pledge enforced by law.
2.
It shall be sufficient to make good faults confessed by tongue, for those flaws
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 to husband's marital control she shall
absent herself for three successive nights in every year and by this means
shall interrupt his prescriptive
right.
6a. If the parties join their hands on the disputed property
when pleading in court both conveyance and surrender in court 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 who is convicted of having torn down
framework double damages shall be given.
Table VII. Real Property 1.
Clearance shall be two and one-half feet in an action for regulating
boundaries.
4. In ownership through prescriptive right 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 and keep it free from stones so one shall drive one's beast or
carriage where one wishes.
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.
9a. Branches of a tree shall be pruned all
around to a height of fifteen feet.
9b.
If a tree from a neighbor
has been felled by the wind it belongs to the land.
10.
It shall be lawful to
gather fruit falling upon another's farm.
11. Articles sold and
undelivered are not owned by the purchaser unless he pays the price or tenders
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 assēs 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 1. Whoever enchants by
singing an evil incantation that can cause dishonor or disgrace to another
shall suffer a capital penalty.
2. If anyone has broken another's
limb there shall be compensation in kind with him.
3. If a person
breaks a bone of a freeman with hand or by club, he shall undergo a penalty of
300 assēs; or of 150 assēs, if of a slave.
4. If one commits
an outrage against another the penalty shall be twenty-five assēs.
5. ... One has broken ... One shall make amends.
6. If a quadruped caused damage an action either for
surrendering replacment that which was damage to the aggrieved person or for
offering an assessment of the damage.
7. If fruit from your tree falls
onto my farm I may feed my flock.
9. If anyone pastures on or cuts by
night another's crops obtained by cultivation the penalty for an adult shall be
capital punishment.
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 he committed this crime;
if by negligence,
either he shall repair the damage or if he is unable he shall be corporally
punished.
11. Whoever fells unjustly another's trees shall pay
twenty-five assēs 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 the
owner shall shout before acting.
14. Thieves caught in the act
shall be scourged and 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 Tarpeian Rock; children
below the age of puberty shall be scourged at the praetor's decision and the
damage done by them shall be repaired.
15. The penalty for detected
planted theft shall be triple damages.
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 lawsuit about an article
deposited, an action for double damages shall be given.
20.
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.
(The accursed became forfeit to the
god(s). Anyone who killed
him was considered to be performing a sacred duty and enjoyed impunity.)
22. Unless he speaks his testimony whoever allows himself to be called
as a witness or is a scales-bearer shall be dishonored and incompetent to give
or obtain testimony.
(Anyone unable to defend themsleves,without a
Patron, was remanded to the slave master
for sale by the State as a slave to the highest bidder.)
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.
25. ...
for administering a
drug.
26.
No person shall hold
nocturnal meetings in the city.
27.
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.
Laws of personal exception
shall not be proposed.
2. Laws concerning capital punishment of a
citizen shall not be passed except by the Great 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 shall be punished capitally.
6.
For anyone
whomsoever to be put to death without a trial and unconvicted is
forbidden.
Table X. Sacred Law1. A
dead person shall not be buried or burned in the city.
2.
One shall not smooth a funeral pyre
with a shovel.
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. No gold shall be added to a corpse.
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 burning mound nearer than sixty feet to
another building.
10. It is forbidden to acquire by prescriptive right
of a sepulcher or a burning mound.
Table XI. Supplementary Laws 1. There shall not be intermarriage between plebeians and
patricians.
2. regulations concerning insertion
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 sacrifice price.
2. If a slave commits a
theft or does damage to property the master will either undergo assessment
of the claim or deliver the delinquent for compensation.
3. If one has
obtained an unjustifiable grant of interim possession the magistrate shall
grant three arbiters; the unjustifiable holder of interim possession shall
settle the plaintiff's loss of enjoyment by paying double damages.
4.
It is forbidden to dedicate for consecrated use a thing whose ownership is in
controversy; otherwise a penalty of double the value involved shall be
suffered.
5. Whatever the people last ordain shall be legally valid.
The jurists, who were
usually patricians, began to record their legal decisions in writing, thus
giving rise to a special legal literature, which became more and more
differentiated over the course of
time.
The work of the jurist Sextus Aelius on the Law of the Twelve
Tables, the Tripertita, was the first written record of the
interpretative activity of the jurists (interpretatio prudentium), deposited
above all in the responsa (legal opinions), and became an independent
source of law.
The auctoritas (reputation/dignity/authority) of the
individual jurist lent assertiveness to his opinions, but many questions
remained controversial.
Thus there came about the special character of
Roman law as a ius controversum (controversial law) which, on the one hand,
could not be tied down to clear rules, but on the other was not speculative.
Instead, the focus was always on the concrete case, and the decision,
once arrived at, could be applied per analogiam (by analogy) to similar
cases. |
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