Зображення сторінки

take account, was their being written or engraved.” Their adoption by the Centuries,” to whom the Decemvirs were obliged to submit them, is as clear an evidence as can be desired of their nationality. According to ancient authorities, the Twelve Tables contained an entire body of public, including sacred, and private law; one class, that is, relating to the Commonwealth, the other to its individual citizens or inhabitants.” But as this is not a history of Roman law, we may pass over divisions and subdivisions of every kind with simple mention, provided we give proper heed to the general or particular features connected with the history of liberty. And the first, as it is the chief, remark to make is this, that the demand of the Tribunes for lawgivers to study the advantage of both the great estates of Rome and equalize liberty amongst them" was partly, at least, fulfilled. However striking the provisions of the code in favor of the Patricians may have been, there was, at all events, henceforth but a single code for them and for the Plebeians.”

2 “La bella novità di vederle scritte in XII. tavole.” Emman.

nius, in his triplets (Edyll. XI. 61), has

Duni, Cittad., etc., di Roma, Lib. “Justriplex, Tabulae quod ter sanxere qua-
II. cap. 5. - Sacrum, privatum, populi commune quod
3 Liv., III. 34. Dion. Hal., X. usquam est.”

57. Niebuhr conjectures, from one
of the slips which Dionysius is apt
to make, that the confirmation of the
Curies was also obtained. The Sen-
ate was unquestionably consulted.
* “Fons omnis publici privatique
juris. . . . . . Corpus omnis Romani
juris.” Liv., III. 34. But Auso-

* “Publicum jus est, quod ad statum rei Romanae spectat. Privatum quod ad singulorum utilitatem.” Instit. Justin., Lib. I. Tit. I. sect. 4.

6 “Qui utrisque utilia ferrent, quaeque aequandae libertatis essent,” etc. Liv., III. 31.

7 Hence Tacitus (Annal., III. 27) calls the law of the Tables, “finis 9. In the 3d, 4th, 5th, 6th, and aequi juris.” See Mackeldey, Man- 8th Tables. ual of Rom. Law, Introd., sect. 10. In the 2d and 7th Tables.

[ocr errors]

The reduction of the consular authority was the main object of Terentilius Arsa, the first mover, as he may be entitled, towards the formation of the Roman code. It was not forgotten in the Tables. The resignation of the Consuls, though they who held the office were appointed to the decemvirate, was, as far as it went, the submission of their authority to the magistracy created by the labors of the Tribunes; and safeguards, whether old or new, were prepared against the day when the office should be restored. Forms of trial,” rights to be maintained,” and penalties to be inflicted" by such as held judicial power in the Commonwealth, were all defined, with detail so severe, that the Consuls, as judges, could no longer be, or be considered, arbitrary. One clause was directed against them, as well as against all who presided in the public tribunals, declaring the acceptance of bribes in that position to be punishable by death." Another gave the appointment of Quaestors of Parricide to the people, whether to the Curies, Centuries, or Tribes is doubtful, without dependence upon the nomination of the Consuls.” If it be remembered that the consular authority, untouched by these enactments, was that which empowered its possessors to convoke the assemblies and propose to them laws in time of peace, while it included the absolute command of armies in war, one may not think that it was much restrained. But the exercise of its judicial functions had, perhaps, been most oppressive, and the constraint of these, as well as of all the rest, by settled laws was sufficient to show that Terentilius had not labored in vain. Some great reforms in the constitution of the assemblies, particularly of the Tribes and Centuries, appear to be denoted by a few remaining fragments of the code. The trial of capital cases was transferred from all other tribunals to the assembly of the Centuries;” to which the Patricians would be as willing to have recourse, in preference to the Tribes, as the Plebeians in preference to the Curies. The assembly of the Tribes was totally changed by the admission, on the one hand, of the Patricians with their clients, and, on the other, of the AErarians, whether these were artisans, or inferior freedmen, or colonists and allies.” Perhaps the first consequence of such an enlargement was, as its authors hoped, to diminish the resolution with which the Plebeians had acted by themselves; but the second consequence could scarcely fail to show itself in the importance of the Tribes as the national assembly of Rome. Other institutions of the higher class seem to have been left as they were found by the laws. Many of the rights we have heretofore observed were solemnly confirmed by the Decemvirs. The great privilege of appeal was reiterated in several forms;" the citizen was protected against any undue prosecution;" and the freeman was to be considered free, until proved to be pledged or enslaved." Usury was formally abolished, and the rate of interest fixed at a low sum,” which every honest debtor in ordinary times might hope to pay; though, if the debt were not discharged at maturity, it was then ordered, as if in justice to the security of property, that the debtor should be delivered over to any fate to which his creditor might choose to doom him.” Every individual, or, more especially, every citizen, received from the law, until, as in the case of the debtor, he was thought to have become unworthy of it, protection in property, in person, and in fame; nor could there have been expected, in times so rude, and from lawgivers so superior in authority, more ample attention to the injuries which were harboured amongst the richer or the poorer, the higher or the lower classes, against one another.” The client was defended from the frauds of his patron;” the slave, even, from the violence of his master or any freeman.”

23. 11 Aul. Gell., XX. I. 8 See the first two Tables, espe- 19 Digest. Lib. I. Tit. II. 2. sect. cially. 23. Cf. Tac., Ann., XI. 22.

13 Cic., De Legg., III. 19. Some 14 As is inferred from various other law appears to have particu- passages in Livy, relating to the larly regulated the Centuries, and times immediately following the deperhaps the other assemblies, in their cemvirate. See III. 56, 71, IV. legislative functions. Liv., VII. 17. 24, W. 30, etc.

15 “Compluribus legibus.” Cic., De Rep., II. 31. Cf. De Legg., III.3. 16 “Wetant XII. Tabulae leges privis hominibus irrogari.” Cic., Pro Dom., 17. So De Legg., III. 19. 17 Digest. Lib. I. Tit. II. 2, sect. 24. Dion. Hal., XI. 30. See Dirksen, Zwölf-Tafel-Fragmente, pp. 427, 730. 18 “Ne quis unciario foenore,” 10 per cent, says Niebuhr, “amplius exerceret.” Tac., Ann., VI. 16.

19 Aul. Gell., XX. 1. 20 See Dirksen, Fragm., pp. 724 et seq., VIII. 1, 2, 3, 4, 6, 20, W. 8, VI. 1. Heinecc., Rom. Jurisp., pp. 622-624. 21 “Patronus si clienti fraudem fecerit, sacer esto.” Servius ad AEn., VI. 609. * “Si servo [os fractum erat, poena assium] centum et quinquaginta.” Gaii Instit., III. 223.

Still, there can be no question but that the Patricians maintained their superiority at great elevation above the place they granted to the Plebeians by their laws. The lower order, perhaps, would have done the same to their inferiors. Plebeian and Patrician, for instance, could not become man and wife;” and the religious privileges of the higher estate were as carefully withheld as their domestic rights from the lower.” It is scarcely worth while to repeat that the Twelve Tables were not intended to work a reform, personally, socially, or politically; but simply to bring together into a code, the same for all men, the customs or laws which had hitherto prevailed in scattered and undistinguishable forms. More restraints than appear in the broken fragments of the Tables were undoubtedly laid upon the growth of Roman freedom; but they who afterwards were born beneath them could measure, at least, the burdens they had to bear, and learn by balances and struggles to rid themselves of some.

The hopes of the Plebeians who had supported their Tribunes in bringing the legislation of the Decemvirs to pass were nominally gratified by being bound by the same law as the Patricians to their common country, and by the same law protected against their common enemies.” One advantage was gained by

* Liv., IV. 4. Cic., De Rep., qui hostem concitaverit, quive civem

II. 37. hosti tradiderit, capite puniri.” Di

* See the work, recently cited, gest. Lib. XLVIII. Tit. IV. 3. of Emmanuele Duni, Lib. I. capp. “Adversus hostem acterna auctori3, 4. tas.” Cic., De Off, I. 12.

* “Lex XII. Tabul. jubet eum WOL. I. 56

« НазадПродовжити »