CHAPTER III. THE TWELVE TABLES. "The Roman state; whose course will on SHAKSPEARE, Coriolanus, Act I. sc. 1. DURING the period over which we have passed, while institutions of private and public character were formed or established among successive generations, the law upon which they would naturally most depend was fluctuating and undetermined. Its original principles, such, even, as have been partially defined in a preceding chapter, were in a loose and unstable condition, so long as they followed the variable decisions of the different magistracies and tribunals of the Commonwealth. Consul was not bound by the decisions of his predecessors, nor even by any system he may have himself adopted at the beginning of his year. The Pontiff could alter his canons as easily as they had been framed, and though the doctrines of his religion were supposed to be immutable, none knew the meaning of an unchangeable obedience to their behests. So strong, however, was the acquiescence of the Romans in the customs and ordinances of their The forefathers, that there could seldom have arisen any great departure from precedent or established principles of any general kind; and most of the ecclesiastical as of the civil ordinances, though unwritten, were nevertheless preserved by tradition or obeyed by impulse, as if they had been unalterable. The real evil of dependence upon this priesthood or that magistracy, for the delivery as well as the execution or the interpretation of unseen laws, was felt by the Plebeians, who, whether justice, even according to the Roman standard, were on their side or not, could never claim it with the same confidence that would have existed under a visible and undeniable code. It is fairly, therefore, to be called their triumph, that the Twelve Tables were composed. The mission of the three commissioners to Greece has been often regarded as a proof that many parts of the great code of the Roman Commonwealth were derived from foreign sources; but though there was assuredly some reference to the laws of Greece in framing the Twelve Tables,' it was made, if we judge aright, only in order to perfect the form, and not to change the substance, of the Roman, that is to say, the Italian laws, which the Decemvirs gathered from the usages and institutions of their own country. The only novelty of the Tables, apart, of course, from some alterations of which we shall presently 1 A statue long stood in the Comitium to Hermodorus of Ephesus, a sophist, who was said to have been employed by the Decemvirs in their work of compilation. Plin., Nat. Hist., XXXIV. 11. Digest. Lib. I. Tit. II. 2, sect. 4. take account, was their being written or engraved.2 Their adoption by the Centuries,3 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.7 2 "La bella novità di vederle scritte in XII. tavole." Emman. Duni, Cittad., etc., di Roma, Lib. II. cap. 5. 3 Liv., III. 34. Dion. Hal., X. 57. Niebuhr conjectures, from one of the slips which Dionysius is apt to make, that the confirmation of the Curies was also obtained. The Senate was unquestionably consulted. 4" Fons omnis publici privatique juris. . . . . . Corpus omnis Romani juris." Liv., III. 34. But Auso 6 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 10 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 Quæstors of Parricide to the people, whether to the Curies, Centuries, or Tribes is doubtful, without dependence upon the nomination of the Consuls.12 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 calls the law of the Tables, "finis æqui juris." See Mackeldey, Manual of Rom. Law, Introd., sect. 23. 8 See the first two Tables, especially. 9 In the 3d, 4th, 5th, 6th, and 8th Tables. 10 In the 2d and 7th Tables. 12 Digest. Lib. I. Tit. II. 2. sect. 23. Cf. Tac., Ann., XI. 22. 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; 13 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 Ærarians, whether these were artisans, or inferior freedmen, or colonists and allies.14 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 13 Cic., De Legg., III. 19. Some other law appears to have particularly regulated the Centuries, and perhaps the other assemblies, in their legislative functions. Liv., VII. 17. 14 As is inferred from various passages in Livy, relating to the times immediately following the decemvirate. See III. 56, 71, IV. 24, V. 30, etc. |