Chapter 1

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