LEGAL DEVELOPMENT BY INTERPRETATION

During the course of the republic some features of the Twelve Tables were modified. The creditors of a judgment debtor were no longer allowed to kill him but had to let him work off his debts by forced labour and later there was a procedure for making a debtor bankrupt by a com­pulsory sale of his property for the benefit of his creditors.

The Romans had a strong feeling that their law was of long standing and had been in essentials part of the fabric of Roman life from time immemorial. At the same time they expected it to enable them to do what they wanted to do, so long as that seemed to be reasonable. In the first half of the republic interpretation of the law, whether the unwrit­ten ius or the lex of the Twelve Tables, was still in the hands of the pontiffs. They could ‘interpret' the law in a progressive way, even to produce a new institution which had been quite unknown to the earlier law.

An example of such interpretation is the emancipation of children from their father's power. The power of the paterfamilias over his descendants in his power lasted until either his or their death. At the time of the Twelve Tables there was no legal means whereby he could volun­tarily sever the rclaiioiisliip. He could exploit his sons by seliing them into forced labour and the Twelve Tables contained a provision, appar­ently aimed at curbing misuse of this power, that if the father sold the son three times into forced labour, the son was to be free of his father's power. Such multiple sales were possible because, if the buyer of the son set him free, the son would revert to his father's power.

As a result of interpretation the three-sales rule was used to enable a father to emancipate his son. He made a pretended sale of the son three times to a friend; after each sale the friend would set him free, and after the third he was free by virtue of the Twelve Tables rule. So far the inter­pretation of the rule can be regarded merely as a use of a clear rule for a purpose other than that originally intended. But interpretation went further. The Twelve Tables referred only to sons; where daughters and grandchildren were concerned the paterfamilias could sell them as much as he liked. Once the rule was understood to refer to emancipation, however, it was held to mean that three sales were required in the case of sons but that so far as daughters and grandchildren were concerned, one sale was sufficient for emancipation.

No doubt many citizens would have seen that what was happening was an adaptation of the Twelve Tables rule for purposes undreamed of by the decemvirs. However, legal conservatives were more comfortable with the idea that emancipation could be presented as something that was at least implicit, if not expressed, in the Twelve Tables than they would have been if it had been proposed as an entirely new reform.

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