B. THE LAW OF THE TWELVE TABLES

§ 49 Pomponios, Libra singular!enchiridii (D. I.2.2.3-4)

Upon the expulsion ofthe kings by a trlbunidan statute, all these (kings') statutes became obsolete and the Roman people came once more to use uncertain law and mere custom rather than enacted law, and this lasted about twenty years.

(4) Thereafter, that this should no longer continue, it was decreed that ten men (decemviri) should be appointed by the authority of the state to obtain statutes from the Greek city states and to place the (Roman) state on a basis of laws. These statutes, inscribed upon [ivory] tablets, they set up before the rostra, so that the statutes could be more clearly seen. Supreme authority in the state was given to them (decemviri) in that year, both to amend the statutes if it should be necessary, and to interpret them, and there was no appealfrom them as from other magistrates. They themselves not iced that thesefirst statutes were incomplete, and accordingly, in the following year, they added two more to the aforesaid tables; hence, with the addition, they have been called the Laws of the Twelve Tables. Some have said that the source of this decemviral legislation was a certain Hermodorus, an Ephesian, an exile in Italy.

Mommsen suggested that Pomponius wrote ‘aereac’ (copper) and not ‘eboreae’ (ivory), for the latter was not known as a medium for publication of statutes.’

Livius, Ab urbe condita 111.9.2-111.57.10 (ed. Bruns).

Gaius Terentllius Arsa was tribune of the plebs that year (462 B.C.).... He hurled invectives against the consular power as an exorbitant one and intolerable in a free state.... Two tyrants instead of one (a king) had been set over them, with unlimited power, who. themselvesprivilegedanduncontrolled.directedevery terror of the laws and all punishments against the plebs. Lest they possess this license forever, he would propose that five men be appointed to write down the laws on consular power.

In the following year (461) the Terent ilian law, supported by all the tribunes, again was directed against the consuls.... The senators continually blocked (the passage of) the law, which was brought forward on every day that an assembly could be held.... By strategem (the passage of)the law was eluded for that whole year.... The new year (460) had brought no change; the question of proposing the law, or of accepting it, occupied all citizens. Nor could the law yet be passed.... Decrees of the Senate were enacted ’that the tribunes should not introduce the law that year, nor, on the other hand, should the consuls lead the troops out of the city'.... The tribunes (459)declared that they would not permit the quaestors to summon an assembly on the Volscian ease, unless one wasfirst held on the law.... The consuls (458) found the two causes held over from the previous year. As before the consuls obstructed the law, the tribunes the trial of Volsdus.... When Verginius, foremost among the tribunes, was active regarding the law, a period of two months was given the consuls for the purpose ofexamining the law so that when they should have informed the people whether anything was fraudulently concealed therein, they would then allow them to bring it to a

I. Mommsen. Sdiriften 111 302 n.4.

vote. This period having been given, matters were made quiet in the city.... Towards the end of the year there was an agitation for the law by the tribunes, but as the two armies were absent, the patricians were successful in not having the matter brought before the people.... Inthebeginingofthe year 1457), when there was peace outside, the same tribunes and the same law caused troubles at home; and these would have gone to greater lengths - so inflamed were passions - except that news was brought that the garrison at Corbio had been cut off.... There was (456) peace at homeandabroad... Inthefollowingyear(455) the tribunes supported the law at all their meetings.

The new consuls (454) said ‘the tribunes and the plebs together could not propose the law’.

Then, desisting from a law which (in the length of time) since promulgation had lost strength, the tribunes applied amicably to the patricians: ‘put an end to all contentions; if plebeian statutes displeased them, they should allow law-givers to be chosen commonly from the plebs and from the patricians, that the framing (of the law) be advantageous to both parties, and give equal liberty’. The patricians did not reject this but they said laws were to be proposed by no one except patricians. When they agreed concerning the law, but differed regarding the legislator, ambassadors were sent to Athens, namely, Spurius Postumius Albus, A. Manilius, P. Sulpidus Camerinus, and ordered to copy the famous laws of Solon, and to acquaint themselves with the institutions, customs and laws of the other Greek states. The year (453) was undisturbed by foreign wars, still more quiet... by reason of the silence of the tribunes, beatuse the arrival of the ambassadors who had gone to Athens and for foreign laws was awaited.... Now (452) the ambassadors had returned with the Athenian laws. The tribunes pressed more earnestly that a beginning should be made in compiling the laws. It was resolved that ten men (decemviri) be appointed, with no appeal from them, and that no other magistrate be appointed that year. There was a controversy for some time whether plebeians should be admitted to this group; finally it was decided in favor of the patricians....

In the three hundred and second year since Rome had been founded... the form of the state was changed with the transfer of sovereign power (imperium) from consuls to decemviri.... Appius Gaudius. T. Genucius, P. Sestius. L. Veturius. C. lulius, A. Manlius. P. Sulpidus. P. Gtriatius. T. Romilius. Sp. Postumius were created decemviri.... Then (451) time was spent in framing the laws. The expectations of men having been raised to the highest, they summoned the people to a public meeting (contio), produced ten tables and ordered the people to go and read them.

‘ They have equalized’, they said, ‘the rights of all. highest and lowest.... When at the reports of the people that each chapter of the laws seemed sufficiently correct, the laws of the ten tables were ratified in the centuriate assembly (comitia centuriata); which laws, even now, in spite of all the number of laws that have been added, are the font of all public and private law. Later it was said that two tables were wanting, by the addition of which, as it were, the body of the whole of the Roman law could be completed. This desire... raised the wish of again creating decemviri.... The greater part of the year (450) had now passed, and two tables of laws had been added to the ten tables of the prioryear, so there was no reason, if these laws were ratified in the centuriate assembly, why this type of magistracy was necessary to the state....

Before the consuls marched out of the city (448), they set up the decemvirai laws in public view, incised on bronze, which are called the Twelve Tables. Some writers say that this effort was done by the aediles, at the order of the tribunes.

The enactment of the Twelve Tables is a significant landmark in the struggle between the two classes of the early Roman republic, the patricians and the plebeians.¹ The account in Livy is the most extensive portrayal of the story leading to the granting of the Twelve Tables, but it is by no means the only one which has come down to us. Tftubler, in a careful analysis of the various sources, showed that the account in Livy, as well as that presented by Dionysius Halicarnassensis (Ant. Rom. 10.1 -60), is based on the most recent tradition of all, one dating from the time of Sulla, 82-79 B.C? The story as given in Diodorus (Bibl. Hist. 12.23-36) reflects the earliest tradition; it, like the slightly later story in Cicero (De re pub. 2.36-37), omits all mention of the circumstances leading to the enactment of the law, as well as the sending of the embassy to Greece. A second tradition, given inZonaras(Chron.

7.18) and in Pomponius (D. 1.2.2.4,24), dates from the period of the Gracchi, c. 133 B.C. In these the episode of Verginia, which marked the ousting of the decemviri, and the return to consular regime and the embassy to Greece make their appearance.* As has been noted, the last tradition is given by Livy and Dionysius. The Verginia story is shortened and the story of the publication of the laws is altered?

The law of the Twelve Tables is clearly the outcome of one of the political struggles between patricians and plebeians, but there is less certainty as to the nature of the aims which were sought to be achieved. We are told that the

2. On the origin and nature of the two groups, with details as to the incidents of the struggle between them, sec Siber. r. v. Pfebs, RE 21.1 (1951} 73, 175-81; von Lfibtow, Volk 83- III, with further reff.

3. Taublcr, Unteratchungen 14-67.

4. For comment on the nature and credibility of the Verginia story, see Maschke, Der Freiheilsprozess im klassischen Rltertum: insbesondere der Froze» um Verginia, Historische Untersuchungen 8 (1888), Soltau, SZ 38 (1917) I, 15 IT.; Appleton, JW 3 (1924) 592—670; van Oven, TR 18(1950) 159-90; Gundei, s.v. Verginius (24), RE 8A (1958) 1530-35.

5. For further analysis of the traditional account, see Westnip, Introduction IV.1 79-108; references by Berger, s.v. Tabulae duodecim, RE4A(1932) 1900,1919 ff.;Coli,s.v. Decemviri, NNDI 5 (1960) 245, 246.

plebeians complained that the law was administered by the patricians solely in their own interest, that the content of existing law was uncertain, and that the law was excessively severe as it affected the plebeians. Legal certainty as well as legal equality was the aim. Westrup described the Twelve Tables as, in a fashion, a peace treaty between the contending classes, a Magna Carta of plebeian rights and liberties.* Gioffredi pointed out that the law fixed norms of conduct, either by definitely establishing pre-existing principles in written form, or by peremptorily fixing them where the norm had been doubtful or uncertain because of recent origin; thus the Twelve Tables was not a complete system, for abstract norms, definitions and general principles are lacking? Arangio-Ruiz, emphasizing a point made by Baviera, called attention to the difference between the aims which tradition ascribes and the ends as revealed by the laws themselves? The tribunician proposal was directed, according to Livy’s story, to effect the equalization between the orders, and, beyond that, to limit the power of the consuls.

A further central point of the decemviral action was to curtail execution upon the person of insolvent debtors, and to establish connubium (the capacity to intermarry) between patrician and plebeian. Neither of these last aims was achieved, while the political and economic benefits to the plebeians were limited. Rather, in a dominant way, was the fixing of rules of procedure, of forms for legal transactions, of attributes of guardianship, of relations between landowning neighbors, and the like. One can conclude, thought Arangio-Ruiz, that the annalists of the Gracchan and Sudan eras, naturally inclined to give sentimental and dramatic motives to every event, bearing in mind the violence in the civil struggles being fought out in the 2nd and 1st centuries B.C., could not but measure the episodes of the decemviral legislation on the plane of those struggles with which they were most familiar. Actually, to put laws down in writing, to clear up obscure points, to give effect to norms in use but not as yet definitely accepted, this would mean the attainment of certainty in the existing law which could not but lead to the advantage of the politically weaker class.

1. Publication of the Twelve Tables

§ 50 Livy related that bronze tablets were erected, Pomponius made them of ivory, which Mommsen would read as wooden. Nikolsky, in his treatment of

6. Westrup, Introduction IV. 1 179,

7. Gioffredi, SDHI 13/14 (1947/48) 1,44.

8. Arangio-Ruiz, Storia 57 f.; Baviera, Studi Perozzi 1, 23 if. A similar view, expressed earlier, by Lewis, Inquiry II 219-2L

the Twelve Tables, held that the original tablets were wooden, inscribed in bronze at a much later date.’ According toTaubler, however, there never was an official publication of the Twelve Tables, and any reference thereto was an invention.¹ ‘Twelve Tables’ were wax tablets, kept in the public archives. Weiss declared that, as in general practice in antiquity, the original was preserved in the archives.¹ The sponsors were the decemviri legibus sen· bundis (the ten men for writing down the laws), not ten men chosen to publish them on wood or bronze. The archives were not destroyed at the time of the Gallic invasion; indeed, they date from the creation of the office of plebeian aediles, some decades before the enactment of the Twelve tables.

2. Text of the Twelve Tables

§ 51 Livius, Ab urbecondita VIA.10

At the start (389 B.C.) they order that the treaties and the laws be searched out these were the XII Tables and certain royal statutes- sofar as they could be discovered.

Cicero, De legibus 11.4.9

Ever since we were children, Quintus, we have learned to recite, 'if one summon another to court', and to quote other laws of the same kind.

Cicero, De legibus 11.23.59

For we learned the XII Tables as boys as a required lesson, though no one memorizes them today.

Cyprjanus, Ad Donatum 10

For the laws of the twelve tables were incised, and the laws, carved out in bronze for the public, were prescribed.

No complete text of theTwelveTables has come down to us, nor is it likely that any was extant in classical Rome. Presumably, if there was a publicly displayed text, it was destroyed at the time of the Gallic invasion, circa 387 B.C., and though the law may have been compiled again, it apparently was not republished.’ In the time of Cicero the provisions of the Twelve ^[336] ^{^[337] ^[338] Tables were committed to memory, a circumstance which, together with the modernization of the laws, militates against the view that there was a copy in a public place. The reference in Cyprian is to the market place in Carthage, in the middle of the 3rd century of our era. One may query whether the Twelve Tables are meant?}

As the passages above from Cicero show, the Twelve Tables were well known in the late Republic, and it is from quotations of grammarians and antiquarians, from all manner of writers including jurists as well as lay, of the Republic and Principate, that we are able to assemble what seems to be a substantial part of the original content. The first attempt at reconstruction of the original Twelve Tables was made by Aymar du Rivail in 1515. There were many in the following centuries. Modern versions stem from an arrangement worked out by Dirksen, with a critical edition of the text by Schoell? The arrangement of the laws was as follows: Tables I-1I dealt with civil procedure; III-IV with persons in potestas, manus or manscipium;^[339] ^{^[340] ^[341] ^[342] ^[343] V-VI with succession, guardianship, and ownership; VII-VIII with obligations; IX-X with public law and sacral law; and XI-XII with supplementary provisions. The Dirksen-Schoell text is that reproduced, almost without change, in Bruns, Girard and FIRA. The latter edition, FIRA I c. 2, includes extensive annotation, containing (A) the source from which the text was derived, and (B) other sources which concern the interpretation of the words or the sense of the law, together with references to discussion and emendation of the text. The text, accompanied by English translation, is in Warmington;¹ and an English translation, with notes, is in ARS No. 8. Among recent monographs are those of Dull, Coleman-Norton, and Meira.®}

Festus, De verborum significant ‘reus’

... But Ateius Capita is. indeed, of the same opinion, and he adds an example by way of interpretation: in the second law of the second table, in which it is written. 'if any of these matters is an < impediment > for the iudex or for the arbiter or for either litigant, for that reason the day (of trial I shall be postponed, < the word 'rats' in trial refers to either party, the plaintifff actor) or the defendant (reus) >.

Dionysius HaucarnassensI'S, Antiquitates Romanae 11.273

... This law the decemviri recorded among the rest, and it is on the fourth of the Twelve Tables, as they are called, set up in the forum.

Cicero, De legibus II.25.64

Later,... when extravagance in funerals and mourning grew up, this was abolished by a law of Solon-which law almost word for word our decemviri placed in the tenth table -....

Ulpjanus, Libro XL1V ad edictum (D. 38.6.1 pr.)

After the praetor had spoken (i.e., edict ed) concerning bonorumpossessio (of the property) of one who had died testate, he turned to intestate persons, following the same order which the law of the Twelve Tables followed;for it was customary first to speak of trials respecting testators (inheritances) and then of succession by reason of intestacy.

Dionysius Halicarnassensb, Antiquitates Romanae X.60.5

Appius and his colleagues, when they had written rhe remaining laws on two tables, they added these laws to those earlier; among these was this law: that it should not be lawful for the patricians to contract marriages with the plebeians.

Until quite recently scholars were.in general agreement respecting the arrangment of the norms laid down in the Twelve Tables. All that there was to go by, in direct evidence, were a few references to the table in which a particular law was included, or that it was subsequent to the first ten tables, together with deductions to be drawn from the sequence of materials in the commentary of Gaius on the Twelve Tables. Dirksen-Schoell was a convenient arrangement, even though not steadfastly adhered to. It had been noted that this arrangement assumed that each table was a whole, a practice contrary to what was revealed in later legislative drafting? Furthermore, the contents of Gaius' commentary — taking one book of Gaius for two tables - did not correspond with the Dirksen-Schoell arrangement. Then, again, why expect systematic sequence in an ancient code? Girard noted that the sole reference for such organization was the Festus passage, which might well be incorrect.’ In spite of these objections, the Dirksen-Schoell arrangement was commonly accepted?

Now, however, Lauria has very strongly urged that Dirksen's arrangement

7. Bruns-Lead, Gesduchte 327.

8. Girard, (6th cd.) 11.

9. Citations by Lauria, tus romrnsn I 24. is not acceptable in that it (1) fails to accord with the sequence of materials in Gaius’ commentary, (2) groups the texts according to preconceived ideas, and (3) does not accord with the similar scheme of comments to the praetorian edict?⁰ For not only did Lauria demonstrate that the arrangement of the Twelve Tables was to be modified to fit the sequence in Gaius’ commentary, but also that the sequence in the Twelve Tables was the first systematic arrangement of the substance of the Roman law, a sequence that was reproduced in the edict of the praetor as far as subject matter of the Twelve Tables was reproduced in the latter.¹¹ To quote: ‘The law ofthe Twelve Tables was the model of the praetorian edict, as the preceding exegetical demonstration shows. This statement is implict in the general allusions in antiquity to the first of these as a source of the entire law, to which the second was supplemental,’^{^[344]} ^{^[345] ^[346]} Though Lauria’s view may eventually bring about a reconsideration of the sequence ofthe norms in the Twelve Tables, for the time being the Dirksen-Schoell arrangement is accepted herein, to afford ease of reference to the particular rules of the Law of the Twelve Tables.

3. Content of the Twelve Tables

| 52 Lex Duodecim Tabularium LI-4

//Ae (plaintiff I summons (defendant) to court, shall provide a vehicle. If he does not wish, he need not spread with cushions.

(4) For a better-off person (adsiduus), let the vindex (surety) be abetter-off person; for a proletarian though citizen, let anyone who wishes be vindex.

Lex Duodecim Tabularum III. 1-4

Let thirty days be allowed in the confession of money and the payment of Judgment-debts. (2) Thereafter, let there be laying on of hand; let (him) be led into court. (3) Unless he satisfies the judgment or someone acts as vindex for him in court, let him be led off. bound either with bonds or chains. Bound with fifteen pounds, not less, or if he (complainant) wishes, with more. (4) If he wishes to do so, let him provide his own livelihood If he does not wish to do so, let him who has him bound give him a pound of spelt daily. If he wishes, let him give more.

Lex Duodecim Tabularum IV. 2

If fat her thrice sell son, son shall be free from father.

Lex Duodecim Tabula rum V.3-5

According as a person has made bequest regarding his property or the guardianship of his estate, so shall be the law. (4) If he who has not direct heir dies intestate, the nearest male agnate shall have the estate. (5 j If there is no male agnate, the male clansmen the estate.

Lex Duodecim Tabularum VIII. 12

If theft has been committed by night, if he (the owner) kills him, let such be lawful killing.

Lex Duodecim Tabuiarum VIII.21

If a patron defrauds a client, let him be sacer (accursed).

Lex Duodecim Tabularum IX. 1-2

Bills of personal exemption (privilegia) shall not be proposed. Laws concerning capital punishment of a citizen shall not be passed except by the highest assembly.

Lex Duodecim Tabularum X. 1

A dead person shall not be buried or burned in the city.

By and large, the contents of the Twelve Tables seem to have been devoted to private law and procedure. Though clearly considered as a codification of the law in later times, there is evidence that earlier rules remained valid even if not incorporated into the Twelve Tables.' There are brief outlines of the material covered in many of the text-books,¹ and a fairly exhaustive coverage in the chapters of Jolowicz devoted to the status of the law at the time of the Twelve Tables? Jolowicz notes,

Though a few rules which belong to the ius sacrum are incorporated, the code as a whole is secular in character and it is an indication of the legal ^[347] ^{^[348] ^[349] genius of the Romans that they were able, at so early a stage in their development, to separate law so completely from religion. Public law, in the sense of constitutional law, is represented in our fragments only by two provisions, that forbidding privilegia and that forbidding the trial of a citizen on a capital charge by any assembly except the comitia centuriata. ^[350] ^{^[351] ^[352] ^[353]}}

Siber stated respecting this last important exception that these provisions reestablished the supremacy of the courts within the state, in that no legal prejudices, i.e., special penalties, imposed on an individual citizen could be legislated, and that trials involving capital punishment could only be heard by an assembly of the whole people?

Cicero, De oratore 1.44.195-196

It seems to me that the one small booklet of the Twelve Tables, if one looks to the origins and sources of the laws, surpasses the libraries of all the philosophers in weight of authority and wealth of utility.... It is the spirit (ofRome}, thecustoms and the principles that first ought to be remarked; both because this country is the parent of all of us and because that wisdom which went into the establishment of her laws, is as much to be counted as it was in the acquisition ofthe vast might of the empire.

The exceptional position held by the Lex Duodecim Tabularum in the Roman mind is plainly indicated by its designation: it is the only law not called by the name of its proposer nor described by its contents. Perhaps Livy exaggerates when he says it was‘the whole source of the private and the public law’? but Wenger put it well, in stating,

If we look at the Twelve Tables in the light of the development of the law, all popular legislation together with all juristic activity and with imperial legislation to the beginnings of a codification in the Codex Theodosianus, to the achievement of a Corpus luris by Justinian, is but casuistic law for the particular case. All these norms own their origin to a particular occasion; they are laws for the moment. The chief background for them all is the Twelve Tables?

The words of Cicero need no special comment. The Twelve Tables were the subject of a number of commentaries in the classical period, the best known of which was the commentary by Gaius,¹ utilized by the compilers of the Digest, ten centuries after the law was enacted.’

4. Authenticity of the Twelve Tables

§ 53 One of the major problems with respect to the Twelve Tables is that of its authenticity. Were the Twelve Tables enacted in 451/450 B.C., oris the law actually of later date? The philosopher Vico and the English critic Lewis early cast doubt on the reliability of the tradition, but it was the student of ancient history, Pais, who first seriously attempted to show that what the later Romans knew as the Twelve Tables were actually a recension of the legislative acts of the preceding centuries, made about 300 B.C. The decemvirate of the 5th century was a legendary doublet of the later decemviri stlitibus iudi- candis (ten men for judging controversies), while the decemvir Appius Claudius was the invented double of Appius Claudius, the censor of 301 B.C. Pais thus believed that the Twelve Tables were closely related to the ius Flavianum.' Even more radical was the noted French scholar of comparative law, Lambert, who, in an early work, completely rejected the idea of an official compilation. He held that a collection of traditional legal proverbs, made towards the end of the 2nd century B.C. by the jurist Sextus Aelius Paetus, the first commentator of the pretended decemviral laws, was what actually came to be known as the Law of the Twelve Tables. The contents were authentic archaic laws, but the whole decemviral story was pure legend. Finally, attention should be called to the critical comment of Baviera who maintained that two different problems have been confused. He accepted the historicity of the decemviral story respecting the struggle between the patricians and the plebeians, but he was unwilling to attribute the legislative activity resulting in the Twelve Tables to this group; he rather considered the collection of the old laws to be the work of Sextus Aelius Paetus?

Among the many reasons advanced by Pais, Lambert and Baviera to deny the authenticity of the Twelve Tables, the more prominent are given below, with the answers made by those defending the date of451/450 B.C.

8. Briefly, Maschi, Dirltto rotnano 63; more extensively, Lauria, liu romanttm 133-50.

9. For the Twelve Tables found in juristic works excerpted in the Digest, see Berger, Studi fficcobono ] 585-640.

1. See infra, 157.

2. Citation to the articles and books where the views of Pais, Lambert and Baviera are advanced, and references to the answers to the views ofthese authors in De Francisci. Storidl 208-09 nn.17-19; Wenger, Queilen 360-64; Grosso, Storia 95-100.

(1) The whole of Roman history during this period is unreliable. It is impossible to demonstrate that the various episodes of the story, such as the embassy to Greece, the killing of Verginia, the statue to Hermodorus, have any basis in fact; rather they would seem to be pure legend, reflections of other episodes in the history of Rome. Besides, there exist numerous contradictions within the story itself as it is revealed by the sources.

Answer: The majority of scholars agree that many of the episodes are fictional, but this by no means proves that the Twelve Tables are not to be dated in 451/450 B.C. The explanation of the various traditions given by Taubler disposes of the objection to the internal contradictions of the decemviral story.’

(2) The Fasti Capitolini (Capitoline Records), containing the names of the magistrates from the foundation of the republic, compiled in the time of Augustus with the pontifical calendar known as the Annales Maximi (Annals of Chief Pontiffs) of circa 130 B.C. as its source, does not reproduce the names of the decemviri as found in tradition, nor is it genuine beyond the time of the Gallic invasion. In this argument Pais and Lambert receive support for their position from Pacchioni and Baviera.^[354] ^{^[355] ^[356] ^[357] ^[358] ^[359]}

Answer The majority opinion, explaining some of the names as obscure and identifying the remainder by the use of rotacism, recognized the names of the decemviri of451/450 B.C. in the Fasti. Greenidge has pointed out that if the Annales did not extend back to the middle of the 5th century B.C., how are we to explain the presence ofthe names of the decemviri?’Taubler demonstrated that three of the first decemviri cannot be disposed of as forged or invented; their documentary foundation is earlier than the forged sources?

(3) Pais and Baviera took the view that the tradition alters the expressed aim of the decemviri, which was equalization of the law between the plebeians and the patricians, and not codification.

Answer Beseler stated that legal security and not legal equality was the aim? However, most scholars have said that the remarks concerning the purpose and the aims of the decemviral legislation are all late additions to the story.

(4) It is strange that such important legislation should have been passed over without direct reference until the time of Aelius Paetus, 198 B.C.

Answer Greenidge conjectured that the invention of the name ‘Twelve Tables’ may be due to Paetus himself,¹ which would explain the omission

of the name in Plautus, for there is reference to the contents of the law in the works of that dramatist.^[360]

(5) Another major objection to the early date of the Twelve Tables is based on the modernity of the language of the text.

Answer Girard answered Lambert and re-established the archaic nature of much of the language of the Twel ve Tables, which had earlier been demonstrated by Schoell.^[361] ^{^[362] In this he has been followed by many others.” That which is more modern than the 5th century B.C., particularly the orthography, is due to the fact that no public text existed in late republican times; the commentators were continually modernizing the ancient language, and the argument proves nothing, according to Lenel.^[363] ^{^[364]}}

(6) The final reason that shall be raised at this point is that many of the institutions portrayed are loo modern, that no such legal concepts could have existed in the 5th century B.C.

Answer. In the first place there is just as much that is archaic and could not have been legislated nor written circa 300 B.C. or 200 B.C. An example is the 'sale across the Tiber' since Rome itself occupied both sides of the Tiber at these late dates.¹¹ In the second place, institutions Pais and Lambert declared to be modem are held to be ancient by others. Forex- ample, Pais maintained that the use of the ‘as’ and its subdivisions is impossible in 450 B.C., for the earliest coining of bronze money in Rome dates from the middle of the 4th century; but the Twelve Tables could have referred to the weight of metal and not to coined money.^[365] ^{^[366] ^[367] Again, Lambert asserted that the funeral rites could not have been so extensive as to warrant a lex; but contra Lenel and Bonfante.”}

In the long run, Pais and Baviera have found but little support, and Lambert none, but, as many scholars have pointed out, the work of these critics has turned the attention of all to the unreliability of much of the decemviral story and the necessity of exercising extreme care in evaluating the history and the institutions of this early period. Wieacker has recently declared that there is still need to enter into the archeological, economic, social and religious factors of the epoch of the Twelve Tables in order to obviate the contradictions in the tradition and to determine the authenticity of the text.^H

5. The Embassy to Greece

Gajus, Libro IV ad legem XII tabularum (D. 10.1.13)

It is to be borne in mind that in the action for setting boundaries that rule should be observed which in a measure was written after the model of that law which Solon is said to have enacted at Athens.

Gaius, Libro IVad legem duodedm tabularum (D. 47.22.4)

Associates are those who belong to the same society, which the Greeks call het- airia. The law gives to these the power of making the agreement by which they wish to bind themselves, insofar as they do not violate anything of public law. This law appears to have been taken over from the law of Solon.

Cicero, De legibus II.25.64

Later,... when extravagance in funerals and mourning grew up, this was abolished by a law of Solon - which law almost wordfor word our decemviri placed in the tenth table.

Another problem of special interest concerns the possibility of Greek law in the Twelve Tables. The tradition of an embassy to Greece would, if it were true, readily account for such Greek law as might be found. Wenger, indeed, saw no reason to doubt the idea of an embassy to Greece, in the light of direct references to borrowing in the passages of Gaius and Cicero.^[368] ^{^[369] ^[370] ^[371] Long ago, however, some scholars began to cast doubt on the authenticity of this story? The attempt of Boesch to re-establish the basis for this expedition has not been generally accepted, and many modern scholars take the embassy to Greece as pure legend.’ Ciulci has gathered together all the evidence, and showed that the invention of the embassy was subsequent to the date of Polybius* history, 2nd century B.C.*}

Some scholars, though, appear willing to grant a degree of credence to the story. Berger felt that an envoy to Greece was possible in order to become acquainted with the techniques of setting down the law, not to study Greek codes for their content? Some Greek ideas may have crept in during the course of the unertaking. Other scholars think that an embassy to Magna Graeca is within the realm of possibility? The idea of establihing laws for the patricians and the plebeians has its parallel in the codes which stem from the struggles between the mass and the aristocracy in the various Greek city states.¹ At any rate, it seems that a limited amount of Greek law crept into the Twelve Tables. At least a number of rules are attributed to this source by the ancient authorities, and most moderns are willing to accept this view? According to Wieacker,⁴ some special norms, e.g., burial and sumptuary laws, may well have been borrowed, but direct influence ofSolonic or other Attic Greek codifications, in spite of similarity in content, is unlikely. What influence there was would have come from Magna Graeca or Syracuse. Actual evidence of borrowing is difficult to demonstrate; Mitteis thought that the loan-word 'poena’ proved the influence of Greek law?⁰ but it is perfectly possible that the word may have intruded into the Latin language centuries before the Twelve Tables. Bonfante absolutely denied any Greek influence in the provisions of the law, and believed the search for this was a deplorable intellectual sport.¹¹ Indeed, there can be no question but that the Twelve Tables as a whole was a genuine product of the Roman spirit?²

6. The Twelve Tables and Codification in Antiquity

| 55 There have been sporadic attempts to tie up the Twelve Tables with other codes of ancient times. Lambert used the argument that, in the early stages of their development, people are wont to consider law as an emanation of the divine will? Hence, the earliest codes are theocratic in nature, as the Mosaic Code, the Dharmashastras, the Coran. The Twelve Tables is definitely not of this character, and hence, Lambert held, not of primitive times. Lenel pointed out that the Twelve Tables did not bear the slightest relation to the codified ‘wise sayings’ of the Coran, the Code of Manu, or even the early Germanic codes, but it was not correct to hold thatunder-

6· Bruns-Lead, Geschichte 325; J ors-Kunkel-Wenger, /tfiw. Recta 4 n.5, with further reff.; cf. also Wieacker, RIDA 3 (1956) 459, 467 ff. Recently, Delz, Mus. Heb 23 (1966) 69-83.

7. Von Lübtow, Volk 489.

8. Krüger, Geschichte 14-1S; Kipp, Geschichte 37; Kubier, Geschichte 24; Jolowicz- Nichdas, Introduction 111 f.

9. Wieacker, 'Die XII Tafeln in ihrem Jahrhundert? Entretiens sur I'antiqtdtf dassique 13(1967)291, § IV.

10. Mitteis, Häm. Privatreehl I 15; but cf. Tiubler, Untersuchungen 120-22.

11. Bonfante, Storia I 114-18.

12. Von Lübtow, Volk 490 n. 65. with further reff.

1. Lambert, Eludes de droit commttn legislaiifl 621-33.

developed peoples could not compile a profane code.² In a comparative study Muller attempted to relate the legal institutions portrayed in the Ham* murapi Code, the laws of the Exodus, and the Twelve Tables, suggesting that parts of the latter derived from the earlier codifications? Mitteis pointed out the fundamental antithesis between the Hammurapi Code and the Twelve Tables,⁴ while Zocco-Rosa declared that Muller's thesis of a common source was pure fantasy? Likewise fantastic, according to Zocco-Rosa, was the attempt of ReviUout to recognize the judicial reforms of Amasis, pharaoh of Egypt of the 6th century B.C., as the source of much of the Twelve Tables? More recent citicism has generally frowned upon the idea that the Romans borrowed the techniques or the substance of the Twelve Tables from the codification efforts of other ancient peoples?

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Source: Schiller A.A.. Roman Law: Mechanisms of Development. Mouton Publishers,1978. — 606 p.. 1978

B. THE LAW OF THE TWELVE TABLES

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