THE LAW OF THE TWELVE TABLES

When recorded history begins, Rome was a monarchy, but at the end of the sixth century bc the kings were expelled and a republic was established in their place. At this time, Rome was a small community on the left bank of the river Tiber not far from its estuary.

In cases where the application of a customary rule to a particular case was doubtful, the interpretation of the college of pontiffs, a body of aris­tocrats responsible for maintaining the state religious cults, was decisive. The citizen body was divided into two social groups, the patricians, a rel­atively small group of propertied families of noble birth, and the plebe­ians, numerically larger but disadvantaged in various ways. The pontiffs were exclusively patrician and the plebeians naturally suspected that their pronouncements on the validity of particular acts and forms were not always entirely disinterested. The plebeians argued that if the cus­tomary law were written down in advance of cases arising, it would be to their advantage. They would then know what their legal position was, without having to consult the pontiffs, whose powers of interpretation would be limited to the text of the laws.

The result of this agitation was the appointment, in 451 bc, of a commission of ten citizens, the decemvirs, charged with the task of preparing a written text of the customary law, on the lines of the famous Athenian laws of Solon. They produced a collection of rules, known as the Twelve Tables, which was formally proposed to the popular assembly of citizens and approved by them.

The Twelve Tables mark the beginning of Roman law, as we know it, and its provisions ranged over the whole field of law, including public law and sacral law. The original text has not survived but there were so many quotations in later writings that its contents have been substan­tially reconstructed. The original order in which these fragments appeared is not clear and the versions of nineteenth-century scholars, which are printed in modern collections, certainly exaggerate the systematic character of the legislation. We do know that it began with the summons of a defendant to begin a legal action and ended with exe­cution of the judgment at the end of an action.

The Twelve Tables did not state what everyone knew and accepted as law but rather concentrated on points that had given or might give rise to disputes. The substance of its rules was not particularly favourable to the plebeians, but the very fact that so much of the law had been put into fixed form meant that now they knew where they stood. In particular the Twelve Tables dealt with the details of legal procedure, what the citizen could do to help himself without invoking a court and what he had to do to start court proceedings. In the early republic there were few state officials to help an aggrieved person get redress for injuries which he claimed to have suffered and he had to do a lot for himself to activate the legal machinery. In certain cases self-help was tolerated, since the community was not yet strong enough to eliminate it. The Twelve Tables show, however, a determination to institutionalise such cases and keep them within strict limits.

When a dispute arose that the parties were unable to settle for them­selves, they had normally to appear before a magistrate.

The problem for someone who wanted to bring such proceedings was to ensure that his opponent would attend before the magistrate for the first stage of the proceedings. The defendant might cooperate, in order to get the dispute settled, but if he did not come voluntarily, the plaintiff could force him to appear. The precise limits of this power of compulsion were not fixed by the customary law and so the Twelve Tables set out in detail exactly what the plaintiff was entitled to do. If, and only if, the defendant refused, in front of witnesses, the plaintiff’s request to come to the magistrate, or tried to run away, the plaintiff could use force to compel his attendance. If the defendant was sick or aged, the plaintiff could not make him come without providing him with a conveyance of some kind, but, the law provided, it did not have to be a cushioned litter. There were certain things a man could do without going first to a magistrate. The Twelve Tables provided that, when a householder caught a thief in the act of stealing at night, or even by day if the thief resisted arrest, he could kill the thief without more ado. In most cases, however, a court ruling was necessary before direct action was allowed. In cases of serious physical injury, the parties were encouraged to reach agreement on the appropriate money payment to be made by the offender to his victim.

So far we have been concerned with disputes between individuals, but in reality a person in early Rome was more likely to be considered as a member of a group. The unit with which early Roman law was concerned was the family. The law did not deal with what went on within the family. The relations between the members was a private matter which the community had no power to control. So far as those outside the family were concerned, the family was represented by its head, the paterfamilias, and all the family property was concentrated in him. All his descendants in the male line (agnates) were in his power. A child did not cease to be in his father's power merely by becoming an adult. Until his father died, he could not own property of his own. Consequently all the family property was kept together and the resources of the family as a whole were strengthened. In practice, there­fore, a claim by a victim of theft or personal injury committed by a slave or a child in power had to be brought against the family head, since he alone was in a position to satisfy that claim out of the family funds. The Twelve Tables gave him an option of either paying damages or of sur­rendering the delinquent into the power of the victim or of his family head (noxal surrender).

In cases of homicide there was no civil law action; rather a magistrate took the initiative on behalf of the community as a whole to prosecute the offender, thus avoiding the rise of family vendettas and blood-feuds.

At the time of the Twelve Tables a plaintiff who did not receive payment of what the iudex had awarded him within thirty days could put pressure on the defendant up to the point of death. The plaintiff could bring him forcibly before the magistrate (there was no need for a polite request this time) and if he neither paid up nor provided a surety of sub­stance, who would guarantee payment on his behalf, the magistrate would authorise the plaintiff to keep him in chains for sixty days. During this period he had to produce the defendant in the market place on three successive market days, to give publicity to his plight and provide an opportunity for his family and friends to deal with the matter. The ulti­mate threat, if this procedure failed, was the sale of the hapless debtor into slavery outside Rome and the division of the proceeds of sale among the unpaid creditors. If they preferred, the creditors could kill the debtor and cut him into pieces. The Twelve Tables carefully pro­vided that if a creditor cut more than his share, it should be without liability, thus anticipating Portia's argument against Shylock in Shakespeare's Merchant of Venice.

In later times the Romans themselves recognised the primitive fea­tures of the law of the Twelve Tables, but it has to be seen in the context of a community which had few resources in terms of state officers who could provide a structure of law enforcement. The legislation provided citizens with a minimum structure within which the parties were left to settle their differences for themselves. Inevitably a party who could call on the assistance of slaves, family and friends was in a stronger position than one with fewer resources at his disposal.

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