The first secession was an incident in a campaign; and it is not surprising that the officers whom the Plebeians appointed to protect their persons against the patrician magistrates, bore the military name of Tribuni. The creation of the Tribunate gave the Plebs a political organization, and was the starting-point of that dualism which runs through the whole of the Roman constitution—a dualism expressed in the distinction between the Comitia of the People and the Concilium of the Plebs, between Lex and Plebiscitum, between Magistratus Populi and Magistratus Plebis, between the Imperium of the one and the Sacrosanctitas of the other. The tribunes, however, could offer only personal assistance to outraged individuals, and though they proved a potent channel for the petitions of the Plebs as a whole, they were a very ineffective means of protecting the private rights of individual members of this order. Effective protection was in any case impossible until a fuller light had been thrown on the question what the rights to be protected actually were. Hence the demand for the publication of the principles of the law on which the jurisdiction of the patrician magistrates was based.
§ 9.: Unification of the Law by means of the Twelve Tables.
The story of the creation of the Decemvirate and the formation of the Code of the Twelve Tables, which has come down to us in a highly picturesque and legendary shape, presents us with the picture, first of a prolonged agitation of ten years (462-452 b. c.) maintained by the tribunes of the Plebs, then of a commission sent to gain knowledge of Hellenic codes, next of the appointment of two successive boards of Decemvirs for the years 451, 450 b. c., and finally of the ratification of the Code by the Comitia Centuriata and of its publication, in its completed form, by the consuls of 448 b. c Ref. 034 The Greek influence on the Code Ref. 035, although slight, is undeniable, because it was unavoidable. It may not have been gathered, in the way affirmed by tradition, by the appointment of a commission to inspect the systems of law of different Hellenic states; but it was, at the least, an inevitable result of the prolonged influence of the civilization of Magna Graecia Ref. 036, to which Rome had been subject from the days of her infancy—an influence which successively moulded her army, her coinage, her commerce and her literature. Again no State, however self-centred, could dream of undertaking such an enterprise as a written system of law without glancing at similar work which had already been accomplished by neighbouring cities. But, in spite of the fact that some of its outline and a few of its ideas may have been borrowed from Greek sources, the Law of the Twelve Tables is thoroughly Roman both in expression and in matter. The form of expression is, it is true, not that of later Roman legislation—complicated, technical, obscure. Had it been so, the Twelve Tables could scarcely have survived. It was the form that was current in the verbal juristic maxims of this and a later period—brief, gnomic, rhythmic and imperative Ref. 037. As to the matter, that was conditioned by the task which the Decemvirs had to perform—a task which they accomplished with an astonishing degree of success. Their object was to make a common law for Roman society considered as a whole. It was no business of theirs to abolish patrician privileges or to remove the peculiarities of patrician ceremonial; but they had to find a system of Jus which would be equally valid for all Romans; and this they naturally found in the customary law of the mass of the people; that is, of the Plebs. They were forced to recognize a social disability of the Plebs, as exemplified in the absence of Conubium with Patricians Ref. 038; for to remove it would have been an alteration of the Constitution as well as an infringement of patrician rights. But how completely they ignored the existence of the Plebs as a separate political community is shown by the fact that the tribunes do not seem to have been mentioned in the law at all. The assumption probably was that the publication of the Code should render the Tribunate unnecessary; and this it might have done, had the patrician government lived up to its promises.
The law of the Twelve Tables, as the ‘body of the whole of Roman law’ (‘corpus omnis Romani juris’) and the ‘fountain of all public and private law’ (‘fons omnis publici privatique juris’)—designations both of which are applied to it by Livy Ref. 039—contained ordinances on all the three branches of Jus, civil. criminal and constitutional. In the matter of civil law, we find regulations as to marriage and family relations, inheritance, testamentary disposition, debt and usury. The marriage recognized was that known as the result of usus—a contract, that is, which was concluded by consent and strengthened by prescription Ref. 040. It was ordained that the threefold sale of a son by his father should issue in the freedom of the son Ref. 041: although whether the Twelve Tables made this form of emancipation the basis of adoption is uncertain. The manumission of slaves who had been left free by testament, on the condition of purchasing their freedom, was also facilitated Ref. 042. Recognition was given to testamentary disposition as performed ‘per aes et libram’ Ref. 043; while, in the matters of intestate inheritance and guardianship, the rights of the Agnati, common to Plebeians and Patricians, were regarded as prior to those of the Gentiles Ref. 044 The harsh law of debt, which was a result at once of freedom of contract and of the very severe view which ancient societies take of the defaulting debtor, was maintained; the Judicatus still became the bondsman of his creditor Ref. 045, but now (perhaps for the first time), all the stages of the process of execution were published to the world, the rights of the creditor were defined, the chances of escape open to the debtor were accurately described. Loans on interest were permitted; but the maximum rate of interest was fixed at ‘unciarium foenus’ Ref. 046 (probably ten per cent.); and the usurer who exceeded this rate was punished more severely than the ordinary thief; he was compelled to restore fourfold Ref. 047. With respect to Civil Procedure (the exclusive knowledge of which had been one of the greatest elements of strength in the patrician government) it is clear that the outlines of the process—such as the rules for the summons of parties and witnesses, and for the length of the trial Ref. 048—were described. But it is very questionable whether the Tables went so far as to specify the Forms of Action; the actual words and gestures, that is, which had to be employed in any given case. We find a tradition that these forms were not revealed until nearly 150 years later, and that they were first given to the world in 304 b. c. by a certain Cnaeus Flavius Ref. 049, a freedman’s son and the clerk of Appius Claudius, the censor of 312 b. c., who was apparently also pontiff. But the traditions connected with the publication at Rome, even of the simplest information about Procedure, are exceedingly obscure. On the one hand, we hear that this same Cnaeus Flavius published a Calendar which gave a record of Court Days (Dies Fasti) Ref. 050; on the other hand, it was believed that a Calendar of some kind had been already published by the Decemvirs Ref. 051. It is possible that the decemviral Calendar had become antiquated, or that it had not been restored or republished after the burning of Rome by the Gauls (390 b. c.) Ref. 052; but it is clear that the Romans of Cicero’s time had much vaguer ideas about the epoch at which the forms of Procedure were made accessible to the public, than they had about the date at which the principles of Substantive Law were given to the world.
The criminal law of the Twelve Tables reflects a more primitive stage of thought than its civil ordinances. But this is not surprising; for, throughout the whole of Roman History, the criminal law lags far behind the civil. The Tables recognize the principles of self-help and retaliation. A limb is to be given for a limb; but for minor assaults pecuniary compensation is allowed Ref. 053. We still find the idea of capital punishment taking the form of an expiation to an outraged deity; thus the man who destroyed standing corn by night was hanged as an offering to Ceres Ref. 054. The belief in witchcraft still survives; for death is the penalty for incantations Ref. 055. It is also the penalty on the judex who has taken bribes, and for treason (Perduellio) in the form of ‘rousing an enemy against the State or handing over a citizen to the enemy Ref. 056.’
But it is where criminal law touches questions of personal liberty, and is connected with constitutional law, that the legislation of the Twelve Tables is most advanced. The principle of the Appeal to the People (Provocatio) against the sentence of the magistrate was maintained Ref. 057; it was enacted that no law or sentence should be passed to the detriment of an individual
