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p688 Lex Duodecim Tabularum

Article by George Long, M.A., Fellow of Trinity College
on pp688‑690 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

LEX DUODECIM TABULARUM. In the year B.C. 462 the Tribune C. Terentilius Arsa proposed a rogation that five men should be appointed for the purpose of preparing a set of laws to limit the Imperium of the consuls (Liv. III.9). The Patricians opposed the measure, but it was brought forward by the tribunes in the following year with some modifications: the new rogation proposed that ten men should be appointed (legum latores) from the plebs and the patricii, who were to make laws for the advantage of both classes, and for the "equalizing of liberty," a phrase the import of which can only be understood by reference to the disputes between the two classes (Liv. II.10; Dionys. X.3). According to Dionysius (X.52, 54) in the year B.C. 454 the Senate assented to a Plebiscitum, pursuant to which commissioners were to be sent to Athens and the Greek cities generally, in order to make themselves acquired with their laws. Three commissioners were appointed for the purpose. On the return of the commissioners, B.C. 452, it was agreed that persons should be appointed to draw up the code of laws (decemviri Legibus scribundis), but they were to be chosen only from the Patricians, with a provision that the rights of the Plebeians should be respected by the decemviri in drawing up the laws (Liv. III.32, &c.). In the following year (B.C. 451) the Decemviri were appointed in the comitia centuriata, and during the time of their office no other magistrates were chosen. The body consisted of ten Patricians, including the three commissioners who had been sent abroad: Appius Claudius, Consul designatus, was at the head of the body. The Ten took the administration of affairs in turn, and the Insignia of office were only used by him who for the time being directed the administration (Liv. III.33). Ten Tables of Laws were prepared during the year, and after being approved by the Senate were confirmed by the Comitia Centuriata. As it was considered that some further Laws were wanted, Decemviri were again elected B.C. 450, consisting of Appius Claudius and his friends; but the second body of Decemviri comprised three plebeians, according to Dionysius (X.58), but Livy (IV.3) speaks only of Patricians. Two more Tables were added by these Decemviri, which Cicero (de Repub. II.37) calls "Duae tabulae iniquarum legum." The provision which allowed no connubium between the Patres and the Plebs is referred to the Eleventh Table (Dirksen, Uebersicht, &c., p740). The whole Twelve Tables were first published in the consulship of L. Valerius and M. Horatius after the downfall of the DecemviriB.C. 449 (Liv. III.54, 57). This the first attempt to make a code remained also the only attempt for near one thousand years, until the legislation of Justinian. The Twelve Tables are mentioned by the Roman writers under a great variety of names: Leges Decemvirales, Lex Decemviralis, Leges XII, Lex XII tabularum or Duodecim, and sometimes they are referred to under the names of Leges and Lex simply, as being pre-eminently The Law.

The Laws were cut on bronze tablets and put up in a public place (Liv. III.57; Diod. XII.26. Pomponius (Dig. 1 tit. 2 s2 §4) states that the first Ten Tables were on ivory (tabulae eboreae): a note of Zimmern (Gesch. des Röm. Privatrechts, vol. I p101) contains references to various authorities which treat of this disputed matter. After the burning of the city by the Gauls (Liv. VI.1), an order was made to collect the old foedera and leges; for, as it has been well remarked, Livy's words, which are supposed to imply that the Twelve Tables were lost, and restored or reconstructed, may just as well mean that they were not lost. Indeed, the juster interpretation of the passage is, that they were looked for and were found. However this may be, neither the Romans of the age of Cicero nor at any time after had any doubt as to the genuineness of the collection which then existed.

The legislation of the Twelve Tables has been a fruitful matter of speculation and inquiry to modern historians and jurists, who have often handled the subject in the most uncritical manner and with utter disregard to the evidence. As to the mission to the Greek cities, the fact rests on as much and as good evidence as most other facts of the same age, and there is nothing in it improbable, though we do not know what the commissioners brought back with them. It is further said that p689Hermodorus an Ephesian exile aided the Decemviri in drawing up the Twelve Tables, though his assistance would probably be confined to the interpretation of Greek laws, as it has been suggested (Strabo, p642, Casaub.; Pompon. de Orig. Juris, Dig. 1 tit. 2 s2 § 4). This tradition was confirmed by the fact of a statue having been erected in memory of Hermodorus: but it did not exist in the time of Pliny (Plin. H. N. XXXIV.5).

The Twelve Tables contained matters relating both to the Jus Publicum and the Jus Privatum (fons publici privatique juris, Liv. III.34). The Jus Publicum underwent great changes in the course of years, but the Jus Privatum of the Twelve Tables continued to be the fundamental law of the Roman State. Cicero speaks of learning the laws of the Twelve Tables (ut carmen necessarium) when a boy (de Leg. II.4, 23); but he adds that this practice had fallen into disuse when he wrote, the Edict having then become of more importance. But this does not mean that the fundamental principles of the Twelve Tables were ever formally repealed, but that the Jus Honorarium grew up by the side of them and mitigated their rigour or supplied their defects. There is indeed an instance in which positive legislation interfered with them, by the abolition of the Legis actiones; but the Twelve Tables themselves were never repealed. They became the foundation of the Jus Civile; and they continued to exist together with the unwritten Law. The Law which grew up in the course of time existed in harmony with the Twelve Tables, and was a development of their fundamental principles. It is a remarkable circumstance in the history of Roman Law and a proof of the practical skill of the Romans, that long before Jurisprudence was a science, the doctrine of Successio per Universitatem was so completely and accurately stated in the Law of the Twelve Tables, that the Jurists of the best period could find nothing to improve (Cod. 3 tit. 36 s6; 10 tit. 2 s25 § 9, 13; 4 tit. 16 s7; 2 tit. 3 s26; Savigny's System, &c. I. p383). The Roman writers speak in high terms of the precision of the enactments contained in the Twelve Tables, and of the propriety of the language in which they were expressed (Cic. de Re. IV.8; Diodor. XII.26). That many of their provisions should have become obscure in the course of time, owing to the change which language undergoes, is nothing surprising; nor can we wonder if the strictness of the old law should often have seemed unnecessarily harsh in a later age (Gell. XVI.10). So far as we can form a judgment by the few fragments which remain, the enactments were expressed with great brevity and archaic simplicity.

Sextus Aelius Paetus Catus in his Tripartita commented on the Twelve Tables, and the work existed in the time of Pomponius [Jus Aelianum.] Antistius Labeo also wrote a commentary on the Tables, which is mentioned several times by Gellius (I.12, VI.15,º XX.1). Gaius also wrote a Comment on the Tables in six books (ad legem XII tabularum), twenty fragments of which are contained in the Digest, and collected by Hommelius in his Palingenesia (I.117). There were also other commentaries or explanations of the Laws of the Twelve Tables (Cic. de Leg. II.23, 25).

The notion which has sometimes been entertained that the Twelve Tables contained a body of rules of law entirely new, is not supported by any evidence, and is inconsistent with all that we know of them and of Roman institutions. It is more reasonable to suppose that they fixed in a written form a large body of customary law, which would be a benefit to the Plebeians, inasmuch as the Patricians were the expounders of the law; and it would be to the Patricians a better security for their privileges. One of the two last tables contained a provision which allowed no Connubium between Patricians and Plebeians; but it is uncertain whether this was a new rule of law, or a confirmation of an old rule. The latter seems the more probable supposition; but in either case it is clear that it was not one of the objects of this legislation to put the two classes on the same footing. Modern writers often speak inaccurately of the Decemviral legislation, and of the Decemviri as enacting Laws, as if the Decemviri had exercised sovereign power; but they did not even affect to legislate absolutely, for the Ten Tables were confirmed by the Comitia Centuriata, or the sovereign people, or, as Niebuhr expresses it, "when the Decemviri had satisfied every objection they deemed reasonable, and their work was approved by the Senate, they brought it before the Centuries, whose assent was ratified by the Curies, under the presidency of the colleges of priests and the sanction of happy auspices." (Vol. II p313.) The two new Tables were confirmed in the same way, as we may safely conclude from the circumstances of the case (Liv. II.37, 57). It makes no difference that the sovereign people did not vote on the several laws included in the Tables; such a mode of legislation would have been impracticable, and, as Niebuhr observes, was not conformable to the usage of ancient Commonwealths. How far the Decemviri really were able, by intrigue or otherwise, to carry such particular measures as they wished to insert in the Tables, is a different question: but in form their so‑called legislation was confirmed, as a whole, as a whole, by the sovereign, that is, the Roman people, and consequently the Decemviri are improperly called Legislators; they might be called code-makers.

It is consistent with the assumption that the Twelve Tables had mainly for their object the embodying of the customary law in writing, to admit that some provisions were also introduced from the laws of other states. Indeed, where the Roman law was imperfect, the readiest mode of supplying the defects would be by adopting the rules of law that had been approved by experience among other people, and were capable of being easily adapted to the Roman system. Gaius, in his Commentary on the Twelve Tables, where he is speaking of Collegia (Dig. 47 tit. 22 s4), says, that the members of Collegia may make what terms they please among themselves, if they thereby violate no Publica Lex; and he adds, this Lex seems to be taken from one of Solon's, which he quotes. And in another passage, when he is speaking of the Actio finium regundorum (Dig. 10 tit. 1 s13), he refers to a law of Solon as the source of certain rules as to boundaries (see also Cicero, de Leg. II.25). It is a possible case that the Romans had no written law before the enactment of the Twelve Tables, except a few Leges, and if this was so, the prudence of applying to those states which had bodies of written law, if it were only as samples and patterns p690of the form of written law, is obvious. However, what was actually received of foreign law could not be more than a few rules of an arbitrary nature, which in no way depend on the peculiar system of law of any country. The Jus Privatum was hardly and indeed could hardly be affected by any rules of foreign law; and as to resemblance between Roman Law and the Law of any Greek states, that is no ground for a conclusion that the Roman rules are derived from the Greek.

The fragments of the Twelve Tables have often been collected, but the most complete essay on their history, and on the critical labours of scholars and jurists, is by Dirksen, Uebersicht der bisherigen Versuche zur Kritik und Herstellung des Textes der Zwölf-Tafel-Fragmente, Leipzig, 1824. Zimmern's Geschichte, &c. contains references to all the authorities on this subject; and Puchta's Institutionen, &c. I. § 54, 55, 73, 78, some valuable remarks on them.

If you are looking for the actual text of the Twelve Tables,
the extant fragments are here.


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