Twelve Tables

The Law of the XII Tables (Lex duodecim tabularum or Duodecim tabularum leges) was a legal text that contained norms to regulate the coexistence of the Roman people. It also received the name of Decemviral Law. Due to its content, it is said that it belongs more to private law than to public law. It was the first code of antiquity that contained regulations on censorship (death penalty for satirical poems). The law was first published on twelve wooden tablets and later on twelve bronze plates that were displayed in the Forum. Because there is no evidence of their existence, some authors have come to suggest that they did not exist.

However, its disappearance can be explained by the looting that Rome suffered around the year 390 BC. C. by the Gauls. It is believed that they were destroyed and, for some reason, were not subsequently reproduced. This theory seems to be supported by the abundant references that ancient authors make of them. The historian Tito Livio said of them that they were the source of all Roman law, both public and private. For his part, the orator and lawyer Cicero stated that children learned its content by heart.

As these laws were publicly exposed, they were free (at least theoretically) from the misinterpretations of their custodians, since it seems that previously the few who knew the laws interpreted them by manipulating them in their favor. Already in imperial times, these laws, designed for everyone —the citizens—, were the legal bases of the Roman Empire, since everyone was subject to them in any corner of the Empire.

Background

During the first three centuries of Rome, private law had its sole source in current uses among the founders of the city, which had passed, by tradition, from the primitive populations to the new nation. These customs are known as mores majorum("customs of the elders", or "customs of the ancestors"). It can be said that in this period, private law only has one true source, custom. The lack of precision and clarification of its rules favored the discretion of the patrician magistrates in charge of the administration of justice, and not only in private law, but also in the repression of crimes and misdemeanors. The tribunes, who were the interpreters of the claims of the plebs, requested the drafting of a law that would apply equally to all citizens. After ten years of resistance, the patricians gave in: the Senate and the tribunes agreed to draft a law applicable to both orders. This law was that of the XII Tables.

Elaboration

The elaboration of the Law of the XII Tables , took place in the middle of the  v century  a. C., thanks to the insistence of a tribune of the plebs called Terentilio Arsa from 464 a. C. (see Secessio plebis), and it was not until 454 a. C. when the republican Senate decided to send a commission of three magistrates to Athens to hear the legislation of the Greek ruler Solon, inspired by the principle of equality before the law.

Three years later, upon the return of this commission, the magistracies were suspended and the Senate decided to set up another commission made up of ten patricians that would be called Decenvirate , presided over by a consul for the elaboration of the law. This commission governed and worked on the writing for a year for the first ten tablets, completed in 451 BC. C. However, as the work of drafting all existing law had not been completed, a second decemvirate was formed that ruled in a tyrannical manner and was deposed by an uprising, the consulate being reinstated. They only wrote two tables.

Finally, so that it would not be said that the patricians used the ignorance of the plebs about the text of the tables to their advantage, since this had been one of the reasons why they insisted on the writing of the Tables, they were placed in the Roman forum for all to see, by order of the first two consuls after the decemvirates: Lucius Valerius and Marcus Horace .

Influences

In them, a series of customs that had the character of law are collected in writing, in a more or less orderly manner, this is called customary law and even some of the laws of the regnum were drafted by the legislative decemvirates ( decenviri legibus scribundis ) .​ The external influences that they may have had, would be those that came from the study of Greek laws by the commission that went to study them, in order to better write their own.

Contents

Although the exact content of the XII Tables is not known with certainty, thanks to the references to them in Roman historiography, it can be said that they would contain the following:

Tables I, II, III

They would contain civil procedural law .

The procedure they regulate is that of the actions of the law, judicial actions that under the Law of the XII Tables could be exercised by Roman citizens for the defense of their rights. The process was characterized by its excessive formalism, the parties had to pronounce certain words, sometimes very complicated, obligatorily if they wanted to have a chance of winning the litigation or had to perform rites. Behind this formalism was religious feeling.

The actions of the law, namely, were initially four: two declarative and two executive. The first: action by bet ( sacramentum ) and action by request of a judge or an arbitrator ( postulatio iudicis ). These were characterized by contemplating the same process, initiated before the pontiffs (who indicated the solemn formula) later before a magistrate (who was in charge of mediating the dispute between the parties helping to determine a private judge) and finally before a judge ( who receives the solemn formula and the prepared proofs). The remaining two or executive ones: action by bodily apprehension ( manus iniectio ) and the action of taking pledge or embargo ( pignoris capio). Both kept lags belonging to private revenge, since in them force or violence could be applied to recover what was due.

The intervention of public power was scarce. The praetor was the magistrate who presided over the process, channeling it and settling the controversy, but the judge who passed sentence was a citizen chosen by mutual agreement of the parties.

The execution of a debtor's conviction was regulated in great detail. Although it is morbid for being personal and cruel, it is the result of the consensus that the elaboration of the XII Tables had by patricians and plebeians; as the debtors used to be commoners, this regulation constituted a principle of legal certainty, the commoner could know what awaited him in the event of being insolvent.

Tables IV, V

They would contain family and inheritance law .

They regulate norms related to the guardianship of minors not subject to parental authority due to the death of their father. They also contained norms related to curatorship in order to manage the assets of those prodigal, mentally ill or disabled people. There were also rules to protect single women once the father died, they would be taken care of by close relatives.

In these Tables, for the first time, the absolute power of the paterfamilias over his family is legally limited. In relation to the woman, the divorce was established in favor of the woman, the woman divorced herself by being absent for three days from the conjugal home for that purpose. In relation to children, the paterfamilias lost parental authority over his children if he commercially exploited them three times, since the son was emancipated.

In matters of succession, preference is given to testate succession over intestate succession. If the succession was intestate, the law established the Sui heirs as first heirs, in their own right, that is, the sons and the wife as one more daughter. If there were no Sui heirs, the closest agnate to the deceased inherited; those relatives who were subject with the deceased to the power of a common ancestor. If there were no agnate heirs either, the gentiles inherited, those people with the same name or last name that derived from the same gens as the deceased.Uti Legassit Suae Rei Ita Ius EstoAs it has arranged in its own particular way, the right to be.Gaius, Inst. II, 224

Tables VI, VII

They would contain law of obligations (legal business of the time) and real rights .

They regulate the legal business of the nexum , in which the debtor assumes the obligation to make the provision to the creditor, in case of non-compliance it would be subject to the power of the creditor without the need for a court ruling. The nexum was abrogated by the Lex Poeteliae-Papiliae .

They also regulate the stipulatio or sponsi , in which the debtor assumes the obligation to make the provision to the creditor and in the event of non-compliance, the creditor could take legal action to obtain a judgment after the trial.

In the field of real rights, the mancipatio and the en iure cessio would be regulated , legal transactions that made possible the transfer of the property of the res mancipi (means of production; capital, work, farms, buildings, slaves, draft animals and load).

These businesses were surrounded by solemnities. The mere contract of sale was not enough to transfer ownership of important things, so one of these two deals had to be carried out for ownership to be fully transferred. The mancipatio consisted of carrying out the legal business before 6 witnesses, male Roman citizens and of legal age. The en iure cessio was carried out before the praetor, who acted as the current notary public, attesting to the business.

The usucapio consisted of the acquisition of property in good faith over time and with just title (two years for real estate; one year for movable property).

Table VII would also contain rules related to neighborhood relations between adjoining farms.

It contains provisions referring to the following issues: plots of land and communication routes; minimum width of the tracks on straight lines and curves; limits between farms (lots); obligation to cut the branches of the adjoining estate; possibility of picking fruits, etc....If someone were to fix a hedge while digging next to someone else's farm, do not cross the boundary; if a fence leaves a foot; if a building two feet; if you dig a ditch or a hole leave both space and depth; if a well, a step; plant the olive tree or the fig tree nine feet from what is foreign; the other trees five feet...Digest 10,1,13

Tables VIII, IX

They would contain the criminal law of the time.

They are characterized by the fact that they contain both very archaic standards and modern standards, reflecting a period of transition.

Implicit in these Tables is the distinction between two areas of criminal law, public law and private law.... Our laws of the Twelve Tables, so sparing in imposing capital punishment, punished with that penalty the author and the reciter of verses who brought infamy on another. This provision was wise, because we must submit our lives to the legitimate rulings of judges and magistrates, but not to the ingenuity of poets, and we should not hear charges except where the contestation is lawful and we can defend ourselves judicially.Cicero. 

From Republic IV, 10, 12.

The public would deal with the crimina or criminal offenses that were attacks against the Roman people, such as perduelio or betrayal of the Roman people and the most serious offenses such as parricidium . The criminals were prosecuted ex officio and punished with capital punishment or exile.

The private one would deal with the delicta , private illicit, of less seriousness and of persecution at the request of the victim or their relatives. These illicit offenses were punished with a pecuniary penalty in favor of the victim, always depending on the seriousness of the offense. Delicta would be crimes of damage to the property of third parties, the furtum and the iniuria or crime of injuries.

Table IX establishes the prohibition of granting privileges so that all citizens are equal before the law.

Table X

Sacred Law

It collects a series of rules that refer to the order of the internal life of the city. The incineration and burial of corpses in the city is prohibited, thus trying to avoid fires, or that the presence of a corpse threatens public health. Excessive luxury at funerals was also prohibited.

Tables XI, XII

They are the Tabulae Iniquae (Tables of the unjust)

What this "mixture box" contains, among other things, is the prohibition of connubium (marriage from the legal point of view, between patricians and plebeians). Later with the Lex Canuleia this prohibition is repealed. The consuls were magistrates. These two tables did not get to present themselves to the elections. Tables XI and XII cannot be grouped under the same right. Table XI is related to criminal law, with special emphasis on criminal matters, and table XII with private law.