Page:Encyclopædia Britannica, Ninth Edition, v. 20.djvu/704

Rh 680 ROMAN LAW [JUS CIVILE. with a slight change of personnel, but under the same presidency as before ; and in the course of a few months it had completed the supplemental matter, which wa; passed in due form, and displayed on two other tables, thus bringing the number up to twelve and giving the code its official name of Lex XII. Tabularum. Sources. There were provisions in them that were almost literal renderings from the legislation of Solon ; and others bore a remarkable corre- spondence to laws in observance in Greece, but there is no authority for saying they were directly borrowed. By far the greater pro- portion of them, however, were native and original, not that they amounted to a general formularization of the hitherto floating customary law, for, notwithstanding Livy's eulogium of them as the "fountain of the whole law, both private and public," it seems clear that many branches of it were dealt with in the Tables only incidentally, or with reference to some point of detail. The insti- tutions of the family, the fundamental rules of succession, the solemnities of such formal acts as mancipation, nexum, and testa- ments, the main features of the order of judicial procedure, and so forth, of all of these a general knowledge was presumed, and the decemvirs thought it unnecessary to define them. What they had to do was to make the law equal for all, to remove every chance of arbitrary dealing by distinct specification of penalties and precise declaration of the circumstances under which rights should be held to have arisen or been lost, and to make such amendments as were necessary to meet the complaints of the plebeians and prevent their oppression in the name of justice. Nothing of the customary law, therefore, or next to nothing, was introduced into the Tables that was already universally recognized, and not complained of as either unequal, indefinite, defective, or oppressive. Only one or two of the laws ascribed to the kings reappeared in them, and that in altered phraseology ; yet the omission of the rest did not mean their repeal or imply denial of their validity, for some of them were still in force in the empire, and are founded on by Justinian in his Digest. Neither were any of the laws of the republic anterior to the Tables embodied in them, although for long afterwards many a man had to submit to prosecution under them and to suffer the lenalties they imposed. In saying, therefore, that for the most part the provisions of the decem viral code were of native origin, all that is meant is that they were the work of the decemvirs them- selves, operating upon the hitherto unwritten law in the directions already indicated. Remains. The original Tables are said to have been destroyed when Rome was sacked and burned by the Gauls. But they were at once re- produced, and transcripts of them must have been abundant if, as Cicero says was still the case in his youth, the children were required to commit them to memory as an ordinary school task. This ren- ders all the more extraordinary the fact that the remains of them are so fragmentary and their genuineness in many cases so debatable. They were embodied in the Tripertita of Sextus ^Elius Pjetus in the year 557 ; they must have formed the basis of all the writings on the ./MS civile down to the time of Servius Sulpicius Rufus (who first took the praetor's edicts as a text) ; and they were the subjects of monographs by a number of authors of distinction, amongst them by 11. Antistius Labeo in the early years of the empire and by Gaius probably in the reign of Hadrian. Yet a couple of score or so are all that can be collected of their provisions in what profess to be the ipsissima verba of the Tables, though in a form in most cases more modern than what we encounter in other remains of archaic Latin. These are contained principally in the writings of Cicero, the Noctes Atticae of Aulus Gellius, and the treatise De verborum significatione of Festus, the last two dealing with them rather as matters of antiquarian curiosity than as rules of positive law. There are many allusions to particular provisions in the pages of Cicero, Varro, Gellius, and the elder Pliny, as well as in those of Gaius, Paul, Ulpian, and other ante-Justinianian jurists ; but these are not implicitly to be relied on, as we have evidence that they frequently represent the (sometimes divergent) glosses of the inter- preters rather than the actual provisions of the statute. Recon- struction has therefore been a work of difficulty, and the results far from satisfactory, that of the latest editor, Voigt, departing very considerably from the versions generally current during the last half century. 1 1 Dirkseu's Uebersicht der biskerigen Versuche zur Kritik u. Her- steUung d. ZwSlf-Tafel-Fragmtnte, Leipsic, 1824, supplies the basis of all the later work on the Tables anterior to that of Voigt. Schoell, in his Legis XII. Tab. reliquiae, Berlin, 1866, made a valuable con- view. His version has been adopted substantially by Bruns in his Fontes juris romani antiqui, and by Wordsworth in his Fragments and Specimens of Early Latin, Oxford, 1874, p. 253 sq. The latter, in a subsequent part of his volume (pp. 502-538), has added notes, historical, philological, and exegetical, which constitute a valuable commentary 'on the Tables as a whole. Voigt's two volumes, under the title of Oeschichte und System des Civil- und Criminal- Rechtes, wie In form the laws contained in the Tables were of remarkable Gener brevity, terseness, and pregnancy, with something of a rhythmical c hara< cadence that must have greatly facilitated their retention in the teristi memory. Here and there the rules they embodied were potestative ; but for the most part they were peremptory, running on broad lines, surmounting instead of removing diih'culties. Their application might cause hardship in individual instances, as when a man was held to the letter of what he had declared in a ncxum or mancipa- tion, even though he had done so under error or influenced by fraudulent misrepresentations ; the decemvirs admitted no excep- tions, preferring a hard-and-fast rule to any qualifications that might cause uncertainty. The system as a whole is one of jus as distinguished from fas. In the royal laws execration (sacratio capitis, sacer esto) was not an uncommon sanction; but in the Tables it occurs only once pure and simple, and that with reference to an offence that could be committed only by a patrician, material loss caused by a patron to his client (patronus, si clienti fraudem faxsit, sacer esto). In all other cases the idea that a crime was an offence against public order, for which the community was entitled in self- protection to inflict punishment on the criminal, is as pro- minent as the older one that it was a sin against the gods, to be expiated by dedication of the sinner to the divinity more especially outraged by his offence. Hanging and beheading, flogging to death, burning at the stake, throwing from the Tarpeian rock, such are the secular penalties that are met with in the Tables ; but often, though not invariably, the hanging and so forth is at the same time declared a tribute to some deity to whom the goods of the criminal are forfeited (consecratio bonorum). It is not unworthy of notice that traces remained in the Tables of the old system of self-help. The manus injectio of the third Table the execution done by a creditor against his debtor was essentially the same procedure as under the kings, but with the addition of some regulations intended to prevent its abuse. Against a thief taken in the act something of the same sort seems still to have been sanctioned ; while it was still lawful to kill him on the spot if the theft was nocturnal, or even when it was committed during the day ifhe used arms in resisting his apprehension. Accord- ing to Cicero there was a provision in these words "si telum inanu fugit magis qnam jecit, arietem subicito"; this is just a re-enact- ment in illustrative language of the law attributed to Numa, that for homicide by misadventure " if the weapon have sped from the hand rather than been aimed" a ram was to be tendered as a peace-offering to the kinsmen of him who had been slain. The original purpose must have been to stay the blood revenge, and it may even have been so with Numa ; but in the Tables it can only have been intended to stay the prosecution which it was incumbent on the kinsmen of a murdered man to institute. So with talionic penalties: "si membrum rupit, ni cum eo pacit, talio esto" such, according to Gellius, were the words of one of the laws of the Tables, and they undoubtedly contain a reminiscence of a time when talion was recognized, "an eye for an eye, a tooth for a tooth "; but in the mouths of the decemvirs they were nothing more than a clumsy mode of enabling an injured man to exact the greatest money recompense he could, and to have it measured according to the position and fortune of the individual who had done him injury. The structure of the provisions of the Tables was not such as to Intel enable the plain citizen to apply them to concrete cases, or know preb how to claim the benefit of them in the tribunals, without some of th sort of professional advice. Ppmponius states that no sooner was Tabl the decem viral legislation published than the necessity was felt for its interpretation, and for the preparation by skilled hands of styles of actions by which its provisions might be made effectual. Both of these duties fell to the pontiffs as the only persons who, in the state of civilization of the period, were well qualified to give the assistance required ; and Pomponius adds that the college annually appointed one of its members to be the adviser of private parties and of tlie judices in those matters. The interpretatio, commenced by the pontiffs and continued by the jurists during the republic, which, Pomponius says, was regarded as part of the jus civile, was not confined to explanation of the words of the statute, but was in some cases their expansion, in others their limitation, and in many the deduction of new doctrines from the actual jus scrip- turn, and their development and exposition. An event that did much to diminish the influence of the pontiff's in connexion with it was the divulgement in the year 450 by Cn. Flavins, secretary )f Appius Claudius Csecus, and probably at his instigation, of a brmulary of actions and a calendar of lawful and unlawful days, which got the name of Jus Flavianum. The practice adopted in the beginning of the 6th century by Tiberius Coruncanius, the Processes, der XII. Tafeln, nebst deren Fragmenten, Leipsic, 1883, iontain an exposition of the whole of the earlier jus civile, whether imbodied in the Tables or not. The history of them occupies the first hundred pages or thereby of the first volume ; his reconstruction )f fragments and allusions a good deal fuller than any earlier one, ,nd supported by an imposing array of authorities is in the same olume, pp. 693-737.
 * ribution to the literature of the subject from a philological point of