The Ancient Library

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jlermodorus 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, p. 642, Casaub. ; Pompon, de Orig. Juris, Dig. 1. tit. 2. s. 2. § 4). This tradition wais con­firmed by the fact of a statue having been erected in the Comitium at Rome in memory of Hermo-dorus: 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 puUici privatique juris, Liv. iii. 34). The Jus Publicum underwent great changes in the course of j^ears, 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 necessariuin) \vhen a boy (de Leg. ii. 4, 2;3) ; 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 But this does not mean that the fundamental prin­ciples of the Twelve Tables were ever formally repealed, but that the Jus Honorarium grew up by the side of them and mitigated their rigour or supplied their defects.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legislation interfered with them, by the abolition of the Legis actiones ; but the Twelve Tables themselves were never repealed.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 Uni-versitatem 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. 3G. s. 6 ; 30, tit. 2. s. 25. § 9. 13 ; 4. tit. 16. s. 7 ; 2. tit. 3. s. 26 ; Savigny's System, &c. i. p. 383.) 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 Rep. 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 Ponrponius. [Jus aelia-num.] Antistius Labeo also wrote a comment on the Tables, which is mentioned several times by Gellius. (i. 12, vii. 15, xx. 1.) Gains also wrote a Comment on the Tables in six books (ad legem XIL tabularuni), twenty fragments of which are contained in the Digest, and collected by Hom-melius 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 enter-


tained 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 aifect 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. p. 313.) The two new Tables were confirmed in the same way, as we may safely conclude from the circumstances of the case. (Liv. it. 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, 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 hud mainly for their object the em-bodying 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. s. 4), 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 pas= sage, when he is speaking of the Actio finium re-gundorum (Dig. 10. tit. 1. s. 13), 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 is so, the prudence of applying to those states which had bodies of written law, if it were only as samples and pat"

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