Roman Law & the Twelve Tables

 

          The Romans were one of the most legally minded people in history. The development of their law was Rome’s GREATEST and most enduring achievement. Roman law formed during the Republic, was adapted to serve the needs of the Empire. When the Empire declined, it was carried forward into the legal system of the Middle Ages, where it became the model for European and South American law codes until the 20c.

          The earliest law was that of religious customs. The Romans called them fas. The pontiffs, or priests, in their capacity as advisors to the kings, determined the fas. Disputes between individuals were arbitrated [decided] by the king who in the regal period was also a judge. The king’s judgments were called jus, and they were first codified in the Twelve Tables.

          The Twelve Tables were strict and harsh [draconic]. They were also limited. As the little city-state of Rome by the Tiber River grew, more detailed laws were needed to regulate a society that was growing more complex and more civilized. The Roman magistrates, particularly the praetors, were the source of this new law. The praetor’s duty was to decide cases by interpreting the Twelve Tables and by applying their regulations to the dispute in question. When the praetor had to judge a case where the law was not clear, or where it was not exactly suitable, he rendered an interpretation based on his opinion. This new ruling, if it worked, was then adopted by his successors. At the beginning of his term, each praetor issued an edict stating the principles he would use to guide him in administering the law. In this way, a body of law developed that could be changed to fit new needs, and yet was based on the customs and traditions inherited from the ancestors.

           The largest body of Roman law was the jus civile or common law. It applied to Romans only. After Roman rule was extended over the Mediterranean, disputes arose between Roman and foreigners. In Rome, a new official, the praetor for foreigners, was appointed to listen to disputes between citizens and foreigners. In the provinces, the governors had the job of settling disputes between Romans and provincials. The opinion of both the praetors for foreigners and the governors together produced a new set of rules called the law of nations, or jus gentium. In order to make fair rulings, the praetor for foreigners and governors carefully studied the laws and customs of the conquered territories. Often they found that foreign laws and customs were applicable to Roman needs, so the praetors gradually incorporated them into the civil law. In such a way did the excellent maritime regulations of Rhodes become part of the Roman code.

          As the law grew more complex over the centuries, schools arose to train lawyers in the technicalities of their profession. Two such schools had appeared by the reign of Augustus and they were later supplemented by several in the provinces. Lawyers advised the emperors, who became a new source of law by issuing edicts, while other jurists collected the written sources of law. In the reign of the Emperor Hadrian, these written sources were collected, edited and, by order of the emperor, issued into one body of law called the Perpetual Edict. It was binding in every Roman court. Some 400 years late, the Emperor Justinian issued the most famous law code in western antiquity, and it was through this code, the Corpus Juris Civilis or Body of Civil Law, that Roman law was passed on to us.

          Roman law was based on the concept of JUSTICE and the RIGHTS OF THE INDIVIDUAL. It is from the Romans that we inherited the belief that a man should not be accused anonymously, that he should not be penalized for what he thinks, that he should be considered innocent until he is proven guilty. Justice, as defined by the Romans, was the steady and abiding purpose to give every man that which is his own. Remarkably, Rome’s legal system developed in a pagan society in which slave labor was common, turned out to be adaptable to the Christian society of the Middle Ages, the capitalists of the 17c, and to us today.

 

The Twelve Tables:

          An important step in the political development of any people is the organization and publication of their laws in a way that makes it possible for all persons to know what the law is. About the middle of the 5c B.C.E. the Romans codified their laws and inscribed them on twelve bronze tables which were set up in the Roman Forum. These Twelve Tables were the basis of all later Roman law, and through it, of the legal system of much of the world today.

          Below are the most important excerpts from the Twelve Tables:

TABLE III:

1.   In the case of an admitted debt of awards made by a court, 30 days shall be
      allowed for payment.

2.   In default of payment, after these 30 days of grace have elapsed, the debtor
      may be arrested and brought before the magistrate.

3.   Unless the debtor discharge the debt, or someone come forward in court to
     guarantee payment, the creditor may take the debtor away with him and bind
     him
with thongs and fetters the weight of which shall be fifteen pounds, or
     less if the creditor wishes . . .

5.   In default of settlement of the claim, the debtor may be kept in bonds for 60
     days. In the course of this period he shall be brought before the judge on
     three successive market days, and the amount of the debt shall be publicly 
     declared.    After the third market day the debtor may be punished with death
     or
sold beyond the Tiber.

TABLE IV:

1.   Monstrous or deformed offspring may be put to death by the father.

2.  The father shall, during his who life, have absolute power over his children. He
     may imprison his son, or scourge him, or keep him working in the fields in
     fetters, or put him to death, even if the son held the highest offices of state . . .

TABLE V:

1.  All women shall be under the authority of a guardian.

2.  The provisions of the will of a paterfamilias [head of the household]
     concerning his property and the tutelage [support] of his family, shall have the
     force of law.

TABLE VI:

1.  The legal effect of every contract, and of every conveyance shall rest upon the
     declarations made in the transaction.

2.  Any one who refuses to stand by such contractual declarations shall pay a  
     penalty of
double damages.

TABLE VII: . . .

7. Holders of property along a road shall maintain the road to keep it passable;
    but if it be passable, anyone may drive his beast or cart across the land
    wherever he
 chooses.

TABLE VIII:

 1.  Whoever publishes a libel—that is today writes falsely imputed [intending]   
      crime or immorality to anyone—shall be beaten to death with clubs . . .

 3.  For breaking a bone of a freeman, the fine shall be 300 asses; of a slave, 
     150 asses ..

12. A person committing burglary in the night may be lawfully killed.

13. A thief in the daytime may not be killed unless he carried a weapon . . . .

23. Perjurers and false witnesses shall be hurled from the Tarpeian Rock . . . .

26. Seditious [conspiratorial, rebellious] gatherings in the city during the night are
      forbidden.


Roman Citizenship:

          In the time of the Republic, the rights of citizenship could be acquired by birth, by naturalization [by petitioning for citizenship of foreign-born], or for a slave, by being freed by his master. Children of a legal marriage enjoyed these rights. Before 445 B.C.E., a legal marriage could be entered into by patricians only, but in that year it was given to plebeians also. Foreigners could gain the rights of Roman citizenship only through the action of the Popular Assembly. The formal announcement of a slave’s freedom by his master made him a citizen. The slaves of a Latin acquired the rights of citizenship when he was adopted by a Roman citizen. [Latins were members of one of the tribes on the peninsula of Italy].

          Under the Roman Empire, the practices of the Republic continued and others were added. Those who received an honorable discharge after having served 25 years in the auxiliary force, or 26 years in the navy, became Roman citizens. Latins gained the same privilege when they were enrolled in the Roman legions, and magistrates in the towns enjoying the Latin rights were honored with Roman citizenship. Freedmen also, after serving a certain number of years as "sentinels’ gained full civic rights. The conditions on which citizenship was granted to individuals or particular communities cannot be so exactly stated. Personal favor, or political considerations, or a desire to reward those who had rendered a noteworthy service to the community were usually the deciding factors in these cases. The greatest addition to the number of citizens, however, came by way of freeing the slaves.

          All Roman citizens, except freedmen, had the full employment of the traditional rights of commerce, marriage, the right of appeal, the right to due process of law; the right to vote, and the right to hold office. The two principal obligations resting on Roman citizens were the payment of taxes and service in the army. Roman citizens in Italy paid no direct taxes. Those in the provinces were subject to two taxes. The exemption of Roman citizens in Italy was the peculiar privilege going with the Italic Rights. Military service was incumbent on [necessary for] every freeman but, since a sufficient number of soldiers were usually to be had by voluntary enlistment, it was rarely necessary to resort to a draft. In fact, after the time of the Flavian emperors, the Roman Legions were never recruited from Italy. The legions and the Praetorian Guard were made up exclusively of free-born Roman citizens and of Latins. Freedmen served in the navy.