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and ninety-eight centuries; and when the people assembled by centuries in their comitia centuriata, (as they generally did thereafter when called by the consuls or senate,) they voted by centuries; and the first class, containing a majority of all the centuries, if unanimous, dictated the laws. This arrangement threw the powers of government into the hands of the patrician order, and of men of property."
After the etablishment of the republic, all the higher magistrates were elected in the comitia centuriata, which were convoked by the consuls, and they presided in them, counted the votes, and declared the result; and their resolutions were leges of the highest authority, and binding on the whole community. After the institution of tribunes, they convoked the assemblies of the people by tribes, and there all the people met on an equality, and voted per capita, and the comitia tributa were the same in effect and substance as the comitia curiata. They elected the subordinate magistrates, and enacted plebiscita, binding on the plebeians alone, until the Hortensian law made the decrees of the people in their comitia tributa binding equally on patricians and plebeians.
As the whole administration of justice, civil and criminal, had been transferred from the kings to the consuls, it soon became necessary to control the exercise of this formidable power. This was done by the Valerian law, proposed by the consul Valerius, and granting to persons accused of crimes a right of appeal from the judgment of the consuls to the people. It then became an established principle in the Roman constitution, that no capital punishment could be inflicted upon a Roman citizen without the vote of the people, though the consuls retained the power of inflicting very severe imprisonment. The Valerian law became an imperfect palladium of civil liberty, and was in some respects analogous to the habeus corpus act in the English law ; but the appointment of a dictator was a suspension of the law.
a Eosque ila disparavit, says Cicero, (that is, he so distributed the citizens in classes,) ut suffragia non in multitudinis sed in locupletium potestate essent : curavitque quod semper in republica tenendum est, ne plurimum valeant plurimi. De Repub. lib. 2. sec. 22. Cicero seems to have been aware of the danger to property from universal and equal suffrage-Ila nec prohibebatur quisquam jure suffragii : et is valebat in suffragio plurimum, cujus plurimum intererat esse in optimo Statu civitatem.
6 The comitia tributa were free from the restraints placed upon the comitia curiala, inasmuch as they could be held without a previous senalus consultum, and were not subject to the check of the Auspices, which were under the management of the patricians.
c Dig. 1. 2. 2.8. Gravina de orlu et prog. jur. civ. sec. 28.
As the royal laws collected by Papirius had ceased to operate, except indirectly by the force of usage ; and as the Romans, for twenty years after the expulsion of Tarquin, had been governed without any known public rules, they began to suffer the evils of uncertain and ansteady laws. The call for written law was a long time resisted on the part of the magistrates and senate; but it was at last complied with, and a commission of three persons, by the joint consent of the scnate and tribunes, was instituted to form a system of law. This commission gave birth to the twelve tables, which form a distinguished era in the history of the Roman law, and constitute the commencement of what has been called the middle period of the Roman jurisprudence.
a Dig. 1. 2. 2. 16.
6 Incerto magis jure et consuetudine quam per latam legem. Dig. 1. 2. 3.
c The Enchiridion of Pomponius says, that the deputies were commissioned to seek laws from the Grecian cities ; (Dig. 1. 2. 2. 4.) and the original historians, Livy (b. 3. ch. 31, 32.) and Dionysius of Halicarnassus, (Antiq. Rom. b. 10.) say, that the deputation was sent to Athens to learn the laws and institutions of Greece. Gravina, (De orlu et prog. jur. civ. sec. 32. ; and De jure nat. gent. et xu tabularum, sec. 23..) Heineccius, (Hist. jur. civ. sec. 24. and Antig. Rom. Jur. Procem. sec. 3.) Voet, (Com. ad Pand. 1. 2. 1.) Dr. Taylor, (Hist. of the Roman Law, p. 8.) and the generality of modem wri.
The twelve tables were ratified by the consent equally of The twelve the patricians and plebeians, and they consisted partly of entire laws transcribed from the institutions of other nations, partly of such as were altered and accommodated to the manners of the Romans, partly of new provisions, and partly of the laws and usages of their ancient kings. They
ters on Roman history and law, assume it to be a conceded fact, on the authority of Livy, Dionysius, Cicero, Pliny, and others, that the embassy went to Athens. Tacitus (Ann. 3. 27.) observes generally, accitis quc usquam egregia, and the deputies must have visited at least the Grecian cities in lower Italy. M. Bonamy, a learned French writer, has, however, written three dissertations upon the origin of the laws of the twelve tables, and he considers the story of a Roman deputation to Athens as fabulous. He endeavours to maintain, by an able discussion concerning the early history of the Roman constitution and laws, and by a critical, and even profound examination of the laws of the twelve tables, that they were not borrowed from the jurisprudence of Athens, but that they were essentially a restoration of the ancient Roman laws under Romulus, Numa, and Servius Tullius, and which had gone into disuse under the consuls. He admits, however, that the plan of the mixed monarchy, and many of the Roman usages under the kings, had their origin in the usages of Athens and Sparta. (Mem. de L'Acad. des Inscriptions et Belles Lettres, tome 18. edit. Amst. 1743.) It is worthy of observation, that this sceptical as well as learned writer, does not hesitate to assume, on the authority of Dionysius of Halicarnassus, the authenticity of the history of the Roman kings. Gibbon (Hist. vol. 8. p. 8.) is also decidedly of opinion, that the deputation never visited Athens, and he gives plausible reasons for his belief; and though Cicero says, (De Legg. b. 2. ch. 23. and 25.) that the regulations in the twelve tables concerning funerals, were translated from the laws of Solon, and the decemviri had adopted almost the very words of Solon, yet, M. Bonamy very ingeniously relies upon Cicero, as one of the authorities in support of his hypothesis.
a Gravina de Ortu et Prog. J. C. sec. 32. Fragments of the twelve tables were collected, and distributed with great accuracy under their original and proper divisions, by J. Gothofred, in a work eptilled Quutuor Fontes Juris Civilis, printed in 1653 ; and his collection, Heineccius says, (Antiq. Jur. Rom. Proæm. sec. 5.) is to be preferred to that of all others. His collection, distribution, and interpretation of the tables, has been followed by Gravina, who has inserted VOL. I.
were written in a style exceedingly brief, elliptical, and obscure ; and they show the great simplicity of Roman manners, and are evidence of a people under a rugged po
the originals, with a paraphrase, at the conclusion of his treatise de Jure Naturali Gentium et XII. Tabularum. He has also given a copious commentary upon that collection. They were redigested and inserted at length in the voluminous L'Histoire Romaine of the Jesuits Cotrou and Rouille, and copied from them into Hooke's Roman History, b. 2. ch. 27. A summary of this curious and celebrated code, which had such permanent influence on Roman jurisprudence, and is so constantly alluded to by Roman jurists, will not be unacceptable to the American student.
The 1st table related to law suits, and regulated the right of citation of the defendant before the prætor. He was allowed to give bail for his appearance, and if old or infirm, the plaintiff was to provide him with a jumentum, or open carriage. (But even this provision was reprobated in after ages for its severity. A. Gell. Noct. Att. 20.1.) The prætor was to decide the cause promptly, by daylight ; and if the accuser wanted witnesses, he was allowed to go before his adversary's house, and to repeat his demand for three days together, by loud outcry.
The 2 table related to robbery, theft, trespass, and breaches of trust. It allowed the right to kill a robber by night. It inflicted corporal punishment and slavery, on conviction of robbery, unless the parties settled with each other. Slaves, guilty of robbery, were to be thrown down the Tarpeian Rock. Thefts and trespasses were punished by pecuniary mulct. Trespassers by night on harvests or cornfields were punished capitally, as victims to Ceres. No term of prescription gave a right to stolen goods, nor any right of a foreigner to the goods of a Roman citizen. Breaches of trust were punished with the forfeiture of double the value of the deposit.
The 3d table related to loans, and the right of creditors over their debtors. It prohibited more than one per cent. interest for money. (The weight of authority would seem rather to be in favour of one per cent. a year, though Montesquieu insists that interest at the time of the 12 tables was twelve per cent, a year, and that the law reducing it to one per cent. was passed many years afterwards. Esprit des Loix, liv. 22. ch. 22. In this construction he is supported by Livy, b.7.ch. 27. But Tacitus says that the twelve tables restrained usury to one per cent. a year. Tacit. Ann. lib. 6. 16. And this is the construction given to the words Si qui unciurio fienore amplius fænerassit, lice, and very considerably advanced in civilization. They contain a great deal of wisdoin and good sense, intermixed with folly, injustice, and cruelty. They were engrossed
by the generality of commentators. Pothier's Pandectæ Justinianeæ, tom. 1. Frag. XII Tab. Gibbon, vol. 8. 86. note. It is, however, a doubtful question whether the twelve tables allowed only one or twelve per cent. a year. Professor Ilugo, of the University of Gottingen, in bis History of the Roman Law, sec. 126. inclines to the latter opinion.) The debtor was to have thirty days after judgment to pay his debt; and if he did not then pay or give security, his creditor had a right to seize him, load him with chains of a certain weight, and maintain him on a prescribed scanty allowance; and if he failed to pay after being sixty days in prison, lie was to be brought before the people on three market days, and the debt proclaimed; and if there were several creditors, he might at their election be sold beyond the Tiber, or his body cut into pieces. (Gibbon, Hist. vol. 8. 92. takes this law in the literal sense, and so does Gravina, de Jure Nat. Gent, et XII. Tab. sec. 72. ; and he adopts the argument of Sextus Cæcilius in A. Gell. Noct. Att. 20. 1., who maintained, that the law was only cruel in appearance, and that he had never read or heard of its being executed, for its extreme severity prevented the creation of debt. Mon. tesquieu well observes, that, upon such reasoning, the most cruel laws would be best; and he thinks the better construction to be, that the law only related to the division of the debtor's property. Esprit des Loix, b. 29. ch. 2. Bynkershoeck, Obsero. Jur. Rom. lib. 1. c. 1., and Heineccius, Antiq. Rom. lib. 3. tit. 30. sec. 4. are of the same opinion. Pothier, in the introduction to his Pandectæ Justinianec, has inserted the fragments of the twelve tables, as they were restored by Gothofredus, and he has illustrated them by brief notes and commentaries. He is for a literal construction of this part of the twelve tables, and he says this was the construction of all the writers of antiquity who make mention of them, such as Quintilian, Tertullian, and A. Gellius. Professor Hugo is also obliged to renounce the metaphorical, and follow, with the ancients, the literal interpretation of the twelve tables on this subject. Histoire du Droit Romain, par G. Hugo, traduite de L'Allemand par Jourdan, tome 1. 233. sec. 149. Gravina, de J. Nat. Gent. sec. 21, says, there are grounds to conclude that the leges regiæ, with the exception of such as related to regal domination, were incorporated into the three first of these twelve tables.)