tables.

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 quæ 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 entitled Quatuor Fontes Juris Civilis, printed in 1653; and his collection, Heineccius says, (Antiq. Jur. Rom. Proam. 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.

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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 outery.

The 2d 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 unciario fœnore amplius fœnerassit,

lice, and very considerably advanced in civilization. They contain a great deal of wisdom 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 Hugo, of the University of Gottingen, in his 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, he 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, Observ. 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 Pandecta Justi nianeæ, 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 regia, with the exception of such as related to regal domination, were incorporated into the three first of these twelve tables.)

on tables of wood, or brass, or ivory, and were destroyed when the city was burnt by the Gauls. They were afterwards collected, and existed entire in the third century;

The 4th table related to the rights of fathers and families. It gave to fathers the power of life and death and of sale over their children, and the right to kill immediately a child born deformed. On the other hand, and as some compensation for these atrocious provisions, it declared, that if a father neglected to teach his son a trade, he was not obliged to maintain his father when in want; nor was an illegitimate child bound to maintain his father.

The 5th table related to inheritances and guardianships. It declared, that if the father died intestate, and had no children, his nearest relations were to be his heirs; and if he had no relations, a man of his own name was to be his heir. He had the right to appoint guardians to his children. If a freedman died intestate and without heirs, his effects went to the family of his patron. The heirs were to pay the debts of the ancestor in proportion to their share of his estate. It also provided, in the case of lunatics and prodigals, that the relations, and if none, that one of the name, was to have the care of the person and estate.

The 6th table related to property and possession. It declared, that the title of goods should not pass on sale and delivery, without payment. Two years possession amounted to a right of prescription for lands, and one year for moveables. It likewise declared, that in litigated cases, the presumption should always be on the side of the possessor; and that in disputes about liberty and slavery, the presumption should always be on the side of liberty.

The 7th table related to trespasses and damages. It provided, that compensation be made for trespasses; and that for arson or maliciously setting fire to a house, or to grain near it, the offender was to be scourged and burnt to death. The lex talionis was applied to losses of limb, unless the injured party accepted some other satisfaction. A pecuniary fine of three hundred pounds of brass was declared for dislocating a bone, and twenty-five asses of brass for a common blow with the fist. (It is related in the Noct. Att. 20. 1. that one Lucius Neratius, in after times, when the city became wealthy, and such a fine insignificant, amused himself by striking freemen in the face as he met them in the street, and then ordering his servant, who followed him for the purpose with a bag of brass money, to count out and tender the twenty-five pieces, as the compensation fixed by law. It was provided also by this table, that slanderers, by words

but did not, as Heineccius supposes, survive the sixth century of the Christian era. This code obtained, in the subsequent ages of the republic, from the most distinguish

or verses, should be beaten with a club. False witnesses were to be thrown headlong from the capitol, and parricides were to be sewed up in a sack and thrown into the Tiber. Whoever wilfully killed, or poisoned, or prepared poison for a freedman, or used magical words to hurt him, was punishable` as a homicide. Guardians and patrons who acted fraudulently in their trust, were to be fined and held odious. The 8th table related to estates in the country. It required a space of two and a half feet to be left between every house; and it allowed societies or private companies to make their own by-laws, not being inconsistent with the public law. The prætor was to assign arbitrators in cases of disputes about boundaries; and it provided redress for nuisances to fields by the shade of trees, or by water courses. It required roads to be eight feet wide, and double at corners. allowed travellers to drive over the adjoining lands, if the road was bad.

It

The ninth table was concerning the common rights of the people. It prohibited all special privileges to any person, and it restored debtors who had been redeemed from slavery, to their former rights. It made bribery in a judge or arbitatror, or the holding seditious assemblies in the city by night, or delivering up a Roman citizen to a foreigner, or soliciting a foreigner to declare himself against Rome, capital offences. It declared that all causes relating to the life, liberty, or rights of a Roman citizen, should be tried in the comitia centuriata. The people were to choose quæstors to take cognizance of capital cases.

The 10th table related to funerals. It prohibited the dead to be interred or burnt within the city, or within sixty feet of any house. It prohibited all excessive wailings at funerals, and women from tearing their faces or making hideous outcries on such occasions. It regulated and limited the expense of the funeral piles, and all costliness at funerals, such as the dress of the deceased, the players upon the flute, the perfumed liquors, the gold thread, the crown, festoons, &c.

The 11th table made part of the jus sacrum, or pontifical law. All the other tables related to civil rights, but this related to religion and the worship of the gods. It required all persons to come with purity and piety to the assemblies of religion; and no person was to worship any new or foreign gods in private, unless authorized by public