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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 gare 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. Atl. 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. It allowed travellers to drive over the adjoining lands, if the road was bad.
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 ed philosophers, historians, and statesmen, the blind tribute of patriotic veneration, and the most extravagant eulogy, as being a system inculcating the soundest principles of ethics and civil polity, and surpassing in value the jurisprudence of Solon and Lycurgus, and the ten books of the laws of Plato, and whole libraries of Grecian philosophy. As Rome increased in territory, wealth, arts, and refinement, her laws, were progressively enlarged and improved, and adapted to the progress of society, and its increasing wants and vices. The obligation of the twelve tables was gradually diminished or destroyed by the multitude of new regulations, and the history of the Roman law, from the time of the twelve tables to the reign of Hadrian, is eminently instructive.
authority. Every one was to observe his family sestivals, and the rites used in his own family, and by his ancestors, in the worship of his domestic deities. Honour was to be paid to those heroes and sages whom their merit had raised to heaven. The commendable virtues were to be ranked among the gods, and to have temples erected to them, but no worship was to be paid to any vice. The sacrifices to the gods by the priests were to be the fruits of the earth and young animals, and with the most authorized ceremonies. No one was to be initiated in any mysteries but those of Ceres. Stealing of what was devoted to the gods, and incest, were declared to be capital crimes.
The 12th table related to marriage, and the rights of husbands. It precribed freedom of divorce at the pleasure of the husband ; and it allowed the husband, with the consent of his wife's relations, to put her to death, when taken in adultery or drunkcnness; and it declared it to be unlawful for patricians to intermarry with plebcians.
a Cic. de Orat. b. 1. c. 43, 44. De Legg. 2. sec. 23. Livy's Hist. 3. 34. Tacit. Ann. 3. 27. A. Gell, Noct. Att, 20. 1. In the newly discovered treatise of Cicero, De Republica, lib. 2. c. 36, 37., he insists, that the ten first tables were composed with the greatest equity and prudence, but he declares that the two last tables, added by the decemvirs, were iniquitous laws, and that the law prohibiting mar. riages between plebeians and senatorial families was a most infamous law.
After many struggles, the patricians were obliged, by the lex Horatia, to submit to the authority of the plebiscita, enacted by the plebeians alone in their comitia tributa, as being of equal force with the leges, passed at the instance of a consular or senatorial magistrate, by the whole aggregate body of the people, patricians and plebeians. The senate also frequently promulgated laws under the name of senatus consulta, by their own authority. A senatus consultum was allowed to continue in force only one year, unless ratified by the common course of rogatio ad populum; and the tribunes could, at any time, by their veto, put a negative upon any projected decree of the senate. That body likewise assumed the right to dispense with laws, though, by a law proposed by the tribune Caius Cornelius, the senate could not exercise their dispensing power, unless 200 senators were present.
after the adoption of the twelve tables, the prohibition of marriages between the patricians and plebeians was abolished; but the patricians had the address to retain the management and control of the whole administration of justice. This was effected in several ways. It was effected by the institution of legal forms of judicial proceeding called legis actiones, Legal Forms and by means of the pontifices who regulated the calendar, and assumed the power of fixing the lawful days of business, the dies fasti et nefasli. These judicial forms and solemnities gave order and uniformity to the administration of justice ; but they were mysteries of jurisprudence, confined to the learned of the patrician order, and locked up in the pontifical archives. They could not be changed at the pleasure of the people, and the right to interpret them belonged to the pontifical college, and the patricians had re
Within a very
a Inst. 1. 2. 4. Dig. 1. 2.9. The proofs are abundant, that even before the Augustan age, the senatus consulta had become one of the regular sources of the Roman law. Histoire du Droit Rom. par G. Hugo, sec. 174, 175, 176. Que consulta Patrum, qui leges juraque sertat. Hor. Epist. 1. 16. v. 41.
tained the exclusive right of being eligible to the offices of the priesthood. The forms remained confused and undigested until Appius Claudius Cæcus, a member of the pontifical fraternity, reduced them into one collection, which his scribe, Cnæus Flavius, surreptitiously published, together with the calendar or fasti, to the great satisfaction of the people. It acquired the title of the Jus civile Flavianum; and a second collection of these legal precedents afterwards appeared, and was called the Jus civile Ælianum.” This Roman science of special pleading became a subject of ridicule by Cicero, as being a cunning and captious verbal science; and these forms were expressly abolished by the Emperor Constantine as insidious.
The edicts of the prætor became another very important means of the increase and improvement of the Roman law. The judicial decisions of the prætors, or edicta pretorum, became of great consequence. They were called jus honorarium, or patrician law, derived from the honour of the prætor. There had been, from the foundation of the city, a magistrate called præfectus urbis, to administer justice in the absence of the king or consul; and after the plebeians obtained a share in the consular dignity, the patricians created a permanent city prætor, and they confined his province to the administration of justice ; and such a magistrate was indispensable, as the consuls were engaged in foreign and executive duties. The prætor was at first a patrician, and
a Dig. b. 1. tit. 2. De Orig. Jur. sec. 6. Gravina says, De Ortu et Prog. J. C. sec. 33. that they were established by the policy of the ancient lawyers.
b Dig. 1. 2. 7. Livy's Hist. 9. 46. Gravina de Ortu Jur. Civ. sec. 33. and de Jur. Nat. et XII. Tab, sec, 79, 80.
c Legulejus quidam caulus et acutus præco actionum, cantor fabu. larum, auceps syllabarum. Cic. de Orat. 1. 55, See also Cod. 2.58, De formulis et impetrationibus actionum sublatis.
d Dig. 1. 1. 7. and 1. 2. 10.