which might open the door of power and office to the members of their own body, and supply a machinery for the preparation of a fixed and permanent body of law. The Decemvirate, superseding and incorporating into itself every other magistracy, and composed of an equal number of patricians and plebeians, was formed 303 A.U.c. for the purpose of collecting and embodying in the shape of written law all those portions of the customary law which it was most essential for the due administration of justice to place on an indisputable footing, and publish for the benefit of the whole body of citizens.

8. The lavish praises bestowed on the laws of the Twelve Tables by the later writers of Rome, and the story of the deputation The Twelve sent to learn the laws of Greece, would give us an idea of Tables. a very different body of laws from that which these Tables actually presented. We should expect to find a systematic exposition of Roman public and private law as it existed in the times previous to the Gallic invasion; and to find, also, that the whole body of law was at least colored by the infusion of a foreign element. We should naturally think that there was something new and original in a legislation which Cicero considers as almost the perfection of human wisdom.* The fragments of the Twelve Tables which remain to us show how erroneous are these conceptions of their contents. There is nothing whatsoever which we can decidedly pronounce to be borrowed from a foreign origin, except possibly some provisions respecting the law of funerals, taken from the laws of Solon. These Tables contained, for the most part, short enunciations of those points of law which the conduct of the affairs of daily life required to be settled and publicly announced. The law had existed before, but in a floating, vague, traditionary shape, only some very few laws having been engraved on tablets and publicly displayed. The Twelve Tables left to the decision of the magistrate, and the interpretation of those skilled in law, the application and exposition of these principles; they also left many parts of the customary law wholly untouched on. But what the exigencies of the time required deciding, they decided; and they laid a firm foundation on which the structure of private law would rest for the future. It is not difficult to understand how this was esteemed so great a gain to the large body of the citizens, that these laws were spoken of by the ancients as the creations of a new legislation.

The following are the chief provisions of the Twelve Tables, so far as they are known.f-1. The First Table related to the proceedings in a civil suit. If the person summoned before the magistrate would not

* See especially De Orat. i. 43. 44.

† This summary is taken from the arrangement of the supposed contents of the

tome, he was to be forced to go, but for an old or sick man a beast of burden was to be provided. If the adversaries could agree on the way, they were to be allowed to do so. If not, the statements of both were to be heard before midday in the Comitium or the Forum, and then, after midday, the magistrate was to adjudge the thing, but every process was to be stopped at sunset. 2. The Second Table fixed the amount to be deposited in the action by wager, and provided that the affair might be put off if necessary, as if, among other things, the judge or arbiter appointed by the magistrate was ill; and pointed out how witnesses might be summoned. 3. The Third Table was apparently made in favor of debtors, for though it left them ultimately at the mercy of the creditor, it gave them new means of averting their fate. They were to have thirty days before any steps could be taken against them on a debt confessed or decided to be due. They might then be brought before a magistrate, and unless payment was made or a surety (vindex) found, the creditor might put them in irons, but not of more than, fifteen pounds weight, and must give them a pound of flour a day., This could last for sixty days only, and the debtor had meanwhile to be produced before the magistrate to show he was alive; and notice of the amount of the debt must be given o three market-days by the creditor, so that an opportunity of ransoming the debtor might be given. Then, but not till then, the debtor was at the mercy of the creditor, who could sell him as a slave or kill him, and if there were several creditors, they might hew him in pieces, and although any of them took a part of his body larger in proportion than his claim, he was not to be punished. 4. The Fourth Table referred to the father of the family, who was bidden to destroy deformed children, and whose absolute power over the life and liberty of his childre was established, while it was provided that if he sold his son three times, the son should be freed from his power. 5. The Fifth Table related to inheritances and tutorships. Women were to be in perpetual tutorship, except the vestal virgins. A man disposed by testament, so was the law to be; but if he died intestate, and without a suus heres, his nearest agnati, or, in default of agnati, the gentiles, were to take. The agnati were to be tutors, and have the custody of madmen who had no curators. 6. The Sixth Table referred to ownership, and provided that the words spoken in the solemn forms of transfer, a nexum or mancipium, should be held binding; that he who denied them should pay double; that ten years' possession for immoveables, and one for move

Twelve Tables adopted by Ortolan; but in many points, and especially in the assignment to a particular Table of a fragment, this arrangement is necessarily conjectural.

ables, should be the time necessary for usucapion, and that a year should suffice for the usucapion of a wife by her husband, unless she absented herself for three nights in the time; that no one not a Roman citizen should acquire by usucapion; and that materials built into a house should not be reclaimed by their owner, at least until the building was taken or fell down. The property in a thing sold was not to pass to the purchaser until the vendor was satisfied. The fictitious suit for the transfer of property called in jure cessio, and mancipation, were confirmed. 7. The Seventh Table contained provisions as to buildings and to plots of land, as to the width of way to be left, as to overhanging trees, and so forth; and in case of disputes as to boundaries, the magistrate was to appoint arbitrators. 8. The Eighth Table dealt with delicts. It prescribed capital punishment, for libellous songs and outrages. A limb was to be given for a limb, three hundred asses for the tooth of a free man, and one hundred and fifty for the tooth of a slave; for an injury or minor outrage, twenty-five asses; a four-footed beast doing injury might be given up to whomsoever it injured, in lieu of compensation. The noctural devastation of crops or the incendiarism of a building was punished with death. Theft, if the thief was caught red-handed, was to be punished by the thief, if a freeman, being given over to the person robbed, and, if a slave, by his being beaten and thrown from the Tarpeian Rock; while various other provisions are made as to theft, fixing minor penalties, where the circumstances were not so grave. The rate of interest was fixed at 83 per cent. per annum (centesima usura), and the usurer who exceeded this was to be fined quadruple. The false witness was to be thrown from the Rock, and the witness, in a solemn form, who refused his testimony was to be infamous; and the enchanter and poisoner were to be punished. 9. The Ninth Table related to public law, and provided that there were to be no privilegia, or laws affecting individuals only; that the centuries alone could pronounce capital sentence; that the judge or arbiter taking a bribe should be punishable capitally; that there should be an appeal to the people from every penal sentence; and that death should be the punishment of leaguing with or handing over a citizen to the enemy. 10. The Tenth Table related to funerals, limiting the ceremonies and display attending them. 11. The Eleventh Table prohibited the marriage of patricians and plebeians; and 12. The Twelfth Table had reference to some miscellaneous matters; as that a slave who had done an injury might be abandoned to the person injured, in lieu of compensation. The seizure of anything belonging to the debtor (pignoris capio) was permitted when the debt had been contracted, or the sum due was to be expended, for sacrificial purposes.

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It will be observed that the Twelve Tables recognize four of the

The attain

ment of political equality by the Plebs.

actions of law, the nature of which will be noticed in a later part of the Introduction, viz., sacramentum, judiciis postulatio, (in the shape of the arbitration to be given to settle boundaries), manus injectio, and pignoris capio. They further recognise the distinction between the magistrate and the judex, which was the characteristic feature of Roman procedure; and probably these actions of law and this distinction between the judge and the magistrate date from a time much earlier than the Twelve Tables. Most, too, of the characteristic points of Roman civil law are to be found in the Twelve Tables. The patria potestas, usucapion, tutelage, testamen tary and intestate succession, the nexum, mancipatio, all are enforced and evidently formed part of the ancient customary law of Rome. 9. The Decemvirate was nominally intended to be a means of removing, as far as was then thought possible, the political distinction between the orders. How little the object was really accomplished is notorious. Although half the decemvirs were plebeians, the suppression of the meetings of the comitia tributa, and the loss of tribunes, was poorly compensated by the presence of magistrates who acted in conjunction with patricians, and readily yielded deference to their colleagues. Besides, the Two Tables added in the year of the second Decemvirate contained provisions which later writers considered manifestly unjust;* and we have seen that, among other things, they expressly refused the connubium to the plebs. The Twelve Tables, as fixing and proclaiming the law, were undoubtedly a source of great strength to the plebeians, and enabled them to maintain a much more secure position in their future struggles; but the Decemvirate, regarded as a crisis in their political history, was certainly unfavorable to them. Nothing shows more completely that this was so than the progress they made immediately after the downfall of Appius Claudius and his colleagues. The laws of Horatius and Valerius not only forbad the constitution of any magistracy from which there should be no appeal, but provided that the ordinances of the comitia tributa should, if sanctioned by the senate and the curies, be binding on all Roman citizens; and in 309, only four years after the abolition of the Decemvirate, the Canuleian law gave the connubium to the plebs, and the marriage of a patrician with a plebeian was no longer forbidden by law. This change was important, not only as removing a distinction mortifying to many individuals and embarrassing many of the relations of private life, but as breaking through one of the barriers which the jus sacrum had hitherto interposed in the way of the plebs. The obstacle of a religious disqualification was the reason

* Cic. De Rep. ii. 37.

↑ Ideòque decemviros connubium diremisse, ne incerta prole auspicia tumbriontur.-Liv. iv. 6.

generally assigned by the populus for the exclusion of plebeians from public offices; and it was a great step towards political equality that the objection urged to marriages between the two orders-that it would disturb the sacra of the gentes-should be overcome. The advance of the. plebs to political equality was, however, very slow; and it was not until a century and a half had elapsed from the passing of the Canuleian law that the two orders were placed on an equal footing. We may take the year 467 A.U.C., the date of the lex Hortensia, as the period when we can first pronounce that the distinction of the two orders was really done away. When that law had been passed, the plebeian had a full share in the jus publicum and the jus sacrum. The ordinances of the comitia tributa required no confirmation of the curies, no sanction of the Senate; they were binding on the whole Roman people directly they were passed. The equality between the two orders was so complete that the plebeian could become consul, censor, prætor, curule ædile; he could enter the Senate, he could administer justice; he was excluded from none of the privileges of the jus sacrum; he could become pontifex and augur; and though he could not of course take part in any of the sacra belonging to particular gentes, go through certain religious ceremonies, or be engaged in the service of particular gods, these exceptions did not lower his political position. As far as the history of law is concerned, we may henceforward lose sight of the distinction between plebeian and patrician. 10. From the writings of the later jurists, and especially from those of Gaius and Cicero, and from the fragments of the Twelve Tables that have come down to us, we can collect the essential features of the private law of Rome in its earliest period, before a general advance in civilisation had modified it. This early law, which rested on custom as its foundation, and the elements of which, except so far as appeared in the laws of the Twelve Tables, were only known by tradition, was called in subsequent times the jus civile, the peculiar law of the Roman State. The history of Roman law is the history of the changes introduced into this law, of the additions made to it, and of the method adopted in the process. The notion of a body of customary law, in part unwritten, which was not abrogated, but was evaded or amplified by persons acting under the ideas of later times, is the notion which, above all others, must be embraced clearly by any one who wishes to understand Roman law. The jus civile must always be taken as the standing point, and in tracing the history of the later law we have always to trace how, while the jus civile still remained in force, the law was made to suit the requirements of different periods

The jus civile.

* Interroganti tribuno, cur plebeium consulem fieri non oporteret? respondit, quòd nemo plebeius auspicia haberet.-Liv. iv. 6.