Written by: Noah Segal, University of California Santa Barbara
The history of the Republic usually begins with the expulsion of the Tarquins in 509 BCE, but the absence of one form of government is not the same as the establishment of a new one. The institutions that made up the Republic as a form of government developed gradually, and the middle of the 5th century BCE was the most important period in this process. One of the foundational issues addressed at this point was the law. As we shall see, much of the history and nature of the codification of Roman law remains uncertain and speculative, but the problem (as it is usually understood) is that it was difficult for the average Roman to know what the laws said. Before this point the laws were primarily under the control of Rome’s priests, and thus not available to the public for consultation. Two early imperial sources tell us that the law was actually secret, though this is probably an exaggeration. Whether or not the laws were impossible or simply difficult to access, the average Roman in need of legal knowledge would have encountered frustration. Thus, it is not surprising that the community began to agitate for the publication of the laws, which we are told by Livy first occurred in 462 BCE with the tribune of plebs, Gaius Terentilius Harsa (Livy 3.9).
Rome did not formally began the process of codifying its laws for another eleven years, and the story we receive of the events that followed is among the most dramatic (and confusing) in early Roman history. In 451 BCE all magistracies oversaw and administrated Rome were vacated and replaced with a board of ten “decemviri” (in Latin lit. “ten men”) who would be elected to assume all the magistrates’ responsibilities and authority for a term of one year while also drafting the laws. Livy seems to suggest that the decemvirate was meant to be an entirely new form of government, but it is more likely that it was meant to be a temporary commission. Livy also gives us the names of the decemviri, and all (or at least nine out of ten) were probably patricians (the most elite social class). As the story goes, the decemvirate of 451 functioned exactly as it had been intended to and at the end of its term organized its laws into ten “tables,” which the People ratified in the Centuriate Assembly. There was, however, a feeling in the community that the job was not yet done, that two additional tables were needed, and so a new decemvirate was elected for the following year.
The Roman People had taken a great risk in forming the first decemvirate. For a community that greatly valued its liberty after the expulsion of the kings, putting absolute power into the hands of ten individuals meant trusting them to police their own behavior. Even the tribunes of the plebs, the magistrates who were tasked with making sure the government did not abuse the rights of its citizens, resigned before the installation of the decemvirate. The first decemvirate had been a resounding success: transparent, accessible, and parsimonious with the exercise of its power. But the second iteration of the commission would proceed much differently. Livy claims that the commission now began to meet secretly and to limit the ability of citizens to argue issues before them. They also began to act tyrannically, deciding cases on favoritism, threatening those who voiced opposition, and using gangs of young nobles to intimidate and rob plebian citizens. Their use of the fasces was particularly striking. The fasces – a bundle of rods tied around an axe – was a powerful symbol of authority. Carried by lictors, the fasces usually attended the consuls, and represented their authority to coerce citizens with violence in order to enforce the law. The first decemvirate had only used twelve lictors carrying fasces to attend one member of the board at a time, but the second allotted twelve lictors to each decemvir – making 120 lictors in total. Livy (3.36) says they “filled the Forum.” Unsurprisingly given their actions, when the time came for their end of their term, the decemviri refused to leave office.
At this point, the second decemvirate had effectively seized absolute power in Rome. The Roman People (including the Senate) became increasingly outraged by the behavior of the decemviri, but were unable to unseat them. Things came to a head when Appius Claudius, the most notorious of the decemviri, used his authority to kidnap a young plebian woman named Verginia on the ludicrous claim that she was actually his slave. During the following court case, Verginia’s father saw that his efforts in court were hopeless, since Appius himself presided over the court, and decided to kill his daughter during the trial rather than allow her to be taken by Appius. This tragic event proved the final straw for the Roman People, Appius was driven from the city (he later hanged himself) and the plebs seized control of the Aventine, refusing to participate in society (especially the military) until their demands for reform were met. This event is referred to as the Second Secession of the Plebs. The result of their protest was a package of legislation referred to as the Valerio-Horatian Laws, which gave important rights and protections to plebian Romans. Having thrown out the decemviri, the state kept the laws, which included the two tables added by the second decemvirate.
Engraving of Roman civilians examining the Twelve Tables after they were first implemented. Credit Wikipedia
Much of the exact content and nature of the Twelve Tables remains up for debate. Although Livy claims the Tables were a comprehensive collection of Roman law, it is clear from what we do know that the regulations were largely procedural and not a complete legal code. While we cannot be sure of the context in which they were compiled – the story given above is certainly a fiction created later – the laws for which we have evidence do support the traditional, fifth century dating of their composition. For example, Rome started using silver currency in the early third century BCE, but the tables use bronze, the earlier form of currency. The tablets also forbid a creditor from selling a debtor into slavery in Rome, but allows for it trans Tibere “on the other side of the Tiber” (fun fact: Trastevere, the modern neighborhood in Rome, takes its name from this phrase). This means that the tables must have been composed before the land on the other side of the Tiber was controlled by Rome beginning in the fourth century. The Latin used in the laws is also frequently archaic, both in its vocabulary and grammar. Since the versions we have now have gone through several layers of transmission (i.e. copies of copies of copies), the original text was likely even more antiquated than its current language.
Although the public display of the Twelve Tables was meant to ensure clarity in the interpretation of the laws, the language of the laws is remarkably opaque and difficult to parse. Most of the laws follow the simple conditional format of “if X then Y,” but they are by no means easy to understand. Whereas modern “legalese” is often characterized by hyper-specificity, the language of the Tables is compressed and ambiguous. Take the following example, the first law from Table 1, which I translate as closely as possible to the Latin:
X1: si in ius vocat, ?ito;? ni it, antestamino; igitur <im> capito.
“If he calls into court, ?he must go;? If he does not go, he calls a witness; then he must grab him.
Regardless of some problems with the text, this is quite confusing. It is possible to understand what is being required (if a plaintiff calls a defendant into court, the defendant is required to go, if he does not come then the plaintiff calls a different witness and brings that person), but it is almost comically laconic and obtuse. Most notably, this sentence makes liberal use of pronouns and subject changes, but gives no indication of when it is doing so.
Although the Tables were not a comprehensive collection of Roman law, their subject matter tells us much about many different areas of Roman life and society. Those laws we might call “civil” today (i.e. one citizen seeking damages from another) are most concerned with agricultural disputes, and in this way may seem somewhat familiar. For example, my wife’s grandmother was recently wondering about whether or not she had a right to eat the fruit of a neighbor’s tree that had fallen onto her yard – this was (probably) covered in VII.10. Less familiar are laws like, which prescribes what damages you could seek if your neighbor cursed your crop (VIII.4).
Family law is also one of the most prominent concerns of the Twelve Tables, and they largely assert the absolute power of the father over the members of his family (a concept they called the paterfamilias). Sons had no legal standing until their fathers died, meaning that one could reach an advanced age and even attain some significant standing in the community without technically being able to do anything on one’s own. Although, according to IV.2, if your father attempted to sell his son three different times, then the son was emancipated. Slavery is also a frequent topic in the Tables. There are several laws dealing with the conditions under which a debtor may be enslaved by his creditor, but the law was clear that a citizen retained his rights in this case. Manumission is not specifically addressed, but (VII.13) does stipulate that a slave freed in exchange for payment by his master’s will is entitled to make those payments and obtain freedom even if he is subsequently sold to a another. These are just a few examples, but if we could say anything about the content of the Twelve Tables in their entirety, it is that they serve as a stark reminder of how harsh life in the ancient world was.
After their ratification the Twelve Tables were displayed publicly in the Forum, but we today possess no complete text. The originals were likely lost in the Gallic sack of Rome in 390 BCE, and even if they were replaced afterwards it seems that by the time of Cicero there was no public text available in the Forum. He does tell us, however, that schoolchildren were made to learn them from memory. What we have today is a collection of quotations from ancient authors that has been collected and edited, much of it coming from the writing of imperial jurists Gaius (who wrote a commentary on the Tables in addition to The Institutes) and Ulpian (a legal scholar of the third century CE). The sixth century CE Corpus Iuris Civilis (also called the “Code of Justinian”) is largely based in turn upon these two authors. Despite the significant gaps in knowledge of the contents of Tables, they were still influential in the development of common law and of the United States Bill of Rights.
Bibliography
As I have indicated throughout, our main source for the story of the Decemvirates and the process of codifying Roman law is book three of Livy’s Ab Urbe Condita. As with the entirety of the first five books of Livy, it should not be understood as an historical record, but rather a collection of stories Romans told about the foundation of their state (think along the lines of George Washington and his cherry tree). The Institutes of Gaius is also a valuable source for much of our information about the Tables and subsequent Roman law. The most thorough and useful discussion of the Twelve Tables is the second volume of Michael Crawford’s Roman Statutes (1996: Institute of Classical Studies). I use Crawford’s text (but my own translation) for the law I quote above. It gives not only all our sources for each law that we know about, but also a detailed account of all of the major scholarly discussions surrounding the Tables. The entries in the Oxford Classical Dictionary are more brief but still quite useful. Finally, T.J. Cornell’s The Beginnings of Rome (1995: Routledge) includes an excellent discussion of the composition and content of the Tables as we have them.
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