Institutes of Roman Law. Gaius

obscure. Had it been so, the Twelve Tables could scarcely have survived. It was the form that was current in the verbal juristic maxims of this and a later period—brief, gnomic, rhythmic and imperative ^{Ref. 037}. As to the matter, that was conditioned by the task which the Decemvirs had to perform—a task which they accomplished with an astonishing degree of success. Their object was to make a common law for Roman society considered as a whole. It was no business of theirs to abolish patrician privileges or to remove the peculiarities of patrician ceremonial; but they had to find a system of Jus which would be equally valid for all Romans; and this they naturally found in the customary law of the mass of the people; that is, of the Plebs. They were forced to recognize a social disability of the Plebs, as exemplified in the absence of Conubium with Patricians ^{Ref. 038}; for to remove it would have been an alteration of the Constitution as well as an infringement of patrician rights. But how completely they ignored the existence of the Plebs as a separate political community is shown by the fact that the tribunes do not seem to have been mentioned in the law at all. The assumption probably was that the publication of the Code should render the Tribunate unnecessary; and this it might have done, had the patrician government lived up to its promises.

      The law of the Twelve Tables, as the ‘body of the whole of Roman law’ (‘corpus omnis Romani juris’) and the ‘fountain of all public and private law’ (‘fons omnis publici privatique juris’)—designations both of which are applied to it by Livy ^{Ref. 039}—contained ordinances on all the three branches of Jus, civil. criminal and constitutional. In the matter of civil law, we find regulations as to marriage and family relations, inheritance, testamentary disposition, debt and usury. The marriage recognized was that known as the result of usus—a contract, that is, which was concluded by consent and strengthened by prescription ^{Ref. 040}. It was ordained that the threefold sale of a son by his father should issue in the freedom of the son ^{Ref. 041}: although whether the Twelve Tables made this form of emancipation the basis of adoption is uncertain. The manumission of slaves who had been left free by testament, on the condition of purchasing their freedom, was also facilitated ^{Ref. 042}. Recognition was given to testamentary disposition as performed ‘per aes et libram’ ^{Ref. 043}; while, in the matters of intestate inheritance and guardianship, the rights of the Agnati, common to Plebeians and Patricians, were regarded as prior to those of the Gentiles ^{Ref. 044} The harsh law of debt, which was a result at once of freedom of contract and of the very severe view which ancient societies take of the defaulting debtor, was maintained; the Judicatus still became the bondsman of his creditor ^{Ref. 045}, but now (perhaps for the first time), all the stages of the process of execution were published to the world, the rights of the creditor were defined, the chances of escape open to the debtor were accurately described. Loans on interest were permitted; but the maximum rate of interest was fixed at ‘unciarium foenus’ ^{Ref. 046} (probably ten per cent.); and the usurer who exceeded this rate was punished more severely than the ordinary thief; he was compelled to restore fourfold ^{Ref. 047}. With respect to Civil Procedure (the exclusive knowledge of which had been one of the greatest elements of strength in the patrician government) it is clear that the outlines of the process—such as the rules for the summons of parties and witnesses, and for the length of the trial ^{Ref. 048}—were described. But it is very questionable whether the Tables went so far as to specify the Forms of Action; the actual words and gestures, that is, which had to be employed in any given case. We find a tradition that these forms were not revealed until nearly 150 years later, and that they were first given to the world in 304 b. c. by a certain Cnaeus Flavius ^{Ref. 049}, a freedman’s son and the clerk of Appius Claudius, the censor of 312 b. c., who was apparently also pontiff. But the traditions connected with the publication at Rome, even of the simplest information about Procedure, are exceedingly obscure. On the one hand, we hear that this same Cnaeus Flavius published a Calendar which gave a record of Court Days (Dies Fasti) ^{Ref. 050}; on the other hand, it was believed that a Calendar of some kind had been already published by the Decemvirs ^{Ref. 051}. It is possible that the decemviral Calendar had become antiquated, or that it had not been restored or republished after the burning of Rome by the Gauls (390 b. c.) ^{Ref. 052}; but it is clear that the Romans of Cicero’s time had much vaguer ideas about the epoch at which the forms of Procedure were made accessible to the public, than they had about the date at which the principles of Substantive Law were given to the world.

      The criminal law of the Twelve Tables reflects a more primitive stage of thought than its civil ordinances. But this is not surprising; for, throughout the whole of Roman History, the criminal law lags far behind the civil. The Tables recognize the principles of self-help and retaliation. A limb is to be given for a limb; but for minor assaults pecuniary compensation is allowed ^{Ref. 053}. We still find the idea of capital punishment taking the form of an expiation to an outraged deity; thus the man who destroyed standing corn by night was hanged as an offering to Ceres ^{Ref. 054}. The belief in witchcraft still survives; for death is the penalty for incantations ^{Ref. 055}. It is also the penalty on the judex who has taken bribes, and for treason (Perduellio) in the form of ‘rousing an enemy against the State or handing over a citizen to the enemy ^{Ref. 056}.’

      But it is where criminal law touches questions of personal liberty, and is connected with constitutional law, that the legislation of the Twelve Tables is most advanced. The principle of the Appeal to the People (Provocatio) against the sentence of the magistrate was maintained ^{Ref. 057}; it was enacted that no law or sentence should be passed to the detriment of an individual (Privilegia ne inroganto) ^{Ref. 058}; and it was laid down that no capital sentence could be issued except by ‘the greatest of the Comitia’ (nisi per maximum comitiatum) ^{Ref. 059}; that is, by the Assembly of the Centuries, or Exercitus, gathered in the Campus Martius.

      An important aspect of the Public Law of the Twelve Tables is the guarantee of the right of free association, provided that it have no illegal intent. While nocturnal gatherings (coetus nocturni) are prohibited ^{Ref. 060}, the formation of gilds (collegia) is encouraged. Such gilds were to require no special permit for their existence, and the rules which they framed for their own government were to be valid, provided that these rules were no infringement of public law ^{Ref. 061}.

      Lastly, the most typical and important utterance of the Tables is to be found in the injunction that ‘the last command of the People should be final ^{Ref. 062}.’ It is an utterance which shows how little the Decemvirs regarded their own work as final, how little they were affected by the Greek idea of the unalterability of a Code, of a Code forming a perpetual background of a Constitution—in fact, by the idea of a fixed or written Constitution at all. It is an utterance that expresses the belief that law is essentially a matter of growth, and prepares us for the fact that Rome saw no further scheme of successful codification until nearly a thousand years had passed.

      

       § 10.: Future Progress of Law. Legislation and Interpretation; the Legislative Assemblies.

      For the future the progress of law was to depend on the two processes of legislation and interpretation. The legislative assemblies were those of the Populus and the Plebs. The Populus, which comprised the whole of the Roman people, Patricians as well as Plebeians, met, either by centuries, as the Comitia Centuriata, or by tribes, as the Comitia Tributa, under the presidency of a Consul or Praetor.

      The Comitia Centuriata was an assembly that had grown out of the army-organization of the whole Roman people. It was the whole Host or Exercitus expressing its political will. It was for this reason that the military unit (the centuria) was the voting unit. And this was also the original reason why we find in this assembly the division into classes, or aggregates of citizens grouped together on the basis of a particular property qualification; for the different types of military service were originally determined by degrees of wealth. But the element of wealth in this assembly, which is exhibited by the division into classes, soon gained a political significance. The voting power of the classes differed considerably. That of the wealthy was greater than that of the middle-class, and that of the middle-class far in excess of that of the poor. Thus the Comitia Centuriata was always assumed to have something of an aristocratic character;