The Laws of The Twelve Tables (Footnotes)
 

The Laws of The Twelve Tables

Footnotes

[1] Under the Roman method of procedure, until the thorough organization of the judicial system by the emperors, service of summons was always made by the plaintiff in the action. This was even sometimes done after the custom of regularly appointing court officials for that purpose had been established. — Ed.

[2] Notification of the bystanders was made to show that the arrest of the defendant was to compel his appearance before the tribunal, a proceeding authorized by law; and not to insult him, or forcibly restrain him of his liberty, which might form the ground of prosecution for an illegal act. — Ed.

[3] Litters were originally used exclusively by women and sick persons during the early ages of Greece and Rome. They, afterwards, in the time of the Empire, became a favorite mode of conveyance with the Romans, and especially with the wealthy nobles, who vied with one another in the profuse and costly decoration of their luxurious lecticæ, upholstered in silk, embellished with ebony, ivory, and lazulite, and glittering with precious stones and gold. The sella, one form of the litter, was almost identical with the sedan chair of the eighteenth century. The vehicle referred to in the text was probably a public one, like our cabs and carriages for hire. — Ed.

[4] From this it will be seen that the office of defensor, or "defender," of the party sued was one of the most ancient recognized by Roman jurisprudence. Its duties were often undertaken without solicitation, through motives of friendship or compassion, or the influence of family ties; and, as the defendant's representative, he occupied the legal position of the former, including the unqualified assumption of all his liabilities arising from, or dependent upon the matter in litigation. — Ed.

[5] While the ordinary presumption certainly arises that no one can encounter a desperate malefactor in his house at night without incurring risk of serious injury; still, the Roman jurists, in enacting this provision, evidently had in view the prevention of homicide except when absolutely necessary, even under circumstances which might justify almost any violent act in the defence of life and property. Other lawgivers, generally speaking, did not recognize such nice distinctions.

The rule, somewhat modified, has been adopted by the majority of subsequent judicial systems as being thoroughly consonant with the principles of justice. It was incorporated, with but slight alteration, into the Visigothic Code, and Las Siete Partidas. "Fur nocturnus captus in furto, dum res furtivas secum portare conatur, si fuerit occisus, mors eius nullo modo vindicetur." (Forum Judicum, VII, II, 16.) "Otro tal decimos quo seria, si algun one /allasse algun ladron de noche en su casa, e lo quisiesse prender para darlo a la justicia del lugar, si el ladron se amparasse con armas. Ca entonce, si lo matare, non cæ por esso en pena." (Las Siete Partidas, VII, VIII, 3.) As stated above, to render the modicide justifiable, the Visigoths required that the thief should be in possession of the stolen property; and the Castilian law provided that he should be armed and resist arrest while in the house of the owner. Under the law of Athens, a thief taken flagrante delicto, at night, could be killed with impunity. (Potter, Antiquities of Greece, I, 24, 126.)

With the Jews, homicide was not punishable when the culprit was killed under circumstances essential to constitute the crime known to us as burglary. "If a thief be found breaking up, and he be smitten that he die. no blood shall be shed for him; but if the sun be risen upon him, there shall blood be shed for him; for he should have made full restitution." (Exodus XXII, 2.)

With the Anglo-Saxons, a thief caught in the act, at any time, either by day or by night, could be slain with impunity. "He who slays a thief must declare on oath that he slew him offending." (Ancient Laws and Institutes of England; Laws of King Ine, 16.)

This principle does not appear to have been accepted in the earliest age of the Common Law. Glanvil does not mention it. Bracton, however, refers to it as being sound, and applicable by day or by night, without regard to place, if the homicide, at the time, could not avoid serious personal injury. "Qui latronem occiderit, non tenetur, nocturnum vel diurnum, si aliter periculum evadere non possit." (Bracton, De Legibus et Covsuetudinibus Angliæ, III, 155, 36.)

Fleta says: "Quicunqiie enim furem nocturnum interfecerit, non teneatur, & qui invasorem domus suæ, se ipsum & hospitium suum saltem illa hora defendendo interfecerit, juste interficit." (Fleta, Commentarius Juris Anglicanæ, I, XXIII, 14.) This applied not only to a burglar, but to anyone found in the "curtilage," or enclosure containing the residence, at any hour between nine P. M. and six A. M.; and under these conditions, homicide was authorized either in self-defense, or when it occurred in an attempt to arrest the intruder, or was committed in order to prevent his escape. The necessity for the homicide must be absolute in order to render it justifiable. "Si necessitas evitabilis fuerit, absque occasione, reus est homicidii, qui si fuerit inevitabilis, ad pœnam homicidii non tenebitur, eo quod felonice non occidit." (Ibid. I, 23.) It is held by Coke that the act of killing must be in self-defence, and be preceded by violent aggression on the part of the thief. "If a thiefe offer to rob or murder B, either abroad or in his house, and thereupon assault him, and B, defend himself without any giving back, and in his defence killeth the thiefe; this is no felony." (Coke, Institutes of the Laws of England, Vol. IV, Ch. 8.)

This doctrine is explicitly set forth in Stat. 24, Hen. VIII, Chap. 5. "If any person do attempt to break any mansion-house in the night time, and shall happen to be slain by any person or persons, etc. (tho a lodger or servant) they shall upon their trial be acquitted and discharged." The above mentioned Statute, as is held by a high authority, may be construed to apply to an illegal act of this kind committed during the day with felonious intent "It seems it extends not to a braking the house in the day-time, unless it be such a braking, as imports with it, apparent robbery, or an intention or attempt thereof." (Hale, The History of the Pleas of the Crown, I, XL, Page 488.)

This was also the rule in Scotland, "It is lawful to kill a Thief, who in the night offers to break our Houses, or steal our Goods, even though he defend not himself, because we know not but he designs against our Life; and Murder may be easily committed upon us in the night, but it is not lawful to kill a Thief who steals in the day time, except he resist us when we offer to take him, and present him to Justice." (Mackenzie, The Laws and Customes of Scotland in Matters Criminal, I, XI, III.) The general rule, while well established, was formerly, to a certain extent, so far as its application is concerned, largely dependent upon the circumstances of each particular case. No distinction was made between an invasion of the house and an attack upon the person, provided the alarm experienced by the homicide was considered to be so well founded as to justify his act. In some respects great latitude was allowed the injured party. "The same right of defending our property, may also justify our killing a thief, or predonious invader, in the act of running away with our goods, if he cannot otherwise be taken, or the goods secured." (Burnett, A Treatise on the Criminal Law of Scotland, I, page 57.)

The laws of France and Italy excuse the homicide of an intruder who commits burglary or theft with violence. (Code Pénal de France, III, II, Arts. 322, 329.) (Codice Penale, II, III, Art. 376.)

In the United States, killing is only justifiable where the crime could not otherwise have been prevented, and where force is employed. When an attempt is made to commit a secret felony, without violence, the right does not exist. It is different, however, where the precincts of a man's home are invaded in the daytime, or at night. "An attack on a house or its inmates may be resisted by taking life. This may be when burglars threaten an entrance, or when there is apparent ground to believe that a felonious assault is to be made on any of the inmates of the house, or when an attempt is made violently to enter the house in defiance of the owner's rights."

"But this right is only one of prevention. It cannot be extended so as to excuse the killing of persons not actually breaking into or violently threatening a house." (Wharton, A Treatise on Criminal Law, Secs. 629, 630, 634, 635.) — Ed.

[6] This mode of punishment was considered especially ignominious by the Romans, and was usually inflicted upon traitors.

"The rock Tarpeian, Fittest goal for treason's race, The promontory whence the traitor's leap Cured all ambition." — Ed.

[7] Various explanations have been suggested for the elucidation of this obscure passage. It has been supposed by some that a dish, perforated with two holes for the eyes, was carried by the thief to hide his face and conceal his identity; the girdle being intended for the removal of the booty. Others have advanced the theory that religious impostors, masquerading as members of the priesthood, passed the dish for the collection of money for alleged sacrificial purposes, and appropriated the amounts obtained to their own use. A few have maintained that the dish was employed to hold a piece of bread which had been subjected to certain magic ceremonies, and, for this reason compelled the thief to confess as soon as he had eaten it, a species of ordeal, as it were. The most plausible interpretation of the furtum per lancem et licium refertum is, however, that when the officer appointed for that purpose entered a house to seek for property which had been stolen, he was required to be naked, except for a girdle, and to hold a dish before his face, as a concession to the modesty of any woman he might encounter. The owner of the property was also entitled to make search under the same conditions. Nakedness was regarded as necessary in order to avoid anything being carried into the house which might afford ground for a false accusation. — Ed.
[8] This doctrine as set forth in the maxim "Spoliatus debet, ante omnia, restitui," is recognized by the courts of all civilized, and most semi-barbarous nations. — Ed.

[9] The rate of interest authorized by law at Rome was, despite statutory regulations, often a matter of avarice on one side and necessity on the other. Money lenders were accustomed to wring from distressed borrowers the last sesterce which heartless rapacity and extortion could exact. The rate was usually dependent upon agreement, and while the collection of compound interest was illegal, a bond for the increase of what was in arrears was sometimes required, which amounted to the same thing.

As shown by the text, the Twelve Tables forbade anything in excess of the unciarum fœmus, or interest on the twelve "ounces" into which the as, the integral amount representing capital for one year, as well as an estate when its assets were estimated for distribution, were divided. The term, however, is ambiguous, and has been interpreted in several ways. The best authorities hold that ten per cent is the rate referred to. — Ed.

[10] While a strict construction of the provisions of this law has been rejected by some jurists, there can be little doubt that its abhorrent features, far worse than those of the famous claim of Shylock, were susceptible of literal interpretation, and that the partition of the body of the unfortunate debtor was entirely dependent upon the inclination of his creditors to whom he had been adjudged. The statement of Aulus Gellius relative to a fact evidently well known to his countrymen, would seem to be conclusive upon this point. "Nam, si plures forent, quibus reus esset judicatur, secare si vellent, atque partiri corpus addicti sibi hominis permiserunt." (Aul. Gell. Nodes Atticæ. I. XX. 1.) Fabius, alluding to the same law, says that public sentiment was opposed to its enforcement. "Quam legem mos publicus repudiavit." In view of the eminent authority of these Roman writers, and the clear meaning of the text, the opinion entertained by some respectable commentators, that the word "secare," "to divide," merely has reference to the apportionment of the debtor's property, is hardly tenable, as it must have been already taken in execution and divided, before his person was delivered up to gratify the resentment of his disappointed creditors. — Ed.

[11] This privilege, the patria potestas, enjoyed by Roman fathers, was a relic of the patriarchal authority originally asserted by a man over his household, including the members of his immediate family, his slaves, and other dependents. Derived from ancient custom, it continued to exist for centuries after Rome had attained an exalted rank in the scale of civilization, and other practices of barbarous origin and primitive character had long been abandoned. It is said by Justinian (Code VI, 26) to have been an institution peculiar to the Romans; for while other nations possessed authority over their children unlimited by any legislative provision, few of their regulations bore even a distant resemblance to those which confirmed the Roman father in the exercise of his unquestioned and arbitrary power, the jus vitæ et necis. This power in early times was unbounded, and usually endured through life.

A marked peculiarity of this relation was what was known as the unitas personæ, under which a father and his son subject to his control were, by means of a legal fiction, held to be but a single person in law. Hence, when the father died, the son at once succeeded him; for the reason that, during his father's lifetime he had been a joint owner of the undivided estate. Despite the unitas personæ, the child was strictly not a person but a thing, one of the res mancipi, which by quiritarian right could be sold by the owner. The father was authorized to make any disposition of his offspring that he chose; he could scourge, maim, imprison, torture, or execute them at his pleasure. Nor was this right infrequently or sparingly exercised; the Roman annals are full of instances where sons were inhumanly treated and put to death by their fathers.

The acquisition of the patria potestas was dependent upon the status of the parent at the time of the birth of the child; he must be free, or sui juris, to be entitled to exercise paternal control, for if he were subject to the authority of another ascendant, his child would also come under the power of the latter.

Under ordinary circumstances, a son could acquire no property for himself, all he obtained belonged to his father. Exceptions were subsequently made in the cases of private, independent ownership of what was received by him while preparing for, or engaged in military service, or as a member of the priesthood; and finally of all acquisitions derived from maternal or other inheritances, or which were the remuneration of his individual labor or skill. This species of property designated peculium castrense, and quasi peculium castrense, was the subject of numerous Imperial enactments, which, in the course of time, afforded substantial relief to children oppressed by this legalized tyranny; as the censors, in the time of the Republic, had frequently exerted their authority for the same purpose.

Patria potestas was a necessary incident of lawful wedlock, which indeed was indispensable; and the authority thereby obtained was imposed on all the descendants through the son, but did not affect the offspring of a daughter who was subject to the paterfamilias of the family into which she had married. In addition to birth, paternal power could be acquired by means of the public acknowledgment of legitimacy, by adoption, and by matrimony.

As a natural result of placing children in the same category with slaves and domestic animals, liable to sale, barter, and the most cruel abuse, there was a time at which a child could be given up to the injured party by way of reparation for some unlawful act, or noxa, which it had committed; a practice condemned by Justinian in unmeasured terms.

It was not until about 370, during the reign of Valentinian and Valens, that measures were taken to place restrictions upon the irresponsible power of the head of the household; an example which was followed by many succeeding emperors. The sentiment expressed by Hadrian in condemning to exile a father who had killed his son, discloses the change of public opinion with which the excessive exercise of -paternal authority was, even in that day, regarded. "Patria potestas in pietate debet, non in atrocitate, consistere."

This right, in a greatly modified form, and relating principally to the obligations of obedience and support, is explicitly recognized by the jurisprudence of Continental Europe. — Ed.

[12] At Common Law, the time prescribed was forty weeks. "Et si ele eyt un enfant dedens t's XL semaines adõques soit cel enfant receu el heritage." (Britton, Chap. 66, p. 166.) The countries whose jurisprudence is directly derived from that of Rome, as well as Japan, follow the rule of the text, and fix the limit at three hundred days. (Code Civil de France, Art. 315. Código Civil de España, Art. 108. Codice Civile de Italia, Art. 160. Codigo Civil Portugues, Art. 101. Civil Code of Japan. Art. 820.) According to Moslem law, the presumption of legitimacy may be established at any time from six lunar months — adopted as the shortest period of gestation — to two years. (Syed Ameer AU, Mohammedan Law, Vol. II. II, 2, p. 191.) As is well known, the Civil Law maxim, "Pater est quem nuptiæ demonstrant," is not accepted by the Common Law, which requires the birth to precede the marriage in every instance. The law of Scotland coincides with that of Rome on both the above-mentioned points. (More, Lectures on the Laws of Scotland, Vol. I, Chap. I. Sec. II.) — Ed.

[13] This law, which placed the distribution of his estate absolutely in the hands of the testator, without regard to the natural claims of consanguinity, was strictly observed for centuries. The abuse to which the privilege was liable became in time so flagrant that various measures were introduced to correct it. If the legacies bequeathed were large enough to include all, or so much of the assets as to render the remainder undesirable or burdensome, the estate was forthwith rejected by the heir. This act invalidated the will, and the heir-at-law took possession, the legacies being, of course, no longer of any effect. To obviate the confusion and injustice resulting from this proceeding, the Tribunal of the Centumviri devised the querela inofficiosi testamenti, or complaint of inofficious testament; by means of which the will was declared void on account of the mental incapacity of the testator, which was considered to be established prima facie by the existence of the clause of disinheritance. The Lex Furia Testamentaria limited the amount of a bequest to the insignificant sum of one thousand asses, which the ingenuity of testators evaded by simply increasing the number of legacies.

The Lex Voconia, passed A. U. C. 594, prohibited any legatee from accepting a bequest which exceeded in value the amount obtained by the heir. Women were also discriminated against by this law, presumably to prevent the affection of the testator from being indulged in their favor at the expense of members of his family; as well as to avoid the excessive accumulation of property in the hands of persons generally considered as ill-qualified to make a proper use of it.

The Lex Voconia having proved ineffective, the Lex Falcidia, by which the previous enactments on this subject were repealed, was introduced one hundred and twenty years later. It provided that the heir, should, under ordinary circumstances, be entitled to one-fourth of the estate after all claims had been paid; and that no legacy should exceed three-fourths of the amount of the same. In case this rule was violated, the heir was authorized to diminish the bequests pro rata, until the sum to which he was entitled was made up. This apportionment, known as the "Quarta Falcidia," or "Falcidian Fourth," has, without substantial change, under the name of "legitime," been incorporated into much of the jurisprudence of Europe. It is in force in Louisiana, where it exists in favor of all direct descendants, and of ascendants in the first degree. "Donations inter vivos or mortis causa cannot exceed two thirds of the property of the disposer, if he leaves at his decease a legitimate child; one half, if he leaves two children, and one third, if he leaves three or a greater number." (Civil Code of Louisiana, Arts. 1480, 1481.) With the exception of the above-mentioned State, no similar restraints are, in this country, imposed upon the testamentary disposition of property, which is, of course, always subject to the dower of the widow. The same rule prevails in England. — Ed.

[14] This was done under the presumption that the person most closely connected with the minor by the ties of consanguinity, and being next in the order of succession and hence directly interested in the preservation of the estate, would be most likely to properly discharge the duties of the trust. The English doctrine, which coincides with that adopted by the Greeks at the instance of Solon, is directly the opposite. It excludes from guardianship those who could, under any circumstances, become heirs, and therefore evinced a preference for cognates. The temptation to foul play to which the next of kin to the minor was supposed to be liable, is stated by the early English jurists in very energetic language. "Nunquam enim custodia alicujus de jure alicui remanet, de quo habeatur suspicio quod possit vel velit aliquod jus in ipsa, hereditate clamare." (Glanvil VII, II.) Coke compares a guardian of this description to a ravening wolf: "quasi agnem committere lupo ad devorandum," are the terms in which he characterizes such an appointment. (Coke Inst. I. 88.) — Ed.

[15] This indicates the existence of woman as a mere chattel to be acquired by uninterrupted possession and use for a year, like any other species of personal property. It has been stated, with much probability, that this kind of matrimonial union was the most common and popular one in the early days of Rome. Our Common Law marriage authorized by some States, and which requires the public acknowledgment of the woman as a wife, bears a considerable analogy, in certain respects, to the cohabitation, matrimonii causa, of the text. — Ed.

[16] This was the origin of the proceedings growing out of noxa, an injurious or unlawful act committed by an animal, a slave, or a child under paternal control, for which the owner, master, or parent was held responsible. Whatever caused the damage was held to be primarily liable, under the rule, "omnes noxales actiones caput sequntur"; hence the injured party had a right to seize the offending animal or slave, and hold it as security until his claim was satisfied; which has an exact parallel in the case of a stray found upon the premises of another, and detained or impounded under the English or American law. At first, in neither instance, could me author of the damage be sold, or the injury be otherwise redressed; this defect was, however, subsequently remedied by the passage at Rome of the Lex Aquilia, which granted an action directly against the owner; and by the enactment of the Statutes 5 & 6 Wm. IV. which permitted a sale of the animal in question, after certain legal formalities had been complied with. The American law is similar. — Ed.

[17] Original manuscript illegible.

[18] The intimate association of religion with law in the early life of Rome is disclosed by the frequent appearance of the formula "sacer esto," "Let him be devoted to the infernal gods"; which was attached to many criminal enactments by way of penalty. This not only rendered the offender infamous, as implying the commission of an act of sacrilege, but was virtually a proclamation of outlawry, and enabled anyone to kill him with impunity.�;ED.

[19] The punishment, in this instance, is an adaptation of the lex talionis, and the atrocious character of the offence seemed, in the opinion of many of the nations of antiquity, to justify the extreme severity of the penalty. The Visigoths adopted it where the building was in a city. (For. Jud. VIII. II. 1.) The Gentoo Code applied it where any crops or houses were burned. (Gentoo Code XVIII.) The law of England also authorized it. "Ceux que ferount de ceo atteynts soient ars, issint que eux soient punys par meme c�;le chose dount Us p�;cherent." (Britton IX. 16.)' Bracton says the act must be maliciously and feloniously committed, and that, when this is the case, the crime is capital, but he does not specify the mode of execution. Arson was felony at Common Law. (Hale, Pleas of the Crown, Vol. I, Chap. XLIX.) Incendiaries are styled "fire raisers" in Scotland, and by the ancient law of that country the offence, if wilful, was treason, and was punished by hanging. (Mackenzie, The Laws and Customes of Scotland in Matters Criminal, I. IX. 1.) �;ED.

[20] "Paricida esto." A mistake in the derivation of this word has resulted in much confusion. Paricidium was at first employed to denote felonious homicide, and was therefore synonymous with murder. The root is par, and not pater. The term afterwards obtained a much broader signification than it had originally, and was applied indiscriminately to the killing of relatives. It was sometimes even used to designate treason, or generally, any capital crime.�;ED.

[21] The scope of this law�;that took its name from a culeus, or leathernsack�; was vastly enlarged by the Lex Pompeia de Paricidiis, which virtually made every blood-relative, or person connected by affinity with the culprit, subject to its penalty. A dog, a viper, a cock, and an ape, were sewed up with him in the sack. The ancient writers have not assigned any reason for the selection of these singular companions that shared the fate of the murderer. If no body of water was at hand, the sack and its contents were exposed to wild beasts.�;ED.

[22] This was done in order to render access to the owner's property more convenient, to prevent conflagrations, and to facilitate the extinguishing of fire. — ed.

[23] "Quæstores Paricidii." These officials discharged the triple functions of detectives, State attorneys, and executioners. They were two in number, and are supposed by some authorities to have been identical with the urban quæstors of subsequent times, which conjecture, however, has no positive evidence to support it. They were originally appointed by the King, and, under the Republic, by the consuls. It was their duty to investigate and prosecute capital crimes, such as arson, murder, witchcraft, and the destruction of growing crops, all of which in ancient times were punishable with death. They summoned the Comitia, or Assembly of the People, for the trial of an offender, and executed the sentence after it had been pronounced. — Ed.

[24] The Romans, like all primitive peoples, originally worshipped their ancestors, of whom one, styled the lars familiaris, was always selected as the tutelary diety. The various ceremonies attending this worship were of a private character, and hence were entirely distinct from those performed in the temples and at the public altars. Religion being so closely interwoven with State affairs in the Roman polity, its mode of celebration was, in every instance, rigidly prescribed by law. — Ed.

[25] It was the custom at Rome, prior to the enactment of the Laws of the Twelve Tables, for the deceased relatives of the family to be buried in their own homes, which gave rise to the worship of the Lares, above referred to. The inconvenience and unsanitary results growing out of this practice no doubt contributed largely to its abrogation. — Ed.

[26] "Longæ Coronæ." This term, while obscure, would seem to refer to garlands of excessive size, exhibited by way of pomp and ostentation at the celebration of funeral rites. The greater part of the legislation of this Table was evidently framed for the correction of the inordinate display of wealth and luxury already becoming prevalent at the burial of the dead. — Ed.






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