Saturday, January 9, 2010

Lex Romanum: ALL LAWS LEADS TO ROME: A PRIMER ON THE ROMAN LEGAL SYSTEM


Lex Romanum
By Gaius Basilicatus Agricola

Former Scriba Curatoris Differum Lex Iuridicialis
ALL LAWS LEADS TO ROME: A PRIMER ON THE ROMAN LEGAL SYSTEM :


The Twelve Tables

The title is, like the Law, a bit misleading. Not all countries can be said to have adapted a codification system similar to Roman Law. However, I believe the influence Roman Law has had on every legal system has shaped every civilized culture worldwide. This article will give the student who has a cursory interest in Roman Law and Legal History the basics to research areas of interest to them.


Roman Law was the jurisprudence system in effect throughout the age of antiquity in the City of Rome and, later, in the Roman Empire. When Roman rule over Western Europe faded out, Roman Jurisprudence was for the most part forgotten. The study of Church Canon Law became the preferred subject of serious scholars. There was a renewed interest in the law of the Romans in Medieval times, around the 11th Century. The University of Bologna was the first medieval university where Roman Law was studied. Most universities followed suit. The resurrection of Roman law at this time was a unique event in legal history and, arguably, changed the future of European law. “Shadowy figures with unusual names like Pepo and Irnerius began to teach the law of the ancient Romans at Bologna” (“Roman and Secular Law in the Middle Ages”, Kenneth Pennington).


The law taught at this time was late imperial law that had been compiled, or “codified”, by the Emperor Justinian in the sixth century. His codification, the Corpus Iuris Civilis, provided the text for teaching Roman law in the eleventh century. Its legal doctrines provided jurists with a detailed model for contracts, procedural rules, family law, wills and estates, and support for a strong monarchical constitutional system. Six hundred years after his death, the name “Justinian” became synonymous with “legislator” and “codifier”. The word “justice”, however, does have its own separate Latin origin.


Soon Roman Law came to be applied in legal practice--especially in the area of civil law. This process of adoption of Roman Law occurred over a period of time across all of Europe (England being an exception, and the subject of an upcoming article). Thus from the 16th century onward, Roman Law was in effect throughout most of Europe. It should be noted that in the process of adopting Roman law, many Roman rules were merged with the regional customs and traditions. Thus, Roman rules, applied in Europe at this period, were not identical with Roman Law from antiquity. Nonetheless, because the law that had evolved had an essentially Roman basis, common in all European countries, it was called the Ius Commune (common law). In many regions of the German Reich, Roman Law remained the primary source of legal rules until the introduction of the German Civil Code in 1900. Even today a special branch of the Ius Commune, known as Roman-Dutch Law, is the basis of the legal system in the Republic of South Africa. (“Basics of Roman Law”, Thomas R├╝fner.) It is understandable that after 600 years of living and litigating under systems so closely based on Roman Law, many modern systems contain basic Roman legal concepts.


So, where did it all begin?


THE TWELVE TABLES


On a personal note, I love the Twelve Tables, more out of morbid fascination than professional curiosity. Dated to 450 BCE, in it are contained the basics, the bedrock, of Roman life and attitude towards life, harsh yet fair for the times they lived in: the proper circumstances for exposing and killing your child; compelling witnesses to testify by standing outside the witness’s house and screaming; and, of course, a lesson in math and human reproduction “A child born after ten months since the father's death will not be admitted into a legal inheritance.” Simple.


To the point. Clear. Laconic. No prolix or discursive waste. Here they are:

Table I.


1. If anyone summons a man before the magistrate, he must go. If the man summoned does not go, let the one summoning him call the bystanders to witness and then take him by force.
2. If he shirks or runs away, let the summoner lay hands on him.
3. If illness or old age is the hindrance, let the summoner provide a team. He need not provide a covered carriage with a pallet unless he chooses.
4. Let the protector of a landholder be a landholder; for one of the proletariat, let anyone that cares, be protector.
6-9. When the litigants settle their case by compromise, let the magistrate announce it. If they do not compromise, let them state each his own side of the case, in the comitium of the forum before noon. Afterwards let them talk it out together, while both are present. After noon, in case either party has failed to appear, let the magistrate pronounce judgment in favor of the one who is present. If both are present the trial may last until sunset but no later.


Table II.


2. He whose witness has failed to appear may summon him by loud calls before his house every third day.


Table III.


1. One who has confessed a debt, or against whom judgment has been pronounced, shall have thirty days to pay it in. After that forcible seizure of his person is allowed. The creditor shall bring him before the magistrate. Unless he pays the amount of the judgment or some one in the presence of the magistrate interferes in his behalf as protector the creditor so shall take him home and fasten him in stocks or fetters. He shall fasten him with not less than fifteen pounds of weight or, if he choose, with more. If the prisoner chooses, he may furnish his own food. If he does not, the creditor must give him a pound of meal daily; if he chooses he may give him more.

2. On the third market day let them divide his body among them. If they cut more or less than each one's share it shall be no crime.


3. Against a foreigner the right in property shall be valid forever.

Table IV.


1. A dreadfully deformed child shall be quickly killed.
2. If a father sells his son three times, the son shall be free from his father.
3. As a man has provided in his will in regard to his money and the care of his property, so let it be binding. If he has no heir and dies in testate, let the nearest agnate have the inheritance. If there is no agnate, let the members of his gens have the inheritance.
4. If one is mad but has no guardian, the power over him and his money shall belong to his agnates and the members of his gens.
5. A child born after ten months since the father's death will not be admitted into a legal inheritance.


Table V.


1. Females should remain in guardianship even when they have attained their majority.


Table VI.


1. When one makes a bond and a conveyance of property, as he has made formal declaration so let it be binding.
3. A beam that is built into a house or a vineyard trellis one may not take from its place.
5. Usucapio of movable things requires one year's possession for its completion; but usucapio of an estate and buildings two years. (usucapio is the basis for adverse possession-author’s note).
6. Any woman who does not wish to be subjected in this manner to the hand of her husband should be absent three nights in succession every year, and so interrupt the usucapio of each year.


Table VII.


1. Let them keep the road in order. If they have not paved it, a man may drive his team where he likes.
9. Should a tree on a neighbor's farm be bend crooked by the wind and lean over your farm, you may take legal action for removal of that tree.
10. A man might gather up fruit that was falling down onto another man's farm.


Table VIII.


2. If one has maimed a limb and does not compromise with the injured person, let there be retaliation. If one has broken a bone of a freeman with his hand or with a cudgel, let him pay a penalty of three hundred coins If he has broken the bone of a slave, let him have one hundred and fifty coins. If one is guilty of insult, the penalty shall be twenty-five coins.
3. If one is slain while committing theft by night, he is rightly slain.

4. If a patron shall have devised any deceit against his client, let him be accursed.
5. If one shall permit himself to be summoned as a witness, or has been a weigher, if he does not give his testimony, let him be noted as dishonest and incapable of acting again as witness.
10. Any person who destroys by burning any building or heap of corn deposited alongside a house shall be bound, scourged, and put to death by burning at the stake provided that he has committed the said misdeed with malice aforethought; but if he shall have committed it by accident, that is, by negligence, it is ordained that he repair the damage or, if he be too poor to be competent for such punishment, he shall receive a lighter punishment.
12. If the theft has been done by night, if the owner kills the thief, the thief shall be held to be lawfully killed.
13. It is unlawful for a thief to be killed by day....unless he defends himself with a weapon; even though he has come with a weapon, unless he shall use the weapon and fight back, you shall not kill him. And even if he resists, first call out so that someone may hear and come up.
23. A person who had been found guilty of giving false witness shall be hurled down from the Tarpeian Rock.
26. No person shall hold meetings by night in the city.

Table IX.


4. The penalty shall be capital for a judge or arbiter legally appointed who has been found guilty of receiving a bribe for giving a decision.
5. Treason: he who shall have roused up a public enemy or handed over a citizen to a public enemy must suffer capital punishment.
6. Putting to death of any man, whosoever he might be unconvicted is forbidden.

Table X.


1. None is to bury or burn a corpse in the city.
3. The women shall not tear their faces nor wail on account of the funeral.
5. If one obtains a crown himself, or if his chattel does so because of his honor and valor, if it is placed on his head, or the head of his parents, it shall be no crime.


Table XI.


1. Marriages should not take place between plebeians and patricians.


Table XII.


2. If a slave shall have committed theft or done damage with his master’s knowledge, the action for damages is in the slave's name.
5. Whatever the people had last ordained should be held as binding by law.

The Twelve Tables were written by ten men, the Decemviri Consular Imperio Legibus Scribundis, (the 10 Consuls) who were given unprecedented powers to draft the laws of the early Republic. Originally only ten laws were drafted, but two others were added, prohibiting marriage between the classes and affirming the binding nature of traditional law, what I believe to be the Western legal concept of “precedence”.


In the Twelve Tables even a layperson may recognize simple legal concepts and phrases to which we take for granted. Take, for instance, Table XI, number 6:
“Putting to death of any man, whosoever he might be unconvicted is forbidden.”


You can’t kill a man without, essentially, due process of law. Due process, a cherished, coveted, and sometimes much abused Constitutional right, so close to the heart of the American criminal defense attorney, has its origins in The Twelve Tables.


Cicero, writing in the “De Oratore” comments on his love for the Twelve Tables:
“Though all the world exclaim against me, I will say what I think: that single little book of the Twelve Tables, if anyone look to the fountains and sources of laws, seems to me, assuredly, to surpass the libraries of all the philosophers, both in weight of authority, and in plenitude of utility.”


The Twelve Tables is also the earliest surviving piece of literature coming from the Romans. From it one can discern class struggle, sexism, the basics of civil rights, the law of patronage, slave ownership, and the implied right of patricians to lead in war, religion, law, and government. It is also apparent from its contents that the Romans, at this time, are still a largely agrarian society.


The originals are, according to legend, to have been cast in bronze, and displayed in public. Further legend has them being destroyed by the lawless Gauls during their sack of Rome in 387 BCE. Other sources claim they were carved into ivory tablets. The Twelve Tables are mentioned by Roman writers under a variety of names: Leges Decemvirales, Les Decemviralis, Leges XII, and Lex XII. Tabularum or Duodecim, and sometimes they are referred to under the names of Leges and Lex simply, as being pre-eminently “The Law”.


Jus, or Law, was divided into Publicum and Privatum by the Roman jurists. Publicum Jus is defined to be that which relates to the Status Rei Romanae, or to the Romans as a State; Privatum Jus is defined to be that which relates to just one man. The Twelve Tables contained both types of Law, which related to the State and areas the State had an interest in regulating, and, essentially, the process by which private citizens may sue one another. It was common for educated boys, up unto the time of Cicero, to memorize the Twelve Tables. In the time of Cicero, edicts (written decisions from judges concerning certain legal issues) had gained preeminence over the Tables, however, the Tables were never repealed. They became the foundation of the Jus Civile, and they continued to exist together with the common tradition and customs as they evolved. Roman Law that grew up in the course of time existed in harmony with the Twelve Tables, and was a development of their fundamental principles. (George Long, M.A., Fellow of Trinity College).

3 comments:

  1. I think you have made a classic mistake in the opening remarks. You do two things that are pretty much out of date: one is to assume that the Lex Romanum "died out", and the next to to draw a too fine distinction between religious law and civil law; when in effect they were part of the same imperial system since Constantine. By the late empire the in the German provinces, Gaul and Britain were pretty much Germanised having provided a German Emperor at one point, who held court in Germany.
    By the time the Franks took over Gaul, they abandoned their own langauge and legal systems and directed adopted the local legal systems, and conquered through continuity. When the Northmen, having also adopted the lex Romanum in Normandy brought with them the legal system that established their domination of the peoples of Britain.
    If you make the anachronistic mistake of comparing the early lex of Rome with that of the early post-imperial medieval systems you might want to think that the LR was lost, but you would be ignoring 100s of years of christianisation and evolution.
    Fact is that the transition from Rome to "barbarian" kingdoms was a lot more smooth than the Victorian historian would have understood. And your opening remarks seem to suggest that you might also be repeating those mistakes

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  2. This comment has been removed by the author.

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  3. I think you have made a classic mistake in the opening remarks. You do two things that are pretty much out of date: one is to assume that the Lex Romanum "died out", and the next to to draw a too fine distinction between religious law and civil law; when in effect they were part of the same imperial system since Constantine. By the late empire the in the German provinces, Gaul and Britain were pretty much Germanised having provided a German Emperor at one point, who held court in Germany.
    By the time the Franks took over Gaul, they abandoned their own langauge and legal systems and directed adopted the local legal systems, and conquered through continuity. When the Northmen, having also adopted the lex Romanum in Normandy brought with them the legal system that established their domination of the peoples of Britain.
    If you make the anachronistic mistake of comparing the early lex of Rome with that of the early post-imperial medieval systems you might want to think that the LR was lost, but you would be ignoring 100s of years of christianisation and evolution.
    Fact is that the transition from Rome to "barbarian" kingdoms was a lot more smooth than the Victorian historian would have understood. And your opening remarks seem to suggest that you might also be repeating those mistakes

    ReplyDelete