The Twelve Tables
Table #1Trials
It is noteworthy that bringing someone to judgement was the responsibility of the complainant; the state did not arrest accused persons or otherwise compel their presence before a magistrate. The proceedings here envisioned are dispute resolution rather than enforcement of state-proclaimed law. The typical dispute is between persons of means, with one disputant of his own volition has recourse to judgement. It is assumed that one disputant must compel the other to appear; this embodies a presumption that the complainant is in the right. The danger of that presumption was recognized by Kautilya (India, late 04c).
1:01. If he [a complainant] summons (vocat) another to court, he shall go. If he does not, [the complainant] shall give him fair warning (antestamino), and only then use force (capito).
Note the lack of intermediation, or enforcement, by the state. 1:02. If [the defendant] declines, or tries to run away, he may lay hands on him. This appears to be an expansion or alternate statement of the preceding provision; it should perhaps be regarded as part of the same provision. Its point is that force is justified only by certain signs of refusal on the part of the defendant. The word or act of the one is the necessary grounds for the deed of the other.
1:03. If disease or age are an impediment [to the defendant's appearing], he shall provide transport (iumentum), but unless he wishes, he need not provide a cushioned or covered carriage.
The latter would show due consideration for age and infirmity, but only the basic means of attendance are technically required. Cicero (de Leg 2:49) shows that these provisions stood at the head of the code.1:04. For a landowner, only another landowner (adsiduus) shall be guarantor (vindex); for a commoner (proletario), anyone who is willing shall be guarantor.
An economically lower person cannot represent an economically higher one. The guarantor in some sense assumes the obligation of the defendant, and so must be capable of meeting any later prescribed penalties. This hearing is a preliminary one, originally before a magistrate (consul); the parties themselves must presumably be present at any later appearance before a judge (iudex); see 1:06 below. The Baushan laws (China, 0318) imply the same procedure: a preliminary hearing to take testimony and determine facts, and a second one (if necessary) to render judgement and dispose of the case.
1:05. There shall be the same right [of bond and conveyance] for the loyal (forcti) as for those returned to allegiance (sanates; later Latin sanati).
Festus explains that this refers to the Italian peoples who had always been loyal to Rome, as well as those which had revolted but later submitted. No legal disability applies in the latter case. The submission obliterates the disloyalty, and restores full standing. Right inheres in the category, not in the process by which the category was obtained.1:06. If the parties reach agreement (pacunt), it shall be announced. When they do not, they shall state their case in chambers or in the forum before noon.
Lawsuits, then as now, are sometimes means of compelling agreement between disputants. When the law is used in this way, the result is formally announced by the legal authorities, and itself acquires legal force.
1:07. They shall state their case together (ambo) and in person (praesentes).
Closely connected with the preceding; we here make it a separate but paired rule.1:08. After noon, the judge shall render decision to those present.
The procedural complement to 1:06-07; see next.
1:09. If both are [still] present, sunset shall mark the termination of proceedings.
The requirement of a single day suggests primitive procedures, and incidentally guarantees prompt decisions. As to form, Warmington makes a single provision of 1:06-09, which may be going too far.SURETIES
1:10. [ . . . sureties (vades),
1:11. . . . subsureties (subvades)].
These were apparently advance pledges of compliance with the decision of the judge. We do not know what else may have been provided for in this part of the code, which may indeed run on continuously to Table 2. Gellius (c130-c180) at 16/10:6 remarks that he is reading the Twelve Tables, but only in an antiquarian spirit, since later laws have rendered its provisions wholly obsolete. The obsolete terms he cites are proletarii (1:04), adsidui (1:04), sanates (1:05), and the present vades and subvades (1:10), plus some terms occurring in later Tables. His order of citation is one evidence for the order of the original material. He concludes "All that archaic lore of the Twelve Tables . . . was put to sleep by the passing of the Aebutian Law (c0150)." For purposes of the present argument (for which see further under Table 2), we may consider that there were originally at this point two provisions: one for surety, and one for subsurety, the two constituting a pair.
Form. Regarding 1:02 as being part of the same rule as 1:01, and construing 1:03 as paired with it; and regarding 1:07 and 1:09 as belonging with 1:06 and 1:08 respectively, we would then have for this topic five pairs of rules: two pairs on the preliminaries, two on the trial itself, and one on the guarantees that the judgement would be carried out. It is conceivable that something like this structure characterized the original document. Pairing would have been an aid to memory, and from Cicero we know that in his youth, the Twelve Tables were in fact memorized by aspiring orators.
Writing. At no point in the Twelve Tables so far are written documents implied. All agreements, evidence, testimony, and judgements, are rendered in speech. Disputants or their representatives must be present in real time, there is no substitution by documentary testimony. The requirement of promptness implies an oral society. By contrast, documentary traditions such as the one implied in the Baushan texts (China, 0318), may be protracted: among these documents are inquiries as to why some case of several months previous has not been disposed of. That represents a typologically later stage.
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