The Twelve Tables
Table #4Fathers
This and the next Table deal with what we would call family law. The chief topic is the power of fathers over children (and over wives): the patria potestas. As in early China, this was nearly absolute. In the family law area, it is only the exceptional or extreme cases that are specifically dealt with, leaving it to be inferred that normal cases continued to be governed by custom, and that law, at the stage of its development here reflected, had the function of adjudicating exceptions rather than that of defining norms.
4:01. A dreadfully deformed child shall be quickly killed (cito necatus).
It is understood that the power of the father does not extend to killing a son, but the case here described is a justifiable act, and does not count as a crime. Such a child should be killed "quickly" because once the child is accepted by being fed and nurtured, it acquires the expectations that go with human status.
4:02. If a father thrice sells his son [into slavery], the son shall be free of the father.
It is understood that the father could sell his son as a slave, and that if the owner later freed the son, the son came back under the father's control. The third such sale, however, is here considered to void the father's power of disposal, and the son, once freed by his owner, remains free of all persons. To paraphrase a famous line in the Chinese statecraft text Gwandz (middle 04c), the father must be a father. Ulpian (early 3c) remarks: "A son stands in his own right only when he has been thrice transferred and thrice manumitted." We know from Dionysius of Halicarnassus Antiq 2:27 (early 1c) that this provision was in Table 4, but not its position within that Table.4:03. [A wife may be repudiated by simply] taking away her keys and turning her out.
As in many other relationships, including many of the incidents of contract, the word of one qualified to give it is legally sufficient. There is no divorce at law, merely the husband's announcement to the wife. As in Kautilya and the Ancient Near Eastern codes, marriage as such is not treated in the Tables; only its interruption by divorce or other exceptional events. Cicero in referring to this passage (Philipp 2/28:69) mentions in a previous line "telling her to mind her own business." Though the form of Cicero's statement does not require us to treat this verbal dismissal as part of the Twelve Tables quote, it may have been part of the early Roman procedure. Roman law distinguished divortium (separation by mutual consent) and repudium (divorce by declaration of either party). Jewish law recognized unilateral divorce only as initiated by the husband. Mark 10:12 (1c), in mentioning the possibility of repudiation by the wife, may be reflecting Roman rather than Jewish tradition. This detail is sometimes cited, along with the many Latinisms in the book, in support of the identification of Mark as a "Roman Gospel." Of this later symmetry, there is in any case no hint in the Twelve Tables.
4:04. The birth of a human being shall be held to occur within ten months, not in the eleventh month.
The quotation (ascribed to the Decemviri) is from Gellius. Ulpian (citing the Law of the Twelve Tables) elaborates: "A child born after ten months since the father's death will not be admitted into a legal inheritance [as presumptively illegitimate]." An exactly similar provision is included in Kautilya's rules. Later children are presumed to be illegitimate, and thus not entitled to share in the inheritance.
Form. These are two fairly well-defined pairs of rules, one on the patria potestas, and one concerning eligibility for inheritance.
22 Feb 2006 / Contact The Project / Exit to Twelve Tables Page
