civil liberty, and was in some respects analogous to the habeas corpus act in the English law; but the appointment of a dictator was a suspension of the law. (b)

As the royal laws collected by Papirius had ceased to operate, except indirectly by the force of usage; and as the Romans, for twenty years after the expulsion of Tarquin, had been governed without any known public rules, (c) they began to suffer the evils of uncertain and unsteady laws, and of the absolute and capricious power of the consuls beyond the walls of the city. The call for a written law was a long time resisted on the part of the magistrates and senate; but it was at last complied with, and a commission of three persons, by the joint consent of the senate and tribunes, was instituted to form a system of law. This commission gave birth to the twelve tables, which form a distinguished era in the history of the Roman law, and constitute the commencement of what has been called the middle period of the Roman jurisprudence. (d)

walls of the city, and the magistrates wielded the sword with full sovereignty. Arnold's Hist. iii. 10.

(b) This great law of appeal was reënacted in the fifth consulship of M. Valerius Corvus.

(c) Incerto magis jure et consuetudine quam per latam legem. Dig. 1. 2. 3. (d) The Enchiridion of Pomponius says, that the deputies were commissioned to seek laws from the Grecian cities; (Dig. 1. 2. 2. 4;) and the original historians (Livy, b. 3, c. 31, 32), and Dionysius of Halicarnassus (Antiq. Rom. b. 10), say, that the deputation was sent to Athens to learn the laws and institutions of Greece. Gravina (De Ortu et Prog. Jur. Civ. sec. 32, and De Jure Nat. Gent. et XII. Tabularum, sec. 23), Heineccius (Hist. Jur. Civ. sec. 24, and Antiq. Rom. Jur. Proæm. sec. 3), Voet (Com. ad Pand. 1. 2. 1), Dr. Taylor (Hist. of the Roman Law, 8), Pothier (Præfatio seu Prolegomena in Pandectas Justinianeas, part 1, c. 1; De Legibus Antiquis), and the generality of modern writers on Roman history and law, assume it to be a conceded fact, on the authority of Livy, Dionysius, Cicero, Pliny, and others, that the embassy went to Athens. Tacitus (Ann. 3, 27) observes generally, accitis quæ usquam egregia, and the deputies must have visited at least the Grecian cities in lower tay. M. Bonaby, a learned French writer, has, however, written three dissertations upon the origin of the laws of the twelve tables, and he considers the story of a Roman deputation to Athens as fabulous. He endeavors to maintain, by an able discussion concerning the early history of the Roman constitution and laws, and by a critical and even profound examination of the laws of the twelve tables, that they were not borrowed from the jurisprudence of Athens, but that they were essentially a restoration of the ancient Roman laws under Romulus, Numa, and Servius Tullius, and which had gone into disuse under the consuls. He admits, however, that the plan of the mixed monarchy, and many of the Roman usages under the kings, had their origin in the usages of Athens and Sparta. (Mem. de l'Acad. des Inscriptions et Belles-Lettres, xviii. ed. Amst. 1743.) It is worthy of observation, that this sceptical as well as learned writer does not hesitate to assume, on the

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2. The Twelve Tables. * The twelve tables were digested by ten decemvirs, appointed, with the consent of the commons, out of the patrician order, on the return of the deputies from Greece. They were ratified by the consent equally of the patricians and plebeians, (a) and they consisted partly of laws transcribed from the institutions of other nations, partly of such as were altered and accommodated to the manners of the Romans, partly of new provisions, and mainly, perhaps, of laws and * 522 usages under their ancient kings. (b) They *were written

authority of Dionysius of Halicarnassus, the authenticity of the history of the Roman kings. Gibbon (Hist. viii. 8) is also decidedly of opinion that the deputation never visited Athens, and he gives plausible reason for his belief; and though Cicero says (De Leg. b. 2, c. 23 and 25) that the regulations in the twelve tables concerning funerals were translated from the laws of Solon, and the decemviri had adopted almost the very words of Solon, yet M. Bonaby very ingeniously relies upon Cicero, as one of the authorities in support of his hypothesis. Niebuhr, in his History of Rome (ii. ed. Phil. 1835, by Hare and Thirlwall, pp. 228–231), concludes that the deputies visited Athens, but that there is no resemblance between the Attic civil law and the twelve tables, either as to personal rights or judicial proceedings. But Niebuhr was evidently in an error when he says (ii. 231, note 7), that "nowhere does Cicero give the least hint that there was any Greek element in the twelve tables." He must have forgotten the passages from Cicero, de Legibus, to which I have referred.

(a) Niebuhr (Roman History, ii. 235, ed. Phil. 1835), says that the code of the decemvirs, being approved by the senate, was brought before the centuries, and their assent was ratified by the curia, under the presidency of the colleges of priests, and the sanction of happy auspices.

(b) Gravina, de Ortu et Prog. J. C. sec. 32; Niebuhr's Hist. of Rome, ii. 248, 251, note, 253. Niebuhr says that the twelve tables were nothing more than the ancient statutes consolidated. A learned writer of our own country, in the New York Review for October, 1839, who avows his education and shows his acquirements in the European schools of the civil law, gives very solid reasons for his opinion that the code of the twelve tables was essentially declaratory of ancient laws and usages. Fragments of the twelve tables were collected, and distributed with great accuracy under their original and proper divisions, by J. Gothofred, in a work entitled, Quatuor Fontes Juris Civilis, printed in 1653; and his collection, Heineccius says (Antiq. Jur. Rom. Proæm. sec. 5), is to be preferred to that of all others. His collection, distribution, and interpretation of the tables has been followed by Gravina, who has inserted the originals with a paraphrase at the conclusion of his treatise De Jure Naturali Gentium et XII. Tabularum. He has also given a copious commentary upon that collection. They were redigested and inserted at length in a voluminous L'Histoire Romaine of the Jesuits Cotrou and Rouille, and copied from them into Hooke's Roman History, b. 2, c. 27. A summary of this curious and celebrated code, which had such permanent influence on Roman jurisprudence, and is so constantly alluded to by Roman jurists, will not be unacceptable to the American student.

The 1st table related to law suits, and regulated the right of citation of the defendant before the prætor. The creditor, of his own authority, seized his debtor, where

in a style exceedingly brief, elliptical, and obscure; and they show the great simplicity of Roman manners, and are evidence of a

he found him in public, and carried him before the prætor, and if the debtor resisted, the creditor might seize and drag him. Ambula in jus — Te in jus voco; and if old or infirm, the plaintiff was to provide him with a jumentum, or open carriage. (But even this provision was reprobated in after ages for its severity. A. Gell. Noct. Att. 20, 1.) The debtor, if he wanted time, was obliged to give a caution or bail for his appearance at a future day. The prætor was to decide the cause promptly by day. light; and if the accuser wanted witnesses, he was allowed to go before his adversary's house, and to repeat his demand for three days together by loud outcry. Mr. Justice Ware, of the District Court of Maine, has given, in the case of Lane v Townsend, Ware, 299, a brief account of the commencement and progress of a Roman suit in its first stages. It is an interesting examination, and sheds much learning and light on the obscure subject; and points out inaccuracies not only in Brown's Civil and Admiralty Law, but in Blackstone's Commentaries, in respect to the stipulation or bail required of the defendant in the suit. Dr. Arnold, in his History of Rome, i. 280, says, that our whole knowledge of the old actions at law is derived from the Institutes of Gaius, which, in their original form, were discovered by Niebuhr in 1816.

The 2d table related to robbery, theft, trespass, and breaches of trust. It allowed the right to kill a robber by night. It inflicted corporal punishment and slavery on conviction of robbery, unless the parties settled with each other. Slaves, guilty of robbery, were to be thrown down the Tarpeian rock. Thefts and trespasses were punished by pecuniary mulct. Trespassers by night, on harvest or cornfields, were punished capitally, as victims to Ceres. No term of prescription gave a right to stolen goods, nor any right of a foreigner to the goods of a Roman citizen. Breaches of trust were punished with the forfeiture of double the value of the deposit.

The 3d table related to loans, and the right of creditors over their debtors. It prohibited more than one per cent interest for money. (The weight of authority would seem rather to be in favor of one per cent a year, though Montesquieu insists that interest at the time of the twelve tables was twelve per cent a year, and that the law reducing it to one per cent was passed many years afterwards. Esprit des Lois, liv. 22, c. 22. In this construction he is supported by Livy, b. 7, c. 27. But Tacitus says, that the twelve tables restrained usury to one per cent a year. Tacit. Ann. lib. vi. 16. And this is the construction given to the words Si qui unciario fœnore amplius fæenerassit, by the generality of commentators. Pothier's Pandecta Justinianeæ, i. Frag. XII. Tab.; Gibbon, viii. 86, note. It is, however, a doubtful question whether the twelve tables allowed only one or twelve per cent a year. Professor Hugo, of the University of Göttingen, in his History of the Roman Law, sec. 126, inclines to the latter opinion. A recent writer on this vexatious point in Roman history holds it to be quite clear that the uncial rate of interest of the Romans was an ounce in every as for the cyclic year of ten months, that is, eight and a half per cent, equivalent to ten per cent for the civil year of twelve months. Foreign Quarterly Review, No. 22, art. 6. This is the conclusion to which Niebuhr and Dr. Arnold arrive. (History of Rome, by N. iii. 53, 57; History of Rome, by A. i. 284.) The debtor was to have thirty days after judgment to pay his debt; and if he did not then pay or give security, or sell himself by entering into the nexum, his creditor had a right to seize him, load him with chains of a certain weight, and treat him as a slave, on a prescribed scanty allowance; and if he failed to pay after being sixty days in prison, he was to be brought before the people on three market days, and

523 people under a rugged police, and very considerably advanced in civilization. They contain a great deal of

the debt proclaimed; if no friend appeared, he was either to be put to death or sold as a slave into Etruria; and if there were several creditors, he might at their election be sold beyond the Tiber, or his body cut into pieces. Gibbon (Hist. viii. 92) takes this law in the literal sense, and so does Gravina, de Jure Nat. Gent. et XII. Tab. sec. 72; and he adopts the argument of Sextus Cæcilius, in A. Gell. Noct. Att. 20, 1, who maintained that the law was only cruel in appearance, and that he had never read or heard of its being executed, for its extreme severity prevented the creation of debt. Montesquieu well observes, that, upon such reasoning, the most cruel laws would be best; and he thinks the better construction to be, that the law only related to the division of the debtor's property. Esprit des Lois, b. 29, c. 2. Bynkershoek, Observ. Jur. Rom. lib. i. c. 1, and Heineccius, Antiq. Rom. lib. iii. tit. 30, sec. 4, are of the same opinion. Pothier, in his introduction to his Pandecta Justinianeæ, has inserted the fragments of the twelve tables, as they were restored by Gothofredus, and he has illustrated them by brief notes and commentaries. He is for a literal construction of this part of the twelve tables, and he says this was the construction of all the writers of antiquity who make mention of them, such as Quintilian, Tertullian, and A. Gellius. Professor Hugo is also obliged to renounce the metaphorical, and follow, with the ancients, the literal interpretation of the twelve tables on this subject. Histoire du Droit Romain, par G. Hugo, traduite de l'Allemand par Jourdan, i. 233, sec. 149. Niebuhr, in his History of Rome, ii. 597, takes the law literally, and says that no sound-headed person ought to construe it otherwise. He says its severity was designed to compel the debtor to redeem himself, or to enter into a nexum, by which he became liable to pay interest, and to work out his debt by labor. Gravina, de Jure Nat. Gent. sec. 21, says there are grounds to conclude that the leges regia, with the exception of such as relate to regal domination, were incorporated into the first three of these twelve tables. The 4th table related to the rights of fathers and families. It gave to fathers the power of life and death and of sale over their children, and the right to kill immediately a child born deformed. On the other hand, and as some compensation for these atrocious provisions, it declared, that if a father neglected to teach his son a trade, he was not obliged to maintain his father when in want; nor was an illegitimate child bound to maintain his father.

The 5th table related to inheritances and guardianships. It declared, that if the father died intestate (for he had a right to dispose of his property by will), and had no children, his nearest relations were to be his heirs; and if he had no relations, a man of his own name was to be his heir. He had the right to appoint guardians to his children. If a freedman died intestate and without heirs, his effects went to the family of his patron. The heirs were to pay the debts of the ancestor in proportion to their share of his estate. It also provided, in the case of lunatics and prodigals, that the relations, and if none, that one of the name, was to have the care of the person and estate. If he left children, the sons and daughters inherited equally; but though daughters inherited on an equal footing with the sons, yet they became wards to their brothers; and all women were, at all times of their lives, and under all circumstances, under guardianship and civil disabilities. (Dr. Arnold, in his History of Rome, i. 257-295, has examined the state of the Roman law, as left by the decemvirs, with great research and ability.)

The 6th table related to property and possession. It declared that the title of goods should not pass on sale and delivery, without payment. Two years' possession

wisdom and good sense, intermixed with folly, injustice, and cruelty. They were engrossed on tablets of wood, 524

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amounted to a right of prescription for lands belonging to private individuals, provided the possession was not obtained by force or fraud, and one year for movables It likewise declared, that in litigated cases, the presumption should always be on the side of the possessor; and that in disputes about liberty and slavery, the presumption should always be on the side of liberty. All sales of land or movables were by deliv. ery (mancipatio) verbally, in the presence of witnesses.

The 7th table related to trespasses and damages. It provided that compensation be made for trespasses; and that for arson or maliciously setting fire to a house, or to grain near to it, the offender was to be scourged and burnt to death. The lex talionis was applied to losses of limb, unless the injured party accepted some other satisfaction. A pecuniary fine of three hundred pounds of brass was declared for dislocating a bone, and twenty-five asses of brass for a common blow with the fist. (It is related in the Noct. Att. 20, 1, that one Lucius Neratius, in after times, when the city became wealthy, and such a fine insignificant, amused himself with striking freedmen in the face as he met them in the street, and then ordering his servant, who followed him for the purpose with a bag of brass money, to count out and tender the twenty-five pieces, as the compensation fixed by law.) It was provided, also, by this table, that slanderers, by words or verses, should be beaten with a club. False witnesses were to be thrown headlong from the capitol, and parricides were to be sewed up in a sack and thrown into the Tiber. Whoever wilfully killed, or poisoned, or prepared poison for a freedman, or used magical words to hurt him, was punishable as a homicide. Guardians and patrons who acted fraudulently in their trust were to be fined and held odious.

The 8th table related to estates in the country. It required a space of two and a half feet to be left between every house; and it allowed societies or private companies to make their own by-laws, not being inconsistent with the public law. The prætor was to assign arbitrators in cases of disputes about boundaries; and it provided redress for nuisances to fields by the shade of trees, or by watercourses. It required roads to be eight feet wide, and double at corners. It allowed travellers to drive over the adjoining land, if the road was bad.

The 9th table was concerning the common rights of the people. It prohibited all special privileges to any person, and it restored debtors, who had been redeemed from slavery to their former rights. It made bribery, in a judge or arbitrator, or the holding or attending seditious assemblies in the city by night, or delivering up a Roman citizen to a foreigner, or soliciting a foreigner to declare himself against Rome, capital offences. It declared that all causes relating to the life, liberty, or rights of a Roman citizen should be tried in the comitia centuriata. The people were to choose quæstors to take cognizance of capital cases. (The burghers of the city of Rome, in the early period of the commonwealth, engrossed the wealth and the foreign commerce, and were the patricians and money-lenders, while the free commoners, who were agriculturists on small farms in the country, adjoining the city, were forbidden to engage in commerce, and were the money-borrowers, ard suffered greatly from hostile incursions, and were poor and oppressed. Arnold's History of Rome, i. 135.

The 10th table related to funerals. It prohibited the dead to be interred or burnt within the city, or within sixty feet of any house. It prohibited all excessive wailings at funerals, and women from tearing their faces or making hideous outcries on such occasions. It regulated and limited the expense of funeral piles, and ill costl