The Twelve Tables | Page 7

(patria potestas) nor under marital control (in manu mariti).
[22] Another version of this provision reads thus: "Debts bequeathed by inheritance shall be divided by automatic liability (ipso iure) proportionally [among the heirs], after the details shall have been investigated."
[23] That is, the judicial division of an estate by a iudex among the disagreeing coheirs.
[24] That is, double the proportionate part of the price or of the things transferred.
[25] This statute is set in Table I by some scholars.
[26] This probably means that a foreigner resident in Roman territory never can obtain rights over any property simply by long possession (usu-capio) thereof; but the meaning of auctoritas in this clause is disputed. At any rate usucapio is peculiar to Roman citizens.
This provision sometimes is placed in Table III by scholars.
[27] This is an exclusively patrician type of wedding, wherein is made a mutual offering of bread in the presence of a priest and ten witnesses.
[28] This type of wedlock, used originally by plebeians, is a fictitious sale, by which a woman is freed from either patria potestas or tutela. It comes perhaps from the primitive custom of bride-purchase.
[29] This method explains how a wife can remain married to a husband without remaining in his manus (rights of possession). If the usus be interrupted, the time of the usus must begin afresh, because the previous possession (usus) is considered as cancelled.
[30] Apparently tignum, as "timber" in English covers material for construction, includes every kind of material used in buildings and in vine-yards.
[31] This strip is reserved as a path between any two estates belonging to different owners. Both owners can walk on the whole space, but neither owner can claim possession of the strip through continued usage.
[32] In view of the ancient tradition that the decemvirs sent to Athens a committee to study the laws written by Solon (c. 639 B.C.--c. 559 B.C.) for the Athenians (Livy, op. cit., III. 33. 5), it may not be out of place to record what Gaius (ob. c. 180 A.D.) reports about marking boundaries (Digesta, X. 1. 13): "We must remember in an action for marking boundaries (actio finium regundorum) that we must not overlook that old provision which was written in a manner after the pattern of the law which at Athens Solon is said to have given. For there it is thus: 'If any man erect a rough wall alongside another man's estate, he must not overstep the boundary; if he build a massive wall, he must leave one foot to spare; a building, two feet; if he dig a trench or a hole, he must leave a space equal or about equal in breadth to depth: if a well, six feet; an olive tree or a fig tree he must plant nine feet from the other man's property and any other trees five feet.'"
While there is no evidence whatever that any enactment of the Twelve Tables reproduced in any form the terms of the Athenian statute here quoted, still the Twelve Tables may have contained some such provisions.
[33] What were these conditions we know not; all that we have from this item are the unbracketed words, which are quoted as examples of how words change their meanings and which are assigned to the Twelve Tables.
[34] Some scholars suppose that only branches over fifteen feet above ground are meant. In any case the idea is that shade from the tree may not damage a neighboring estate.
[35] We know that this item was interpreted to include prose as well as verse.
[36] Slander and libel are not distinguished from each other in Roman Law.
[37] The severity of the penalty indicates that the Romans viewed offence not as a private delict but as a breach of the public peace.
[38] Apparently an incantation against a person, for the ninth statute in this Table treats such practice against property.
[39] The penalty points to an incurable maim or break, because the next statute seems to provide for injuries which can be mended.
[40] Thus the injured person or his next of kin may maim or break limb for limb. Cf. the Mosaic lex talionis recorded in Leviticus, 24. 17-21.
[41] Most scholars connect this fragment with damage to property and conjecture that the rest of it must have been concerned with compensation for accidental damage.
[42] That is, the animal which committed the damage may be surrendered to the aggrieved person.
[43] From the context, wherein the unbracketed words are preserved, we can reconstruct the sense of this statute.
[44] Not apparently into one's own fields, but to destroy these where these were.
[45] Apparently into one's own fields by means of magical incantation.
[46] Properly the goddess of creation, occasionally (by extension) the goddess of marriage, usually the goddess of agriculture, especially the goddess of cultivation of grain and of growth of fruits in general.
Ceres