The Twelve Tables | Page 9

at least as
early as the passage of the Lex Valeria in 509 B.C., for Cicero claims
that the pontifical as well as the augural books state that the right of
appeal from the regal sentences had been recognized (De Re Publica,
11. 31. 54).

[58] This statute is quoted by Cicero (De Legibus, III. 4. 11), who
inserts censores (censors) as the subject of the last verb locassint (have
placed). But the last clause must have been "modernized" either by
Cicero or in his source, because the promulgation of the Twelve Tables
in 449 B.C. antedated the creation of the censorship, which can not be
traced higher than 443 B.C., if we can believe Livy's account of its
institution (op. cit., IV. 8. 2-7). Before that time the consuls
superintended the lists of citizens.
[59] The first provision doubtlessly descends from a primitive tribal
tabu. Cicero supposes that the second provision is due to danger from
fire (De Legibus, II. 23. 58).
[60] In view of the simplicity enjoined in some of the following statutes
of this Table, for the decemvirs apparently took a dim view of
extravagant funerals, this statute seems to mean that a rough-hewn pyre
without elaborate smoothness of its wooden material suffices for the
cremation-couch of a citizen.
[61] Cicero says that some older interpreters suspected that some kind
of mourning-garment was meant by lessus, but that he inclines to the
interpretation that it signifies a sort of sorrowful wailing (De Legibus,
II.23.59)
[62] This provision is aimed at the common custom of prolonging
mourning by gathering and preserving unburied some part of the corpse.
When this part (os resectum) later had been buried, then only mourning
ceased. It is possible that some Romans may have thought that
cremation might be wrong or that its ceremony was inadequate.
[63] That is, in such a case a limb could be carried to Rome and then
buried.
[64] That is, a garland or a chaplet or a wreath as a prize of
achievement.
[65] A chattel, for example, is a slave or a horse who wins a wreath for
the owner.

[66] Cicero says that this statute seems to suggest fear of disastrous fire
(De Legibus, II. 24. 61).
[67] In the burning-mound also ashes were buried.
[68] This statute proved so unpopular that it soon was repealed by the
Lex Canuleia in 445 B.C.
[69] This process of "taking a pledge" is the seizure and the detention
of a debtor's property or part thereof to induce the debtor to pay the
debt before any other legal action will be taken.
It will be noticed that the two instances given in this statute concern
Sacred Law, with which by anticipation the fourth statute of this Table
likewise is concerned. Modern scholars place these two provisions
among the Supplementary Laws despite the temptation to set these
among the statutes of Table X, of which all but one item come from
Cicero's discussion of Sacred Law in his De Legibus, II. 23. 58-24. 61,
in the concluding portion of which Cicero seems to speak with some
finality that he has given all the regulations regarding religion found in
the Twelve Tables. Moreover these two rules come from Gaius, who
flourished more than two centuries after Cicero. But if every
Supplementary Law resembling the subject-matter of Tables I-X should
be advanced to the appropriate position forward, few would be the
statutes left in Tables XI-XII. It is merely coincidental that some of the
statutes among the Supplementary Laws should concern topics already
treated, for from the Romans we must not remove the faculty of
aftersight.
[70] Some scholars seek to place this provision in Table VIII, where it
seems properly to belong, despite its traditional position here.
This dislocation, coupled with that of the preceding provision, well
illustrates how hopeless is our reconstruction of the order of the
regulations of the Twelve Tables.
[71] That is, apparently, if a person with or without fraudulent intent
had held and claimed as his a thing which a judicial court now decided

belonged to another party.
[72] Retention of the article is deemed to have brought the defendant
some profit; therefore he must pay double this profit.
[73] Cf. second paragraph in note [69] supra.
[74] That is, the most recent law repeals all previous laws which are
inconsistent with it.
[75] Cicero says that many laws in the Twelve Tables exhibit this rule
(De Re Publica, II. 31. 54).

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