Roman Law
11/12/2007
Outline
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XII TABLES: slavery (cont’d); Patronage; Delict
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1.
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Livy 2.5. [The story
begins with a conspiracy to restore the Tarquins in 507 B.C. right after
their expulsion. The conspirators
were caught as the result of the report of an informer, and the conspirators
were executed.] “After the
execution, the informer was rewarded; in addition to a gift of money he was
granted his liberty with citzen rights.
It was hoped that this measure might double the effect of the
execution as a deterrent. The
informer is said to have been the first slave to be emancipated by touching
with the vindicta (staff); some
think that the word vindicta was
derived from his name, Vindicius. It
was the custom subsequently to regard all slaves who were freed in this way
as admitted to the rights of citizenship.”
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2.
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DH 2.9.1: “After Romulus had
distinguished those of superior rank from their inferiors, he next
established laws by which the duties of each were prescribed. The patricians were to be priests,
magistrates and judges, and were to assist him in the management of public
affairs, devoting themselves to the business of the city. The plebeians were excused from these
duties, as being unacquainted with them and because of their small means
wanting leisure to attend to them, but were to apply themselves to
agriculture, the breeding of cattle and the exercise of gainful
trades. This was to prevent them
from engaging in seditions, as happens in other cities when either the
magistrates mistreat the lowly, or the common people and the needy envy
those in authority. He placed the
plebeians as a trust in the hands of the patricians, by allowing every
plebeian to choose for his patron any patrician whom he himself wished . .
. . The regulations which he then instituted concerning patronage and which
long continued in use among the Romans were as follows: It was the duty of the patricians to
explain to their clients the laws, of which they were ignorant; to take the
same care of them when absent as present, doing everything for them that
fathers do for their sons with regard both to money and to the contracts
that related to money; to bring suit on behalf of their clients when they
were wronged in connexion with contracts, and to defend them against any
who brought charges against them; and, to put the matter briefly, to secure
for them both in private and in public affairs all that tranquillity of
which they particularly stood in need.
It was the duty of the clients to assist their patrons in providing
dowries for their daughters upon their marriage if the fathers had not
sufficient means; to pay their ransom to the enemy if any of them or of
their children were taken prisoner; to discharge out of their own purses
their patrons’ losses in private suits and the pecuniary fines which they
were condemned to pay to the State, making these contributions to them not
as loans but as thank-offering; and to share with their patrons the costs
incurred in their magistracies and dignities and other public expenditures,
in the same manner as if they were their relations. For both patrons and clients alike it was
impious and unlawful to accuse each other in law-suits or to bear witness
or to give their votes against each other or to be found in the number of
each other’s enemies; and whoever was convicted of doing any of these
things was guilty of treason by virtue of the law sanctioned by Romulus,
and might lawfully be put to death by any man who so wished as a victim
devoted to the Jupiter of the infernal regions.”
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3.
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The story of Lucius Veratius:
Labeo ... in the books that he wrote on the twelve tables: ... L. Veratius
was an egregious nuisance and a frightful fool besides. He enjoyed slapping
free men in the mouth. A slave followed him carrying a purse full of asses,
so that whenever he slapped someone, he immediately ordered that
twenty-five asses be counted out according to the XII Tables. On account of
this, (Labeo) says, the praetors thought that this law was obsolete and to
be abandoned, and they made an edict that they would give recuperatores for estimating iniuria.
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4.
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Henry Maine, Ancient Law
163-65 (5th ed. 1888):
The movement of progressive societies has been uniform in one respect.
Through all its course it has been distinguished
by the gradual dissolution of family dependency and the growth of
individual obligation in its place. The individual is steadily substituted
for the family, as the unithy of which civil laws take account. ... Not is
it difficult to see what is he tie between man and man which replaces by
degrees those forms of reciprocity in rights and duties whih have their
origin in the Family. It is Contract. Starting, as from one terminus of
history, from a condition of society in which all the relations of Persons
are summed up in the relations of Family, we seem to have steadily moved
towards a phase of social order in which all these relations arise from the
free agreement of individuals. In Western Europe
the progress achieved in this direction has been considerable. Thus the
status of the Slave has disappeared-it has been superseded by the
contractual relation of the servant to his master. ... All the forms of
Status taken notice of in the Law of Persons were derived from, and to some
extent are still coloured by, the powers and privileges anciently residing
in the Family. If we then emply Status, agreeably with the usage of the
best writers, to signify these personal conditions only, and avoid applying
the term to such conditions as are the immediate or remote result of
agreement, we may say that the movement of the progressive societies has
hitherto been a movement from Status
to Contract.
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