Besides drawing up a general code of laws, they were also commissioned to settle the constitution on the basis of equality between the two orders. In this constitution which they worked out, the tribunate was to be done away with, and the supreme authority to be held by men of both classes. The five last names which Livy mentions in the second decemvirate, are plebeian, from families which do not occur in the Fasti before the Licinian laws. Three among them, Dionysius expressly names as such; with regard to the two others, who, it is stated, were chosen by Appius and the chief men from the lesser clans, it is equally evident to any one who knows the Roman houses, and therefore Livy places them at the bottom of the list. The mistake of Dionysius arises from his having confounded the two decemvirates. The first decemvirate represented the decem primi of the senate, chosen by the centuries from a προβούλευμα of the Patres; the second, on the contrary, was a συναρχία after the pattern of the archons of Attica, perhaps even originating in the knowledge of the Athenian laws. The second election was quite different; the most eminent as well as the most humble patricians solicited the votes of the plebeians. Here for the first time we meet with canvassing, and therefore perfect freedom of election. There were six Tribuni Militares, three patricians and three plebeians, who were intrusted with the real command in war: of the rest, two are to be considered as invested with the censorial power, combined with that of the Præfectus Urbi, and with the presidency of the senate; the two others, with the authority of the quæstors, being also in certain cases charged with military functions. Of course, in each of these two pairs were also one patrician and one plebeian. If, therefore, Dionysius had read that there were three patrician and three plebeian Tribuni Militares, he might,—as the old books were surely written in very obscure language,—have easily overlooked the circumstance that the other four were likewise equally divided among the two orders. The three plebeians, acknowledged as such by Dionysius, are Q. Poetelius, C. Duilius, and Sp. Oppius.
This constitution was intended to last for ever, and it is easy to see what was the object which its authors had before them, and in what manner it was secured. From that time, the distinctions between the older and the younger clans (gentes majores and minores), altogether disappear. These lawgivers took the same view of the state, as the government. For they reasoned thus:—that, as the state had become unprosperous since the Publilian law, the question was merely this, that the decemvirs should have the authority of the tribunes to bring any matter to discussion. In this manner, the Plebes would obtain all that it could reasonably ask for: Plebes and Populus would stand each for itself by the side of the other, but should together form a whole. The Plebes would not then want any more tribunes, as one might indeed appeal from the patrician to the plebeian decemvirs. Moreover, it was fair that the patricians and the plebeians should share the senate, yet that the plebeians should only come in by degrees, until they had a certain number. The two orders were to be carefully distinguished; but yet be invested with equal power. The former law, that the gentes should send their representatives into the senate, and that when a gens became extinct, the cury, or perhaps the consuls, had the election,—these last, however, having a power far more limited than the censors afterwards, were to be replaced by a new institution. A special authority was to be created, which had to superintend and to decide on the changes from one step to another in the scale of civic rank; which should receive the ærarius into the Plebes, and place the plebeian nobles on an equal footing with the patrician ones. These are the chief points of the second decemviral legislation: what were the results of these laws, and how little they answered men’s expectations, is shown by the subsequent history.
Of the statutes of the Twelve Tables concerning the civil law, there has hardly any thing been preserved. Among the little that we know, is a decree, which was on one of the two last Tables, that there should not be any connubium between the Plebes and the Patres. This principle is fraught with such consequences, that the spirit of the whole legislation may be judged from it. The ordinance is generally looked upon as an innovation, for instance, by Dionysius, and by Cicero in the books De Republica; but this is all grounded upon the mistaken belief that this body of laws was entirely new, as if the Romans before that time had either had no laws at all, or altogether different ones. No one in the ancient world took it into his head to make quite a new system of laws; they merely amended those which they had inherited. As it was now intended to bring the orders nearer to each other, and to equalise their rights, they surely could not have established such a separation between them as a new institution. In the middle ages also, a legislation merely sprung from the will of the lawgiver is scarcely to be traced anywhere: it is to be found in the laws of the emperor Frederic II. only, as Savigny has observed. The opinion of the above mentioned writers is therefore based on nothing but their own fancy; so that there is no authority for it, but on the contrary its extreme improbability in every respect is against it.
New, however, is another and most important point, the unlimited right of disposing by will which was granted by the leges XII. tabularum. This right was bestowed upon every pater familias, and it gave to the later jurists occasion for most important changes: it cannot have existed from the earlier ages. The consequence of it was a double form of will, before the curies and in procinctu, that is, before the symbol of the centuries, these representing the exercitus vocatus. Before these the testator declared his will: if it was on the eve of a battle, the soldier made his declaration before the army itself; if a patrician wished to dispose of his fortune, the Pontifex maximus summoned the curies, and these were first to confirm the dispositions of the will. The reason of this was founded on the respective position of the parties. If a person left children, then in the earliest times it may only have been rarely that a will was made; if he remained childless and there were cousins, the latter inherited, otherwise the clans; but, if the clan was quite extinct, the cury inherited. Now, when Plautus says in the Aulularia,[103]
Nam noster nostræ qui est magister curiæ,
Dividere argenti dixit nummos in viros,
I was formerly of opinion, that this was a mere translation from the Greek; for, Euclio represents an ærarius, and what had he to do with a cury? But it is rather a Roman state of things: some property has accrued by death to the cury, and this inheritance is divided viritim.[104] In the same manner, the plebeians may have had gentilician inheritances, which at last fell in to the tribes; if, however, there was a will, the exercitus vocatus, that is to say the centuries, had to give their consent, because for making a will auguries had been requisite, which the tribes of the plebeians had not. A similar system of inheritance still exists to this day in the island of Fehmern, where there are two clans with Dittmarsch rights and customs. If any one belonging to them wishes to make his will, he is obliged to give the cousins a small sum, as compensation for the money which would properly be due to them. This has been kept up there, whilst in Dittmarsch it has become quite obsolete, nor have I anywhere among all the other clans in Germany found any trace of it; from which circumstance we may see, how of important general rights only a few scattered relics will oftentimes remain behind.—The curies might, of course, originally give a negative answer in the case of such a will; but when it was laid down in the Twelve Tables, Paterfamilias uti legassit super pecunia tutelave suæ rei, ita jus esto, it is clear that the consent was only dicis causa. This ordinance has had an immense influence on the Roman manners: yet it was necessary, because the connubium of the two orders had not been permitted. Even the child of a plebeian by a patrician woman could not inherit by law, and therefore it was necessary to have a law of inheritance. When the prohibition of the connubium was afterwards removed, the free disposition of property was still allowed, and in the later profligate ages, it gave rise to the most shameful abuse. That in early times such a tendency was already perceptible, is proved by the Lex Furia testamentaria, which I have good ground for placing about the year 450.
The law of debt must also have been on one of the two last tables, as Cicero describes it as thoroughly unfair. It was binding for plebeians only. Those two tables, we may be sure, consisted chiefly of exceptions. The most important part of the legislation of the Twelve Tables, is that jus publicum which was entirely overlooked by the earlier commentators, who believed them to have been a code of laws like that of Justinian, only most imperfect and barbarous. But Cicero and Livy call them expressly fons omnis publici privatique juris; and Cicero, in the examples in his books de Legibus which are taken from the laws of the Twelve Tables, speaks also of public administration. Yet the Twelve Tables certainly did not touch upon any subject that remained unchanged, as for instance, the whole system of the centuries; of the alterations in the political law which were found in them, we have only a few traces. One of these is the enactment that no privilegia should be issued any more, that is to say, no laws against individuals, nor condemnations of individuals; there must therefore at that time have been methods of proceeding with regard to individuals similar to ostracism at Athens. It is moreover likely that charges were no longer brought by one of the two orders before the other, and that the centuries were looked upon as a grand national court of justice. We have no authority for this; yet, though every story cannot be warranted in detail, thus much on the whole is certain from the events which occurred, that until then accusations were made before the Plebes by the tribunes, and before the curies by the quæstors, but that afterwards such impeachments are no more heard of. Prosecutions before the tribes on account of individual offences are indeed met with; but they are no more connected with the antagonism of the two orders. Probably at that time also the change arose which is afterwards clearly to be perceived, that the clients entered into the tribes; for the plebeian tribes, besides what they were from their particular nature, were also intended to be a general national division, of which we find several hints. Yet it may also have taken place a hundred, or a hundred and twenty years later. If Camillus was condemned by the tribes, it may perhaps be explained in this way, as in his trial his fellow-tribesmen are spoken of. Cicero among the wise laws of the Twelve Tables which he receives in his Leges, mentions, with reference to his own tumultuary condemnation by the tribes, that de capite civis could only be judged per comitiatum maximum. It cannot indeed be positively asserted, that previous to the legislation of the decemvirs, the centuries had not been called upon to give judgment; I have, however, discovered a formula which belongs to an earlier time, and perhaps refers to trials by the centuries, and something definite may yet be found with regard to this point. If it was so, the practice must have been introduced shortly before the time of the decemvirs; previous to this, the judicia capitis were with the curies and tribes. The trials of Coriolanus and C. Quinctius are not yet held before the centuries. If in after times one still finds an instance of a condemnation by the curies, it is an unlawful act of arbitrary power. The tribunes therefore now bring the charge of a crimen capitis before the centuries, and a mere multa before the tribes; and it often happens in such a case, that the person condemned goes into exile, and loses his right of citizenship. Here the saying of Cicero in his oration pro Cæcina holds good, that exile does not necessarily imply the loss of the right of citizenship; for, exile being no punishment, the loss of the right of citizenship is incurred only by the reception into the foreign state. In this light we must look upon the condemnation of Camillus, if ever he was condemned by the tribes, and not, as is far more probable, by the curies.
In this manner, the sphere of the nation as a whole, was very much enlarged, and instead of distinct appeals to one of the two orders, there are scarcely any appeals but those to the centuries to be met with. The existence of this law is quite enough to prove how wrong they are who believe, that in this the decemvirs had arrogated to themselves the whole of the jurisdiction. They have confounded with it the fact, that now that the old appeal to the orders was done away, one had to appeal from one board to the other. Instances of appeal from the consuls to the people are very seldom met with from henceforth; and even then, they are altogether problematical. It is most likely that the appeal to the tribunal of the assembled commonalty was abolished, and that the tribunes as the direct representatives of the commonalty took its place, and that by a natural development of the constitution; for a resolution of the commonalty at large is after all a mere form.
Other laws also which are mentioned, might be considered as innovations; for instance, that one who is pledged for debt should have equal rights with him that is free.