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[1arg] A discussion of the jurist Sextus Caecilius and the philosopher Favorinus about the laws of the Twelve Tables.

SEXTUS CAECILIUS was famed for his knowledge, experience and authority in the science of jurisprudence and in understanding and interpreting the laws of the Roman people. It happened that as we were waiting to pay our respects to Caesar, 1 the philosopher Favorinus met and accosted Caecilius in the Palatine square 2 in my presence and that of several others. In the conversation which they carried on at the time mention was made of the laws of the decemvirs, which the board of ten appointed by the people for that purpose wrote and inscribed upon twelve tablets. 3

When Sextus Caecilius, who had examined and studied the laws of many cities, said that they were drawn up in the most choice and concise terms, Favorinus rejoined: “It may be as you say in the greater part of those laws; for I read your twelve tables with as eager interest as I did the twelve books of Plato On the Laws. But some of them seem to me to be either very obscure or very cruel, or on the other hand too mild and lenient, or by no means to be taken exactly as they are written.”

[p. 409] “As for the obscurities,” said Sextus Caecilius, “let us not charge those to the fault of the makers of the laws, but to the ignorance of those who cannot follow their meaning, although they also who do not fully understand what is written may he excused. For long lapse of time has rendered old words and customs obsolete, and it is in the light of those words and customs that the sense of the laws is to be understood. As a matter of fact, the laws were compiled and written in the three hundredth year after the founding of Rome, 4 and from that time until to-day is clearly not less than six hundred years. But what can be looked upon as cruel in those laws? Unless you think a law is cruel which punishes with death a judge or arbiter appointed by law, who has been convicted of taking a bribe for rendering his decision, 5 or which hands over a thief caught in the act to be the slave of the man from whom he stole, 6 and makes it lawful to kill a robber who comes by night. 7 Tell me, I pray, tell me, you deep student of philosophy, whether you think that the perfidy of a juror who sells his oath contrary to all laws, human and divine, or the intolerable audacity of an open theft, or the treacherous violence of a nocturnal footpad, does not deserve the penalty of death?”

“Don't ask me,” said Favorinus, “what I think. For you know that, according to the practice of the sect to which I belong, 8 I am accustomed rather to inquire than to decide. But the Roman people is a judge neither insignificant nor contemptible, and [p. 411] while they thought that such crimes ought to be punished, they yet believed that punishments of that kind were too severe; for they have allowed the laws which prescribed such excessive penalties to die out from disuse and old age. Just so they considered it also an inhuman provision, that if a man has been summoned to court, and being disabled through illness or years is too weak to walk, 'a covered waggon he need not spread'; 9 but the man is carried out and placed upon a beast of burden and conveyed from his home to the praetor 10 in the comitium, as if he were a living corpse. For why should one who is a prey to illness, and unable to appear, be haled into court at the demand of his adversary, clinging to a draught animal? But as for my statement that some laws were excessively lenient, do not you yourself think that law too lax, which reads as follows with regard to the penalty for an injury: 11 'If anyone has inflicted an injury upon another, let him be fined twenty-five asses'? For who will be found so poor that twenty-five asses would keep him from inflicting an injury if he desired to? And therefore your friend Labeo also, in the work which he wrote On the Twelve Tables, 12 expressing his disapproval of that law, says: 13 One Lucius Veratius was an exceedingly wicked man and of cruel brutality. He used to amuse himself by striking free men in the face with his open hand. A slave followed him with a purse full of asses; as often as he had buffeted anyone, he ordered twenty-five asses to be counted out at once, according to the provision of the Twelve Tables' [p. 413] Therefore,” he continued, “the praetors afterwards decided that this law was obsolete and invalid and declared that they would appoint arbiters to appraise damages. Again, some things in those laws obviously cannot, as 1 have said, even be carried out; for instance, the one referring to retaliation, which reads as follows, if my memory is correct: 'If one has broken another's limb, there shall be retaliation, unless a compromise be made.' Now not to mention the cruelty of the vengeance, the exaction even of a just retaliation is impossible. For if one whose limb has been broken by another wishes to retaliate by breaking a limb of has injurer, can he succeed, pray, in breaking the limb in exactly the same manner? In this case there first arises this insoluble difficulty. What about one who has broken another's limb unintentionally? For what has been done unintentionally ought to be retaliated unintentionally. For a chance blow and an intentional one do not fall under the same category of retaliation. How then will it be possible to imitate unintentional action, when in retaliating one has not the right of intention, but of unintention? But if he break it intentionally, the offender will certainly not allow himself to be injured more deeply or more severely; but by what weight and measure this can be avoided, I do not understand. Nay more, if retaliation is taken to a greater extent or differently, it will be a matter of absurd cruelty that a counter-action for retaliation should arise and an endless interchange of retaliation take place. But that enormity of cutting and dividing a man's body, if an individual is brought to trial for debt and adjudged to several creditors, 14 I do not care to remember, and I am [p. 415] ashamed to mention it. For what can seem more savage, what more inconsistent with humanity, than for the limbs of a poor debtor to be barbarously butchered and sold, just as to-day his goods are divided and sold?”

Then Sextus Caecilius, throwing both arms about Favorinus, said: " You are indeed the one man within my memory who is most familiar both with Greek and with Roman lore. For what philosopher is skilled and learned in the laws of his sect to the extent to which you are thoroughly versed in our decemviral legislation? But yet, I pray you, depart for a little from that academic manner of arguing of yours, and laying aside the passion for attacking or defending anything whatever according to your inclination, consider more seriously what is the nature of the details which you have censured, and do not scorn those ancient laws merely because there are many of them which even the Roman people have now ceased to use. For you surely are not unaware that according to the manners of the times, the conditions of governments, considerations of immediate utility, and the vehemence of the vices which are to be remedied, the advantages and remedies offered by the laws 15 are often changed and modified, and do not remain in the same condition; on the contrary, like the face of heaven and the sea, they vary according to the seasons of circumstances and of fortune. What seemed more salutary than that law of Stolo limiting the number of acres? What more expedient than the bill of Voconius regulating the inheritances of women? What was thought so necessary for checking the luxury of the citizens as the law of Licinius [p. 417] and Fannius and other sumptuary laws? Yet all these have been wiped out and buried by the wealth of the State, as if by the waves of a swelling sea. But why did that law appear to you inhumane which in my opinion is the most humane of all; that law, namely, which provides that a beast be furnished for a sick or aged man who is called into court? The words of that law, 'if he summon him to court,' 16 are as follows: 17 If disease or age be a hindrance, let the summoner provide a beast; if he does not wish, he need not spread a covered waggon.' Do you by any chance suppose that morhus (disease) here means a dangerous sickness with a high fever and ague, and that iumentum (beast) means only one animal, capable of carrying someone on his back; and is it for that reason that you think it was inhumane for a man lying sick-a-bed at his home to be placed upon a beast and hurried off to court? That is by no means the case, my dear Favorinus. For morbus in that law does not mean a serious complaint attended with fever, but some defect of weakness and indisposition, not involving danger to life. On the contrary, a more severe disorder, having the power of material injury, the writers of those laws call in another place, 18 not morbus alone, but morbus sonticus, or 'a serious disease.' 19 iumentum also does not have only the meaning which it has at present, but it might even mean a vehicle drawn by yoked animals; for our forefathers formed iumentum from iungo. Furthermore arcera was the name for a waggon, enclosed and shut in on all sides like a great chest (arca), 20 and [p. 419] strewn with robes, and in it men who were too ill or old used to be carried lying down. What cruelty then does there seem to you to be in deciding that a waggon ought to be furnished for a poor or needy man who was called into court, if haply through lameness or some other mischance he was unable to walk; and in not requiring that ' a closed carriage' be luxuriously strewn, 21 when a conveyance of any kind was sufficient for the invalid? And they made that decision, in order that the excuse of a diseased body might not give perpetual immunity to those who neglected their obligations and put off suits at law; but foolishly.

"They assessed inflicted injuries at twenty-five asses. They did not, my dear Favorinus, by any means compensate all injuries by that trifling sum, although even that small number of asses meant a heavy weight of copper; for the as which the people then used weighed a pound. But more cruel injuries, such as breaking a bone, inflicted not only on freemen but even on slaves, they punished with a heavier fine, 22 and for some injuries they even prescribed retaliation. This very law of retaliation, my dear sir, you criticized somewhat unfairly, saying with facetious captiousness that it was impossible to carry it out, since injury and retaliation could not be exactly alike, and because it was not easy to break a limb in such a way as to be an exact aequilibrium, or 'balance,' as you put it, of the breaking of the other man's. It is true, my dear Favorinus, that to make exact retaliation is very difficult. But the Ten, wishing by retaliation to diminish and abolish such violence as beating and injuring, thought that men ought to be restrained [p. 421] by the fear of such a penalty; and they did not think that so much consideration ought to be had for one who broke another's limb, and refused to compromise by buying off retaliation, as to consider that the question ought to be raised whether he broke it intentionally or not, nor did they make the retaliation in such a case exactly equivalent or weigh it in a balance; but they aimed rather at exacting the same spirit and the same violence in breaking the same part of the body, but not also the same result, since the degree of intention can be determined, but the effect of a chance blow cannot.

"But if this is as I say, and as the condition of fairness itself dictates, those mutual retaliations that you imagined were certainly rather ingenious than real. But since you think that even this kind of punishment is cruel, what cruelty, pray, is there in doing the same thing to you which you have done to another? especially when you have the opportunity of compromising, and when it is not necessary for you to suffer retaliation unless you choose that alternative. As for your idea that the praetors' edict was preferable in taking cognizance of injuries, I want you to realize this, that this retaliation also was wont of necessity to be subject to the discretion of a judge. For if a defendant, who refused to compromise, did not obey the judge who ordered retaliation, the judge considered the case and fined the man a sum of money; so that, if the defendant thought the compromise hard and the retaliation cruel, the severity of the law was limited to a fine. "It remains for me to answer your belief that the cutting and division of a man's body is most inhuman. It was by the exercise and cultivation of [p. 423] all the virtues that the Roman people sprang from a lowly origin to such a height of greatness, but most of all and in particular they cultivated integrity and regarded it as sacred, whether public or private. Thus for the purpose of vindicating the public honour it surrendered its consuls, most distinguished men, to the enemy, 23 thus it maintained that a client taken under a man's protection should be held dearer than his relatives and protected against his own kindred, nor was any crime thought to be worse than if anyone was convicted of having defrauded a client. This degree of faith our forefathers ordained, not only in public functions, but also in private contracts, and particularly in the use and interchange of borrowed money; for they thought that this aid to temporary need, which is made necessary by the common intercourse of life, was lost, if perfidy on the part of debtors escaped with a slight punishment. Therefore in the case of those liable for an acknowledged debt thirty days were allowed for raising the money to satisfy the obligation, and those days the Ten called 'legitimate,' as if they formed a kind of moratorium, that is to say, a cessation and interruption of judicial proceedings, during which no legal action could be taken against them.

"Then later, unless they had paid the debt, they were summoned before the praetor and were by him made over to those to whom they had been adjudged; and they were also fastened in the stocks or in fetters. For that, I think, is the meaning of these words: 24 For a confessed debt and for judgment duly pronounced let thirty days be the legitimate time. Then let there [p. 425] be a laying on of hands, bring him to court. If he does not satisfy the judgment, or unless someone in the presence of the magistrate intervenes as a surety, let the creditor take him home and fasten him in stocks or in fetters. Let him fasten him with not less than fifteen pounds weight, or if he wish, with more. 25 If the prisoner wishes, he may live at his own expense. If he does not, the creditor shall give him a pound of meal each day. If he wishes, he may give more.' In the meantime the right of compromising the case was allowed, 26 and if they did not compromise it, debtors were confined for sixty days. During that time on three successive market-days 27 they were brought before the praetor and the amount of the judgment against them was announced. But on the third day 28 they were capitally condemned or sent across the Tiber to be sold abroad. But they made this capital punishment horrible by a show of cruelty and fearful by unusual terrors, for the sake, as I have said, of making faith sacred. For if there were several, to whom the debtor had been adjudged, the laws allowed them to cut the man who had been made over to them in pieces, if they wished, and share his body. And indeed I will quote the very words of the law, less haply you should think that I shrink from their odium: 29 'On the third market day,' it says, 'let them cut him up; if they have cut more or less, let them not be held accountable.' Nothing surely is more merciless, nothing less humane, unless, as is evident on the face of it, such a cruel punishment was threatened in order that they [p. 427] might never have to resort to it. For nowadays we see many condemned and bound, because worthless men despise the punishment of bondage; but I have never read or heard of anyone having been cut up in ancient days, since the severity of that law could not be scorned. Or do you suppose, Favorinus, that if the penalty provided by the Twelve Tables 30 for false witness had not become obsolete, and if now, as formerly, one who was convicted of giving false witness was hurled from the Tarpeian Rock, that we should see so many guilty of lying on the witness stand? Severity in punishing crime is often the cause of upright and careful living. The story of the Alban Mettius Fufetius 31 is not unknown even to me, although I read few books of that kind. Since he had treacherously broken a pact and agreement made with the king of the Roman people, he was bound to two four-horse teams and torn asunder as the horses rushed in opposite directions. Who denies that this is an unusual and cruel punishment? but see what the most refined of poets says: 32

But you, O Alban, should have kept your word."
When Sextus Caecilius had said these and other things with the approval of all who were present, including Favorinus himself, it was announced that Caesar was now receiving, and we separated.

[p. 429]

1 That is, Antoninus Pius.

2 The Area Palatina was originally the space bounded on the west by the Domus Tiberiana, or Palace of Tiberius, and the Domus Augustana; as time went on, it must have been bounded and restricted by other parts of the Imperial Palace.

3 These laws were set up in the Forum on ten tablets of bronze in 451 B.C., to which two more tablets were added in 450.

4 The chronology of Nepos; see note on § 3, above, and on the chapter heading of xvii. 21.

5 ix. 3.

6 viii. 4.

7 viii. 12.

8 He probably refers to the Pyrronian sceptics, about whose beliefs he wrote a work in ten books; see xi. 5. 5.

9 That is, with a pallet for lying upon.

10 At that time one of the two chief magistrates, corresponding to the consuls of later times.

11 viii. 4.

12 Frag. 25, Hushke; 3, Bremer.

13 There seems to be a lacuna in the text; see crit. note.

14 The law reads: fertiis nundinis partis secanto. Si plus minusve secuerunt, se fraude esto, “on the third market day (i.e. after about two weeks; see note on § 49, below) let them cut him into pieces. If they have cut more or less (than their proper share), let it be without prejudice (to them).”

15 Oportuitates refers to the advantage or assistance which the laws afford to meet the special needs of defence; moedellas, to the remedies they furnish for the cure of vice and crime.

16 The first provision of the law is: Si in ius vocat, ito, “if he summon him to court, let him go.” Here the words “Si . . . vocat” are used merely to designate the law.

17 i. 1, 3.

18 ii. 2.

19 See xvi. 4. 4 and the note.

20 The derivation of arcera from area seems to be generally accepted.

21 See note on § 11, above.

22 viii. 3.

23 In the Samnite war, after the battle of the Caudine Forks in 321 B.C.

24 iii. 1–4.

25 F. D. Allen, Remnants of Early Latin, p. 86, suggested that minore and maiore probably ought to change places.

26 iii. 5.

27 The nundinae, or market days, came on every ninth day, reckoned in the Roman fashion. The time between two market days was the French “huit jours” and our “week.” Terliis nundinis, counting the one at the beginning of the period (in the Roman fashion), would be about two weeks (actually seventeen days).

28 iii. 6.

29 iii. 6.

30 viii. 23.

31 He was the ruler of Alba Longa in the time of Tullus Hostilius, the third king of Rome (673–641 B.C.).

32 Virg. Aen. viii. 643.

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