The Twelve Tables are the best antidote to those later heroising narratives. The original bronze tablets no longer survive. But some of their content has been preserved because later Romans looked on this motley collection of regulations as the beginning of their distinguished tradition of law. What had been inscribed on bronze was soon put into pamphlet form and was still being learned by heart, so Cicero tells us, by schoolboys of the first century BCE. Long after the rules had any practical force, they continued to be reissued and re-edited, and several ancient scholarly commentaries were compiled on the meaning of the individual clauses, their legal importance and language – to the irritation of some lawyers in the second century CE, who felt that their book-bound colleagues were rather too interested in the linguistic puzzles of old Roman precepts. None of this voluminous literature survives intact. But some of it is quoted or paraphrased in writing that does, and by scouring through this, including some of the remotest byways of Roman literature, scholars have tracked down the eighty or so clauses of those fifth-century BCE tables.
The whole process has been ferociously technical, and intricate debates still rage about the exact wording of the clauses, about how large and how representative a selection of the original they are and about how accurate the later Roman scholars were in their quotations. Some modernising has definitely gone on: the Latin looks archaic, but not quite archaic enough for the fifth century BCE, and on occasion the paraphrases have tried to bring the original sense into line with later procedures in Roman law. In some cases, even learned Roman lawyers misunderstood what they read in the Twelve Tables. The idea that a defaulting debtor who had several creditors could be put to death and his body divided between them, in appropriately sized pieces, according to the amount owed, looks like one such misunderstanding (or so many modern critics have hoped). All the same, these quotations offer the most direct route into mid-fifth-century BCE society, into its homes and families, worries and intellectual horizons.
It is a much simpler society, and its horizons much more restricted, than Livy’s account ever implies. That is clear from the language and forms of expression as much as from the content. Although modern translations do their best to make it all sound fairly lucid, the original Latin wording is often far from that. In particular, the absence of nouns and differentiated pronouns can make it almost impossible to know who is doing what to whom. ‘If he summons to law, he is to go. If he does not go, he is to call to witness, then is to seize him’ presumably means, as it is usually translated, ‘If a plaintiff summons a defendant to law, the defendant is to go. If he does not go, the plaintiff is to call someone else to witness, then is to seize the defendant.’ But it does not exactly say that. All the signs are that whoever drafted this and many other clauses was still struggling to use written language to frame precise regulations, and that the conventions of logical argument and rational expression were very much in their infancy.
Yet the mere attempt to create a formal record of this sort was an important stage in what is now often called state formation. One of the key turning points in many early societies is the rudimentary, usually very partial, codification of law. In ancient Athens, for example, the work of Draco in the seventh century BCE, though now a byword for harshness (‘draconian’), was notable as the first attempt there to put what had been oral rules into writing; a thousand years before that in Babylon, Hammurabi’s code did something similar. The Twelve Tables are much on that pattern. They are a long way from being a comprehensive legal code and may well never have been intended as such. Unless the range of surviving quotations is very misleading, they included almost nothing on public, constitutional law. What they do imply is a commitment to agreed, shared and publicly acknowledged procedures for resolving disputes and some thought on dealing with practical and theoretical obstacles to that. What was to be done if the defendant was too elderly to come to meet the plaintiff? The plaintiff was to provide an animal to transport him. What was to happen if the guilty party was a child? The penalty in that case might be beating rather than hanging – a distinction that heralds our ideas of the age of criminal responsibility.
The themes of the regulations point to a world of multiple inequalities. There were slaves of various types, from defaulters on their loans who had fallen into some form of debt bondage to those fully enslaved, presumably (though this is only a guess) captured in raiding or war. And their disadvantage was spelled out: the penalty for assault on a slave is set at half as much as for assault on a free man, whereas a slave could be punished with his life for an offence for which free citizens got off with not much more than a beating. But some slaves were eventually freed, as is clear from a reference to an ex-slave, or libertus.
There were hierarchies within the free citizen population too. One clause draws a distinction between patricians and plebeians, another between assidui (men of property) and proletarii (those without property – whose contribution to the city was the production of offspring, proles). Another refers to ‘patrons’ and ‘clients’ and to a relationship of dependency and mutual obligation between richer and poorer citizens that remained important throughout Roman history. The basic principle was that the client depended on his patron for protection and assistance, financial and otherwise, in return for a variety of services rendered, including votes in elections. Later Roman writing is full of rather high-flown rhetoric from the patron class on the virtues of the relationship, and miserable complaints from the side of the client about the humiliations they have to go through, all for a second-rate meal. In the Twelve Tables, the rule simply states: ‘If a patron has done harm to his client, he is to be cursed’ – whatever that meant.
For the most part, the Twelve Tables confront domestic problems, with a heavy focus on family life, troublesome neighbours, private property and death. They lay down procedures for the abandonment or killing of deformed babies (a practice common throughout antiquity, euphemistically known to modern scholars as ‘exposure’), for inheritance and for the proper conduct of funerals. Particular clauses prohibit women from tearing their cheeks in mourning, funeral pyres being built too close to someone’s house and the burial of gold – except dental gold – with the body. Criminal and accidental damage was another obvious concern. This was a world in which people worried about how to cope with their neighbour’s tree overhanging their property (solution: it had to be cut back to a specified height) or with their neighbour’s animals running amok (solution: the damage had to be made good or the animal surrendered). They worried about thieves breaking in at night, which was to be punished more harshly than daylight theft, about vandals destroying their crops or about stray weapons accidentally hitting the innocent. But, just in case this all sounds a bit too familiar, it was also a world in which people worried about magic. What should you do if some enemy bewitched your crops or cast a spell on you? Sadly, the remedy for this is lost.