We have already described now, according to the story, the XII Tables came to be compiled and enacted; now something must be said of their contents, so far as they can be ascertained from the surviving fragments, and of the stage in legal development to which these fragments point.
The greater part of the text has perished completely; the original bronze tablets are said to have been destroyed when the Gauls burnt Rome in 390 B.C. It may be that substitutes were afterwards made and put up in the forum, but no such authoritative text was in existence at the end of the republic. On the other hand private copies must have been very numerous, as is shown by frequent quotations and by Cicero's statement that in his youth the XII Tables had been learnt by boys at school. The lack of an official text however had as a result that the language gradually became modernised. Though the fragments that we have look archaic it is known that their language, except in a few instances, is nearer to the Latin of classical times than to that of the fifth century B.C. The surviving fragments come from quotations in authors of the last century of the republic or later times, who sometimes give the text of the law in what purports to be the original words, sometimes merely state its provisions in their own language. A good deal is to be got from Cicero, something from the jurists, especially Gaius, a fair amount from grammarians and antiquarians who were interested especially in curiosities and obsolete words, and the remainder is gathered at large from Roman literature. Of the arrangement very little is ascertainable; in a few cases the number of the tablet on which a provision appeared is known; Cicero, e.g., says "we learnt the si in ius vocat when we were children", which seems to show that these words (concerning the summons of the defendant by the plaintiff) stood at the beginning of the whole text, and consequently that the code began with the provisions relating to procedure, which is likely enough in any case, as these were probably considered the most important of all. The prohibition of conubium between patricians and plebeians was, we know, in one of the last two tablets (those supposed to have been drawn up by the second "college" of decemviri) which, Cicero says (perhaps for that reason), contained "unfair" laws, and it is interesting to hear that testamentary succession was dealt with before intestacy. Modern editions all follow more or less the order adopted by Dirksen (1824), but rather for convenience of citation than for any other reason. What portion of the original bulk appears in these works it is of course impossible to say, but, seeing that the Romans were fond of referring to their great code where possible, it is likely enough that we have at least a reference to most of the more important provisions.
The style is characterised by extreme brevity and simplicity, the whole code being, so far as we can tell, a series of staccato imperatives, but the language is always careful and exact. The amount of detail varies naturally with the importance of the matter; procedure for instance being dealt with very carefully, presumably because most of the difficulties had arisen in connection with it, whereas mancipation, which was no doubt well known long before, is dismissed with a simple confirmation of its validity. A peculiarity is the frequent change of subject without any indication except the context to show to whom the imperative is addressed.
A question which has always been much discussed is that of possible Greek influence. The traditional story includes an embassy to Greece to study the laws of Solon, and an Ephesian named Hermodorus is said to have assisted the decemvirs. No more authority attaches to these tales than to the rest of the legends which gathered round the XII Tables, but Greek influence cannot for that reason be ruled out of account. The ancients themselves certainly believed in it. Two passages from Gaius' commentary preserved in the Digest allege identity between rules of the XII Tables and those of Solon; Cicero speaks of restrictions on display at funerals as having been taken from Solon's legislation, and Dionysius goes so far as to say that the decemvirs compiled their code from the (written) laws of the Greeks and unwritten Roman customs. Other instances of similarity with Greek rules have been collected by modern authors, and some borrowing is a priori not unlikely, for Hellenic influence exercised through the Greek colonies in Southern Italy and Sicily appears, especially in religious matters, at an early date an may well have extended to law as well. When all has been said, however, the evidence covers but a small part of the code and almost exclusively matters of detail. The great majority of the surviving fragments appear to have a purely native origin and this view of them fits well with the tradition that what the plebeians wanted was not so much reform as certainty. No doubt some disputed points were settled and some innovations were introduced, of which a few may well have been copied from Greek originals, but as a whole the XII Tables are based on the customary law of Rome herself.
More vital than the question of Greek influence is that of authenticity. In recent times doubt has been cast not merely on details of the tradition, but on the central story of a codification dating from the fifth century B.C., and on the identity of the document known to the later Romans as the XII Tables with that codification. The leader of the attack is Pais, who holds that the legislative decemvirate of the fifth century is a myth based on the existence of the later x viri stlitibus iudicandis, and that Appius Claudius the decemvir is a legendary double of Appius Claudius the censor of 312 B.C. He does not deny that there were tablets "resulting from one or more legislative acts" promulgated officially and put up in the forum, but the legislation as a whole cannot, in his view, go back to the fifth century. The document known to the later Romans as the XII Tables he regards as one which grew up through several generations and did not receive its final form until the end of the fourth century, the time of Appius Claudius the censor, and Gn. Flavius. Then, and then only, did the secularisation of law take place and the pontifical monopoly break down. Pais does not actually affirm the identity of the final form which the XII Tables assumed with the ius Flavianum, but the two are, in his view, closely connected. Among the chief reasons given by Pais are the totally unreliable character of the whole of early Roman history down to the burning of Rome by the Gauls (390 B.C.) and the divergent character of the actual provisions, some of which are ancient and barbaric, others indicate of a far more advanced civilisation in which Greek influence is already strong. He points out also that the traditions concerning the decemviri are contradictory, not only in detail, but in fundamental points. The last two tablets, for instance, are said to have been drafted by the second college and to have contained "unfair laws", in particular that forbidding conubium between the orders. In that case why did not Valerius and Horatius, the consuls of 449, who were favourable to the plebeians, repeal them after the fall of the decemvirate, and why was conubium not allowed until the passing of the lex Canuleia some years later (445)?
Even more radical than Pais is Lambert, who entirely denies the legislative character of the XII Tables. In his view they were in fact collection made, partly of very old materials, in the first half of the second century B.C., very probably by Sextus Aelius, from whose tripertita all subsequent writers derived their knowledge of the so-called code. He compares the ius Papirianum, which was also (according to the common view) a private collection to which legislative character was mistakenly attached, and cites as parallels other "codes", Western as well as Eastern, which were, in fact, collections of earlier material derived from a sacred source.
Neither Pais nor Lambert has succeeded in convincing the majority of competent scholars. It is generally agreed that there were interpolations, and that these were facilitated by the absence of an authoritative text, but that the Romans of the first century B.C. should have been so entirely mistaken about an event which, on Pais' and on Lambert's theories, was then comparatively recent, is really inconceivable. The time of Sextus Aelius lies in the full light of history, and even that of Flavius is, and was, quite well known. The case of the ius Papirianum is not really parallel. There was no pretence that it had ever been issued as a single piece of legislation. The XII Tables, on the other hand, were regarded as a coherent whole, and, indeed, the whole attitude of the Roman jurists would have been different if they had not believed in the existence of a fundamental code. Above all, the state of the law shown by the surviving fragments is much too archaic for 200 B.C. or even for 300, and neither date would leave enough time for the development of the law as shown by the XII Tables into the already complex system of Cicero's time. In spite of all possible scepticism as to the details of the story of their compilation, it remains as certain as it can well be that the XII Tables are really an enacted code of law and that tradition is not far wrong in assigning them to the middle of the fifth century B.C.
Not only did the Romans regard the XII Tables as a code, but they put the value of this code very high. Livy, who shares the general enthusiasm, describes them as "the source of all public and private law"; Ausonius, in the fourth century A.D., goes even further and adds "sacred law". These statements are exaggerations. Though a few rules which belong to the ius sacrum are incorporated, the code as a whole is secular in character and it is an indication of the legal genius of the Romans that they were able, at so early a stage in their development, to separate law so completely from religion. Public law, in the sense of constitutional law, is represented in our fragments only by two provisions, that forbidding privilegia and that forbidding the trial of a citizen on a capital charge by any assembly except the comitia centuriata. Both of these are of great importance from the point of view of "the liberty of the subject", and, if genuine, were no doubt included for that reason. Had there been any general codification of constitutional law the old constitution could hardly have been restored so easily on the fall of the decemvirate. Almost the whole of the code, then, was devoted to private law, and the stage of development which it indicated is that of a community of peasant-proprietors, in which there is as yet very little commerce and writing is still uncommon.
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Source:
Historical introduction to the study of Roman law, H. F. Jolowicz, pages 106 - 111.
