PERSONAL INJURIES IN THE XII TABLES

by

ALAN WATSON (Edinburgh) For Warren F. Schwartz

The provisions on injuries less than death to humans which are contained in the Twelve Tables present some of the most fascinating and intractable prob• lems in legal history. Three clauses have come down to us - at least in a mo• dernised version - from this archaic Roman code of the 5th century B.C. Modern commentators place them in Table VJII, as follows:

2. Si membrum rup (s) it, ni cum eo pacit, talio esto. 3. Manu fustive si os fregit Iibero, CCC, si servo, CL poenam subito. 4. Si iniuriam faxsit, viginti quinque poenae suntol.

A standard translation 2 would be:

2. [f person has maimed another's limb, let there be retaliation in kind unless he makes agreement for composition with him. 3. If he has broken or bruised freeman's bone with hand or club, he shall undergo penalty of 300 pieces; if slave's, 150.4. If he has done simple harm [to another], penalties shall be 25 pieces.

These provisions stand at the beginning of the development of both the Ro• man law of damage to animate property tas set out in the later lex Aquilia) and of the delict iniuria which covered deliberate assault and defamation, particularly to a free person. But what was the original scope and meaning of the provisions? What is the distinction between membrum rumpere (apparently, "to break a part of the body") and os [rangere (literally, "to break a bone")? Why is the compensation fixed for the latter to be three hundred pieces of copper3 if a free man is injured, 150 if the injured party is a slave, whereas for membrum rumpere, unless the parties agree on a composition, retaliation is appropriate? Does membrum rumpere concern more serious injuries than os [rangere? Does one or other of these clauses represent a survival from a more primitive age? Do membrum rumpere and os [ractum together cover all serious but non-fatal injuries to the human body? What was the injury provided for in Tab. VIllA, for which such a relatively small penalty as 25 pieces of copper was considered appropriate? More questions still are raised by the provisions but this paper will attempt in the first place to deal with those already enumerated. Other issues will be discussed as they arise. Inevitably the provisions have been much discussed and numerous solutions proposed to the problems. It is neither necessary nor appropriate to list here

1. For this reconstruction of the clauses see the apparatus in C. G. Bruns, Fontes Juris Romani Antiqui, 7th edit. by O. Gradenwitz (Tiibingen 1909), pp. 29f. 2. That of E. H. Warmington, Remains o[ Old Latin, 3 (Loeb Classical Library, London-Cambridge, Mass, 1938), p. 477. 3. The XII Tables were promulgated long before coined money was introduced at Rome.

HeinOnline -- 43 Tijdschrift voor Rechtsgeschiedenis 213 1975 214 ALAN WATSON [2] all the solutions which have been suggested, but the account of F. de Zulueta4 is instructive and can set the scene: We have here an admirable illustration of the evolution of delictual obligation: in the gravest case composition for vengeance is still voluntary, in the others there is a tariff of fixed penalties, but not yet estimation according to the case. Adequate commentary belongs to comparative law. An obvious problem is the meaning of membrum ruptum and its distinction from os /rilctum. One view is that membrum ruptum meant amputation of a limb, a mutilation; but if so, a serious wound which neither severed a limb nor broke a bone carried no higher penalty than a punch with the fist - 25 asses. This objection leads to the supposition that a clause dealing with bloody wounding has been lost; but the loss is improbable. Perhaps the most popular view is that membrum ruptum meant a permanent disablement of some part of the body; thus if a bone was broken it would depend on the ulterior consequences whether talio or 300-150 asses should be the penalty. The conjecture may be ventured that the distinction lay in the nature of the act rather than in the result: membrum ruptum was wounding with a cutting weapon - a sword, dagger, or knife - which would be an act of private war deserving of talio, whereas a blow with a stick or the fist was simple iniuria, carrying a poena of 25 asses, but multiplied by 12 or 6 when a bone was broken.

The problem is, of course, the scarcity of surrounding information. It is not enough to produce answers which are sensible or even historically appropriate; one must also make them plausible. It is hoped that the approach taken in this paper may render some of the conclusions persuasive, though not all of the views expressed are by any means new. Mention has already been made of the lex Aquilia. D.9.2.27.5 (Ulpian 18 ad ed.) reports the wording of the third chapter as foIlows: Tertio autem capite ait eadem lex AquiIia: "Ceterarum rerum, praeter hominem et pecudem occisos, si quis alteri damnum faxit, quod usserit fregerit ruperit iniuria, quanti ea res erit in diebus triginta proximis, tantum aes domino dare damnas esto". Now in the third chapter the Lex Aqui/ia goes on to say: "In respect of all other things, besides slaves or cattle killed, if anyone does damage to another by wrongfully burning, breaking or breaking off, whatever the matter in issue shall turn out to be worth in the next thirty days, so much let him be condemned to pay to ¢he owner"5.

It is widely accepted that the original wording of the lex began only at Si quis alteri "If anyone" and that what precedes is a later additionti. The origi-

4. The IlIStifutes 0/ Gaius 2 (Oxford 1953), p. 217: see also D. V. Simon, BegrijJ und Tatbestand der Iniuria im altromischen Recht, ZSS 82 (1965), pp. 132ff. at pp. 163ff.; P. B. H. Birks, The Early History o/Iniuria, T.v.R. 37 (1969), pp. 163ff.; H. F. Jolo• wicz and B. Nicholas, Historical Introduction to the Study 0/ Roman Law, 3rd edit. (Cambridge 1972), p. 171 ; R. Wittmann, Die Korperverletzung an Freien im klassischen romischen Recht (Munich 1972), pp. 3 ff.; and the authors cited in these works. 5. The translation is that of F. H. Lawson, Negligence in the Civil Law (Oxford 1950), p.l03. 6. See now U. von Liibtow, Untersuchungen zur lex Aqui/ia de damno iniuria dato (Berlin 1971), p. 21 and the authors he cites at n. 16; M. Kaser, Das romische Privat• recht 1, 2nd edit. (Munich 1971), p. 161, n. 60. Most recently, A. M. Honore has argued that the words Ceterarum rerum are genuine; Linguistic and Social Content 0/ the Lex Aquilia, Irish Jurist 7 (1972), pp. 138ff. Though he has shown from Cicero, pro Quinc• tio 3.11, that the genitive is not surprising and that the phrase cetemrum rerum could

HeinOnline -- 43 Tijdschrift voor Rechtsgeschiedenis 214 1975