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for debtors. 25
Children is the subject of Table IV. It starts
with the brutal authorization for a father to
kill malformed infants, but only in the pres-
ence of five neighbors. Fathers have abso-
lute power over their legitimate children
throughout their lives, including the right
of “imprisoning, flogging, chaining, selling,
or killing them, however exalted their posi-
tion may be.” Fathers may sell their sons,
but sons are free from the father’s power af-
ter being sold three times. The final clause
holds that posthumous children born not
more than ten months after the dissolu-
tion of a marriage are to be deemed legit-
imate. 26 Today, in Vermont, emancipation
occurs at age 18, unless the Probate Court
authorizes an earlier age. 27 Child abuse is a
crime. 28
Table V is about women and the disposi-
tion of property after death. Women can-
not acquire property by use when under
guardianship of their agnates. “Agnates”
means father in this case, but can mean any
familial relation. Testamentary dispositions
about property and guardianship are bind-
ing. When a man dies without a will, or if
the heir has died, the nearest agnate takes
the inheritance and becomes a guardian of
minor children, in this Table called the tutor.
If there are no agnates, then in default the
property and duty fall to the gens, meaning
the larger family. The property is distribut-
ed between the heirs in proportion to their
respective shares. Slaves may be freed by a
testament, who would pay what the dece-
dent required for that freedom. 29
Table VI is a curious mixture of rules relat-
ing to property. Contracts will be honored
by the declarations made at the time they
are formed, and if you later deny the decla-
rations your penalty is twice the amount at
stake. In Vermont today contracts are hon-
ored, but parol evidence is no longer nec-
essarily allowed to explain them. 30 In 450
B.C., two years’ possession of land, and one
year with other property, is a sufficient de-
fense to eviction. Vermont requires fifteen
years for adverse possession and prescrip-
tive uses. 31 In Rome, a wife might defeat a
husband’s acquisition of her property of one
year’s possession, “by the wife absenting
herself for three consecutive nights in each
year.” Wives may own property separate
from the husbands here. 32 Aliens couldn’t
possess property in Rome. In Vermont, a
Inyone may own property in Vermont, even
aliens. 33 In Rome of that time, Timber built
into a house or supporting vines may not be
removed, but the owner may recover twice
their value. Once the vines are removed,
the owner recovers possession of the prop-
erty. Property sold and delivered is not
passed to the buyer until he is paid. 34 Today
the common law of lateral support protects
the owners of party walls. 35
Table VII goes into more detail about how
THE VERMONT BAR JOURNAL • SUMMER 2017
known as Decembvri. 12 As with most early
sources of law, the Twelve Tables do not ex-
ist in a completed form. They were collect-
ed from a variety of writings, including Livy,
Cicero, Pliny, and other writers’ references
to the original text. Not all of the tables
have survived. 13
Kent described their style as “exceeding-
ly brief, elliptical, and obscure,” showing a
great simplicity, “a great deal of wisdom
and good sense, intermixed with folly, in-
justice, and cruelty.” 14 John Sumner Maine
summarized their basic principle: “The only
authoritative statement of right and wrong
is a judicial sentence after the facts, not one
presupposing a law which has been violat-
ed, but one which is breathed for the first
time by a higher power into the judge’s
mind at the moment of adjudication.” 15
A. Arthur Schiller pointed out that these
laws are where “equality of the law origi-
nates.” 16 One rule would apply to all. 17 Law
was at last manifest, no longer depending
on memory or oral tradition or the discre-
tion of judges. 18
The Twelve Tables are a curious mixture
of rules. They touch on debt, guardianship
and parentage, funerals, roads and trees,
judges, and property. The first tablet de-
scribes what today we’d call subpoenas. If
a magistrate calls you to court, you must
go, and if you don’t, you may be forced.
Mediation of disputes is encouraged, and
there is default if you fail to appear. And tri-
als end at sunset. 19 Today mediation is re-
quired in most civil actions, and there is de-
fault. 20 The court day usually ends promptly
at 4:30 p.m.
The second table provides further instruc-
tions on calling witnesses. You are to call his
name at his house every third day, as notice
of the pending trial. Subpoenas now have
replaced the shouting. 21 In large wagers,
the stakes need to be deposited in court as
security. 22 Gambling is a crime punishable
by a fine of from $10.00 to $200.00 in Ver-
mont, if it involves winning or losing, unless
it’s done by a nonprofit corporation. 23
Table III provides a three-day grace pe-
riod for payment of debts admitted or ad-
judged due, after which the creditor can be
brought before a magistrate. The debtor is
bound, hands and feet with fetters, not ex-
ceeding fifteen pounds in weight, and must
feed himself, and if he cannot the creditor
must give him a pound of meal a day. This
confinement lasts 60 days, after which, on
the third market day the debtor is put to
death or sold beyond the Tiber. If there is
more than one creditor, the body is cut into
that many pieces. “If the parts are great-
er or less than they should be,” however,
“no liability will be entailed.” 24 Collection
of debt today is less harsh, of course, but
the basic principle that we are held to our
promises remains firm. In Roman law, there
was no homestead exception or protection
property is used and is an early form of zon-
ing. There is a two-and-a-half foot man-
datory setback between buildings. In ac-
cord