Ruminations |
penalty for destroying or moving crops by magic acts or by cutting crops or pasturing off crops at night , except when done by those under the age of puberty , who shall be scourged and pay double the amount of damage . Burn a house or a hay-rick near a house and you will be scourged and burned alive . If the act is just negligent , the damage must be repaired . Cut another ’ s trees , the penalty is 25 pieces of copper . When a thief is killed while committing the crime at night , the death is deemed lawful . Daytime thieves are scourged and turned over to the aggrieved party , but slaves found to be thieves shall be scourged and “ hurled from the Tarpeian rock .” This same penalty applies to those who give false testimony . Refusing to give evidence in one case prevents you from being a witness or calling others to be a witness for you in later cases . Stolen property is not subject to the rule of acquisitive prescription . Charging interest greater than one-twelfth of the principal is illegal . 39
Death is no longer the punishment for any crime , except treason , in Vermont . 40 Scourging is gone as well . Negligence can result in damage awards . The value of trees cut without authority is now set in statute , starting at $ 50 for trees less than six inches in stump diameter . 41 The maximum legal interest today is twelve percent , although exceptions authorize rates as high as twentyfour percent . 42
The ninth Table begins with a prohibition against laws affecting only an individual . Judges who take bribes shall be put to death as will those who incite an enemy to make war . 43 Similarly , private legislation is unconstitutional in Vermont . 44 Bribing public officials and employees is a crime , and so is accepting bribes , up to two years ’ imprisonment or $ 5,000 in fines . 45 No doubt the Judicial Conduct Board would also be interested .
Table X covers funerals . No dead bodies may be buried or burned within the city . Lavish funerals , having more than three mourning robes or ten flute players , are forbidden . Women may not disfigure their faces or other “ ostentatious lamentations .” You can have only one funeral . Gold , other than that fastened to teeth , may not be thrown in with the body on burial . Unless the owners agree , there can be no funeral pile or sepulcher within 60 feet of another ’ s home . 46 Vermont law regulates burials , not funerals or expressions of grief . Cremation is legal here , by licensed funeral directors . 47
Eleven is the shortest of the tables , and prohibits the marriage of patricians and plebians . In Vermont , there is no equivalent law . 48 Anyone who isn ’ t married who is of majority age and not too close a relative may marry anyone else . 49
Table XII reiterates the rule that a slave who commits theft shall be surrendered to
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the person aggrieved in reparation for the crime . The final sentence provides , “ Subsequent legislation repeals previous enactments inconsistent herewith .” 50 We ’ re way beyond slavery now , and every year law is changed , by the legislature or the courts .
It has been more than 24 centuries since the Twelve Tables were first engraved on those walls , and yet , in many ways , they do not seem so foreign . They are curious in being so specific about setbacks , and at the same time disinterested in matters that are central to our life in the law today . Government is missing here .
Edward Gibbon wrote , “ Whatever might be the origin or the merit of the Twelve Tables , they obtained among the Romans that blind and partial reverence which the lawyers of every country delight to bestow on their municipal institutions .” 51 The Twelve Tables were never repealed for a thousand years . 52
A time when lawyers made the law
During the first century B . C ., when Augustus Caesar was emperor , lawyers ruled the law . Judges and officials looked to them as authorities . Lawyers were “ public professors of the law ,” and their work , called responsa prudendium , was debated in the forum , written down , and it informed the development of the Roman law . At the time , an attorney was an honorary position , and practitioners were forbidden by law from accepting compensation . 53 Roman lawyers never liked legislation , believing it was necessary only when there was a failure of the lawyers to agree on what should be the customs of the law . 54 The law of that time was the result of these lawyers ’ work , and when that era passed it was the end of a golden age when lawyers were more than mere servants of the law . 55 Their work came at a time of a fundamental shift in law from an oral to a written foundation , and a reflection of the impatience with the unchecked discretion of judges . The Tables also fixed the law in place , preventing significant reform or evolution of legal ideas .
Gaius
The discovery in 1816 of the Institutes of Gaius by Barthold Georg Niebuhr , in the cathedral library at Verona , staggered the world of legal history . Lost for 15 centuries , a copy was discovered on parchment that had been washed of its ink and written over with the Epistles of St . Jerome in the sixth century . 56 It is the only nearly complete classical legal treatise found ( so far ). 57 The Institutes were written about 161 A . D . 58 They were created as notes to lectures on the law and served as a first-year text book for law students . 59 Justinian ’ s scholars knew them in 533 A . D ., and quoted and relied on them , in fashioning the Digest and the Institutes , and were explicit in some instances
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in explaining why they diverged from the rules drawn by Gaius , and from the Twelve Tables . 60
Gaius was not a judge or public official , but a teacher of law students . 61 His Institutes were originally lecture notes , “ having particularly in view the explanation of such points of practical difficulty as arose out of the peculiar condition of free persons and aliens at the time .” 62
Sir Henry Maine said of the Institutes of Gaius , they “ afford us glimpses of something older than law itself , and which enable us to connect with law the practices dictated to barbarous men by impulses which it has become the prime office of all law to control .” 63
Gaius organized the Institutes into three parts — the law of persons , things , and actions . As with the Twelve Tables and Justinian , these laws were largely rules regulating the behavior of men and women , and rarely describe any authority or restriction of authority of public institutions . The value of Gaius for the development of Western law is largely derivative , through what Justinian adopted of it , and what he decided should be changed .
Justinian
Justinian was the Roman / Byzantine Emperor from 518 to 527 A . D . His throne was in Constantinople . His greatest work was the codification of Roman law , which included the Code , an extensive listing of laws from sources throughout the empire , in 50 volumes ; the Digest , assembled by a team of scholars led by Tribonian , called “ our Quæstor ,” culling the sources in the Code into a consistent set of rules ; and the Institutes , a synopsis of the laws of Rome designed for learning the law . The Digest and the Institutes came first , published in 533 A . D . The challenge of the scholars who did the work was to choose the best and most equitable of the laws and customs of the empire . 64 The Institutes had the greatest impact of the works , although the other sources were occasionally consulted . Scholars prized and criticized them . Edward Gibbon described the works of Justinian as a “ tesselated pavement of antique and costly , but too often incoherent , fragments .” 65 Although Cooper ’ s Institutes are numbered and ordered , the text seems incomplete in many places .
Justinian drew from many sources , including Gaius , the law of nations , and Homer . 66
The Institutes follow the same organizational pattern treating persons , things , and actions , as Gaius had done . The Institutes begin with a definition of justice . It is “ the constant and perpetual disposition to render every man his due .” Jurisprudence , also defined , is “ the knowledge of things divine and human ; the science of what is just and
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