Part 4 (1/2)

[31] This strip is reserved as a path between any two estates belonging to different owners. Both owners can walk on the whole s.p.a.ce, but neither owner can claim possession of the strip through continued usage.

[32] In view of the ancient tradition that the decemvirs sent to Athens a committee to study the laws written by Solon (c. 639 B.C.--c.

559 B.C.) for the Athenians (Livy, _op. cit_., III. 33. 5), it may not be out of place to record what Gaius (_ob. c_. 180 A.D.) reports about marking boundaries (_Digesta_, X. 1. 13): ”We must remember in an action for marking boundaries (_actio finium regundorum_) that we must not overlook that old provision which was written in a manner after the pattern of the law which at Athens Solon is said to have given.

For there it is thus: 'If any man erect a rough wall alongside another man's estate, he must not overstep the boundary; if he build a ma.s.sive wall, he must leave one foot to spare; a building, two feet; if he dig a trench or a hole, he must leave a s.p.a.ce equal or about equal in breadth to depth: if a well, six feet; an olive tree or a fig tree he must plant nine feet from the other man's property and any other trees five feet.'”

While there is no evidence whatever that any enactment of the Twelve Tables reproduced in any form the terms of the Athenian statute here quoted, still the Twelve Tables may have contained some such provisions.

[33] What were these conditions we know not; all that we have from this item are the unbracketed words, which are quoted as examples of how words change their meanings and which are a.s.signed to the Twelve Tables.

[34] Some scholars suppose that only branches over fifteen feet above ground are meant. In any case the idea is that shade from the tree may not damage a neighboring estate.

[35] We know that this item was interpreted to include prose as well as verse.

[36] Slander and libel are not distinguished from each other in Roman Law.

[37] The severity of the penalty indicates that the Romans viewed offence not as a private delict but as a breach of the public peace.

[38] Apparently an incantation against a person, for the ninth statute in this Table treats such practice against property.

[39] The penalty points to an incurable maim or break, because the next statute seems to provide for injuries which can be mended.

[40] Thus the injured person or his next of kin may maim or break limb for limb. Cf. the Mosaic _lex talionis_ recorded in _Leviticus_, 24.

17-21.

[41] Most scholars connect this fragment with damage to property and conjecture that the rest of it must have been concerned with compensation for accidental damage.

[42] That is, the animal which committed the damage may be surrendered to the aggrieved person.

[43] From the context, wherein the unbracketed words are preserved, we can reconstruct the sense of this statute.

[44] Not apparently into one's own fields, but to destroy these where these were.

[45] Apparently into one's own fields by means of magical incantation.

[46] Properly the G.o.ddess of creation, occasionally (by extension) the G.o.ddess of marriage, usually the G.o.ddess of agriculture, especially the G.o.ddess of cultivation of grain and of growth of fruits in general.

Ceres is represented commonly as a matronly woman, always clad in full attire of flowing draperies, crowned either with a simple ribband or with ears of grain holding in her hand sometimes a poppy, sometimes a scepter, sometimes a sickle, sometimes a sheaf of grain, sometimes a torch, sometimes a basket full of fruits or of flowers, seated or standing in a chariot drawn by dragons or by horses.

[47] That is, the slayer must call aloud, lest he be considered a murderer trying to hide his own act.

Our sources leave it uncertain whether the law forbids that a thief be killed by day, unless he defend himself, with a weapon, or the law permits that a thief be killed, if he so defend himself.

[48] A southern spur of the Capitoline Hill, which overlooks the Forum, and named after Tarpeia, a legendary traitress, who, tempted by golden ornaments of besieging Sabines, opened to them the gate of the citadel, of which her father was a governor during the regal period.

As they entered, the enemy by their s.h.i.+elds crushed her to death: Tarpeia was buried on the Capitoline Hill, whereon stood the citadel, and her memory was preserved by the name of the Tarpeian Rock (Rupes Tarpeia), whence certain cla.s.ses of condemned criminals, in later times, were thrown to their death.

[49] Our sources tell us that a person who searched for stolen property on the premises of another searched alone and naked, lest he be deemed later to have brought concealed in his clothing any article, which he might pretend then to have found in the house, save for a loincloth and a platter, on the latter of which he probably placed the stolen articles when found. We hear also that a man could inst.i.tute a search in normal dress, but only in the presence of witnesses. If in the latter case stolen goods were discovered, the thief on conviction was condemned to pay thrice their value for _furtum conceptum_ (detected theft). But in either case, if the accused householder could prove that a person other than himself for any reason had placed the stolen articles in his house, he could obtain from that person on conviction damages of thrice their value for _furtum oblatum_ (”planted” theft). Search by platter and loincloth (_lanx et licium_) became obsolete; search with witnesses present survived.

[50] The ancient commentators take this statute to mean ”double in kind” not in value: for example, two cows surrendered for one cow stolen.