The Twelve Tables and Their Origins: An Eighteenth-Century Debate

Author(s): Michael Steinberg

Source: Journal of the History of Ideas , Jul. - Sep., 1982, Vol. 43, No. 3 (Jul. - Sep.,
1982), pp. 379-396
Published by: University of Pennsylvania Press

Stable URL: https://www.jstor.org/stable/2709429

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 THE TWELVE TABLES AND THEIR ORIGINS:
AN EIGHTEENTH-CENTURY DEBATE

BY MICHAEL STEINBERG

I. The long history of Roman law begins with the Twelve Tables,
the first body of the city's law that can be reconstructed with any
certainty.1 Barbaric though some of its provisions were, the Twelve
Tables code inspired the praise and even the reverence of later Roman
jurists and lawyers, well pleased with the great legal system they had
built from its laconic foundations. Later scholars have been less rev-
erent, but they have still devoted much labor to reconstructions and
interpretations of the code. After several early attempts a convincing
reconstruction was accomplished in the sixteenth century,2 and in
succeeding centuries historians pored over the recovered law, search-
ing it for clues to the city's past and for the source of the republican
virtue thought to account for the city's rise to world domination.
A reconstruction was needed, for the first monument of Roman
law exists only in fragments. Not even a partial copy survives. This
is a puzzle, but one that lies outside our topic. There is a second,
greater, puzzle. Although the Romans were aware of their limited
achievement in philosophy, they prided themselves on their juris-
prudence. And yet their own historians state that the Twelve Tables,
and by implication the law of Rome, are not of Roman origin: the laws
were brought over from Greece.
The story is this: the overthrow of the monarchy in the year from
the foundation of Rome (245 A.U.) increased the power of the patri-
cians. The plebians won a significant concession in the establishment
of the tribunate, but the patrician and pontifical monopoly of the
judicial power and the secrecy of the laws remained powerful tools of
patrician dominance. The plebians, therefore, demanded a written
code of laws, thus limiting the judges' discretion. In 292, after ten
years of struggle, the patricians yielded. Their first step was to send
a three-man deputation to Athens.3 For three years Rome waited; the
plebians, who had moderated their opposition after the decision to
produce a code, grew restive. When the deputation returned a com-
mittee of ten charged with absolute powers, the Decemvirs, com-

' The authenticity of the Twelve Tables has at times been attacked, but the weight
of opinion seems to be in favor of their genuineness. This position is accepted here.
2 Ernst Anderson, The Renaissance of Legal Science after the Middle Ages
(Copenhagen, 1974), Chap. 10: "Reconstruction of the Twelve Tables," 69 ff.
3 Some sources have the deputation visiting other Greek cities, and some include
the Greek colonies in Italy as well.

379
Copyright July 1982 by JOURNAL OF THE HISTORY OF IDEAS, INC.

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 380 MICHAEL STEINBERG

posed or arranged a synthesis of Gree

engraved them on ten tables, which w
following year a second Decemvirat
pleting the canonical twelve.
The traditional story has an additio
the refuge of the Ephesian sage He
because the citizens of Ephesus tire
cellence." The Decemvirs, evidently
lawyers' jargon?) called upon him to in
his native land. Hermodorus's part in
Tables was so great that a statue in
Forum.
This story, reported by Livy and Dionysius Halicarnassus, was
universally accepted until the eighteenth century. Then, in the succes-
sively more radical editions of the New Science, Vico began to attack
it. He ended, in fact, by denying the existence of the Twelve Tables
altogether. None of his objections had any effect on the scholarly
consensus of his time. But by the early nineteenth century, as Livy's
accuracy came to be questioned, it was accepted that there were no
significant Greek elements in the content of the Twelve Tables.4
Niebuhr, in the first edition of his History, rejected the story of the
deputation outright. His final opinion was that a mission to Athens
may have taken place, but that it had no influence on the drafting of
the code.5 Niebuhr's conclusions were accepted by Mommsen.6
There is still some debate on the subject today, but the most widely
held opinion sides with Niebuhr and Mommsen.7
In the later eighteenth century, though, there was another debate
on the origin of the Twelve Tables, a debate that remains largely
unknown. Pierre-Nicholas Bonamy and Antoine Terrasson, two of

4 The traditional story is upheld as late as 1803 in Bouchaud's Commentaire sur

la loi des Douze Tables (n. 53 below) which, however, is more the last monument of
the old scholarship than an example of the new.
5 G. B. Niebuhr, The History of Rome (2nd edition) trans. J. C. Hare and
C. Thirlwall (Philadelphia, 1835), Vol. II, 227 ff., maintains that Athenian influence
(though not that of Solon's laws) may be found in some constitutional arrangements,
but that none is found in private or procedural law. G. B. Niebuhr, Lectures on the
History of Rome, trans. L. Schmitz (London, 1849), describes the evolution of his
position on the deputation; I have not seen the first edition of the History, alluded to
there.
6 Theodore Mommsen, The History of Rome, trans. W. P. Dickson (London,
1864). The deputation is mentioned at I, 289. There is no mention of any Greek
content in the Decemviral laws; in fact, Mommsen notes that they did not 'include
any changes of the existing law more comprehensive than mere regulations of police
or enactments adopted to existing circumstances" (290-91).
7 See, for example, H. F. Jolowicz, Historical Introduction to the Study of Roman
Law (Cambridge, 1952), 108: "on the whole the XII Tables are based on the cus-
tomary law of Rome herself."

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 ROME'S TWELVE TABLES: 18TH-CENTURY DEBATE 381

the age's noted professional historians, discussed the questio

length. Their arguments, like those of Vico, imply attitudes to
the nature and origins of human societies. Their debate is of int
not to the student of Roman law but to the student of the root assu
tions of eighteenth-century thought on humanity and society, re
in a discussion of the origins of Roman law.

II. The Twelve Tables looks like a code. Mommsen even calls it
"the first and only legal code of Rome."8 To us today it looks m
like a kind of catch-all statute, neither comprehensive nor system
and so it appeared to Vico. Though he rejected the idea of its be
code, Vico still looked to it for evidence of early Roman history

If the Law of the Twelve Tables was customs of the peoples of Latium
came into use in the age of Saturn and which, though they never cea
changing elsewhere [in Latium], were set down by the Romans in bron
guarded with religious care by Roman jurisprudence, then this law is a
witness of the ancient natural law of the gentes of Latium.9

The laws collected as the Twelve Tables are the remains of the p
cal wisdom of the heroic peoples (gentes) of Latium.10 They repr
a "serious poem" in which juridical relationships are presented i
guise of fables:

[F]rom the masks called personae which were used in . . . dramatic fa

so true and severe, derive the first origins of the doctrine dejure personaru
of the law of persons. 1

The reason for Vico's rejection of the Greek origin of the T

Tables lies in the general outline of his thought. His aim, if it c
put briefly-a hopeless task-is to plot "the course the nations
Each nation, with the significant exception of the Hebrews, mus
the same course; each must pass through the three ages: the a
gods, the age of heroes, and the age of men. These ages have dis
tive forms of thought and of law; it was in fact through the stu
law that Vico arrived at his insights, expressed first in the Diri
universale of 1720. God directs the world through the operation
natural laws. He has infused in man a sentiment of justice which
quote the excellent unsigned article "Vico" in the eleventh editio
the Encyclopaedia Britannica)

8 Mommsen, op. cit., 290.

' The New Science of Giambattista Vico, trans. from the third ed. by T. G. B
and M. H. Fisch (Ithaca, 1970), para. 154, interpolations by the translators.
"' Ibid., para. 1031.
I Ibid., para. 1037. That Roman law originated in fables is in fact a Justin
commonplace.

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 382 MICHAEL STEINBERG

in close and continual relation with the hum

changes. This sentiment of justice ... is a
ment, not the personal, conscious and ration
Hence the law to which it gives birth is en
are likewise visible and palpable, inasmuch
abstract, philosophical ideas.... [This] firs
tion of law gradually becomes clearer an
religious forms then give way to abstract f
slowly replaced by the rational manifestatio
law that gains [sic] the victory in the final
the period of individual and philosophic le

The Twelve Tables belong to the seco

Athens, however, had by this time entere
or human law. And Vico held that it w
a poetic, heroic age to comprehend, let
philosophical law of those in the age of
were of "truth and natural equity,"'3
lacked the powers of thought required
Providence, working through the laws
to Vico), provides an internal impulsion
history. Each nation develops from wit
institutions:

. .Vico could not accept the idea of appreciable cultural 'influence' in the
early stages of a national history. Although every nation experienced the
same general process, each had its own ingenium (genius was the humanistic
term) and cultural style.14

Thus the Romans were not merely barred from borrowing a code: they
were barred from borrowing anything at all.
How, then, did the tale of the deputation begin? In the first edition
of the New Science Vico accepted the story of the deputation, but
claimed that it was merely a patrician scheme to buy time.15 In the
second edition, more rigorously radical, he changed his mind. No ship
carried even a fruitless deputation to Athens. This gives Vico a giant
problem, but his system is up to the challenge. The "conceit of
scholars" in human ages, like that of the late Republic, for example,
as well as his own age

leads scholars to read their recondite, individual, discursive wisdom (sapi-

12 Encyclopedia Britannica, 11th ed., vol. 28 (1911), 23.

13 Vico, op. cit., para. 328.
14 Donald R. Kelley, "Vico's Road," in G. Tagliacozzo and D. P. Verene, eds.,
Giambattista Vico's Science of Humanity (Baltimore, 1975), 25.
'1 Max H. Fisch, "Vico on Roman Law," in M. R. Konvitz and A. E. Murphy,
eds., Essays in Political Theory: presented to George H. Sabine (Ithaca, 1948), 68.

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 ROME'S TWELVE TABLES: 18TH-CENTURY DEBATE 383

enza riposta) into the laws and poetry of the 'divine' and 'heroic' ages,
wisdom was in fact common, collective, and poetic (sapienza volgare).

They turned the Twelve Tables into a code, the rationalistic

philosophical form of law, the only kind they knew. And the na
conceit of Rome, arrogating to itself the inheritance of Athens, and
national conceit of the Greeks, taking credit for the greatness of
conquerors, met in the story of the deputation.
Vico's criticism of the deputation is a priori in method. He
makes very similar points in his better-known attack on Homer. The
Homeric poems are "two great treasure houses of the natural law of
the gentes of Greece."17 But there was no real poet named Homer:
"Homer was an idea or a heroic character of Grecian men insofar as
they told their histories in song."18 In the human age the true na
of these poems was hidden by the conceit of scholars, which assi
lated them to the kind of rational poetic activity typical of their
unheroic age:

[T]he same fate has befallen the poems of Homer as the Law of the Tw
Tables; for, just as the latter, having been held to be the laws given by
to the Athenians and subsequently taken over by the Romans, has up to
concealed from us the history of the natural law of the heroic gentes
Latium, so the Homeric poems, having been regarded as the works thr
off by a particular man, a rare and consummate poet, have hitherto conc
from us the history of the natural law of the gentes of Greece.19

Vico's theory of history makes it impossible for the story of

deputation to be true, or at least meaningful, and so he rejects it
does not attempt a survey of the laws to see if any resemble thos
Athens, although he does note of some that they are of Roman a
heroic origin. Even if certain provisions were shown to be identi
with their Greek counterparts, Vico would be compelled to treat t
as coincidences or as interpolations. Law only reflects the dev
ment of human institutions. It is one of Vico's axioms that "Govern-
ments must conform to the nature of the men governed."20 Provi-
dence guides the nations, dictating the form of law appropriate for a
given nation at a given time. The differences between Roman and
Athenian development are enough to condemn the fable of the depu-
tation in advance.
Vico founds his attack on the secondary, epiphenomenal role he
gives to law. If law formed society, a nation could adopt any law a
any age, and complete restructurings of cultures would be possible
Vico's rejection of this position is one of his most important depar
tures from eighteenth-century orthodoxy.

16 Ibid., 71. 17 Vico, op. cit., para. 156. 18 Ibid., para. 873.
19 Ibid., para. 904. 20 Ibid., para. 246.

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 384 MICHAEL STEINBERG

III. Vico's criticisms were developed t

tions of his maturity. They were first en
expanded in the first two editions of th
and brought to their most radical form
edition of the New Science, published in
death.2' At just about the same time th
tions et Belles-Lettres in Paris heard a
Twelve Tables that also attacked the sto
Pierre-Nicolas Bonamy (1694-1770),
tion, is today so little known that some
be useful. He was one of his age's mo
torians, although he was born in a peas
orders. Early in life he became sub-li
Victor, which had been one of the grea
lectual life. Bonamy had a talent for
entering the Academy of Inscriptions in
ographer of Paris. To this position he a
the Tresor des Chartes, an ideal positio
directorship of the city library. In 174
Journal historique sur les matieres du t
nal de Verdun, one of the numerous po
educated classes in touch with the ad
died in 1770, widely honored.23
From volume eight of the Academy's
ward there is scarcely a volume that do
Bonamy's contributions. His range was
teen alone there are pieces on the use o
magistrates, on the state of France und
the Norman incursions, on the Treaty o
Seine flood of 1740. Bonamy also wrote
and philosophy and had a keen interest
His works show a critical spirit and ind
associated with the thought of a cler

2' The final version is available as Appendice

in the Rizzoli edition of Vico's Opere, ed. Paolo
"Ragionamento primo d'intorno alla Legge d
Roma." It is unfortunately not accessible in En
22 The tresor des chartes, in effect the Royal
scholars under the ancien regime.
23 This biographical sketch was derived fr
the Histoires of the Academie des Inscriptio
L'Ancienne Academie des Inscriptions, 2nd.
graphie Universelle, nouvelle ed. (Paris, 1843), I
tionnaire Biographique Francaise [DBF] (Pari
Duranton, "Le metier d'historien au XVIII' siecle," Revue d'histoire moderne et
contemporaine, 23 (1976), 481 ff.

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 ROME'S TWELVE TABLES: 18TH-CENTURY DEBATE 385

was so well known as an opponent of the Encyclopedie that the P

Parlement chose him to sit on the commission which examined that
work. All the same, Bonamy can surely be considered a mainstream
figure in eighteenth-century historiography.24
Bonamy delivered the three parts of his dissertation in annual
installments, from 1735 to 1737.25 At the beginning of the first part he
cites the New Science. Both the title he gives and the position he
ascribes to Vico (the Tables, a codification of Roman law, were
passed off as Greek to mollify the plebians) are from the first (1725)
edition of Vico's work.26 But Bonamy does not share Vico's meta-
historical concerns. He builds his case from an analysis of the laws
themselves.
Bonamy admits that there is a Greek influence in the content of the
laws:

If the commentators on the Laws of the XII Tables had been content with
saying that the government of the Romans, and some of their traditions under
the early Kings, owed their origin to the manners and traditions of Greece,
they would have said nothing but the truth: but their judgment does not seem
to me to be equally well founded when they assert as a certain fact that the
laws of the XII Tables were drawn from those of Athens ....27

This influence, though, had entered under the monarchy, not after it
overthrow. Bonamy rejects the Athenian deputation because of the
concordance between the Twelve Tables and the customs of mon-
archical Rome:

In comparing the laws established by the Decemvirs with the traditions a

former government of Rome, it is impossible not to see the antique mann
which characterize the Roman people ... 28

24 On Bonamy's attitude towards the Encyclopedie, see Maury, op. cit., 308-
The relationship between the philosophes and the academicians was not cor
some of the nastier cracks against the academic spirit can be found quoted in Rob
Shackleton, "The Impact of French literature on Gibbon," Daedalus (Summer 19
37ff. It should be remembered, though, that Gibbon's serious historical resear
began with his purchase of the Academy of Inscription's Memoirs. The philosoph
made use of the academicians' work even as they mocked them, and much of t
supposedly pedantic work-like Bonamy's essay-was permeated with the ph
sophic spirit and the concern for contemporary problems which we associate with
school of the lumieres.
25 It is found in the Memoires section of the Histoire et Memoires de I'Academie
Royale des Inscriptions et Belles-Lettres, XII (Paris, 1740) 27-99. I would like to
thank Mary Uhl and Alice Anjo for their aid in obtaining a copy of this piece.
26 The title Bonamy gives ("Principi di una Scienza nuova intorno alla natura delle
nazioni" is the main title of the first edition. The second and third are both entitled
"Principi di Scienza nuova di Giambattista Vico d'intorno alla Comune Natura delle
Nazioni.") Bonamy's reference is at 29.
27 Ibid., 26. 28 Ibid., 28-9.

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386 MICHAEL STEINBERG

The second and third parts of the disser

of laws, comparing them with ancient R
methodology, rather than his conclusion
departure from Vico. The later editions o
up the more radical aspects of the Vichian
any Decemviral code at all. This is a st
starting as he was from the content of
The Decemviral laws, Bonamy says, we
had either fallen into disuse or had never been written down:

The Laws of the XII Tables are, for the greater part, the former laws of
Rome, fallen into disuse; or customs which, though not having been written
down, had all the same the force of law.29

The Greek influence, which as we have seen Bonamy finds in the

monarchy, dates from the origins of Rome itself. Following Dionysius
of Halicarnassus, Bonamy points to the many Greek colonies around
Latium; he notes that the Trojans, founders of Alba, were Greek;
Rome itself began as a Greek city; and the alleged origins of her
women and of her greatest king, Numa, were with the Sabines, fol-
lowers of the customs of Sparta. Combined with the Greek foundation
was a uniquely Roman element, the ethnic diversity of the early city:

This mixture must have altered the constitution of the primitive government,
and thus introduced traditions suitable to the genius of various peoples of
differing language and manners.30

Before the Decemvirs, then, Roman jurisprudence was a blend of

Greek and native elements, and this double nature was faithfully
reflected in the Twelve Tables code.
Bonamy continues with a sketch of the history of monarc
Rome. Each king is depicted as a social engineer, establishing law
promote thrift, respect for the gods, good faith in contracts, and oth
virtues. Numa, whose special eminence remained a commonpla
well into nineteenth-century histories, is singled out for creating
cults of good faith and of boundary stones, and for his emphasi
smallholding agriculture. The ancient constitution was engraved
tablets and set in the Forum by Servius Tullius.31 Tarquin the Pr
turning the government into tyranny, had them removed and bro
The overthrow of the monarchy became necessary in order to res
the ancient constitution:

29 Ibid., 29. We shall discuss Bonamy's use of the word coutume below, sec. VI.
31o Ibid., 30.
31 This is the apocryphal Papyrian code.

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 ROME'S TWELVE TABLES: 18TH-CENTURY DEBATE 387

After twenty-five years of this tyrannical reign, the revolution which put a
end to royalty in Rome revived order.32

As part of this renewal of ancient liberties the Patricians, see

Plebian support, revived even the egalitarian laws of Servius:

In effect, the Patricians, who needed the aid of the Plebians for the cha
they wished to introduce in the government, made use of the re-establi
ment of the laws of the first Kings, in particular those of Servius, to win ov
the people.33

But this period of class collaboration did not last long. A class struggle
ensued, and in his narrative Bonamy follows the story found in Livy
and Dionysius Halicarnassus closely.
The story of the deputation, though, comes in for special scrutiny.
Could it be, Bonamy asks, that the great laws of Romulus and the later
kings were entirely forgotten? Of course they were not; they are found
in the Twelve Tables:

One only needs to cast one's eyes over the laws of the XII Tables to fin
therein the laws of Romulus, of Numa, and of Servius Tullius.34

If the Twelve Tables were purely Greek, why had even Dionysius
Halicarnassus praised their contents for being "so sober, so respe
able, and so different from the laws of Greece. . . ?"35 Why does
find so much evidence of uniquely Roman customs in the laws? W
is the language of the Tables so idiosyncratically Latin that m
terms cannot be translated into Greek? Because, Bonamy replies,
Twelve Tables, for all the early influence of Greece, are Roman l
prepared by Roman leaders.
The short period between the return of the deputation and th
appearance of the Tables leads Bonamy to agree with anothe
Vico's arguments. The laws, he claims, had already been prepar
The Decemvirs awaited only the opportunity of presenting th
under the guise of Greek law.36 That two additional tables were
pared the next year might argue that the Decemvirs' work was ind
hurried,37 but Bonamy sees a plot at work here, too, this time t
Decemviral conspiracy to make their power permanent.
These are Bonamy's chief arguments. They are not wholly c
vincing, yet are presented well and can hold their own with all but
greatest accomplishments of eighteenth-century scholarship, esp
cially in his evident willingness to abandon well-accepted stories. T

32 Bonamy, op. cit., 35, emphasis added. I do not believe that I have overemp
sised the elements of political polemic in Bonamy's work. 33 Ibid., 36.
34 Ibid., 46. 35 Ibid., 47. 36 Ibid., 50.
37 This is my own suppositious objection

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388 MICHAEL STEINBERG

Memoirs of the Academy do not record

survey of the later literature shows th
IV. Bonamy's dissertation was attacke
his massive Histoire de la Jurispruden
Antoine Terrasson (1705-1782) is sca
Bonamy, yet he too was a major figure
distinguished Lyons family active in la
Antoine's cousin, Jean Terrasson, a p
wrote a work on Philosophy applied to a
reason (Paris, 1754) and a "roman ph
1731), a novel reputed to be quite un
prominent lawyer, moved his family
where Antoine was born. The child w
became at age twenty-two an advocat
Antoine renounced a legal career in f
work was an historical dissertation on t
hurdy-gurdy which developed into the
music. The call of the legal and burea
though, and Terrasson became censeur
for the French clergy in 1753, profess
de France in 1754, and served as counsellor and for two years as
chancellor in the semi-independent principality of Dombes.38
The Histoire de la Jurisprudence Romaine (Paris, 1750) was Ter-
rasson's major work. Gibbon read it, referred to it, and correctly
complained that it was "a work of more promise than performance."39
But it was for many years a standard work, virtually the only re-
spected work on its subject. The articles on Roman law in the
Encyclopedie were based on it;40 the legal historian Hugo, referring
perhaps to his student days in the 1780s, mentions it as a common
text;41 and the final edition of the work, an abridgement by a provin-
cial publisher, appeared as late as 1824.
Terrasson begins with the Creation. His story contains no Fall,
only an orderly expansion of human settlement. As society developed
it gave rise in turn to the three branches of Roman law: first jus
naturale, then jus gentium, and finally jus civile. Each race then
received its own laws either from its own legislators or from those of
other races. The greatest legislator, of course, was Moses. Mosaic

38 As the DBF has not yet gotten to "T", biographical information on Terrasson
is best available in Michaud, Biographie Universelle, nouvelle ed. (Paris, n.d.), Vol.
41, 171-72. The principality of Dombes was held by various royal relatives and
bastards until its return to the crown in 1762.
39 Edward Gibbon, The Decline and Fall of the Roman Empire (1776) (New York,
1948), III, 671, n. 9 (ch. 44).
4" Nelly Noemie Schargo, History in the Encyclopedie (New York, 1947), 114,
217.
41 Gustav Hugo, Histoire du Droit Romain, trans. A.J.L. Jourdan (Paris, 1822), I,
xx. [From the German, 7th ed.].

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 ROME'S TWELVE TABLES: 18TH-CENTURY DEBATE 389

laws were adopted in Egypt and Crete; Lycurgus found them th

and made them into the laws of Sparta. Terrasson's wide-ran
survey includes some lesser-known figures, such as the Scyt
Zamolxis, and some better-known: Zoroaster (whose laws were b
rowed, Terrasson claims, by the Pythagoreans), Draco, and So
Terrasson's treatment of Roman history is quite conventi
although he tends to downplay the social legislation of the early k
Numa, for example, is mentioned as the giver of religious laws.
rasson ignores the laws about contracts and the division of land.
mentioning the early kings, and attempting a reconstruction o
spurious Papyrian code (called by Gibbon "a pompous but f
attempt"42), Terrasson presents the standard narrative of the o
throw of Tarquin, the class struggle, the Greek deputation, and
creation of the Twelve Tables.
It is at this point that Terrasson pauses to discuss and to refute
Bonamy's dissertation.43 He summarizes it with admirable fairness.
Noting that Bonamy accepts both the historicity of the deputation and
the appearance of the Tables after its return, Terrasson wonders why
Bonamy persists in denying a contemporary Greek influence. When
he makes his attack, though, Terrasson begins with more substantial
objections. There are a great many fables told about the origins of
Rome. To adopt one of them as a certain fact is a shaky beginning for
an historical argument. It is unwise, continues Terrasson, to trust
Greek historians like Dionysius on this point, for the Greeks had a
tendency to claim a share in the origins of all things.44
Terrasson raises another objection to the Greek foundation of
Rome, basing his argument on a theory of the origins of peoples in
general. There are two ways in which groups enter the territory of
others. The first is conquest, in which the conqueror subjects the
losers to his own laws. The second is peaceful settlement, in which a
group is welcomed by the inhabitants of an area and remain with them.
These newcomers do not change the origins or laws of the people
already settled; instead, they adopt the laws of their hosts. It is this
latter form of settlement that the Greeks practiced in Italy, Evander
being received among the aborigines by King Faunus and Aeneas
being welcomed by the Latins. Such settlements could not change the
constitution of the earliest Romans. The most one can conclude is that
some Greek law may have been known among them.45

42 Gibbon, loc. cit.

43 The discussion begins at 77. Terrasson cites Vico with the same first edition title
given in Bonamy. He mentions that Vico denies the deputation "and Bonamy every-
thing else;" he replies only to Bonamy's criticisms, which he appears to think are
drawn from Vico's work. This error suggests that Terrasson knew Vico only through
Bonamy.
44 Ibid., 79. Terrasson does not notice that this objection undercuts his own
position as well. 45 Ibid., 79-80.

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 390 MICHAEL STEINBERG

Terrasson now turns to chronology. T

dates the laws of both Draco and Solon.4
kings could have known the Greek law
borrowed from contemporary Greek
would have found only the laws of Lyc
possibility we would have to go beyo
postulate a deputation to Greece under
tion, we know through Saint Augustine
for Lycurgus's laws: it is no more likely
than that the Decemvirs would.47 The
to the Romans were Athenian, and the
overthrow of the monarchy.
The regal laws, claims Terrasson, w
from the laws of Rome's neighbors. H
Gellius, which finds an aboriginal der
tarius" found in the Twelve Tables. (Bo
in support of his own position.)48 It s
cludes, that Rome and its kings took al
genius and from what they observed am
Terrasson had begun by attacking
Greek origin of Rome, but he now und
claiming a native origin for the monar
Greek character of the Twelve Tables he must introduce a violent
dichotomy between monarchical and republican Rome. His argumen
here becomes very muddled. It is true, he admits, that many of th
regal laws passed into the Twelve Tables; but the laws relating to t
kingship were abolished, and the religious laws were kept secre
There are more than one hundred laws in the Twelve Tables, Terra
son notes; with so many of the regal laws missing, there would no
have been so many left to codify. Another source of law was needed
and that was found in Athens. And with this he turns to a reconstruc-
tion of the Tables themselves.
Terrasson's final argument is his weakest. The criticisms of
Bonamy's Greek-origin theory are more weighty, but Bonamy's argu-
ment, as has been shown, is based on an analysis of the Decemviral
laws themselves. The origin-of-Rome argument arises after Bonamy
detects certain Greek elements in an overwhelmingly Roman code. To
attack Bonamy's thesis effectively, then, one would have to attack his
textual analysis; and this Terrasson does not do. When he discusses
particular laws he tends to agree with Bonamy on their Roman ori-
gin.49 One even finds Terrasson insisting on the Roman character of

46 This is indeed accepted by most modem authorities.

47 Terrasson, 80. The citation from Augustine is Civ. Dei, II, 16.
48 Terrasson, op. cit., 81. Bonamy, op. cit., 46-47.
49 Terrasson does not mention Bonamy in this section; one has to compare inter-
pretations of various laws.

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 ROME'S TWELVE TABLES: 18TH-CENTURY DEBATE 391

a law thought by Bonamy to be Athenian.50 It seems that Bonamy's

chief arguments were not refuted.
Yet it was Terrasson who presented the accepted version of
events. Until Niebuhr began to write early in the nineteenth century
it was Terrasson who was cited. Bonamy sometimes rated a foot-
note-he was mentioned in an early English version of the Code
civil5l-but he was never followed. In the Encyclopedie, for example,
it is Terrasson who provides the reference material in the articles
on Roman legal history. De Jaucourt, who wrote the article "Tables,
Lois des douze" (extraordinary alphabetization!), accepts the story of
the deputation and even sees those survivals of regal law as evidence
of a Decemviral plot to subvert the better social order implicit in the
imported law:

The severity of the regal laws, made for a people composed of fugitives,
slaves, and brigands, no longer suited the Romans. The spirit of the republic
demanded of the Decemvirs that these laws not appear in their twelve tables;
but the men who aspired to tyranny took no care to follow the spirit of the
republic.52

The denigration of native Roman institutions in the story of the depu-

tation must have recommended itself to Diderot, whose distaste for
the Romans is well documented. But a choice to follow that story was
merely a choice to follow scholarly consensus.
V. It was a minor encyclopedist, Matthieu Antoine de Bouchaud,
who worte the last major eighteenth-century work on the Twelve
Tables.53 His Commentaire sur la Loi des Douze Tables, a work of
considerable erudition, accepts both the deputation and the existence
of regal laws in the Decemviral code. The deputation, in his inter-
pretation, was a compromise solution, sent out to find a government
tested by experience that would maintain the rights of patrician and
plebeian without opening the door to oligarchy or tyranny.54 Bou-
chaud mentions Bonamy's "memoire tres-curieux et tres-interes-
sant." He accepts the "positive" argument about the presence of
Roman custom in the laws but rejects Bonamy's "negative" con-

50 The law "privilegia ne irroganto," Terrasson's law 74, at 172.

51 Bryant Barrett, trans., The Code Napoleon (London, 1811), cxvii.
52 Encyclopedie, ou Dictionnaire Raisonee. . . (Geneva, 1779), XXXII, 459.
53 Bouchaud (1719-1804), son of a lawyer and friend of D'Alembert, wrote for the
Encyclopedie on jurisprudence and canon law. This and his marriage to an actress in
the Com6die Francaise ruined his reputation; he turned to translating, turning into
French Lord Kames's Historical Law Tracts and several novels until his De I' impot
du vingtieme of 1766 restored him to favor. He was appointed to the Academy of
Inscriptions in the same year. See Michaud, op. cit. V, 162-64; and DBF, VI, 1191.
The first edition of the Commentaire appeared in 1787; the edition, much enlarged,
from which these citations are taken, appeared in 1803 and was dedicated to Napo-
leon, then the midst of enacting the Civil Code.
54 See Bouchaud, esp. 40-45.

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 392 MICHAEL STEINBERG

clusions.55 It is worth mentioning

vanished. Bouchaud explicitly states
tempted to refute the story of the
account is almost as conventional as T
detailed and scholarly.
VI. Thus ends the eighteenth-century debate on the Twelve
Tables. It does not seem to be a debate of much importance. When we
look at the arguments more closely, though, we unexpectedly en-
counter some major issues. Bonamy's argument has a weakness less
obvious than his suppositious Greek origin for Rome. It will be
remembered that he finds in the code some Greek elements, some
regal law, and some unwritten custom. Bonamy's definition of custom
is this:

Thus, what does he (Dionysius) understand by unwritten custom? He doubt-

less means the first laws written under the Kings, laws which Tarquin had
then abolished, and which the Senate had formally re-established; but which
had been invoked so little in the administration of justice that they had all but
disappeared.57

Custom is thus the term for written law that has been abrogated but
not forgotten. But custom is also a royal command that has not been
reduced to writing:

Among the laws of Romulus, especially regarding the law of nature, there
were a great many never written down. Under the other Kings customs were
also established, according to the needs of the case.58

There is, finally, the kind of custom which does not originate with the
sovereign. On these Bonamy refers to Cicero, who follows the civil
law tradition of accepting general customs as being "like law;"59 but
Bonamy does not believe that such customs form any part of the
Twelve Tables.
The various forms of "custom" which Bonamy discusses are
assimilated to legislative acts. They are, for him, just another va
of royal (or senatorial) command. On this point Bonamy and Te
son agree. Terrasson's nations are all created by philosophica

55 Ibid., 14-15.
56 Ibid., 14. His words are: "M. Bonami... alone proposed to refute comme
ators who think that the Decemvirs' collection was composed only from Greek
57 Bonamy, op. cit., 45. 58 Ibid., 32.
59 See Justinian, Institutes, I, ii, 9. Sandars, T
1876), at 75, notes that neither the Institutes n
the relationship between custom and legislation
lem, esp. in countries following civil (Roman)
"Custom and Modern Law" in University of Western Ontario Law Review, 15,
(1976), 1. 60 Bonamy, op. cit., 45.

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 ROME'S TWELVE TABLES: 18TH-CENTURY DEBATE 393

minded legislators, who adapt the dictates of natural reason to

mores of their people. The achievements of Greece and Rome w
not the result of any natural superiority:

Men were not in any way different then from what they are today
common people are always vulgar, always superstitious and violent, a
imprudent, always weak.61

Their superiority stemmed from the act of a philosopher-lawg

who gave them laws drawn from nature and rectified by reaso
wisdom.62 Customary law, which Terrasson knew from the Fr
courts, comes in for heavy scorn. In contrast to the wisdom fou
written law, customs by and large

take their origin from arbitary traditions introduced sometimes by a

willed populace, and sometimes by lords more absolute but just as co

He may not express his point of view so vehemently, but Bo

shares Terrasson's legislative bias. We can see this in his attemp
a definition of custom, and in his evident agreement with Dion
statement that Roman superiority stems from the wise law
Romulus.64 The real disagreement between the French savants
role assigned to the Decemvirs. For Terrasson they are genuine
lators, founding the Roman polity on the basis of the best avai
laws. For Bonamy they are at most editors, reviving those
of Roman kings which had fallen into disuse under the Tarq
tyranny.
For all the writers we have discussed, with the important excep-
tion of Vico, law is something which has to be created in a conscious
process. Without law there is no society, only an anarchic state of
nature. The promulgation of law brings about the transition to civil
society. This model of society has two elements: individuals and a
legislator.65 The content of law is thus limited by two constraints only:
the dictates of natural reason, which are the same everywhere, and
those differentiating factors which operate on individuals in the pre-
social state. Montesquieu's famous physiological theory of climatic
influence is such an attempt to explain national or cultural diversity
through a pre-social influence that operates equally on all individuals.
It is a common charge, often repeated and often refuted, that the
eighteenth century "lacked an historical sense. But what does this
mean? Meinecke accused the historians of the time of judging all ages
by the abstract and uniform standard he called "natural law." Yet

"l Terrasson, op. cit., v.

62 Loc. cit.: "puis6es de la nature, et rectifiees par la raison et par la sagesse."
"3 Ibid., viii. "4 Bonamy, op. cit., 32.
"5' Such a model includes but is not limited to the c

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 394 MICHAEL STEINBERG

those historians had a vivid sense of

always warning us not to be shocked
Terrasson insists on a comprehensive
and institutions for those who would u
try" of Roman jurisprudence. The age d
in illuminating the contrasts between,
and Persia, China, or Tahiti on the othe
Yet it cannot be denied that even t
century historians had difficulty gr
motion. The most successful historical w
describes a unilinear movement, a decl
the importance of much of the history it
good intentions, in spite of their scho
genuine attempt to judge other people b
eighteenth-century historians seem to
The model of society implicit in Bon
one reason for their failure. The eight
historical sense; what it lacked was a social sense. The idea of a
society constituting itself was completely alien to the age's thought.
It is quite true that, as Rene Hubert and others have argued, society
is considered a natural object, to be explained by natural laws.67 But
these laws all pointed to a conscious act at the beginning of society,
like the founding act of the watchmaker-god of deism. The state of
nature is an anarchy worse than Hobbes could imagine, filled with
natural disasters68 and crimes:

Murders, rapes, adulteries, incests, parricides: these are the evils whic
needed a remedy when Zaiecus appeared.69

The only way out is through legislation. And, after climatic variation
it is the quality of the legislation that determines the future of th
society. This attitude, a commonplace at the time, was stated baldly
by Montesquieu:
At the birth of societies, the leaders of republics create the institutions;
thereafter, it is the institutions that form the leaders of republics.70

Two important consequences flow from this model. First, the limits o
social differentiation are rather narrow. Second, the founding legisla
tion is a matter of immense importance, for it contains all the form

" I am thinking of Gibbon's treatment of Byzantium.

67 Rene Hubert, Les Sciences Sociales dans l'Encyclopedie (Paris, 1923), 217.
68 Ibid., 211.
69 Encyclopedie, XVI, 582. That the argument has not been thought through is
obvious; how can adultery exist before the institution of marriage?
7) Montesquieu, Considerations on the Causes of the Greatness of the Romans
and their Decline, (Amsterdam, 1734), trans. D. Lowenthal (New York, 1965), 25.

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 ROME'S TWELVE TABLES: 18TH-CENTURY DEBATE 395

of social life possible in the newly-chartered nation. New laws c

introduced, of course, but within any body of law a society can
realize or retreat from the possibilities contained in that law. G
and decline, decline and fall, conquest and defeat-such are the
movements possible within this model. Reformation, in the
sense of the word, may also be possible. Transformation is not
The difference between this scheme and the historical vision of t
nineteenth century is striking. Niebuhr, Grimm, Savigny, and th
conceive of societies constantly inventing and transforming th
selves. The collective, unconscious, ever-changing life of the n
becomes the subject of history. "Language and law," says Sav
"exist only through a series of uninterrupted transformations."
tween the legislator and the individual there came a new medi
level, the life of the nation. Or, more accurately, the life of the
dethroned the legislation. Societies do not exist without law, S
insists, although they may exist without legislation. The legisl
role is simply to express or refine and order the naturally exp
will of the nation. In most periods, in fact, he should refrain even
that little.72
In the eighteenth century law was primary; in the histo
schools of the next century it became a secondary, dependent
nomenon. Here we can see the true novelty in Vico. In the secul
eighteenth century it was Vico's Catholicism that ironically
his advances in historiography. He was determined to find the
of providence in history, but it could not be found in isolated e
or in the inspiration of the lawgiver. Only Moses had receiv
directly from God. Vico finally discerned its workings in the ce
self-creating transformations of social life. This idea of a nation
ing its own institutions without conscious direction is what link
with the historical schools, and it remains the key to his impo
today.
Bonamy and Terrasson can debate the origin of the Twelve Tables
because they agree on the fundamental issues. Vico has already trans-
cended the terms of that debate; for him as for us the origins of Roman
law sank into the collective history of the Roman people. Not so for
Bonamy and Terrasson. Neither doubted that a wise legislator had
at some point given Rome her laws; they differed only on who was to
get the credit for this creative act. Their concern for the nature and
origin of the Twelve Tables was justified by the role it seemed to play
in Roman history. Along with the institutions of Romulus, after all,
the Tables were the secret of Roman greatness. For us, accepting the

71 Friedrich Karl von Savigny, Traite de Droit Romain, trans. M. Ch. Guenoux
(Paris, 1855), I, 17. The translation from the French is my own.
72 This is the gist of Savigny's tract "On the Vocation of Our Time for Legislation
and Jurisprudence" (Berlin, 1814) trans. 1831.

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396 MICHAEL STEINBERG

secondary status of law implicit in

the question seems less important. Th
deputation to Athens and some about
Tables themselves; but the little imp
both questions is a measure of how f
eighteenth century.

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