Personal Injuries in the XII Tables

Tijdschrift voor Rechtsgeschiedenis [Legal History Review], Vol. 43, No. 3-4 (1975), pp. 213-222

Abstract

The provisions on injuries less than death to humans which are contained in the Twelve Tables present some of the most fascinating and intractable problems in legal history. Three clauses have come down to us -- at least in a modernised version -- from this archaic Roman code of the 5th century B.C. A standard translation would be:

2. If 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 Roman law of damage to animate property (as 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 frangere' (literally, "to break a bone") ? Why is the compensation fixed for the latter to be three hundred pieces of copper if a free man is injured, 150 if the injured party is a slave, where as for 'membrum rumpere', unless the parties agree on a composition, retaliation is appropriate? Does 'membrum rumpere' concern more serious injuries than 'os frangere'? Does one or the other of these clauses represent a survival from a more primitive age? Do 'membrum rumpere' and 'os fractum' together cover all serious but non-fatal injuries to the human body? What was the injury provided for in Tab. VIII.4, 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.

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