Laws of the Kings
According to tradition, during its first two and a half centuries of existence, seven kings governed Rome. Each of these promulgated regulations, which were known as the “laws of the kings” (leges regiae “royal laws”). Reports of these laws are to be found in many traditional accounts about the early history of Rome (most importantly, Dion. Hal. 2.7-29; Plut. Rom. 9.3; Cic. De rep. 2.8.14; Liv. A.U.C. 1.8), in a chapter of Justinian’s Digest dedicated to the origins of law extracted from a work of the jurist Pomponius (D.1.2.2, Pomponius, libro singulari enchiridii), and some casual statements made by antiquarians, including Varro and Gellius.
The fact that many—but not all—of the laws were attributed to Romulus and Numa Pompilius, the two most unlikely of the seven kings the tradition offers, led scholars generally to discard them as simple myths, historical anticipations (for some of the laws’ contents were repeated in the Twelve Tables), or even as fabrications of Dionysius in a political pamphlet.1 In the legal arena, this led scholars to regard these statutes as merely customary, and to discard them from the proper legal order.2
Evidently, the main problem regarding the so-called leges regiae is the general unreliability of Roman historiography about the regal period (see historiography, Roman). The first Greek narratives discussing Roman history date from the second half of the 4th century bce; the existence of independent Etruscan accounts is unlikely, and first-hand documentary sources are scant,3 to say the least. Therefore, even our best sources, such as Cicero or Livy, had very little direct evidence at their disposition to write their accounts on regal Rome. From the time of the kings to their own, very little evidence survived, something they attributed to the disastrous effects of the sack of Rome during the Gallic Wars (c. 386 bce) (Livy, 6.1.2; Plutarch, Numa, 1.1). Although the sack itself might have not had the momentous effect the tradition attributes to it, and the survival of documents is likely,4 it is still difficult to explain how knowledge of the past might have been transmitted from the earliest times to the first Roman historians, who appear in the 3rd century bce. At any rate, there can be little doubt of the fact that some information from the time of the monarchy was transmitted to later historians, for many events featured in the tradition seem to fit well with the archaeological record,5 such as the foundation of temples, the paving the Forum, and other events.
Although it is comfortable to dismiss the leges regiae as simple fabrications of late Republican antiquarians, there are a number of facts that fit poorly with that thesis. First, not all of the leges regiae are attached to such semi-mythical kings as Numa Pompilius or Romulus6; rather, many of them involve much more historically solid characters, such as Tarquinius Priscus and Servius Tullius. Second, the origin of most of the public institutions of the early Republic would be quite hard to explain without the background of legislative action by the kings during the later monarchy. In fact, the whole framework of the city’s public organization into curiae first, and later into the Servian tribes and centuriae, seems to have come from the kings, as does the early character of the Senate and the comitia. Third, at many points when the sources are discussing some specific features of statutes given by certain kings, they seem to be quoting some kind of textual evidence.7 Finally, archaeological evidence seems to support the idea that kings did have a legislative capacity. We do have a document from the late 7th or perhaps early 6th century bce that seems to preserve a law made by the kings of Rome: the famous Lapis Niger (ILS 4913),8 found in 1899 at the Roman Forum in the area of the Vulcanal. It is a black slab of grotta oscura marble, inscribed with a text in archaic Latin. It seems to have been designed to publicly display the text, in a similar fashion to Greek monuments such as the Codex Gortinae (see Gortyn Law Code). Although its reading is very uncertain, it seems to be a statute which refers to kingship.
In conclusion, the kings, at least during the later monarchy, might have had a legislative capacity, which was possibly expressed through laws. These laws might have been publicly displayed, like the later Twelve Tables, following a model used in Greece and in the ancient Near East.
At any rate, regarding the evidence for the laws that tradition gives us, at many points the antiquarians and historians seem to be quoting some kind of first-hand documents. For instance, Cicero (De re p. 2.31.54) declares that the pontificii and augurales libri attribute to the legislation of the kings the establishment of the right to appeal to the people in capital cases (provocatio ad populum), in reference to Tullus Hostilius. Pomponius, when referring to the laws of the kings, quotes a legal book that would have been written during the time of Tarquinius Superbus or perhaps Priscus by a certain Sextus Papirius,9 who would have compiled the statutes of the kings up to his own time. According to Paulus, the jurist Granius Flaccus, quite possibly during Julius Caesar’s time, wrote a book on Papirius’s work (D.50.16.144). Although such a document—supposedly written during the late 7th or early 6th century bce—might have been almost impossible to read for a scholar of the 3rd century ce, we cannot simply dismiss the tradition as a fabrication,10 as the hypercritical school did during the early 20th century.11 At times the narrative seems quite compact and coherent, as in the case of the laws of Romulus described by Dionysius (Dion. Hal. 2.7–29). The text assumes the appearance of a literary capsule, self-contained and precise.12 Apparently, most of the material belonging to the earlier kings—those whose historicity is most dubious—would come from a document attributed by tradition (though not by evidence) to the time of the Tarquins, while the rest would come from other material sources. The rest of the material, especially those laws attributed to later kings, has a fragmentary nature that seems to fit well into what one would expect from sporadic legal activity.
The 7th and 6th centuries bce in the Mediterranean area were, in fact, a time of lawgivers. Following the rich Middle Eastern tradition, the Old Testament books of Leviticus and Deuteronomy attribute legislation to a permanent legislator whose statutes would have timeless validity. In Greece, on the other hand, a pleiad of legislators rose to give stability to different poleis, whose political balance was shattered by the rise of new middling strata of society. In this context, Draco and Lycurgus appear also as semi-mythical creatures whose laws would shape their own city-states, supposedly with the aid of the gods, to give them permanency. From the second half of the 7th century, the Law of Dreros (BCH 61.1937.333–338) stands as the most ancient copy of one of these legislative bodies that has been found. The laws of the earliest kings of Rome share their texture. These statutes seem to focus on some fundamental features of society, concerning the organization of the polis, cultic institutions, and family law.
According to tradition, Romulus, after founding the city, divided the population between patricians and plebeians. The patricians would hold the plebeians in dependence as clients (see cliens). Afterwards, he created a Senate of one hundred members. The number of senators would rise to three hundred only during Tarquinius Priscus’s reign (Dion. 3.67.1; Cic. De re p. 2.20.35; Liv. A.U.C. 1.35.6). According to Dionysius (Dion. 2.8), the Athenian constitution would stand as his model.
On the other hand, Romulus also divided the whole population into three tribes (see tribus), and each tribe into ten curiae (see curia (1), an ancient division of the Roman people), giving a total of thirty. Each curia received a share of land, whichwas subsequently divided into ten decuriae.
It must be said that the curial organization does seem to belong to the regal period. Although it survived into the later Republic, its most important functions had been absorbed by the centuriae and the tribes during the early and middle Republic, except for some religious features. They were symbolically summoned to give the imperium to the magistrates through the lex de imperio; there was a festival organized by the curiae, the Fornacalia, which the population was to celebrate. Even so, their most important political functions seem to have been fading at the eve of the Republic, and possibly even before.
The whole division seems deeply rationalistic.13 There is a proportional division of the population into three groups, and then each part is subsequently divided into ten parts. It should be noted that such a division seems quite unlikely for a simple historical development, for its rationalistic character implies planning. Also, there seems to be a tension between the division into patricians and plebeians, where membership in the Senate seems crucial, and the curiae, which seem to encompass the whole of the population. There is even a lack of coordination between the number of curiae and the number of senators, which would be superseded only after Tarquinius Priscus’s reform. This tension is reinforced by the fact that some of the curiae seem to be older than others. In fact, seven of them were called veteres (Varr. L.L. 5.155; Tac. Ann. 12.24), and held a building on the Palatine hill, whose discovery has been claimed.14 The rest of the curiae were called novae (Fest. p.174 L.), and had a different building elsewhere.
This incongruity points to a history deeply buried in the origins of the city. There seems to be a group of curiae which might have been part of the oldest organization of the village of the Palatine hill, while, at some point, a reorganization of the city created a new set of curiae which would encompass the whole of the population. Maybe this was done through the legislative work of a lawgiver, for the rationalistic features that the division expresses can hardly be the product of arbitrary historical development.
The archaeological evidence points to a massive reorganization of Roman material culture during the late 7th and early 6th centuries bce (period IVb of the Latial Area). During this period, most of the features that would make Rome stand undoubtedly as a city-state were constructed. The draining of the Forum area and its transformation into a public space to house the most important buildings of regal Rome, such as the Curia (house of the Senate), the Regia, the Domus Publica (house of the pontifices), and the house of the vestals, needed a massive input of labour and a well-established central authority to accomplish them.15 This material panorama seems to coincide with a massive restructuring of Rome’s legal framework, which would typically be expressed as the reinterpretation of the earlier kings’ legal work, possibly as a compilation of their laws (real or imagined) according to the needs of the authorities. In this context, there are two more pieces of evidence that could be useful for understanding the process.
On one hand, many (though not all) of the deeds attributed to Romulus seem to have been accomplished only in the later decades of the 7th century and stand out as repetitions. For instance, tradition attributes to both Romulus (Livy 1,8,2; Plutarch., Rom. 27) and Tarquinius Priscus (Dion. 1,61–62; Lucius Ampelius, Memor. 17,1; Festus 298,67; Flor., Epit. 1,1,150) the introduction of a new kind of power that would feature Roman magistracies, the imperium. Its symbols seem to be of Etruscan origin, and its grant required a law given by the curiae, the lex curiata de imperio. Every major magistracy was granted its power through this institution, which survived as a symbolic ceremony even during the Empire, when thirty lictores, symbolizing the curiae, would give every new emperor that power.16 Most scholars agree that the imperium and the lex that conferred it seem to be closer to the late 7th century than to the mid-8th, when the introduction of hoplite warfare made necessary a stronger military chain of command. In addition, there is some archaeological evidence—the famous Tomb of the Lictor in Vetulonia—that would link the symbols of the imperium both to the 7th century and to the Etruscan region.
Another disturbing fact is that the new building for the curiae, the curiae novae, was located outside the area where tradition locates the original Roma quadrata of the 8th century. Although there is no certainty as to its location, it seems clear that the new building was in the valley, perhaps between the Palatine and the Caelian hills,17 that is, in an area that only came under occupation in the later 7th century.
In synthesis, the textual evidence points to a reorganization of the earlier legal material during the late 7th or early 6th century, which would coincide with the construction of new buildings to give material support to Rome’s institutions, and with the introduction of a new power, the imperium, granted to the kings of Rome. The leges regiae of the earliest period, particularly those ascribed to Romulus, might have been due to the legislative impetus of Lucius Tarquinius Priscus, while the rest of the material, especially those laws that allegedly came from the later kings of Rome, might correspond to real legal material.
As to the later kings of Rome, the most impressive legal material belongs to Servius Tullius, the sixth king of Rome. This personage has a strong historical background and can be connected with an Etruscan tradition reported by emperor Claudius (Table of Lyons ILS 212.I.8-27), and even to some archaeological evidence that seems to depict him in the Tomb François, discovered in 1898.18 Whoever this man might have been—the Etruscan Mastarna of Claudius, the Macstrna portrayed in the Tomb François, or the character constructed by the Roman tradition (see Mastarna)—he seems to have deeply reorganized the legal framework of the city. According to tradition, through legislation he divided the city into four parts and created a number of rural tribes (the exact figure is debated); he created the census, distributing the people into classes and fixing their participation in the army and taxes accordingly; he created a new assembly, the comitia centuriata, and granted Rome most of its public organization. His reforms would survive the fall of the monarchy and feature in the early Republic.
The last king of Rome, Lucius Tarquinius Superbus, also seems to have promulgated some laws, although their nature is hard to ascertain. Dionysius is the only reference we have for such legal work. According to Livy, he did not consult with the Senate (Liv. 1.49.4–7), which might mean that he did not use the auctoritas patrum to give legitimacy to his laws, but this is rather shaky. Dionysius says that he abolished the census, which was one of the basic features of the Servian reform, and reinstituted the original system of tax collection (Dion. 4.43.2). He also would have abolished the old assemblies that each curia, pagus, or village held, in order to gain more autocratic power. At any rate, his reforms seem to have vanished with kingship itself after his fall. The only law attributed to his kingship that seems to have survived was the creation of the poena cuello, the traditional punishment for parricidium (Cic. pro Rab. Perd. 4.13; Val. Max. 1.1.13; Zonar. 7.11). However, these laws might have been attributed to him in order further to blacken his character.
In the law-making process, according to tradition, the king could propose laws to the people in the comitia (Dion. 2.14.3; D.188.8.131.52, Pomp. lib. sing. ench.), and each curia voted separately.19 The place where the vote took place was constructed in the late 7th or early 6th century: the comitium, at the head of the Forum. According to Dionysius, the Senate needed to confirm this vote, in a similar fashion as in Republican times, using the auctoritas patrum. Apparently, the curiae could not discuss the law, but had simply to approve or reject the proposition. In sum, the whole procedure seems equivalent to the later Republican process of law making, and the features of the latter probably come from the earlier system.
The effects of these laws share the general nature of all Roman legislation. In later tradition they were considered as statutes, so, even if we deny their reality as legislative acts and give them a mere customary or sacral origin—as most scholarship of the first half of the 20th century did—in the later Republic they would still have been considered proper laws belonging to the ius civile.20 Even if they had not been considered so, however, the oldest customs of Rome were usually encompassed in the mores maiorum, which were thought to be part of the Roman civil law with an equivalent validity to legislation, so their enforcement would not be jeopardized by it.
Bujuklic, Zika. “Leges regiae: Pro et Contra.” Revue Internationale des Droits de la Antiquité 45 (1998): 89–142.Find this resource:
Capogrossi Colognesi, Luigi. Diritto e potere nella storia di Roma. Naples: Jovene, 2007.Find this resource:
Cornell, Tim J. The Beginnings of Rome: Italy and Rome from the Bronze Age to the Punic Wars (c. 1000–264 BC). London and New York: Routledge, 1995.Find this resource:
Franciosi, Gennaro. Leges regiae. Naples: Jovene, 2003.Find this resource:
Serrao, Feliciano. Diritto privato economia e società di Roma, vol. 1. Naples: Jovene, 2006.Find this resource:
Smith, Christopher J. The Roman Clan: The Gens from Ancient Ideology to Modern Anthropology. Cambridge, U.K.: Cambridge University Press, 2006.Find this resource:
Watson, Alan. “Roman Private Law and the leges regiae.” Journal of Roman Studies 62 (1972): 100–105.Find this resource:
(1.) See Max Pohlenz, “Eine politiche Tendenzschrift aus Caesars Zeit,” Hermes 59 (1924): 157–189. For a critical approach, see J. P. V. D. Balsdon, “Dionysius on Romulus: A Political Pamphlet?” Journal of Roman Studies 61 (1971): 18–27.
(2.) See Max Kaser, “La famiglia romana arcaica,” in Conferenze Romanistiche, Università degli Studi di Trieste, ed. Biondo Biondi (Milan: A. Giuffrè, 1960); and Max Kaser, “Der Inhalt der Patria Potestas,” Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Romanistische Abteilung 58 (1938): 62–87. For a complete discussion of the matter see Zika Bujuklic, “Leges regiae: Pro et Contra,” Revue Internationale des Droits de la Antiquité 45 (1998): 89–142.
(3.) On the matter, see Robert M. Ogilvie and Andrew Drummond, “The Sources for Early Roman History,” in Cambridge Ancient History, vol. 7, part 2 (Cambridge, U.K.: Cambridge University Press, 1989), 1–29; Timothy J. Cornell, The Beginnings of Rome: Italy and Rome from the Bronze Age to the Punic Wars (c. 1000–264 BC). (London and New York: Routledge, 1995), 17; Timonth J. Cornell, “The Value of the Literary Tradition Concerning Archaic Rome,” in Social Struggles in Archaic Rome: New Perspectives on the Conflict of the Orders, ed. Kurt A. Raaflaub (Oxford: Blackwell, 2005), 47–74; and most recently, Timothy J. Cornell, The Fragments of the Roman Historians, vol. 1 (Oxford: Oxford University Press, 2013), 148–151.
(4.) Cornell, Beginnings of Rome, 24.
(5.) Cornell, “The Value of the Literary Tradition,” 55.
(6.) Although some scholarship is increasingly serious about the real character of the latter: see Andrea Carandini, Roma: Il primo giorno (Laterza and Rome: Bari, 2007), translated as Rome: Day One (Princeton, NJ: Princeton University Press, 2011). Carandini’s rather polemical theories have been subject to criticism; see T. P. Wiseman, “Reading Carandini,” Journal of Roman Studies 91 (2001): 181–193, and T. P. Wiseman, “Review of Rome: Day One,” Classical Journal 107.2 (2011–2012): 248–250.
(7.) Cicero seems to be quoting some kind of textual material when discussing the calendar in De leg. 2.12.29. The same can be said of Pliny, Gellius, and Festus, who textually quote laws of Numa (Plin. n.h. 14.12.88; Gell. 4.3.3–5; Fest. sv Occisum L.190, Fest. sv. Subigere arietem L.476, Fest.-Paul. sv. Aliuta L5, and Fest.-Paul. sv. Pelices L.248). Dionysius even speaks about a certain law of Tullus Hostilius which would have been written in Greek characters, cast in bronze tablets, and fixed into the Temple of Diana until his own day.
(8.) See Paolo Lepore, Introduzione allo studio dell’epigrafia giuridica latina (Milan: Giuffrè, 2010), 55–62.
(9.) On the uncertainties regarding Sextus Papirius, see Alan Watson, “Roman Private Law and the Leges Regiae,” Journal of Roman Studies 62 (1972): 100–105.
(10.) This is the most important conclusion of Watson, “Roman Private Law.”
(11.) See Otto von Hirschfeld, “Die Monumenta des Manilius und das Ius Papirianum,” in Sitzungsberichte der Königlich Preussischen Akademie der Wissenschaften zu Berlin (Berlin: Deutsche Akademie der Wissenschaften zu Berlin, 1903), 1–12.
(12.) J. P. V. D. Balsdon, “Dionysius on Romulus.”
(13.) See Robert E. A. Palmer, The Archaic Community of the Romans (Cambridge, U.K.: Cambridge University Press, 1970), 5–25.
(14.) See Andrea Carandini, Remo e Romolo: Dai rioni dei Quiriti alla città dei Romani (775/750–700/675 a.C. circa) (Turin: Einaudi, 2006), 60–61.
(15.) See Filippo Coarelli, Il foro romano: Periodo arcaico (Rome: Quasar, 1983), 119–160; Albert J. Ammerman, “On the Origins of the Forum Romanum,” American Journal of Archeology 94.4 (1990): 627–645.
(16.) With most of the older relevant scholarship, see R. Develin, “Lex curiata and the Competence of Magistrates,” Mnemosyne 30.1 (1977): 49–65; and most recently, Hans Beck, “Consular Power and the Roman Constitution: The Case of imperium Reconsidered,” in Consuls and Res Publica: Holding High Office in the Roman Republic, eds. Hans Beck et al. (Cambridge, U.K.: Cambridge University Press, 2011), 77–96.
(17.) See Lawrence Richardson Jr., A New Topographical Dictionary of Ancient Rome (Baltimore and London: Johns Hopkins University Press, 1992), 104.
(18.) See: Cornell, Beginnings of Rome, 133; Gary Forsythe, A Critical History of Early Rome (Berkeley: University of California Press, 2006), 99–105.
(19.) It is a rather contentious matter whether the tradition on the curiae voting on the laws should be followed. For the discussion see Bujuklic, “Leges regiae: pro et contra.”
(20.) See Bernardo Albanese, “Note sull’evoluzione storica del ius vitae ac necis,” in Scritti giuridici, ed. Bernardo Albanese, vol. 1 (Palermo: Palumbo, 1992), 358.