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Roman Private Law and the Leges Regiae
Published online by Cambridge University Press: 24 September 2012
Extract
According to tradition Rome was founded by Romulus in 753 B.C. and was ruled by seven kings until the expulsion of Tarquin the Proud in 509. Later writers, particularly Dionysius of Halicarnassus and Plutarch, attribute a considerable volume of legislation to these kings, especially to Romulus, Numa Pompilius and Servius Tullius.
The story of this legislation is doubted by modern scholars in two ways. First it is maintained that at such an early time law would not be created by legislation. Secondly it is claimed that law such as is described for the period could not then have existed, but is either an invention of the history writers or is the law of a later period which has been pushed back in time. The doubts are so profound that it has been said we know as good as nothing about law before the decemviri.
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- Copyright ©Alan Watson 1972. Exclusive Licence to Publish: The Society for the Promotion of Roman Studies
References
1 The precision of the dating need not concern us.
2 Cf. e.g. Wenger, , Die Quellen des römischen Rechts (1953), 353 ff.Google Scholar; Gioffredi, , Diritto e processo nelle antiche forme giuridiche romane (1955), 33 f.Google Scholar; Guarino, , L'ordinamento giuridico romano, 3rd ed. (1959), 82 ff.Google Scholar; Gaudemet, , Institutions de l'Antiquité, (1967), 381 f.Google Scholar; Kaser, , Das römische Privatrecht i, 2nd ed., (1971), 30Google Scholar; and the authors cited.
3 It is at times conceded that some of the provisions (especially those of sacral law) may go back to the regal period.
4 Wieacker, , ‘Die XII Tafeln in ihrem Jahrhundert’, Entretiens sur l'Antiquité classique XIII, Les Origines de la république romaine (Fondation Hardt, 1967), 293 ff. at p. 300.Google Scholar
5 Dionysius of Halicarnassus 2, 9, 1–2.
6 The History of English Law i, 2nd ed. (reprinted 1968), 349 f.
7 Glanvill's book seems to have been completed between November, 1187 and 6th July, 1189.
8 History cit. i, 303.
9 Cf. Pollock and Maitland, History ii, 503 f.
10 The rules of English law which interest us derive from the relationship resulting from land tenure. But they are not rules which seem to be immediately consequent upon land-holding, and similar rules can readily be envisaged for a lord-dependant relationship which was not based on land-holding.
11 For different and convincing arguments against the source being such a Tendenzschrift, see Balsdon, , ‘Dionysius on Romulus: a Political Pamphlet?’ JRS lxi (1971), 18 ff.Google Scholar
12 2, 9, 2–3.
13 VIII, 21.
14 ‘quam clientem non fallere’, The negative formulation, which seems rather strange, is used so that Cato can speak in terms of defrauding a client, a direct reference to the provision of the XII Tables.
15 Aulus Gellius, NA 5, 13, 4; cf. Watson, , The Law of Persons in the Later Roman Republic (1967), 104.Google Scholar
16 Aulus Gellius, NA 5, 13, 5; cf. Watson, Persons 104 f.
17 e.g. Plautus, Cos. 563 ff.; Terence, Eun, 335 ff.
18 Cf. above all, Wieacker, art. cit. (n. 4).
19 Dionysius of Halicarnassus 2, 15, 2.
20 Dionysius of Halicarnassus 2, 25, 1.
21 Dionysius of Halicarnassus 2, 25, 6.
22 Dionysius of Halicarnassus 2, 26, 4–6; 2, 27, 1–2.
23 Abortion?
24 Attempted adultery? Illicit drinking or tampering with the food store? The exact function of this provision is not clear but need not detain us. Locks with keys were widely diffused over the eastern Mediterranean in the period contemporary with regal Rome, and among people in close contact with Italy, e.g. Greeks and Phoenicians. The so-called balanos lock was known in Egypt as early as the time of Rameses II (1292–1225): cf. Diels, , Antike Technik 2nd ed. (1920), 52.Google Scholar In Cyprus, tombs of about 700 B.C. have false doors with imitation locks, all in stone.
25 Plutarch, Romulus 22, 3–4.
26 Dionysius of Halicarnassus 2, 27, 4.
27 Festus, s.v. plorare.
28 See Tab. IV, 1–2.
29 Cf. Watson, Persons 48 ff. and the texts cited.
30 Aulus Gellius, NA 10, 23, 4–5.
31 Dionysius of Halicarnassus 2, 74, 2.
32 Plutarch, Numa 10, 3.
33 Plutarch, Numa 12, 2.
34 D. II, 8, 2 (Marcellus 28 dig.).
35 Dionysius of Halicarnassus 3, 22, 10.
36 Dionysius of Halicarnassus 4, 13, 1. The number seems highly unlikely, and we have no further information on these laws.
37 Dionysius of Halicarnassus 4, 22.
38 Thus the obligation to cut out the fetus from the dead pregnant woman may have involved fas rather than ius: cf. Fraenkel, , Hermes lx (1925), 426.Google Scholar The information on the XII Tables' provision on accidental killing suggests that the ram was a substitute for the killer (Cicero, top. 17, 64; pro Tullio 21, 51; de orat. 3, 39, 158), and perhaps originally he was religiously killed.
39 2, 24, 1; cf. 2, 27, 3.
40 D. I, 2, 2, 2 (sing, enchirid.).
41 3, 36, 4. This is reported also by Livy, I, 32, 2. Cicero relates that sacral laws of Numa were still extant: de re pub. 2, 14, 26; 5, 2, 3.
42 3, 36. 4.
43 If we can assume that the early pontifex maximus is the same person as the first rex sacrorum of the Republic: 5, 1, 4.
44 D. I, 2, 2, 2, cf. 36.
45 Sat. 3, 11, 5: ‘Ego [Praetextatus] autem quod mihi magistra lectione compertum est publicabo. In Papiriano enim iure evidenter relatum est arae vicem praestare posse mensam dicatam.’
46 D. 50, 16, 144 (Paul IO ad legem Iuliam et Papiam)… ‘Granius Flaccus in libro de iure Papiriano scribit….’
47 At least a Granius Flaccus wrote a book de indigitamentis which was dedicated to Caesar: Censorinus, de die natali 3, 2. Pace e.g. Steinwenter, RE x, 1285, the identification of this Granius Flaccus with that mentioned in D. 50, 16, 144 does not rest solely upon the name being the same. There is also the similarity of interest. An antiquarian who published the laws of the kings which were above all sacred laws is also likely to have been interested in indigitamenta, that is, the list of Roman gods and their titles, and the proper mode of addressing each god.
48 Argued from Cicero, ad fam. 9, 21 which was written in that month to Papirius Paetus. Cicero assures the recipient that there have been Papirii who were not plebeians and he discusses those known to him, and our Papirius is not mentioned: cf. e.g. Steinwenter, loc. cit.: Schulz, , Roman Legal Science (1946), 89, n. 4.Google Scholar Contra, Paoli, , ‘Le ius Papirianum et la loi Papiria’, RHD, xxiv–xxv (1946–1947), 157 ff.Google Scholar; but see infra, n. 53.
48 Legal Science 89.
50 e.g. the tribune of the plebs who proposed the lex Falcidia is named as C. Falcidius in Jerome's continuation of Eusebius, Chron. II, 139 (in Schöne's edition), Publius Falcidius in Dio 48, 33, 5. The C. Octavius of Cicero, ad Quintum fratrem I, 1, 21, is probably Cn. Octavius, consul of 76, but may even be L. Octavius, consul of 75.
51 And if we identify this Papirius with the Manius Papirius of Dionysius 5, 1, 4, he was the first rex sacrorum on the expulsion of the kings.
52 It should be mentioned that Livy 6, 1, 10, relates that in 389 B.C., after the capture and burning of Rome by the Gauls, a decree was passed for the searching out of treaties and laws including the XII Tables and certain leges regiae. Some of these were then published but those concerned with the sacra were kept private by the pontiffs.
53 Despite the contradiction the main tradition of the ius Papirianum is strong enough, I think, to exclude the identification proposed by Paoli, o.c. (n. 48), of the ius Papirianum with the lex Papiria which was the work of the tribune Q. Papirius: Cicero, de domo 127–129. See already against the identification, Paola, Di, ‘Dalla lex Papiria al ius Papirianum’, Studi Solazzi (1948), 631 ff.Google Scholar (Paoli also argues that Cicero does not mention this Papirius in ad fam. 9, 21, because he was a plebeian.) Di Paola thinks that the lex Papiria is to be dated after 287 B.C. (640 ff.) and that the lex was the fulcrum around which in course of time were collected a group of rules, the ius Papirianum, largely attributed to the Roman kings (646 ff.). This view also, I suggest, is too much at variance with the tradition to be acceptable. Moreover, if the arguments in the first part of this article for the general accuracy of the substance of law in the regal period are correct, then the history of the ius Papirianum given by Di Paola can be excluded. Most recently, S. Tondo defends the tradition of the ius Papirianum in ‘Introduzione alle leges regiae’, SDHI xxxii (1971), 1 ff. This article, which is much more concerned with social law than private law, appeared too late for full consideration.
54 Servius in Verg. Aen. 12, 836 concerns the lex Papiria, not the ius Papirianum.
55 Contrary to the dominant opinion, Wenger thinks legislation then not at all impossible: Quellen 353. I am not persuaded by Kaser's view, based above all on the lex curiata de imperio, adrogatio and testamentum comitiis calatis, that a lex publica originally was always based on a particular decision and did not contain a general rule; hence that the early leges regiae cannot be laws: Das altrömische Ius (1949), 64 ff. The idea that in the time of the kings or very early in Rome's history, leges were always casuistic, only becomes plausible if one can first assume that the leges regiae were not leges.
56 D. I, 2, 2, 2.
57 Cf. e.g. Momigliano, , Oxford Classical Dictionary, 2nd ed. (1970), s.v. ComitiaGoogle Scholar; Palmer, , The Archaic Community of the Romans (1970), 189 ff.Google Scholar
58 According to Dionysius of Halicarnassus, by ancient statutes the people sanctioned and repealed laws by curiae, and Servius Tullius transferred this function (and others) to the centuries, i.e. the comitia centuriata: 4, 20, 2–3.
59 We know most about adrogatio since the will calatis comitiis disappeared early. For adrogatio see, e.g., Watson, , Roman Private Law around 200 B.C. (1971), 30 ff.Google Scholar
60 Aulus Gellius, NA 5, 19,9. For the more obscure procedure in the comitia curiata see Cicero, de re pub. 2, 13, 25; 2, 17, 21; 2, 18, 33.
61 e.g. Homer, Iliad I, 17 ff.
62 Tacitus, Germ. II; Hist. 5, 17; Ammianus Marcellinus 16, 12, 13.
63 Caesar, de bell. gall. 7, 21. I should not be taken as suggesting that the archaic Greeks, Germans and Gauls legislated.
64 2, 24, 1; cf. 2, 27, 3. Gaudemet categorically denies the existence of written rules in the regal period, first because writing was then exceptional, and secondly because at the beginning of the Republic the plebeians demanded that the law be put into writing: Institutions 382. But one should not exaggerate the infrequency of writing in early Rome; the Latin inscription on the fibula from Praeneste is to be dated around 600 B.C.: cf. e.g. Ernout, , Recueil de Textes Latins archaïques 2nd ed. (1966), p. 3Google Scholar: and the well-attested presence of Etruscans in Regal Rome in itself means that writing would there be well-known. Moreover the famous Cippus Romanus (reprinted in e.g. FIRA i, p. 30) may well date from the regal period. In general, the demand of the plebeians in the early Republic was that the law be made known to them, which does not necessarily imply that laws in writing did not exist in the hands of the pontiffs. The demand of the tribune, C. Terentilius Harsa, in 462 for law to be put into writing refers specifically to the leges de imperio consulari: Livy 3, 9, 5. According to Dionysius, at that time legal decisions generally conformed to the character of the consuls, but a very few of them were kept in sacred books and had the force of laws: 10, 1, 4.
65 If the main propositions of this article, and especially of the first part, were found to be acceptable, it would be possible to take a further look at the nature of early Roman society.
I am grateful for help in various ways in the preparation of this article to Mr. Francis Cairns, Professor Reuven Yaron, Dr. Anthony Snodgrass, Mr. Robin Seager and Dr. Bernard Jackson.
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