A. THE KINGDOM, REX AND LEGES REGIAE

Spartan state, for the kings of the Spartans did not have absolute power to do what they wished, but the senate had control over public affairs. These three powers he conferred upon the people: to elect magistrates, to approve laws, and to determine whether war should be declared, whenever the king permitted. Yet it did not have the power to deal with these matters unless the same were approved of by the Senate. The people voted not all simultaneously, but con· voked by curiae; a vote approved by the greater number of the curiae was re­ferred to the Senate....

Cicero, De re publioa 5.2.3

Nothing so pertained to the king as the determination of what is fair, wherein was the interpretation of the law, wherefore private individuals were wont to seek Justice from the kings; and for these reasons plots of land, cultivated, wooded and for pasture, extensive and fertile, were set apart, which were to be the king’s and were to be cultivated without royal charge and labor, so that no care as to private business should distract them (the kings) from the affairs of the people. Nor, indeed, was any private person umpire or arbiter of a dispute, but all matters were settled by royal Judgments. And, indeed, it seems to me that our Numa especially observed this ancient custom of the kings of Greece. For the others, although they also performed this function, nevertheless for the most part waged wars and so paid special attention to the laws of war; but the long peace of Numa was the source of la w and religion in this city....

Dionysius haucarnassensts, Antiquitates Romanae IV.25

He (Servius Tullius) separated public trials from private and himself under­took the examination of crimes relating to public matters, but he named private persons to be judges in private cases for which he provided norms and rules, which he himself had written as laws.

Among the mass of material concerned with the institutions of archaic times, the role of the rex may be singled out for further discussion. Of course, his status and his powers are largely determined by the theory of the king­dom which is adopted. So, for example, Coli attributed all powers to the king:' he is in command of military forces in time of war and absolute sover­eign in time of peace; he decrees laws without any help from council or assembly; he devises the means by which controversies are settled, and in order to obviate the use of force he imposes these means upon his subjects.^{[312] [313] Even with a more moderate view, the rex is acknowledged as combining in his person the highest spiritual and temporal powers, subject to controls exercised by other bodies; he is supreme commander, high priest, and apparently also chief judge.’ If emphasis be given to royal authority with the incursion of the Etruscan rulers, then it is possible to speak of royal powers in part ancient and original, the expression of gentilician unity, and in part novel and supplementary, with a king as the head and supreme arbiter of the city-state.[314] [315]}

There is as much speculation regarding the manner in which the rex was chosen as there is with respect to his powers, since the details must be reconstructed from later reminiscences and reflections of the Republican era. The post was for life, and the successor is traditionally said to have been selected by means of the institution known as interregnum.^{[316] [317] [318] [319] [320] One or more temporary rulers (interreges) were named, and eventually a new rex was selected, or rather inaugurated, that is, by divinatory means deemed acceptable to the gods? The participation of the popular assembly in the affirmation of the rex is later reflected in the well-known lex curiata de imperio, 'curiate formula respecting command-power’?}

With this background, we may turn to two specific activities of special interest in the context of this book, namely, the judicial and legislative acti­vities of the rex.

The legislative power of the king would be taken for granted by Coli, but many others would see the pronouncements of the rex at most as charis­matic expressions of the will of the gods or authoritative sacral provisions issued by the religious chief.¹¹ Frezza categorically denied that legislative power existed in the period of the Kingdom; there existed no body which could alter the law by hat, neither the king as supreme magistrate nor the public assembly as a legislative organ.¹ ’ Certainly, the attribution of ‘curiate* statutes, meaning thereby laws enacted by the assembly, is out of the ques­tion. The content of the great majority of the so-called ‘laws’ preclude any such connection. Guarino has suggested that the appellation derives from the fact that the decrees were ’communicated’ to the curiate assembly, which the early annalists took to mean ‘voted upon’.’⁴

2. Leges regiae (Royal Statutes)

§ 47 Plutarch, Romulus XXII

He (Romulus) also enacted certain laws, among them a severe one which for­bids a wife to leave her husband, but permits a husband to repudiate his wife for poisoning the children or counterfeiting his keys or committing adultery. If however, one should send his wife away for any other reason, half of his prop­erty shall belong to his wife, half be sacred to Demeter, One who puts away his wife must sacrifice to the gods of the lower world.

Marcellus, Libra XXV11I digestorum (D. 11.8.2)

A lex regia (royal statute of Numa Pompilius) forbade, on the death of a women with child, her burial until the unborn infant be removed from her. Anyone who acts otherwise is held to have taken away the prospect of the living being along with the (deceased) pregnant woman.

Festus, De verborum significatu ‘parrici ’

... For a parricide is said to be not only he who shall have killed a parent, but whatever man not sentenced. The law of king Numa Pompilius drafted in these words so read: 'If anyone with malice aforethought slays a free man, he shall be a parricide.'

The term parricide has recently been widely discussed.¹

Livius, Ab urbe condita 1.26.5-6

The king (Tullius Hostilius), having called a meeting of the people, said: Tn accordance with the law I appoint two commissioners to pass judgment on Horatius for treason’. (6) The law was of dreadful formulation: Let theduovirs pass judgment for treason; if he appeal from the duovirs, let the appeal be heard. If they are upheld (on appeal), cover his head, hang him by a rope from the gallows, let him be scourged whether (this be) inside or outside the city limits'.

Dionysius halicarnassensis, Antiquitates Romanae IV. 13 He (Servius Tullius) proposed laws both on contracts as well as on delicts through the curtate (assembly). Moreover, the number of them was about fifty.

As long ago as Dirksen, doubt was raised as to the authenticity of the norms described as leges regiae (royal statutes).¹ For many scholars some of these laws are nothing more than legendary anticipations of legislative enactments of the Republic, while others are customary rules of which the kings might be thought to be custodians, interpreters or even formulators? However, there is some reason to believe that many of these royal ‘laws’ are authentic sacerdotal rules of the archaic period.^{[323] [324] [325] [326] [327] [328] [329] That they were not true statutes is seen by the fact that if, on the one hand, they are considered general norms they were much too refined for a primitive people, and if, on the other, they are sacral provisions they were not confirmed by the popular assembly?}

References to the royal statutes have come down to us in a host of liter­ary allusions. These have been gathered in various collections of primary sources, and a few typical examples are offered here? Summaries of the various types have been given by Wenger and briefly by Siber? The norms seem largely to be customary in nature and frequently reflect ritual prac­tices and the like. But then there are exceptional provisions, such as the fifty laws on contract and torts which Servius Tullius is said to have en­acted?

3. /ms Papirianum (Papirian Law)

§ 48 Pomponius, Libro singulari enchiridii (D. 1.2.2.2, 36, 42)

... Accordingly, he himself (Romulus) proposed to the people certain curiate statutes, and so did succeeding kings. All these are found collected in the book of [ Sextus ] Papirius, who was among the leading men in the time of Superbus, the son of Demaratus of Corinth. This book, as we have said, is called ius civile Papirianum, not that Papirius added anything of his own therein, but because he made a compilation of statutes which had been unsystematically enacted.... (36) A (learned) jurist offirst rank was [Publius] Papirius, who made a compilation of the leges regiae.... (42) The pupils of Mucius were many, but those of the greatest authority were Aquilius Gallus. Balbus Lucilius, Sextus Papirius, [Gaius] < Titus > luventius:...

Lend thinks that [Sextus] may be a gloss, in comparing D. 1.2.2.36 and 42, while Bremer, on the other hand, would retain Sextus and cut out Publius] as an interpolation.¹ It rather appears that both [Sextus] and Publius] are pre-Justinian glosses; so Baviera.²

Dionysius Halicarnassensis, Antiquitates Romanae III.36.4

(Ancus Marcius) inscribed upon tablets the commentarii (discussions) upon sac­red things gathered together by the pontiffs, which (Numa) Pompilius had en­acted; in ancient times, however, these were destroyed.... After the kings had been expelled, indeed, they were again written down publicly by Gaius Papirius, pontifex maximus.

Servius, Commentarii in Vergili Aeneidem XII.836

He (Virgil) says, 7 will look upon custom and sacred rites' (mos ritusque sac­rorum); he used this title of the lex Papiria, which he knew, published about sacred rites.

Paulus, Libro X ad legem luliam et Papiam (D. 50.16.144)

... Granius Flaccus, in his book ‘On the Papirian law’ (de iure Papiriano) writes, now one is commonly called a concubine (paelex) when she has sexual relations with him to whom she is (second) wife; [Mose wAom] < that one > who

8. Discussion of these by Kruger, Geschichte 8; Kipp, Geschichte 27.

1. Lend, PtiJingmtaa II45 nJ; Bremer, Iwispiudentiae I 132.

2, Baviera, ScrrM 46.

is in the home in the position of a wife without nuptials _f whom the Greeks call paliakes’.

According to Festus,.v.v. pad ices, a law of Numa Pompilius dealt with the concubine (paelex).

Macrobius, Saturnalia III. 11.5

For in the Papirian law (in Papiriano iute} it is clearly stated that a table so designated can take the place of an altar.

According to Roman tradition Ancus Marcius, the fourth king, published the sacral provisions which Numa Pompilius, the second king, had compiled from the records; the tablets upon which they were written gradually be­came effaced and the rules were republished by the first pontifex maximus (chief pontiff), a certain Gaius Papirius, during the first years of the republic. Again destroyed at the lime of the Gallic invasion, a new compilation was made, more restricted in scope. The earliest reference to the so-called ius civile Papirianum is in a work of Granius Flaccus, a writer of the time of Caesar or Augustus. Neither Varrò nor Cicero mention the work. How much credence can be given the traditional story? First, though records of the kings (commentarii regum) may have existed, it is more likely that the records of the pontiffs were the source of such a collection.’ But these date after the Gallic invasion, circa 387 B.C? Further, various praenomina are assigned to the Papirius who is alleged to have made the compilation? Finally, there is reason to doubt the validity of the title; certainly iusaw/e Papirianum is impossible for this type of work?

Hence it has been suggested that no collection of leges regiae existed in early times, and that the idea of a ius Papirianum dates back to the work of Granius Flaccus, at the beginning of the Principato.’ Support for this view was offered by Hirschfeld when he pointed out that Cicero would not have failed to mention the Papirius who compiled the leges regiae when he itemized the deeds of the gens Papiria in one of his letters, Ep. ad fam. IX. 2!.· Thus, many have taken the ius Papirianum to be a late republican/ early imperial forgery to glorify the reputation of this noble family.* Re-

3. Karlowa, Rechtsgeschichte I 107—08. Generally on the pontiffs and their role in the divulgeace of the law, sec infra, § 56

4. Baviera, Diruto romano 126-27; idre, RecMswissenschaft 64—65; Bruns-Lenel. Geschidite 318-19.

5. Steinwenter, j.K lus Papirianum, RE 10(1919) 1285.

6. Kriiger, Gesdùdtte 5 n.22; Berger, Festschrift Kisch 125 ft

7. Mommsen, Staatsrechl 1141-44; Girard, Manuel 17.

8. Hirschfeld, Schrtften 239-45. See Kipp, Geschichte 26 n.5; Siber, Rom. Recht Ill.

9. Carcopioo, ‘Les pretendues lois royales’, Mèi. darch, et dhis. de FEcole franc, de Rome 54 (1937) 360 IT.; Kaser, AkrSm. ius 65 n.12, with further refi, cently, Paoli has attempted to identify the ius Papirianum with a lex Papina which he dates in the 4th century B.C. or earlier.^{[330] [331]} Di Paola also pointed out the relation between the two, but held that they were not the same." The lex Papiria, which the latter author dates in the second half of the 3rd century, gave authorization to proceed with dedications, thus a matter of public and not of sacral law. In the course of time the statute was broadly interpreted to comprise a complex of public and sacral norms, and even­tually came to be known as the ius Papirianum. Then was created the legend of the pontifex maximus Papirius as the author of the collection of leges regiae.

In answer to Hirschfeld, in order to explain Cicero’s failure to mention the Papirius of the compilation of the leges regiae, Pais urged that in this letter Cicero was not concerned with the members of the Papirian gens who occupied priestly office, and the compiler was one of this class.^[332] Wen­ger and Kreller were favorable to this position, suggesting respectively the second half of the 3rd century, and the 2nd century, as the date of the col­lection.^[333] Schulz, indeed, determined that Granius Flaccus could not have invented the laws because the pontifical college, of which he was not a member, would have denounced such an attempt; rather, he made use of pontifical records.^{[334] [335] Quite recently, Bretone advanced the suggestion that, since the leges regiae were actually within the control of the pontiffs, the collection was made by an outsider at a time when sacral law was not any longer subject to secrecy, thus in the 2nd/ 1st centuries B.C.'5 From Dirksen to Bretone we count almost a century and a half; may we start anew to ponder on the leges regiae and the ius Papirianum!}