CH1. FROM MONARCHY TO EARLY REPUBLIC: GENERAL OUTLINE

• Very little factual information exists about the earliest period of Roman history.
• The oldest surviving historical studies are from the first century AD, authored by Livy, Plutarch, and Dionysius of Halicarnassus.
• These authors relied on works of older historians from the third to first centuries BC, known as the annalists, who described Rome’s history year by year.
• Information from the annalists about early Roman history is unreliable.
• Most written documents from before 387 BC were lost when Rome was conquered and set on fire by the Celts.
• To compensate for lost source material, the annalists used legends, often elaborating with imagination and sometimes altering the chronology.
• Knowledge about the founding and early history of Rome must be cross-checked with archaeology and linguistics.
• Early Roman law is also based on later sources, including literary sources and juridical works like the Enchiridion of Pomponius and the Institutes of Gaius.
• These sources, from the second century AD, are viewed with skepticism by legal historians, though some Romanistsnow regard them as useful despite doubts about their reliability.

• Around 1000 BC, various tribes from the Danube basin began settling in the Italian peninsula.
• The Latins and Sabines, Indo-European tribes, settled in Latium on the left bank of the Tiber, living in small settlements and engaging in agriculture and cattle-rearing.
• In the seventh century BC, hill-settlements formed an alliance, gaining a powerful position in Latium and controlling trade across the Tiber with the Etruscans on the right bank.
• The Etruscans ultimately founded Rome.
• Earlier assumptions suggested the Etruscans came from Asia Minor around 900–800 BC, but recent views place their settlement in Italy much earlier.
• The Etruscans combined eastern, continental, and indigenous elements, with their language being non-Indo-European.
• The Etruscans adopted the Greek alphabet, and today, around 10,000 inscriptions provide insights into their culture.
• Unlike the Latins and Sabines, the Etruscans lived in city-states, with trade and politics centered there.
• Etruscan city-states were initially ruled by a king, later by magistrates, and their private law differed significantly from Roman private law.
• The Etruscans were skilled in architecture, mining, and drainage systems; they also engaged in trade and developed industries producing ceramics, materials, and ornaments.
• Known as pirates, the Etruscans extended their power southward to Latium and Campania in the seventh century BC.
• The legend of Romulus dates Rome’s founding to 753 BC, but archaeological evidence suggests the Etruscans founded Rome in the seventh century BC.
• The Etruscans built temples, reservoirs, city walls, and organized Rome’s political and military systems.
• The last Etruscan king was driven out in 509 BC, marking the beginning of the Roman Republic, governed by a senate and magistrates.
• In 493 BC, Rome joined the Latin alliance as an equal partner.
• By the fifth century BC, Rome began to extend its territory, starting northward, and in the war against the Etruscans (406–396 BC), it gained part of Tuscany.
• In 387 BC, Celtic tribes captured and burned Rome, though the Capitol survived; the Celts eventually retreated.
• Throughout the fourth and early third centuries BC, Rome fought battles against the Samnites, the Latin alliance, the Etruscans, the Celts, and Greek colonies.
• By the end of these wars, Rome had subjugated central and southern Italy, though these tribes were allowed local autonomy under Rome’s dominance.

• Roman society was divided into familia and gens.
• A familia included all individuals under the power of a pater familias, based on parentage, marriage, or adoption.
• The pater familias had unlimited power, but this was constrained by religious norms and strong social control.
• The power of a pater familias was not dependent on age; it lasted until death or formal emancipation.
• Familiae with a common progenitor formed a gens, sharing a gens-name and holding meetings with binding resolutions and a common cult.
• Patricians and plebeians characterized the early Roman social structure, with uncertain origins of this division.
• Patricians were the nobility, owning land, cattle, and slaves, and had rights to hold magistracies and priesthoods.
• Plebeians were primarily artisans and small farmers, had less influence, and were excluded from public office; intermarriage between patricians and plebeians was initially forbidden.
• By 471 BC, plebeians gained the right to hold their own assemblies and elect tribunes; these assemblies’ decisions applied only to plebeians.
• The XII Tables (449 BC) recorded laws, enabling plebeians to better protect themselves from patrician abuses.
• The lex Canuleia removed the ban on intermarriage between patricians and plebeians.
• The leges Liciniae Sextiae (367 BC) allowed plebeians to serve in top magistracies, including as consuls.
• The lex Hortensia (286 BC) made plebiscites binding on all Roman citizens, ending the political distinction between patricians and plebeians, leaving only a distinction between rich and poor citizens.
• Rome followed the personality principle, where individuals adhered to the law of their town.
• Conquered tribes retained their laws but could use Roman law; this led to the development of clientela.
• Clientes were initially foreigners or low-status Roman citizens seeking protection from influential patrons.
• Clientes had to show respect, loyalty, and support their patron’s political ambitions; in return, patrons provided land, legal advice, or court representation.
• The clientela system continued through Roman history but diminished in importance during the empire.

• Initially, Rome occupied a small area of 700–800 km² around 500 BC.
• Agriculture and cattle-rearing were the primary livelihoods.
• The Romans’ understanding of private ownership is unclear; ownership may have initially been limited to movableslike cattle and tools, with immovables becoming possible later.
• Rome’s favorable location on the Tiber and proximity to the via Salaria facilitated its development as a trading center.
• Until the late fourth century BC, Rome used bronze pieces for transactions, with prices based on the weight of bronze.
• A libripens weighed the bronze on a libra (scale).
• After the introduction of coinage, weighing bronze continued as a formality for legal acts like emancipation, mancipatory wills, and property transfers (acts per aes et libram).
• Around the beginning of the fifth century BC, a written alphabet and writing were introduced, allowing for the recording of customs, deeds, and wills.

• Up to 367 BC, Rome had two forms of government: a monarchy until 509 BC and a republic thereafter.
• The monarchy comprised a king, a senate, and an assembly.
• Accurate details of the monarchy are hard to establish due to reliance on legends and later descriptions.
• The first kings, Romulus, Numa Pompilius, Tullius Hostilius, and Ancus Marcius, were thought to be of Latin-Sabine origin.
• Historians believed the senate and popular assembly were involved in choosing the king.
• The king’s roles included religious duties, military leadership, and dispute resolution, working closely with heads of leading families.
• Doubts exist about the Latin-Sabine origin of the kings; Rome was founded by Etruscans in the seventh century BC.
• The Etruscan kings, Tarquinius Priscus, Servius Tullius, and Tarquinius Superbus, contributed to Rome’s economic growth and infrastructure, including the Cloaca Maxima.
• Servius Tullius and Tarquinius Superbus expanded their power with the imperium, leading to their eventual overthrow and the establishment of the republic in 509 BC.
• The senate (senatus) initially had 100 patrician members appointed by the king, mainly to advise and support him.
• The senate could wield supreme power during an interregnum and its influence varied with the king’s power.
• The number of senators increased to 300 as Rome transitioned to a republic.
• The comitia curiata was the primary assembly, originally based on kinship and later also on residence, divided into thirty curiae.
• Voting in the comitia curiata was in two stages: curiae votes followed by assembly votes.
• The comitia curiata’s functions included religious duties and the inauguration of the king; its role in legislative matters is less clear.
• With the republic’s formation, the comitia curiata continued but took on different roles.

• Difficult to establish a reliable picture of early republic’s political structure due to lack of sources and reliance on customs and conventions.
• Theodor Mommsen believed the king’s power transferred to two magistrates, while others argue power was likely held by leading citizens in the senate.
• Different magistrates existed before 367 BC, including praetor, consul, decemviri legibus scribundis, and tribuni militum.
• Leges Liciniae Sextiae of 367 BC defined the magistrature and established long-term governance rules.
• The senate consisted of 300 citizens, appointed for life, who wore a tunic with a purple hem as a symbol of their rank.
• The senate ratified assembly decisions, oversaw religious affairs, the treasury, and was responsible for foreign policy.
• Censors were first appointed in 443 BC to conduct the census and supervise citizens’ morals; they became important for forming the senate.
• Quaestors were responsible for supervising the treasury, elected by the comitia tributa.
• Tribuni plebis (plebeian tribunes) emerged during the struggle between the plebeians and patricians to protect plebeians from abuse of power.
• Tribunes could convene plebeian assemblies, veto magistrates, and became inviolable by 449 BC.
• Comitia curiata was replaced by comitia centuriata and comitia tributa as forms of assembly during the transition from monarchy to republic.
• Comitia centuriata was initially a military assembly but became political, with voting weighted towards the wealthiest classes.
• Comitia centuriata elected supreme magistrates, voted on laws, and judged criminal cases by the mid-fifth century BC.
• Comitia tributa was based on residency, divided into urban and rural tribes, with the wealthy holding more sway.
• Concilium plebis was the plebeian assembly, introduced in 471 BC, to elect leaders and discuss plebeian issues.
• Plebiscites were decisions made by the concilium plebis, initially only applying to plebeians, though differences with the comitia tributa blurred over time.

• Roman law during the monarchy and early republic is termed archaic law, as it was in an early developmental stage.
• Social life was regulated by mores maiorum, norms inherited from ancestors, without clear distinction between human and divine origin.
• Roman religion focused on maintaining good relations with supernatural powers through detailed prayer meetings and sacrificial rites.
• By the end of the monarchy, Romans began to distinguish between human law (ius) and divine law (fas), though the two continued to interact for the next 150 years.
• Fas governed behavior that did not violate divine rules, while nefas referred to behavior that angered the gods, risking community-wide disasters.
• Ius regulated behavior that did not harm other citizens; iniuria referred to behavior that violated community norms.
• Some behaviors originally considered nefas (e.g. murder) later became iniuria, while certain juridical transactions gained a divine aspect (e.g. sponsio).
• Ius and fas were linked by the role of the king as the leader in both human and divine matters, and by the role of pontifices as law guardians.
• During the early republic, the college of pontifices (about five patricians) oversaw sacral law and secular law, regulating the calendar and law-making.
• Archaic law was highly formalistic, requiring transactions to follow specific rituals and gestures to ensure validity.
• Stipulatio and mancipatio, formal legal transactions developed during this time, continued to be used symbolically in later periods.
• Archaic Roman law was also called ius Quiritium, applying only to Roman citizens; it was later referred to as ius civile.
• Ius civile encompassed law formed by custom, legislation, administration of justice, and interpretation developed by Roman citizens.

• Pomponius and other authors claim that under the monarchy, the senate and people’s assembly voted on laws proposed by the king, known as leges regiae.
• Sextus Papirius, a pontifex maximus, is said to have collected and written down these laws at the end of the monarchy.
• However, these accounts may be unreliable, as the authors likely assumed the monarchy’s law-making process mirrored their own time.
• The remaining fragments of the leges regiae suggest they were more like pronouncements by the king, establishing norms in the religious/juridical field.
• The Law of the XII Tables is the first significant legislation of the early republic, dating to the mid-5th century BC.
• Tradition says the plebeians fought for eight years to have the law written down to prevent biased application by patrician magistrates.
• In 451 BC, ten citizens (decemviri) were chosen to draft the law, with imperium (supreme political power) for the duration of their task.
• In 450 BC, the decemviri produced a draft on ten tablets but it was deemed unsatisfactory; two more tablets were added in 449 BC.
• Historians today question many aspects of this account, including the existence of a second decemvirate and a delegation to Greece.
• It is generally agreed that in 451 BC, ten patricians were chosen to codify customary law, and the decemvirate temporarily held leadership in Rome.
• The Greek influence on the XII Tables is still debated; any similarities to Solon’s laws are minor.
• The XII Tables likely were not approved by the comitia curiata; the law was probably formulated by the decemvirate without a people’s vote.
• The purpose of the XII Tables was not full equality between patricians and plebeians; the first step towards this was the lifting of the marriage ban between the two orders in 445 BC.
• Plebeians could not be elected as consuls until 367 BC.
• The original text of the XII Tables has not survived; it was likely destroyed when Rome was set on fire by the Celts in 387 BC.
• Knowledge of the XII Tables is based on juridical and literary sources from the late republic, but these sources did not reproduce the law in full.
• The surviving fragments show that the XII Tables covered civil law, civil procedure, constitutional law, and sacral law.
• The XII Tables likely restated existing customary law while adapting to social changes; for example, the pater familias gained the right to dispose of property by will.
• In criminal law, the principle of talio (retaliation) was abolished for some crimes and replaced by fixed penalties.
• The XII Tables remained relevant for a long time, with Gaius writing a commentary on them in the 2nd century AD, and fragments included in Justinian’s Digest in the 6th century.

• Roman law had three forms of civil procedure: legis actiones, formulary system, and cognitio extraordinaria.
• Legis actiones is the oldest form, used during the republic, with two phases: in iure (before a pontiff or praetor) and apud iudicem (where evidence was presented to a judge).
• In the first phase, the pontiff or praetor determined if the case could proceed and in what manner.
• The second phase involved a iudex (citizen judge) who gave the final verdict.
• The origin of the two-phase system is unclear but may have involved supernatural methods of evidence collection in early Rome.
• State involvement in lawsuits was minimal during the republic.
• The formulary system emerged during the republic and gradually replaced legis actiones, which were abolished around 17 BC, though some exceptions remained.
• Formal rules applied to the first phase of legis actiones; both parties had to be present, and the plaintiff could compel the defendant by force to attend.
• The plaintiff initiated the case by pronouncing a set form of words, and the defendant had to reply using prescribed phrases.
• There were five models of legis actiones, with three for starting lawsuits and two for enforcing verdicts.
• Formalism was strict; any deviation in the wording could result in losing the case (e.g., using “vines” instead of “trees”).
• The second phase had no formal rules; both parties presented evidence, and the iudex decided the verdict based on the weight of evidence.
• Prominent citizens could sometimes plead on behalf of a party, which became common later in the republic.
• Evidence rules were general, with the burden of proof on the plaintiff, and the iudex could consult a consilium(advisory council).
• The verdict was given orally, and there was no appeal since both parties had agreed to the iudex‘s decision.
• If the defendant did not comply with the verdict, the plaintiff had to enforce it, with assistance from the pontiff or magistrate.
• The plaintiff could restrict the defendant’s freedom or use legis actiones to handcuff the defendant until judgment was fulfilled.
• If the defendant did not comply within 60 days, the plaintiff could kill or sell him as a slave abroad.
• In the 4th century BC, killing or selling the defendant was forbidden, and the situation for condemned individuals improved.

• For a century after the Law of the XII Tables, new law developed mainly through the interpretation of this law, later laws, and the legis actiones.
• The pontiffs were responsible for interpreting the law due to their control over the first phase of the legis actio procedure.
• Pontiffs had significant influence; they could widen or narrow the scope of a legis actio through interpretation.
• They also introduced new institutions under the guise of interpretation, such as using the in iure cessio for transferring ownership instead of just initiating lawsuits.
• An example of lawmaking through pontifical interpretation is the emancipatio of sons. The XII Tables didn’t specify how to free a son from patria potestas, but the pontiffs used an existing provision creatively.
• A father could mancipate his son three times to a friend, after which the son would become sui iuris (independent) upon manumission, thus effectively freeing him from patria potestas.
• This practice allowed a father to retain patron’s rights over his son and rights of succession, potentially preventing the fragmentation of his estate.
• The interpretation of provisions in the XII Tables often led to the creation of new legal institutions and practices.
• Roman legal science evolved from these interpretations made by the pontiffs.