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 p991  Rex

The Roman section only (pp991‑994)
of an unsigned article on pp990‑994 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

REX, (βασιλεύς, ἄναξ), king.

[. . .]

2. Roman. Rome was originally governed by kings. All the ancient writers agree in representing the king as elected by the people for life, and as voluntarily entrusted by them with the supreme power in the state. No reference is made to the hereditary principle in the election of the first four kings; and it is not until the fifth king Tarquinius Priscus obtained the sovereignty, that anything is said about the children of the deceased king. Consequently the ancient writers state that the king was chosen on account of his virtues and not his descent (Cic. de Rep. II.12; Appian, B. C. I.98). It is true that in the case of Romulus the genuine legend makes no mention of his election to the royalty; and one of the acutest modern writers on the history of the Roman constitution has availed himself of this circumstance to support his theory, that the Roman king was not elected by the people, but derived his power immediately from the gods, and that this power devolved upon the senate at his death, and was transmitted in all its integrity to the next king by means of the interreges (Rubino, Untersuchungen über Römische Verfassung, p107, &c.). Our limits will not permit us to enter into an examination of this theory. It rests to a great extent upon the assumption that the Patres in the early Roman constitution were the senate; and it falls if it can be proved that the Patres in the earliest times were the same as the whole body of the patricians. We think that W. A. Becker (Handbuch der Römischen Alterthümer) has established beyond all doubt that the latter is the true meaning of the Patres, and that the common view is correct, which represents the king as voluntarily entrusted by the people with the supreme power.

Since the people had conferred the regal power, it returned to them upon the death of the king. As in modern states it is held that the king never dies, in like manner in Rome the vacant place was instantly filled up. But as a new king could not be immediately appointed, an Interrex forthwith stepped into his place. The necessity for an immediate successor to the king arose from the circumstance that he alone had had the power of taking the auspicia on behalf of the state; and as the auspicia devolved upon the people at his death, it was imperative upon them to create a magistrate, to whom they could delegate the auspicia and who would thus possess the power of mediating between the gods and the state. Originally the people consisted only of the patres or patricii; and accordingly, on the death of the king, we read res ad patres redit (Liv. I.32), or, what is nearly the same thing, auspicia ad patres redeunt [Augur, p177]. The interrex was elected by the whole body of the patricians, and he appointed (prodebat) his successor, as it was a rule that the first interrex could not hold the comitia for the election; but it frequently happened that the second interrex appointed a third, the third a fourth, and so on, till the election took place. This was the custom under the republic; and there would have been no reason to suppose that the practice was different during the kingly period, if it had not been for the account of the appointment of interreges after the death of Romulus, according to which the senate was divided into decuries for the purpose of sharing the interregnum between them [Interrex].

The Interrex presided over the comitia curiata, which was assembled for the election of the king. He had previously agreed with the senate upon the person who was to be proposed to the comitia as king; for it is inconceivable that he had the absolute power of selecting whatever person he chose, as Dionysius states in some passages. The person whom the senate had selected was proposed by the interrex to the people in a regular rogatio  p992 which the people could only accept or reject, for they had not the initiative and could not themselves propose any name. If the people voted in favour of the rogation, they were said creare regem, and their acceptance of him was called jussus populi (Dionys. IV.40, 80; Liv. I.22, 32; Cic. de Rep. II.17, 21). But the king did not immediately enter upon his office. Two other acts had still to take place before he was invested with the full regal authority and power. First, his inauguratio had to be performed, as it was necessary to obtain the divine will respecting his appointment by means of the auspices, since he was the high priest of the people. This ceremony was performed by an augur, who conducted the newly-elected king to the arx, or citadel, and there placed him on a stone seat with his face turned to the south, while the people waited below in anxious suspense until the augur announced that the gods had sent the favourable tokens confirming the king in his priestly character (Liv. I.18; Plut. Num. 7). The inauguratio did not confer upon him the auspicia; for these he obtained by his election to the royalty, as the comitia were held auspicato. It simply had reference to his priestly character, as already remarked, and consequently did not take place in the case of the republican magistrates, though the rex sacrorum and other priests were inaugurated. The passage of Dionysius (II.6), which is quoted in the article Inauguratio to prove that the republican magistrates were inaugurated, refers only to their taking the auspices on the morning of the day on which they entered upon their office (comp. Becker, Ibid. vol. II pt. I p314). The second act which had to be performed was the conferring of the imperium upon the king. The curiae had only determined by their previous vote who was to be king, and had not by that act bestowed the necessary power upon him; they had, therefore, to grant him the imperium by a distinct vote. Accordingly the king himself proposed to the curiae a lex curiata de imperio, and the curiae by voting in favour of it gave him the imperium (Cic. de Rep. II.13, 17, 18, 20, 21). The reason of this double vote of the curiae is clear enough. The imperium could only be conferred upon a determinate person. It was necessary, therefore, first to determine who was to be the person who was capable of receiving the imperium; and when it was determined, the imperium was granted to him by a special vote. Livy in his first book makes no mention of the lex curiata de imperio, but he uses the expressions patres auctores fierent, patres auctores facti (Liv. 1.17, 22, 32). That these expressions, however, are equivalent to the lex curiata de imperio in the kingly period is shown by Becker, an abstract of whose explanation is given under Auctor.

It is very difficult to determine the extent of the king's powers, as the ancient writers naturally judged of the kingly period by their republican constitution, and frequently assigned to the king, the senate, and the comitia of the curiae, the respective powers and functions which were only true in reference to the consuls, the senate, and the comitia of their own time. Most modern writers have represented the supreme power as residing in the people, and have regarded the king, to a great extent, as the executive of the senate and the curiae; but this view of the limited nature of the king's powers is strongly attacked, and we may say disproved, by the masterly investigations of Rubino. For whatever exception may be taken to many of his propositions, no one can examine his arguments without feeling convinced that the king possessed the supreme power in the earliest times, and that the senate and the comitia of the curiae were very slight checks upon its exercise. In the first place, the king alone possessed the right of taking the auspices on behalf of the state; and as no public business of any kind could be performed without the approbation of the gods expressed by the auspices, the king stood as mediator between the gods and the people, and in an early stage of society must necessarily have been regarded with religious awe [Augur]. He was thus at the head of the national religion; and the priests, who are in all nations most jealous of their exclusive rights and privileges, acknowledged that they were originally instituted by the king, and learnt from him their religious rites. Thus Romulus is not only said to have established the augurs, but to have been himself the best of all augurs (Cic. de Div. I.2); and the institution of the pontiffs in like manner was not only attributed to Numa Pompilius, but they are said to have been taught by this king the whole doctrine of the public and private sacra, the arrangement of the calendar, the division of days into fasti and nefasti, in one word the jus pontificium (Liv.I.19, 20; Cic. de rep. II.14; Dionys. II.72; Plut. Num. 12).

Secondly, the people surrendered to the king the supreme military and judicial authority by conferring the imperium upon him. It is true that the imperium was granted to the consuls in like manner; but the imperium, though the same nominally, was in reality limited in its exercise, as the consuls at the end of their year of office became private persons again, and might be brought to trial for acts which they had performed during their consul­ship. In addition to which various laws were passed for the protection of the citizens against the arbitrary use of their power, none of which existed in the kingly period. The imperium is usually defined to be the exercise of military authority (imperium, sine quo res militaris administrari, teneri exercitus, bellum geri non potest, Cic. Phil. V.16; comp. Liv. V.52; Cic. de Leg. Agr. II.12); but this definition simply arises from the fact that the writers are thinking of the imperium of the consuls, who were deprived of judicial power in the city of Rome, from the time of the institution of the praetor­ship (Liv. IV.42; Gaius, IV.104). But the praetors also had the imperium conferred upon them by a lex curiata, and it was by possession of the imperium that they were alone qualified to pronounce a judicium legitimum, at all events in criminal cases. It must, therefore, be recollected, that the king was not only the commander in war, but the supreme judge in peace. Seated on his throne in the comitium, he administered justice to all comers, and decided in all cases which were brought before him, civil as well as criminal. The opinion of Puchta (Instit. vol. 1 p140, &c.), that private suits were not decided by the king, but came under the jurisdiction of the pontiffs, rests on no sufficient authority, and is refuted by the tale of the pretended dispute which was brought before Tarquinius Priscus by the murderers of that king (Liv. I.40). If we are to place reliance upon Livy, the king did not administer  p993 justice alone, but was fettered by a consilium, since it is brought forward as a reproach against Tarquinius Superbus, cognitiones capitalium rerum sine consiliis per se solus exercebat (Liv. I.47); but it is not easy to believe in the existence of such a consilium in the times of the early kings, or if it did exist, it must have been a body simply to advise the king, and could not have had the power of controlling him, as he administered justice in virtue of his possessing the imperium. There is moreover no case recorded in which the consilium had any share in the administration of justice. From the decision of the king there seems to have been no appeal (provocatio). This is indeed denied by Niebuhr, who maintains that in all cases affecting the caput of a Roman citizen, an appeal lay from the king to the people in the comitia of the curiae, and who further argues that it was an ancient right of the patricians, and was extended to the plebs by the Lex Valeria, enacted at the establishment of the republic. It is true that the ancient writers refer the institution of the provocatio to the kingly period (Liv. I.26, VIII.33; Cic. pro Mil. 3; Val. Max. VI.3 §6, VIII.1 §1; Festus, s.v. sororum tigillum; Cic. de Rep. II.31), but it by no means follows that the provocatio of that early time was the same as the right secured by the Lex Valeria, which was regarded as the great bulwark of the liberty of a Roman citizen. We have indeed the record of only one case of provocatio under the kings, namely, when the surviving Horatius, who murdered his sister, appealed from the duumviri to the people; and in this case it must be borne in mind that the appeal was not from the sentence of the king, but from the sentence of the duumviri. It appears, even from the narrative of Livy, that the king voluntarily surrendered his right of trying the criminal and passing sentence upon him, in order to avoid the odium of putting to death the hero who had rendered such signal services to the state, and that he appointed duumviri, in order that the people might have the responsibility of pronouncing his acquittal or condemnation (Liv. I.26; comp. Dionys. III.22). In addition to which it is expressly stated that the dictator­ship was a restoration of the kingly power (Zonar. VII.13; comp. Cic. de Rep. II.32); and it is certain that the great distinction between the power of the dictator and that of the consuls consisted in there being no provocatio from the decisions of the former, as there was from the decisions of the latter. Our limits do not allow us to enter further into an examination of this question; but the reader will find the arguments against Niebuhr's views stated at great length in Rubino (Ibid. p430, &c.).

Again, all the magistrates in the kingly period appear to have been appointed by the king and not elected by the curiae. This is expressly stated of the two most important, the Tribunus Celerum, who occupied the second place in the state, and who stood in the same relation to the king as the magister equitum did in later times to the dictator (Lydus, de Mag. I.14), and the Custos or Praefectus urbi, who was nominated by the king to supply his place when he was absent from the city (Tac. Ann. VI.11). We may consequently infer that Quaestores were in like manner nominated by the king, although the ancient authorities differ on the point, Tacitus ascribing their appointment to the king (Tac. Ann. XI.22) and Junius Gracchanus to the people (Dig. 1 tit. 13). Livy expressly says (I.26) that the Duumviri Perduellionis were appointed by the king; and if these were the same officers as the Quaestores during the kingly period, as many writers maintain, there can be no doubt that the latter were nominated by the king.

Further, the king was not dependent upon the people for his support; but a large portion of the ager publicus belonged to him, which was cultivated at the expense of the state on his behalf (Cic. de Rep. V.2). He had also the absolute disposal of the booty taken in war and of the conquered lands (Dionys. II.28, 62; Cic. de Rep. II.9, 14, 18).

It must not, however, be supposed that the authority of the king was absolute. The senate and the assembly of the people must have formed some check upon his power; though, if the views we have been stating are correct, they were far from possessing the extensive privileges which Dionysius (II.14) assigns to them. The senate and the comitia of the curiae were not independent bodies possessing the right of meeting at certain times and discussing questions of state. They could only be called together when the king chose, and further could only determine upon matters which the king submitted to them. The senate was simply the consilium of the king, the members of which were all appointed by him (Liv. I.8; Dionys. II.12; Festus, p246, ed. Müller; Cic. De Rep. II.8), and which only offered their advice to him, which he could follow or reject according to his pleasure. The comitia of the curiae seem to have been rarely assembled, and then probably more to hear the decisions of the king than to ratify his acts; and it is certain that they had no power of discussing any matter that was brought before them. The only public matter in which the king could not dispense with the co-operation of the senate and the curiae was in declarations of war against foreign nations, as appears clearly from the declaration of war against the Latins in the time of Ancus Marcius, as related by Livy (I.32), who preserves the ancient formula. There is no trace of the people having had anything to do with the conclusion of treaties of peace; and Dionysius in this case as in many others has evidently transferred a later custom to the earlier times. The relation in which the senate and the curiae stood to the kings is spoken of more at length under Comitia, p331, and Senatus.

The insignia of the king were the fasces with the axes (secures), which twelve lictors carried before him as often as he appeared in public, the trabea, the sella curulis, and the toga praetexta and picta. The trabea appears to have been the most ancient official dress, and is assigned especially to Romulus: it was of Latin origin, and is therefore represented by the antiquarian Virgil as worn by the Latin kings (Plin. H. N. VIII.48, IX.39; Ov. Fast. II.501; Virg. Aen. VII.187, XI.334). The toga praetexta and picta were borrowed, together with the sella curulis, from the Etruscans, and their introduction is variously ascribed to Tullus Hostilius or Tarquinius Priscus (Cic. de Rep. II.17; Macrob. Sat. I.6; Plin. H. N. IX.39; Dionys. III.62). Dionysius (l.c.) also mentions a diadem and a sceptre as insignia of the kings.

 p994  For further information respecting the Roman kings, see Niebuhr, Hist. of Rome, vol. I p338, &c.; Walter, Geschichte des Römischen Rechts, §17, 2d ed.; and especially Rubino, Untersuchungen über Römische Verfassung, passim; and Becker, Handbuch der Römischen Altherthümer, vol. II pt. I 291, &c.

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