Second 'Collegio di Diritto Romano'. Pavia, 12–30 January 2004. 'The Municipal Laws'

The Cedant (Centro di studi e ricerche sui Diritti antichi), an Institute member of the Istituto universitario di Studi superiori of Pavia, has among its purposes the promotion of the study of ancient laws, and the creation of new research opportunities for young scholars. Since 2003, it has organised yearly three-week long study sessions, the "Collegio di Diritto romano": fifteen scholarships are offered to the young scholars (university teachers and graduate students) who appear to have the most suitable profiles to attend the course.

After a first edition devoted to the study of the Law of the Twelve Tables, attention shifted to an essential problem of modern scholarship: the "municipal laws". The Second "Collegio" was held in Pavia, at the Almo Collegio Borromeo, from 12 to 30 January 2004. The choice of the word "Collegio" may need some clarification, at least for the sake of a foreign audience. The purpose of Cedant's Scientific Boards was not just to organise a series of seminars, nor to organise a three-week long conference. The focus is admittedly on promoting dialogue and scientific debate between a group of leading academics and a selected audience of young scholars. Both teachers and students are lodged at the Collegio Borromeo: this is an essential feature of the didactic project of the Cedant, as it provides a crucial element of informality and immediacy to the relationships between attendees. Discussion often happened to go on after the conclusion of the seminars, over dinner or a glass of wine. Moreover, at the end of the third week every young scholar who took part to the Collegio was assigned a research topic related to one of the issues dealt with in the seminars. The research will be supervised by one of the teachers who took part at the Collegio, and, finally, presented at a new session of the Collegio, in September 2004.

The program of the seminars was outlined by the Director of the Cedant, Prof. Dario Mantovani (Pavia), and by the Coordinators of this year's Collegio, Prof. Emilio Gabba (Pavia) and Prof. Luigi Capogrossi Colognesi (Rome La Sapienza). The audience, as recalled earlier, was quite restricted: fifteen young scholars (university teachers or graduate students) from Argentina, France, Germany, Italy, Spain and United Kingdom, and a selected number of external auditors, including six of the young scholars who had taken part in the Collegio in 2003. The seminars were divided in three sessions, one per week: "Institutions" (12-16 January), "Law and trial" (19-23 January) and "Municipal autonomy as a factor of integration" (26-30 gennaio). However, all the papers revealed the effort to contribute to a broader didactic endeavour, aiming at showing how the discussion of a single piece of evidence can be relevant to the treatment of other problems posed by a different and seemingly unrelated text. The purpose of this conclusive report is to provide a general outline of the problems discussed in the 2004 Collegio, without following the chronological sequence of the seminars, but organising the discussion by topics instead. The Proceedings of the Collegio are due to appear in early 2005, and they will contain both the seminar papers given by the teachers and the outcome of the young scholars' research, which will be discussed during a special session of the Collegio in September.

It is well known that scholarly research on the municipal laws ( leges municipales ) has gained new momentum in the last two decades. The publication of the lex Irnitana (J. González, JRS 76, 1986, 147-243) and the two volumes of Roman Statutes, edited by M. H. Crawford (London 1996) have provided the essential background for a new phase of the research, which has no doubt enriched our knowledge of the municipal system created by Rome, and of the contribution which this system gave to the integration and the assimilation of the communities, both in Italy and in the provinces. Therefore, the Collegio was conveniently opened by three inaugural addresses, by Dario Mantovani, Emilio Gabba and Luigi Capogrossi Colognesi, whose main aim was to put the current debate on the municipal laws into the broader context of scholarship, as it developed since the nineteenth century. As Mantovani and Gabba pointed out, there is a broad issue which consistently underlies most modern discussions: that of the continuity between Roman municipia and modern cities, especially in Italian and French tradition. At the same time, studying the municipia can turn out to provide an invaluable point of view on the development of Romanization, as it compels scholars to consider the incidence of Roman institutional models along with the persistence of pre-Roman structures (Capogrossi). This is especially the case for Roman Italy, as the studies of the Pavia historical school, from Fraccaro down to Tibiletti and Gabba, have successfully proved.

The seminar of Jean-Louis Ferrary (Paris, EPHE) discussed the development of modern historiography on municipal laws by analysing the development of scholarship along the last three centuries. Three fundamental moments can be identified. In the eighteenth century, the first editions of the tabula Heracleensis (A. S. Mazzocchi, 1755), the lex de Gallia Cisalpina (G. R. Carli, 1788) and the lex Osca tabulae Bantinae (G. Marini, 1795) appeared, providing the essential ground for the scholarly debate. It was in the nineteenth century, however, that the discussion of the problems posed by these texts took place with a full awareness of their importance and complexity. That period saw a gradual stratification of interpretative contributions, often in sharp contrast with each other: figures like G. Hugo, F. von Roth, F. von Savigny, G. F. Puchta, J. Marquardt, A. W. Zumpt e C. Giraud all played a role in such a process. The closing act of this season was the elaboration of the great system of Mommsen, which found its final formulation in the first tome of the third volume of Römisches Staastsrecht, published in 1887, whose complex development can hardly be followed, and understood, without considering the background of coeval discussions. The third moment of the historiography on the municipal laws is, of course, the present one, opened by the discovery of the lex Irnitana in 1981.

The making and the diffusion of the laws and the rights of the municipes are the problems which have provided an essential background for most of the seminars of the Collegio: in particular, they have received a detailed treatment in the papers presented by Hartmut Galsterer (Bonn) and Mario Talamanca (Rome La Sapienza).

Galsterer started by proposing a definition of municipal law: a general set of rules, specifically referred to a single community and divulged in a form ensuring its public character and its accessibility. Subsequently, he discussed all the available examples of such legislation, suggesting a possible chronology for each of them, outlining their contents, the role of the parties addressed by these texts and of those in charge of their application. The known evidence appears to suggest that the municipal laws derived from some unified model.

In the first part of his discussion, Talamanca focused on the famous passage by Aulus Gellius, Noctes Atticae 16.13, which attests that municipia were entitled to use "their own iura et leges ". This assumption, however, seems devoid of any credibility, as Gellius drew a distinction between colonies and municipia which certainly was not perceived so sharply, at least in his day. The inaccurate use of the notions of municipium and colonia implies the extension to the municipes of some attributes originally belonging to the coloniae : this improper use is attested in fragments of Ulpian (e.g. Dig. 50.1.1 pr.) and Paulus (e.g. Dig. 22.6.9.5). Mores et leges do not appear to have been seriously studied by Gellius: they should not be taken to mean municipal laws, but rather a general juridical order. In the second part of his exposition, Talamanca examined the text of the lex Irnitana : none of its clauses can be seen as evidence for the existence of an autonomous law for that community. The controversial chapter 93 is a later integration to the original text of the law, as it was outlined in the general model for municipal laws, which originally referred to the communities of Roman law. Having to adapt it to a Latin municipium , the legislator made explicit an aspect which was not obvious for a community of Latin citizens: that only Roman law could be used. If one considers all the cases attested in the Digest , they are all resolved by the unreserved application of the Roman law. One can infer that no iura et leges of the local community pre-existed the application of Roman law, and that no feature of an earlier institutional system persisted in the Roman organisation.

The relationship between citizenship and territory is crucial for the study of the political and juridical dimension of the municipia , and their role in Romanization as a whole. It is not surprising, therefore, that it was a central issue of the papers presented by Michel Humbert (Paris II), Luigi Capogrossi Colognesi (Rome La Sapienza) and Yan Thomas (Paris, EHESS).

The outset of Humbert's discussion was the exegesis of some entries of Festus' lexicon relating to municipia . Preliminarily, he focused on the locution qui ex alio genere hominum munus functus est. Genus hominum is to be read as the whole of the municipes , whose tie with their municipium is represented either by their birth or by a manumission. Aliud genus hominum , on the contrary, is a third category, including those who do not meet these two conditions, and it has the function of completing the definition. The whole lemma stresses the necessary relationship between municipium and territory, and the radical distinction between municipes and populus Romanus . Ultimately, the status of municipium has a relative value, indicating at the same time an integration and a distinction from Rome. Tracing the model of Republican municipium , Humbert saw its archetype in the associated community, sine suffragio . Rome pursued the clear project of disseminating a network of municipia s. s., colonies and praefecturae i.d. A significant level of autonomy was guaranteed by the presence of local senates and popular assemblies, by the right of the municipes to administrate themselves legibus suis et suo iure , and by the presence of local magistrates, who no doubt also had the function of performing the census in the communities sine suffragio .

Capogrossi Colognesi stressed the territorial dimension of municipia by considering several gromatic sources. Frontinus speaks of three qualitates agrorum : allotments can be divisi et adsignati (assigned after a subdivision performed by public authorities according to a limited shape), mensura per extremitatem comprehensi (with precise boundaries, but without internal references and without a measure of their extension) and arcifini (delimited by natural boundaries). It cannot be ruled out that the limites of the municipia included some enclaves enjoying a different juridical status from that of the community in which they belonged. Gradually, the extension of the ius Italicum brought about a unified model, which was not immune, anyhow, from strong anomalies and resistance, as attested by the widespread presence of terrae exceptae . The limitatio which took place when the colony was founded responded to a precise need, that of reshaping the presence of the indigenous community on the territory. Capogrossi concluded by remarking how a systematic classification of the statuses of land is necessarily imperfect: the tripartite system proposed by Frontinus, for instance, does not account for the compascua , which were nonetheless an important element for the economic life of the municipia .

Thomas dealt with the problems related to the notion of origo and to the spread of Roman citizenship. The first traces of a juridical relationship between the citizens and their birthplace (which will be called origo under the Empire) date back to the immediate aftermath of the Social War, probably after the lex Plautia Papiria , as it is apparent from Cicero's Pro Archia . The lex Plautia Papiria extended the citizenship to those whose civitas was different from the actual domicilium , and those who had several adscriptiones ; its purpose was to fix the community by which they could obtain the citizenship. The analysis of two clauses of the tabula Heracleensis , probably dating to the period of the Social War, seems to show that the professio which took place in Rome had the same value of that which took place in their municipium . In fact, for a citizen who was not born in Rome, being in Rome corresponded to finding himself in his own city; Thomas supported his thesis by bringing some examples taken from juridical sources.

The selection of municipal governing classes was the main topic of the seminars given by Emilio Gabba (Pavia), Umberto Laffi (Pisa) and Jean-Michel David (Paris 1). Gabba stressed the strong motives which led local élites to take part in Roman political life. It is not a coincidence that the municipal laws contain some clauses obliging the local leading classes to reside in the city and to take part in the life of the local senates. The origin of the plurality of domicilia can be identified in the Sullan venditiones , which allowed many elements of the Roman upper class to obtain a domicilium in many municipia of Central and Southern Italy. This remarkable degree of mobility is well observable in Italy after the Social War, and represented the background for the later practice of electing members of the imperial family to municipal magistracies. Since the middle of the first century BC, the traditional local aristocracies progressively exhausted themselves, while freedmen had an increasingly important role, by acceding to the augustality and the sevirate. Their rise, which was to come to an end in the II century AD, is more evident in Northern Italy, and is explicitly attested by the rescriptum from Vardagate, most probably dating back to the age of Nerva – although a chronology to the Augustan period cannot be ruled out.

Laffi showed how the magistrates were elected by the people with a procedure divided in three phases: the professio (the candidacy), the campaign and the vote of the assembly, later declared formally by the renuntiatio . The intervention of the decuriones (independently, or in association with the people) is epigraphically attested since the early imperial age: it is a twofold process, consisting of the offer of a candidacy by an authoritative figure, and the subsequent acclamation by the people, which replaced the vote. Although the people retained legislative power, at least formally, local laws were probably infrequent, as well as the occasions on which a formal vote took place. Laffi also remarked that Degrassi's view that Roman colonies were governed by quattuorviri i.d. only if they derived from a former municipal status is untenable. Several epigraphic and numismatic examples show that the practice was not confined to the post-Augustan age, and was already well attested in the first century BC, even in cases of an ex-novo colonial deduction. Attention was also given to the case of the lex municipii Tarentini , with quattuorviri and duoviri being mentioned in the same context. In this case, the statute mirrors the transition between two different systems, as the member of the community to whom the law applied could not know how long the college of magistrates appointed by the earlier statute would stay in charge before being replaced by the new one.

The relationship of the founders of the colonies with the cities and Roman central authority was the central issue of David's paper. Information is rich for the colonies, while less clear for the municipia . In the municipal laws and in the gromatic sources the role of the curator appears crucial. By the foundation procedure, founders did not bind themselves to choosing the site and assigning the land allotments. They also provided the community with new institutions, organised the senate and the local assembly, and appointed the first priests. The founders were the first magistrates of the new municipia , and later became patrons of the city. According to David, patronage relationships were played on a double level: they involved the founder and the city on one side, and the founder and the author of the general law on the other.

The financial administration and the attribution of responsibilities on this matter is the topic discussed, from different angles, in the papers by Elio Lo Cascio (Naples, Federico II), Francesco Grelle (Lecce) and Dario Mantovani (Pavia).

Lo Cascio analysed the relationships between two essential features of the administrative and financial dimension: the centre (i.e. the imperial administration) and the periphery (i.e. the municipia ). The active and passive voices which formed the budget of local administrations were numerous, and were decisively, though in variable measure, supported by local or imperial evergetism. If there was a budget active, money was invested, in order to generate a gain for the administration; if there was a debt, a loan – not necessarily a forced one – was decided. From the age of the Antonines the situation gradually changed, evolving towards a growing limitation of local autonomy. Local administrations were transformed into fiscal districts, the decisional role of the local senate on fiscal matters was nearly abolished, and the curatores rei publicae started to appear, with the task of controlling the fairness of the tributary operations which took place in the periphery and exacting tributes directly. As a conclusion, Lo Cascio suggested an innovative approach to the dynamic reality of peripheral financial administrations under the Empire, by proposing to analyse the "transaction costs", according to the guidelines proposed by the "New Institutional Economy" for the study of contemporary macroeconomic systems. In his view, there is no evidence for the "interventionist" attitude often seen by modern authors in the approach of Roman government to economy in the Late Antiquity.

The social function of the juridical assistance of orphans by tutors implied the responsibility in managing their households. Th. Mommsen and S. Sollazzi thought that the datio tutoris was not among the powers of local magistrates, as in Gaius 1.185 there is no reference to the datio in municipal contexts. According to Grelle, the leges Iulia et Titia – which regulated this issue – are in fact two: the first one may date back to the consul L. Julius Caesar, while the second one may be attributed to a Titius who proposed its passing, perhaps with a plebiscite. His conclusion is that these laws mentioned by Gaius aimed at establishing a rule for this matter both in the provinces and in the municipia . The theoretical reconstruction of the lawyers in the second century viewed the datio tutoris , then firmly assigned to local magistrates, as an institution which did not require the imperium , which certainly grounded it in earlier times. To this power corresponded a precise responsibility when the attribution involved a not-solvable individual. Later on, this system slowly dissolved itself: the role of the magistrate become less identifiable, and the task of the attribution is delegated to the ordo decurionum . Such a passage of power was made easier by the increasingly frequent phases of the vacatio of a magistrate.

Mantovani dealt with a problem closely interconnected with the previous ones, that of the iudicium pecuniae communis . He discussed in particular chapters 67-71 of the lex Irnitana . Ch. 67 is devoted to the required account and to the individual who had to receive it, when he was designated by the decuriones to do so. In ch. 70, the rules for the iudicium in its proper sense are set out, as those of a different procedure than that of the action for the benefit of the populus which takes place when an account is not correctly transmitted: with other words, it is the trial in which the magistrate is responsible for any possible flaws of his management of civic resources. The study of many of the sources for the definition of the patronus causae reveals that the responsibilities of a magistrate were interestingly close to those of the tutors appointed for the pupilli . If a tutor failed to administrate an orphan's household properly and was not capable of facing his financial responsibilities, then the magistrate who had appointed him, or his colleague, was accountable.

The problem of legal procedure in the municipia was treated by Joseph Georg Wolf (Freiburg in Breisgau), Giuseppe Camodeca (Naples, Istituto Orientale) and Bernardo Santalucia (Florence).

Wolf examined the procedure outlined in the lex Rubria (ch. 20-22) for the notifications of damnum and indefensio . Local magistrates had the iurisdictio , with the possibility to dare iudicium for the cases involving a limited amount of money, but they had no imperium . The competence of local magistrates was also excluded for the cases having public relevance or those which were potentially defamatory. In his discussion of the fragmentum Atestinum , Wolf stressed the right of litigants to use the jurisdiction of local magistrates; yet, the actor could have the litigation celebrated at Rome, in front of the praetor. The chapters 84-93 of the lex Irnitana set rules for the jurisdictional prerogatives of local magistrates, fixing a generic amount of 1000 sesterces.

Camodeca showed how the study of the juridical texts kept in the private archives allowed scholars to verify the application of Roman law in the areas which were under Roman rule, even when they had different juridical backgrounds. Besides the conspicuous findings in Egypt, the archive of the Sulpicii, discovered in Pompeii but referring to a Puteolan context, has a special relevance. The examination of the documents referring to vadimonia give us a clearer consideration of the ways in which they took place: they appear to have consisted of a single interrogation by the actor and only one reply from the defendant. Those which have been identified in the archive are all extra-judicial procedures, as they are related to spaces where justice was administered, but did not take place in them. The overall impression one gets from the study of these documents is that of a deep penetration of Roman law into the juridical dimension of commercial and financial life in the municipia and in the provinces.

We do not have detailed information about criminal procedure in the municipia .. Santalucia, by reconsidering the available evidence, ruled out the existence of iudicia publica in the municipia , covering the crimes dealt with by the quaestiones in Rome; on the other hand, the trials per multam appear to have gradually modelled themselves on those which took place in the capital, as formular judgements, recovering the modalities of the iudicia publica . Such an evolution is already apparent in the lex de provinciis praetoriis , Delphi Copy l. 24, in which the expression nomen deferto appears. By that time, the ancient popular civil actio had become a popular/public action, probably influenced by the quaestiones . The litis contestatio lost its importance, and the local magistrate began to chair the procedure: along with the vocabulary of private law, that of public law came into use. Even the reference made in the Tabula Heracleensis to a iudicium publicum (l. 119) seems to derive from the trials of the quaestiones (also cf. Cic., Verr. , 1.60.155, where the same expression is referred to a trial for fixed legal fine).

The municipal dimension is grounded on a double network of relationships: those between the city as a political and juridical entity and its territory, and those between the local dimension of the municipium and Rome, the centre of the Empire and the exemplary model for its peripheries. Significantly, the last seminar of the "Collegio" was given by an archaeologist of the Roman world, Pierre Gros (Aix-en-Provence). He views spatial irremovability and human openness as the reasons why Rome managed to become an ideological and urban model for the local communities under her influence. The sources convey the idea of a topographic fixity and of the sacredness of her soil, which often appear to be reasons not to modify the urban space. According to Gros, these political and religious values were symbolically multiplied by the new cities founded (or re-founded) by Rome. The first colonial foundations all show an identical structure, quadrangular or rectangular: it was a reconstruction of what people thought Romulean Rome to have been. The colonies of Latin right, on the contrary, seem to be free from the obligation to conform themselves to the original model, although they still have to comply with the prescriptions of the augures . The two organic centres, the arx and the forum , appear to be conceived as simulacra of Rome. In this sense, the topography of the city of Cosa, discussed at length in the second part of the seminar, is very significant, as the intensive scholarly debate which took place on this site in the last decade proves.

At the end of the works, it was announced that the third "Collegio", due to take place in January 2005, will be coordinated by Professor Aldo Schiavone and will be devoted to the study of "Texts and problems of Roman jusnaturalism".

Andrea Raggi (Pisa)
Federico Santangelo (London)

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