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Treaties, Roman
GEORGY KANTOR
Classical Roman legal theory and historical
tradition distinguished several types of formal
agreement with other communities into which
the Roman state or its representatives could
enter. Agreements of the most solemn formal
and permanent nature, treaties, were known as
foedera (sing. foedus).
A comprehensive catalogue of other types of
international agreement is not furnished by
any Roman source and in all probability
never existed, but the jurist Pomponius
mentions as distinct from foedera official
grants of hospitality to individuals or communities (hospitia publica) and relations of
friendship (amicitia) formed with other communities without a formal treaty (Pompon.
Dig. 49.15.5.2). Another type of agreement,
distinguished from foedus by its temporary
character, was armistice, indutiae (Gell. NA
1.25.1; Paul, Dig. 49.15.19.1; Täubler 1913:
29–44). It is a much debated point whether
the surrender of a defeated community to
a Roman general (deditio) can be considered
a Vertrag in modern Romanist legal theory, but
it is reasonably clear that this was a wholly
distinct category from the foedera (Täubler
1913: 14–28; Heuss 1933: 60–113; Dahlheim
1965: 1–96). Early modern interpretations of
Roman law (particularly Hugo Grotius) saw
a distinct category in informal pacta, but in
the Classical period the concept of pacta was
limited to private agreements and did not
intrude in the sphere of international relations.
Livy (34.57.7–9) draws a distinction between
three types of foedus: an unequal treaty with a
surrendered community, a peace treaty concluding the war and establishing amicable relations, and a treaty of alliance between two
communities that were never hostile to each
other. This comes, however, in a speech of a
Seleucid ambassador, and it is unlikely that this
is a statement of any legal distinctions drawn in
Livy’s own time, still less at the dramatic date
of the speech in 194/3 BCE.
The authority to ratify foedera in the Middle
to Late Republican period belonged only to the
popular assemblies (Polyb. 6.14; Cic. Balb.
34–5; Sall. Iug. 39), but the actual terms of
treaties were drafted in the Senate or by
Roman commanders in the field, usually with
the help of senatorial commissioners (legati).
The annalists assumed that the procedure of
popular ratification was already in existence in
the Early Republic. Agreements reached by
individual commanders were not considered
binding on the Roman people prior to popular
authorization, and were sometimes conceptualized in the later tradition as the individual
general’s promise (sponsio), for which he alone
was responsible and from which the people
could be extricated by surrendering the person
of the general. The paradigmatic case was the
surrender of Roman consuls to the Samnites
after the ignominious treaty of the Caudine
Forks of 321 BCE (Livy 9.5–11), but it is probable that this story was a patriotic invention
following the more historical case of a similar
surrender of the proconsul Hostilius Mancinus
to Numantia in 137 BCE (Crawford 1973). The
way in which strict legal categories only developed toward the end of the Republican period
is illustrated by the fact that the Caudine Forks
agreement is known to Cicero as a foedus (Inv.
Rhet. 2.91; Brut. 103; Rep. 3.28).
Even though “peace treaties” were
sometimes regarded in the later legal and antiquarian tradition as part of the common law
of all nations, ius gentium (Isid. Orig. 5.6),
the actual practice as we know it from the
historical tradition always had a distinct
Roman coloring. The conclusion of foedera in
the Republican period was, according to
that tradition, a highly formalized religious
act. The key role in the ratification ceremony
belonged to the priestly college of fetiales, who
were also charged with looking after the observance of the terms of treaties, making remonstrations on behalf of the Roman people to
The Encyclopedia of Ancient History, First Edition. Edited by Roger S. Bagnall, Kai Brodersen, Craige B. Champion, Andrew Erskine,
and Sabine R. Huebner, print pages 6842–6846.
© 2013 Blackwell Publishing Ltd. Published 2013 by Blackwell Publishing Ltd.
DOI: 10.1002/9781444338386.wbeah18135
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other parties to the treaties, and declaring war
(Watson 1993; Ferrary 1995). Their name was
sometimes etymologically connected with the
word foedus (Serv. Ad Aen. 1.62). Different
dates for the institution of the ius fetiale in
international relations fall mostly in the
Regal period: under Ancus Martius (Livy
1.32; Serv. Ad Aen. 10.14; [Aur. Vict.] De Vir.
Ill. 5.4), Tullus Hostilius (Cic. Rep. 2.31),
Numa Pompilius (Dion. Hal. Ant. Rom. 2.72;
Plut. Num. 12; Cam. 18.1), or even earlier
(Livy 1.24 presents the rite of ratification as
already established by the time of Tullus).
A connection with the Twelve Tables made
by Servius (Ad Aen. 7.695) stands apart. Their
rite was probably not of Roman origin and
developed through diplomatic relations with
other central Italian peoples: the sources
ascribe its origin variously (and unreliably) to
Latin Ardea (Gellius ap. Dion. Hal. Ant. Rom.
2.72), to the Faliscans (Serv. Ad Aen. 7.695), or
(perhaps for aetiological reasons) to Fertor
Resius, king of the Aequicoli (Inscr. Ital. XIII
3.66; Livy 1.32.5; Serv. Ad Aen. 10.14; Varro, ap.
De Praenominibus 1.5). A search for its IndoEuropean roots or Stone Age origins did not
convince most scholars.
The oaths used in the ratification rite
involved, according to the late tradition most
fully represented in Livy (1.24.4–9), killing a
pig with a flint stone and calling on Jupiter
Feretrius to punish the Roman people likewise
in the case of a breach of the treaty, but our
evidence is not unproblematic. The ratification
ceremony is depicted on gold coins of the
Roman mint of ca. 225–14 BCE (RRC 29.1–2)
and on a number of the late second-century
BCE denarii based on the same image (e.g.,
RRC 234). The images, however, show significant differences with Livy’s description,
notably in the use of swords instead of flint
stones. Polybius (3.25) also describes a different rite, an oath per Iovem Lapidem, “by Jupiter
Stone” or “by Jupiter in the stone ritual”
(cf. also Cic. Fam. 7.12.2; Gell. NA 1.21.4;
Apul. De Deo Soc. 5), used for the first
Romano-Carthaginian treaty of 508 BCE, and
asserts that in the two later treaties
with Carthage of 348 and 279 BCE the oath
was given by Mars and Quirinus. The latter
reference is probably to the well-known triad
of Jupiter Feretrius, Mars, and Quirinus, but
the former might be a testimony for a more
ancient rite. A scene of an agreement between
a Roman commander (probably Quintus
Fabius Maximus Rullianus) and a Samnite
general in a tomb painting of ca. 200 BCE
found on the Esquiline (CIL VI 29827, 36612;
Mustilli 1939: 15–16 and pl. XII) does not
show any religious ceremony, but this need
not be a depiction of a formal foedus. The
view of some scholars that the whole fetial
rite for the conclusion of treaties was an archaistic pseudo-revival of the late second century
BCE goes too far in its wholesale rejection of a
unanimous historical tradition.
In the Middle and Late Republic the use of
the fetial rite for the ratification of treaties
seems well established: it is attested for the
treaty with Carthage in 201 BCE (Livy 30.43.9),
and in the very last years of the republic Varro
(Ling. 5.86) attests it as a living practice.
Some evidence for their continuing role in
treaty ratifications has also been identified in
the senatus consultum de Aphrodisiensibus
of 39 BCE (Reynolds 1982: 8, line 85). The
ceremony of oath-taking described in the epigraphically preserved treaties of 46 BCE with
Lycia (AE 2005, 1487, lines 74–9) and 45 BCE
with Knidos (I. Knidos I 33, fr. A, lines 3–9)
bears little resemblance to the fetial ritual as
known from Livy, but the ceremony still
clearly retained a strong religious component
(Mitchell 2005: 237–40). The role of fetiales in
interpreting treaties, however, gradually disappears and is limited to religious formalities.
They were consulted on the propriety of
declaring war against Antiochos III (Livy
36.3.7–12), but Cicero’s revival of that role in
his ideal law code (Leg. 2.21) clearly does not
correspond to the political realities of his time.
According to the annalistic tradition, the
texts of treaties were inscribed on wax tablets
and recitation from the tablets was an essential
part of the ratification rite. This may be anachronistic for the Regal period and the Early
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Republic. Dionysius of Halicarnassus (Ant.
Rom. 4.58.4) speaks of a treaty of Tarquinius
Superbus with the city of Gabii written on an
ox-hide surviving to his own time in the temple of Semo Sancus Dius Fidius. In the later
period treaties were normally inscribed on
bronze tablets, kept on the Capitol in Rome,
where they were restored by Vespasian after the
fire of 69 CE (Suet. Vesp. 8.5). Greek translations of treaties with Rome were also
sometimes officially inscribed on stone by
Greek cities.
The earliest Roman treaties mentioned by
the annalists belong to the time of Romulus
(Livy 1.13) and are legendary. Our knowledge
of Roman treaties before the third century BCE
is very limited and mostly unreliable, though
texts of some early treaties may have survived
to the Late Republic. Polybius (3.22–5) provides texts of three early treaties with Carthage
(508, 348, and 279 BCE), and Dionysius of
Halicarnassus (Ant. Rom. 6.95) supplies terms
of the treaty of 493 BCE with the Latins
(the foedus Cassianum). Treaties of alliance
were used to unite Italy under Roman leadership by the time of the First Punic War, and the
treaties of the period of the Italian unification
remained in force up to the time of the Social
War. Evidence on Roman treaties up to 200 BCE
is fully assembled in Bengtson (1962) and
Schmitt (1969).
In the Middle and Late Republic evidence
on Roman treaties in literary sources is
supplemented by the surviving epigraphic
texts of Roman treaties with communities
in the Greek east, ranging chronologically
from the treaty with Kibyra of ca. 167 BCE
(I. Kibyra I 1) to the treaty with Mytilene of
ca. 25 BCE (RDGE 73), and by inscribed documents making reference to the treaty terms.
The fullest checklists are provided by Mitchell
(2005: 173–5) and Schuler (2007: 67–74). The
best-preserved texts are those of the treaties
with MARONEIA of 167 BCE (I. Thrak. Aeg. 168),
with ASTYPALAIA of 105 BCE (RDGE 16B), and
with the Lycians of 46 BCE (AE 2005, no. 1487).
We also have the terms of treaties with the
Aitolians of 189 BCE (Polyb. 21.32; Livy 38.11)
and with the Jews of 161 BCE (1 Macc 8:23–30),
reported more or less verbatim.
Modern scholarship, building on a distinction drawn by the Julio-Claudian jurist
Proculus (Dig. 49.15.7.1), usually distinguishes
between “equal treaty” (foedus aequum) and
“unequal treaty” (foedus iniquum). The latter
term has little classical authority, and the
whole distinction has been called into question
by Gruen (1984: 13–53). It is probably better to
speak of treaties that were not “equal” than of
a specific category of foedus iniquum. It is clear
from the terms of the Aitolian treaty as given
by Livy (38.11.2), and from epigraphic examples, that in some treaties a clause was inserted
requiring the other party to respect and maintain the power (imperium) and majesty
(maiestas) of the Roman people. This clause
had no precedent in Greek diplomatic practice
and was clearly a Roman innovation, probably
developed during the conquest of Italy. Toward
the end of the republic, however, even a foedus
aequum was deemed to bring a community
within the orbit of the Roman imperium
(Baronowski 1990).
Surviving texts of treaties mostly cover
questions of peace and friendship and mutual
help in case of war. The more wide-ranging
treaty with Lycia of 46 BCE also includes territorial clauses, clauses regulating the division of
jurisdiction, and clauses dealing with smuggling (AE 2005, 1487). The preservation of
a community’s “own laws,” and freedom from
Roman taxation and from intrusion of provincial governors, are frequently associated in the
sources with guarantees provided by treaties,
but exact sets of privileges varied from case to
case, freedom from taxation in particular being
less common. For example, treaties with
the Gallic tribes of Cenomani, Insubri, and
Helvetii, and the Dalmatian tribe of Iapides,
restricted the Roman right to enfranchise
members of these tribes, but this clause was
not usual in other treaties (Cic. Balb. 32).
On the whole we are insufficiently informed
about the range of issues that could be covered
or the historical development of the treaty
content, though the clauses of peace and
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alliance were tralatician. The protection that
treaties provided to communities was not so
much from the unilateral action of Rome,
which could follow anyway, as from actions
of Roman governors not endorsed by the
Roman people, on whose authority the force
of the treaty rested.
In the Imperial period, renewal of treaties
with communities in Italy such as Camerinum
under Septimius Severus (ILS 432) or
Lavinium under Claudius (ILS 5004) was
presumably of purely antiquarian interest, but
in the provinces the “treaty communities”
(civitates foederatae) remained the most
privileged group of communities, and the
terms of their treaties continued to be honored
(if usually in a very narrow sense) and
renewed well into the second century CE. The
right of the city of Amisos in Pontos to retain
its own laws was still based on a treaty in 111
(Plin. Ep. 10.92–3). In the third century, however, maintenance of old privileges of “free
communities” was based on decisions of the
Senate and emperors, rather than on treaties
(Reynolds 1982: 22; I. Eph. II 217). There is no
conclusive evidence for new treaties with cities
within the territory of the empire being signed
after the age of Augustus.
The authority to enter into treaties in the
Imperial period was transferred from the people to the emperor, as explicitly attested in
Clause VII of the Lex de Imperio Vespasiani
(Crawford 1996, no. 39). Already Augustus
mentions German tribes entering into amicitia
(perhaps by treaty) with “me and the Roman
people” (RG 26.4). We do not know much
about the formalities observed in that period
in agreements with the powers fully independent of Rome, though there clearly was a distinction between entities with which Rome
entered into formal relations, whether peaceful
or hostile, and those who were classified as
mere “bandits” (Ulp. Dig. 49.15.24). The
fetiales were employed for a treaty with the
German tribe of Hermunduri in Augustus’
time (Gell. NA 16.4), but Claudius’ use of
them is represented as a whim of the antiquarian
emperor (Suet. Claud. 25.5). The agreement
between Corbulo and the Armenian king
Tiridates in 63 CE was accompanied by “customary sacrifices” (Tac. Ann. 15.29), but
Ulpian (Dig. 2.14.5) and in particular Gaius
(Inst. 3.94) seem to assume a simple procedure
resembling private law contracts by promise
(sponsio). It is possible that toward the end
of the Early Imperial period foedera with
barbarian tribes near the borders of
the Roman Empire came to be seen as temporary and in need of regular renewal (Jord. Get.
106 is sometimes interpreted in this sense).
SEE ALSO: Diplomacy, Roman and Byzantine;
Fetiales; Treaties, Hellenistic; Treaties, Late
Antiquity.
REFERENCES AND SUGGESTED READINGS
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Baronowski, D. W. (1990) “Sub umbra foederis
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Bengtson, H. (1962) Die Staatsverträge
des Altertums, vol. 2: Die Verträge der griechischrömischen Welt von 700 bis 338 v. Chr. Munich.
Crawford, M. H. (1973) “Foedus and Sponsio.”
Papers of the British School at Rome 41: 1–7.
Crawford, M. H. (1996) Roman statutes, vol. 1.
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Dahlheim, W. (1965) Deditio und Societas:
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Ferrary, J.-L. (1995) “Ius fetiale et diplomatie.” In
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Gruen, E. (1984) The Hellenistic world and the
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Libero, L. de (1997) “Ut eosdem quos populus
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Freund-Feind-Klausel in den Beziehungen Roms
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Mitchell, S. (2005) “The treaty between Rome
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