THE FALL OF THE
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C L A R E N D O N P R E S S. O X F O R D r 989
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THE FALL OF THE
ROM AJ\IREPUBLIC andRelatedEssays
P.A. BRUNT
C L A R E N D O N P R E S S. O X F O R D r 989
f'
1,, ,,,,,
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l l ü r A l t l r l u r n i u n r i. r,
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THE FALL OF THE
ROM AJ\IREPUBLIC andRelatedEssays
P.A. BRUNT
C L A R E N D O N P R E S S. O X F O R D r 989
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1,, ,,,,,
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l l ü r A l t l r l u r n i u n r i. r,
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P R EF A C E
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Oxford is a trademark of Oxford UnfuersiQtPress Publishedin the Unired States b1 Oxford Uniursitl Press,Ncu Tork @ P. A. Brunt tg88 All righx reseraed.No part of this publication ma2 be reproduced, sloredin a retrieaal s2stem,or transmitted, in anltform or b1 an1 means, photocopling,recording,or otherwise,without electronic,mechanical, theprior pcrmission of Oxford UniuersiE Prus British Librarlt Calaloguingin PublicationData Brunt, P. A. Thcfall of thc RomanRepublic:and related t. Rome
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title essayin the volume complementsand occasionallyrevisesthe interpretation of the fall of the Republic offeredinmy SocialCofficß in the RomanRepublic,r97r. Some of the more controversial views expressed tlrr:re rested on my Italian Manpower,rg7r, and on various articles, including thoseon the Equiteswhich appearedin Proceedings 0f theSecond International of Economic Historl, r962, published in r965, and Conference on TheRomanMob (PastandPresent,r966, reprinted with somechanges rg7ü; both were further revised in M. I. Finley, Studiesin RomanSociet2, lirr the German translations in .(ur So-,.t.
. T H EI A I . LO T. I " H E R O M A NR E P U E I . I ( :
, I ' H TT:A L LO T ' I ' H }R: O M A NR I P U B L I ( ;
of country voters,and this recurred in Ioo and perhapswheneverthe distribution of lands to peasantsor veteranswas broached.But these Tiberius Gracchushimsell,when seekinga were exceptionaloccasions. secondterm as tribune, found that his rural supporterswere busy with harvestingoperations(probably the vintage),and he beganto woo the urban proletariate.This could have been of little advantageif they had all been confined within four of the thirty-five tribes.aT In any event the assemblies,even though never truly representative of the whole citizen body, could expressthe will of sectionsof that body, which had interestsdistinct from those of the senatorial oligarchy and which were not always compliant to its will. It is true that their independence was limited in variousways,but the checksthat the senate could employ were not effective when sectionsof the people were thoroughly aroused, had resolute leadership, and could command a majority in one of the assemblies. The assemblies could do nothing except on the initiative of presiding magistrates.asThey alone could admit men to stand for office, propose laws (which the people could accept or reject but not amend), and impeach political offenders. (It may incidentally be observedthat the senatetoo could meet only on the summons of a magistrate and pass decreesonly with his assent,and that in our own Parliament bills normally emanate from ministers of the Crown and are never carried against their will.) However, legally qualified candidateswere never or hardly ever barred from standing (ch.9 n.r4), and for legislationor impeachments there were ten tribunes, to say nothing of other magistrates,who could each take the initiative. It is also alleged that there was little debate on questionslaid before the people. This restson a misunderstanding.There was no discussion in the formal meetings (comitia)at which the votes were taken, but on any controversial issue they were preceded by meetings (contiones), which could indeed be summoned only by a magistrate and addressed only by him or by personshe invited to speak; but as any magistrate could summon a contio,and not only he who would preside over the comitia,rival views on controversial questions would be fully presented.aeNo doubt the speakerswere almost invariably senators,but they could include those who had defected from the senate'scause.
Even ilr democratic Athens, where every citizen had a right to be heard, the 'orators' lormed a class of more or less professional politicians, men who had the leisure to acquaint themselveswith public affairssoand to cultivate the arts of persuasion;there too they must generallyhave been personsof someproperty and socialstanding. Attempts could be made to obstruct the popular will in various ways. No more need be said of the tribunician veto, which proved ineffectiveas a barrier to proposalsthat had overwhelmingpopular support.Religiousimpedimentsmight be discoveredby magistratesor by the colleges of priests, composed mainly of aristocrats with the greatestpolitical influence (Cic. de dom. t). Cicero alleged that they had often been used to defeat seditious movements.But instancesare hard to find. Bibulus' attempt in 59 to invalidate by one of these devicesthe legislationof Caesarand Vatinius had no success, though in 58 Clodius thought it well to bar similar action for the future.sr A law of 98 oc empowered the senateto annul statutespassedin violation of specifiedconditions for their validity. It actually quashed the laws of Titius (tribune i" gg) and Drusus (tribune in 9r) by this authority, but it never ventured on this courseagainst laws that retained widespread popular support.s2Statutesmight, indeed,be inoperative(like decrees of the senate)from the unwillingnessof the magistratesto carry them out. In this way, for instance,the legal restrictionon the amount of public land an individual might occupy had in r33 fallen into abeyance.The Plotian law of c.7o, providing for the allotmentof lands to veterans,seemsnever to have beenput into effect(ch. 5 n. 3). It was prudent for the authorsof agrarian laws,like Tiberius Gracchusin I33 and Caesarin 59, to securethe appointment of commissionerswith the power and will to executethem. In any event, the last century of the Republic is replete with examples of laws proposed or carried in conformity with popular demands against the will of the senate. No doubt the magnates sought to apply pressureto voters by the t'xerciseof political and economicpower or by the claims of patronage. ln modern accounts of Roman society the place of patronage has lussumedenormous proportions.s3 It is often supposedthat the great
16
n t A p p . i . r o , r 4 , z g f . , g z . C i c . d c l e g . a g r . ü . 7 tp r e s u p p o s e s t h a t t h e r e w e r e u r b a n d w e l l e r s i n rural tribes. Cf. 1ZS r68 (eo z3):'plebs urbana quinque et trigint-a tribuum'and Taylor, rg4g, 2oo n. r2, on.IIS 6o46: Mommsen, whom she cites, held that the figures related to new entrants on the registerofdole-recipients;they would then suggestthat in the Principate the great majority ofurban dwellers were still in the urban tribes. aE Polybius did not note this; he could expect his readers to assumeit from current Greek practice (Jones, r94o, 166 ff.). ae Taylor, 1966, ch. rr.
27
so In this connection Arist. Rhet.i. is too little pondered. 4 s t C i c . d e l e g . ä i . 2 7 ( c f i i . 3 o f . ) a n d h i s a t t a c k s o n V a t i n i u s ' d i s r e g a r d o fo b n u n t i a t i o a n d o n ( llodius' law restricting its use,e.g.pd.rtred.sen.t r, Sesl.33 f., Vat. r4, t8. ln dedia. ü. 28, 43, 75 he \ußgcsrs,agreeing with his fellow-augur C. Marcellus (ros.5o), that some practicesof divination lr;ul been invented for political expediency.Taylor, I949, ch. Iv, revealswithout stating how little rlrt sc devicesserved to obstruct popular legislation. 12 l-intott, r968, ch. x. The law was perhaps declaratory of traditional rules. 1r My discussionof clientelahere is based on ch. 8 (sectionv for elections).Ballot laws: ch.6 rr ro,.;;cf. p.423. On electionsTaylor, rg49, ch. m, probably has the best account (to be read r r irically), with too much stresson clientela,though lessthan Staveley, I972.
e8
t H ] : ! ' A t , t (, ) l " t ' H l :R O M A NR t : p t r n t , t ( :
familieshad hordesol'clients who would vorc ar their behest.Yet assemblies in and alier the time of the Gracchi,and occasionallybefore then, passedlaws,and more rarely electedmagistrates,contrary to the wishesof almost all the nobility. It followsthat their clientswere in a minority, or were not dependable.Patrons could most easily exert pressurewhen voting was open, but the ballot was introduced against the oppositionof the nobility for electionsin r 39, most popular trials in r3T,legislationin r3r, and treasontrials in ro7. The first threeof these laws,like the measuresof Tiberius Gracchus,were actually carried by open voting. Cicero remarks that after the second of these laws defendants had to rely more on the effectivenessof their advocates (Brut. ro6): there was lessroom for pressure,more for persuasion. The importance of patronage is most plausibly used to explain the success of the nobility in electionsto the higher magistracies(p.5).t* But it need not be the sole,nor even the chief, explanation. We must not neglectthe 6clat of a splendidlineage.The namesof aristocratic familieswere inseparably linked with the glories of Rome's past in which Romans of all sorts could take pride. Cicero himself could say, when addressinga mainly equestrianjury, that at elections 'all we good men always lavour the nobility'(Sest. er). This way of thinking persistedin the Principate. Tacitus (Ann. iv. 6) and the younger Pliny (Paneg.69) approved when emperorsadvanced men for birth as well as for ability, and Seneca held that it was not unreasonable that even the most worthless aristocrats should be preferred to new men, however energetic: 'the recollection of great virtues is sacred,and there are more who delight in being virtuous, if the credit they gain doesnot expire with their own lives' (debend.iv. 3o); glory, like property, could be inherited. Yet Cicero, Tacitus, Pliny, and Senecawere all parvenus themselves.In the speechthat Sallustputs into Marius' mouth (BJ BS.4) we read that nobleswould boastoftheir lineageand'ofthe brave deedsoftheir ancestors'.Servius Sulpiciusand Manius Iuventius thought it a plausiblecontention to argue that Murena and Plancius, candidatesof less distinguished descent,could not have been preferred to themselvesby the electors, unlessthey had resortedto coiruptio" (p.+zg). It might be hoped that like the emperor Tiberius (Ann. iv.3B), or such heroesof the past as FabiusCunctator and ScipioAfricanus,accordingio the tradition that Sallust reports (BJ +. 5), nobles would strive to 'be worthy of their ancestors';Marius and others could denounce them, precisely for degeneratingfrom this standard (BS.gZ). Great wealth was alsoan advantagein a political career.55Office as 5 a B r u n t , . / ß . ! r o 8 , : , r f l ' , ;H o p k i n s a n r l ( i . I l u r r o n a y ' .H o p k i n s , r q { 1 3 c, h . u . 5 5 S c c g r n c r a l l y S l r a t z n r i r n ,r r ; 7 ' r .
,I'HI] T A L L O T ' I ' H } :R O I , I A NR I ] P I . J B L I C
29
such alrd membership of the senate were unpaid. Ostentatious consumJrtion, the gratification of the electorate with costly shows and li'asts,and even outright bribery, enhanced the chances of competitors. (landidates were required by law to possessthe equestrian census of roo,ooo denarii (ch.3 n.3), but in fact most of them needed and f,argreater resources.L. Aemilius Paullus (cos.r9z, r68), who 1rr ll-.
, t . H E} ' A L LO T " I ' H }R: O M A NR T ] P T J B I , I ( :
49
was alrcady more strongly and enthusiasticallysupported,and therelbrc safbrto join, than it really was (cf. ch. I endnoteI ). A war of words also preceded the decisivestruggle between Octavian and Antony, whosä conduct was convincingly maligned as a betrayal of Rome; his 'createdbelief causewas lost beforeActium, becausein Syme'sphrase turned the scaleof history'. VI Orators and pamphleteersobviously had to play on the sentimentsand perceived neädsof the public to which they appealed, even if it was lheir p,r.pose to practise deception for their own ends. The very distortions and sophistries which Cicero for instance employs in resisting Rullus' agrarian bill or defending Rabirius in 63 are thus indicative of the attitudes of his audiences,sincehe was a master of the arts of persuasion,rather than of his own opinions; though in these caseshe was perfectly sincere in desiring rejection of the bill and Rabirius' acquittal, the arguments to which he resorted were merely designed to sway the public. It was always necessary to profess attaahmentto the interestof the respublica.It cannot be doubted that jealousy and mistrust of Pompey inspired the opposition of the optimates to the grant of extraordinary commandsto him in 67 and 66, but it appears that Catulus and Hortensius in resisting the proposals spoke of him in terms of the highest honour, and argued that it was inexpedient for military reasons to create the unitary commands proposed,and contrary to constitutionalpracticethat so much power should be vested in a single man, in derogation of the rights that properly belonged to the annual magistratesentrusted with them by the people(Cic. deimp.Cn.Pomp.5r-63; Dio xxxvi. 3I-5).There was a stock of ideals which commanded almost universal assent,though they could be interpreted in widely divergent ways and brought forward to justify the most diverse policies, by advocateswho hoped to persuade their hearers (and had sometimes persuaded themselves)that they were embodied in the courseof action recommended. In this way measuresof manifest and direct benefit to substantial sectionsof the peopleof Italy, land allotmentsfor peasantsincluding veterans,food distributions at Rome, citizenship for the allies,judicial rights for the Equites, and so forth could be both promoted and opposedby appealsto the welfare of the state and to recognizedideals, such as liberty, equity, tradition, and law. Thus the distribution of public lands to peasantswas an ancient practice, and Tiberius to resumeit, in order to ensurean Gracchusurged that it was necessary future, that the rich were holding for the adequatesupply of soldiers
50
' r H Er A L L O t ' ' t H ER O M A NR I : P U B L I C
larger tractsof the public domain than the law allowed,and that it was just to assistcitizensimpoverishedin Rome's wars. Indeed any public assistanceto citizens could be justified, on the basis that public property and funds could be said to belong to the people; the srate was not regarded as an abstraction distinguishable from the citizens (p.zgg). In reply it could be urged that it was inequitable to eject possessors of public land to which they had acquired a kind of title by the passageof time, or that it was unwise to deplete the treasury; it must be rememberedthat prudence required Rome, like other ancient states,to pile up reservesto meet heavy expenditure imperative in an emergency, since the modern practice of public borrowing in such contingencieswas hardly thought of. Liberality with the citizenship again was part of the old Roman tradition, and the enfranchisementof the allies could be treated as just recompensefor their loyalty and contribution to Rome's military strength (Vell. ii. r5). Of the case against it we know only that in rzz Fannius suggestedthat Latins would displacethe old citizensfrom their placesin public meetingsand festivalsat Rome (GC ar). The extensionofjudicial functions to the Equites in r z3 could be represented not only as justified by the corruption of senatorialcourts (App. i. 22), the argument endlessly repeated in /o, but as a mode of 'making liberty more equal' by enlarging the number of thosewho shared in political power; senators could object that by 'enslaving' them to the Equites it detracted from their proper responsibilityto the people at large. It is easy to write off idealslike liberty as mere 'catchwords'; in fact they often corresponded to real interests, and also had a resonance of their own, vaguely associatingsome particular causewith others for which Romans had striven in the past.sa Liberty was often on the lips of politicians. It meant different things to different people (Chapter 6). For the ordinary citizen it comprised not only his safeguardsfor personal protection under the law but also his capacity as a voter, which the ballot enabled him to use with more independence;for the senator his right to speak freely on matters of state, and to have an effective voice in decisions;to both alike it was thus equivalent to a share in political power. The citizen could use his vote to securematerial advantages,and the power of senatorsbrought them lucrative perquisites.It is, however, unlikely that men consciously prized liberty as no more than an instrument for thesepurposes. 8a Plut. Ti. Gr. g, 15; App.i. g, rr; C i c . S z s l . r o 3 ; F l o r u s i i . - r e n c a p s u l a t eG r a c c h a n controversies;cf. also n. 39; GC 78 for L. Crassus'speech.Cic. deleg.agr. ii is the fullest specimen ofthe kind ofarguments that could be put beforethe assembly;probably he published it to exhibit to his upper-classreadersthe skill with which he could appeal to'popular'slogans and arguments to defeat a 'popular' bill.
'l'HE r ' A L LO f T H I R ( ) M A NR H P I , B L I ( :
5r
The liberty of the senator was inseparable from his share in the collective authority of the senate and from his individual dignity, his social rank, and esteem. Caesar was not alone in holding dignity dearer than life (BC i. g. 4); his assassinswere of just the same mind. In a hierarchic society everyone might value a place in the social scale that set him above others and desire to improve his status. Thus the Equites 'splendour' strove for control of the courts partly because it conferred on their order, freed them from subordination to the senators, and actually compelled senators to court their goodwill (Chapter 3). It is characteristic of this way of thinking that persons of respectable station resented the appellation of clients, with its connotation of inferiority and dependence (ch. B n. 3 r ). The suffrage surely had something of the same consequence to a citizen. It set him above subjects and slaves. Every year at the elections grandees had to supplicate for his favour. He could feel himself to be one of the masters of a world empire, 'Romanos rerum dominos gentemque togatam'. All this combined with the force of tradition to sanctify in men's 'the ancestral institutions which the long duration of our rule minds validates' (p. 6), which Polybius had seen as the source of imperial greatness (vi. I), and which guaranteed to all their particular rights' Certainly this sentiment was strong among the senators' who had long in effect directed the state. On the reasonable view that the people was incompetent to take over this function, monarchy was the only practicable alternative, and any abridgement of the senate's authority was a step in that direction. Roman tradition, and the experience of the Greek and oriental world, taught them that monarchl, w45 incompatible with freedom of any kind and with the rule of law; a king is'one free to do as he pleaseswith impunity' (Sall. BJ Zt. z6). We need not doubt that it was deeply abhorrent to them. It would be only natural that the masses should have simply accepted this aristocratic ideology; if they had been capable of political or historical reflection, they might have concluded that though the expulsion of Tarquin had in the first place only substituted the arbitrary government of the few for that of a single man, this change had proved to establish a basis on which their own rights could later be founded. In the no doubt largely invented stories of Spurius Cassius, Spurius Maelius, and Marcus Manlius, it was made out that these professedchampions of the people had really aimed at tyranny, and had been discredited with the people on that account. These fictions at least presupposethat popular feeling could be aroused against anyone suspected of monarchic aspirations. So Tiberius Gracchus' opponents professed to see his encroachments on the senate's prerogatives as proof that he aimed at making himself 'king'. It was clearly hoped in this way to undermine his support.
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't'Ht:
l'ALt, Ot l.HE ROMAN Rl:ptjBl.lc
Accordingto Sallust(ibid. 3r. B), it was c'nrended that'the resroration of rights to rhe peoplepreparedthe way for kingship';he puts the words into the mouth of a popular tribune, *ho tieats the Claim as partisanclaptrap. Gracchuswas hardly fool enough to entertain such an ambition, dependentas he was on the volatile favour of the masses and destitute of military force. But the autocracy of caesar, who had previously adopted the same popular stance, had retrospectively justified such fearsby the time when sallust wrote. Not long before his death Antony publicly offered him the title of kine. on the best evidencethis provoked a popular outcry.ss If that bä true, even the masseswere against the outward form and style of monarchy. They lould perhaps be lessconsciousthan senatorsthat caesar was'already absolute as dictator. once he was dead, it was enacted that no one should ever again be vestedwith this office.Augustus was to be careful to avoid this or any other formal appellation of supreme power. still, the riots at Rome in 44, which made it unsafefor caesar's assassins to remain there, and the popular clamour, which forced the senateitself in zz toofferAugustus the dictatorship,show that the urban plebs at leastno longerhad any deep attachmentto the Republic.s6Giatitude to the monarch prevailed, though there is nothing io snggestthat they or any other section of the people had deliberately worked for monarchy, or welcomed it before it had been in all but name establishedand brought them solid benefits.87 Sallust allegesthat under the guise of the public good all politicians were striving only for their own power. He himsilf admiited some exceptions to his cynical generalizations;88in any event he was no better able than we are to read men's minds. As a spokesmanof the optimates Cicero naturally implies that they acted in the interest of the whole commonwealth, whereas thepopulares wereunprincipled demagogues (sest.96). In theoretical vein he could admit that män of wealth and high-birth might arrogate to themselvesthe pretensionof being the best, without possessingvirtue or the art of görre..r-errt, and cäuld Gelzer, caesar,gzt, cites the texts; only Nicolaus reported that the people approved ofthe -85 oner86.Antony (to 'dictaturam please the senate, App. quae iam vim regiae potesratrs . ]lii. 25) obsederat,funditus ex re publica sustulit' (cic. phit. i. 3). cf. ,RG5 wlttr Gag6's noies. In fact the triumvirate was a dictatorship in commission. 87 caesar's desire for divine honours (J. A. North, JRS ry75, r7r ff), the usual attribute of kings, is ofcourse relevant; and such honours were freely to b. giue" io Augustus in all parts ofthe empire and even in Italian towns. But he was careful not to seekofficial deffication at Rome in his own lifetime, and even there-thecult ofhis numenor genius,to which as a distinct entity sacrifices and prayers could be offered on his behalf (EJ roo Ä;, so far as it was not merely piiuut., *u. entrusted to freedmenand slaves_(L._R. Taylor, DiainitLof theRomanEmperor,ch. vir;; here again we can discern a differenceofattitude between the massesand the poliiical class.some ofwhom are said to have resentedhis aspirations to apotheosis(Tac. Ann. t. ro). 88 Cat. gB;Hist. i. tz; cf. n. 6r.
,I'H}: TALL O}. THE ROMAN RI:PI'8I.I(;
53
properly be called a faction (derep.i. 5r, iii. z3). High moral standards certainlynot qualities änddevotion to the welfareof the governed.were commonly conspicuousamong the Roman optimates.Many of them seem at times to have been motivated by purely egoistic aims of personalprofit and advancement.None the less,it seemsimplausible to irrppos. that in general they did not believe that it was best fior Rome to be directed by the senate,or were lesssincerein this belief because the supremacy of the senatewas identical with their own interest in retaining collective power. Classinterest and constitutional convictions could coincide.The only optimate who attained personaldominance was Sulla, and he laid it down when he had re-establishedand fortified the authority of his order. they would naturally have repudiated Cicero's As for the populares, not necessarily confirmed by the fact that they were imputation. It is rank and sometimes,like the Gracchi, of high themselvesof senatorial members of the privileged 6lite conflict social times of lineage. In all the unprivileged on principle. cause of up the to take have been found measuresthey proposed populares thought genuinely some Conceivably lesslikely that they It is rather to the state. necessary or beneficial to be which they had to sovereignty, popular to the attached were truly Marians The assembly' the measures through those in carrying defend in the Bos,and Caesar,once in power both demonstratedcontempt for it. But even if we take them to have been entirely unscrupulous,bent only on advancing their own careersor securing personal dominance, it is more significant that they found the means to their ends in giving effect to sectional grievanceswhich the senateneglected. The division between senateand people, or optimates and populares, is not to be explained in purely political terms. Men were accounted 'good', Sallust remarks, on the basis that they were defending the status quo 'in proportion to their wealth and capacity for inflicting wrongs' (Hist. i. rz). It was the use they made of this power that engenderedthe social discontentsof the poor whom the Gracchi and later populareschampioned (,BJ 4z). In his revolutionary schemes 'wretched' and 'needy' (Cic. Catiline could look to the support of the 'invariably men without substance of their own are Mur. 4g-5r) : envious of the good [!] and raise up the bad; in hatred of their own condition they strive to turn everything upside down; they are sustainedwithout anxiety by confusionand riots, sincedestitutioncan hardly suffer any loss' (Sall. Cat.37). Cicero was no lessconsciousof classconflict, and more openly prejudiced.In his eyesthe urban plebs 'the are 'wretched and half-starved,ready to suck the treasury dry', 'who have never appreciated dregsof the city'. Disloyal peasantstoo, this commonwealth nor wished to see it stabilized',were for Cicero
54
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cattle rather than human beings.In the total breakdownof order after Clodius' murder rioters would kill anyone they met who wore fine clothesand gold rings (Appian ii. zz). Clodius'gangswere composed of slaves,criminals, at best hirelings, or so Cicero tells us; in reality many were probably craftsmenand shopkeepers. But that would not have commended them to Cicero; manual work, retailing, trade (unlesscarried on by rich men in a big way) were sordid occuparions, and he could speakof 'artisans,shopkeepers, and all that scum'. No wonder if such people reciprocatedwith hatred the contempt of Cicero and his like. By contrast 'good men are made in the first place by nature, but fortune helps;the safetyof the stateis to the advantageof all good men but most clearly benefitsthoseof fortune', which has been 'augmentedand accumulatedby divine favour'.8e For Cicero it was a primary function of the state to maintain property rightseo, and property owners were therefore its natural defenders,whom it was wrong to despoil;in gratifying the people at their expense,populares injured the welfare of the state (Sert.ro3). Since the senatorswere in general exceedinglyrich, they could be expected to protect the interestsof the whole classto which they belonged;even if individual memberswere led astray by unscrupulousambition or ruinous debts,the senateas a body would maintain the economicand social status quo. In Cicero'sview it would deserveand obtain the consensusof all good men, a designation which like that of optimates he extendedto all thosecitizens,even freedmen,whosepersonalaffairs were sound and unembarrassed. By birth of equestrianstatus,and a scion of the municipal nobility of Arpinum, he saw his role as that of consolidating a unionsacröe of men of property, 'our army of the rich' (Att.i. rg.4).At first he aimed specifically at concordbetweensenate and Equites,later at the consensus of all ltaly, by which of coursehe meant that of the ruling classin the municipalities, to whom he often refersin lettersas the'boni'. It was the will, interests, and opinionsof all such men that the true optimate leaderswould serve (Sasl.97).e, E e P h i t . x ä i . 1 6 ; C a t . i v r. g . C i c e r o o n t h e u r b a n
p l e b s : A u . i .r 6 . r r , r g . 4 , v i i . g , 5 @ f . F t a c c . r g , de ofic. i. r5of.). Clodius'gangs: Brunt ap. Finley, rg74, g7ff.; Lintott, ch.vr. Cicero's unpopularity: ch. 9 n. 8o. In philosophic mood Cicero could recognizethat the noble or rich were not necessarily the best, i.e. the most virtuous, and that their misrule could bring down aristocratic regimes (de rep.i. 5t; cf. 48); self-styledoptimates might be a mere faction [iii. z3); class conflict could ensue when politicians acted for sectional interests 'ut alii populares, alii studiosi optimi cuiusque videantur, pauci universorum' (de0fu. i. 85 f.); and in private he often expresseddisgust at the conduct ofthe so-called'boni', whether aristocratic politicians or men of property in general, when they failed to seek the general good as he saw it. '" deofic, i. r5, ro f. (with a curious disquisition on the origins ofprivate property), ä. 7g,derep. . iii' 24. In Top. ghe remarks that iuseiailehadbeen established'eisqui eiusdemcivitatis sunt ad res suasobtinendas'. All Roman iurists would have concurred. el Sasl. f.The b o n i( e . g .Ö a t .i . 3 2 , i v . r 4 - 1 7 , F a m .i . 9 . r 3 , v . : . 8 a n d o f t e n ) a r e t h e , l a u t i e t 96 locupletes'of Att. vüi. r . 3, contrastedwith 'multitudo et infimus quisque, (3. 4); they included in
.I'HT: FALL OF'I'HT.ROMAN RI:PTJBLIC
55
'otium cum dignitate',e2of What they demand is in his judgemcnt 'religiones, auspicia,potestatesmagistrawhich the 'fundamenta' are Iuum, senatusauctoritas, leges,mos maiorum, iudicia, iuris dictio, lides, provinciae, socii, imperi laus, res militaris, aerarium'. In 63, when he was professingto be 'vere popularis', that is to say one who genuinely cared for the people'sgood and not the kind of demagogue 'otium, päx, tranqillitas, fides, who commonly usurped the title, 'libertas' had appeared in a similar iudicia, aerarium' but also with his recall from exile there in he had claimed that catalogue; 57 'ubertasagrorum, frugum copia returned also [!], spesotii, tranquilli-leges, concordia populi, senatusauctoritas'.er iudicia, tas animorum, Otium in this sort of context is clearly public order and internal tranquillity securedby the rule of law. But it is not enoughif dignitasis wanting; indeedwithout dignitasit will vanish (Sesl.roo). The'dignitas rei publicae' certainly consistspartly in Rome's imperial grandeur, 'fundamenta' Cicero lists,but he surelyhas in inherent in someof the mind alsothe conceptionthat there can be no stability in a stateexcept when every man is firmly fixed in his own social and political grade (de rep.i. 69); such gradationsare required by equity (ibt4. +g, 53) and characterizethe traditional systemat Rome (ä. 4z).'" At the apex stand magistratesand senate,or most specificallythe senate,sincethe magistratesought to be its servants,though the senateshould ensure the 'splendour' of the orders next in rank (,9erl.I37), above all the Equites (dedom.74).The peopleshould delight in its own tranquillity (otium),in the dignity of all the best men, and in the glory of the entire (:ommonwealth(Sesl.ro4). Neither liberty nor the 'rights of the people'figure in the catalogue of 'fundamenta'.The liberty Cicero prized was that of a senator,and it he would concede was implicit in 'senatusauctoritas'.In the derepublica to the people only a sufficient appearanceof liberty to keep them content)not a sharein real power (pp.gz+ff.). Admittedly the true grncral the Equites and municipal gentry. The concept of'concordia ordinum', adumbrated in ( : l u . n t . t 5 2a n d r e a l i z e d i n 6 g ( C a t . i v , r 5 , A t t . i . r 4 . 4 , r 7 . r o ) - t h e p h r a s e o c c u r s i n e . g . . 4 t l . i . r 8 . 3 in which agreement between senateand Equites was taken to be crucial, was enlarged later irrto'consensusbonorum'. As already inl Verr,54, Cicero could appeal to the common sentiments r r f ' a l l I t a l y , i . e . o f t h e l o c a l r u l i n g c l a s s e s( e . g .C a t .i . r z , z 7 ; ü . z 5 ; i v . z , r 3 ) w h i c h h a d r e t u r n e d him as consul (Pdr.3), which would (he hoped) protect him against Clodius (Qrz.y'.i. e. tG), and which did in fact ensurehis recall from exile (Att. iv. t.4 and often); cf. endnote l for its alleged Ordinum,r 93 r, reprinted in St.zur allen Rcpublican fervour in 43 ac. SeeH. Strasburger,Concordia (ilyh. i. .t ff. "2 .iasi 98. Wirszubski, J.QS rg54, r ff., is best on this phrase, though he doesnot examine the 'lirndamenta'. ur dcleg.agr.ü.8-ro,dedom.r7;cf.dehar.rasp.6o:'aerarium,vectigalia,auctoritasprincipum, r . n r c n s u so r d i n u m , i u d i c i a ' , b u t v o t i n g r i g h t s a l s o a p p e a r h e r e . ut Under the Marian regime'sine iure fuit et sine ulla dignitate respublica' (Brut. zz7), lrcrlraps in part becauscmen of rank were mostly opposed to it (itosr. Amer. t36).
56
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statesmanwould aim at harmony betweenall orders for the sake of political stability (ii.69), and in pro Sestio (r37) he declaresit to be the senate'sduty to conserveand augment the liberty and interestsof the people, but this is a task to be fulfilled at the senate'sown discretion. The magistratestoo are to be simply its executiveagents(ibid.). If he elsewhereassertstheir right to treat 'the safety of the state as the highestlaw', he surelyhas it in mind that they must still interpret this right in accordancewith the will of the senate.e5By contrastpopulares would leave to the senatethe direction of affairs in normal conditions, without fettering the right of magistrates (including tribunes) to submit matters to the sovereignpeople when the senatehad failed to take action which could be representedas required for the general good. Cicero'sstandpoint is here thoroughly optimate in the narrowest senseof that term. VII
However, in the same context he has given optimates a much wider connotation, that embracesall the respectableelementsof society. He hoped that senatorial government could be securelyfounded on their consent.This consentAugustuswas to realize.He did so by fulfilling to a far greater extent than the senatehad done the programme implicit in Cicero'scatalogueof the 'fundamentaotiosaedignitatis'. Of course Augustus reservedultimate control to himself, though careful to show an outward deferenceto the authority of the senate.e6This deference would not have deceived or contented Cicero and his senatorial contemporaries,who knew what it was to sharein real political power. Some indeed have suggestedthat in his de republicaCicero himself had acknowledgedthat the state neededa singlewise statesmanto guide its affairs, but this is a misconception(seeEndnote B); he never departed from his principle, stated in 46, that 'no one man should have more power than the whole commonwealth'(Fam.vii. 3. 5). But in all other respectsAugustus' policies conformed with those which Cicero commended. That is not surprising. Analysis of the 'fundamenta' shows that they would have been 4t least in general terms acceptableeven to populares, as to all who seriously concerned themselveswith affairs of state. From this standpoint they merit further examination. Of all the 'fundamenta' the most basic is 'mos maiorum'. This e 5 d e l e g , i i i . B ;c f , P h i t . x i . z B d e f e n d i n g C a s s i u s ' i l l e g a l s e i z u r e o f s y r i a : h e h a d a c t e d , E o ( i u r e ) quod Iuppiter ipse sanxit, ut omnia quae rei publicae salutaria essent legitima er iusra haberentur.' D. Brutus was no lessjustified in similarly illegal action, as it accorded with the unexpressedwill of the senate: 'voluntas senatuspro auctoritate haberi debet. cum auctoritas e6 Brunt, CQrg\4, impeditur metu' (Fam. xi. 7. z). 42gff.
' t H t : r A t , L( ) l " l ' H l :R ( ) M A NR l : P l J B L . l ( :
57
plrrlsc irnd thc like arc ever on (liccro'slips; again he could count on rcspectlbr traditiardonablein regard to the Gracchan system, since the Gracchan lex de repelundis,and later laws setting up similar courts for maiestas,gave Equites a judicial monopoly and made senators responsible to them in precisely those iudicia which most attracted the attention of political historians and of orators concerned with politics. Judgements on civil suits or on criminal prosecutions of lower-class offenders would arouse no political controversy. By contrast conviction for repetundae,if it involved financial ruin and infamia, could make the defendant prefer exile, as Verres did.ls Even in a civil suit, when it threatened bankruptcy and iffimia, it could be said that a man's fame and fortune (Quinct.B), and indeed his caput (ibid. 29, 33) and life-blood (ibid. 39, people 46), were at stake. He nce in I o6 L. Crassuscould plead with the 'can only to rescue senators from the cruelty of equestrian iudices,which be satiated with our blood', another figurative expression;he may also court was have hoped that if the equestrian monopoly of the repetundae destroyed, it would be less likely that the Equites would be given exclusive judication in extraordinary courts like that set up by the 'capital' penalties resulting in Mamillian court, which could impose court was the banishment. At any rate the composition of the repetundae source ofpolitical controversy in the last decade ofthe second century; and still more bitter conflicts followed the notoriously iniquitous condemnation of P. Rutilius in c.gz and the proceedings under the lex Varia.r6 Now it is indeed certain that Gracchus made Equites alone iudicesin repetundaecases. It should never have been questioned that the fragmentary lex repetundarumpreserved on one face of the tabula Bembina @lRA i2. nt. 7) is a Gracchan law.rt It requires the peregrine praetor 1a Stockton, Historia rg73,2r6ff., canvassedagain the possibility that Cotta's first proposal was more extreme, but see Gelzer, Kl. Schr. ii. I68 ff.: Cicero's rhetoric should not be taken literally. 15 C. Cato (cos.I I4), though condemned.forrepetundaz, but only to pay Sooo HS (Cic. II tr/arr. iii. r84, iv. zz; Vell. ii. B), retained his consular status till conviction under the Mamilian law in rro(Cic. Brut.tz8\.InJamia,whichinvolvedlossofstatusanddisabilitiesinprivatelaw,wasnot prescribedby the Gracchan law as incidental to condemnation, but probably first by Glaucia (a/ Her. i. zo; cf. Lintott (n. 3) ". r33). Compare the disabilitiesimposed by the Latin law of Bantia (ch. z, App. rv). When condemnation involved both social and financial ruin, men might prefer voluntary exile; they could then take their liquid assetswith them beyond Roman jurisdiction; and their wealth and continuing connectionsat Rome might earn them influence in their new lrome (cL Cic. Au. v. rr.6 on C. Memmius at Athens,and Strabo x. 2. 13 on C. Antonius in (i'ohallenia). f u G C ; ) 6 3f . ( M a m i l i a n c o u r t ) , 7 8 ( L . C r a s s u s ) ,r z 5 - 7 ( R u t i l i u s ) , 1 3 6 f . ( l e x V a r i a ) . r ? S t r , < k t o n ,r q 7 9 , 2 3 o f l ; c f . S h e r w i n - W h i t e , JRS r972,83 99.
2o2
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to empanel45o personsfrom whom juries are to be chosenfor trials in the current year; in subsequentyearsthe praetor appointedto preside over the court is to do the same.All presentand former membersof the senate,together with holders of officeswhich gave a claim to future membershipof the senate,and the fathers,brothers,and sonsof such persons,are ineligible;the positivequalificationis lost in lacunaeof the text, but thereis no doubt that it was in somesenseequestrian,whether the iudiceswere to be past and presentholdersof the public horse,or to be merely of free birth and equestriancensus.They also had to be resident in Rome;l8 so they were not likely to be mere country gentlemen,but the richest membersof the order, notably publicans who needed a Roman domicile for their business.Personsindictable under the law are among those ineligible; they would have included someEquites.le There is a seemingdifficulty for my casein that the repetundae law provided for 45o equestrian iudices,while the judiciary law posited provided probably for 6oo or 3oo. But this can easily be met. We have only to postulatethat the judiciary law was passedlater (henceit was impossibleto define the positive qualifications of iudicesin the repetundae law by referenceto it), and, if we accept the figure of 6oo, that a larger panel was now seen to be required for the more multifarious duties with which the more generallaw was concerned. Appian and Diodorus,aswe have seen,inform us, without explicitly stating, that belore Gracchussenatorshad judged chargesof repetundae, and that he substitutedequestrianjuries for that offence.It may be said that as on my own view Appian and other authorities are misleading in suggestingthat senators were excluded from judicial functions, they might also be wrong about the repetundar court. The epigraphic law abrogates two preceding statutes on repetundae, the Calpurnian,which had first set up a permanentcourt (.. 69), and the Junian, which is otherwiseunknown. Cicero alone refersto an Acilian law which clearly provided for equestrian jurors and which was proposedby the father of M'. Acilius Glabrio, praetor 7o (I Verr.5r).'o Could not the Junian law have been Gracchan, instituting mixed juries, and the Acilian a more extreme measureof later date? That is 18 Tradition and sound practical reasonsdictated this rule (Sherwin-White (n. 3) zz), though I doubt if it excluded 'man1R.oman financiers' (my italics); he also in my view underrates the importance publicans already enjoyed belore rz3; cf pp. r48 ff. 1e Seen. ro;manyormostoftheminormagistratesandsonsofsenatorswouldbeEquites.But under theJulian law Equites (unlessminor magistrates)were still immune (Rab. Post. r3.); the scopeofthe repetundae processwas only extended to other equestrianofficialsunder the Principate (Brunt, Hisloria 196r, rg8). Cic. Cluent.ro4, rr+, Rab. Post. 16 show only that in Republican repetundae law Equites could not be prosecutedfor taking bribes as jurors. 20 He would have been an aequalisof Gracchus (Badian, AJP rg54, 974tr.).
2o3 J U D I ( : I A RR Y l ( ; H ' l ' lSN ' l ' H t :R n P U B L I C 'I'he total extrusionof senatorslrom the court by a posthard to credit. Gracchanlaw would have beena controversialmeasurethat could not have lailed to leave some other mark even in our meagre tradition. If the Acilian law was post-Gracchanit must have done no more than modify Gracchus' measurein technical details; alternatively, it can be identified with Gracchus' statute on the basis that Acilius, like Rubrius, was a colleaguewho acted as his agent. The Junian law, on the other hand, is best regarded as a measurewhich introduced some minor modification into the arrangements made by the Calpurnian. We can safely conclude that Gracchus did entirely replace senatorial court. with equestrian iudicesin the repetundae 'provided for Let us now turn to Plutarch. He statesthat Gracchus the enrolment of 3oo Equites in addition to the 3oo senators and confidedjudication to the 6oo together'. In itself this is ambiguous' and it might mean that Gracchus enrolled 3oo Equites in the senate.Such an enlargement of the senatewas to be proposedby Drusus in gr and effected by Sulla for the very purpose of enabling the senatealone to provide all the iudicesrequired-at a time when more were undoubtädly required than in Gracchus' day. However, elsewherePlutarch resolvesthe ambiguity: he meansthat there was to be a mixed albumof 3oo senatorsa.rd loo'Equites.21Like our other authorities,he doesnot but unlike them he makesit clear that he is explicitly refer to repetundae, thinking of all kinds of judication, of casesin which defendantswere not necessarilysenatorii. 'Ihe Periochaof Livy lx, which does not mention any judiciary measure at all, allegesthat Gracchus passeda law that 6oo Equites should be enrolled in the senate,which then consistedof 3oo members' with the result that the equestrian order was twice as strong in the senateas the former members.The author is wretchedly inaccurate. It may well be that he did not draw on Livy directly but on an epitome (". +g). He probably lived at a time when the albumiudicum, which in Livy's day included both senatorsand Equites (p. z3I), had ceasedto exist. We can readily assumethat Livy, like Plutarch, wrote of the constitution of such an album,and that an abbreviated statement of his account was misunderstoodby a writer to whom the concept of an albumwas unfamiliar and unintelligible: unlike the fuller description of Gracchus' proposal, which Livy himself must have given, it may have been as ambiguous as the first formulation in Plutarch which I quoted. This is the view taken not only by those who accept the 2r C. Gr. with Conp.2. Plutarch ascribesthe same proposal to Ti. Gracchus when standing 5 for re-election (Ti. Gr. 16),whereas Dio, fr. 83 makes him propose transference ofthe courts to the Equites. SeeStockton, rg7g,73. Conceivably Tacitus (n. z) had in mind Ti. Gracchus'proposals as well as his brother's laws.
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evidenceof Plutarch but by somescholarswho supposethat Plutarch and Livy both refer to a proposal made by Gracchus and later abandoned by him in favour of purely equestrian courts. I shall consider this hypothesislater. It would make it easy to explain the discrepancy between Plutarch and the Periocheas to the number of equestrian iudices.If both were concerned with an abortive plan, we could conjecturethat Gracchus toyed with alternative numbers. But it is also conceivablethat if both are reporting a judiciary law actually carried, Plutarch misconstrueda statement that the number of equestrian iudiceswas double that of the senators as meaning that the number of personson the album was double that of the senate. The emphasisthat the Perioche lays on the total number may deservecredit, and the number of iudiceswas probably that establishedby the lex Aureliaof 7o, viz. goo. Gruen (p.BB) and others contend that both Plutarch and the Perioche are discredited by their disagreements.The truth is that they, and all our other sources,are continually inaccurate, and that their inaccuracies produce conflicting statements, each of which may none the lesshave some basisin facts more complex than any one of them reveals. III
Now all our sourceswhich refer to any judiciary legislation of Gracchus purport to record a generallexiudiciaria,somealluding in particular to the repetundae court. Miriam Griffin remarks that in this respectall may give inaccurate reports of a measurewith more limited scope;she adduces what shetakesto be parallels.22Certainly no precisionon such a matter can be expectedof them. However, as she admits, they are not always wrong. The lexAureliawasindisputably (asthey state)a judiciary law. In my view Drususin 9r alsoproposedsuch a measure(seebelow). On the other hand, Miriam Griffin is right about the lex SeruiliaCaepionis of ro6, although it is styled 'iudiciaria' by Cicero (deinu.i. gz); he could equally use the phrase 'omnesiudiciariae legesCaesaris'to denoteJulian laws concernedwith particular offences(Phil. i. rg; cf. zr). The Servilian law may be considered here, becauseits terms might seemto be inconsistentwith the hypothesisthat Gracchushad set up a mixed album.Cicero tells us that it was hateful to the Equites 'cupidos iudicandi' (de inu.), and that they were hotile to Caepio 'propter iudicia' (de orat. ii. r99). Tacitus confusedlywrites of 'Servilian laws' that restored the 'iudicia' to the senate (n.z). Late authorities, dependent on Livy, state that it provided for mixed senatorial and " r97.
CqtgTg,
ro8ff. Much of what follows replies to this article; cf also Lintott (n.3) 186ff.,
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equestrian courts.23Balsdon gave strong reasonsfor prelerring their account,and I accept it.za However, on my view jurisdiction was in general already shared between the two orders. If so, it follows that it was no doubt Caepio's law concerned only the court de repetundis; likely to affect any extraordinary courts to be set up for political charges.Cicero can be taken to mean that the Equites resentedlossof their control of political courts. It is evident that Saturninus' law on gave them such control of the new court it established(n. rz), maiestas and that Caepio's law was soon repealed by the lex de repetundisof Servilius Glaucia, under which a vindictive equestrian jury was enabled to convict Rutilius.25 Miriam Griffin also regards Plutarch's account of Gracchus' legislation as inconsistentwith certain statementsby Cicero and with Drusus' judiciary proposal in gr. (a) In 7o Cicero declaredthat there had been not the least suspicion ofjudicial bribery in the fifty yearsin which Equites had continuously enjoyedjudication ('cum equesterordo iudicaret'), in contrast to the notorious corruption rife after the transfer of iudicia to the senators (I Verr. gB).If this were true, there was an astonishingmoral degeneration in the order after 7o. Cicero could perhaps venture on his claim, however false, simply because no equestrian iudex had been actually convicted of taking a bribe. However, it contradicts the no lesspartisan testimony of Appian's sourceson their misconduct, and cannot be reconciled with the attempt made by Drusus, which the Equites strenuously resisted, to impose retroactive penalties on them for corruption (see below). But memories are short, and the suspicions which had certainly existed despite Cicero's assertioncould have faded in comparison with what was believed to be the proven guilt of senatorial iudicesin the more recent past. Cicero's assertion thus had enough plausibility for his rhetorical purpose, that of impressing on the court the necessityof restoring the reputation of senatoial iudices,if the senatorialmonopoly ofjudication were not to be swept away. We are not to look for any truth or precision in Cicero's statement. Moreover, in fact he does not strictly imply that Equites had possessedsole judication for fifty years; he had not necessarilyoverlooked Caepio's law, and there is no need to think that he meant that in casesother than repetundae, on which he was focusing attention,26 senators had 23 Obsequens 4r; Cassiod. Chron.MGH xi. r3z (on which see Mommsen, Ges. Schr.vii. 668 tr). 24 PBSR 1938, ff. 98 2s Cic. Scaur.a1. Ascon. zr C., Brut. zz4. Cf. n. 16 with text. 'Propter iudicia' could mean 'because of trials', sc. 'because of courts' established of one kind of case, rather than for various kinds of case. 26 | ycrr.38. Admittedly he goes on to mention casesin which senatorial iudirn in other postSullan courts had taken bribes.
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always been excludedfrom the courts,as Equiteshad been excludedby Sulla. Again, in his speechfor Cornelius he said: 'Memoria teneo, cum primum senatorescum equitibus Romanis lege Plotia iudicarent, hominem dis ac nobilitati perinvisum Pomponium causam lege Varia de maiestate dixisse.'27Under the lex Varia many senatori had been condemnedfor treasonby the malice of the Equites,who then controlled the court demaiestate; the lexPlautiaof Bg provided for the election of iudices on a tribal basis,not excludingsenatorsnor even'plebeians',but probably only iudicesto hear chargesunder the lex Varia (n. rzz). In the context Cicero'swords do not imply that senatorsand iudiceshad never shared judicial functionsin any other court before,or that neither Caepio nor Gracchuscan have set up mixed courts. We may noticehere another text which on its most natural interpretation refersto mixed courts in the pre-Sullan period. The author of the treatise ad Herenniumgives a model passagefrom a speech, actual or fictitious, in which a prosecutorfor parricide appealssuccessivelyto iudices 'who love the name of the senate',to those'who wish the station of an Equesto be mostsplendidin the state',and to thosewho have parentsor children (i". +l). This would make little senseunlessthe court desicarüsor de uenenis, which also took cognizanceof chargesof parricide (n. 7t), included both senatorsand Equites. The lex Plautia can of course be invoked to explain it by thosewho believethat law to have had a wider extensionthan I think plausible. (ä) As for Drusus, we are told in the Peiocheof Livy lxxi that he proposed that the iudicia should be equally shared between the senate and the equestrianorder. If this has any basisin Livy's text, we might supposethat the proposal was really limited to the courts de repetundis and de maieslate,of which the Equites admittedly had sole control: it would therefore not show that a mixed album did not already exist ör other purposes.However, this would mean that Drusus did not seekto effect what, according to the Peiocheof book lxx, the senate actually desired, viz. the outright transferenceof the iudicia to itsell And yet in conformity with Cicero's delineation of Drusus' policy,28 the Perioche acknowledgesthat he was thg champion of the senate'scause.Moreover, Appian (i. gS) statesthat he proposedto re-establisha senatorial monopoly, and so far Velleius (ii. 13) agrees;Appian adds that for this purpose the senatewas to be enlarged by the adlection of 3oo Equites.
in It is evident that whereasno such enlargementhad been necessary give a share in membership was to senators when all that was done ro6, of the one court from which they were then excluded, a senateof 3oo members was too small to provide all the iudicesrequired for other duties, both civil and criminal. Hence it would not be surprising that Drusus should have intended to anticipate the course taken by Sulla. The author of the work de uiris illustribas(66) also says of Drusus that 'equitibus curiam, senatui iudicia permisit', and, as Appian tells more fully, that the proposal evokedjealousy on the part of the Equites who were not to gain admissionto the senateand objectionsfrom senators who did not wish to see the aristocratic composition of the senate diluted. Perhapson this account the senatewas in the end the readier to quash Drusus' laws.2e There is no difficulty in supposingthat the epitomator of Livy once again mixed up the senate with the album iudicum,especially as his summary of Drusus' law is incongruent with his own account of the senatorial objective that Drusus championed, and that Velleius has simply omitted mention of the proposed adlection of new senators (which of coursenever took place). It is true that Appian's account is not free from error and confusion. He cannot have been right in thinking that the senate had been reduced by seditionsbelow its normal number, as was to be the casein Br;even when recordinghow Sulla increasedits size(i. roo), he did not understand that this was necessaryif senatorswere to man the courts, and supposed that he was merely filling gaps in the roll of senators created by the civil wars. He was surely providing his own ignorant 'suspected'that glosson Drusus' proposal.He also saysthat the Equites the admission of some of their order to the senate would only be a prelude to their exclusionfrom the courts, although by his account it must have been apparent that this was preciselywhat Drusus intended. But of courseindiaidualEquites, once Drusus' plan had been published, would have suspectedthat they might personally lose their judicial rights by not being enrolled in the senate,a promotion somemight not even have desired; Appian could easily have garbled a statement to this effect in his source. The detailed account that both he and the writer de uiris illustribus give of the attitudes of both senators and that their versionof it, which is also Equites to Drusus' bill presupposes that of Velleius, is correct; and it seemsto me incredible that it could have been sheerfiction. Of coursethere can have been no uncertainty about its content, all the more as it was passed into law, though annulled before implementation. Livy would not have been in error,
27 Ascon. 79 C. I alsoagreewith Balsdon (n. z4) that'cum primum'can mean,assoon as'and not necessarily'when for the first time', but even ifit is construed in the latter sense,it has to be considered in the context. I follow Badian (Historia 1969, 475) in amending ,Cn. Pompeium, to 'Pomponium'; we do not need to think that Cicero was an 'adherent' of Pompey to see that he could not have vilified Pompey'sfather in 65. 28 dt orat.i.24, Mit. rO; it'Dioa. xnvii.'ro; Vell. ii. 13; Ascon. 68 C.
2e Cic. dc dom. 4r, 5o, de lcg. ii. 14, 3r; Diod. xxxvii. ro.
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and Velleius may well reflect what he wrote;3o a confusion by the contemptible epitomator is easy to credit. Drusus also enacted penalties against iudices who took bribes. Miriam Griffin contendsthat as in the post-Sullan era chargesof this offence normally came before the repetundaa court,3l Drusus' law must have been a lex de repetundis and not a lex iudiciaria.That would carry the unacceptableimplication that he did not attempt to change thä equestrian composition of the maiestascourt. Moreover, we do not know (i) that Drusus, whoselaws never came into operation, intended the same procedure for trying charges of judicial iorruption as that establishedby Sulla, or (ii) that he did not proposea separateraw on judicial corruption penalizing equestrian iudices.The provision of such penaltiesis often taken to be incompatible with the exölusionof Equites from the courts. But that is not the case,if the penalty applied to past corruption. of the two texts in which cicero refers to iti äppücability to Equites, one permits and the other requiresus to believe-thatit wai retroactive. The second text has been unwarrantably emended, with no linguistic justification, to remove this implication, on the premise that retroactive legislationwas contrary to the spirit of Roman raw.32 That is indeed a principle stated by Cicero, but with a significant exception:'nisi eius rei quae sua sponte tam scelerataet nefaria est ut, etiamsi lex non esset,magnopere vitanda fuerit' (II Verr. i. ro8). Judicial corruption was the more suitable to be treated as such an exceptionsinceit had actually been a capital offenceunder the Twelve Tables.33Evidently this law had fallen into desuetude.However, in r42 the praetor L. Hostilius Tubulus had been flagrantly guilty of taking mo,neywhen presiding over a murder court, in l4r a plebiicite authorized his trial by a quaestio. under the presidency bf one of the consuls,and he went into exile;34if we may LeheveAiconius (23 C.), 30 rREviii. A 644 (Dihle); cf. Haug, 1947, roo ff. "- op. cit' (n. zz) r 16; seecic. cluart. ro4, rr4; this was not the only possible procedure (ibid. I 1 5 f ; c f . E w i n s ' J r R J 1 9 6 o , 9 g ) . R a b . P o s t1. 6 , c i t e d b y G r i f f i n , i s h e r e i r r e i e v a n t , u t r d h . r i n f e r e n c e from the Gracchan rcpehndazlaw v. zB seems to me unsound; it cannot have been Gracchus' deliberate intent to exempt Equites from penalties for taking bnbes, contraNicolet, 1966, 5rr ff.; even though Gracchus'law neglected to penalize them, that could not mean that in taking-bribes they were'taking money in amordauewith this law' (surely a patent absurdity); sherwin-white (n. 3) must be right that the clause relates to personsindictable under the law, who would include some holders-of the public hone (n. ro), when they had taken money less than the minimum (v. z) required for indictment. 32 Post. 16: 'si quis ob rem iudicatam [sometimes unwarrantably amended to 'iudican- ._Rab. dam'] pecu4iam accepisaet'; clunt. r53i'ei qui rem iudicassent' (whiih could but need not tePresent a llture perfect in the terms of the statute; in any event Cicero need not be quoling the terms, conha Lintott, op. cit. in n. 3, n. rz5). Appian and Diod. xxxvii. ro. 3 also striitly iäply that he provided for rerrospective charges, though their accuracy could be impugned. 33 Gell. *. t. 7; cf. n. 34. 'o ü. 54: 'cum praetor quaestionem inter sicarios exercuisset,ita aperte cepit 9ir. ! in. pecunias ob rem iudicandam, ut anno proximo P. Scaevola tr. pl. ferret ad plebem, villentne de
J U D t C I A R Y R I C H ' I ' Sl N T H E R E P U B L I C
2og
his extradition was ordered, and he took poison.Evidently at that time there was no lex defining the offence and setting up a permanent quaestio to try it, even when it had been committed by a senator,yet it was consideredso monstrous ('magnoperevitanda') that a retroactive capital penalty could be imposed. It is true that the condemnation of Rutilius, which clearly set Drusus off on his anti-equestrian programme, is not ascribedin the numeroussourcesto judicial corruption, but simply to the conspiracyof the publicans against a man who had curbed their extortions;3sbut there is nothing to exclude the possibility that some of the iudiceswere believed to have been bribed by his enemies,or that other casesof corruption were alleged; Cicero's bland denial of this has virtually no weight (seeabove). Miriam Griffin makes much of the statement made by Drusus' chief opponent, the consul Philippus, that he needed a 'consilium' other than'illo senatu'.This of coursepresupposesthat the senatewas at the time (Septembergr) still on Drusus'side.'That senate'is simply pejorative:from Philippus' standpoint it had ceasedto act in the public interest.'o There is a parallel to, or reminiscenceof, this complaint in (non that which Livy (ii. 57. d attributes to Ap. Claudius, dor.495: consulem senatui sed senatum consuli deesse'.Griffin's notion that Philippus is implying that he intended to constitutean equestrianantisenate,and that an abortive plan of Drusus' adversaryhas been made the basisfor a false account of Drusus' law, seemsto me sheerfantasy. Thus Drusus sought to do what Sulla actually did, restore the senatorialmonopoly-of the courts. And even if Drusus proposedäixed courts, there could be no question of Plutarch mixing up Gracchus' proposalswith his, or for that matter with Caepio's;he never had any occasionto write of the activity of Caepio and Drusus,37and even if the presumably rather detailed source or sourceswhich he used for Gracchus made any comparison between his judiciary proposals and thosewhich were made later, that would have made plain to him what Gracchusactually did. There is of coursea clear analogy between the enlargement of the senate which the Periocheof Livy ascribes to Gracchus and that which Drusus proposed and Sulla effected; but nothing in the habits of its writer suggeststhat he would have read on ea re quaeri. Quo plebiscito decreta est consuli quaestio Cn. Caepioni; profectus in exsilium Tubulus statim nec respondere ausus; erat enim res aperta.'Tubulus was long remembered as a prime scoundrel (MRR i. 475). The incident shows that whatever procedure the XII Tables had prescribed had fallen into desuetude; cf ch. r n. r9. 3s GC rz5-7. 16 Cic. de orat. ili. z. Philippus said in a rozlio: 'videndum sibi essealiud consilium [a council that behaved differently', so too in Val. Max. vi. z. e; 'alio senatu']; illo senatu se rem publicam gererenon posse'.For the usageof ille'see OLD s.v.4 c. Cl also Quint..Izrt. Or. xi. r.37. 3t He names Drusus only in Calo Minor z.
2ro
RrcH'rstN THE REPUBLTC JUDtCTARY
to bookslxxi and lxxxix and misconstruedGracchus' plans in the light of what he found there. Livy himself cannot have been in error (see below). We cannot explain away the testimony of Plutarch and the Perioche by confusionwith subsequentlegislation,which, if mentioned at all in their sources,would have been mentioned only by way of contrast with the Gracchan scheme. IV
The conflicts of evidence on the judiciary measures of Gracchus, Caepio, and Drusus make it worth while to turn to the evidenceon the lex Aurelia,as similar discrepanciesoccur, though the truth is known beyond question. Scholiastson Cicero testify that the iudicia were equally shared by senators,Equites, and tribuniaerarii;38two allusions in Cicero's letters confirm this.3e However, Cicero treats the tribuni aerarüas Equites and even as 'principes equestrisordinis',4o and can therefore say that the courts were now shared between senatorsand Equites.ar This is only comprehensibleif the panel of Equites proper consistedof past and present holders of the public horse, while the tribuni aerarii were also Equites in the looser senseof possessingthe equestrian property qualification. We can only conjecture why the panels were constituted in this way. Cicero had remarked in 7o that the corruption imputed to the senatorial iudiceshad created a demand for the appointment of censorswho would be able to purify the courts by removing the unworthy from the senateand thereby from the album iudicum(Diu. Caec.B). It was reasonablefor Cotta in proposing his reform to have provided that the new equestrianjurors should likewise be subject to censorialscrutiny. The enrolment of equites publicowas equo a matter for the censors,and we may readily assumethat they were also responsiblefor designating the tribuniaerarii;it had once been their 3E Ascon. r7 C. etc.; cf. Schol. Bobb. 94 St.: 3oo from each category (cf. Cic. Faz. viii.8.5; Pliny, "MlI xxxiii. 3r). 3 e A u . i . 1 6 .g , Qt. Jr. ü. 4. 6. ao Font. 4r, Rab. Post.14; cf. Clucnt.12r, r30, Flacc.4, 96, Planc.4r. Pompey'sregulation of55 thatiudices of all three orders should be selected 'amplissimo censu' (Ascon. r7 C.) merely means they were to be among the richest of tliose possessedof the formal qualifications (which for all comprised a minimum of 4oo,ooo HS). Schol. Bobb. gr St., perhaps derived from Cicero, says that a iudex might disqualify himself by losing 3oo,ooo or 4oo,ooo HS; naturally this does not imply that he is contemplating the loss of a man's entire fortuner and therefore that 3oo,ooo was the minimum required for tr. aer. Caesar eliminated them (Suet. Caes.4r; Dio xliii. e5), but apparently retained the minimum censusqualification of4oo,ooo (Cic. Phil. i. zo). Augustus' creation of a fourth decury of men with only zoo,ooo,entitled to judge only'de levioribus summis' (n. r ro), is ofcourse not evidencethat the tr. aer.had once formed an intermediate grade, esp. as their competence was not restricted. Cicero's testimony is in any event decisive against conjectural combinations of this kind. 4r Cluenl.r3o. So too he ignores 'plebeian' iudicesunder the lex Plautia (n. z7).
JUDICIARR Y I G H ' I 'lSN ' I ' H FRI T I P U B L I C
2rr
function to pay the legionaries,and that might well have meant that they were not only drawn from thosewhoseproperty furnished security in caseof their embezzlementof public funds in their care, but that they could be cut off from the list by censorsfor misconduct.42Their office had become a sinecure,just as the equitesequopublicowere no longer required to serve in the cavalry, but in the one caseas in the other the censorscould have retained the right to award or withhold a title of socialdistinction which raised them above others with the same property qualification. Thus two thirds of the new albumwere in some senseEquites. Velleius says that judicial rights were shared between senators and Equites 'aequaliter' (ii. 3o), which we may perhaps render as 'fairly', though in the absenceof other evidence 'equally' would be more natural. The preponderanceof Equites in the broad senseexplains why Plutarch (Pomp.zz) and the Periocheof Livy xcii write of transferenceof the courts to them. We can similarly account for a misconceptionof Gracchus'judiciary law. True, Velleius expressly contraststhe compromiseof 7o with the Gracchan systemof purely equestriancourts and the Sullan of purely senatorial (loc. cit., cf. ii. 6. 3), presumably becausehe is thinking of the exclusivecontrol of political courts by Equites in the Gracchan system. It is clear that but for the survival of commentariesby the diligent Asconiusand of the letters of Cicero the content of the lex Aurelia would be as disputable as Gracchus'judiciary legislation, for which we have no evidencebetter in kind than Velleius and the Periochae of Livy. None should doubt that Livy, writing when there was a mixed album,was perfectly well aware of the terms of the lex Aurelia,and that the error in the Perioche is one of many that must be attributed to his miserable epitomator.a3 It seemsto me no lesscertain that if we had Livy's account of eventsfrom the Gracchi to Sulla, though it might fail to bring to light those 'clandestine,private maneuvers'which, according to Gruenaa,are the'genuine stuffof politics',and though it might reflect the bias of his sourcesin analysisof the motives and intentions of rival politicians, we should not lack accurateinformation on overt facts known to all contemporary observersof the political scene.The period was perfectly familiar to historically minded Romans in the first a2 C. Nicolet, Tributum,r976,46 ff., also for the possibility that they collected the tributum(not levied since I67) and had to advance the sums due to the treasury. Of course senatorstoo were liable to be removed by the censors.(The distinction drawn in a Sullan law between membersof the senate and those with a right 'in senatu sententiam dicerc' (Cluent. r48) seemsto imply that Sulla had assumed that there would be regular censorial lectionesthrough which ex-quaestors embraced in the latter category would normally become full senators.) a3 Many scholars have h"eli that the Periochäederived from an earlier and fuller epitome of Livy: Kroll disagreed (rRExiii. 824 ff., with bibliography). a a G r u e n , 1 9 6 8 ,c h . r .
212
JUDtCIARY RtcHl'S tN
't'HE, Rl:pUBLtC
century sc. Hence Cicero can casually refer, for example, to such incidentsas Pennus'law of r26, the lex Thoria,and the prosecutions under the lex Mamilia, without giving any explicit account of them:as he could take it for granted that his audience or readers knew the circumstances.What he saysin the last instancewould be as problematic to us as the other two allusionsbut that Sallust'sBellumlugurthinum was preservedas a masterpieceof Latin prose writing. That work in itself shows the wealth of material deriving from contemporary narrativesand speechesthat was available to a writer three generations later. Exactly what sourceswere used by Livy or Sallust, or by other derivative writers such as Claudius Quadrigarius, Valerius Antias, or Aelius Tubero, whom Livy might have followed, it is impossibleto tell. We can name somewriters of contemporary history in the period, such as Cn. Gellius, L. Coelius Antipater, SemproniusAsellio, C. Fannius, and P. Rutilius Rufus, but so little is known of the scopeof theirworks, and that from a few chance allusionsor citations, that we cannot even be sure that there were no other sourceslost in total oblivion. The memoirs of Scaurus (cos. lr5) were available to Cicero and are probably cited later; Plutarch, or his sources,could cite the memoirs of Catulus (cos.toz).46Numerous speechesfrom the secondcentury were extant, including some published by Tiberius and Gaius Gracchus, of which the latter evoked Cicero's strong admiration.aT They have probably left some traces even in our meagre tradition.as Livy certainly used speeches,Cato's in particular, and it is extremely unlikely, given his rhetorical training, that he was not as familiar with those of Gaius Gracchus, whom Cicero had rated so highly, as with thoseof Cato; in fact, we may infer from Perioche lix that he drew on Gaius' speg:h for the rogatioPapiria ( r 3 r oc), which was long extant in antiquity.4e It is true that, whereashä neededa book for r.B years in his third decade,and for just over 2 years for his narrative oi^events from zoo to 168,and no lessthan rB booksfor the period from gr to 79 (which is alsopoorly documentedin our extant sources),r3 sufficedfor the yearsfrom r33 to gz. It was not a time of great wars, on which he a.s Dt o5r. üi. 47, Brut. rg6, tz7 f. "o Cl Perer, a1 Brut. ro3, rz5 HRRI. subnominibus. f. a8 Malcovati, ORF2, no.48, 16-zo. She reasonably "rJ.,-.ä that Gracchan speeches are r e f l e c t e di n s o m e p a s s a g eosf P l u t a r c h 1 T i . G r . g , 1 5 .C . G r . r . 3 . B ) a n d A p p i a n t i , t r , 2 2 ) . *' xxxviii. 54. r r, xxxix. 4z f., Per. xli, xlix (Cato's speeches,which may also have been used where this is not stated,e.g. in xxxvii. 57; there is a puzzie about the ref.re.ce in Per.xli ro Cato's speech on the lex voconia,which belongs to 169 and is not menrioned by Livy in xliii, where it b e l o n g sp; e r h a p s t h e r e w a s a f o r w a r d a l l u s i o n t o i t i n o n e o f t h e g a p s i n x l i . t 8 - 2 r , c o n j e c t u r a l l y i n connection with the undated lex Furia, which it strengthened.) cf. per. xlix (Galba) lix (e. Metellus), lxx, where Livy evidently relied on a statement of Cicero for the trial of Maniui Aquillius in default of other evidence (GC r r6).
J U D T C I A R YR t c H l ' S t N
'rHE
RDPUBLIC
2r3
loved to expatiate.But within this period he could still write at length on major internal commotions.Tiberius Gracchus'tribunate occupied virtually the whole of book lviii (apart from some material on the Sicilian slave war), and the activities of Gaius must have consumed most of books lx and lxi, which ran from rz6 to r2o Bc. It is our misfortune that both Appian and Plutarch have not chosento tell us as much of the transactionsof r2g-r22 as of r33; both must once have been amply recorded. Our information on the turbulent year of Saturninus' second tribunate, to which Livy devoted a whole book (lxix), is just as scanty. The period from the Gracchi to Sulla is therefore not one in which we should expect to find different 'traditions' about public events,one of which can be regarded as authentic, while others can be rejected as fictions devoid of all foundation; the discrepanciesin our evidencemust rather be explained by the rhetoric, bias, and inexactitude of many of Cicero'sallusions,and by the carelessness characteristicof epitomizers, which we often find in the secondary accounts of events in the 5os. Here their errors can generally be exposed by collation with the testimony of Cicero: it is this alone, for instance,that proves that those late narratives are right which credit Caesarin 59 with two agrarian laws, and not with only one; if it were lost, Ockham's razor would doubtlesshave been confidently applied.so It is never sufficientsimply to dismissone version of eventsand to prefer another, without showing how the error of the former can be explained. No sourceof error is so common as the undue brevity and looseness of hasty epitomizers.The lexAureliagave the Equites preponderancein the courts: it was then easy to say that it transferredjurisdiction to them. The tribuniaerarüwere Equites in a wide sense(n.4o): it was natural not to differentiate them from thosewho were formally entitled to the appellation. Even if Asconius were a generally unreliable authority, and even if his testimony were not confirmed by Cicero, it would have been right to believe that they formed one third of the albumiudicutn,simply becauseit would have been impossibleto seehow their inclusion could have been invented, and perfectly comprehensible that it should have been ignored. The more detailed our testimony is, the more it is likely to preserve (perhaps in a confused and inaccurate form) some elementsfrom the earlier and fuller evidence, which rival versionshave omitted, or obscured in imprecisely general phrasing.So too in regard to Gaius Gracchus'legislationon the courts, ifhe did not excludesenatorsbut gave Equitesa shareor preponderance,togetherwith an actual monopoly in the court that was of most 50 Cl Brunt, CQ r98o 4 7 r f f . , e s p .4 9 2 .
t N ' t ' H l :R r , p u B t . t ( : J U D t C t A R YR l C H ' r ' S
J U D T C T A RR Y I C H ' r Sr N ' r ' H t :R t s P U B L I C
political importance,epitomesand casualallusionscould easilycredit him with transferringthe courts to the Equites;on the other hand, the contradictory statementmade by Plutarch, which must be right if it has the backing of Livy, is lesseasyto explain except on the basisthat it is true. In fact only one other explanation merits seriousconsideration.It is the theory adopted by many scholars, including Stockton, that Plutarch and (probably) Livy recorded an initial proposalof Gracchus which he eventually abandoned. Some discovered an analogy by imputing to him a change of plan for the extension of the franchise: Stockton himself has refuted this, and I shall waste no words on it.51 Others sought support for the theory in what we are told of his enactment (perhaps part of some more general measure) 'ne quis iudicio circumveniretur', which prescribed penalties for senators alone.s2They supposedthat this expresslyrelatäd to the acceptanceof bribes by iudices,and found it inexplicable that only senatofial iudices were liable, not only if senatorswere excluded from the courts, but also if Equites were even eligible. Hence they dated it to a time when Gracchus did not intend to touch the senatorial monopoly, and conjectured that the Periocheof Livy, rather than Plutarch, has preserved the truth, and that at one stage he designed simply to enlarge the senateand leave senatorsin possession of the courts. But it has been shown that, though the terms of the enactment were so wide and vague that they could cover a corrupt vote for condemnation, that was not its true purpose: it was devised to limit the undue exerciseof power by senators,making it a criminal offence for them to procure a man's unjust condemnation by any wrongful means,of which bribery was only one.53 Most advocatesof the two-stagetheory dated the law or laws to r22 and the abortiveplan to re3. In myjudgement it is far more likely that in order to consolidatehis power Gracchus sought to win equestrian lupport in his first tribunate, both by his judiciary legislation and by his regulation of the Asian tax system.Moreover, whether or not the bill that passedby only one tribal vote be identified with a judiciary law (n. B), the confermentofjudication on the Equites can have had so little appeal to the massesthat it would have been safe in tzz for
Drususto have exercisedhis veto.5aIndeed the influenceof Gracchus waned in rzz, and in the early part of that year, when it was perhaps still strong,he had to spendseventydays organizingthe settlementof Iunonia (Plut. r r. r ). All this is not decisiveagainsta date very early in law at least must be placed the second tribunate, and the repetundae early in either I23 or I22, since it envisagesthat a panel must be enrolled for the current year, in which charges under the new procedure may still be brought;ss Stockton, who favours r2g) can hardly be right in dating it to the autumn. Holding with more entire confidence than the evidence permits that the judiciary legislation belongsto early rz3 (which I still think most probable), I previously argued that there was no time for a change of plan. However, there is no force in this contention. Plutarch and Livy could have recorded a schemethat he contemplated but abandoned after a week or two. Nor can we make anything of the mere fact that both refer to a law (lex, vdp.os),not a rogatio.In the very same context Plutarch writes of the 'law' for enfranchising Latins, which never passed,and the author of (book iii) can use the term legesof agrarian bills which the Periochae were not enacted. However, Plutarch makes clear his belief that the law as he described it was actually passed.He adds that Gracchus himself selectedthe new equestrian iudices.This is incompatible with the mode by which iudicesare to be empanelled in the tabulaBembina and under later legislation.s6Probably Gracchus'enemiesmade out that they were his creatures,and Plutarch has here mistaken hostile propaganda for truth. Whether Gracchus' supposedchange of plan evincesgreater moderation or less,we might expect that some explicit hint of it would be
2t4
51 Stockton t4g-g,237-9. 52 Cic. Cluenr.r 15 f.; cf. U. Ewins, J.RS 196o,94 ff., at 99. Cluent. r48, r57; Ewins, art. cit.; cf Stockton, r979, rzz-6. SiUa iricoip"orated this -53 Gracchan law in his lex de sicarüs(Cluent.r 5r). It may be that it had been part not oftie Gracchan law'ne de capite . . .' (n. 88 with text) but ofan otherwise unattesredGiacchan law de sicariis;as shown in sectionvr, the law 'ne de capite . . .' necessitatedthe creation of a quaestio de sicarüsif it did not already exist; and if it did, Gracchus may have wished to amend its terms of refbrence. The absenceofany expresstestimony to such a Gracchan law is certainly no proofthat there was none (cf. pp. z16 ft).
2r5
sa It may be objected that, according to Cicero ap. Ascon.78 C., the populace demanded the Aurelian law and the Roscian; but his claim in regard to the Roscian is highly dubious (ch.6 n. r55); in any case the notorious corruption ofsenatorial iudicesin the 7os, which could affect defendants of all degrees charged with murder, peculation, or forgery, might account for a universafdemand for reform (cf. I Verr.44). Stockton, ry79, zz6 ff., reviews other chronological arguments on the chronology of Gracchan laws, all in my view indecisive.Perhaps the order of the notices in Per. Livy lx has some weight, but we cannot be sure that it follows Livy's. In my view Appian narrates events to explain the rise and lall ofGracchus without exact attention to chronology; he even fails to note that he was killed in the year after his secondtribunate; cf. ch. g n.6r. 55 I t is not very material that the praetorian provinces for the year had already been allocated (vv. rz, r6), sincethat might have been done at the end ofthe preceding year, but significant that the law envisagesprosecutionsin the very year ofits enactment. It seemsto me that the repeated mention of r Sept. (vv. 7, g) implies that a charge under the law would not be heard in the year in which it was brought unlesspreferred before that terminus, even though the lacuna in w. 6 f., makes it impossibleto determine what happened if it were preferred later (cL W. W. Buckland, |JRS rg7, 4z). 36 Cic. Cluent.rzr: 'praetores urbani ... iurati debent optimum quemque in selectosiudices rcft'rre'. In 5z Pompey was apparently empowered to nominate for a speciala/äan (Ascon. 38 C.), but this was more appropriate for a consul than lor a tribune.
er6
JUDICIARY RIGH'IS IN THE REPUBLIC
. f u D r c l t A R YR T G H T St N ' l ' H E R E P U B L T C
found in some of our sources,and more particularly in Plutarch, who brings out how Tiberius Gracchus was inflamed by opposition to his first agrarian bill and made it more severe,and how Gaius abandoned his persecution of octavius.sT stockton replies that it is no less remarkable that Plutarch fails to mention that he altogether excluded senatorsfrom the repetundae court. That is not so. Plutarch was not an historian but a biographer. His primary concern was nor with the actions of any of his heroesfor their intrinsic importance but with the way in which they illustrated the man's personality, his virtues, and faults (e.g. Alex. r). Gracchus' legislativeprogramme interestshim becauseit showsGracchus'gratifying the people and overthrowing the senate'(5. r) and therebyobtaining almostmonarchicpower (6. i). If he was right that Gracchussubvertedsenatorialdominance by abolishing their monopoly of jurisdiction, his special regulation of the repetundae^court was a detail that did not essentiallyaffect Plutarch's picture.ss But it would have been very differerri if Gru..hus had changed his mind, becausehe was either exacerbatedby resistanceor ready to defer to objections.It is then unlikely that Pluiarch found in his source any evidence that Gracchus ever propounded a judiciary reform other than that which he brought into operation.
r. de sicariisel aeneficis nummaria z. defalsis, teslamentaria, g. de repetundis 4. de maieslate 5. de ambitu 6. depeculatu 7. de ai The last was certainly created after Sulla under Lutatian and Plautian laws; the others are known to have operated under Cornelian laws, ofwhich this is presumed.The Cornelian statutesde except for peculatus, sicariis. . . and defakis . . . remained the basisof the relevant criminal law throughout the Principate; the other statuteswere supersededby (59 sc), demaiestate, deambitu,depeculatu,and de Julian laws derepetundis ui, which likewise remained in force thereafter;for our purpose it does not matter which of them were the work of Caesar or of Augustus.6o The imperial jurist Pomponius,having recordedthe institution of the 'after urban and peregrinepraetorships(Deg.i. z. z. 27 f .), observesthat the conquest of Sardinia, then of Sicily, also of Spain and next of Narbonensis',an enumeration of the creation of new provinceswhich is chronologically disordered and omits the pre-Sullan annexation of Achaea, Macedonia, Africa, and Asia, additional praetors were ap'quaestionespublicas pointed to govern them, and that then Sulla constituit, veluti de falso,de parricidio, de sicariis,et praetoresquattuor adiecit'; Caesar was to add two more, and there was thus a total of twelve (ibid. 3z). Pomponius'countof praetorsis inaccurate:after I79 there were always six, ind in Cicero'stime only eight;61of coursein the Sullan system praetors stayed at Rome in their year of office to administer justice, and went out thereafter to provinces as promagistrates. Nor was there any permanent court deparricidio;trials on this chargeseemto have come beforethe court desicariis(seebelow), though the offencewas regulated not by the Cornelian law but by a Pompeian law of unknown authorship and date (Drg. xlviii. 9). Pomponius' testimony is thus so inaccurate that we could not properly infer from it 'constituit' unambiguously that Sulla created (even if that were what he specifically mentions, or any others. means) the three quaestiones The fact that a Sullan statute defined the law to be applied by a permanent court to a particular crime or group of crimes is plainly no proof that any such court was first set up by Sulla. W_e,tnozothis to be We also have üntrue of the courts de repetundisand de maiestate.62
v It will be seen that the two-stage theory is not capable of decisive refutation. But I do not think that scholarsin generalwould have been disposedto acceptit, had they not been unduly influenced not only by the apparent testimony of some sourcesthat Gracchus simply transferred the iudiciato the Equites, but also by the belief that there were no other judicial functions besidesservicein the repetundae court, from which senatorswere admittedly excluded, to which his legislation could have applied. To this contention I now turn. So far as crimes are concerned,it is said that no other permanent quaestiones yet existed.It might be added that it would have been futile for Gracchus to have prescribed the composition of any future court constitutedad hoc,sinceits composition could always be determined by the very measureby which it was constituted. In the post-sullansystempermanentcriminal courtsexistedat least:5e s1 T;. Cr. to. C. Gr. a,. tl fl.. law-on repetuidae has little interest for most narrative sources in its own right, as .. d i s r i n g u i s h e df r o m t h e c o m p o s i t i o no f t h e c o u r t ( c f . n . 6 4 a n d t e x t ) . se GCzlgff.,assemblethechieftexts. Iignorethenovel lexCorneliadeiniuriis,astheprocess was certainly civil (Izst. iv. 4. r; Gruen, r968, 263, is apparently unaware that poern and iudicium are terms ofcivil as well as ofcriminal process),and we do not know that thire was a quaesho (Kunkel, RE xxiv. 742). Vis: see Lintott, r968, ch. vrrr.
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60 Drg. *lriii. 4. 6-8, 9-r r, I3. 6r Cic. Sest. 87, post red.sen.zz f. for 57 ac. 62 'l'he trial of Norbanus in r. 95 under the la( Appuleiamaiestatisproves that that law created a p ( ' r m a n e n tc o u r t ( / a o r a ! .ü . r o 7 , r 9 7 f . ; c f . G C g I t r ) .
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allusionsto pre-sullan trials by quaestiones for murder, ambilus,and peculatus (seebelow). some or all of thesehave been construed to refer to adhoccourtssetup on specialoccasions. A passage in cicero seemsto draw a distinction between ad hocand permanent courts: 'cognosce alias quaestiones,[i] auri rolosani Iro4], coniurationisIugurihinae [sc. under the lex Mamilia of r ro]; repete superiora:Tubuli dä pecunia capta ob rem iudicandam U+zl; posteriora; de incestu rogatione Peducaea Ittg]; [ii] tum haec cotidiana: sicae venena peJulutus, testamentorumetiamnoualegequaestiones';elsewheretoo he showsthat sulla establisheda new permanent court for forgery.63The 'cotidiana' are clearly crimes repressedby permanent courts, but among them Cicero differentiatesbetween forgery, which was a novelty, anä those which by implication were the subject of earlier legislation. so there was nothing fundamentally new in sulla's law 'de sicariis et veneficis' or in the post-sullan repressionof peculatus (a sullan law is not actually attested); and there is no evidence that he first created anv criminal court, except for forgery. In fact no historical narrative ror itre period mentionshis constitutionof any courts at all. Velleius (ii. 3z) merely saysthat he transferredjudiciary functions to 'the senate', an inaccurate term to represent 'the senators'. Appian does no more than mention that he adlectednew senators,without making it clear that he doubled the size of the senatewith the aim, as Tacitus alone remarks (Ann. xi. zz), of enabling it to provide sufficient iudices.There is of course equally no ancient authority for the myth widespread in modern works that he performed an outstanding serviceby iemodelling the criminal law in substance;in fact, his laws, except on forgery, may have been tralatician apart from points of detail. This silenceon the part of narratiues,urcesis typical. They were not interestedin the establishmentof new courts, or in the designation of certain acts as criminal, or in subsequentmodificationsof criminal law. Just as they are silent on almost every statute that reformed the civil law in substanceor procedure, so too they do not mention the lex calpurniaderelpetundis, nor any later legislation on the offenceincluding the lex lulia,o* except in so far as it changed the composition of thä courts, nor the lex Appuleiade.maiestate (n.62), nor the lex Pompeiade parricidäs,nor the statute undär which men were prosecutedfor ämbitus in the pre-sullan period, nor any statute on peculatus, nor the Lutatian
(Phil.i. and Plautian laws on urs,nor Caesar'slaws on ul'sand maieslas zr). We can learn much of thoselaws which were in force in Cicero's in which he was pleading under their own day, chiefly from speeches terms, and much of those still operative in the Principate from the commentsofjurists on their interpretationand later extension;statutes which had become obsoletein Cicero's lifetime are known, if at all, from a few chance literary allusions,5sor from the equally fortuitous survival of epigraphic fragments. It is therefore illegitimate to argue , silentiothat at any particular date no law was in force by which a permanent quaestilhad been constituted, becausewe do not hapPen to know of it, or to assumethat Sulla was the first to establishsuch courts, if they are not clearly attested before his dictatorship. Cicero recalled that Servilius Glaucia used to warn the people to be beforewhich any citizen, and wary of any bill that set up a new quaestio not simply ex-magistrates,might be indicted for offencescommitted after its enactment; it is evident that at least proposalsof this kind had becomefamiliar before the end of the secondäet iury.66 With no police or public prosecutor,the state had to rely on delatorsto bring crimes to light and to encourage them with rewards. A class of professional accusersseemsto have come into existencebefore Bo, who were active inter alia in preferring charges of murder; some time earlier it had become ,,..ättuty to-penalLe false accusationsby a lex Remmia,61which was perhapsthe work of a Remmius attestedas tribune in 9I,68 but rvhich is unlikely to have been enacted until the abusesof the practice of delation had becomeapparent over a period of someyears. It is only sheer prejudice that obliges somescholarsto put a wholly unnatural construction on a passagein which Cicero indicates that predated Gracchus. He says that C. several permanent quaestiones Carbo (cos.r2o, and born thereforec. 165) was distinguishedas an 'plura fieri iudicia coeperunt; nam et advocate at a time when quaestionesperpetuae hoc adulescente constitutae sunt, quae ante nullae fuerunt; L. enim Piso tr. pl. legem primum de pecuniis repetundistulit'(in r49). Gruen holds that this'in context surely perpetuae dated to I49, not that meansthat the institution of quaestiones were constituted about that time'.öv But the Calpurseveralquaestiones and it seemsto me the plain nian law created only one such quaestio, senseof the text that for Cicero it was the precedentfor othersset up in
63 denat. deor,üi. 'cornelia testamentaria,nummaria, ceteraecomplures 74; cf. ll verr. i. roB: (leges)in quibus non ius aliquod novum populo constituitur, sedsancitur ut, quod sempermalum facinus fuerit, eius quaestio ad populum pertineat ex certo tempore', from whieh we may deduce that in respectofat least some ofthe offenceslisted in Sulla's forgery law an injured party could previously have brought a private action; cf. Kunkel, tg62,64. "'Yetthe narrativesofdomesticeventsin59arefullerthanforanyyearbetweenr3zandTg. Dio liv. r6 also neglectsthe enactment of Augustus' adultery law.
65 Fullest for Glaucia's repetundae law (GC roof.), whose provisions, continued in later legislation, Cicero cites in three forensic speeches. 66 Rab. Post.rt. 67 Cic. ,Rosr.Amer. 55-7; cf. also 8, go; Dig. xlviii. 16. r. z; Kunkel, 1962, n. 343. Dio, fr. roo names a delator notorious in 88. 6E De uir. ill.66. z (not in MAR). 6e Brutusro6; Gruen, 1968, 87 n.44, is followed by Griffin.
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the next two decades.If he had been thinking only of trials ('iudicia' could be so translated) in the repetundae court, he would simply have omitted the words 'nam et . . . fuerunt'. what other courts.o.rld hu'ue been established? It is most natural to think of quaestiones de sicariisand,deuenenis, which took cognizance not. only or primarily of murder but of carrying weapons and procuring poisons with evil intent, though it wili bä convenient to refer to them as murder courts.to Murdei of close kin was parricide and under the lex Pompeiaknown to us by name only from imperial jurists, it carried a peculiarly barbarous penalty; cicerä te^llsthat a few yearsbeforehis defenceof sextus Rosciusin Bo a charge of parricide brought by a delatolhad been tried by a jury, probablyln a court de sicarüsor de uenefcirs.Tl His pre-Sullan träatiie'de inueniione p-rovidesan example of delation for both poisoning and parricide, and alludesto a casein which there was an attempt to bar a öirril action for iniuria on the footing that a decision would be prejudicial to a future trial 'inter sicarios'. The roughly contemporary work addressedad Herenniumoffers specimensof oratorical pleas for men accusedbefore iudicesof parricide or murder. All thesecaseswere pre-Sullan. when Roscius was charged with parricide, but before the court 'inter sicarios', cicero says that that court was meeting in Bo after a 'long interval'; however, the president M. Fannius, *lio was then praetor, had actually presided in some previous year, presumably as iedilicius (nn. 74-6); the interval need be no longer thän that of ihe civil war (83*Bz) plus a subsequentperiod in which Sulla might have dealt summarily with criminals as dictator. cicero refers tö the countless professionalinformers who were accustomed to bring charges ,inter sicarioset de veneficiis'evidently before this 'interval'.72 Sullais statute (which cicero never mentions in his defence of Roscius) need have done no more than consolidateand elaborate the previous law; though it em-bracedboth types of offencesunder the häading 'de sicariis et veneficis', sulla did not necessarilyenvisage that one court would suffice; in 66 two courts inter sicariosand one de aenefuis were sitting simultaneously.73 70 Kunkel, 196z,64 ff.; cf. J. D. Ctoua, S{, 1969, 16o ff. " Lex Ponpeia;Drg. xlviii. g. I do not seewhy it may not be pre-sullan. The court which heard . charges before sulla (ad Hcr. iv. 47, de im. ü. 58f., Rosc.Amer.'64 f was probably, as after Sulla ) (Rosc.Amcr._rt with r8), the quaestiointer sicariosor deuenmri.This may have been piescribed either by the lex Pompdn itself or by pre-Sullan and Sullan legislation on the other 'murder' charges, which might have enacted that penalty should be that laid down by the lex Pompeiain the -the "ases to which that law applied. Similarly the lex lulia de repetundis may have incorporated heavier pecuniary penalties when the offences proved would älso have bien indictabü under e.g. the thln Su]l,an^faw.dq maicstak(cf. Cic. Prs.5o; A. N. Sherwin-White, pB.9rRrg49, reff.). ' ' C i c . d er z u . i i . c 8 - 6 o . R o s c . A m errr., 2 8 , 6 4 f . , 9 o ( c f . n . 6 7 ) , a d H e i . i i . + l , S i c f . n n . 6 7 , 7 5 . 13 Cic. Clucn. tl7 f.
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servedas In the 9os C. Claudius Pulcher (cos.gz) had, as aedilicius, 'iudex q[uaesti,-,nis] veneficis'.So too in the post-Sullanperiod there and their were often too few praetors to presideover all the quaestionzs, The writer ad or quaesitor.Ta place was supplied by a iudexquaestionis in murder cases,among them L. Herenniumrefers to such quaesitores Cassius (cos. rz7), who was long remembered for asking in that capacity icui bono fuissetperire eum de cuius morte quaeritur'.75It is most probable that he exercisedthe function as praetor or after his aedileship,i.e. before rz3; in the late Republic the presidentsof standing courts, if not praetors, were aedilicü,like C. Claudius.T6 'quaestioneminter sicarios Finally, the praetor Hostilius Tubulus it likely that he wasin charge exercuit'in r4z (".g+).Gruen considers quaestio quaestio, was set up in I38 to try since such a of an extraordinary publicans and their agents for murder, and he supposesthat to have been unnecessary,if a standing court were already in being. (He also thinks, contrary to the evidence, that the permanent court is not known to have existedbeforeSulla.)77His argument has no force. In 52, although permanent courts for uis and ambitusalready existed, Pompey promoted new legislation for the trial of offenders, which aggravated the penalties, speededthe procedure, and provided for a specialalbumof iudicesand for the election of a consular to presideover tire court to hear the chargesarising from Clodius'murdär.78 In l38 'men the publicans of Sila were alleged to have procured the death of 'the of note', and given the probable influence of the defendantsand magnitude and atrocity' of the crime imputed to them, the consuls themselveswere commissionedto take cognizanceof the matter. The establishmentof a specialcourt for this affair is thereforeno ground for denying that there was a regular court to try what Cicero calls the 'daily' crimes of low-classsicarii. 'daily' type (n.6r) which Peculation was another offence of the could be committed by men of relatively lo* i"rrk,?' and for which 1a ILS president of the court might be'iudex 45.The lex Comeliade sicariisenvisaged that the 'quaesitor' (l Vcrr. zg, Font. 2r, Cluent. quaestionis'(Coll. i. r. 3; Drg. xlviii. 8. r . r ). The term 55, 74, Bg) is in my view used to denote the president, whether a praetor or such a iudcx. Aliter Mommsen, SrR2 ii. 582 ff., whose theory need not be examined here. '5 Ad Her. iv. 47 with Ascon. 45 C. 76 M.Fannius(n.72),aed.probablyinS6(itiRCi.no.35I),C I u. n i u s i n T 4 ( c f . C i c . C l u e n t . T g ) , C. Flaminius in 66, Caesarin 64, C. Octavius in 63 (?), CrassusDives in 59 were all aedilicii,like C. Visellius Yarro (Brut.264), ann.ize.; this can be true of all other suchiudicesrecorded in MRRü. under 86, 7o, 66, 62. Consulars and praetorians are attested only for extraordinary courts set up b y t h e l a w s o f P e d u c a e u s( r l 3 ) , M a m i l i u s ( r I o ) , a n d P o m p e y ( 5 2 ) . 77 Gruen,r968,z6r,onCic.Brut.B5-S.Itisanothermatterthattherewasaspecialquacstioto t r v ' l ' u b u l u s( n . 3 4 ) . tt Ar..,n. ':3; Plur. CatoMinor 38 f. C.; App. ii. 48; Tac. Dial. 38. z; cf. Cic. Mil. | 5, Att. xüi. ' 11 ) . I 7 ' r ' . g . ( l i t . M u r . q , t ; P l u t . C a l oM i n o r 1 6 . 3 ; L i v y x x x . 30. 7.
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there was a pre-Sullanpermanentcourt. Naturally we seldomhear of prosecutionsexcept when a man of high station was accused,as L. Lucullus was probably accusedin r oz and Pompey in 86. Gruen concedesthat a permanentcourt probably existedby roz, but argues that it must have been constituted after ro4, when there was an extraordinary investigationinto the embezzlementof the Tolosan gold (". 6S). But the eminenceof the principal defendanton that occasion, Q. Servilius Caepio (cos. ro6), and the complexity of the affair, in which a great number of personswere probably implicated, might well have made it seemappropriate to set up a specialtribunal with its own procedure and an exclusivelyequestrianjury, unlike that of a permanent court already in existence.uu The existenceof somepermanent criminal courts which would have been senatorialas early as 133 would be certified, if we were to accept Plutarch's story that when seeking re-election Tiberius Gracchüs propounded a new legislativeprogramme (n. zr), including a bill creating a right of appeal to the people from their verdicts, unlesswe suppose that the putative bill merely reinforced the right of such appeal when a citizen was condemned by the magistrate acting by advice of his consilium,perhaps under the authority of a senatorial decree (cf. section VI). Tiberius might also have proposed to make even the sentencesof courts set up by the people appellate, as Antony proposedin 44 \9 provide for appealsfrom sentencesof the courts deui and demaiestate.6r Somescholars,however, take his allegedprogramme to be merely a fictitious retrojection of Gaius' measures:I incline to think this view implausible, on the ground that even if Tiberius was seekingre-election simply for his personal security, he still needed to furnish public reasons for his candidature, and to win additional popular support. VI
Whether or not there is evidence for the existencebefore rz3 of any permanent court except that derepetundis, the question of the establishment of such courts before Sulla needs to be reviewed in the light of Kunkel's reconstructionof pre-Sullan criminal processes. On Mommsen's theory, which became canonical, citizens could be tried by a magistrate for crimes, but they could always appeal to the people against sentencesof death, flogging, and fines over a certain limit; as a result proceedings in the magistrate's court were mere formalities, and the substantive trial took place on appeal, to the 80 Plut. Luc. t, Pomp.4; cf. Gruen, r 968, r 76 f ., 244ff. For the aurumTolosanum seeGC 8o, 85. 81 Cic. Phil. i. er f.
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centuriateassemblyon capital indictments,and to the tribal when the penalty was a heavy fine; no other procedure was known until permanent or ad hoccourts were set up for particular offencesor typesof offence.o'Numerous trials beforethe peopleare in fact recorded,but critics ofMommsen were able to show that in all historic cases,exceptfor the trialsof C. Rabiriusin 63, the peopleactedasa court offirst instance, hearingindictmentsby a magistrate,normally a tribune.s3Moreover, almost all the casesare thoseof political offences.Kunkel supposesthat magistratesacting by the advice of a consilium could exerciseinappellate jurisdiction, e.g. for murder, on prosecutionsbrought by kindred of the victim or by delatorsappearingin the public interest.Ea His complex and plausible argumentscannot be rehearsedhere, but at first sight his conclusionis barred by an insurmountable difficulty. That citizens had a right of appeal against capital convictions in the secondcentury is beyond question. It cannot be believedthat this right was renderedinoperative just becausethe magistrate tried a man with a consilium which he could chooseat his own will and which could share his own bias. Defendantson political chargescould then have been at the mercy of a hostile court. There seems to be no doubt that in practice magistratesdid not venture to hear such charges,which came before the assemblyin the first instance.This was ensurednot only by the ius prouocationis and by the tribunician ius auxilü, which was available only within the city of Rome, but precisely by the competence of tribunes to impeach before the people any magistrate who violated the former right. However, it is another matter to supposethat tribunes would give protection within the city to personsprosecutedfor common crimes, or impeach, or threaten to impeach, magistrateswho would not allow appeal on conviction, when there was no reason to think that he and his consilium would fail, or had failed, to give them a fair hearing. Hence in actual usage non-political crimes could have been dealt with as Kunkel suggests.Indeed it seemsinconceivablethat the cumbrous procedure of the centuriate assembly,with hearings on four days (n. Bz), was the normal mode of bringing common criminals to justice.85Some caseshave been adduced when it was used for such trials, but all have exceptionalfeatureswhich can explain the adoption of an unusual process.s6Good sensesuggeststhat the peasant who 82 stit iii3. 83 Bleicken, RE xxiii. 2444 ff.; cf. endnotes8 f. 75r ff. 8a Kunkel, 196z (cf. my review in Tijdschr. uoor Rechtsgeschiedenis 1964,44o fl., and lucid discussionby Nicholas inJolowicz-Nicholas, ch. r8), ÄE xxiv. 7zr ff.; he strengthened,perhaps without proving, his casethat the magistrate was bound by the majority of his consiliunin Kl. Schr. r974, rrr ff.; no doubt this was the custom. 8s In my view Polyb. vi. 14 relates only to political trials. Cf. ch.6, xI. 86 A. H. M. Jones, Criminal CourtsoJ the RomanRepublicand Principate, rg7z, 5 f., tried to show that ordinary crimes were tried by the people, citing Oros. v. r6. 8; Val. Max. vi. r. 8, but on the
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killed an unfaithful wife, or the lootpad of the city srreetsand rural highways were more summarily trcated. No doubt many culprits who.sgguilt wasflagrant or admitted ('manifesti'or'confessi'jcould be punishedout of hand, but many must have had somedefenceto offer, and they would hardly have renouncedthe right of appeal if that righi had been respected.But in that event the asJemblywould have bJen 'sullan kept in almost continuoussession:casesunder the murder law occ_upied three courts simultaneouslyin 66 (n. Zg). on occasionin the second century the senaie'instituted quaestiones that exercisedinappellate capital jurisdiction.sT This too was possible because,given the kinds of crime to be repressed,public äpinion a-pproved,and the tribunes would not interferä. But it may be thought that these senatorial decreeswere unnecessaryand unintelligiblel if magistrates were regularly repressing such crimes in the oidittury courseofjurisdiction. This difficulty can easily be met: it would havä been reasonablefor the senateto take specialnäte of what was seenas a 'crime wave', and then either (asin r86 and r3o) to direct the consuls to act, th_oughthey did not normally exercisejurisdiction at all, or (as tBf' tBo, and r 79) to free particular praetois from other responsibilil ities for the purpose, However, the establishmentof the permanent court derepetundis may well have suggestedthe desirability ol creating similar "o.r.t, desicarüs d: aenenis by statutes, which would havä provid ed inter alia like 2"1 sulla's.law (n- 74), that in default of a praetoijurisdiction should be vestedin a iudexquaestionisr like c. claudius pulCher, and ensuredthat there.was a^panel of suitably qualified iudicesreadiiy available to the president of the court. There is nothing against this hypothesis,and what we are told about the quaestiones-of Hostilius Tuüulus and L. Cassius(nn. 76 f.) makes in its favour. In r3a the senateactually commissionedthe consulsto try without appeal thosewho had allegedly engagedin a revolutionary cänspiracy with riberius Gracchus. This was ä violation of the rule hiiherto observedthat it was for the people to hear capital chargesof a political character.No tribune had the will or.ou.ug. to interiene, but in rz3 c. Gracchus secured the banishment of ai reast one of ihe consuls concerned,P. Popilius, for his infraction of the rights of citizens. He
also carried a new law 'ne de capite civis Romani iniussu populi iudicaretur'.88 In some degree this law must have been merely declaratory.Gracchuswas re-amrming the principle of the Valerian and Porcian laws (pp.gg, f.) which Popiliuswas properly held to have violated. But the provisions of a Gracchan law cited by Cicero 'ne quis iudicio circumveniretur' (nn. under the rubric 52 f.), which penalizedall thosein the senatorial order who combined to procure by illicit means,for instancebribery, the capital condemnation of a citizen in a iudiciumpublicum,may have been part of the sameenactment.More important, that law provided that any senator, and not merely a magistrate, who voted for the capital condemnation of a citizen contrary to its terms, should himself be liable to a capital charge before the people. Henceforth any member of a consular consiliumexercising capital jurisdiction without the people's sanction would be placing himself at risk. Gracchus' law did not of coursepreclude the constitution of such extraordinary tribunals by statute; courts set up in this way would exist'iussu populi'. It is surely no accident that after I23 we hear nothing of courts created by the senatealone even to try common crimes.8eTo disposeof the seditious,the senatewould now resort, for the first time in r2r, to passing 'the last decree' (ch. r n.25); the magistrates were thus encouraged on their own responsibility to execute agitators or 'conspirators' summarily as enemiesof the state. But it seemsreasonableto supposethat after r23 the senatethought it prudent that there should be a statutory basisfor the inappellate trial that of common criminals. The institution of the permanent quaestiones pre-existedSulla, in so far as they were not already in being in tz3, may be seenas the necessaryresult of Gracchus' law. A theory has recently been advanced that before and after Sulla, and until some unascertainabledate in the Principate, municipal courts could impose capital penalties on citizens. If this be true, after rz3 (if not before) they must have obtained this authority by statute. We know that the municipal jurisdiction of communities in Cisalpina enfranchisedin 49 was regulated by statute, and presumably there had been similar legislation for the communities enfranchisedas a result of the Social war, if not for thoseincorporated earlier. However, even in civil actions the competenceof Cisalpine courts was restricted where the defendantwould incur iffimia, anditis afortiorihard to credit that criminal courts in the Cisalpinecommunescould deprive a citizen of
first incident seeKunkel, rgiz, 47 n. l79; the second was also peculiar: .non enim factum tunc, sed ^a{mrT in quaestionem deductus_est; plusque voluisse peicare nocuit quam non peccasse The sovereign people could be inäuceä to convict when a court "o,rld b. expected to nrgfuilj reJect_thecharge. Both defendants were also of high degree. o'Livy xxxix. 1 4 , r s l c t . s C t l e B a c c h a n a l i b u s , f l n , L i 2 . gr g o6 , nc; Livyxl. 19.9f., rgr),4r.5 . ( r 8 ^ 4p: o i s o n i n g ) ,* 1 . S 7 . 4 ( r 8 o : p o i s o n i n g ) , + S . z ( r 7 9 : p o i s o n i n g i r , ' p e irl.v ü i . 1 . f . V . f . M a x . v r . 3 . 8 , r 5 z : p o i s o n i n g ) ;c f . n . 7 7 . N o d o u b t a s u n d e r - D o m i t i a n l D i o l x v i i . r r . 6 ) u n d i a g n o s e d epidemics were confused with mass poisoning.
225
8 8 G C r 3 , 3 r . N o t e C i c . C a t .i v . r o , S e s l . 6 r ;D i o x x x v i i . r 4 . 5. 8e Diod. xxxvi. r5 tells how probably in ror Saturninus was tried for his life by senatorsfor outraging Mithridates' envoys.Despite SIR ii3. r rz n. 3. I think this inaccurate; cf. Gruen, r968, r68 f. He was acquitted after agitating with the plebs. I think we must assumethat if condemned he could have appealed to the people under Gracchus'law.
zz6
227
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his caput,nor is it likely that they were denied a power which other local courts had retained.eoThe argumentsadducäd for the conrrary view are not probative.el what hasbeensaidseemsto prove that permanentcourtsdesicarüsand deuenefcüs musthaveexistedbeforer z3 or have then beenestablished.Nor need we think that there were no others. charges of ambitusbefore a quaestio are attestedin l r 6, 97 and 92. Gruen himself concedesthat it is reasonableto posit a standing court, though the law under which it was establishedis not recorded.e2Since thJ evidence is so scantv. and preservedby chance,we can aswell date it before r 23 asufte.*u.är. No, should we infer that a quaestio depeculatuwas post-Gracchan becausethe only known pre-sullan trials are of ro4 or later (n. Bo). Not many cases are attested in cicero\ hgyluy, though he speaksof them as 'daily occurrences'(.'' 63): The defendantsmight be, and perhaps generally were,clerksrather than ex-magistrates (". zg).Both Courts--ight .ro.,l the lesshave furnishedtheatresfor carbo's forensicdisplays ip. rtg). In this period andlater the penalty for ambituswas no lönger, is it häa once been, gapital.e3conviction for peculatus resulted ii pec,rniary damages.eaPersonscondemned on either charge might thärefore be among thosewho were excluded by the Gracchan repitundae law from acting aspatronior iudices becausethey had beencondemned,quaestione ioudiciovepuplico'esand wereon that accountnot to be enroiledin the senate.I do not, however,pressthis asconfirmation that there was more than onepermanent courtin r 23, sincewe might alsothink of adhoccourts, nor can we be sure that at this date iudiciumpublicummight not refer to trial by the people. Manifestly the draftsman did noihu,u. in mind personswho had suffered a capital sentence,e.g. for murder! To sum up' one text of cicero, naturally interpreted, showsthat the repetundae court was not the only permanent quaeiüoin existencebefore r 23. There is no objectionto supposingthat similar courtshad beenset up for murder, peculation, and electoral corruption; and the general state of our evidenceis such that absolute corroboration woulä have b-eenwholly fortuitous and indeed unlikely. Moreover, if we accept Kunkel's theory, magistratessitting with a consiliumhad been accustomed to exercisecapital jrrrisdiction over common criminals, and except when this procedure had already been supersededby the
creationof statutorycourtsbeforeI23, the enactmentof Gracchus'law now made the creation of populiiudicaretur nedecapileciuisRomaniiniussu of the jury could the composition Admittedly imperative. such cäurts a new law establishing in each regulated separately been have no was that there to say not entitled are we quaestio, but permanent Aurelia lex like the measure general for any time Gracchus' in äccasion to regulatejudication in criminal cases,and that for that reasonalone Plutirch's account of his judiciary legislationmust be incorrect.
er See endnoter. ? i F I R A i 2 . 1 9 L , e s p .2 0 . r - 9 . Gruen z6of. (with evidence two other speculativecases).The laws against ambilusof ^" .and , 8 j . u l d . r 5 9 { L i v y x l . r g , P e r .x l v i i ) c a n n o t h a v e i e t u p a s t a n d i n g . o u . t ; c f . n . i g . " Polyb. vi. 56. 4 makes this out to be true in his day; more probäbly the penarty was anclenr, . but already obsolete.cf. Mommsen, strafrecht865 ff. capital pänalties""a.. xtt 'iabres (vnr. r, 8 - - r o , z r , 2 3 , r x . 3 ) a l s os e e mt o h a v e b e c o m eo b s o l e t e , ' e" Strafrecht e5 I take ff. theseterms to be probably tautologous (ch. z, App. rv). 76o
VII
'[he
lex Aurelia,however,also concernedcivil judication (n. rzI), and this was a matter of more concern to the Equites than criminal touched senators, judication, except when the charges,llke repetundaa, whom the ludicial authority of Equites might make obsequiousto equestrianäesires.e6Their power and dignity were not much enhinced by the right to sit in judgement on men accusedof common crimes, who would rarely be of their own order, whereas their individual interests might be deeply affected by the settlement of disputes arising from public contracts, by claims to inheritances and bequests,by contractual suits often involving large sums, or by civif and the lossof full actions on delicts, which could entail fines (poenae) civic status (infamia).It would have been at leastgalling if they were compelled to accept the adjudication of senators,and this could have been to their disadvantage,if it was with senatorsthat they were in dispute. Let us again recall the testimony of Polybius, whic! critics of my hypothesishave passedover in silence,that it was chiefly by their monopoly of judication in important public and ciuil casesthat the 'the people'. Moreover, it is clear senatesecuredthe dependenceof that in Cicero's time iudication in civil as well as in criminal cases enhanced a man's dignity,eT which was dear to every upper-class Roman. It would have been natural for the Equites to desireto break a senatorial monopoly, and for Gracchus to satisfy this ambition. We should not be the leastsurprisedthat a changein civil judication does not enter into our historical record, when we reflect that that record ignores the introduction of the formulary system and virtually every other change made by statute in the civil law. In the previous statementof my thesisI laid the greatestemphasison the importance of this feature of Gracchus'judiciary measure;my critics generally ignored this part of the argument.e8 e7 Cic. Rosr.Com. 15, e6 So Diodorus (n. g) 4z e 8 N o t S t o c k t o n ( r g 7 g , r 4 6 f f . ) , w h o s e v i e w n e c e s s i t a t etsh e t w o - s t a g et h e o r y o f G r a c c h u s j r r r f i ri ; r r l l c r l i s f ; r t i o t ti n l r a p l r . 2 t . + l , .
zz8
J U D r c t A R yR t c H ' r sI N
' l ' H DR E P U B L I C
Of course no such refiorm can be imputed to Gracchus if (as some think) Fraccaro proved that there was no senatorial monopoly of civil judication to be broken, and that Gracchus could not have created an albumiudicum,however composed,whosememberswere alone qualified to determine some civil cases. Fraccaro, indeed, gave the classic expositionof the view I am contesting,becausehe did at least confront the implication of Polybius' testimony.eeHe supposedit to be largely mistaken, as he accepteda theory of Wlassak,which for long had the authority of a dogma. At Rome litigants would first appear in iure before a magistrate,generally a praetor, who could accept or deny the right of action, would define the issue that was to be decided, and would instruct one or more private persons,the unusiudexor occasionally recuperatlres to decide it. Wlassakaccountedfor this division of legal process by the hypothesis that originally the parties had freely acceptedarbitration by personsof their own choice; the state did no more than give its approval and regulate the forms. This hypothesis rested partly on explanations of other featuresin Roman civil procedure. Here it will suffice to say that so far from being unquestionably true, it has now beengenerally abandoned.looIt cannot thäreforehave the conclusiveforce which Fraccaro gave it. However, one of wlassak's arguments, endorsed by Fraccaro, is of particular relevance to our theme. cicero claims that the degradation (nota)of a man by the censorsis not to be reckonedas a jud[ement on him, since'neminem voluerunt maiores nostri non modo de existimatione cuiusquam sed ne pecuniaria quidem de re minima esseiudicem, nisi qui inter advärsarios convenisset'(cluent. lzo) . This claim was taken to demonstrate that the unusiudexwas in and before cicero's time always freelv chosenb' the parties, and therefore that there could have been ,ro ,.q.lir.-.rri that for certain types of casehe had to be selectedfrom the senateor from any album iudicurn,however composed. But Cicero does not purport to be speakingonly of casesthat would be settled by an unus iudex-He is chiefly concerned with judgements that affected a man's existimatio.Now condemnation in a iudiciumpublicumcould result in ffimia, not to speakof heavier penalties,and it was obviously untrue that the iudicesin criminal cases were chosen by free agreement between the prosecutorand defendant: they had only limited rights of ee ii. 255 ff.; p. 259 statesWlassak'sdoctrine without citing him. '* ^Opusrula -Jolowicz-Nicholas r76-9; more fully, with bibliography, M. Kiser, Röm. ,(ütilpro4ssretht, r966' 6 f., r4-16, zo, 23, 3r-6; 4t-4;he acceptsthat wassak's theory is more plausiblä for arbitri, but o. Behrends, Die röm. Geschworenenuerfassung, rg7o, 97 ff., thinks that they were originally expert assistantsof the magistrate. Kaser 36 n. 39 cites especially Fraccaro lor the view that Gracchus' law concernedthe repetundae court alone, which he thinks 'perhaps' right; but clearly he cannot have been impressedby Fraccaro's legal arguments.
J U D I c I A R Y R I G H ' l ' SI N ' l ' H r l R t l P U B t . l ( l
229
rejectinga specifrednumber of names.Nor were all civil casesdecided by an unusiudex.Someadministrative cases,and someactionsfor delict, in which condemnation might entail loss of existimatio,as well as The lex agrariaof t I t provides that pecuniary loss,went to recuperatores. against users of public land are to be decided publicans claims made by eleven names, and plaintiff magistrate propounds the by recuperatores: reject not more than four. A mode to entitled are each and defendant right of rejection a limited the parties which allowed of appointment free betweenthe far of agreement It falls short normal.lol to be seems litigants. At least in the post-Gracchan era inheritance disputescame (seebelow); here again there was a numerousjury, before the centumuiri and the litigants can at best have exercised a comparable right of rejection, which may be presumed, though it is not apparently documented.In Cicero'stime it was for minor magistrates,the decemairi to determine if a man was free or slave;to say nothing litibusiudicandis, of the importance of the issueto the man whoseliberty was at stake, the party who claimed him as a slave might stand to lose or gain an asset worth much money. The decemuiri,if not already senators, were doubtless always of the senatorial class, and could easily have been embraced in Polybius' concept of senators.l02Again we might conjecas biased.But it is ture that either party could reject particular decemuiri plain that in all thesecasesthe free agreement of the parties must be reduced to at most a limited right of rejection, and that Cicero's rhetoric is misleading. To allow his claim some specious plausibility, which we should beware of denying to any of his forensic assertions,however false,we may supposethat it had rather more applicability to the appointment of the unusiudex.We know in fact that the plaintiffor defendant could 'ferre iudicem', i.e. tender the name of a iudex,and that the other party ror ln FIRA i2. no. 8. need not be either senators or Equites. Of course 36 f., the recuperatlres any law after r z3 could modi$ qualifications required by a Gracchan law. Here we can divine a may be made by a promagistrate, i.e. reason for deviation. The appointment of recuperatores outside Rome, and must be made within ten days of application. The dispute to be settled could arise far from the city, in an area where there were too few senators or Equites immediately see available for the prompt adjudication that was desired. Cf. also n. r35. On recuperatores generally Kaser (n. roo), pp. r43 f. (citing FIRA i2. no. 67. 67-9; ll Verr. äi. r4o etc.);J. M. Kelly, Studiesin the Citil Judicatureof the Rom. Rep., 19?6, ch.rr. r02 Cic.Caec.97,dedom.78;cf.REiv.z:6off.(Kübler).InthePrincipate,whenthedecemüri had been transferred to take some part in the organization ofthe centumviral courts (tt.tlS), they were young men who had not yet held the quaestorship,but 1ZS gI5 f., 948, show that this was not always true under Augustus and Tiberius; in 1ZS 9 we cannot be sure if Cn. Scipio (pr. r39) gives all his offices in strict order. One might doubt if judication in causaeliberaleswas normally left to men in their twenties, or whether the office might not be held, as military rribunatesstill were in69 (t Verr.3o), by senators,i.e. men over thirty. Admittedly it is not listed i r n r o r r g ' s t ' n a t o r i aol f' l i c e si n F - l R Ai 2 . 6 . $ 3 ( B a n t i a ) ,7 . 2 2 ( t a b .B e m b . ) , b u ta n y d e c e m v i rw h o w a s ;rlrcadv ir scrratorwould havc been covcrcd 4za senator (6. $ 4, 7 loc. cit. ) . Plaut. Rudens7 t g might suggcstthat a senator could be expected to determine a causaliberalis.
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JUDICIARYRIGHTSIN THE REPUBLIC
JUDICIARR Y I G H T SI N T H ER E P U B L I C
could accept (sumere) that name; cicero provides us with two instances in which a iudexwas^chosenby this kind of agreement,one a senaror, the other an Eques.lo3A iudexthus appointedlould still be taken from the album;Senecacan write of 'accepting' a iudex'ex turba selectorum' (n. ro7),^and though in the Principate choice was not so circumscribed,loait could not fall on u.tyonä in categorieswholly disqualified !y law;ros that must always have been truel and ,.pr.i..rt, änother limitation on agreement between the parties that cicero could overlook. He more than once mentions the right of either party to reject on oath (eiurareor eierare)a person nominated as 'unfair, (iniquus). This correspondsto the right of a litigant in the Principate to 'refuse' or 'reject' a iudexappointed by lot from the album;we hear no more of an oath, which had perhaps become obsolete.ro6I can find no evidence that eiuratiowas in order only when a iudexhad been proposed by the adversary, and not also when he was taken from ihe list. In the Principate the alternative to free choice by the parties was sortition,107 evidently from those members of the albumwho had been assignedto civil judication (n. r rB); the younger Pliny suggeststhat sortiti,onwas the normal course(n. ro6). We cannot say if it was employed in the Republic as distinct from nomination by the praetor. Ii may be that agreementbetween the parties was then more common, but it cannot always have been forthcoming. A litigant would in any case have found it hard to resistthe nomination by his adversaryof a personwho was on the list of thoseofficially qualified to act, unlesshe could allege that the nominee was 'unfair'; nor would the praetor have torerated the endlessrejection of one name after another, a course that could have prevented the suit from ever coming to trial. Social and magisterial pressure would thus probably have ensured that most iudicesin important caseswere taken from the list by a procedure that could always be representedas involving the agreemenl of the parties, given-their right of eiuralio.None the lesscicero could contemplite that an advocate might have to plead before a hostile iudex,and his use of thc singular shows that he had an unusiudexin mind (de orat. ä. 7z). Thus even in relation to this kind of civil processthe rhetoric in' pro
Clucntior 20 is very economical of the truth; there were limits and 'our ancestors'which he did not care exceptionsto the ideal practice of to specify. Agreement between the parties and magisterial nomination are also distinguishedin Republican legal texts which speakof iudicis recuper'iudicis'] datio addictio', of atorum datio', of 'reciperatorum for 'iudicis arbitri recuperatorumdatio addictio'.ruuThere should be a 'datio' and 'addictio'. Now Servius Sulpicius distinction between referredto a iudex'exconventionelitigatorum addictus' (Deg.v. r. Bo), 'addicere'means'dicereet adprobare and accordingto Festus(rz L.), 'iudicem dicendo'. We may then infer that the magistrate was said addicere' when he approved the choice of the parties; the term 'iudicem dare' is wider, and in the Table of Heraclea the magistrate is required 'iudicem dare' in circumstancesin which the consent of the defendant would hardly have been apposite;similarly there is nothing to suggestthat it was ever obtained for the appointment of recuperatores.roeThus the terminology indicates that in the Republic the iudex could be 'given' without such consent. Since there is hardly any Republican evidencefor the assignmentof iudiceson the album to their various functions, we may first consider what is known of the systemin the Principate; that too is not abundant. At the outset of Augustus' reign there were three decuriesof iudices, consistingof senators(n. rr6) and Equites only (cf. n.4o); Augustus added a fourth, composedof men with a censusof only 2oo,oooHS and qualified to decide only 'de levioribus,summis', and Gaius a fifth, no 'selectiudices'boast do,rbt subjectto the samelimitation;110sincesome 'inter quadringenarios', we may infer that on inscriptions of being equestriancensuswas required only of thosewhosejudication was not over from the reitricted and so more honourable.i l1 The .-p..o.iook men on the album.rrz (". function of enrolling urban praetor S6) the members, but they were now I,ooo comprised Nominally each decury honour, as the was an though selection not alwaysat full strength;r13 and reluctant perform the duties, were to inscriptions show, some Auguitus allowed a year's vacation to each decury in turn.l1a The TabulaHebana,a law of AD Ig, modelled on one of eo 4, refers to the Equites of all the decuriesconstituted for the public iudicia,and Gellius saysthat he was chosenby the praetor among the iudicesto determine
tor. De orat. ii.
263; e.g. fuinrt. gz, Rosc.Com. 42. Die. y. . 8o .'* .r !Pomp.), xlii. r. 57 (Ulp.). Quint. Inst. v. 6. 6 warns against leaving to the adversary choice of iudcx. '.it, Ore v. t.2.3 (Paul); cf.i.9. z rCassius;. _ _ ' " o ' F i u r a r e f o r ' e i e r a r e ' ] i u d i c e m i n i q u u m 'c: i c . r r v e r r . r ä . t 3 7 , d c o r a r . ü . z B 5 , d e f n . ü . t r g , ,iudicem Phil. xä. r8. I cannot find this phrase documented after cicero. Tac. Dral. 5. i uses recusare';cf. Pliny, Paneg.36.4: 'Sors et urna fisco iudicem adsignat a iudei is now appointed [i.e. in rh_enormal way for fiscal cases];licet reicere,licet exclamare: ..hunc nolo', . . . '. '"'Agenn. t r b . \ G r o m a t i r i 7 4 . 2 2 I . . ) ; P l i n y , . N H p r . 6 - 8 ; B e h r c n d s ( n . r oi.m ) plausiblyprtsscs this to show that there was an alternative only betweensortition from the atbun aid relecti.n fr,rm o u t s i d et h e a l b u m . B u tc f S e n . d r b c n e J . , ü i . 7 .
'o8 FIRAi2.8.34 r . A t e s t . )S . e ee n d n o t ez . 7 ( l e xa g r . ) ,r z Y ( : G r o m a t i c i z 6 3 f . L . ) , z o , I 5 ; c f . 7 ( f'addictio' toe Ibid. rg. of reciperatores 44.1 suspectthe Gromatic text (n. roB) which refers to without collocation of iudicis'. Contrast FIRA i2. zt. xrv (Urso). Ltt ILS r10 Suet. Aug. gz. 4og3,654,6772. 3, Gaius 16. z; Pliny, "lfl1 xxxiii. 33. I 12 Suet. Aug. zg. 3, 22. g, Tib. 4r, 5t, Cl. 15. r; Pliny, ,MII xxix. t8. ll3 Pliny, "lfll xxxiii. 3o. A senatorial decury could never have been Iooo strong. r r a S u e t .A u g .z z . 3 ; P l i n y ," M i l x x x i i i . 3o;Dig. 1.5. r3 (Ulp.).
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the iudicia called private; the elder Pliny also distinguishesberween thosequalified to condemn a man to exile and thosewho could only decide pecuniary suits.l15 Ho*ever, these texts do not imply thai iudicesentitled to determine criminal casesmight not also exercise judication in important civil processes. There can be no such implication, since senators employed on other public business co.rid b. exempted in r r sc from both public and private iudicia,r16 and the Eques ovid served in the centumuiriand as unusiudex,as well as in criminal courts.117No doubt the iudicescompetent only 'de levioribus summis'alsohad no part in criminal judication. It appearsthat at the beginning of each year the iudiceswere assignedby lol to different civil and criminal functions;118 Dio refersto their alloiment to the centumviral court under Augustus, and the spaciou_s.rforum Augustiwas partly intendedto accommodatethe'sortitiones'.11e obviously the system in the late Republic was not identical with that in the Principate: we know of some modifications made by Augustus and his successors, and there may have been more, introduced by Augustus'ill-documentedjudiciary laws.l2oHowever,it is at least clear from one remark made by Cicero that after the lex Aurelia the same iudiceshe addressed in a case of repetundae would also determine civil suits.Not, we may think, necessarilyin the sameyear in which they were availablefor the repetundae court.121It appearsthat it was already the practice for iudicesof the albumto be assignedby lot to the various criminal courts and presumably to civil juäicatuie by a sortition carried out by the quaestorsafter they came into office on 5 December;122 as Gelliusshows(n. r r5) this function had passedto th; urban praetor by the secondcentury AD. The number of iudiceson the albumwasmuch greater from Augustus' time than it had been in the Republic. under tie lexAureliathere were only goo (". gB); Sulla had reservedjudication to some600 senators; the Gracchan album which I have posited comprised 600 or, more proba-bly,9oo, but beforer 23 the senatorsnumbeied only 3oo. It must therefore be asked whether senatorscould have monopolized judication even in the most important casesbefore Gracchus, especiailyas a -by considerablenumber would be at any given time exempt reasonof lr16 ll S.l g+".9; Gell. xiv. z. r; Ptiny,,MlI xxix. rB. Front. de aquistor: lor senatorson the albumcf Sherwin-white on pliny eb. v. ze. z (but M?li":.1 his suggestionthar they had ceasedro serve in SrR iii. g97.'3;. .*tjdl_"* Ovid, Tr. ü. 92,4, Ex Pontoiii. 5. z3 f.; cf. ILS 6747. r::: r8 See tte Suei.-lzg. B e h r e n d s1 n . r o o ) r 7 - 7 o . 29. r; Dio liv. 26.6. ''" S. Riccobono, Acta Diai Aug., rg45, 14: ff., collects the widence; see esp. Zat. rt. ,gl f. r 2 r F l a c c .r z , w h i c h c l o e sn o t p r o v e t h a t t h e s a m c m e n a l t e r n a t c c li n t h c s a m e y ( , L r r (, . o n h a B e h r e n d s( n . r o r ) 6 3 , t h o u g h t h i s m a y h a v c o c c u r r c d ,a s i n t l i r c st r l l o r t e crl o s o m c e r i n r i n a lc o u r t s would have had littlc or nothins to do in many ve:rrs. r22 Dioxxxix.T.3withC,ir.q:r.fr.ii.r.z[,rightlyin,.rpr",edbyE.Mt,y.r,(,arsarr Monarrhie
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age,infirmity, or other public duties,and indeedhow even6oo or 9oo personscould cope with the judicial businessthat occupied so many more in the Principate. We may first notice that the amount of such businesswas continually growing.r23 Granted that two or three permanent quaestiones had been created before I23, or were at besidesthat for repetundae latest establishedin that year, others were certainly added subse(Saturninus),falsaetc. (Sulla), uis (soon quently to deal with maiestas after Sulla), and adultery (Augustus);the scopeof the court or courts de ui was enlarged by the lex Julia de ai priuata. Unless municipal courts could imposepenaltiesaffecting the caputof the citizen (tt. 9t), the enfranchisementof the communities of peninsular Italy in and after go, and of thoseof north Italy in 49, must have greatly increased the work of those Roman courts which tried common crimes, including after Augustus' legislation adultery. Equally it must have enlarged the businessof civil judicature. It is clear that the jurisdiction of local courts in Transpadana was restricted by pecuniary and other limits,r2a and similar limits no doubt applied to those in the other Italian communities.l2sThat did not preventlitigants acceptinglocal jurisdiction outsidethe limits,l26 but *e can readily supposethat one of the parties would often insist on his right to sue or be sued at Rome;127very likely this involved delay and additional costs,which would commonly suit the wealthier litigant. The tendency to refer casesto Rome might well have grown, as the memories of former autonomy faded in Italy after go Bc. We have also to consider the size of the jury courts. Under the the jury was to be 5 t strong. But in I7I the Gracchan law de repetundis to hear Spanish.complaints senatehad appointed only five recuperatlres for recuperatlres."o It could number This was a standard of repetundae. repetundae law. The senatorial by the Calpurnian have been adopted of 4 Bc were to have only nine courts constituted by the SC Caluisianum rog n.3; cf. Brunt, Lfu. Cl. Monthly, I98r, r-4 ff, against Behrends u. dasPrincipatdesPompeius, tn. roo) 64 ff. r23 Suet. Aug. zg. r refers to the increased 'hominum et iudiciorum multitudo' which necessitated the construction of the Jorum Augusti. r2a I need not enter into the interpretations of FIRA i2. nos. t9 f. (seee.g. Simshäuser,Ch. v). r25 The lex lrnitana, esp. Lxrx, r,xxxrv, furnishes new evidence on municipal jurisdiction, see JRS ry86, zz7-go, for commentary citing the principal texts known previously. See endnotö e. We cannot be certain how far rules attested for the Principate go back to the late "u Dig. v. r. r (Ulp.), l. I. z6 (Paul). Republic. r21 Cato, de agric. r4g. e perhaps supplies an early instance. Note Paul, Dig. ü. r. ro: 'extra territorium ius dicenti impune non paretur'. If a man from town A desired to sue one from town B, on a cfaim that could be tried eitherin town B (but not in town A) or at Rome, he might naturally find resort to Rome more convenient. 1 2 EL i v y x l i i i . t . q ; c L K a s e r ( n . r o o ) .
23+
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members.r2eGracchus might well have opted for a much larger repetundae court, to minimize the chancesof corruption. Both permanent and extraordinary courts after 7o had juries ofover 5o and erren over 70, the number perhaps varying with the kind of qu-aestio. But it looksas if in the sullan system,with only senatorsentitleä to serve.the juries were smaller,In the trial of oppianicus for murder only 3z iudices voted (cluent.74) , and cicero suggeststhat the eight iudices, who would have ceasedto sit in the trial of verres had it beän protracted into 6q, constituted'alarge part'of the court (l Verr.30,Ii i.3o).tto of all civil casesthe most important on the whole werä probably the inheritance cases,which were heard as early as the time äf L. crässus (cos.95) by centumuirf; it was these which engaged great orators like crassusand in the Principate the younger pliny.]31 I\o other caregory of civil casesis more likely to have been reserved to senatorsbe"forä Gracchus. In Pliny's day the centumuirinumbered at least lgo and normally met in four different courts.r32Festus,however, tells us that they had once numbered lo5, three persons being ,chosen, (by u processthat is not recorded) from each of the thirty-five tribes, and that they were then called centumairi for convenience. This precisearrangement cannot have gone back beyond z4r, when the last two tribes were created. Many scholars aigued ihat the centumviral court was therefore first constituted aftei z4r, perhaps much later; wassak was bound to regard it as a 'moderni invention, since its character did not accord with his theory that civil judication was originally arbitration by persons whose decisions tire parties consentedto accept. A late date has now fallen out of favour .tri.Ry becauseof the archaic featuresof centumviral procedure (n. r3zj. conjectures have been advanced to explain why from the firsi a tiiriy large jury rather than an unusiudexshould have been responsiblefor settling inheritance disputes. Kelly supposesthat the tribi organization of the court was primitive; but sirrcethere is some evidence that t " Ol Mommsen's supplement of the tabula Bembina7 f ., reeuperatores decided certain charges ^ of repetundae, but supplement and senseare very ,.,n"e.t"ir, (W. fo. Buckland, 'l'acitus JiRS rg37, 4z f.). refers to the court, which could award simple dämages for repetunäneunäer the 5c Caluisianum(Ann. i. 74.6: cf. FIRA i2. 68, v) as rctupcÄtores. tto otherevidenceinMommsen, stritfru'htzr7f.l.Lengre,sz,ggs,zT5ff.,madeitprobable that under the Sullan system the senate was divided into t." a..u.iJrlä".'ät*itl.tr was available for each permanent quaestio;inthat case no jury could consist of more than 6a-x iudices,where x represents senators necessarily excused from service on particular occasions. orat. i. r73, r77,-t}o, etc.; Tac. Dial. gB. z; pliny, Ep. vi. gg. z, ix. 23. r (with ^.ttt .Ci:,-!r. Sherwin-white's notes). cf. Kelly (r,.go) g+ff., anä ctr.rrr on th.,tut"irii"ui importance of it is clear (apart from his figures) that the jurists paid most attention ä the law of :il::::i:1.**'; tt' t]int, Ep' vi. 93.3. see in generarwlassak, r?E iii. r935 ff., for evidenceon the court. For recent discussionof its antiquity see-Kunkel, 1962, rrgff., and Kelly (n. ror), ch. (with I bibliography); he rejectsviews that it had jurisdiction beyond casesofsuccession.'-
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juries of quaestiones were chosenon a tribal basisin the first century, it might rather be thought that Festuswas describingthe centumviral orgänizationas it wasln that era.133Certainly he wäs only explaining the name of the court, which had ceased to be apposite in the Principate, by referenceto a time when it approximately corresponded to the number of iudices;he does not even professto know, and could hardly have known, that it had been constituted in the way he describesfrom its very inception. For instance,if we supposethat the iudicesconcerned always numbered about loo and were tribally selected,the number of iudicesper tribe could have varied as more tribes were created (z1x4, 32x3, etc.). Alternatively, the total number and the name might both have changed,just as the decemuiri Again, senatorsalone, or senators sacris faciundisbecame quindecemuiri. and Equites, might have been enrolled on a tribal basis;or that basis may itself have been a later innovation. The retention of archaic procedurein the Principate doesnot of courseexclude the possibilityof all kinds of other reforms at different dates: we actually know that in that period the total number of iudicesenrolled had increased,and that the decemuirilitibus iudicandishad been given by Augustus a novel, though problematic, part in the organization. It therefore follows that we cannot be sure that the organization describedby Festushad not been first createdin or after I23 (the name of the court is not attested earlier), or, that the number he gives the panel did not reflect the influence of Gracchus. Before I23 the total number of iudicesrequired for inheritance casesneed not have been so large that they could not all be drawn from a senateof 3oo members. Not indeed that we must assume that it was ever normal for all centumuirito sit together; in Pliny's day a jury in ordinary cases presumably numbered about 45, and in the late Republic the centumuiri may already have been split into similar divisons. There must have been some unrecorded statute which prescribed the tribal representation and which could also have determined the number in each division. Perhaps of Gracchan origin, this statute will have instituted the systemthat Festusdescribes,operative in the time of L. Crassus. 'Cum essentRomae triginta et quinque tribus, quae et curiae sunt dictae [!], terni zx 47 L., 'a'] singulistribubus sunt electi ad iudicandum, qui centumviri appellati sunt: et licet quinque Inot amplius quam centum fuerint, tamen, quo facilius nominarentur, centumviri sunt dicti' (cf. Varro, RR ii. r. z6).'I'ribal composition is compatible with a requirement for senatorial or equestrian qualifications, cf. perhaps the tabulaHebana(EJ g4a). We do not need to seeany close parallel with the lex Plautia of 89, under which 'tribus singulae ex suo numero quinos denos srlragro creabant qui eo anno iudicarent; ex eo factum est,ut senatoresquoque in eo numero essent,et quidam etiam ex ipsa plebe' (Ascon. 7q C.); Festusdoes not imply election.In my view the lex Plautia need have applied only to the maiestas court, since in go it had been the only court active, according to Cic. Brut. go4. Tribal representation was also provided by the lex Licinia desodaliciisof 55 (Cic. Planc. g6) and perhaps had some place in quaestiones generally after 7o (Kunkel, rtE xxiv. 753 tr). tt'
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The statementsthat sulla transferredthe iudiciato senatorsare made by authorswho were concernedwith the quaestiones.r3a It may well be tlll was made to withdraw främ the Equites thar sharein io ?tlgmpt civil jurisdiction which they had acquired. The äfranchisement of Italy must have increasedthe volume of litigation at Rome, and even with an enlargedsenateit might not have beä.,conrrenientto restoreto senatorstheir monopoly of deciding the most important civil cases. The constitution of a mixed arbim from whiih iudiceswere to be selectedfor both criminal and civil casesdecided at Rome naturally did- not preclude the subsequentenactment of legislation which mighi widen or restrict the choice of iudices.one ma"y recall the abortive attempt to establisha specialjury lor the trial ofblodius in6t, the lex vatinia dereiectione iudicumof 58, and the lex pompeiaand the lex Licinia de sodalicüsof 55; similarly in the pre-sullan era senatorscould be excludedfrom newly createdspeciaior permanent quaesrione.r under the Mamilian and Appuleian laws ny ,,it ict they were set up. The qualificationsfor judication outside Rome could älso be quite different from. those prescribed for Roman courts: thus recup)ratores to be appointed under the lex agrariaof r r r are simply to üe drawn from citizens of the first class, and iudicesor recupeiatoresappointed by municipal magistrates o._ !J provincial gorri.rro., *""ta also not require equestriancensus.l35
VIII
Conclusions r. Ac-cording to Polybius, before r 23 senators had a monopoly of . judication in the most important ädministrative and civii cases. They also provided iudicesfor repetundae trials, and presumably composedthe consil-ia of magistrateswho exercisedjurisdiction for xgmmon crimes,.whichwere in practice not subjeci to appeal. z. The Gracchan law 'ne de- capite civis Romaäi ini.,r* populi iudicaretur' put an end to this inappellate jurisdiction. 3. under a Gracchan law Equites obtäined e"xclusivecontrol of the r3n Cic. I Verr. 37 etc.:Vell. ii. 3z; Tac. Ann. xi. zz. rrr For provincial lists of quarified iudicesseeSherwin-white on priny, Ep. x. 5g. r. I do not agree that those in Bithynia would not act in civil cases,for which th. gou...rä. *oJld use his own comitcs;in Republican Sicily, though there was as yet no provincial itbun, it was pioper fo. the governor to select local Roma.n residentsor negotiatores by lot (cic. rr i/err. ü. iz-4 et..;. tn cyrenaica the "ensusqualification ror murder triäls raisedby Augustus from ,,,5ioärnorrto 7,5oo was low (FIRA f .68. I). In municipalities where iudicesor recuperatnrcs wereappointed by the local magistratesiuri dicundo(e.g.FIRA i2. zo f.), no high property qualification .urr'huu. been required In law or practlce.
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repelundae court, which was broken by Caepio'slaw of to6, but restored by Glaucia (annoincerto). soon set up by the Mamilian law and that permaad hoc court 4. The by Saturninus were also equestrian. nently establishedfor maiestas to reinstate the senatorial monopoly for in Drusus proposed 9r 5. criminal judication (this has been questioned,but wrongly). 6. The lex Plautia of Bg provided for the election of iudicesfrom the senate, Equites, and even e plebe, but this probably concerned only the maiestas court. restored senators the monopoly of at least criminal Sulla to 7. judication. B. The lex Aurelia of 7o constituted an album of 3oo senators, 3oo equesEquites (equopublico),and goo tribuni aerarü(who possessed trian census,a fact sometimesdenied, but wrongly), from which iudiceswere to be taken for both criminal and civil cases(including centumviral cases)decided at Rome, though the parties to a civil dispute could also agree on a unusiudex outside the album. g. According to all sources, Gracchus passed a general law on judication which eitherconstituted a mixed album somewhat as the lex Aurelia did (Plutarch and probably Livy) or vestedjudication entirely in the Equites (other authorities): Appian as well as Plutarch indicate that after Gracchus Equites could judge casesin which non-senatorswere defendants,i.e. casesother than repetundae. Some scholarsdeny that any such law was passed,holding that there was no purpose in any general regulation ofjudiciary rights, existed in Gracchus' time since (o) no permanent quaestiones and (ä) civil litigants were free to select besidesthat for repetundae, iudicesas they wished and could not be restricted to those whose names appeared on any album.These objections are unfounded. As to (a): ro. On the natural interpretation of Brutu.r(Io6) Cicero implies that wert- set up before rz3; besidesthat for repetundae other quaestiones in any event the establishment of some such statutory courts becameimperative on the enactment of Gracchus' law ne de capite , ,. 3,rifu is known to have created only one such court; the quaestio maiestatisexisted from to3, and permanent courts de sicarüs,de uenefcis,de ambitu, de peculatumay be pre-Gracchan (they are certainly pre-Sullan). As to (ä): re. The theory that litigants were invariably free to choose an unus
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iudexis not demonstrablenor plausible; they certainly could never choosecentumuiri, decemuiri, recuperatores; hence there is no warrant for rejecting Polybius' testimony that in his time all iudicesin importantcivil and administrative caseshad to be taken from a senatorial album. It therefore follows that: 13. The testimony of the sources should certainlt be accepted that Gracchus passeda generaljudiciary law, in addition to a repetundaelaw. 14. lf his aim was to reduce the power of the senateby enhancing that of the Equites, he should have ended that senatorialmonopoly of judication which Polybius srressesby constituting an albumfor civil as well as criminal caseswhich was eitherwhollv or
oTitJ*tä;t$:?".r.
berween thesealternatives? Irr". r,"a u r,rn
record of the period from r 2g to 70, such as Livy provided, the uncertainties which so often exist for us about overt facts of importance, like judiciary laws, would surely vanish; they arise only becausewe have to depend on inaccurate historical summaries and loose allusions in which rhetoric may distort the truth. The contradictions in our miserable sourcesabout the proposals of Gracchus,Caepio, and Drusus are matched by their confllcting statemcntson the lex Aureliaitself. It is only becausethis law was operative in Cicero's time that we happen to have evidencefrom his writings which proves that the most complex version of the purport of that law is correct: epitomizers tend to simplify. In all thesecasesdiscrepanciesdo not originate from rival traditions (or fictions), but from the failure of any of our authorities to give precise and complete statementsof the truth. We must not then pin our faith to any one source, but try to elicit the truth by discovering how all may reveal it in part, and yet distort it by carelessness. Since Gracchus undoubtedly gave Equites a monopoly in the repetunda, court, and since courts later set up to judge political offenceswere r4odelled on it, it would have been quiie natural for writers who were chiefly or onlv concerned with judication, in so far as it remained a constant source of political controversy, to say baldly that he transferred the iudicia to the Equites, and to neglect the more general reform of the album recorded by Plutarch and, conjecturally, by Livy (whose testimony would be decisive,if we only knew what it was). The error was the easierif Equites preponderated in the album,as under the lex Aurelia, which some writers once again represent, falsely, as
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eliminating senatorsfrom judication. To account for Plutarch's version on the footing that it is incorrect seemsto me lesseasy; there is nothing to be said for the supposition that he confounded Gracchus' proposal with that of any later reformer, and the theory that he mentioned only a plan from which Gracchus resiledand not that which he actually enacted,though it cannot be refuted, is incompatible with Plutarch's biographical interests. Plutarch of course is also one-sidedin ignoring the repetundae law. This is just the kind of omission that is typical of epitomators. r5. We may then concludethat it is probable that except for repetundaeGracchuscreated a mixed album;Caepio (in my view) applied the same principle to repetundae, while Drusus (as the evidence independently proves) anticipated Sulla in proposing to restore a senatorial monopoly, at least in criminal judication, and to enlarge the senatefor the purpose.
ARMY AND I.AND IN
5 THE ARMY AND THE LAND IN THE ROMAI\ REVOLUTION * I. continuing importance of the agrarian problem after the Gracchi. Most Italians countrymen; the influx into Rome, where, as in other towns, freedmen and slaves had a disproportionate share in all skilled work. structure of rural population; well-to-do randowners,small peasantowners and.tenants,day-labourers.The labour force on great estatesnot entirely servile.Desire of the free ruslicifor farms of their o*r,. II. The army recruited from rustici,who were still often conscribedafter Marius. Length of continuous service in the legions, even if the norm was six y.u.r, .rro.[h to ruin small farmers; -they needed l1"d gl .discharge, rrr. indiscipline"and disloyalty among the troops. Purely political appealsfor their s,rpport. Few of iheÄ bound by personal allegiance.The ties of religion. Matirial inducemenrs ro loyalty: booty and illicit enrichment;donativer.rv. Abo,reall they demanded land allotments. The senate adverse to their demands. Refutation of views that they saw allotments merely as assetsto dispose of, and that they commonly regarded military serviceas a professionfhey had no wish to give up. Land the mostnatural provisionfor their retirement.Why thev sometimes failed as farmers. V. Epilogue on Augustus, measures. I
Roma.n revolurion had its origin, as Sallust (BJ 4 f) partly in the misery of the poor, in a sociai örisis; it :u*, II began with the Gracchi and with agrarian reform, and agrarian reform remained a leitmotiv in th; turbulent centurv that followed. I need only mention the laws or bills of Lucius tTt"u
* This versionofan essaypublished inJRS r96: is partly rewritren, especiallyin secrionl, wirh notesrenumbe_red, and supersedesthe German version of ig76. For documentaiion given in l96z I have now often referred ro fuller statementsin IM or elsewhere.The argument-is essentiilly unchanged:to my knowledgeit has never been refured. It built on the work ätR. t. s-i,h, ,g5ti, and on articlesby E. Gabba in-4thelaeumr949 and r95r, since republished with some charges in tgi? (Eng. tr. 1976). But in crucial points iäiffer wideiy rrom Gabba: for examlle, I 9ib.bi think it misleading to describethe army of the late Republic as'piofessional'; I rate much lower the importance of clientship; and I think Gabba wholly mistaken in holding (e.g. rg73, trl r976' rzo ff.) that normally vereranshad no wish io return to the land. in the revised \.: versions_ of his essaysGabba takes.no account of my contentions. I repeat here my original of helpful suggesrionsmade by M. H. crawforcr, p.J. c;tr, M. w. Frederiksen, 1.u.n-oyt-"1*.-tnt A. H. McDonald, and R. E. Smith.
'I'H}:
ROMAN RI:PUBI,I(I
2+I
'Iitius,2 Philippus,l Saturninus, Sextus and the youngel Drusus, the settlement of the Sullan veterans, the proposals of Plotius," Rullus, and Flavius, the agitation of Catiline, the legislation of 59 rc, and the later allotments of Caesar, the Triumvirs, and of Augustus himself. Modern accounts tend to obscure or even denv the unitv of this theme phase reformers throughout the period.a It is true that in the -earliei were more concerned to find remedies for social distress as such, and in the later to provide homes for veterans. But the Gracchan settlers and the veterans had two things in common: they were mostly countrymen, and they desired to obtain a secure livelihood by owning their own land. According to Appian, whose testimony we have no right to reject, the work done by the Gracchi was not lasting (cf. n. r). Hence the distress they had tried to alleviate persisted or revived; the governing class remained indifferent. Unorganized and unarmed, the followers of the Gracchi could save neither their leaders nor their own interests; men of the same class, with arms in their hands, were the essential instruments for bringing down the Republic. In the economic life of ancient Italy agriculture was of dominant importance. Land was the safest investment, and the chief basis of wealth. The total number of men, women, and children of citizen status in eo r4 was on my estimate not much above 4,ooo,ooo, of whom 5 6oo,ooo were domiciled at Rome. Of the rest some lived in towns; their number cannot be estimated, but many towns must have been centres from which most of the inhabitants went out to till the adjacent fields. The great majority of citizens obtained their livelihood from the country. There were also two or even three millions of slaves, most of whom again must have been employed in agriculture and pasturage; the higher the figure we adopt, the larger their share would have been in rural employment, for it is a fair assumption that trade 'non I Qic. de ofic. ü. essein civitate duo millia hominurn qur rcm 73: Philippus' assertion haberent'illustrates and exaggeratesthe failure ofthe Gracchi (App. i., z7). 2 Obsequens Val. Max. viii. r, Damn.3. 46; 3 Plut. Iac. 34. 4; Dio xxxviii. 5. r-z probably refer to the lex Plotiaagraria(Cic.,4tl. i. r8. 6) of 7 o ( ? ) s c ( M R R | i , r z 8 ) ; c f . E . G a b b a , P a r . d e l P a s s .r 9 5 o , 6 6 f f . ; R . E . S m i t h , C Q r g 5 7 , 8 z f f . ; contraSmith, Dio shows it was not implemented. a Gabba 197311976,ch.n passim,like Velleius i. t5. 5, too sharply distinguishesveteran settlementsin the first century from almost all previous allotments oflands. In fact the extensive allotments, colonial or viritane in the early secondcentury, as in previous times, probably served both to augment the number ofpeasants,from whom the armiescould be recruited (cfl App. i. 7), and to reward soldierswith part ofthe land they had conquered (cf. Livy xxxi. 4. r-3, xxxv. g. 7 1.,40o. 5 f., xxxvii. 57. 7 f., xl. 34.2 4; G. f ibiletti, Athen.rg5o,234 ff., and H. H. Scullard, JRS r96o,6z ff., conjectured that the agrarian bills ofLaelius and Ti. Gracchus respectivelywere in 'I'he part designedfor the benefit of veterans. social motives of the Gracchan scheme(c[. Cic. ,Srst. ro5) were adduced for later agrarian proposals(Cic. de leg. agr. i. zz, ü. 7o, 97, ltt. i. rg. 4; Dio x x x v i i i .r . 3 ; S u e t . C a r s . 4 r .r ) . S e e a l s o K . H o p k i n s ,r 9 7 B , c h s . r - r r , a v a l u a b l e a n a l y s i s o f ' t h e impact of conquering an empire on the political economy of Italy', which is relevant to most of this essay.
242
A R M YA N DL A N Dt N t ' H DR o M A NR F I P U B L t C
and industry cannot have occupiedmore than ro-zo per cent of the total population. clearly the totalnumberof those so occupied must have risen, as the population itself gradually increased, if only through the influx of slaves,and the proportionsurely became greater, as Itily was enriched by the acquisition of imperial possessions overseasand by the internal peace which obtained, except in the north, for a century after the Hannibalic war.s The increaieof population would have required an enlargedsupply of food; this demand was met partly by imports, partly by clearance and drainage bringing new länds under the pl,ough, partly perhapsby improved methodsof cultivation; but a riseln toial purchasingpower, however unevenly distributed, must have meant that there was also an enlarged demand for manufactured goods and for the servicesofthose engagedin trade, transportation, and construction. Naturally this was greatestat Rome itself, where the ruling class were domiciled and there was the greatest concentration of both private and public expenditure. The growth of the population there can be dimly traced in the need for additional *utei supplies,which required the construction of great new aqueductsin iia-rz7 and 1gu1"-under ALgustus.bS_omepeasantsdrifted into thä city, and doubtlessinto other towns.TBut the -population of Rome *u, .hi.fly augmentedby slavesand freedmen.8 Many of these belonged to the households of the rich, securing their luxury and ostentatiousdignity. But more important, thousandi of inscriptionssuggestthat at Rome, and to a lesserextent in Italian towns' trade and industry were chiefly in the hands of slaves and freedmen. Most are imperial, but what we have from the late Republic or the Augustan period is congruent with the later data. For instance the fine ware made at Arretium in the first century nc 5, IM, .h. x, giving the results of rr-x. I!, ch' xxr, which requires some modification in detail, not affecting the general conclu." sions. Livy xxxix. 3.4-6, xli._8.6ff refer to migration of Italians to Ro-"e in tf,e early second century; the language may be anachronistic. Italians with 'ius migrationis, could sain the citizenship thereby, if rhey settled anywhere in the agrr Romanus; ct x-"xxiv.42. 5 r. 1*iin n. e. Smith,J.R.l r954, rB tr). A. H. McDonald adhered to ihe view that there *", i d.ift to Rome and other towns from the early secondcentury; cf. camb. Hist. Journ.193g, rz6 l, r3z. cf. n. r3 below. Note that Marian veteransdid not migrate to Rome (App. i. ,gt7 some town-dwellerscultivated thJadjoining nelai, see..g. öi.. de leg. agr. ii. g9 on capua, which must be lrue a fortiorr' of towns less developed as manufacturing ind"tradin! centres; p. Garnsey, Proc.camb. Phit. soc.rg7g, r ff., a valuable discussionoftheixtent to whfch peasants lived in villages and scattered homesteads(a pattern of settlement surely more common after Rome had establishedinternal peace in the peninsula), misunderstandsthi, t.*t, which means that after_losingcivic seltgovern-.ni in ztr, remained a 'receptaculum ".utorr-,. _capua, F9i what lollows see (besidesthe chs. in IM and, Hopkins ciöd in nn. ^.' 4-6) Brunt a1. Cherubini, r g83, and on freelabour at Rome, JRS r g8o, g r ff., defending u.d u-piifying ui.*, i. The RomanMob (.Finley, rg74, ch. rv).
A R M Y A N D L A n * Dl N ' l ' H E R O I \ l A N R t I P U B L I C
243
was manuf;actured by freedmen and slaves. Conceivably the epigraphic evidence somewhat exaggerates their predominance. It can be conjectured that for various reasons humble men of free birth were less able or willing to leave memorials of themselves and of their manual employment. Moreover, there are few inscriptions of those engaged in unskilled, often casual, labour, which must have given a livelihood to some displaced peasants; on the other hand, they possessedneither the skill nor the capital to compete in the crafts or even in trade. The wealthy could import slaves who were already trained, or could pay the cost of training them. It is evident that rightly or wrongly entrepreneurs supposed that slave labour under their absolute control brought in the greatest profits, at any rate if the slaves, who had to be maintained continuously, could also be kept continuously at work; this was a proviso well understood by Cato in regard to farming,e and it must have been seen to apply equally to urban employment. In order to obtain efficient service from skilled slaves, owners were indeed obliged to allow them a share in earnings, and often to reward them with freedom before they had come to the end of their working lives. But in manumitting them they could require continued service from them, even without payment if they were given maintenance. The freedmen engaged in industry and trade were doubtless mainly pursuing the same activities as in their days of servitude; and though they might become rich themselves,it is probable that initially at least they were financed by their former masters in return for a share in profiis.10 The impression derived from inscriptions of the preponderance of slaves and freedmen in the population of Rome is fortified by Cicero's allusions to the plebs, especially to Clodius' gangs, which in fact comprised numerous artisans and shopkeepers.lr At a much earlier date Scipio Aemilianus 'to had berated the Roman plebs as consisting of men whom Italy was but a stepmother'.12 e Implicit in Cato de agric.z. z f., 5. z, 39. z. 1 o T r e g g i a r i , r 9 6 9 , r r e o , 6 8 8 r ; P . G a r n s e y , K l i o t g 8 r , 3 5 9 f f . , d i f f e r e n t i a t e sb e t w e e n freedmen who became independent of patrons and others. Statistics on craftsmen etc.: H. G u m m e r u s ,R E i x , 1 4 9 6 t r ; A . M . D u f f , F r e e d m e n itnh ee a r j R o m a nE m p i r er o 9 f L ; c [ ' I - r e g g i a r i , r969,gr-ro5 for the Republic. " The RomanMob (n.8) SS ff.; Lintott, 1968, ch. vr, to be preferred to Gruen, rg74, 433tr. Gruen 36 r n. 9 notes that in de leg.agr. li Cicero implies that the urban plebs was ol native stock; but in this speechhe aimed at flattery of the plebsurbana. 12 Vell. ii. 4. 4; Val. Max. vi. z. g; de ür. ill. 58. 8. P. Fraccaro, Studisutl'etädei Gracchi(Stud. stlr. p(r I'antich. rlass., rgrz), 387 ff., connected this nol with Scipio's efforts to limit land allotments in the interest of the Italians. This would imply that the urban mob were interestedin 'I'he land allotments. I do not believe this. sourcesmake Scipio reply with this mol to the outcry 'I'his whcn he had pronounced that Gracchus was'iure caesus'. is perfectly plausible;the killing of C.)racchus was a violation olproaocalio, to which the humblest citizenswere profoundly attached, as C l i c c r oI ' o u n dt o h i s c o s t . S c c a l s o A . E . A s t i n , C Q r 9 6 o , r 3 5 9 .
244
ARMY AND LANI) IN'I'HI: ROMAN RHPTJTtI,t(]
None the lesssome peasantsdid drift into Rome,rl a'd doubtless into other towns.They could at any rate hope for casualemployment, for which it was uneconomicto maintain ,lurr.r. They migir go out into the fields to assistin seasonaloperations(p."+gi. As theie was little navigation in the winter, the work or abcl-iälourers and of porters and carriers must have bunched in the summer months. Building ^aclivjty of all kinds was to some extent seasonar;and the demand for labour on great public works was extremelyintermittent. At Rom.eimmigrants might also receive doresfrom the great houses, purchasing their loyalty, as well as bribes from candidatei for office.rd In the brawls at Rome beforesulla's time the nobility could call on the aid of urban clients (doubtlessincluding their freedmen)against the rural supportersof 'popular' agitators.r5 It was pe.rhapsto underminethis attachment,and not or not merely ^ genuine lrgm.. ^compassion, that Gaius Gracchus instituted cheap distributionsof grain at the public cost. This measurein any event testifiesto the existenceof an urban proletariate of free men at Rome, which had already been formed befoie state doles were available. The public expenditure on grain distributions was in someway reduced by a lex octauia,probably towards the end of the secondor eaily in the first century; and they were totally aborishedby Sulra. consequential resentmentmay explain why in cicero's time the nobilitv had lost control of the urban plebs; ifso, it had not been allayed by ihe revival of distributions for a limited number of beneficiariesin' 73, nor by cato's law of 6z extending them much more widely: the päor could perceivethat thesewere concessions extorted by fear. o"ly i" 58 did p. clodius make distribution free, and the number of recipient, iuur roo' vastly swollen'probably becauseslave-owners took the opportunity to manumit their slaveson a large scale,retaining a legal iight to their servicesand transferring much of the cost of -uint.nä.e to the state.16However, the urban poor could not live on bread alone: they neededother food, clothes,and shelter.At all times the possibilitiesof obtaining casual employment for wages must have been the primary causeof migration into Rome, and no doubt to someextent inio other r3.Sall.Cat.37.4 7 ; Y a r r o , R R ü p r . 5 ; A p p . i i . r z o ; S u e t .A u g . 4 z . 3 ; t h e l a s t t h r e e r e x t s r e l b r r o conditions after cB. ta Sall.lr.; C I c . V e r r .ü . 3 . . 2 r 5 , d e o f i c .ü . 5 5 , 5 7 - 9 ; p l u t . C ) c .g . r ; F l i n y , N H x v . z , x v i i i . 1 6 . _ t.f|u,trr, Dig. ix. g.5. r^indicatestnit p"t.än, give clients free #"ri";. ' - e . g : r n r o o ( n . 4 3 ) , 8 8 , a n d 8 Z ( A p p . i . 5 5 .äig"ht z+3f.,64.28g;the.oldcitizens,äresurelychiefly . t h o s er e s i d e n ra r R o m e r t c l . p p . 4 3 : L '" IM 976-82, but lor date of lex OctauiaH. Schneider, Wirtschaftr. politik, rg74,361. I now t h i n k t h a t r n a l e s . w e r e e l i g i b l e f o r t h e ^ d o r e sf r o m p u b e r t y , a m e n d i n s . u n d e c i m o , r o . q u a r r o decimo' in Suet. lzg. 4r-i .! J. Rea, Ox1t.pap. xl p. r3. It is only .n u;'ru-p;;i;at the ration .1. was always, as in 73 (sall. or..Mac.ri rg1,5 modiia --ontÄ, .o-pu.id '"ith for legi4' z z ' 44o c o i n a g e ,d c p r e c i a t i o n ,r 5 8 - 9 ' 2 5 3 cotlegia,57 8, ZS-6, 3o6-7, 35o, 4t6, 425' 428, 479 c o l o n i e so : v e r s e a s7, 8 , r 8 6 7 , 2 7 2 - 3 , 5 r r i s e e also agrarian question. Latins comitia,seepeople mmmendatio,394, 4o4, 4o6 c|mmerctum 9 5, , 5 I I , 5 I 3 c o n s c r i p t i o n ,z t , 6 6 , 7 3 * 4 , 7 6 - 7 , g g , I z 8 , I 8 I , z5z, 254-6, z6o, 299, 437, 492, 5o3' 5 r9 - 2 o constitution, Republican, tg-gz, 385-7; unwritten, 13,2g7; sezmagistrates,people, senate consulsand proconsuls, r5-rg, see magistrates szepeople contiones, c o n u b i u m9 ,5 , l I 5 , 5 I I , 5 I 3 cioiumRonanorum, t76 cont)entus conabium,3t6 corn-doles, 25, 75-6, t8z, 244-5, 28t, 347-8' 440' 47 | corn-supply, 76, r7z, t77-9 cursushonorum,4g-4, gz8, ggo Cynics, 3t t datio addictioiudicum etc., zzr, 5r8 debt: as social problem, 6t-3, 73, 272,344, 348,4tt,5o5; in the 8os,157-9; in the 6 o s , 6 2 , 8 o ,z 5 z ; i n t h e 4 o s , 4 8 8 '4 9 t - 3 ' 5o3; regulation of interest rates' I I 5' i57-9, r75-6, 3o6; seeaddietio,fdts,fducia' moneylenders, zerl litibus iudicandis,zz9 decemairis deeorum,go7 defenceby advocates,372-6 (more esteemed than prosecution) d e l a t o r s ,r 7 7 , 2 r 9 , 9 o 7 , 3 + 2 democracy: not achieved at Rome, 349; suppressedwithin emPire, 294 dignitas,seehonour; dignitasrei p., esp. 55'
63 divorce, 454 domi nobiles,controlling Italian communities, seeund.erItalian allies @rincipes)and ltaly dual citizenship, 94, r24, 5r2 elections: function, 36; people's right, l9' 24-5, 327, 34o, 52o, 523; role of presiding magistrate, tg,37, 374,454-6; eligibility to omce, tzg-3o,3g7-8; competitors need only be friendly rivals, 369-7r; effects of patronage, canvassing, corruption, and v i o l e n c e ,3 8 7 , 3 9 9 ' 4 o r - 2 , 4 2 4 - 3 r ' 4 4 5 '
540
I N D I ] X T ) T 'S U B J E C ' r ' s
elections (conl.): 448, 45r, 475, +77, 482; seeunturia praerogatiua eleutheria:no single Greek conception; diverse views and modes compared with Roman, z8z,r88, z9r-6, 3oB-Iz, gr7*rg,3z6-7, 335-7' 339 empire: how and why extended, r8, r8o-9t; garrisons 77, rBr, r85, 259, z6o; revenues, 64-7, t+g-5+, 16o,I66-7, t7z, tBt-2, r 8 5 , r 8 9 . I g I l p o w e r o f g o v e r n o r si n provinces, r7 rB; self-governmentof p r o v i n c i a lc o m m u n i t i e s ,I I . t g . 2 9 3- 4 ; j u s t government recognizedideal, 63 4; equestrian oppression, 69 (see repetundae); and publiinterests, see under negotialores cans; patronage, 392-3, 396, 398; effects on Roman revolution, 68-8r (onlY indirect, 6S, ggf); effectsof revolution on subjects.I I-I2; seelausimPcrii E p i c u r e a n s ,3 o r 2 , 5 2 o e p i t o m a t o r sd , e f e c t s9, r , r o 2 , 2 r g E q u i t e s :I 8 c e n t u r i e s ,2 4 , 7 r , r 4 5 - 6 , 1 7 r , t 8 4 (szepeople); in broader senseincluding tribuniaerarii, r46, zro,5l5 I6; manY municipal gentry, 3, I46, r64; mostly landowners, t46, 16g-4; for publicans and seeJ.r.; economic interestsnot negoliatlres basically divergent from senatorial, 3, t 4 7 - 8 , 1 6 z - 7 9 , I 5 7 - 9 ; s o c i a ll i n k s w i t h senators,3, I47; desire ofsome firr political careers, 154; recruitment to senate,3, 5, 6, r 3 0 , r 5 4 - 5 , I 5 9 . 4 9 9 ,5 o I , 5 I 4 - I 5 l n o l opposed to senatorial supremacy' 72-3; support of senate,in crises, | 47, 492; not discontentedwith senate'simperial policy, r56-7, r79-9I; divided in civil wars,6, 159-6z,4gt-2,5o3; as army officers, 163, r98-g; intermittent conflicts with senate, seeunderjtdication, publicans; partly due to desire for'splendor' szehonour; Cicero's ordinum,54-5, r48, I6I' aim of concord,ia 16r: patrons and clients. 394 5, 397; it Principate, 3, r92-3i seealso underGracchi, Sulla extraordinary commands, 33-4 factio, 447 factions: current views, 92,36-45, g5r-2, 443-58,466,5o2; factions round L. Crassus,459-60, 469; Marius and Cinna, 46o-r; Sulla 46I-3; Scipio Aemilianus, 4fu-5, 467-8; Gracchi, 465-6, 468; Scaurus,469; Pompey, Crassusand Caesar not leaders of powerful senatorial faction or factions, 473-89; r??optimates, parties, populares, Sallwt
Jamilia, diversesenses,283-5, 45t-',1 families, srr factions,gezs,kinsmen faaor libertatis, zgr Fescennineverses,3I6 jdes: trust, z, 4o6; as such basis of amicilia and client-patron relations, 39, 355,406, 4 r 5 - t 6 e t c . ,a n d o f v a r i o u s l e g a l obligations4 , I8 rg; credit,6I-:, I75 jducia,74, 4tr freedmen: relations with patrons (exmasters), 3o5,397, 4o7-8, 4r8-zo, 432; other patrons, 398; clients, 397; as voters, r7r,33g,428,43o; Part in trade and industry, 242-3, 2+5 (as agents of patrons, r74); in army, 254,287 generals,srz armies gens,4or, 4o4, 4to, +4+-5, 450-2, 525 o gladiatorial contracts, r86 gloria, seehonorr gratia, g$g-go, cf. 29, 39, 3?2, 37+, 42o, 425, 427-30, 44r historical evidence, 5oB-lo; for Rome, 9r-2, zre (lost works) historical facts, 89, 5o8 honour: highly valued and motive for conduct in Greece and Rome,9o, IBo; of f r e e m e n , 2 8 7 - 9 ; o f R o m a n c i t i z e n s '5 t , 7 o , 9 5 , r z 5 - 6 , 2 g 7 , g 4 g ;o f t h o s e i n h i g h e r orders, 9, I9z-3, 3r8, gz6' 384; of Equites (sometimessplendor),5r, 55, 72, r27, r45, r 5 4 , 1 6 o , 1 6 z , 2 8 8 , 3 I 5 ; o f s e n a t ea n d s e n a t o r s r2 8 , g z , 4 r , 4 3 , 5 I . 5 5 , 6 7 (maiestas1,68 r 5. r , 2 8 8 , 3 r z , 3 2 7 - 9 , 4 t 7 t o f Caesar and his assassins, 51, 38o' 487, 49o-r; of patrons, 393, 44o (infringed by clientship, 5I, 395, 4ro, 4t7); ofstates, esp. Rome and her empire (often maiestas),59, 63, 66, r7z, t7g, t9z-4, r87, zg3' gz7, 462 (The citations include specific references to dignitas, meantng both esteem and social rank, and gloria, and to pages in which the concept is taken to be explanatory) hospitium,3I, Ioo, rog, 386, 392, 393 imperium,I5-18; opposed to libertas,3o9,33r individualism: pervasive of Roman private law, 3o5; in social life, 3o4, 3o7-8 individuals, role in history, 85-9t industry, seetrade i n f a n i n ,f i , r 4 r , r g g , z o r , z z 5 - 6 , z z 7 - g inimieitiae,362, 366-78, 457, 467-8, 47 r, 487, 488 9 (distinct from'occulta odia', 369, and from political opposition), see amicitia zz intercessio, iudex,iudices,scejudication
tNDr.xor sltul:c'l's iudiriun publictan,t{, :1, 5t7,kc qudttlto iura (ius) fofuh, zgli 7, 33r {, 3'ttl 4(t, 5r8-r9 iusciailc:reccption in ltaly, application to all c i t i z e n s ,t t g , t 2 2 - 4 , r 4 r - 3 ; i n d i v i d u a l i s m , 3o5; principle of equality, 334-7; d e v e l o p m e n t ,t t , l 3 ius genttum,zgo ius naturac,zBg-go judication: senatorial monopoly in important civil and criminal casesbefore Gracchi, r94, r97-8; by Gracchus reservedto Equitcs for repetundae,tg4-5, 2or' in other casesdivided between Equites and s e n a t o r s ,r 9 5 , I 9 8 - 2 o 6 , z r 3 - r 6 , 4 7 - g ; f o r rcpdunda(by Caepio, 264-5: equestrian maiestasetc. undet monopoly for repetundae, laws of Mamilius, Saturninus, Glaucia, Varius, r99, zo5; lex Plotia, zo6, zg4,237; restoration of senatorial monopoly proposed by Drusus, 2o5-ro, and effected by Sulla, zog, zrB (perhaps not for civil cases,235*6); Iex Aurelia, zot, zt3, 237; lex Pompeia(52 rc), r95, 2ro,22r; changesin Principate, z3r-z; selectionof unusiudex, for civil casesheard at arbiter, rceuperalores Rome from album, zoo, zz7-38 (or from others with consent ofparties, zoo); for casesoutside Rome, 233, 236, 5t8 jurisconsults, go, 46, t49, 394, 42o kinsmen (agnatesand cognates),37-9, 415- 16, 449-56, 525; divisions exemplified, 454, 456, 457, +6c , 46r, 463-4, 465, 472, +74-5, 486, 487, +95-6 Iaisse4faire, r 76-7, r 79, 3o6-7 land as best investment, 73, t6g; for veterans, 27o- | landholdings ofRomans in provinces, I63, r68, I7z latifundia,247 l a u si m p e r ü , 5 5 ,6 3 * 4 , c f . 4 2 , 4 7 , t 7 z , t & o , rBz-3, r84, t87, zge,-3,487 law: as expressionofpeople's will 297, 3tg' 'popular' 342-6; rule of (in optimate and ius ciaile, conceptions),6o-I, 8o-z; see libertas legends of old Rome, 4o-z legcs,Iex: on civil and criminal law ill attested, t4g, zr6*tg, 528; sanctiones,5tg; Aeli.aSentia, 4o7; Antonia de Termessibus, tyo; Atilia on tutcla, 4tg; AuJcia, 4651' CaeciliaDi.dia, z7; Calpurniaon citizenship, tg3; Catsia dc senatu,z96, 34o-r; Cincia, zt, 4 o 8 ,4 z z , 5 2 5 ; C l a u d i a( z t 8 ) , e t , r 7 3 , 4 2 3 i
541
,rz'.1;I)uonia,'jt>4; Domthafu Saccrdoliis, I'uria lulomenlaria,t I8, zt'.1, 5t5; Horlentia, 3 4 4 ;l u l i a ( 9 o ) r o r - 7 , r < t g ,r 3 z - 4 ; I u l i a e a g r a r i a c( 5 g ) , 2 1 3 , e 4 t , 2 6 6 , z 7 o , 4 3 7 , 4 8 r ; Iulia dc iudicüs,417; Iunia (Penni), 98; Licinia de sodaliciis,I95, 236, 425: Licinia Mucia, gB-lor, rgr; LiciniaeSextiae, 2 t , s e t ; M a e n i a , 9 4 4 ;O p p i a ,z r , 3 o 4 , + 4 7 ; Papiria on coinage, r59; Plautia Papiria, rc7; Ploti.aagraria, 27, z4r-2, 265-6; Poetelia,c85, Pompeiaon parricide, z I 7, zr8, zzo; Pompeiaon Transpadani, I 14, r24,398, 5tt; PompeiaLicinia,4Tz; Porciae zz5, z96, 332, 522-3; fu prooocatione, Publicia,4zz; Publiliae,344;Remmia,zrg; Rosciathcatralis, 146, r59, 398, 5r5; Terentia 225, 33t, (r8g), r38; Valeriaedeprouocatione, 5zz-3; ValeriaeHoratiae, 349-4; Visellia, 146, 5r5; Voconia,trl, ztz; censorin,t66; regulating municipalities in Italy and provinces, r22-4, r37, 225, 23r, 233, 235' 398, 5r3-r4, 5I7, 5r8; for other laws not registered above seeunder Bantia, Caesar, Clodius, C. Cornelius, Drusus (tr. p/. 9I), Flaminius, Gabinius, Gracchi, C. Manilius, Romulus, Saturninus, Sulla, Varius, Vatinius, agrarian question, ambitus,ballot laws, corn-dole, debt, jrrdication, quaestio, rtpetundat,sumptuary rules libels,3r6-r7 liberi: root meaning, 283-4i superior to slaves, zB7-9; status of flüfamiliarum, 284-5, 287 Iibertas: antithesis to slavery, its effects, z8g-4, 287-9; to other forms of dependence(hence admits of degrees), 284-7, z9z-6; natural instinct, 29o. 295; negative and positive senses,3o8-Io; lormer prevalence in linguistic usage, and important in political context, 3I3-14; highly valued at Rome but in diverse and contradictory conceptions and forms, Io, 50, 90, 3o9, 315, 320-+9 parrrm; not a natural right but based on positive law, 289-9r, 3Io; connection with eiritas,z96, 339, 5r8-r9; relation to Power, 292,297, 3o8, 3rr; to aequitas,SSo,33+-8,344,348; not inherently moderate, 3I5, 32o*I; constricted, enlarged, or guaranteed by l a w , z g o , 3 1 7 - 2 o , 3 3 5 , 5 2 o ; a n t i t h e t i ct o inpniun, ggr, auctoritas,32 r, 323-7' 329-30, monarchy, 5r-2, 2gr-2, pincipatus, ro, I23,35o, 4oo; not an abstraction but set of specific rights gradually acquired, zg7-8, gzr (see iura populi); comprises freedom of speech, 3 r 3 - t 5 , 3 e 7 - 9 , a n d a s s o c i a t i o n3, o 6 , 3 3 r ,
5+2
t N D l : xo l ' st,BJl:c'rs
I N D E X O F s u B JE C T S
libcrtas (cont.) much 35o; in fact but not conceptually lreedom in beliel worship. private conduct, economic activity, 3oo-7; of senators(dignitasand independence),5t, 55, 227-3c.,395, 483' 5oo; of other .iiirittr, personal protection, I6' zo, 296, under 3og, 3I3, 327, g3r-4,342, equality l"i, Zg+-l; share in political rights freely e*ercised, including accessto office, and involving claims of popular sovereignty, 349. 52o' 50, 297,g26, 327, 932, 397-46' to 'commoda 523 (cf. Io3, rzG); relation populi', 3a6*9; seeproaocatio'tribunes; in ippeals to public oPinion, 5o-:, 258, ro' 12, 4go-r; eroded in Principate, 2' 3o7, 323' 44o; with reference to -ommunities, (a) freedom from arbitrary rule in varying degrees,5r-2, z9r-z; (b) complete independence,z9z-3; (c) limited self-government,293-6, cf. Io3; see also eleulheria licentia, gzo-2, 326-7, g4r magistrates: (Roman) executive functions, z, r6, 36 (ser consuls, praetors); presidency of assemblies,z6; accountability, t6, zo, 327' rt8, 3 3 3 , 3 4 o - t ; ( a l l i e da n d m u n i c i p a l ) r22, 5r2, 5r3-r4 maiestas(of people), 338, g6t; seequaestto ( in) manciPio,284- 5, 287 manual labour, 347; szewage-labour manubiae,5o6 manufacturing, seetrade marriages of nobility, 37-9, 453-4' 459 Marxist views, 9, 88 mercennarii,947 m e r c h a n t s ,r 4 5 , t 6 4 , r 6 8 - 7 o , r 7 8 , I 8 z - 3 migration: to Rome, 242, 244-5; to ager Romanus,95, 5 I o- l I m i n e s ,t 5 o , 1 6 o , 1 6 6 models, historical, 89, 5to monarchy: abhorred at Rome in Republic' 5r-,2, 2gr-2; not the aim of any faction, ;-8, 68; resentment at Caesar'sautocracy' 4g8-5oo; accePted in veiled fotml see Äugustus, Principate, indifference of urban plebs,5z; Hellenistic, in relation to'free' cities, r95 moneylenders,moneylending, I45' I57-9' r68-76, r87, t89 m o sm a i o r u m , 6 - 7 ,1 3 , 4 9 - 5 1 , 5 5 - 8 ' 6 o , 3 3 o - t motivation, 89-9I munera(civic), 5rg-zo municipalities: attitudes in 49 and ++-Z Bc, 4g7,5og; sezltalY, laws municipia(pre-go), I 36-9
mufder trials: pre-Sullan, zt8-c4; seeguacslio (de sieariis) necessarü, 449, 525 n e g o t i d t l r ers2, 7 , t 5 7 , I 6 7 - 8 , t 7 o , t 7 9 - g I ; connotation of term, 163, r7o nexi,nexum,285-6, 342, 4o4, 4r2' 4r+ nobiles:connolation of term, 5; ascendancy in Republic and causes,r4, z8-32, 385-6, 387*9I, Zg2' 397, 424-5, 428-9' 433; ^ e t h o s , 4 r , $ - 4 , 8 5 , 5 o 5 , s r eh o n o u r ( o f senators);Sallust on their conflict with people, 5o4, reeoPtimates, PoPulares; äccisional unpopularity, e5, 3r, 78, I83' 4r4; Caesariansand Pompeians' 4941 under Augustus, 5-6; seeclient-patron relationship, factions n o r i h o m i n e s , 5 - 8z, 8 - 3 I , 4 2 4 , 5 r 4 - r 5 ' s e e senate (recruitment) noxaedatio,284 oaths, t4, r4r, z6t, 433, $8 oligarchy,4, I4 opii-at..: not a Party in modern sense,but a term for opponents of populares(q.a'), champions of senatorial supremacy' 35-6. by 5z-3, and passim, esp. 47o-Bg; idealized -Cicero and extended to include all äozi 1 4 . u . )5, 4 - 6 6 oratory: importance, 45-9' 329; tnnves ln freedom, 292, 32r otium, generallydesired, 8, 67, 79-Bt, 492, 50r otium cum dignilare, 55-68 pamphlea, 47-9 parties, 35 (impossiblein modern sense);rdd factions, oPtimates, PoPulares palia'. supreme moral claims, 4o-2' 3oo' 355, 38o, 4t6, 45o; secPublic good. pui.i.iutts, alleged patronage of plebeians, 4oo-5; conflicts with plebeians' 2r' 324' 326-7, 33o-2, g35-7, 34t-4, 948' 3%-+' 4t3-r4 $ee annalists) resolvedbY compromise. 68 patrons, 372-6 (in lawcourts); saeclientpatron relationshiP in ltaly, 69-7o. 79, I r3; in W Romana: empire, tz p.u.atttry, g, 25-6, 3t,69, 7g-5, z4r-56 passtm,27r-3 peculalus,65, 5o6; seequaestio number and people (poPulus,P/eäs): distribution, 23-4,71, z4t; and respublica, r, 299, 326; assemblies,(a) centuriate, not democratic but representative of richer c i t i z e n s ,2 4 - 5 , 3 2 5 , 3 3 4 ' 3 4 r ' 3 4 3 ' 4 t 2
(rolc ol ftuitcr, r46, r49 1o, ol rnunitiprl gcntry, t16, r29 3