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Antoniae
Preface
Now I can see why there has never been a comprehensive study of the praetorship in the Roman Republic: it takes a lot of work to picture it as a whole. (For me, about a dozen years’ worth.) On the most basic level, any investigation of this military and civil magistracy—after the consulship, the second most important in Rome—really has to include praetors in office, praetors extended past their term, and non-magistrates granted praetorian powers (whether through special vote or delegation). It has to include the activities of these individuals in fixed territorial provinces (like Sicily or Asia) and in special commands on land and sea. And of course much has to be said about the praetorship within the city of Rome, especially the complex responsibilities of the “urban” praetor (who for much of the Republic often found himself acting as head of state), the praetorian superintendancy of the civil law, the presidency of the major standing criminal courts, and the relationship of praetors of a given year to each other. More generally, the investigation has to operate on two levels: an examination of the praetorship as an institution, and also of the many individuals who managed to reach the office after its creation in the mid-fourth century b.c. That in turn means addressing any number of problems of chronology and prosopography, with constant forays into larger historical issues (administrative, social, political, legal, military, and sacral). True, the study of practically any Roman public institution will make demands of that sort. But the praetorship is different. The fact that we have the names of so many praetors (I count almost 850 down to 49 b.c., three-quarters positively attested and the rest more or less plausibly inferred) makes for an unusual amount of detail and contexts to consider. Matters grow even more complicated if one goes searching for the praetorship’s institutional antecedents. In these volumes (a revised and expanded version of my 1990 Harvard dissertation in Classics, “The Praetorship in the Roman Republic down to 81 b.c.”) my aim is to offer such a “unitarian” view of this magistracy, one that takes into consideration each of the variables outlined above, with particular emphasis on the development of the institution. Inevitably I have to trace the history of imperium— vii
Preface
viii
the most important form of legitimate power in Rome, which was an attribute of the praetorship—from the regal era through its division into two grades (specifically for the creation of the praetorship in 366, as I argue) and then down to but not including the chaotic year 49 b.c. I also (necessarily) review the evidence for the identities and dates of many individual praetors, and in the process offer a number of new solutions. Following the sixteen narrative chapters of these volumes is a section of Additional Notes, where I investigate in detail some problems that would be too distracting if I were to pursue them in the text or its corresponding notes. Then there are two Appendices. The first is a summary of my reconstruction of the principal consular and praetorian commands of the middle and late Republican periods, presented in a series of tables meant to update those in W. F. Jashemski’s The Origins and History of the Proconsular and the Propraetorian Imperium To 27 B.C. (Chicago 1950). The second is a roster of Republican praetors, correcting and supplementing those in T. R. S. Broughton, Magistrates of the Roman Republic I–III (New York 1950–1986), and also indicating social background (as far as it can be perceived) for each individual praetor listed. To keep a freshness of perspective, my approach has been to write directly from the ancient sources. I should emphasize that I do not pretend to tell the full story of the praetorship—far from it. My narrative on the whole adopts the vantage point of the Senate; other viewpoints (in particular, that of the inhabitants of Rome’s territorial provinces) must get less treatment than they deserve, for reasons of time and space. Practical considerations also prevent the extensive recapitulation of ancient events, not to mention the collection of a full bibliography on each of the issues discussed. So in some ways this study addresses an audience which already has a basic sense of the history of the Republic and its institutions. All the same, I do hope these volumes present to any reader a coherent picture of the haphazard development of this complex and versatile superior magistracy. Bryn Mawr, Pennsylvania November 1999
T. C. B.
Acknowledgments
There is much in this study that derives at least ultimately from my Harvard teacher and adviser Prof. E. Badian. It was Professor Badian who first suggested to me the topic and approach of this book, tirelessly directed the dissertation (completed 1990) that underlies this study, and then over the span of almost a decade expertly helped me to develop the present volumes, offering a rigorous critique especially— but by no means exclusively—of my treatment of the period down to 81 B.C. There are many additional beneficia that I could recount: simply put, I owe my academic career to Professor Badian. For his innumerable personal and professional kindnesses to me, I offer here my deepest thanks. I have profited also from the expertise of Profs. J. Linderski (University of North Carolina, Chapel Hill), C. Mackay (University of Alberta), and K. A. Raaflaub (Brown University), each of whom generously read and extensively commented on various versions of volume I; Prof. C. Donahue (Harvard Law School) kindly offered suggestions on my dissertation. Association with many other scholars has enriched this project, especially Profs. R. Billows, J. Bodel, G. Bowersock, E. Champlin, E. Fantham, H. I. Flower, E. Gabba, E. Gruen, C. Habicht, W. V. Harris, C. F. Konrad, U. Laffi, R. G. Lewis, J. Ma, W. E. Metcalf, F. Millar, J. D. Morgan (who showed me a series of his articles previous to publication), R. Morstein-Marx, P. Nadig, R. E. A. Palmer, M. Peachin, R. T. Ridley, F. X. Ryan, my Bryn Mawr colleague R. T. Scott, D. R. Shackleton Bailey, and R. Stewart. I also have learned from my undergraduate and graduate students at Bryn Mawr, especially G. Farney, G. Kelly, P. D. Lackie, S. Phang, and E. Woeckner. I must emphasize, however, that I hold sole responsibility for any faults in fact or in interpretation in these volumes. I benefited tremendously as a graduate student at Harvard University from the steadfast support of its department of the Classics; still, it would have been difficult to complete my dissertation in a timely fashion without the Rome Prize in Classics of the American Academy in Rome (1987/88) and the Mrs. Giles Whiting Fellowship in the Humanities (1989/90). In 1994/95 this project received significant ix
x Acknowledgments
funding from a National Endowment for the Humanities Fellowship for University Teachers, for which I remain most grateful. That same year, thanks to the generosity of (especially) Profs. E. Champlin and J. Ober, I enjoyed a visiting fellowship in the Princeton University department of Classics. I am honored also to have held a Rosalyn R. Schwartz Lectureship at Bryn Mawr College for the years 1995–1998, which contributed materially toward this study; for her general efforts on my behalf, Dr. Nona Smith, director of faculty grants at Bryn Mawr, has earned my appreciation. I owe further gratitude to the Institute for Advanced Study (Princeton, N.J.) for a membership in the School for Historical Studies (spring 1998), which enabled me to wind up this project and make real progress in another (my principal) one. Finally, I thank the Rutgers University department of Classics for an appointment as visiting associate professor (fall 1999) to teach a seminar in which I presented some of the conclusions of this book for discussion. Of all the helpful staff at Oxford University Press, I single out T. Susan Chang (United States editorial offices) for her efficiency, enthusiasm—and courage as an acquisitions editor in taking on this lengthy, specialized work. In the production stage of these volumes it was a joy to work with Angela Blackburn and Maura High of Invisible Ink Publishing Services. I offer more personal thanks to Dr. Nathlie Badian, Prof. John H. D’Arms, Prof. A. Donohue, E. Freise, Prof. Charles and Dr. Anne Fried, Prof. Sharon James, Ms. Wendy Lurie of the American Journal of Ancient History, Prof. S. MillerCollett, Prof. Michael Nylan, M. Seo, and Dr. C. B. Sheffield Jr. My parents, Col. (Ret.) David N. and Terry F. Brennan, my brother Neal, and my sister Brigid have been unfailing in their support. But I owe my greatest thanks to Dr. Antonia C. Fried—my wife—to whom this book is dedicated.
Contents
VOLUME I Conventions and Abbreviations
xv
1 Introduction 3 1.1 1.2 1.3 1.4 1.5
Development of the Republican Praetorship: An Overview 3 The Sources for the Republican Praetorship 6 Mommsen’s View of Imperium and Auspicia, and Reactions to It 12 Reactions to Mommsen’s View of the Earliest “Praetores” 20 Theories of the Development of the Praetorship 25
2 Antecedents of the Praetorship 34 2.1 2.2 2.3 2.4 2.5
Praefectus Urbi 34 The Dictator 38 Magister Equitum 43 The Consular Tribunate 49 The Censorship 54
3 The Creation and Early Development of the Praetorship down to 264 3.1 3.2 3.3 3.4 3.5 3.6 3.7
Sources on the Introduction of the Praetorship 59 The “Legal” Motive for the Introduction of the Praetorship 61 The Political Aspects of the Creation of the Praetorship 63 Administrative Motives for the Introduction of the Praetorship 69 The Introduction and Early Development of Prorogation 73 The Praetorship in the Third Samnite War 75 The Praetorship, 291–264 77
4 Developments in the Praetorship, 263–219 79 4.1 The Praetorship in the First Punic War 79 4.2 The Creation of the Praetor Inter Peregrinos 85 4.3 The Praetorship between the First and Second Punic Wars 89
xi
58
xii Contents
5 The City Praetorships, 218–122 98 5.1 5.2 5.3 5.4 5.5 5.6
General Characteristics of the City Praetors 98 The City Praetors in the Second Punic War 102 Administration of the City Provinciae after 197 107 Praetorian Presidency of the Senate and Assemblies 111 The Levy and Religious Duties 122 Legal Duties of the City Praetors 125
6 Sicily and Sardinia, 218–122 136 6.1 Military Activities of the Sicilian and Sardinian Praetors in the Second Punic War 136 6.2 Sicily and Sardinia in the Period 197–166 144 6.3 Sicily and Sardinia in the Period 165–122 150
7 The Spains, 218–122 154 7.1 Commands to Privati, 218–198 154 7.2 The Spains as Praetorian Provinciae, 197–166 163 7.3 Administrative Policy in the Spains, 165–122 173
8 The Special Provinciae, 218–122 182 8.1 Titulature of the Special Praetorian Provinciae 182 8.2 Methods of Obtaining Special Praetorian Commands 185 8.3 Developments in the Use of Special Praetorian Provinciae in the Italian Peninsula 190 8.4 Praetors and the Reestablishment of Roman Control in Central and South Italy 202 8.5 Praetorian Commands in the Greek East 205 8.6 Special Praetorian Provinciae, 165–122 241
9 General Developments in the Praetorship, 165–122 222 9.1 9.2 9.3 9.4
New Praetorian Territorial Provinciae down to 122 222 Introduction of the Permanent Quaestio in Rome 235 The New Administrative System of 146 239 The Staffing of the Praetorian Provinciae after 146 down to 122 241
Notes to Volume I 247
VOLUME II
10 General Developments in the Praetorship, 122–82 357 10.1 10.2 10.3 10.4 10.5 10.6
Roman Cilicia: Formation and Early Commands 357 The Gauls in the Period before Sulla 359 Non-Annexations in the Period before Sulla 364 Quaestiones Perpetuae down to 81 365 Special Praetorian Provinciae outside Rome 371 Special Provinciae in the City of Rome 384
Contents xiii
11 General Developments in the Praetorship, 81–50 388 11.1 11.2 11.3 11.4 11.5 11.6 11.7 11.8 11.9
The Sullan Reforms 388 Bithynia/Pontus 404 Crete 406 Cyrene 408 Syria 410 Resistance to the Annexation of Egypt 414 Standing Quaestiones in the Post-Sullan Period 416 Special Praetorian Provinciae outside Rome, 81–50 424 Special Provinciae in the City 435
12 The City Praetorships, 122–50 12.1 12.2 12.3 12.4
441
The Provincia Urbana 441 Other City Provinciae, 122–50 453 Interrelationship of the City Provinciae 459 Nonlegal Tasks of the Various City Praetors 465
13 Sicily, Sardinia, and the Spains, 122–50 476 13.1 13.2 13.3 13.4
Pre-Sullan Sicily and Sardinia 476 Sicily and Sardinia in the Post-Sullan Period 482 Pre-Sullan Spain 498 Spain in the Period after Sulla 503
Macedonia in the Pre-Sullan Period 521 Macedonia in the Post-Sullan Period 528 Africa in the Pre-Sullan Period 539 Commanders for Africa in the Late Republic 544 Asia in the Pre-Sullan Period 546 Asia in the Post-Sullan Period 557
15 Cilicia and the Gauls in the Late Republic 571 15.1 Roman Cilicia in the Late Republic 571 15.2 The Gauls in the Post-Sullan Period 574 15.3 The Staffing of the Praetorian Provinciae after 122 583
16 Conclusions 597 Additional Notes 640 Appendix A. Table of Commands in Some Important Territorial Provinciae, 219–50 679 Appendix B. Fasti Praetorii 723 Notes to Volume II 765 Select Bibliography 933 Select Index of Roman Names General Index
962
943
Conventions and Abbreviations
All ancient dates are b.c unless otherwise stated. Abbreviations of periodicals are those of L’Année philologique. Abbreviations of Latin authors and texts follow those of the Oxford Latin Dictionary, except that Asconius is cited by Clark’s page in the Oxford Classical Text, and Florus, Epit. is cited without title; Greek authors and texts follow those of Liddell, Scott, and Jones, Greek-English Lexicon9. Additional abbreviations of ancient authors: Amm. Marc. Aug. Cass. Epit. Oxyr. Eutrop. Fest. Gran. Lic. Jer. Just. Lact. Obseq. Oros. Per. Ruf. Fest. Vir. ill.
Ammianus Marcellinus Augustine Cassiodorus Oxyrynchus epitome of Livy Eutropius Festus (Paul. Fest. = Festus ex Paulo) Granius Licinianus Jerome Justin Lactantius Julius Obsequens Orosius Livian Periochae Rufius Festus “Victor,” De Viris Illustribus
Abbreviations of collections and frequently cited modern works: ANRW
H. Temporini and W. Haase (edd.), Aufstieg und Niedergang der römischen Welt (Berlin 1972– ) xv
I. Erythr. IG IGRP I. Iasos I. Knidos ILLRP ILS I. Mylasa Inscr. Ital. XIII
I. Olympia I. Priene LSJ Mommsen, St.-R.
Cambridge Ancient History (Cambridge 1923– ) Corpus inscriptionum Etruscarum (Leipzig 1893–1935) Corpus inscriptionum Latinarum (Berlin 1862– ) J. W. Crawford (ed.), M. Tullius Cicero: The Fragmentary Speeches2 (Atlanta, Ga., 1994) Fouilles de Delphes. Vol. 3: Épigraphie (Paris 1929– ) F. Jacoby (ed.), Fragmente der griechischen Historiker I–III B (Berlin 1923–1950) C. and T. Müller (eds.), Fragmenta Historicorum Graecorum I–IV (Paris 1870–1885) C. G. Bruns and O. Gradenwitz (eds.), Fontes iuris Romani antiqui7 (Tübingen 1909) S. Riccobono (ed.), Fontes iuris Romani anteiustiniani I2 (Florence 1941) H. Peter (ed.), Historicorum Romanorum reliquiae I2 (Leipzig 1914) and II (Leipzig 1906) F. Durrbach, P. Roussel, M. Launey, J. Coupry, and A. Plassart (eds.), Inscriptions de Délos I–VII (Paris 1926–1972) H. Engelmann and R. Merkelbach (eds.), Die Inschriften von Erythrai und Klazomenai I–II (Bonn 1972–1973) Inscriptiones Graecae (Berlin 1873– ) R. Cagnat and G. Lafaye (eds.), Inscriptiones Graecae ad res Romanas pertinentes I, III–IV (Paris 1906–1927) W. Blümel (ed.), Die Inschriften von Iasos I–II (Bonn 1985) W. Blümel (ed.), Die Inschriften von Knidos I–II (Bonn 1991–1992) A. Degrassi (ed.), Inscriptiones Latinae liberae rei publicae I2 (Florence 1965) and II (Florence 1963) H. Dessau (ed.), Inscriptiones Latinae selectae I–III (Berlin 1892–1916) W. Blümel (ed.), Die Inschriften von Mylasa I (Bonn 1987) A. Degrassi (ed.), Inscriptiones Italiae XIII. Fasc. 1, “Fasti Consulares et Triumphales” (Rome 1947). Fasc. 2, “Fasti Anni Numani et Iuliani” (Rome 1963). Fasc. 3, “Elogia” (Rome 1937) W. Dittenberger and K. Purgold (eds.), Die Inschriften von Olympia (Berlin 1896) F. Hiller von Gaertringen (ed.), Inschriften von Priene (Berlin 1906) H. G. Liddell, R. Scott, and H. S. Jones, Greek-English Lexicon9 (Oxford 1925; rev. ed. 1996) T. Mommsen, Römisches Staatsrecht I3, II3, III (Leipzig 1887)
Conventions and Abbreviations
MRR OCD3 OGIS OLD ORF3 RDGE RE RRC RS SEG Shackleton Bailey, CLA Shackleton Bailey, CEF Shackleton Bailey, CEQF SIG3
Taylor, VDRR TLL Wiseman, NM
xvii
T. R. S. Broughton, The Magistrates of the Roman Republic I–III (New York 1951–1986) S. Hornblower and A. Spawforth (eds.), The Oxford Classical Dictionary3 (Oxford 1996) W. Dittenberger (ed.), Orientis Graeci inscriptiones selectae I–II (Leipzig 1903–1905) P. G. W. Glare (ed.), The Oxford Latin Dictionary (Oxford 1968–1982) E. Malcovati (ed.), Oratorum Romanorum fragmenta liberae rei publicae3 (Turin 1967) R. K. Sherk (ed.), Roman Documents from the Greek East (Baltimore 1969) A. Pauly, G. Wissowa, and W. Kroll, Real-Encyclopädie der classischen Altertumswissenschaft (Stuttgart 1894–1980) M. H. Crawford, Roman Republican Coinage I–II (Cambridge 1974) M. H. Crawford (ed.), Roman Statutes I–II. BICS Supplement 64 (London 1996) Supplementum epigraphicum Graecum (Leiden 1924– ) Shackleton Bailey, D. R. Cicero’s Letters to Atticus I–VII (Cambridge 1965–1970) Shackleton Bailey, D. R. Cicero: Epistulae ad Familiares (Cambridge 1977) Shackleton Bailey, D. R. Cicero: Epistulae ad Quintum Fratrem et M. Brutum (Cambridge 1980) W. Dittenberger, F. Hiller von Gaertringen, O. Weinreich, and E. Ziebarth (eds.), Sylloge Inscriptionum Graecarum I3–IV3 (Leipzig 1915–1924) Taylor, L. R. The Voting Districts of the Roman Republic (Rome 1960) Thesaurus Linguae Latinae (Leipzig 1900– ) Wiseman, T. P. New Men in the Roman Senate, 139 B.C.–A.D. 14 (Oxford 1971)
The Praetorship in the Roman Republic
1
Introduction
1.1 The Development of the Republican Praetorship: An Overview The praetorship was an important military and civil office—of regular magistracies, second only to the consulship—and was one of the most enduring of Roman political institutions: it originated in the mid-fourth century and lasted in some form through the late Empire. The praetor held imperium (traditionally, the original regal civil and military authority) which was defined as being of the same nature as the consuls’, but minus, “lesser,” in relation to theirs. As a magistrate with this type of imperium, almost all activities of the consul were open to the praetor, unless a consul stopped him; but a praetor could not interfere with the consuls. The praetor’s imperium was also minus in respect to a dictator’s. Imperium that was valid in Rome and in the field guaranteed that the responsibilities of the various praetors in the Republic were substantial. The urban praetor was, in the (quite common) absence of the consuls from the city, the chief magistrate in Rome and, as such, the president of the Senate. The urban and (by the second century) the peregrine praetor were at the head of the entire Roman legal system. And praetors came to be in charge of standing criminal courts as they were established. All praetors were potential military commanders; they also were the magistrates regularly sent out to govern the fixed territorial provinciae. Simply put, the praetorship was the “workhorse” of the Republican system of government, the magistracy expected to cope most readily with developments in the Roman attitude toward administration, warfare, law, and empire. It was also soon the highest most people who embarked on an official career could hope to reach. 1.1.1 Summary of Volumes I and II In this book, I examine the office’s origins and its development down to 50 b.c. Volume I starts with a survey of Roman (and modern) views on the development of 3
4 The Praetorship in the Roman Republic
legitimate power from the kings, through the early chief magistrates, and down to the creation of the praetorship in 366. Here I am not so much concerned about what really happened in regal or earliest Republican Rome, as with what was thought to have happened, in order to reconstruct actual Republican practice for the historical period. I explain that it very likely took almost a century and a half for the Romans of the Republic to arrive at the concept of two grades of imperium. This counters the prevailing notion among scholars that imperium minus was original to the Republic. Indeed, I argue that the creation of the praetorship marked a major conceptual leap: for the first time, the Romans were able to reconcile in a proper magistracy the concept of permanent subordination with what was essentially regal imperium. This was quite a productive discovery, for in the long term it gave Rome the ability to acquire and govern an actual empire. I also seek to prove that when Livy states that the praetor was introduced specifically to hear cases of law at Rome, he is being wholly anachronistic. The acceptance (first recorded for 327) of extension of imperium beyond the year of the magistracy (“prorogation”) allowed the Romans to keep the system of a small number of regular magistrates with imperium. The number of consuls would remain fixed at two throughout the Republic; the praetorship proved more flexible. I attempt to trace the decision-making process which led to the increase in the number of praetors from one to two (ca. 244, now to be called urbanus and inter peregrinos, “over foreigners”—the latter, I argue, originally being a military commander, though later normally sharing in jurisdiction in the city), four (ca. 227, to provide for Sicily and Sardinia), and then six (for 197, made necessary by the addition of two Spanish provinces). I also show that there were important constitutional, social and political effects which followed each of these additions, including the eventual insistence on the praetorship as a prerequisite for the consulship (ca. 196). Once there was a college of more than one or two praetors, they received their provinces by lot. One major aim of Volume I is to sort out the relationship of the urban and peregrine praetors1 to each other, and against the “new” ones—that is, those later added for Sicily, Sardinia, and Spain. I emphasize that all these praetors were essentially the same in conception, and the way that they divided their tasks did not depend on some special powers inherent in their respective provinciae. When required, any praetor, regardless of the provincia—city or territorial—he received in the sortition, generally could fulfill the functions of any other. The Romans were reluctant to go beyond a system of two consuls, six praetors, and frequent but limited prorogation. It appears that the Senate wanted to control the number of ex-praetors competing for the consulship; in fact, in the early second century there are demonstrable links between provisions controlling the number of praetors and electoral bribery legislation. In 146 (the date of the organization of Macedonia and Africa as praetorian provinciae), it was decided not to increase the number of praetors. This decision made it impossible for all the provinciae to be governed by regular magistrates in their year of office: there were now eight praetorian assignments, counting the “city” jurisdictions (i.e., urban and peregrine), but only six praetors. There was no option but to make the regular prorogation of overseas governors into actual policy.
Introduction 5
It is remarkable how soon we find exploitation of what was, in effect, a new system of provincial government. In the year 126 came the formation of the praetorian province of Asia, and by 122 C. Gracchus had introduced a standing court at Rome, presided over by a praetor, to try cases of provincial extortion (repetundae). Gracchus’ reform provides a convenient terminus for the first portion of my study. C. Gracchus was the first to make a criminal court into a permanent praetorian provincia, placed each year in the sortition. But Gracchus’ innovation placed enormous pressure on the old city-state structure of government. In Volume II, I discuss how the introduction of C. Gracchus’ new provincia in 122 pushed the old city-state system of six praetors to the limit of where it could still function satisfactorily by means of regular prorogation. However, Gracchus’ court set in motion a new round of expansionism. In the decades that followed, several more such quaestiones were instituted, following his precedent; Rome also soon proceeded to take on further territorial commitments. Before long, the pressures caused by these accretions, combined with the military exigencies raised by the Social and Civil Wars, almost brought down the entire system. In 81, as dictator, Sulla tried to shore up the existing arrangement for administration by increasing the number of praetors to eight, a measure which had been long resisted. He also sought to limit as far as possible the need for prorogation for long periods by instituting a system aimed at regular annual succession. But this introduced its own concomitant problems. This study of the praetorship (which includes prorogued praetors and indeed all holders of praetorian imperium, though not their subsequent careers) necessarily impinges on political, social, military, and legal history, as well as on questions involving Roman religion. All of these issues receive attention in these volumes, though in widely varying degrees; I have tried to adhere to a problem-solving approach, and not write an encyclopedic work. In particular, I should note here at the outset that I touch upon issues concerning Roman civil and criminal law only summarily (mostly in chapters 3, 5, portions of 10 and 11, and 12). The supervision of justice is the area of the praetor’s activities where the most work has been done, notwithstanding the fact that, outside of the praetorian edict as codified under Hadrian, there is very little direct evidence on the civil law duties of the city praetors before the Empire. A proper treatment of the praetor’s legal functions in line with the rest of my study would have to include not only the civil and criminal jurisdiction of the various city praetors, but also the whole of Roman provincial jurisdiction. This in turn would involve writing much of the history of provincial administration under the Republic—all obviously far beyond the intended scope of the present volumes. My main concerns are to elucidate the basic powers of the praetorship, to identify pivotal points in the office’s main development, and to examine the Senate’s policy toward the various praetorian provinciae once they emerged. I also offer a number of revisions of the generally accepted dates and identities of individual praetors. Appendix A presents in tabular form my reconstruction of the disposition of commanders in most of the territorial provinciae for the middle and later Republic. Moreover, at Appendix B I have compiled a new list of praetors for the
6 The Praetorship in the Roman Republic
years 366–50, which aims to be complete. In this list, I have included the praetorian provincia(e) and personal social background (where ascertainable) of each man. Statistics gleaned from these praetor lists (analyzed in that same appendix) shed some new light on the social history of the office—in particular, I believe I can demonstrate cheating by elites in the (theoretically impartial) praetorian sortition so as to monopolize the plum provinces. Yet this book aims to make its main contribution to the administrative history of Rome. This is a field which needs much more work, both of detail and of synthesis, especially for the Republican period. The Romans never codified their constitutional law, and no extant ancient author takes much interest in the actual mechanics of how Rome governed its citizens or ruled its territory in the Republic. Nor, for long after Mommsen, did many modern scholars take much trouble over these problems, though in the last two decades that situation has rapidly started to change in select areas, in particular, as concerns the nature of Roman imperialism, military and economic aspects of provinces once organized, the process of Romanization in territorial provinces, and the attitudes of the governed to their praetorian governors. All the same, it is worth pointing out that we still lack a satisfactory general history of Roman provincial administration under the Republic—a void which, as I have noted, I do not pretend to fill. But what I do offer in these volumes—a reasonably thorough description, based firmly on the sources, of the development of the most important cog in the Republican administrative machine—should offer a solid foundation to others for any number of further studies. If we can take the Romans on their own terms and try to understand how they construed imperium, it surely will be easier to disengage the principles behind the “imperium Romanum,” Rome’s territorial empire.
1.2 The Sources for the Republican Praetorship 1.2.1 Sources for the Years 366 to 218 Polybius chose the year 220 as the starting point for his main historical narrative. One reason, as he tells us, was that any account of the years previous to that date must be based on ajkoh; ejx ajkoh`~, hearsay at one or more removes.2 No Romans wrote history until the end of the third century. And once the Romans started writing their own history, their historical narratives necessarily assumed an “hourglass” shape.3 There was a great deal of traditional and colorful material from the legendary period, the regal era and the earliest Republic which invited expansive storytelling. Starting at about the mid-fifth century (the XII Tables, the second secession of the Plebs, and the leges Valeriae Horatiae), the traditional material on political struggles at Rome started drying up. Historians appear to have raced through the scant material for the fifth, fourth, and first three-quarters of the third century (none of it of course contemporary) in order to get down to the era of documented history.4 It is unfortunate for our study that the early development of the praetorship coincides exactly with what must have been the narrowest span of the historio-
Introduction 7
graphical “hourglass.” This was the period of the mid- to late fourth century, and the early part of the third down to the time of the First Punic War. That is not to say there was no reasonably reliable information available on this period. The “tabula apud pontificem maximum,”5 that is, the annual record compiled by the various pontifices maximi and displayed in the Regia, will have provided a skeleton for historical and antiquarian research.6 In the tabula the names of the consuls (and consular tribunes) must have been displayed at the head of each year: the records were dated in this fashion. Some dictators may have been listed, but only those appointed to see to religious matters.7 Censors may have been included, because of their connection with the lustrum. But it is also quite possible that this event was marked in the tabula by a simple notation such as “lustrum conditum.”8 There is no reason to believe that praetors made it into the tabula. Consequently, we have no proper epigraphic lists of the men who held the office, as we do for other major Republican magistracies in the Fasti, especially those preserved today in the Capitoline Museum in Rome. It seems unlikely that there were ever any official lists of praetors on stone. But this is not to say that no record existed in antiquity. Good lists of praetors—giving even the order of election—were available to Livy, certainly starting with the period of the Hannibalic War (see 1.2.2). There probably was a reliable roster which went back at least to 227 (when the number of praetors became four), and perhaps a bit further.9 Besides the tabula kept by the pontifex maximus, there were the records kept by individual families. Once the practice of writing history came into vogue in Rome, the descendants (and self-styled descendants) of early magistrates will have been eager to make sure that their forebears (authentic or otherwise) whose elogia and imagines were displayed in their individual atria made it into the published record. This must be the main channel through which the early dictators “rei gerundae caussa,” praetors, interreges, and plebeian tribunes have come to our knowledge. Family sources restrained widespread falsification of the basic record.10 But they could also contribute to the contamination, as Livy (like Cicero before him) realized.11 Consulships and consular tribunates could not easily be manufactured, although lines of descent from men who held the office clearly could. Praetorships were a different matter: there was no reliable way to check whether a given man indeed held the office in a particular year. A praetorship—or even multiple praetorships—could be ascribed to an individual without violating the generally accepted skeleton of early Republican history. So might the passage of supposed laws.12 Conflicting claims between families resulted, which the first generations of antiquarians and historical writers had to sort out for themselves. Later historians probably chose only from previous written accounts. As for the antiquarians, there is no good reason to think that they were specially skilled at interpreting the auspical and constitutional lore they found pertaining to the early magistracies.13 Even in Livy’s later decades, his annalistic sources leave a great deal to be desired. The written tradition (only some of it contemporary) of the period of the Second Punic War in particular was skewed by family influences.14 Two (or more) variant accounts could report the same events, and frequently Livy conflates conflicting sources, with unhappy results.
8 The Praetorship in the Roman Republic
Of course, Livy was at the mercy of his sources, as he himself complains. But as we shall see (particularly in chapter 3), Livy the historian did not make full use of what reasonably reliable information he had before him, despite the fact that the praetorship was in a sense the practical consequence of the Struggle of the Orders, one of the main themes in his first decade. The second pentad of Livy—our sole extant continuous narrative that covers the creation and early years of the praetorship—contains only random information about the origin of the office and the praetors of the period 366 to 293 (where Book 10 breaks off). There are very few occasions when we can supplement Livy’s unsatisfactory account. Diodorus, who is useful on Roman affairs in this period only for the years 314 through 295, does not mention the praetor in his narrative of these years. Matters get somewhat better in Livy’s treatment of the Third Samnite War (extant for 298–293), where there is enough information presented regarding magistrates with imperium for us to deduce how some decisions of administrative principle were made. Nevertheless, Livy’s account breaks off before the end of the war, which came in 290. The loss of Livy’s second decade (except in the most unsatisfactory summary of the Periochae) means that we are practically in the dark for the years 292–219. The first two books of Polybius do provide some scraps of relevant information, particularly on the praetor’s (limited) role in the First Punic War and Roman warfare in the Gallic north. And the Periochae can also be supplemented in a few places by Cassius Dio (Books 7–12), almost all in Byzantine excerpts and through the Zonaras epitome.15 1.2.2 Sources for the Years 218 to 166 It is really a pity that Polybius in Book 6 did not think the praetorship important enough to warrant description, either in his great sketch of the division of powers at Rome, or in the more detailed discussion of the Roman state which follows. It is clear that this was not a simple oversight on his part, but a deliberate omission. Perhaps Polybius felt that explanation of the praetorship would unduly complicate the careful symmetry of his “mixed” constitution, which showed, so he argues, elements of monarchy (consuls), aristocracy (Senate), and democracy (the People, led by the tribunes). Once he omitted the praetorship from this general and theoretical picture, Polybius might also be reluctant to include it in the subsequent portions of his schematic overview.16 All the same, Polybius’ choice is puzzling, since the praetorship was an integral part of the Roman political system even at his chosen “high point” of Roman constitutional development, the time of the Hannibalic War. In default of Polybius, Livy remains our main authority on the nature of the praetorship in the mid-Republic. As we shall see throughout this study, Livy offers a tremendous amount of “archival” material on matters pertaining to the res publica and its magistrates. Livy reports all praetorian elections and most of the praetorian provinciae starting with the year 216 down through 166. He also reports a great many (but surely not quite all) instances of prorogation of imperium, and sometimes gives very full accounts of the activities of praetors and holders of praetorian imperium. Livy may even preserve the actual order in which the praetors were
Introduction 9
returned for most years: it is difficult to see what else could determine the form of the electoral lists (they are surely not random).17 In a few instances we can supplement Livy with passages from Polybius and Dio, selections from Plutarch, inscriptions (particularly from the Greek east for the post-Hannibalic period), and chance references from a wide variety of literary texts, ranging from Republican annalists to Christian authors. Coins make only a modest contribution to the study of the praetorship in this period (mostly during the Second Punic War). Yet this wealth of information presents many problems which must be worked out in detail. The most significant obstacle comes from the fact that Livy cannot be taken as reflecting constitutional procedure with reliable security. A general observation of F. W. Walbank has relevance to our study of the praetorship: “[H]is ‘archival’ sections contain regular references to assignments of land and the setting up of colonies, the crushing of slave revolts, examples or threats of tribunician action . . . and constitutional details . . . described by Livy in terms which leave it very obscure whether he had an inkling of what was involved and almost certain that he did not care.”18 J. Linderski has demonstrated in detail how careless Livy can be in the sphere of Roman religion: “Livy often commits glaring errors or stops telling a story at a point that doctrinally does not make any sense.” Take, for instance, the expiation of prodigies. All the stages of the ritual (six in all, as Linderski shows) somewhere find a mention in Livy, but Linderski notes, “[H]e mentions them randomly, never giving a picture of the whole procedure, and never bothering to explain the underlying theological doctrine.”19 Linderski’s comments can be extended to matters involving auspicia and imperium. However, Linderski’s own work also shows that, in these matters, Livy’s voluminous history sometimes provides enough pontifical, auspical, or constitutional detail to allow a reliable reconstruction of a complicated ceremony or process.20 In the one major instance where we can check, Livy conveys the essential content of a senatus consultum (the so-called S.C. de Bacchanalibus, which is epigraphically preserved), but distorts it in detail. It does seem that there existed, however, at least in the late Republic, a reliable collection of senatus consulta, which will have been Livy’s source in many cases (though probably not at first hand).21 This record of the Senate’s business, when combined with the personal recollections and material from family archives which eventually found their way into earlier historical accounts, must have provided a good deal of the “formal” material which shows up in Livy Books 21–45.22 Yet the truth is—as Walbank rightly noted—that Livy has no real interest in administrative matters per se. The administrative and social developments that earn more expansive treatment in his work are mostly the ones that lead to conflict or violent outbreaks, or allow a moral point to be made. (The same can be said of Greek authors like Plutarch and Dio; Appian is a bit different, as we shall see in 4.2.) Yet even here Livy sometimes leaves us in the dark regarding matters about which we should like to know more and which we might expect him to report. He cannot be blamed for not recounting senatorial debates, which at least in principle were secret.23 Discussions in the Senate do not seem to have been written up by the annalists, owing to class reticence by senatorial authors and later plain ignorance by other historians.24 And Livy does usually report public debates on issues
10 The Praetorship in the Roman Republic
of interest to him, some of which are quite important for our study (see especially 8.3.3). But even taking Livy on his own terms, his narrative shows some surprising omissions.25 We thus must proceed largely by statistics gleaned from his praetor-lists and supply our own conjectures as to how decisions of administrative principle were made. Even that can be difficult. Inaccurate titulature is a real problem in Livy (see, e.g., 5.1.1 on the name of the provincia of the peregrine praetor), and makes our study of the development of the praetorship quite difficult. Livy’s copyists can also be careless. Mistakes in praenomina and sometimes cognomina of praetors abound.26 And there are other sorts of textual problems: the (single) manuscript for Livy’s fifth decade is in a particularly poor state.27 1.2.3 Sources for the Years 165 to 50 We know rather little about the identities and even less about the activities of the praetors of the latter two-thirds of the second century and first two decades of the first century. Once Livy’s continuous account gives out, so do the annual reports of praetorian elections and provinciae such as are found in his Books 22 through 45 (ending with 166), though Cicero starts to help a bit for the period starting ca. 100. Five hundred four praetors will have been elected for the years 165–82. Less than one-third of the names of these men (a total of 163, 63 for the period down to 120 b.c. and 100 from that point down through 82 b.c.) come to us from direct attestation in the ancient sources of an individual praetorship, a promagistracy resulting from a praetorship, or praetorian rank. However, since virtually every consul must have been an ex-praetor in the years starting ca. 196 (7.2.4), we can identify with reasonable certainty a little over 130 additional Romans (65 from the years 165 down to 120 b.c., then 67 between 119 and 82 b.c.) who held this office, working from the consular Fasti and from notices in literary sources concerning failed consular candidacies.28 On occasion, praetorian rank also may legitimately be inferred from details such as an individual’s position on an embassy. More risky are inferences of praetorian status based on criteria such as an individual’s service as a legatus in an important military command or status in the Senate. All told, even on a generous reckoning, more than half (54 percent) of the praetors of 165–120 are lost to us. Matters improve somewhat for the next five decades: of the 228 praetors who held office in the years 119–82 b.c., 167 names are known (73 percent). Yet for both these periods many of these praetors are only names, without firm dates. We know the precise year of office for just 31 praetors of the years 165–120 (3 for the 160s, 4 for the 150s, 13 for the 140s, 8 for the 130s, and only 3 for the 120s)—adding up to a mere 11 percent of the total number of available places. The years 119–82 b.c. are not much better in this regard. Again, here we have 31 dated praetors (5 for the 110s, 7 for the 100s, 6 for the 90s, and 13 for the 80s), totaling a paltry 14 percent of the praetors elected over that span of time. In fact, for no individual year in this period can we reconstruct an entire praetorian college, and seldom can we compile a list of a continuous series of praetors who held command in a particular provincia. One important reason for this is that
Introduction 11
once real trouble developed in a provincia—that is, exactly when we are likely to get information—it was typically declared consular. Nonetheless, there are a few instances where we do have relatively complete information on a particular theater over a limited period of time. In particular, Appian’s Iberica gives us the relative order of praetorian commanders in Spain in the mid- to late 150s and then 147–143 (7.3.1). A passage of Florus preserves the names of four “praetores” who were defeated in the First Slave War in Sicily in the mid-130s (6.3.1). Because of the compressed nature of the sources, these cases remain highly problematic. As an indication of the poor state of affairs elsewhere, we may note that only one man can be identified with certainty as having held the peregrine praetorship in the period 165–122 (Cn. Cornelius Scipio Hispanus in 139), and no Sardinian praetors receive certain attestation—though both offices must have existed throughout. It is only starting with the year 81 that we again can compile relatively full lists of praetors and provinciae. From that year—which saw the annual college of praetors raised to eight (11.1.1)—down to 50 b.c., there were a total of 256 praetorian places. We can provide names for perhaps 194 (76 percent) of these slots, with 152 directly attested and a further 42 inferred with reasonable security. There are just enough dated praetorships (39 percent of the existing places) to allow detailed study of developments. We have 101 in all for these years: 9 for the years 81–80 alone, then 22 for the 70s, 34 for the 60s, and 36 for the 50s. Thanks to Cicero—naturally our main source for the first half of the first century—we can reconstruct a complete praetorian college for the year 57, and come up with most of the praetors for a few additional years: see the detailed discussion in 12.3.1. Yet even the evidence to be found in this author cannot approach the comprehensive, year-by-year coverage of the praetorship that Livy’s annalistic treatment provides. Here I cannot discuss the merits and deficiencies of each of the (many) individual sources—literary and non-literary—that contribute to our knowledge of the praetorship for the period 166–50 b.c.: my own assessments on that score are scattered liberally throughout the detailed narrative of chapters 10–15. However I might emphasize that for these years the modes of titulature are no less confusing than for previous eras. Consider, for instance, the terms strathgov~, strathgiva, and the like in the sources relevant to the later Republic. For Romans, we find the word denoting variously “praetor” (in the city or in the field), “pro praetore” (both by prorogation and through a special grant of imperium), and “consul.” It can also mean “pro consule,” a category that in turn can be subdivided into prorogued consuls, praetors (or ex-praetors) with enhanced imperium, and privati with special powers. A quaestor or a legatus can be called strathgov~ in our Greek sources. So can individuals holding an illegal command. Naturally, often it is just a generic term for “military commander.” And sometimes strathgoiv in the plural is used of a mixed group of individuals of various status. Strathgov~ is just the most obvious word to single out in this way; this type of demonstration can easily be extended to other terms—both Greek and Latin—which admit multiple interpretations. The important point is that difficulties such as these only exacerbate the already daunting task of piecing together the story of the praetorship in the Republic.29
12 The Praetorship in the Roman Republic
1.3 Mommsen’s View of Imperium and Auspicia, and Reactions to It Since the Romans never codified their constitutional law, it is difficult to trace the powers and historical development of any individual magistracy. My study would be impossible were it not for Theodor Mommsen’s monumental Römisches Staatsrecht I3, II3, III (1887–1888), a masterly synthesis of all the evidence then known regarding the Roman constitutional system. Indeed, the forty-five-page overview of Theodor Mommsen in Staatsrecht II3 remains virtually the only attempt at a comprehensive assessment of the Republican praetorship.30 In this section, I offer a brief overview of some of Mommsen’s basic views on powers of the kings of Rome and the early consuls, followed by a discussion of three areas where scholars have developed significant conflicting theories: the origin of imperium; patrician “ownership” of the public auspices; and the lex curiata. I must reiterate that, when it comes to the “constitution” of regal Rome and the earliest Republic, I am not concerned with what actually did happen—which in most cases is of course wholly irrecoverable. It is more important for the study of the praetorship to elucidate what individuals in the time of the developed Republic thought had happened. 1.3.1 Mommsen’s View of Imperium Mommsen, in developing his ideas on the various Roman magistracies and their powers, sought as far as possible to reflect the views held by the Romans themselves. For Mommsen (as for Cicero and Livy), imperium originally was the full power of the king in military and civil matters. The king’s imperium was symbolized by the attendance of twelve lictors, each carrying the fasces: a bundle of rods with an ax in the middle, an emblem of the king’s coercitio (the power to enforce obedience to commands) and capital jurisdiction. With imperium came auspicia publica, the right of ascertaining the will of Jupiter on behalf of the state in certain prescribed ways. Mommsen considered auspicia and imperium as largely overlapping concepts: “[T]hey express the same idea considered under different points of view.” Originally, auspices were taken before any and every important action—hence the existence of auspicia privata (which did not so much concern Mommsen) and auspicia publica. The pomerium, the sacral boundary of the city, marked the limit for urban (public) auspices; outside the urbs, there was another set (the “military” auspices) that obtained.31 Mommsen viewed imperium as an absolute power that entitled the king to do whatever he thought fit in the public interest, whether inside or outside the pomerium. The two spheres in which imperium might be exercised were termed domi (at home, i.e., in the city) and militiae (in the field), a conceptual division that Mommsen considered as old as Rome itself. Imperium was not simply a bundle of specific competences. Nor was it liable to demarcation, other than the spatial (not qualitative) one, domi and militiae. Since imperium originally was vested in the person of the king alone, it was indivisible. Mommsen emphasized that the king’s
Introduction 13
power was no less on one side of the city boundary than on the other, and his lictors carried the fasces—complete with axes—on both sides of the pomerium. The king was entitled to exercise his military functions in the city (i.e., in its defense), and his civil ones outside—though of course the opposite would de facto be the normal state of affairs. The imperium of the king enabled him to name his own auxiliaries, even lending them the fasces to act in his stead. But in the monarchy there could not be a conflict of powers, since the king was the sole holder of imperium with the public auspicia.32 Previous to Mommsen, J. Rubino had argued that, when a king died, the public auspicia (which belonged to the kings) devolved upon the patrician Senate; they then had to be reinstated (renovata), because the patres do not own them. After the renovatio, an interrex is produced from among the patres, who himself appointed a new king, with the approbation of the gods, patres, and People.33 For Mommsen, however, the patres are as a body the original owners of auspicia. The auspices returned to their “undisturbed and pure source,” the patrician Senate. The interregnum itself was a reinstatement of the auspices, which made them once again perfect for the next king. The first interrex, whom the patres had chosen from among themselves through election or lot, could not hold the consular elections. Since the chief magistracy was vacant at the time of his appointment, no one was available to handle the full auspicia publica, and thus transmit them on to him. Once appointed, the interrex acted as head of state for a five-day period, after which he created under the regal auspices a new interrex. And so each interrex subsequent to the first had the full power to hold the consular comitia.34 Mommsen accepts the tradition that the People elected their kings under the presidency of the (second or later) interrex. Starting with Numa Pompilius, Cicero tells us that a new king also put to a vote by the People in the Curiate Assembly a law de suo imperio.35 Mommsen noted that to call such a measure a “lex de imperio” is technically inaccurate; the king must already have held imperium to put the question to a vote. Rather, the lex curiata was the act through which the People expressly bound itself to obey the imperium of the new king, thus in effect ratifying that power.36 Upon the expulsion of the kings (traditionally dated to 509), Mommsen held that two magistrates called praetores were chosen to replace the king from among the patricians.37 He accepted the term praetor (the term we find for “consul” in the XII Tables)38 as a deformation of “prae-itor,” he who goes before, that is, in a military context.39 Each of the praetores—later to be known as consuls40—had imperium, the full power of the king, represented by the twelve lictors. The Romans of the Republic retained the regal “two-track” system of popular selection followed by ratification; the consuls also required a lex curiata de imperio after election.41 But the consuls (or rather, one of the consuls) saw to the appointment of their successors, and, through the election process, transmitted imperium and auspicia directly to them.42 The interrex, who saw to the election of kings in the regal period, was now found only on the extraordinary occasions when both consuls had died or when a delay in the elections had led to a complete vacancy in the office. The consuls did not quite have the absolute, unaccountable power of the king. Unlike the king, they were limited to one year of office. The consulship also was
14 The Praetorship in the Roman Republic
collegial. Each had the full power of the magistracy; but in case of conflict at home or in the field between consuls (or indeed any magistrates of the same rank), it was ordained that the negative vote should prevail over the positive.43 Tradition held that, in the first year of the Republic, the consul P. Valerius Publicola introduced further restrictions. A Roman citizen now generally had the possibility of provocatio (appeal) to the People against a consul who exercised his iudicatio or coercitio in the area enclosed by the pomerium, or within one mile beyond. That sphere was now considered “domi”; commanders “militiae” did not have their imperium thus restricted until the leges Porciae of the second century. Valerius also stipulated that, in the sphere domi, only one consul at a time should have the capacity for independent action, symbolized by twelve fasces; the imperium and auspicia of the other were to be dormant, except for obstruction. (When in the field together, the consuls rotated the auspicia every day.)44 But Mommsen noted some haziness in the Republican version of domi and militiae. The area between the pomerium and first milestone could be either “domi” or, in the event a consul had taken the auspices of departure to lead an army, “militiae.” Thus the lictors of a general returning from the field had to shed the axes in their fasces only inside the actual pomerium. In later times, a promagistrate did not lose his imperium until crossing this boundary.45 1.3.2 Conflicting Views of the Origin of Imperium Other scholars have been less sure than Mommsen that the antiquarians and historians of the late Republic and early Empire were right to understand the evolution of the Roman political system as a transition from a monarchy to a system of two (equal) chief magistrates, with the praetor later added as their junior colleague. It would take much space even to outline some of the various opinions that have arisen since Mommsen on the nature of imperium, auspicia, and then the origin and development of the Republican consulship and praetorship. The sheer multiplicity of views on these matters frustrates any attempt to cite this bibliography here, or at each of the relevant points in my chapters 1–3.46 At present, there is consensus on only a select few of these issues; one object of my work on the praetorship is to demonstrate that one cannot place too much faith in even some of these apparent points of agreement. Particularly important in the reaction against Mommsen was a famous 1944 paper by A. Heuss. Heuss was the first seriously to challenge Mommsen’s view of imperium as the king’s original civil and military power, doubting whether it even belongs to the regal period at all. Several influential scholars have since followed Heuss’s lead.47 But in 1953, P. De Francisci examined point by point Heuss’s hypothesis of a nonregal, purely military imperium of the early Republican magistrate.48 The result was a withering—and, to my mind, decisive—critique, which serves also to explode the views of Heuss’s followers. De Francisci rightly faulted Heuss for ignoring the “charismatic” aspects of imperium and auspicium, emphasizing that the tradition of the original regal power as the basis of the Republican constitution was firmly rooted in the Roman consciousness: it is not simply a construct of the late Republic.
Introduction 15
Heuss had focussed almost exclusively on the Republican situation, and did not attempt a new reconstruction of the powers of the Roman king. In 1951, U. Coli (in a monograph-length article) introduced a startlingly original picture of the regal period.49 Coli makes a case for the discontinuity of the monarchy and Republic. He argues that the numerous ancient sources which promote the notion of king as magistrate—accepted at more or less face value by Niebuhr, Mommsen, Willems, and many subsequent scholars50—are proleptic in this respect. Coli’s basic argument, that the power of the old kings was something entirely different from the imperium of the Republican magistrates, has had a certain amount of influence.51 In the facts Coli posits, he is not all that far from Mommsen. But the real objection to Coli’s argument is his importation of anachronistic legal notions. Coli suggests the king “owned” the state, compares regal Rome’s noncitizens to dediticii, defines imperium as a right to give imperia, speaks of the liberty of the allies even under Roman command—there are numerous similar examples in his article. In the real regal period (not as later constructed), surely we must allow for a good deal of vagueness. No “constitution” or “Staatsrecht” was envisaged for that society; such questions as whether the king “owned” the state or whether he had a “right” to do certain things surely were not even asked. There are no “rights” in the legal sense: there can have been only power, based on force and divine favor. Mommsen correctly made the king’s imperium an unlimited and (basically) undefined power. The proof is that we initially find the consuls’ power unlimited and undefined, with collegiality and annual succession as the difference. Of course, the king needed some consent in order to rule: hence consideration with an advisory council (consilium) of aristocrats. Probably in some cases (peace and war), he also sought the (well-organized) approval of the people in assembly. Institutions develop out of this, and we can to some extent follow their development. 1.3.3 “Auspicia Ad Patres Redeunt” Undoubtedly the most important publication on the auspicia to appear in recent decades is the magisterial study of J. Linderski, “The Augural Law.”52 This monograph-length work should be examined in connection with Linderski’s numerous shorter, sometimes more general articles on Roman religion;53 his collective work is indispensable for an understanding of the auspices (and of Roman religion). I depend heavily on Linderski’s writings in this book as a whole, and I accept his definitions and explanations of augural matters except in a few matters (duly noted). After the founding auspicato of Rome, each of the kings held the auspices which Jupiter gave to Romulus. Upon the expulsion of the Tarquins, the kingly auspicia passed from one set of the highest magistrates to the next. What then are we to make of the assertion in our sources that, in an interregnum, “the auspices ‘return’ to the fathers” (“auspicia ad patres redeunt”),54 precisely so that there can take place a “renewal” (“renovatio auspiciorum”)?55 Following Mommsen, more than a few scholars have taken this to mean that the patres (i.e., the originally patrician Senate)56 in fact owned the auspicia. P. Catalano formed a theory that the “auspicia privata patrum” formed the basis of the power of the king.57 More recently, A. Heuss in 1982 founded an elaborate theory of the power of the early Senate
16 The Praetorship in the Roman Republic
precisely on the hypothesis (based firmly on Mommsen) that the auspices “normally” belonged to the patres.58 Logically this is impossible, as Linderski has emphasized. Were it true, this would mean that the “normal” state was the interregnum—and thus “the whole period of the Republic, and of the Kingship as well, was for the augurs one great anomaly.”59 A. Magdelain has reacted against the “ownership” hypothesis.60 He starts by observing that, down until the late 50s, virtually all known interreges were patrician ex-consuls or ex-consular tribunes.61 Magdelain then uses this fact to try to reconstruct the meaning of the phrase “auspicia ad patres redeunt.” In essence, Magdelain builds his interpretation on the stock formula “patres conscripti,” which he takes as (originally) referring to two different classes of senatorial status. He argues that when the consulship was vacant, the auspices “returned” to patrician ex-holders of auspicia and imperium (these he considers the “patres”), who designated one of their number to serve as interrex. The patricians seized upon this privilege of these patres to make the claim that the patricians as a whole “owned” the auspicia publica, and only they were fit to receive them, that is, to hold the chief magistracies. Moreover, Linderski and Badian have observed that redire means not only “to return” (i.e., to an owner), but also “to pass back to the control of someone,” “to devolve upon somebody” (i.e., for want of a proper heir or owner). This secondary meaning of the verb, Linderski notes, is perfectly compatible with Magdelain’s theory of the patres: “during the interregnum, the auspices they once had held as magistrates reverted to them. Only in this sense can we speak of the ‘return’ of the auspices.”62 I am not sure that Magdelain is right to separate his patres from “patrician senators.” For a start, his interpretation of “patres conscripti” as two different classes is hardly permitted by the Latin.63 And Magdelain makes too much of the fact that almost all attested interreges are of consular status. It is natural that the patrician senators should put forth the senior among them to hold this distinction.64 This need not imply that the entire group had held an office involving the highest imperium (Magdelain admits as much for the period after 366). The presence among attested interreges of ex-consular tribunes—who as we shall see (2.4.2) did not hold imperium and full auspicia—should caution us against accepting Magdelain’s narrow definition of “patres.” The fact that an interrex of 352 was, at most, of praetorian status, casts further doubt on Magdelain’s reconstruction.65 We do not know the identity of all that many interreges after 227 (precisely seven), when praetorii would start to become numerically significant among the patrician senators. The example of 352 shows that patrician ex-praetors cannot have been barred from attaining the position of interrex, which we know some held in the long interregna of 53 (seven or eight months) and 52 (seventy-six days, the first twenty without an interrex).66 In the phrase “auspicia ad patres redeunt” (and “auctoritas patrum,” for which Magdelain offers the same explication), the “patres” are the patrician senators as a whole, as Mommsen thought.67 Magdelain, however, must be correct in his basic point (confirming J. Rubino against Mommsen) that any patrician claim of “ownership” of the public auspices must be treated as mere propaganda. Badian cogently explains that the auspicia populi Romani can be said to belong to the patricians merely “in a negative sense:
Introduction 17
plebeians do not have auspicia, only patricians do.” The proper holder of the public auspices was the king, and in the Republic, the magistratus patricii (i.e., those magistrates who functioned as representatives of the whole People).68 If a situation arises where there are no patrician magistrates, the auspices lapse, and “come to the patres by reversion, and then have to be reinstated (renovata) precisely because the patres do not own them.” There are no grounds for speaking of a “return” to the patres of the auspices, which they then lend to magistrates; Rubino, who argued the opposite, makes the best sense of our information.69 Linderski adds that the auspicia privata of the patricians can never have been identical with the auspicia publica populi Romani. This interpretation rests on a misunderstanding of a single passage (in a speech) in Livy. The doctrine propounded there, that patricians “privatim auspicia habent,” should be interpreted to mean that the patricians can use the (public) auspicia as senators (i.e., as privati) to appoint the interrex, whereas plebeians do not possess these auspicia even as magistrates. In the augural law, only patricians were able to transmit the auspices to their successors in their pristine state. Hence the long resistance to the admission of plebeians to the consulship and other offices involving the highest auspicia, and the requirement—surely never violated, until the unusually long interregnum of 53— that the interrex be a patrician. Linderski has persuasively reconstructed the compromise which allowed the admission of plebeians into the consulship, and other offices involving the highest auspicia (thus breaking the augural continuity which went back to Romulus): It was agreed that the plebeians would administer their newly won offices with the help of what technically was the patrician auspices. The consulship and the other offices remained technically patrician, and they carried with them the patrician auspices. A plebeian on his election to the consulate would enter as it were into patrician shoes: he would use patrician auspices, but he would not “have” them.70
Plebeian demands for access to the highest magistracy (and with it, the highest auspicia) will not have started immediately after the expulsion of the kings.71 The patricians were very much opposed to relinquishing control of the auspices, and not solely out of political pretence. There must have been (at least some) religious worries, perhaps even among the Plebs, probably for some time after the fifth century. Contemporary concerns can be seen from the institution of the consular tribunate (which was open to plebeians, yet did not involve full military auspicia) and the Licinian-Sextian legislation of 367. The essence of this latter compromise (as we have noted) must be that plebeians could become “honorary patricians.” Plebeians now gained access to the consulship, and they were allowed to borrow, as it were, the auspices (which remained technically patrician) to administer the office. A decade and a half later, the lex Genucia of 342 stipulated that one of the two consuls had to be plebeian.72 However, religious sensitivities about auspical continuity remained strong. Apparently, it was only well into the second century when the augurs admitted the possibility of a consular college of two plebeians (first seen for 172).73 We should not overlook the existence of genuine religious anxieties—shared by the entire community—about the consequences of having a con-
18 The Praetorship in the Roman Republic
sul elected on the basis of a so-called lex inauspicata, the Licinian-Sextian plebiscite. 1.3.4 The Lex Curiata The question of the lex curiata is one of the most vexed in Republican constitutional history.74 One issue, however, seems clear. Mommsen (followed by several subsequent scholars) interpreted the lex curiata as originally the People’s pledge of obedience to the new king.75 Now, we have no reason to imagine that the lex curiata of the late Republic was radically different from what it had been; there is no point at which such a change can be put. But the lex curiata of the late Republic is placed in parallel (by those who knew it) with an election. Hence it concerns the magistrate, and not the People who vote on it. Why the lex curiata for magistrates? Here we have no authoritative explanation, but only a series of scattered obiter dicta. Many of these come from Cicero’s De Lege Agraria II, but also from the De Re Publica and his letters; Livy and Dio also provide some clues. Cicero twice in the De Lege Agraria claims that the Curiate Assembly continues to exist “for the sake of the auspices.”76 Cicero also says that a lex curiata is necessary for a consul to handle military affairs.77 One should note that Rullus’ bill expressly stipulated that his Xviri were to have auspices valid in the sphere militiae (11.8.3). In the De Re Publica, Cicero repeatedly calls the passage of this special law “de imperio.”78 An episode from the late Republic—the attempts of Ap. Claudius Pulcher (cos. 54) to get a lex curiata (despite tribunician vetoes) before setting off for his provincia of Cilicia—confirms its importance for a command militiae.78 Two passages in Cassius Dio are commonly thought to imply that the lex curiata also had an application to the civil sphere. The first pertains to the Pompeians based in Thessalonica in the year 49, who choose not to elect new consuls for the coming year in a special assembly, “because the consuls had not introduced the lex curiata” (i.e., in Rome, as part of their own investiture).80 This passage in no way shows that consuls generally needed a lex curiata before they could convene the comitia for elections.81 However, the other Dio passage does unambiguously point to civil affairs. In the year 56, P. Clodius Pulcher as curule aedile blocked (through obnuntiatio? or friendly tribunes?) enactment of the lex curiata: “Until that was passed no other serious public business could be transacted, nor was any suit able to be brought.”82 But this is not to say that magistrates had no right to treat with the People without the law, or that the lex curiata actually entitled praetors to their jurisdiction. What we have here is only a temporal sequence, not implying causality: for that matter, a consul could not set out for the field before he held the Latin Festival, but no one would hold that this ceremony actually entitled him to start his campaign. For confirmation, note that two years later, lack of a lex curiata (at least for the consul Ap. Pulcher) in no way suspended public business. When it wished, the Senate presumably was able to suspend this troublesome provision (whether of law or mos maiorum, we cannot tell). Cicero is explicit that each of the magistrates (“singuli magistratus”) received a lex curiata, with the exception of the censor, who had a lex centuriata instead.83
Introduction 19 84
Tacitus reports that quaestors were included in the lex curiata passed by Brutus at the start of the Republic in 509. Tacitus is hardly our best authority for Republican constitutional matters. But a compressed passage by M. Valerius Messalla (cos. 53 and augur), preserved by Aulus Gellius, unequivocally states that minor magistrates had a lex curiata passed on their behalf.85 Messalla’s statement reads, “minoribus creatis magistratibus tributis comitiis magistratus, sed iustus curiata datur lege; maiores centuriatis comitiis fiunt” (Gellius’ own summing up on the “minores magistratus,” his reason for quoting Messalla, immediately follows). The sense is, “When the minor magistrates are elected, their magistracy is conferred by the tribal assembly, but the magistracy is made ‘valid’ by the curiate law; higher magistrates are created in the Centuriate Assembly.”86 The quotation falls off before we learn how the curiate law related to the superior magistrates (maiores magistratus), in whom Gellius is less interested; Messalla hardly can have believed that the superior magistrates did not get a lex curiata. But he may well have believed that their magistracy was “iustus” without it (see below).87 It would be tedious to list all the various explanations put forward on the purpose of the lex curiata. Many scholars have taken Cicero’s reference to the “lex curiata de imperio” literally, and postulated that the comitia curiata gave imperium or imperium militiae. Alternately, it has been suggested that the lex curiata activates the magistrate’s imperium, making it “iustum” by giving him the right to the auspices. Others have argued that the lex curiata is what gives auspicia to all magistrates (including the minor ones), or the right to take the auspices, or auspicia “maiora.” But if a consul can propose his own lex curiata (as seems likely), it means he already has civil auspicia (and, with it, imperium domi),88 and that his office is “iustus.” It is also important to remember that the censor had auspicia maxima, but no lex curiata. The strong military associations our sources (particularly Cicero) attach to the lex curiata practically force us to accept that the law can have conferred only auspicia militiae89 on dictators, consuls, praetors, and (so it seems) certain nonmagistrates. A dictator must have had civil auspicia as a result of his ritual dictio by a consul, which was an (impetrative) auspical ceremony.90 Consuls and praetors passively received their civil auspices at their election in the Centuriate Assembly, which they activated on their first day of office through the ceremony on the Capitol. They then were fully qualified to convene the Curiate Assembly, on the first available comitial day.91 Military auspices perhaps were granted in the way those of the civil sort came to consuls and praetors: passive conferment through the lex curiata, and activation through taking the auspices (in this case, those of departure). By the beginning of the third century, we know that nonmagistrates could receive imperium valid (only) militiae—and thus military auspicia. The earliest attested method is simple delegation by a consul in the field; but he delegates praetorian, not consular, imperium. In the early years of the Second Punic War, we see a further development: a nonmagistrate could obtain military imperium—even at the consular level—while still in the city. I argue that the lex curiata must have played the essential role in such an investiture. Unfortunately, the full process can be only partially reconstructed (see especially Additional Note I). In this study, for
20 The Praetorship in the Roman Republic
convenience’s sake, I adopt Cicero’s (not quite technical) usage, and call this latter type of special grant a “lex de imperio.” As for the lower magistrates (i.e., those elected in the Tribal Assembly), Messalla explains that they too received a lex curiata, but in their case, it served only to make their magistracy “iustus.” The lex curiata of quaestors—who entered office almost a full month before the start of each consular year (i.e., 5 December versus 1 January in the later Republic)92—must have been earlier than the one for maiores magistratus. They surely could not remain in office for so long with imperfect legitimacy. Whether the quaestors’ lex curiata also referred to service militiae depends on the nature of the auspices which came with their magistracy: quaestors are likely to have had some, to judge from their regular service in the field. Aediles, elected in the Tribal Assembly, must have received still another lex curiata, separate from that of both quaestors and the higher magistrates. It certainly was different from that of (at least) the maiores magistratus: no aedile ever seems to have thought himself capable of leading an army by virtue of his office. Here again the nature of the aediles’ own auspicia (whatever that was) must have been at the root. The censor, elected in the Centuriate Assembly, is a special case. I will argue (2.5.2) that the Romans specifically avoided giving him a lex curiata; otherwise, he might claim full auspicia militiae, and with it, the right to command an army.
1.4 Reactions to Mommsen’s View of the Earliest “Praetores” There have been a number of surveys of modern views on the development of the various Republican magistracies with imperium, which eliminates the need for giving a comprehensive one here.93 The topic is vast, and here it is practical to give an overview only of some problems which are more or less directly relevant to the Roman praetorship: the “praetor maximus”; colleges of more than two praetores; and the background to the Licinian-Sextian legislation. A word on the etymology of “praetor.” We have seen above that Mommsen fully accepted the ancient derivation of “praetor” from “prae-itor,” i.e., he who goes before in a military context. In support, scholars often note the Greek translation of “praetor” as strathgov~, and the common connection of “praeire” and words derived from it with the military sphere. But both these items may be irrelevant to this magistrate’s origins; in particular, the Greek translation comes quite late indeed.94 Others have been less sure of the military etymology.95 The main alternative interpretation is that a “praetor” is one who leads another in reciting a formula, i.e., in the civil law procedure of the legis actiones.96 But this particular “formulary” view depends on the assumption that the praetor urbanus was from the start essentially a legal magistrate; as such, it should be rejected. No more acceptable are hypotheses which argue for a general religious character of praeire, not just a connection with the legis actio.97 There is no reason to believe that the office could have purely, or mainly, religious implications at any time. 1.4.1 Mommsen’s Explanation of “Praetor Maximus” Mommsen believed that any magistrate with imperium, including the dictator and interrex, could be called “praetor.”98 His evidence for this is a passage in Livy Book
Introduction 21
7, which raises enough problems to justify a full paraphrase, with a summary of Mommsen’s own interpretation.99 Livy tells us that a great plague which had broken out in 365 was still afflicting Rome two years later. In 363, so it was said, the elders remembered that a pestilence had once been quelled by a dictator driving a (ritual) nail; accordingly the Senate ordered a dictator “clavi figendi causa” to be named. Then, in an apparent aside, Livy states that on the right wall of the temple of Jupiter Optimus Maximus—the side where there was the cella dedicated to Minerva—there had been affixed “an old law, written with archaic characters and words, that qui praetor maximus sit [a phrase best left untranslated for the moment] on 13 September should drive a nail.” Tradition held that, since writing was rare in earlier times, the nail served to mark off the passage of years, and the law was posted in that particular spot because Minerva had invented counting. (This type of rationalization shows that Livy is obviously following an antiquarian here.)100 Livy now reveals his source’s name: Cincius, “a careful authority on such monuments,” asserts that at the temple of the Etruscan goddess Nortia at Volsinii one finds the same practice of marking years by nails. Indeed, Livy’s text (as we have it) goes on to allege that under this law a consul of 509, M. Horatius, dedicated the temple of Jupiter Optimus Maximus (“M. Horatius consul †ex lege templum† Iovis optimi maximi dedicavit”).101 (But there is no mention of this man driving a nail, and as such this statement seems quite irrelevant to the subject at hand.) Afterward, the rite of driving the nail was transferred from the consuls to the dictators, “because their imperium was greater” (another antiquarian explanation?). Then, after neglect of the custom, the task seemed important enough to justify the creation of a dictator—which brings us back to 363. Mommsen carefully attempted to extract some sense from this passage. He notes that the antiquarian Cincius clearly thought of the driving of this nail as an annual event—a supposition which gives rise to endless difficulties. The nail, Mommsen emphasizes, was never meant purely as a chronological marker, but as an apotropaic device. Mommsen noted that the first major plague reported in the annalistic tradition comes in 463, and that the Capitoline Fasti have “dictatores clavi figendi caussa” for 363 (confirming Livy) and 263; the only other dictator so specified in the Fasti is in 331 (whom Mommsen rejects as such). Mommsen ignores the (apparent) statement that M. Horatius dedicated the temple of Jupiter Optimus Maximus in accordance with the “ancient law” (“lex vetusta”). For Mommsen, the story starts almost a half-century later. In the year 463, the Roman People had their consuls drive a propitiary nail into the wall of the Jupiter temple. They performed the ceremony on 13 September, the anniversary of the temple’s dedication. The consuls also set up a tablet, that in 100 years whoever is the praetor maximus (i.e., the chief magistrate with imperium) on the Ides of September should drive a nail; the general formulation of the law allowed that a dictator, consul, or interrex might be in office. But this provision only confused later generations. In 363, and then in 263, the Romans felt compelled by the mention of the “praetor maximus” to name a dictator to drive the nail; in 163, when they were no longer in a position to name a dictator (the office having been in abeyance for forty years), they ignored the ceremony altogether. However, in a.d. 1, Augustus revived the ritual for his temple of Mars, now with the censors driving the nail at the end of their respective terms—hence the interest of the antiquarians.
22 The Praetorship in the Roman Republic
Thus far from Mommsen’s Römische Chronologie2 of 1859. In the Staatsrecht, he suggests that the title “praetor maximus,” though it can be applied to the consul when he is the highest magistrate in the state at a given time, properly belongs only to the dictator. This was recognized by those who actually had to interpret this law (i.e., in 363 and 263), though later there arose misunderstandings: Mommsen notes the debate on the meaning of “praetor maximus” reported by Festus,102 that “some think it is he who is of the greatest imperium, others he who is of the greatest age.” 1.4.2 Later Constructs of the “Praetor Maximus” Many have denied that collegiality can have come so early to the chief magistracy. One old theory is that the dictator (or magister populi) and his unequal partner the magister equitum are the forerunners of the two equal consuls. There are also newer, more elaborate ones. But the main cornerstone of the “anticollegial” line of interpretation is Livy’s mention of a “lex vetusta” providing, already in 509, that “‘qui praetor maximus sit’ on 13 September should drive a nail” into the temple of Jupiter Optimus Maximus. Now, we happen to know that, in the late Republic, the augur’s prayer at the ceremony of the augurium salutis distinguished between praetores maiores (i.e., consuls) and minores (praetors). It also appears that within a consular (and praetorian?) college, one member was somehow technically “maior.”103 A long series of scholars have combined these data in different ways, all in an attempt to find a place in early Roman history for the office of “praetor maximus.” For some, the praetor maximus has his origins in the monarchy, as an auxiliary of the king. Others have placed the praetor maximus at the beginning of the Republic. In one common scheme—going back to the mid-nineteenth century— the praetor maximus is an annual dictator, who serves as a transitional figure between the monarchy and the emergence of the consuls.104 A variant is that the magister populi was the original Republican head of state, but when replaced by a praetor maximus—assisted by praetores minores—he became an extraordinary magistrate; collegial consules came only in 367.105 One problem with these hypotheses, of course, is that in the Republic the dictator is only an extraordinary magistrate, whose appointment is dependent on his “naming” by a consul.106 And so reconstructions have been developed in which the praetor maximus is assimilated to an extraordinary dictator. A common alternative is to suppose that the qualification “maximus” suggests a rapport with other, lesser praetores. Indeed, so many variant schemes have been proposed that exasperation with the entire problem has finally set in. A. Heuss107 has gone so far as to suggest that the praetor maximus never existed—he is an invention of the antiquarian Cincius. The truth is, on grounds of Latin usage alone, “praetor maximus” in the phrase “qui praetor maximus sit” should not be a title.108 Nor (as many hold) can it be a relative term, meaning simply “the person who holds the fasces” (“penes quem fasces sint”)—at least as Mommsen explained it. “Maximus” cannot mean “maior”: no convincing parallel has ever been adduced by those who support this interpretation. It surely must imply more than two praetores. The obvious conclusion is that the law on driving the nail, which is really only attested for the year 363, arranges
Introduction 23
the hierarchy in a situation where there is a dictator and two consuls. If we wish to take the law back further, we must say that it provided for the possibility of such a situation. But it is impossible that Livy meant to say that the “lex vetusta” on the driving of the nail was promulgated already before 509. In the relevant passage, “ex lege templum” is obviously corrupt; but the tentative emendation of Conway and Walters (following Mueller) “ea lege templum” is no better. How can this law have existed already before the first year of the Republic, and why should M. Horatius have actually dedicated the templum (for that is what the text says, as it stands) in accordance with it? On the other hand, if we are to consider that Livy (or even his source) indeed thought that this “lex” dealt with the dedication of the temple as well as with the affixing of the nail, we must hold that in his reference to M. Horatius he refers only to the first provision and has forgotten the second—ignoring the subject he was writing about at such length. This is really too much to believe, even for Livy. There must be a lacuna (as well as a corruption) in our text at this point; as such, it offers no real basis for a radical reconstruction of the “constitution” of the earliest Republic. Mommsen was right to ignore this phrase in his explanation of the “lex vetusta.” (For further discussion, see 2.2.2.)
1.4.3 Colleges of Three “Praetores” Another line of approach to the original Republican magistracy is to make back projections from the situation we find in 366, two equal consules with a praetor as their collega minor. Early this century, G. De Sanctis proposed that, even under the monarchy, the king appointed three equal praetores to serve as leaders of the Romulean tribal contingents; these commanders gradually usurped power in the state. After the expulsion of the kings, a reorganization of competences among the three ensured that the “praetor urbanus” (who remained in the city to hear cases at law) lost power to the two praetores who retained their position as military leaders. The year 366 was simply the year in which the Romans started to register the name of the “praetor urbanus” along with the two eponymous “praetores maximi.”109 De Sanctis is certainly wrong to think that the Romans ever introduced into the official list of supreme magistrates the names of the various “praetores urbani.” And if so, why would they not be recorded on the same lists as the consuls? Indeed, it is strange that the annales maximi play such a major part in his hypothesis, for his reconstruction constitutes an outright rejection of the annalistic tradition. Nor is it easily reconciled with what little we know about the development of the early Roman army.110 However, De Sanctis’s “back projection” approach has informed some recent studies.111 One major problem is that such hypotheses generally start from the assumption that the “praetor urbanus” was created as a civil magistrate, charged mainly with hearing cases at law in the city. I argue in chapter 3 that this view has no basis. But the main difficulty is that these reconstructions have only occasional contact with what the ancient sources actually tell us about the development of the Roman magistracy. In their almost arbitrary magnification of certain constitutional “facts,” such reconstructions border almost upon the realm of fantasy. There is
24 The Praetorship in the Roman Republic
more to be said for the views of scholars who prefer to see a single annually elected magistrate succeeding the kings than for these elaborate schemes. In their search for originality, future scholars doubtless will develop schemes of an even more speculative nature. The purpose of chapters 2, 3, and 4 of this volume is to show that the traditional annalistic picture offers us a coherent line of development from the king’s power to that of the various magistrates with imperium. I must emphasize once again, however, that my goal is not to uncover the actual “constitutional” situation of the archaic period. Since my central subject is the history and development of the praetorship from 366 on, it is more important to reconstruct the relevant historical process from ca. 400, with the post-Decemviral setup for background. As far as the regal period and early fifth century is concerned, we need only examine what the religious and political establishment of the midand late Republic considered it to have been. 1.4.4 “Plebeians” in the Early Consular Fasti Scholars still have not developed a convincing alternative to Mommsen’s belief that a college of two equal praetores directly replaced the last Tarquin. In this study, I accept that the original Republican chief magistracy consisted of two annual collegial consuls—as do many others.112 Of course, the ancient literary tradition is unanimous on this point, and the detailed record provided by the consular Fasti would seem to provide impressive confirmation of this traditional view. If the single regal legion was divided into two at the beginning of the Republic, that would be one powerful additional argument in its favor.113 Collegiality is not the only question scholars have raised regarding the early consulship. Much has been made of the supposed “plebeian” names in the early consular Fasti.114 Numerous scholars have argued that the names in the late sixthand early fifth-century Fasti that seem nonpatrician, should be accepted as such. Indeed, it is safe to say that this, in one form or another, is now the majority view— that, from the beginning of the Republic and then for anywhere up to five or six decades, nonpatricians were fully eligible for the supreme magistracy, only to be excluded when the patricians managed to take exclusive control of the consulship.115 However, it is rather optimistic to think we can recover the status of a family in the early Republic from individuals with the same name centuries later.116 And the ancient tradition is unanimous that the first plebeian to reach the consulship did so in 366.117 A hypothesis involving fifth-century plebeian consuls also means deleting without explanation the lex Canuleia of 445, which rescinded the Decemviral ban on intermarriage between patricians and plebeians. Livy (or rather, his source) takes pains to emphasize the theological background. The patricians argued that the Decemvirs had abolished conubium between plebeians and patricians “in order to prevent the auspices from being thrown into confusion (ne . . . auspicia turbarentur) by uncertain offspring.” Even the offspring of a mixed patrician-plebeian union did not have the requisite purity of (patrician) blood to handle the auspices.118 The lex Canuleia—or more exactly, the situation it sought to address—
Introduction 25
seems irreconcilable with plebeian consuls after the Decemvirate, and thus probably before. All the same, at least one scholar has termed the Licinian-Sextian compromise which allowed a plebeian consul to be elected for 366 a “restoration” of lost plebeian rights.119 We know the patriciate was trying to close its ranks in the area of marriage law—through the Decemviral legislation on conubium, and then through the ritual of confarreatio—in the mid-fifth century.120 But can we really believe that in the political sphere the patricians were able to shut out—and keep out—a substantial group of their fellow citizens, who had already attained the highest office? No Greek or Italic state offers a parallel for such an exclusion on a permanent basis.121 An alternative interpretation is that, from the start, only “patricians”—fundamentally, those individuals from families that had provided patres to the regal Senate—were eligible for the highest office. Now, membership in their caste was still accessible to prominent outsiders after the expulsion of the kings, as the tradition that the Sabine Attus Clausus brought the Claudii to Rome in 504 goes to show.122 Did the boundaries of the patriciate remain fluid for a few years to come, until finally the number of patrician gentes was frozen? Some scholars have seized on the example of the Claudii, and suggested that the patriciate remained open down to the mid-fifth century, or, in one scheme, the mid-fourth.123 However, I would place this “closure” much earlier, indeed, by 509. There is no record of any family other than the Claudii being admitted to the patriciate after that year, even though patrician gentes were proud of their status and origins, and advertised them widely. The Claudii must have been too powerful to be kept out,124 and they are unique in that respect. We need not explain the unexpected (“nonpatrician”) names in the early Fasti as new additions to the patriciate, but rather as an indication that, perhaps as early as the fifth century, genuine patrician gentes happened to die out (a development amply attested for the historical period) or somehow lose their patrician status.125
1.5 Theories of the Development of the Praetorship 1.5.1 Mommsen and the Minus Imperium of the Praetor We have seen that Mommsen considered the gradation of imperium as original to the Republic. He also argued that the imperium inherent in individual magistracies, once they were established, could evolve. The most important example is that of the consulship. In Mommsen’s view, the consuls, as holders of regal imperium, originally had all the rights which belonged to the Roman magistratus. But as other, specialized magistracies were created, the consul relinquished a number of his competences.126 Some duties the consuls yielded simply on a de facto basis. For instance, the consuls originally saw to the allocation of state lands, as well as the acceptance of bids for public building projects and for revenues due to the state. With the introduction of the censorship (first for 443), the consuls gave up those
26 The Praetorship in the Roman Republic
tasks, though they still could engage in them when necessary, for example, in the interval between censorships.127 Mommsen presented the Licinian-Sextian reforms of 367 as producing a major change in the nature of the consulship. For a start, he accepted the tradition of Livy and the Fasti Capitolini that plebeians now were first allowed to hold this magistracy. Indeed, Mommsen thought that one consulship each year was now reserved for the plebeians (despite the aberrations in the Fasti which would soon follow), and that by 342 (Livy’s report of a lex Genucia) both consular places were open to that order. Interestingly, Mommsen rejects Livy’s explicit statement that the praetorship originally was legally closed to plebeians. He argues that the dispute over this matter in the elections for 336 (which saw the first plebeian returned for the office) simply had to do with the attitude of the (patrician) magistrate who presided over the elections, not a legal restriction.128 Mommsen also represented the creation of the praetorship as cutting deeply into consular prerogatives. For Mommsen, whereas the dictator was an extraordinary collega maior of the consuls, the praetorship was to be their permanent collega minor, charged from the start with civil jurisdiction. He thought that by 367 the military aspects of the term “praetor” were now largely forgotten; that is why it could be applied to a magistrate who was designed to specialize in the legal sphere. The praetor was expected (and eventually, required) to stay in the city (hence “urbanus”); as a result, the position of praefectus urbi was now all but eliminated, revived only during the period of the Latin Festival. More importantly, Mommsen argued, the creation of the praetorship caused the consul to be positively debarred from hearing actions at law—both inside and outside Rome—except those which proceeded by the agreement of both parties (adoption, emancipatio, and the like).129 The praetor, though originally concerned with civil suits, eventually saw his competency expand to encompass cases at public law which involved fines and punishment. For Mommsen, it follows that the praetor’s imperium, although weaker (“schwächer”) than the consul’s, is more complete.130 The praetor, as the colleague of the consuls, exercised the same magisterial power, yielding only in the case of conflict. Both the praetor and the consuls possessed “military” imperium. Yet the praetor also had “judicial” imperium, which after 367 the consuls lacked. Indeed, the praetor’s exclusive right to practice civil jurisdiction marked a return to the monarchic principle: when exercising his peculiar competence, the praetor never had at his side another person entitled to perform the same acts (as did the consuls). One particularly productive aspect of the praetor’s powers was his right to promulgate an edict, which in the judicial sphere acquired a quasi-legislative force. The consuls, however, retained the right to veto any praetorian edict, even those pertaining to the civil law.131 Mommsen seems to have held that all the additional praetorships later added were also originally judicial magistrates. The provincial praetor (like the urban praetor) only acquired his other functions because—and when—the consul was not there.132 The guiding principle in formulating their functions was not that of collegiality—according to which two or more magistrates of the same type form a unity, each able to act on behalf of the college, without reference to the other
Introduction 27
member or members. Rather, the development of the praetorship was in essence the development of a series of limited competences.133 The praetor inter peregrinos (first for 241, according to Mommsen) adjudicated between noncitizens, or citizens and noncitizens. Technically a “city” praetor, there was no legal rule that he stay in Rome—though that was inevitable after he was placed in charge of a standing court de repetundis starting in 149. Tasks in the city were divided between the urban and peregrine praetors on the basis of content.134 Starting in 227, the creation of praetors (also essentially legal) for Sicily and Sardinia—which Mommsen viewed as the first step in the formation of “special overseas competences”—removed these two provinciae from the consuls’ military sphere of action. Henceforth, the consuls were regularly limited to fighting in Italy (up to the Alps) and foreign wars. In the cases when the consuls exceptionally took over a regular praetorian provincia, they did not originally acquire the praetor’s special competences. That is why in the “Livian” period 218–166 we regularly see a praetorian “helper” (adiutor) accompanying a consul who fought in Sicily, Sardinia, or the Spains (made into regular praetorian provinciae after 197): the praetor was needed for “Rechtsprechung.”135 Mommsen emphasized the fact that no new praetors were created between 197 and 81, despite the addition of new provinciae. There were Macedonia and Africa in 146 (an accretion which, he notes, disturbed the exact correlation of praetors and provinciae), Asia in 134 (thus Mommsen), a quaestio repetundarum in 122 (followed by other quaestiones on the same model), Gallia Narbonensis ca. 118, and Cilicia, which he dates to 102. Mommsen also pointed up the erosion of the Republican principle of the annual magistracy. The lex Baebia of 181 (which he interpreted as a measure related to the control of unfair electoral practices, or ambitus) acknowledged the practical difficulties of sending new commanders to the Spains each and every year. There was a habit of having provincial praetors see to business in the city before setting off to their proper assignments. And the number of provinciae rose to the point where (by the early first century) there were twice as many as the number of magistrates elected to hold them, leading the Romans to send out even prorogued ex-praetors (who had served a full year in the city) and ex-consuls to fill their administrative needs. In this way, the highest magistracies were transformed de facto from annual offices to ones lasting two or more years, and ex-consuls came to hold commands in provinciae which ought to have been entrusted to men of praetorian status.136 Mommsen also outlines how the Senate made the old city-state system of two consuls and a limited number of praetors work for the Republican empire—by skillful use of sortition, the combination of provinciae, and prorogation—in the periods both before and after the Sullan reform.137 For Mommsen, the final step in the dissolution of the original Republican consular right of absolute competency came in 81, when Sulla formally dissociated the magistracy from the promagistracy, restricting all the praetors (now raised to eight) and the two consuls to Rome in their year of office, and providing that they receive provincial assignments only “ex praetura” and “ex consulatu.” Mommsen postulated that consuls in their year of office now actually lost their capacity to exercise imperium militiae, receiving it only when they departed for their promagisterial commands; but they received the praetorian right of jurisdiction in civil suits once in their provinciae. One of the results of Sulla’s reform is that, after 81, the praetor
28 The Praetorship in the Roman Republic
urbanus was no longer routinely head of state, since the consuls were always present in the city during their year of office. Henceforth he devoted himself essentially to legal duties.138 Mommsen took pains to detail exactly what the praetor’s status as collega minor of the consuls entailed, summarizing how the two magistracies were similar, and how they differed. Mommsen thought the consul retained especially important rights in the military sphere. Only consuls waged war in “Italia” (including Liguria and the Alps), and they reserved rights over all other areas. Praetors as a rule were not given large armies, and they had the right of fighting only in their own provinciae (though after 81, the ex-consuls who took up a promagistracy were similarly limited). When a consul and a praetor were in the same provincia, the latter was obviously under his superior’s command. A praetor who held a command in Italy can always be considered a proxy of a consul. The same was true of the praetors who conducted special criminal quaestiones in Rome and Italy in the period down to the mid-second century (the introduction of the first permanent standing courts, and with them, a new process). This principle extended even to praetorian naval commands in the seas bordering upon Italy, or indeed those adjoining any consular provincia.139 The praetor was denied competency in several key nonmilitary areas. Only a dictator or a consul could conduct the annual Latin Festival. The praetor also could not see to the election of consuls or praetors. Nor is he known to have elected censors, aediles, or quaestors—though we have no evidence that this was explicitly forbidden. It is interesting, however, that Mommsen was inclined to believe that a praetor could name a dictator—though he denied that an interrex could properly do the same.140 But when it came to other activities domi (leaving aside civil jurisdiction), Mommsen believed that a consul and a praetor were in most respects equally competent. The general rule was that, in the consuls’ absence, the urban praetor routinely saw to the security of the city, presided over the Senate, convened the appropriate legislative assemblies (the comitia centuriata and tributa), tended to religious matters, and the like. When one or both consuls were present, they had the right to supersede the urban praetor (not always exercised, e.g., in the case of passing minor legislation). The praetor urbanus in turn was superior to the praetor inter peregrinos, and the two city praetors had priority over all other praetors. This hierarchy, however, could be changed by passage of a senatus consultum or a special law. In this way an urban praetor might preside over the Senate or even conduct a levy in Rome (a closely guarded consular prerogative) though a consul was available; or a peregrine praetor might be given a special quaestio that properly belonged to the urban praetor’s jurisdiction (Mommsen adduces the Petillian affair of 187).141 1.5.2 The Praetorship after Mommsen The text of these two volumes, though written directly from the primary sources, is ultimately a critique of the views of Mommsen and subsequent scholars on the Republican praetorship proper. In this section, I should outline (if only in a most
Introduction 29
general manner) some important aspects of our conception of the praetorship that have changed a great deal since the Staatsrecht, and a few that (strangely) have not changed at all. I have chosen four such areas for brief discussion: (a) the concept of the praetor as collega minor of the consuls; (b) the praetors’ civil jurisdiction; (c) patterns of increase in the number of praetors; (d) prosopographical approaches to the praetorship. a. The Praetor as Collega Minor of the Consuls. On the whole, the division of imperium into the grades “maius” and “minus” has not been viewed as a problem.142 Its purpose is clear: the two grades must have been to ensure “die Lösung der Kollisionsmöglichkeiten,” as F. Leifer (following Mommsen) splendidly put it.143 Our examination of the praetorship shows that in most spheres of magisterial activity, until there arose the possibility of conflict between two unequal holders of imperium, the notion of “maius” or “minus” was dormant—indeed, irrelevant. Most authorities agree with Mommsen that the maius/minus division is original to the Republic, as can be seen from the office of the Roman dictatorship. The dictator is presumed to have had “imperium maius” against a consul. Their relationship served as a model for that of the consul and praetor,144 and, as some think, the consul and pro consule.145 A few scholars have dissented from this model of imperium “maius” and “minus” as an original distinction. Their arguments—as presented—are unconvincing. Sixty years ago, H. Rudolph146 put forward the clever hypothesis that imperium minus came about only through a gradual development. In Rudolph’s argument, the praetor (a legal magistrate), since elected under the same auspicia as the consuls, was at first their fully equal colleague. But since the praetor was largely limited to the city, his imperium eventually was regarded as “minus” against that of the consuls. But Rudolph falls into the old trap of undervaluing the military role of the early urban praetor; for instance, he dates a law forbidding the praetor urbanus to leave the city for more than ten days at a stretch—first attested by Cicero in the Philippics—to the year 367!147 R. Stewart, first in a 1987 dissertation (and later in a 1998 book), independently developed an “evolutionary” scheme similarly based on the election of consuls and praetors “under the same auspices” (“iisdem auspiciis”).148 Stewart argued that in these elections, men announced their candidacy simply for an undifferentiated, three-member college of superior magistrates; after the election, sortition decided whether an individual was to hold one of the two military jurisdictions (consuls) or the “urban” jurisdiction (praetor). The consulship and the early praetorship were of equal status (except the former had eponymy), and involved equal imperium. Unlike Rudolph, Stewart in her dissertation fully recognized the clear implication of the sources (particularly Livy) that, for some time after his introduction in 366, the praetor remained primarily a military magistrate. Indeed, Stewart thinks that the military sphere holds the clue for the development of imperium minus: it was “a gradual development of the early second century,” a time when consuls regularly started commanding two legions, whereas the praetor normally had only one. Yet we shall see in chapter 2 that, at the time of the Licinian-Sextian reforms, the idea of three (or more) chief magistrates of equal power was precisely what the Romans
30 The Praetorship in the Roman Republic
were trying to abolish. And the evidence seems quite overwhelming that the consul was considered superior to the praetor from 366 down to (and of course beyond) the early second century. (These counterarguments are also relevant to Rudolph’s scheme.) In making a case, Stewart interpreted Livy’s (demonstrably confused) report of the Genucian plebiscite of 342 “uti . . . liceret consules ambos plebeios creari”149 to mean that it permitted two members of the upper magistracy (of three) to be plebeian. The odds are very heavily against such a model of sortition, since the first college of two plebeian consuls comes only in 172. A. Heuss150 has suggested that “total” imperium (i.e., encompassing both the military and civil fields) and imperium minus were introduced precisely at the same time—in the year 367 by the senatorial aristocracy, who (it is argued) were trying to hold their control over the Roman state. This is obviously unacceptable. Heuss’s view relies on his peculiar emphasis on the power of the patres (see 1.3.3 above). If imperium really were such an artificial creation, it would be difficult to account for its “magical” aspects. But Heuss may have a point. In chapters 2 and 3 of this volume, I argue that the division of imperium into grades has nothing to do with the relationship between dictator and consul. A major aspect of the great compromise of 367 was the Romans’ acceptance, for the first time, of the principle that imperium could somehow be minus. The creation of the praetorship is the manifestation of this conceptual breakthrough. b. The Praetors’ Civil Jurisdiction. Mommsen’s hypothesis that after 366, the consul was permanently debarred from exercising jurisdiction in the city no longer finds favor.151 Nor do many still believe, with Mommsen, that Sulla deprived consuls in their year of office of imperium militiae.152 One wishes the same were true for Mommsen’s explanation that provincial praetors were originally judicial magistrates.153 The real problem is that an overwhelming majority of scholars have continued to accept Mommsen’s idea (really based on an epitomator of Pomponius in the Digest) that the reason for the invention of the praetor was to oversee the Roman legal system.154 Forty-five years ago, U. Coli suggested an alternative explanation for the origin of the praetorship: it was established as a military, not a legal magistracy.155 Coli took as his starting point a speech from Livy’s narrative for the year 386, which refers to a “third army” composed of causarii (“invalids”) and seniores (i.e., in addition to the two consular legions of iuniores), which was to be placed under one of the consular tribunes “to guard the city and walls.” Livy later refers to this army as the “legiones urbanae.”156 The plural is obviously anachronistic for this period. However, in the Hannibalic War Rome would place in the field two legiones urbanae; and that number was later doubled (we find four attested for the years 196, 171, and 169).157 Coli viewed the urban praetor as the direct successor to the consular tribune who stayed behind to guard the urbs; the praetor’s imperium minus was quite appropriate to his command over the army he had. Coli also argued that his special legal competence was developed as a direct result of this localization in and near Rome. When Rome’s expansion eliminated the threat of a direct attack on the city, the praetor lost his “third army,” but retained his legal role.
Introduction 31
It is only in 217, when there was all-out war in Italy, that again we see the legiones urbanae. Surprisingly, Coli’s thesis—the best explanation to date for the (military) title “praetor”—has provoked little discussion among scholars. A notable exception is C. Starr, who accepts Coli’s argument, and reinforces it by emphasizing the enormous (eleven-kilometer) circuit of the “Servian” Wall built soon after the Gallic sack; he calculates its defense would demand at least four thousand men.158 Hence indirect support for the existence of a “tertius exercitus”—and a primarily military “praetor urbanus”—in the mid-fourth century. Other exceptions are W. Kunkel and (more emphatically) R. Stewart, each of whom point up the praetor’s frequent appearance in a military capacity in Livy Books 7–10.159 I think that Coli, Starr, and Stewart are essentially correct at least on the military context for the introduction of the urban praetor, and later in this work (3.4.1–3) I seek to develop this basic view further. R. E. Mitchell rightly chides scholars for thinking that the praetor’s (undoubted) legal importance in the late Republic necessarily means that the praetorship was from the start a “legal” magistrate. Mitchell, influenced by Coli and Starr, argues that the praetorship—including the office of praetor inter peregrinos— remained “essentially military in nature” down into the early second century. Prior to that time, the distinction between an urban or peregrine praetor had nothing to do with a particular legal expertise; the pontifices still controlled the civil law. For Mitchell, “[T]he praetor peregrinus originally was more concerned with foreigners and foreign areas than he was with adjudicating cases between Roman citizens and foreigners, and perhaps we have here the means to resolve the controversy surrounding his jurisdiction.” Mitchell continues, “only in the second century b.c., after the demands of the war had subsided, did Rome map out spheres of legal influence for the praetors,” determining those spheres not so much by substance as by actual physical territory. What Mitchell then goes on to offer does not seem acceptable,160 but he deserves credit for lighting upon the individual interpretations listed above, which I hope to show are correct. c. Patterns of Increase in the Number of Praetors. The administrative history of the Republic is a subject which tends to be ignored by modern historians, and so Mommsen’s picture of the Republican praetorship in the Staatsrecht remains accepted in most of its fundamentals—in most cases, rightly so. In particular, Mommsen was undoubtedly correct to emphasize that, at all times, social competition within the Roman senatorial establishment kept within bounds the addition of new territories (and thus new praetors) to the Republican empire.161 Of later scholars, W. Jashemski deserves special credit for sketching the development of the promagistracy, the device which enabled Rome to make do with a limited number of top magistrates.162 W. Kunkel’s Staatsordnung und Staatspraxis der römischen Republik (published posthumously in 1995) is a comprehensive work that covers a vast number of issues concerning Roman magistracies and their powers. We still await a detailed treatment of Republican provincial administration.163 In a short yet important review,164 E. Badian has presented a modified sketch of the administrative history of the praetorship which, for the first time (as far as I
32 The Praetorship in the Roman Republic
can tell), asked the major questions the present study seeks to answer. Badian disengages a series of important stages in the administration of the Republican empire. First, there was a period when the Senate was willing to increase the number of praetors to correspond to the organization of new provinciae (as seen in the case of the Spains in 198). Second, there was the acceptance of the promagistracy as a routine office. This was firmly established in 146, when the Senate decided not to add more praetors for the new provinciae of Macedonia and Africa, a decision which made it arithmetically necessary for two praetors to be prorogued each year. Third, there was the dissociation of the promagistracy from the provincia of the magistracy. This is attested already for the latter part of the second century, when we see a city praetor for 115, C. Marius, dispatched to an overseas provincia following his year of office. It was Sulla who finally institutionalized this development, and it remained in force for the rest of the Republic.165 A good part of the present work is devoted to exploring the background to the Senate’s decisions regarding the addition of provinciae; once we examine in detail the complex evidence, we shall see that Badian is absolutely correct to identify the above stages as the crucial ones for the development of the praetorship. In this study, I also am interested in expanding Mommsen’s sketch of how the system of a limited number of praetors managed to meet the demands of routine civil government in addition to warfare and empire. But the bulk of this work on the praetorship is (necessarily) devoted to basic questions of chronology and prosopography. d. Prosopographical Approaches to the Praetorship. We are much better informed on individual praetors than when Mommsen wrote his Staatsrecht. The prosopographical articles F. Münzer subsequently wrote for the Pauly-Wissowa RealEncyclopädie collected and analyzed (in a consistently stimulating fashion) all the evidence then available regarding a great number of Republican magistrates, many of whom held the praetorship. Münzer very often produces convincing identifications and explanations, and is referred to constantly in this study. Even when Münzer is less persuasive, his views at the least must be taken into consideration. On a much different level, the various Fasti Praetorii of P. Wehrmann (1875), M. Hölzl (1876), E. Maxis (1911), and F. Stella Maranca (1927) are (as the title implies) simply lists of praetors with a bare minimum of notes.166 All these studies have been superseded by the three volumes of T. R. S. Broughton’s Magistrates of the Roman Republic (1951–1986). Broughton’s work was a pioneering study that allowed the scientific investigation of the various Republican magistracies to proceed in earnest. In many places I take issue with Broughton’s dates and (less occasionally) identifications. But it must be emphasized that it is largely his own Magistrates that allows one a basis for disagreement over particulars: one commonly uses Broughton against Broughton. I should mention that in this study I accept the definition of nobilitas established by M. Gelzer, that in the Republic those called nobiles were descendants in the male line of dictators, consuls, or consular tribunes—not simply of curule magistrates (as Mommsen thought).167 I also might note that when I ascribe decisions to the Senate or the “senatorial establishment,” I feel reasonably confident doing so. In the period covered by this first volume in particular, the People and Plebs
Introduction 33
actually lost some longstanding and important powers to the Senate (see 8.2.1), though that process slows down with the Gracchi, who were largely responsible for forcing through the creation of two new provinciae. But we never hear of any praetor being sent “quo populus censuisset,” nor is it implied that this ever was the case. The Senate always took responsibility for the bulk of the important decisions pertaining to the development of this particular magistracy and the deployment of the individuals who held it.168 The Senate aggrandized even more in the decades following its successful management of the Second Punic War. In any case, recent attempts to emphasize the “democratic” elements of the res publica169 have not pretended to offer much on the shaping of the Roman praetorship.
2
Antecedents of the Praetorship
From the very beginning of the Republic, the Romans were faced with the difficult question of how to meet increasingly demanding administrative needs without giving imperium and regal auspicia to too many men. The introduction of a new praetor in 366 to serve as a colleague of the consuls was just one in a series of attempts to solve this problem. This magistracy has to be counted a success. But to create it, the Romans had to put a bold new construction on the regal power. The praetor was to hold imperium which was defined as of the same nature as the consuls’, but minus, “lesser,” in relation to theirs. No study has yet offered a reasonable (let alone convincing) explanation of the process that led to the invention of maius and minus imperium (1.5.2). Indeed, the generally accepted view is that the distinction can be found already in the earliest days of the Republic with the dictator, who could give orders to the consuls as well as his junior assistant, the magister equitum. This supposition, that the dictator had an imperium and auspicia which were greater than those of the consuls, must be erroneous. Rather, it took almost a century and a half from the start of the Republic for the Romans, through experience and experimentation, to arrive at the concept of two grades of imperium, first seen in the institution of the praetor, a lesser colleague of the consuls. It is only with Augustus—who invented “imperium proconsulare,” quite unheard of in the Republic—that we find acceptance of the notion of an imperium which is maius compared with other people’s tenure of that new level of supreme power. But if we accept that the invention of imperium maius and minus was relatively late—and that imperium greater than consular was a post-Republican institution—we then must reevaluate some common assumptions regarding the delegated powers of the praefectus urbi and magister equitum. In fact, we must look anew at our understanding of imperium in general.
2.1 Praefectus Urbi Roman tradition held that when the king went out into the field, he appointed a praefectus urbi to manage “affairs in the city.”1 Later, in the Republic, when all the 34
Antecedents of the Praetorship
35
holders of imperium were obliged to leave Rome, the last to depart appointed this prefect.2 Eight praefecti urbi show up in our record of the first half of the fifth century, all but one ex-consuls at the time of their designation, discharging consular duties in and around Rome while the consuls are on campaign; five of these men are clustered in the years 465–458.3 The office in this sense has no positive attestation after these praefecti of the mid-fifth century, though it probably continued to exist, unremarked in our sources. Livy may have simply stopped reporting all the instances in which consuls appointed praefecti, if he found the practice sufficiently routine.4 In fact, we know that a ceremonial form of this institution had a long life. At the beginning of each consular year, when all the magistrates, including the tribunes, ascended the Alban Mount for the celebration of the Latin Festival, the consuls appointed a praefectus urbi to remain behind in Rome.5 Caesar reintroduced a nonceremonial Prefecture of the City, with some significant changes from the original institution, in 47.6
2.1.1 Powers of the Praefectus Urbi Tacitus attempted to summarize the role of the early praefecti: “When the kings, and later, the magistrates set out from Rome, to avoid leaving the city without imperium, a temporary official would be delegated to administer justice and deal with emergencies.”7 The epitomator of Pomponius makes him a purely legal magistrate: “Whenever the magistrates set out [sc. for the field], one man was left to administer justice.”8 No source ventures to describe in greater detail the exact functions of the regal praefecti. But it is interesting that, pace Tacitus and the epitomator of Pomponius, the annalistic tradition depicts the early Republican praefecti primarily as military magistrates, not dispensers of justice. Dionysius of Halicarnassus describes how in 487 the Senate decided that the two consuls of the year should fight with two-thirds of the army against the Hernici and Volscians respectively, and that with the remaining third Sp. Larcius, “who had been appointed prefect (e[parco~) by the consuls, should defend the part of the land which was nearest the city.” For Dionysius, this was the primary role of the praefectus urbi.9 Livy depicts praefecti acting in Rome as presidents of the Senate,10 but also stresses their importance for the defence of the city.11 In one instance (the year 462), he reports that the praefectus urbi actually went to the Algidus pass (about eighteen kilometers south of Rome) to succeed to the command of a consular army.12 What formal powers did the praefecti urbi have which enabled them to discharge these consular prerogatives, both domi and militiae? T. J. Cadoux has argued: [I]t seems self-evident that an official who designates another to act in his stead confers upon him as much authority as he himself possesses: and we should therefore expect the original praefecti urbi to possess the full kingly (or consular) imperium. That they had imperium is implied by Tacitus and Mommsen shows that they were expected to cover the full range of consular duties in Rome.13
Indeed, Mommsen also seems to have considered these praefecti to hold imperium—as have many others.14
36 The Praetorship in the Roman Republic
The argument that the praefecti were delegated full imperium will not hold up to scrutiny. It does not stand to reason that a Roman king could—or would—simply delegate his full regium imperium to another.15 Hence, even when it came to succession, there was a tradition that Servius Tullius was the first king ever to rule “without the People’s bidding” (“iniussu populi”).16 As the famous story goes, when Tarquinius Priscus was near death, his queen Tanaquil was able to convince the Romans that Servius was the king’s proper delegate.17 When the death of the king became generally known, Servius (who had been using the royal insignia) eventually “consulted the People himself in regard to his own position, and when they had bidden him to be king, caused a lex curiata to be passed confirming his imperium.”18 The story of Servius’ accession is a constitutional absurdity, and obviously meant to be: the point is that the Roman people swallowed the notion of the appointment of a king pro tempore, an office for which there was no precedent. R. M. Ogilvie suggested that Livy makes Tanaquil in her speech to the People hint “that Tarquin’s imperium is delegated to Servius as praefectus urbi.”19 Ogilvie’s argument is unconvincing: all our accounts are clear that Servius masqueraded as a full colleague of the king.20 If Servius pretended only to be a praefectus urbi, why would the Romans ever accept him after Tarquin’s death as “genuinely king” (“haud dubius rex”)?21 We have no other indication that regal imperium could be delegated to others.
2.1.2 Delegation of Consular Imperium? In the Republic, it is certain that an individual could not give out consular imperium. In the year 295, so that the Romans might have enough commanders in the field to combat the combined threat of the Samnites, Gauls, and Etruscans, the consuls of the year granted imperium to four men who were not magistrates at the time but who were of consular rank. One of the recipients was M. Livius Denter, cos. 302 and now a pontifex. According to Livy, when the Romans were getting the worst of a major battle at Sentinum, the consul P. Decius Mus ritually devoted himself. After Decius’ death, we find the priest Denter fighting in his place, “to whom Decius had handed his lictors, bidding him to be pro praetore.”22 M. Livius Denter was an ex-consul. He was expected to fight in the consul Decius’ place in command of his army, and (as Livy has it) had received the most important insignia of that consul’s imperium, his lictors. Nevertheless, he was delegated only praetorian imperium. One wonders whether Denter was thought of as receiving all twelve of the consul Decius’ lictors, or, in view of Denter’s praetorian imperium, whether six were sent away! The reason for M. Livius Denter’s being made merely pro praetore must be that a consul was simply not qualified to make a grant of his own level of imperium. It is noteworthy that the three other ex-consuls who were delegated imperium in that same year also received it only at the praetorian level.23 Even if we were to regard the commands of M. Livius Denter and the other consulars as a later annalistic invention, there is no reason to question whether Livy or his source would have correctly described the nature of these commands.
Antecedents of the Praetorship
37
In the Republic, although we occasionally find a consul appointing a man pro praetore, there is no instance of a special command pro consule granted by a consul in Rome or in the field.24 A magistrate must have been unable to delegate imperium on his own level. A dictator or consul cannot give out the full regal imperium and auspices to another magistrate or to a privatus. They can give out only praetorian imperium. Thus, there can have been no personal delegation of imperium in the Republic until the invention of imperium minus. If the differentiation of imperium into different grades was not original to the Republic, but (as will be argued here) a development of the mid-fourth century, the prefect of the city cannot have held imperium. 2.1.3 The Praefectura Urbi as “Dodge” Let us reject the notion that consuls of the early fifth century could have delegated their imperium to the original praefecti urbi. How then did these praefecti function? As we have seen, tradition held that the king appointed a praefectus urbi when he led a force into war; he also is said to have appointed duumviri perduellionis as state prosecutors acting in his name,25 and tribuni celerum as military auxiliaries.26 The consuls presumably inherited with their kingly imperium the right to “leave” a subordinate in a given place to fulfill a specific task (“praefectum relinquere”).27 The early praefecti could preside over the Senate; and they should have been able to introduce bills to the People.28 It appears these prefects could declare a iustitium,29 a measure that was meant to facilitate the dilectus. Though it is unlikely in any period that men of military age could plead obligations in a court of law (e.g., appearing as a witness) in order to escape service,30 we can assume the iustitium freed the prefect from his routine civil tasks to hold a levy or serve in a military capacity. Indeed, we find that prefects could command a large military force, and even lead a consular army based well outside of Rome. The praefecti urbi were chosen by and large from among ex-consuls, and acted pretty much as consuls— within certain limits. We never hear of the early praefecti celebrating the Latin Festival,31 holding elections of consuls in the Centuriate Assembly,32 naming dictators, or celebrating triumphs. Their auspicia, such as they were (and they must have had some, to judge especially from their activities militiae), surely were not their own. The tenure of the praefectus urbi ended at the discretion of his superior. The city prefect probably was not even regarded as a magistrate of the Roman People; no ancient source claims that he was, and he is never found in official lists.33 The praefectus urbi was essentially the same in conception as the other praefecti we find: for instance, prefects of allies, garrison prefects, and naval prefects. None of these had imperium, but each might have had to fight—especially garrison and naval commanders, who must at times have initiated battles.34 How did they act? I would maintain that from the start of the Republic the consuls, like the kings, were qualified to give privati the ability (potestas) to perform specific tasks.35 A consul might have been capable of imparting limited public auspicia to certain prefects. It is interesting that in the period before 366, all officially appointed praefecti, inside and outside the city, seem to be patricians (i.e., capable of handling auspi-
38 The Praetorship in the Roman Republic
cia).36 We do not know, however, how the augural doctrine explained the delegation of auspices—at any point in the Republic.37 In short, the praefectus urbi—and all other praefecti—constituted a quite impressive “dodge,” a way to give some flexibility to the original Republican constitution. We must thank the legal scholar David Daube for articulating this concept. In a famous lecture first delivered in the mid-1960s,38 Daube pointed out that all dodges—that is, circumventions of a law—are essentially misinterpretations; he also noted that a dodge may exist for hundreds of years without its nature being fully grasped. Daube was talking about how the powerful circumvent forbidden financial dealings and the like by setting up alternative transactions and front men. But his remarks can be extrapolated to larger issues of Roman constitutional and religious law.39 Thanks to the institution of the praefectus urbi, a consul could appoint a representative with wide powers (including a lower grade of auspicia maxima than his own) to act in his stead, without having to fear that this subordinate would get in the way of his own actions. There still, however, were only two paths to imperium and regal auspicia, namely election to the consulship in the Centuriate Assembly, and appointment by a consul to a dictatorship.
2.2 The Dictator Within a decade of the establishment of the Republic, the Romans established the possibility of appointing a special magistrate with full imperium, the magister populi or dictator, to serve as an emergency chief of state. The consul “named” the dictator in a ceremonial dictio; the newly created dictator in turn would then “name” a person to serve as his “master of the horse,” the magister equitum.40 The dictator was responsible for passing his own lex de imperio in the special Curiate Assembly;41 the fact that he was able to summon and preside over that assembly shows that he received some auspices simply by virtue of his appointment. After the dictator and magister equitum are named, the consuls (and all other magistrates) remain in office,42 though they are under the dictator’s orders. The Romans had a tradition that originally the People’s right of appeal did not apply to the dictator; what is reasonably certain is that no other individual magistrate could veto his actions.43 The ancient sources are unanimous in adducing military exigencies for the creation of this office, whose first incumbent variously is said to be T. Larcius Rufus or M.’ Valerius, probably in 501.44 This traditional view finds support in the fact that the dictator and magister equitum in all periods had a term limit of six months,45 the approximate length of a campaigning season. It is not difficult to see how a prolonged military emergency could force the Romans to alter their initial arrangement of two consuls of equal power. In a crisis, indecision or a stalemate between the consuls obviously would be dangerous; what is more, Rome had powerful enemies on several fronts, and circumstances could require more than two magistrates with imperium. 2.2.1 The Supposed “Imperium Maius” of the Dictator Yet on what constitutional basis were the consuls expected to serve in a position of tactical subordination to the dictator? The following view can be taken as standard:
Antecedents of the Praetorship
39
“The dictator had a more powerful imperium and auspicium than that of the consul. So in any case the dictator was appointed by a holder of a lesser imperium and auspicium.”46 A few ancient texts do seem to confirm this interpretation. Livy, for one, appears to have thought that a dictator had auspicia and imperium which were greater (“maiora”) in relation to that of the consuls. When describing how the consuls of the year 422 were brought to trial for military incompetence, Livy recalls that one of them, T. Quinctius Poenus Cincinnatus, had successfully fought in 431 “as consul under the auspices of the dictator” (“consul auspicio dictatoris”) A. Postumius Tubertus, and in 426 as a legatus (so Livy tells us) under the dictator Mam. Aemilius Mamercinus. However, in this retrospective notice Livy is merely summarizing some relevant items from Cincinnatus’ background; his reference here to auspicia may not be precise and technical, but rather simply equivalent to “under the dictator’s command” (“ductu dictatoris”).47 Yet later (under the year 363) Livy notes that the Romans at some point in the early Republic transferred the ceremony of driving a nail into the door of the Capitoline temple from consuls to dictators, “because their imperium was greater” (“quia maius imperium erat”).48 As we have noted (1.4.1), this looks like an annalist’s or antiquarian’s rationalization (if not Livy’s own), perhaps meant to explain the appearance of a dictator clavi figendi caussa in the Fasti for this very year. Though Livy himself obviously accepted this explanation, it does not quite make sense. Consuls were certainly competent to drive the nail, as Livy himself makes clear. Livy’s most explicit statement about the dictator’s special status occurs in his narration of the year 325. The dictator L. Papirius Cursor is made to ask his magister equitum Q. Fabius Maximus Rullianus whether it is proper that he disobey his superior’s orders, “though the dictator has the highest imperium, and the consuls— who have kingly power—obey him, as do the praetors, elected under the same auspices as the consuls.”49 Cicero several times speaks of the summum imperium of the consuls,50 as does Livy,51 and so we ought not to suppose that this is a special attribute of the dictator. But it emerges from this passage that Livy considered the dictator to possess something more powerful than monarchical potestas. (It is interesting that here Livy also implies that the praetor is superior to the magister equitum; we shall further explore this possibility below.) There are at least two other passages where Livy implies that the dictator had an absolute “imperium maius.”52 Finally, the emperor Claudius, in his speech of a.d. 48 preserved on the Lyons tablet, states that in military or civil emergencies the old Romans resorted to “the dictator’s imperium, which was more powerful (valentius) than even that of a consul.”53 This statement—probably based on Livy—was elevated to a constitutional principle by H. Last: “the ‘imperium valentius’ of a dictator was used by dictators in times of crisis to subordinate the other magistrates to their direction.”54 It would be most surprising if the dictator possessed anything qualitatively greater than consular imperium. The consul had the imperium and auspicia of the kings of Rome. Logically, the dictator could have no more. Livy, in the Rullianus passage cited above, neatly summarizes this constitutionally absurd notion—and shows he did not worry much about it. It is noteworthy that in 360, when a dictator and a consul separately defeated the same Gallic force, the consul alone received the triumph. The consul C. Poetilius Libo Volusus had followed up the success of the dictator Q. Servilius Ahala against the Gauls near the Colline Gate with a vic-
40 The Praetorship in the Roman Republic
tory near Tibur, which earned him a triumph de Galleis et Tiburtibus; his colleague M. Fabius Ambustus celebrated an ovation de Herniceis; the dictator Ahala is absent from the triumphal record.55 True, it appears from Livy that the consul Poetilius had received ‘Tibur’ as his provincia, and the dictator “Gallicus tumultus,” and the two fought separate battles.56 But in any case, the consul’s victory over Gauls technically must have been in the dictator’s provincia; for what it is worth, the dictator is represented as giving the consul orders in the field.57 As Livy tells the story, the dictator had voluntarily waived his right to a triumph in the consuls’ favor and then abdicated from office. Yet even this grand gesture would not be enough to allow Poetilius, had he really fought “auspicio dictatoris”, to overcome the legal impediment and celebrate the honor.58 Livy reports no opposition to Poetilius (though some Tiburtes are depicted as ridiculing his triumph, claiming that there had been no battle at all against them).59 The detail of the dictator’s “allowing” a triumph to Poetilius and an ovatio to the other consul must be an earlier annalist’s rationalization: what he found in the actual unadorned record must have puzzled him. Similarly, disbelief that a consul could triumph from the provincia of a dictator rei gerundae caussa may have led some of Livy’s sources to dismiss the tradition that the dictator A. Cornelius Cossus Arvina had fought against the Samnites in 322. In this campaign, both consuls of the year—but not the dictator—earned a triumph, according to the Fasti. This led some annalists (as well as perhaps the relevant portion of the Capitoline consular Fasti, now lost) to represent the dictator as (evidently) “ludorum Romanorum caussa”—an unparalleled appointment.60 The absurd notion that a dictator might be created to fill in for a sick praetor strains even Livy’s credulity, and prompts his famous diatribe against the mendacity of the sources for earlier Roman history.61 The dictator’s primitive, anomalous status, with precedence over all other magistrates, is never adequately explained to us by our ancient sources. By the second century, when people started writing books about auspicia and the like (the first known work along these lines is the De Magistratibus of C. Sempronius Tuditanus, cos. 129),62 they probably did not quite understand it fully themselves. It is certain that Livy thought the dictator’s imperium superior to the consul’s. But his evidence is hardly compelling. After the long intermission in the office, and its revival by Sulla and then Caesar in a totally new form, there probably was not much genuine tradition about it. Sulla (followed by Caesar?) presumably claimed it was superior, to judge from his twenty-four lictors (see 2.2.2). As we have seen, the consul, not the People, “names” a dictator. The dictator’s special powers perhaps partly derived from this appointment, which took place in an auspical ceremony, “ave sinistra,” as Cicero tells us in the ideal constitution of the De Legibus.63 Other delegations were presumably not.64 The only way the People are involved in the appointment is through its subsequent passage of a lex curiata (which we are told the dictator had).65 This combination of auspical delegation and lex curiata must constitute a legal fiction, one which gave him special powers for six months. Cicero in that same passage from the “constitution” in the De Legibus implies the dictator had as much imperium as the two consuls (“idem iuris”), but no more.
Antecedents of the Praetorship
41
Indeed, we ought to regard the dictator’s powers as the same as the consuls’, but different. The dictator should not have been a colleague of the consuls, since he was not created under the same auspices, that is, in the Centuriate Assembly. The dictator and his assistant, the master of the horse, may not even have been proper magistrates of the Roman People. Messalla may imply this by omitting these offices in his disquisition on magistrates’ auspicia66 (though one should not push this negative argument too far). More substantially, it seems significant that a man could be dictator (or magister equitum or censor) at the same time as holding a consulship or praetorship.67 We never hear of people simultaneously holding two proper magistracies (such as praetorship and aedileship) together.68 The emperor Claudius in his speech of a.d. 48 may have stumbled upon the correct explanation of the dictator’s power. A dictator’s imperium was indeed valentius, “more efficacious”—though not maius in the later technical sense of the word—in relation to that of an individual consul. But here Claudius’ avoidance of the term maius imperium is unlikely to be based on certain knowledge, but rather simply on a desire for literary variation. 2.2.2 The Fasces of the Dictator The Romans attempted to represent the relationship between consul and dictator in their insignia. In the Republic, consuls, supposedly like the old kings, were attended by twelve lictors with the fasces. Yet in the city only one consul at a time was preceded by lictors bearing twelve fasces. The other would be preceded by the attendant known as the accensus and followed by lictors with dummy rods, an arrangement which would alternate each month (the consular “Turnus der Amtführung,” as Mommsen put it).69 Cicero, discussing the origin of the custom of the rotation of the fasces, states P. Valerius Poplicola (trad. cos. 509) “first established the rule that the lictors should precede each consul in alternate months, so that there would be no more symbols of imperium in the Republic than there had been under the kings.”70 There were strong traditional scruples against the display of more than the “regal” number of fasces, at least within the pomerium. The custom of alternation of the fasces probably continued throughout the Republic, though it is only intermittently pointed up in our sources.71 J. Linderski has given a lucid explanation of this custom: “[T]he holding of the fasces was connected with imperium, for only the actual holder of the fasces had the right to independent action, whereas the imperium and auspicium of his colleague were dormant at that time (however, it is important to realize that in any case the auspicium was dormant only as far as independent action was concerned, and not obstruction).”72 The rotation seems to have been observed in the field only when two consuls were in command of the same army; in that case, the fasces would rotate each day.73 The Romans seem to have designated the consul who held the fasces at a given moment as the “consul maior.”74 Polybius tells us that twenty-four lictors accompanied the dictator.75 On the other hand, the Livian Periocha relates that in 82/81, “Sulla as dictator appeared in public accompanied by twenty-four fasces, which no one had ever done.”76 This emphatic statement may be reconcilable with Polybius’ report if Sulla was the first
42 The Praetorship in the Roman Republic
to be preceded by twenty-four within the pomerium. Earlier dictators will have had twelve in Rome;77 the twenty-four fasces can have been only militiae. Polybius may be a bit confused. He of course had never seen a dictator, but he will have been present at the funeral processions of those who had a dictator in their family, and so were entitled to have actors with magisterial insignia play the part of their distinguished ancestor. Naturally, the families will have claimed the full complement for the occasion—hence Polybius’ notion.78 The dictator’s fasces doubtless were meant to convey the special nature of his power. In the city, he had the trappings of the consul’s regal imperium, but was not subject to the rotation, and so always had the capacity for independent action. Presumably, when a dictator was in the city, both consuls were escorted by lictors with dummy rods, indicating that their imperium and auspicia lay dormant. If the consul maior were to continue to be preceded by the fasces, there would be no significant way by which to distinguish his insignia (and powers) from those of the dictator. The custom of lictors bearing dummy rods may be what stands behind Polybius’ statement that, when a dictator is appointed, “immediately all the magistracies in Rome except the tribunes cease to function.”79 This makes sense if we recognize the implication “. . . while the dictator is there.” The actual evidence shows that a consul lost his power in the (notional) presence of the dictator, and had to lay down his fasces, but probably was unaffected, perhaps even in his symbolism, when not serving directly under the dictator.80 (The consular triumphs of 360 and 322, discussed in 2.2.1, may also be relevant here.) Such a modification of the rotation may also explain Livy’s puzzling reference (in his account of the year 363) to the “ancient law . . . that whoever be praetor maximus on the Ides of September should drive a nail” into a wall of the temple of Jupiter on the Capitoline.81 Now, the consuls were archaistically called “praetores” in Roman sacral and augural language well after 366.82 The term “praetor” perhaps was originally applicable to any holder of imperium.83 I would suggest (following Mommsen) that the purpose of the formula “qui praetor maximus sit,” to be translated as “whatever senior magistrate be greatest,” was to ensure that the man who actually held the fasces in the city on the 13 September should drive the traditional nail, thus making provision for the possibility of a dictator. (The law cannot go back to the beginning of the Republic, as most scholars assume, on the basis of Livy’s text—which is obviously corrupt at the relevant point.) A law which simply prescribed “qui praetor maior sit” would be too ambiguous: the consul whose rotation of the fasces it properly was—or who was elected first—conceivably could claim the distinction (1.4.2). An event of the year 217 may help us move toward a solution to this muchdiscussed problem. Livy states that after the great Roman disaster at Trasimene and the (extraordinary) appointment of Q. Fabius Maximus as dictator, the Senate instructed the Xviri sacris faciundis to consult the Sibylline Books and discover how the gods might be appeased for the sacrilegious conduct of the ill-starred consul C. Flaminius. The advice of the decemviri (and no doubt the passage of a senatus consultum, not mentioned by Livy) resulted in the dictator Fabius vowing a temple to Venus Erycina, “because the Sibylline Books had pronounced that whoever had the greatest imperium in the state should make the vow.”84 Since there was a dicta-
Antecedents of the Praetorship
43
tor in office at the time, this may have influenced the formulation of this particular response. But the passage in the Sibylline Books which formed the basis of this oracle need not specifically have prescribed that a dictator had to vow the temple to Venus. The meaning of both “qui praetor maximus sit” and the phrase “cuius maximum imperium in civitate esset” in the response should basically be the same. It is a general phrase, meaning “whoever is the head of state,” that is, holding the regal fasces in the city. In the field, where rotation usually did not have to be observed, the dictator had twenty-four lictors to mark him clearly as the full equal of a consular pair, with the ability to give either consul orders. Since the dictator was not a colleague of the consuls, no consul alone could effectively veto his actions. The Romans may not have worried about what would happen if both consuls stood in the way of the dictator, who evidently had idem iuris, “just as much power,” as the two consuls, but no more. They probably viewed the fact that one of the two consuls was meant to choose and “name” the dictator as a sufficient safeguard against such dangerous conflict. In sum, the Romans of the Classical Republic never accepted the concept of imperium which was greater than the regal power. In 57, Cicero dismissed as “intolerable” the tribune C. Messius’ proposal that Pompey as grain commissioner hold imperium in the provinces which was maius against that of their regular governors.85 (All provincial commanders by this time held consular imperium.) Even after Caesar’s assassination, in 43, the Senate refused such a grant of imperium maius, which Cicero had proposed for M. Iunius Brutus and C. Cassius Longinus.86 Augustus, of course, soon introduced a new grade of imperium as the foundation of his rule as Princeps: imperium proconsulare, which is what he seems to hold after 23. But still even he does not appear to have claimed that this new imperium was qualitatively greater than imperium consulare (i.e., imperium regium), though he certainly acted as if it were.
2.3 Magister Equitum 2.3.1 The “Imperium” and Auspicia of the Master of the Horse The dictator’s assistant, the magister equitum, never triumphed, which suggests what we would in any case expect, that he did not fight under his own auspices (“suis auspiciis”). The common explanation of the “constitutional” position of the magister equitum is that he held something like the later praetorian imperium.87 Support in the ancient sources for this latter supposition is slim. The best evidence comes from an incident of 217, during the dictatorship of Q. Fabius Maximus “Cunctator.” (For Fabius’ appointment and early activities, see 5.4.7 with 2.2.1.) When Fabius’ famous strategy of “delaying” appeared to be yielding few results in the war against Hannibal, a popular vote brought it about that the master of the horse M. Minucius Rufus (cos. 221 and perhaps also an ex-dictator) received imperium on the same level as that of his superior. Polybius even thought that Fabius and Minucius had been made codictators. Yet the Capitoline Fasti know of Minucius
44 The Praetorship in the Roman Republic
only as magister equitum, and scholars now generally consider Polybius’ statement to be inaccurate. Livy repeatedly says Minucius had an imperium which was “made equal” (“aequatum”) to that of Fabius. If we accept this version, on the face of things it would seem that the master of the horse by this time must regularly have held imperium; the author of an (Augustan era) elogium of Q. Fabius Maximus certainly thought this to be the case.88 But everything depends on the nature of the popular vote which enhanced Minucius’ status. Livy and Plutarch emphasize the role of a tribunus plebis M. Metilius, who aggressively attacked Fabius’ conduct of the war. According to these sources, when Fabius left his magister equitum in the field and returned to Rome to see to some religious obligations, Metilius sounded out in a contio the possibility of abrogating the dictator’s imperium, finally suggesting (as Livy puts it) a more moderate measure that made the powers of the two equivalent (“de aequando magistri equitum et dictatoris iure”). Livy also notes that Metilius successfully pressed the dictator into holding an election for suffect consul (at that point, the one surviving consul of the year was commanding a wideranging Roman fleet). Fabius did not interfere with the attempt to elevate Minucius, but departed from the city the evening before the Plebs was to vote on (and pass) Metilius’ bill.89 Elsewhere, Livy in speeches once indicates that Minucius owed his “aequatum imperium” to a plebiscite, and another time says it came from the People (“iussu populi”). The contradiction may be only apparent, for Livy often uses “populus” for “plebs.”90 F. Münzer thought Polybius implied a process in two parts: a resolution of the Plebs, with the People in the Centuriate Assembly bestowing the actual command on M. Minucius.91 Yet Polybius is unlikely to have meant this: his mention of “the goodwill (eu[noia) of the people” toward Minucius cannot be stretched into a technical phrase. Other sources vary. The Augustan elogium of Fabius Maximus (on par with the annalists as a source!) attributes the grant to the People; Valerius Maximus, in two passages, offers alternately the Plebs and “the Senate”; Appian also seems to think that the Senate acted by itself.92 That last notion we can safely reject. The choice is between a plebiscite, or a plebiscite followed by a vote of the People; either process could be—and should be—ex senatus consulto. It seems that the Plebs was fully capable of extending preexisting imperium militiae, temporally (in prorogation) or spatially (for triumphs), as well as abrogating it. There is no indication that it could grant it outright, or even enhance it; that was apparently the task of the People.93 If we could be certain that M. Metilius’ plebiscite in itself equalized the powers of M. Minucius Rufus and Q. Fabius Maximus, then we might reasonably admit that the office of magister equitum by this point involved imperium minus—though we certainly are not entitled to extrapolate that this was always so, from the beginning of the Republic. On the other hand, it is just possible that our references to a plebiscite as the source of Minucius’ enhanced power—basically Livy, with a (probably derivative) passage of Valerius Maximus—are only partially accurate. Livy would have us believe that no respectable senator of any auctoritas publicly came forward in favor of the proposal to promote M. Minucius Rufus. This really is too much to swallow, especially since some of our other sources suggest that the master of the horse (an ex-consul and perhaps ex-dictator) had significant backing in
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the Senate. We also may note the tradition that the Senate “gave” Minucius his special command. Though this also is an exaggeration (in fact an error), it may indicate that there was a senatus consultum passed somewhere in this process. As an alternative to a definitive plebiscite, one might suppose that Metilius’ bill had the effect merely of ordering a competent magistrate to convene the People in the Centuriate Assembly for a special vote of imperium, unnoticed or even deliberately ignored by Livy.95 We may remember that Metilius as part of his program is said to have insisted on the election of a suffect consul; Livy does not tell us why. Perhaps—and this is quite speculative, and somewhat at odds with Livy’s own narrative—the tribunus plebis wanted to ensure (in the short term) that someone would be available to convene the Centuriate Assembly on what must have been a divisive issue. Fabius obviously could not be expected to pass a measure which was detrimental to his own status, and at this stage of the war, no one could count on the availability of the urban or peregrine praetors. Naturally, Metilius had to allow for the possibility that Fabius might refuse to elect a new consul, or elect a suffect and then order him (and all other holders of imperium) not to bring the matter of Minucius’ promotion before the Senate or People. In either of those cases, Metilius could then play his trump card—the passage of a bill stripping Fabius of his imperium. This (according to both Livy and Plutarch) he had already threatened, and the Plebs alone might have been able to bring about (we simply do not know).96 In the event, Fabius did nothing, and so added to his reputation for great constantia.97 Unfortunately, the best positive evidence for this reconstruction is no better than Münzer’s interpretation of Polybius. Polybius is probably inaccurate about Minucius as “codictator,” and so he may be wrong on the “two stages”—if he is implying that at all. On balance, the whole incident of M. Minucius Rufus in 217 seems too uncertain for us to know whether the master of the horse held imperium by the time of the Hannibalic War. Even if that could be shown, I must emphasize that it need not imply the same for the period down to 366. All our other evidence is from the late Republic. Cassius Dio (for the year 48)98 attests that—at least in Caesar’s time—the master of the horse was accompanied by six lictors, like the praetor militiae. A passage of the ideal constitution contained in Cicero’s De Legibus in fact seems to equate the power of the two: “The dictator shall have [as an assistant] to command the cavalry one whose legal rights (ius) are equal to that of the administrator of justice [i.e., the praetor].”99 Cicero is avoiding technical terms here, and so we cannot be sure what he means. At any rate, this is the closest any ancient source gets to stating that the master of the horse held imperium. In official lists of magistrates, the magister equitum is always ranked behind the praetor, and ahead of the censor (who did not hold imperium).100 It is worth exploring the possibility that the magister equitum—who never acts suis auspiciis—does not round off the list of magistrates with imperium, but rather heads the list of those who do not have it. Note that in 368, despite senatorial opposition, the patrician dictator P. Manlius Capitolinus could name one C. Licinius Calvus as the first-ever plebeian magister equitum.101 This was at the very height of a serious quarrel between the orders on the question of whether plebeians should be admitted to the consulship and thus full public auspices. Livy is doubtless cor-
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rect in his general picture, that it took a lot of effort to arrive at the possibility that plebeians could have auspicia at all; he reports the Senate’s resistance to this idea even in the late 360s, after the consulship had been opened up to plebeians.102 Assuming Livy’s report for 368 is genuine, it would be surprising that the overwhelmingly patrician Senate would have let the appointment stand if the office of master of the horse involved imperium and thus auspicia “maxima.” But this incident is not decisive. Obviously, all sorts of compromises were in the wind just before the final capitulation, and this might have been one of them. Dio tells us that the master of the horse was preceded by six lictors, at least in the late Republic. Should it not imply that he held imperium? Not necessarily: the lictors of the magister equitum may not be an original distinction of his office. Cassius Dio reports that in 45, the dictator Caesar had left the city to his magister equitum M. Lepidus as well as to six or eight prefects of the city. These praefecti urbi of 45 evidently did not have imperium. They were criticized for using the same insignia as the master of the horse—lictors, the toga praetexta, and a curule chair— and had to defend themselves by citing a law, that “all those receiving any office from a dictator were entitled to such trappings.”103 At first glance, this should mean the master of the horse: as far as we can tell, early dictators did not have many commissions to bestow. Could it be that at some time a positive law had to be passed granting the magister equitum the use of lictors? If the original office of the master of the horse had involved imperium, there would be no need for such a measure. But caution is necessary. This law which Dio mentions may well have been passed long after the master of the horse’s powers were defined, presumably at the same time as the dictator’s. Indeed, it may not be older than Sulla. And if Sulla as dictator created praefecti, say, to carry on military operations in Italy in 82 and 81—thus providing Caesar with a precedent for his praefecti urbi—then the master of the horse might not be meant here at all. The evidence simply does not allow us to decide whether the magister equitum held imperium. Nevertheless, as a military commander, the master of the horse should always have had auspicia. First, we are told that the squeaking of a shrewmouse during the dictator’s appointment of his magister equitum could force the abdication of both.104 And so the dictator evidently named his magister equitum in a ceremony for which he took the impetrative auspices,105 and the master of the horse could have a ritually flawed appointment (“vitio creatus”). These points in themselves probably imply public auspicia for the master of the horse—though not necessarily, since plebeian tribunes and aediles also can be vitio creati.106 But what does seem compelling is that a flaw in the appointment of the magister equitum could vitiate his superior’s auspices. It is hard to see why this should be so, if the master of the horse were not receiving auspicia of some sort (see further below). Second, in late 48, after Caesar secured a year-long tenure as dictator, the college of augurs vehemently opposed a consul naming M. Antonius as Caesar’s master of the horse for a similar term. Dio is clear that the issue at hand was the legal time limit of six months, and not the consul’s dictio. The augurs were ignored; Dio says they incurred ridicule for quibbling over the master of the horse, when a consul already without precedent had named Caesar as dictator for a year. The objection
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of the augurs to Antonius’ appointment demonstrates that the magister equitum held auspicia; why else would they enter into this dispute?107 We may conjecture that the auspices of the master of the horse were somewhat defective, just as those of the city prefect. Each personally received his auspices from a commander with imperium and regal auspicia, and was intended to act as the representative of his superior.108 Each had to leave his office when ordered by that superior.109 In a highly rhetorical speech inserted into Livy’s narrative of the year 325, the claim of the magister equitum Q. Fabius Maximus Rullianus to have won a victory against the Samnites under his own “ductu auspicioque” is clearly tendentious. It was only special pleading by the Senate, army, and People which saved him from execution by his dictator L. Papirius Cursor, whose orders he had disobeyed.110 Indeed, the story of Papirius and Rullianus is based on the assumption that when a dictator’s auspices were not in order, neither were those of his master of the horse.111 For confirmation of this principle, note the augurs’ objection in 48 to Caesar keeping his magister equitum in office for more than six months, to match his own appointment. Caesar as dictator must have been trying to adhere to the old rule, and making sure that the auspices of his magister equitum were derived from (and thus dependent on) his own. But it also seems that a flaw in the augural ceremony in which the dictator appointed his master of the horse—which must have been the moment when he transmitted auspicia to this subordinate— could force his own abdication. In this respect, the magister equitum differed from mere praefecti, or indeed from all other holders of delegated power in the Republic. 2.3.2 The Powers of the Magister Equitum Let us conclude this section by advancing two possible interpretations of the powers of the magister equitum, one rejecting imperium as an original attribute of the office, and the other allowing for it. Let us first suppose that in the period from the beginning of the Republic down to the Licinian-Sextian compromise of 367—but very possibly beyond—the master of the horse did not hold imperium. How can we define his powers? Like the old praefecti urbi, perhaps he had only consular potestas. On this hypothesis, the master of the horse had (as in the case of the prefects) the consular right of command, but without the regal military auspices. This would be a necessary provision. Consularis potestas would ensure that the magister equitum could be of use as a secondary commander in the field while remaining technically subordinate to the dictator (who of course had full imperium and auspicia). And technically subordinate he remained. As mentioned above, the master of the horse is never known to have triumphed. Furthermore, note the peculiar rule that augural vitium in the ceremony of appointing a magister equitum affected also the dictator who named him—which is hard to explain if the master of the horse’s auspicia were fully his own. Of course, there is also the tradition that a dictator was capable of executing his master of the horse: we obviously never hear of consuls threatening to put praetors in office to death!
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Two passages in Livy—unfortunately, both from speeches—may lend further support to this general hypothesis. First, in his account of the year 368, Livy has the dictator P. Manlius Capitolinus justify his decision to name a plebeian magister equitum by pointing out that his choice had been a military tribune with consular power (an office discussed in 2.4), “asserting that a master of the horse possessed no greater imperium than a consular tribune.”112 Livy is inaccurate here: we shall see that the consular tribune did not have imperium, but only potestas. But the equation of the power of the two magistracies, and the fact that plebeians were eligible for both, is noteworthy. Livy also places an interesting boast in the mouth of Hannibal’s brother Mago when speaking before the Carthaginian Senate in 216.113 Reporting Hannibal’s successes in south Italy, he is made to say in an indirect speech that “the master of the horse, who has consular power (quae consularis potestas sit), had been routed and put to flight” (i.e., M. Minucius Rufus, mag. eq. 217). Whatever the authenticity of the speech, Livy’s annalistic source may well have got the general constitutional point right.114 On this interpretation, the peculiar status of the office of magister equitum, a magistrate cum consulari potestate, will have gradually become more and more of an anomaly. There are, however, many occasions in the constitutional history of the Republic—starting with 367, the invention of praetorian imperium—when the magister equitum might accrue some special powers. We have seen that Livy’s narrative of 217 admits the possibility that his post by that stage involved imperium— though one can also make a fair case that it did not. As for our late Republican evidence, I must stress yet again that the offices of dictator and magister equitum went into abeyance after 202 down to the time of Sulla’s dictatorship of 82/81, and then again until 48. Sulla or Caesar could have revived the magister equitum in a new form, making changes either in ignorance or (more plausibly) with conscious intent. Caesar is a particularly good candidate for deliberately enhancing the office. As dictator in 49 and 48–47, Caesar was not overconcerned with legal technicalities.115 While abroad pursuing the Pompeians as dictator II, he needed a strong master of the horse to keep the peace in Italy and in Rome. This Antony tried to do with an iron hand.116 Indications that M. Antonius now had imperium include his six lictors and his appointment of L. Iulius Caesar as praefectus urbi, “an office never before conferred by the master of the horse.”117 As we have noted, Cicero appears to recommend in the De Legibus that the dictator’s assistant hold praetorian imperium. We do not know whether Cicero published this treatise before or after 48. By that year the powers of the master of the horse indeed seem to have been assimilated to those of the praetor. Thus we cannot be sure whether the statement in the De Legibus reflected contemporary fact (i.e., actual imperium granted to Caesar’s magistri equitum) or antiquarian opinion, or (like much else in this constitution) is simply an innovative proposal of Cicero’s. The first option is perhaps the least likely, since we know what Cicero thought of the constitutional basis of Caesar’s dictatorship. The alternative is that the magister equitum originally had imperium. Even if this was the case, I must emphasize it need not have been ‘minus’ from the start— just “imperium,” pure and simple. The derivative nature of the master of the
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horse’s auspices—which meant that he was never fighting suis auspiciis and so could not triumph—was in itself a simple and effective method to ensure his subordination to the dictator. If we accept imperium for this junior office, the pairing of the dictator and magister equitum may have had a certain degree of influence on the later maius/minus imperium relationship between consul and praetor, but it was by no means identical with that relationship (witness the peculiar codependency of their auspices). Let us take stock of our findings so far. Until the introduction of the praetorship in 366, there is no sign that the concept of subordination was regarded as a permanent feature of the res publica, that is, one that could be applied to the regular chief magistracy. The most striking proof of this is yet to come (in 2.4), namely, the awkward institution of the consular tribunate. To anticipate my argument slightly: the invention of “praetorian imperium” was the vehicle by which subordination was finally institutionalized. This imperium “minus” proved a most productive category. We have seen that, by the early third century, privati might be granted such an imperium in the field. In the late Republic, even Caesar’s praefecti claimed (and were allowed to have?) praetorian imperium, at least domi. So it should be no surprise that at some point (unfortunately undatable) before Cicero’s day, the distinction “imperium minus” seems also to have subsumed the original power (whether imperium or not) of the magister equitum.
2.4 The Consular Tribunate By the mid-fifth century, it was felt that two praetores as the only regular holders of imperium were inadequate, and starting in 444, the Romans experimented with increasing the number of chief magistrates to three, four, or even six when it seemed necessary. There would be obvious benefits in having two (or more) commanders in the field with an extra magistrate left to protect Rome and manage affairs in the city. Such an arrangement was already possible when a consul named a praefectus urbi or a dictator, yet there surely was strong resistance to making these extraordinary appointments a regular part of the constitution. (The consuls had named only six dictators in the period 501–444.) The new institution was known to our ancient sources as “military tribunes with consular power,” tribuni militum consulari potestate.118 The consular tribunate eloquently demonstrates that the Romans had not yet discovered how to apply the concept of subordination to the regular chief magistracy. The consular tribunes appear in colleges of three, four, or six equal members. These irregularly alternated with consular pairs until the institution was abandoned in 367. Colleges of up to eight are mentioned as a possibility in our sources,119 although we have no secure evidence that the number ever got that high.120 The expedient of consular tribunes was used fifty-one times in the period 444–367. Consular pairs are found twenty-two times in these same years, though only twice in the period 408–367 (the years 393 and 392). Since there are no consulships after 392 down through 367, it looks as if at least some people intended the system of tribunes to be permanent.
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2.4.1 The Introduction of the Consular Tribunate Most of the ancient sources which discuss the institution of the consular tribunate imply that it was a compromise meant to sidestep a basic issue of the conflict of the orders.121 Livy explains that a magistracy was now open to the plebeians (the consular tribunes were to be elected “from patricians and plebeians alike”), yet the patricians still preserved the consulship as their exclusive domain. Though this explanation has found a certain amount of support among scholars,122 it raises some real difficulties. Now, the prosopography of consular tribunes is very poor;123 at times (375–371) it is hopeless. But even if we consider that the lists are correct, it is impossible to believe the office was designed to ease tensions between the orders. Only two plebeian consular tribunes are found in the first four decades of the consular tribunate (the years 444 and 422). But starting in 400, we suddenly begin to find some colleges dominated by plebeians (400—four of six; 399—five of six; 396—five of six). Then after 396, the number suddenly drops off. We have one plebeian in 388 and another in 383, followed in 379 by a college of three plebeians out of six (or possibly five of eight)—the last plebeians we see in the office. On our evidence, it is impossible to deduce what principle—if any—was in force regarding allocation of the tribunate by orders. The sudden quasi-plebeian years (400, 399, 396, and then 379) are impossible to explain. Since they do not come at the beginning, it is unlikely that a “political” pretext was actually used to introduce the institution. In fact, by any reckoning, a total of less than twenty individual plebeians are found holding this office in the Fasti for the period 444–367.124 In this same seventy-sevenyear period, approximately eighty patricians held the office twice or more. All this will have done little to placate those of the plebeian elite who sought to gain office in the patrician state. In a twist on the “political” explanation, T. J. Cornell argues that the non-patrician consular tribunes were in fact “conscripti,” not plebeians. What prompts Cornell toward this hypothesis is the “very curious fact . . . that none of the ‘plebeian’ consular tribunes is known to have held any plebeian magistracy.”125 But, as Cornell himself admits, ninety percent of the men who held the plebeian tribunate—and virtually all of the aediles—in the period 450–376 are unknown to us. And is it any wonder that the attested leaders of the plebeian movement of these years (i.e., tribunes of the Plebs) were not admitted to share in what was essentially a patrician chief magistracy? One brief passage mentions a military motive for the creation of this office. Livy126 states that some believe (“sunt qui . . . dicant”) that the first three consular tribunes were created to meet the threat posed by the Aequi and Volsci. The need for more magistrates must be the proper explanation, and a “military” or “administrative” motive is the one accepted by most modern authorities.127 R. M. Ogilvie128 explains the background to the decision: “By the mid-fifth century Rome was threatened on several fronts, from Etruria, from the Aequi and the Volsci, from the Sabines, and at the same time was trying to secure her position by extending her control over the strategic keys to Latium—the Tiber, Algidus, and the coast. Such a policy meant simultaneous operations on several fronts.”
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A few scholars who postulate a military motivation for the invention of the consular tribunate have dissented from the explanation cited by Livy, holding instead that the number of consular tribunes was tied to the size of the annual levy, not the need to fight on multiple fronts.129 Though such a hypothesis might just possibly account for the oscillation in the size of the individual colleges, it hardly is sufficient to explain why the Romans would introduce the consular tribunate in the first place, with different powers from the consuls (see below). And so in a variant of this argument, J.-C. Richard130 suggests that the initial introduction of consular tribunes was a symbolic gesture. The very novelty of these magistrates (a significant break from the status quo) was designed to defuse an atmosphere of severe social tension in 445/444 which might have interfered with the levy (but his principal evidence for this is a passage in John Lydus De Magistratibus which is quite confused, as Richard himself admits).131 Richard believes that the Romans, in the course of the latter half of the fifth century, gradually resorted more and more to consular tribunes to respond to an increase in the size and change in the composition of the army. But this model does not adequately explain the occasional decreases in the size of the colleges of consular tribunes: for example, four in 426, 425, and 424 but three in 422; four in 420 and 419 but three in 418; four in 417, 415, and 414 but three in 416 and 408. The military explanation reported by Livy is the one I accept here. 2.4.2 The Powers of the Consular Tribunes The titulature “tribuni militum consulari potestate” is striking. One thinks of the Xviri consulari imperio legibus scribundis of 451–450.132 J.-C. Richard has tried to emphasize the links between the two institutions in his argument that the consular tribunes held imperium minus.133 However, unlike the Xviri, consular tribunes must not have held imperium, but only consularis potestas—as their title indicates. Other than a variant view that Livy reports (see 2.4.3), only two sources speak of the “consulare imperium” of the tribunes. The first is Claudius on the Lyons tablet:134 “Why should I recount the consular imperium shared among several men and the so-called tribuni militum consulari imperio, who were elected six and often eight in number?” Leaving aside the question of consulare imperium, we may note that Claudius is probably exaggerating when he speaks of colleges of eight consular tribunes “often” being created (Livy knows of one, in 403). Gellius also refers to “tribuni militares consulari imperio” as the chief magistrates in the state.135 E. Badian rightly discounts these notices: “[W]hat they lacked was, precisely, imperium; the avoidance of that term must have been deliberate.”136 However, like the consuls, the tribuni militum consulari potestate were elected auspicato in the Centuriate Assembly.137 They presided over elections of other consular tribunes, consuls and censors in that same assembly. They acted as the chief magistrate in Rome: often one of the consular tribunes remained in the city when his colleagues set off for the field.138 Consular tribunes appear to have been elected even in a few of the years when no major military campaigns were under way.139 Of course, as “tribuni militum” their most important function was to command in war. These wide powers have led some to suspect that within each college of con-
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sular tribunes were two groups of (unequal) officials, one of which were patrician “praetores.” For this there is obviously no basis in the sources.140 The consular tribunes must have held public auspices. The consular tribunes’ presidency of the Centuriate Assembly for the election of consuls and censors in fact demonstrates that they had auspicia maxima,141 at least domi. We can assume that if the consular tribunes held only auspicia minora, they could not create magistrates with auspicia maxima. In this connection, it is significant that no all-plebeian college is on record. As J. Linderski observes, this must be due to an augural regulation: “[O]nly the patrician members of the college were able to transmit the auspices to their successors in their pure and pristine state.”142 Eventually, the consular tribunes even named dictators. Originally, this magistrate was not entitled to do so. This emerges from Livy’s narrative of 426. We are told that in a military emergency of that year the augurs were prevailed upon to pass a decree removing that impediment. This peculiar story, if true, might confirm that by this point in the fifth century it was already the grade of auspicia which mattered most of all—if one can conceive of the two concepts of auspicia and potestas being separated (notionally) at this early date.143 It does seem however that their auspicia “militiae” were incomplete. Though they obviously were fighting suis auspiciis, consular tribunes did not—and thus surely could not—triumph.144 Mommsen thought that it was because they were extraordinary magistrates.145 R. T. Ridley has argued that there was never a constitutional impediment: “[A]s elected magistrates with consular power, able to name a dictator who could triumph, there is no reason why the tribunes could not also . . . [I]t seems, however, that they did not, and the reason is made all too clear by Livy. No tribune won a victory worthy of a triumph.”146 But it is suspicious, to say the least, that when the Romans reverted to consular pairs in the period 444–367, those magistrates were able to secure triumphs and ovationes.147 H. Versnel has suggested that, though the consular tribunes had imperium, they lacked the lex curiata, which he terms “the conditio sine qua non for the triumph.”148 Versnel is unlikely to be right about this magistrate having imperium, but his hypothesis about the lex curiata is compelling. There is in fact nothing in our record which implies that the tribunes received a curiate law after their election.149 It may be that the consular tribunes by virtue of their election in the Centuriate Assembly received auspicia maxima domi but, militiae, auspices which were less than the regal complement. Their defective military auspices may be precisely why they are called tribuni militum “consulari potestate.” Were they entitled to a lex curiata, they might be considered to have imperium. From their election of consuls in the comitia centuriata, we can conclude that the consular tribunes must have held the regal civil auspicia. (The fact that in time they went on to name dictators demonstrates that the auspices needed for naming a dictator were of the civil kind.)150 But we must ask why the Romans stopped short of giving the consular tribunes imperium and full auspicia. It probably was not thought, even at this time, that the regal power would be somehow diminished if distributed in full measure to more than two magistrates. A quantitative increase in the sharers of power of the kings of Rome does not seem to have been considered to have decreased the quality of imperium itself.151 The emperor Claudius, who
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thought that the consular tribunes had imperium, adduced the example of this office in his eagerness to demonstrate that shared honors are not necessarily diminished in quality. Claudius and most of his audience (the Senate of the mid-first century a.d.) may not have known the peculiar fact that the consular tribunes had only consular potestas, and not imperium. Yet Claudius, who knew something of augural law, will not have claimed that imperium retained its full value even when split eight ways if this statement had not had a basis in fact. The main reason must have been that the patrician Senate wished plebeians (who were eligible for the office) to be kept away from the regal auspicia—valid both domi and militiae—which went with imperium. But there still is an important element of compromise in the institution of the consular tribunate. The diminished auspicia of the consular tribunes was an experiment to let plebeians handle the public auspices. Now, for the first time, plebeians were allowed to touch patriciorum auspicia, though they could administer regal auspicia only within Rome. 2.4.3 The Fasces of the Consular Tribunes Livy considered the consular tribunes to have had lictors.152 Did they parade with the full complement of twelve fasces? There is no evidence that the consular tribunes did except the variant view reported by Livy, that “some” authorities report these men “enjoyed both the consuls’ imperium and insignia.”153 Although the proponents of this view chanced upon the correct, “administrative” reason for the creation of this magistracy, they are wrong about the imperium and probably wrong about the insignia as well. Some antiquarians simply may have refused to believe that the military tribunes were not granted consular imperium. A clue to the insignia of the consular tribunes may lie in the reported size of their colleges. Mommsen sought to explain why three, four, and six consular tribunes are attested for a given year, but never colleges of five. He noticed that these numbers were always a factor of twelve, and conjectured from this that the rotation must have applied to the consular tribunes, and their number was dictated by the months of the year.154 Mommsen’s hypothesis is attractive, assuming of course that no more than six consular tribunes ever formed a college. Nevertheless, the rotation may have been useful in the case of the consuls, but it would have presented a positive disadvantage if imposed on a larger college. In the years 451–450, shortly before the introduction of the first consular tribunes, the Romans are said to have faced exactly this problem in the institution of the Xviri consulari imperio legibus scribundis. According to Livy, it could not be decided whether the consular number of twelve fasces should rotate among each of the decemviri, or whether each of these men should be preceded by the full complement of fasces. At first (in 451), “sitting each one day in ten they administered justice to the people. On that day he who presided in court had twelve fasces; his nine colleagues were each attended by a single accensus.”155 But this arrangement was evidently not viewed as satisfactory by the holders of the magistracy themselves, since in the next year, “they suddenly appeared in public, every man with his twelve fasces. One hundred and twenty lictors crowded the forum . . . they seemed like ten kings.”156 This incident is surely not “historical,” but the constitutional
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problem was real. Antiquarians of the later Republic must have wondered how the Xviri consulari imperio displayed their insignia of office, since no more than twelve fasces could be presented in Rome. The rotation of the twelve regal fasces was not wanted for the consular tribunes. Though these magistrates held auspicia maxima in the city, they did not have imperium, either domi or militiae. A grant of twelve lictors to any of their number at any time would imply that they did. It seems likely that the number of fasces a given consular tribune received may have been less than the full consular complement of twelve. In fact, the number of each individual college of consular tribunes may be linked to the regal number of fasces. Assuming twelve fasces, I would suggest that each of the consular tribunes was preceded by either four, three, or two lictors, depending on whether there were three, four, or six members of the college in a particular year. If the Romans worked from a total of twenty-four fasces (the sum of consular fasces outside the city), the consular tribunes will have received eight, six, or four lictors. A college of eight consular tribunes was possible only if twenty-four was indeed the number of fasces to be distributed. To judge from later practice, this peculiar division of the regal insignia was entirely appropriate for a magistrate with defective auspicia.157 On the occasions when more than one consular tribune was in the city or in the same military theater of operations,158 they must have had some system to determine precedence of action among themselves. We can only guess what that was, and whether the plebeian members of the college were included in it. Having so many senior magistrates must have raised all sorts of problems. It is not difficult to see the shortcomings of a college of up to six magistrates (whose very existence depended on an ad hoc decision made each year), all possessing the highest level of potestas and all able to veto any colleague’s actions. Although the institution of the consular tribunate ultimately proved an unsuccessful experiment, it did help the Romans move toward the concept of the praetorship. It was not that enormous a leap from the consular tribune with two, three, or four lictors to the strathgo;~ eJxapevleku~, the “six-axed” praetor of the classical Republic.
2.5 The Censorship Antiquarian tradition held that the king, and then, in the early Republic, the consuls or dictator, performed a census of the People, marking its completion by preparing a ritual purifying fire (“lustrum condere”).159 In 443, the Romans created a new patrician magistrate specifically to look after these important tasks, the censor, apparently from *cendere (“to kindle”). The People elected the censors in the Centuriate Assembly, under the presidency of a consul or consular tribune who had taken the auspices; an eighteen-month term limit was imposed soon after the introduction of the office.160 2.5.1 The Introduction of the Censorship Livy offers a particularly tendentious tale on the origin of the censorship, stressing its humble beginnings:161 the consuls had been too busy (since 459) to see to the
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mundane task of the census, which required hard work but conferred little prestige;162 the consular tribunes did not object to the creation of a special magistrate to discharge this function; the first men in the state did not seek out the new office in the first election. This account shows only that Livy had no reliable information why the Romans established this new office. However, J. Suolahti163 accepts the main point of these accounts at face value: “[T]he origin of the censorship is fully explained by Livy’s statement that owing to military operations the consuls no longer had time to perform the census. When several consular tribunes began to be elected heads of the state, it was natural enough to trust some of them with the census.” Scholars have remarked on the close temporal connection between the establishment of consular tribunes in 444 and, in the very next year, the introduction of the censorship. The patricians presumably wanted to keep the consular tribunes, some of whom might be plebeians, away from the sacred rite of the census.164 Even after the Licinian-Sextian compromise of 367 abolished the consular tribunate, the consuls—one of whom now could be a plebeian—never got the census back. But the patrician monopoly of the census lasted only a few more years. In 351, C. Marcius Rutilus became the first plebeian censor, albeit over the strong opposition of the two patrician consuls of the year, who initially refused to accept his candidacy.165 After 339, a law stipulated that one of the censors had to be a plebeian, though another half-century passed before a plebeian censor actually performed the lustrum.166 It is only in 131 that we find the first censorial college in which both members were plebeian.167 2.5.2 The Importance of the Censorship The censorship is yet another example of a clever Roman “dodge.” The patricians wanted to keep an old regal and consular task, the census and lustrum, out of the hands of the mixed colleges of consular tribunes. To this end they invented a specialized patrician collegiate magistracy resembling the consulship in some respects (e.g., election auspicato in the Centuriate Assembly), but with several important differences. The patricians designed the new office of the censorship to have enough power to discharge its intended functions, but no more. We have two authoritative passages on the election of censors, written by the augurs M. Valerius Messalla and M. Tullius Cicero. Though composed in the midfirst century, they should allow us to reconstruct the fundamental powers of that magistracy.168 The censors were to hold auspicia maxima. This presumably came with their election in the Centuriate Assembly. But the People chose the censors on a different occasion, and thus under different auspices, than the senior magistrates of the state. The People also followed the election of censors with the passage of a lex centuriata, not a lex curiata—a practice found for no other patrician magistrate. Cicero is probably only flattering his audience (a contio) when he states the double vote was taken “so that the People might have the power of rescinding its distinction, should it have second thoughts.”169 The procedure of a lex centuriata presumably was meant to ensure that the censors did not consider themselves colleagues of the consuls, nor think they had auspicia “militiae.” The augurs in fact
56 The Praetorship in the Roman Republic
deemed the censors’ maxima auspicia to be of a different grade (potestas) than that of the consuls. The consuls could not vitiate the auspices of censors, nor censors those of consuls; these magistrates could interfere only with the auspicia of their proper colleagues.170 We have already seen in the dictator the concept of a magistrate whose powers are the same as the consuls’, but different (in his case, effectively superior). The relationship in augural law between the consul and censor is yet more abstruse. The auspices of both are of the highest grade (maxima), but different (“neque . . . inter se eadem aut eiusdem potestatis”)—though with no implication of “greater” or “lesser” when one is compared to the other in the important matter of intercession. In actual practice a censor’s powers were far more limited than those of the consuls, notwithstanding his auspicia maxima. A censor could not summon a popular assembly except for a contio of the census.171 He could not preside over censorial (or any other) elections, or choose a new colleague to replace one who had died or abdicated from office: a censor who found himself without a colleague had to resign. Censors could not even summon the Senate.172 Since censors did not have imperium, they received no lictors.173 Nonetheless, they enjoyed the use of a curule chair, the same apparitores as the higher magistrates, and (significantly) the purple toga of the kings.174 This last emblem of power must be connected with the lustrum (which evidently required regal status to make it acceptable to the gods), and perhaps was worn only on that occasion. But that is how censors (eventually) were represented in funeral processions. It may be that the lex centuriata passed for the censors was meant to determine (in fact, limit) their potestas. Indeed, the Centuriate Assembly might even have been able to define the censors’ auspices; all we know for sure is that it did not give the consuls and praetors their auspicia militiae.175 In any case, the purpose of the censorial lex centuriata would be roughly the opposite of the lex curiata, which enhanced the auspicia of the top patrician magistrates. It seems that the censorship only gradually rose to the status attested for it in the late Republic. As far back as we can see (i.e., the Scipionic elogia), the censorship ranked between the consulship and aedileship.176 The official lists of magistrates in the laws of the developed Republic (unfortunately, none extant before ca. 122)177 fill in the gaps in the third-century order, supplying offices which were not held by the men celebrated in these elogia—or, at least, were not thought worth recording. Here the censor—though a holder of auspicia maxima—is ranked after the dictator, consul, the later office of the praetor, and even the magister equitum.178 Now, the elogium inscription of Ap. Claudius Caecus (ces. 312) lists his offices in the following order: censor, co(n)s(ul) bis, dict(ator), interrex III, pr(aetor) II, aed(ilis) cur(ulis) II, q(uaestor), tr(ibunus) mil(itum) III.179 The author of this cursus inscription—which ought to be based on an Augustan text—obviously was aiming to give Ap. Claudius’ offices in descending order of importance. But the order is technically indefensible: it can only reflect the de facto situation of the early Empire. The censorship at the time of Ap. Claudius Caecus was somewhat less important than in the later period. For instance, it may be that the censors did not choose senators until the lex Ovinia, passed probably soon before 312.180 The pres-
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tige of the office will have been assured only ca. 200, when the consulate became a prerequisite for the censorship,181 which meant only one in five ex-consuls had a chance of obtaining it. It should be evident by now that the censorship was quite a clever invention. It was not simply a question of forestalling the possibility of a plebeian celebrating the lustrum. The patricians needed a sophisticated solution to an even more difficult problem: how to give a magistrate a degree of consular potestas to carry out a crucial ritual task, without running the risk of his interfering with the consuls’ (or consular tribunes’) remaining activities. Their answer was to follow the election auspicato of the censors in the Centuriate Assembly (which presumably gave them civil auspicia maxima) with the passage of a special law in that same assembly circumscribing their potestas (perhaps also defining their auspicia as limited.) There was no lex curiata. What emerged from all this was the creation of a magistrate who was in some ways similar to the consul, but essentially different. We should not underestimate the importance of the conceptual breakthroughs which came with these “dodges” for the subject of our next chapter, the development of imperium maius and minus in the mid-fourth century.
3
The Creation and Early Development of the Praetorship down to 264 In 367, the Romans, as part of a compromise between patricians and plebeians known as the Licinian-Sextian legislation,1 decided to abandon the experiment of military tribunes with consular power and instead add a “praetor” as third colleague to the two traditional chief magistrates, who were now (or were soon to be) called “consules.” It was stipulated that one consulship be open to plebeians and that the praetor be a patrician. The new praetor was the “lesser colleague of the consul” (“collega minor consulis”). The People elected him in the Centuriate Assembly, originally on the same day (and thus under the same auspices) as the consuls; he also received a lex curiata. As a consequence of this procedure, the praetor was to have not only auspices at the highest level (“maxima auspicia”) but also imperium of a new and special kind. His imperium was defined as of the same nature as the consuls’, but minus in relation to theirs.2 As a magistrate with this type of imperium, the praetor could do all that the consuls could do, save the holding of elections of major magistrates in the Centuriate Assembly and the fulfillment of certain religious obligations. All other activities of the consul were open to the praetor, unless a consul stopped him. But a praetor could not interfere with the consuls. In the absence of the consuls, the praetor will have looked after the defence of the city, regulated the Roman civil and criminal process, presided over the Senate, and, when necessary, held assemblies of the People.3 And as a holder of imperium, the praetor could exercise a military command when required. The introduction of the concept of a magistrate holding imperium that was “minus” in relation to that of the consuls was of course a “dodge,” of a type now familiar to us. The Romans were grappling with the same sort of problems they had tried to address when they instituted the dictatorship and praefectus urbi in the early days of the Republic, and the consular tribunes and censors in the mid-fifth century. The Romans needed more than two regular magistrates who could command an army. But even without imperium, three (or more) chief magistrates of 58
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equal power did not prove to be a good idea: in particular, the military record of the twenty-odd years following the Gallic invasion of 3904 had not been particularly glorious. The invention of two grades of imperium—one minus in relation to that of the two chief regular magistrates—permanently solved the problem of excessive conflict in the supreme command. It was obviously a revolutionary idea. The new arrangement of two consuls (before long, one patrician and one plebeian) and a patrician praetor—with the possibility of a dictator in the time of a crisis—can be viewed as a more complex modification of the old system, the (theoretically) mixed college of consular tribunes alternating irregularly with patrician consular pairs. The reforms of 367 were not a clean break with the past, as is suggested by Livy’s account in Book 6, but rather show continuity of development. The system of two consuls and a praetor was actually a rationalized consular tribunate of three members.5 Let us now turn to an examination of our three sources for the creation of the praetorship: Livy, Pomponius’ epitomator, and Iohannes Lydus.
3.1 Sources on the Introduction of the Praetorship 3.1.1 Livy’s Story of the Licinian-Sextian Reforms Livy’s description of the introduction of this new magistracy is little better than his account of the creation of the censorship. The reform that ultimately gave birth to the praetorship, the Licinian-Sextian legislation of 367, had a personal and petty origin: a decade earlier, the wife of the plebeian C. Licinius Stolo had become jealous of her sister, who was married to a patrician Sulpicius, then serving as consular tribune.6 This private affair had far-reaching repercussions. According to Livy, C. Licinius Stolo and a L. Sextius Lateranus entered the tribunate first in 376, and then—being reelected year after year—dragged out the struggle for plebeian participation in the top magistracy for ten years, including five in which they annually vetoed the comitia for curule offices, resulting in quasi-anarchy (“magistratuum solitudo”).7 In the year 368, M. Furius Camillus—already tribunus militum consulari potestate six times, and now dictator IV—entered the civil conflict as a staunch opponent of the plebeian demands.8 In the next year, a sudden Gallic invasion led to the appointment of Camillus to a fifth dictatorship; he rose to the occasion by displaying his old prowess as a military man, for which he received a triumph.9 Camillus returned from the field to a city full of dissension: the plebeians, after the Senate had refused to ratify their election of the tribune L. Sextius as consul, are said to have been at the point of secession.10 Camillus, however, suddenly hammered out a satisfactory compromise: “The nobility yielded to the Plebs in the matter of the plebeian consul, the Plebs conceded to the nobility a single praetor, elected from the patricians, to administer law in the city.” The Romans also created at this time the office of the curule aedileship, soon to be held in alternate years by patricians and plebeians.11 The first man to be elected praetor was Sp. Furius M.f. Camillus, the son of the dictator of 367 who pushed through the great compromise that created the office.12
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3.1.2 The Epitomator of Pomponius on the First Praetor Livy’s statement that the Plebs made a concession concerning a patrician praetor to administer law in the city (“qui ius in urbe diceret”) finds an echo in a later source. The epitomator of Pomponius’ Encheiridion offers a variation of the same statement, but leaves out the notion of compromise: there is no hint that the praetor had to be patrician. In his quick sketch of the Roman magistracies, the creation of the office is a response to administrative pressures: “When the consuls were being called away to the wars with neighboring peoples, and there was no one in the civitas empowered to attend to legal business in the city, what was done was that a praetor also was created, called the ‘praetor urbanus’ because he exercised jurisdiction within the city.”13 Pomponius’ epitomator has forgotten about the consular tribunes (an office he had just discussed),14 who were introduced to fill a similar need. In addition, his statement that the praetor (already called urbanus) was created expressly to hear cases of law may only be a guess, based on later practice; alternately, he may be using Livy, likely through an epitome. There is no telling what the original full text of Pomponius looked like. His survey (the Encheiridion) filled two books, and was doubtless filled with whatever variants he could collect on the development of the Roman political system. D. Nörr,15 in a careful study of the relevant section of the Encheiridion summary (“magistratuum nomina et origo,” from which this statement on the praetorship comes), could claim only negative results in his search for a source or sources. Nörr suggests the tradition of legal writers represented by, for example, Sex. Aelius Paetus Catus, Ser. Sulpicius, Alfenus Varus, and A. Ofilius as the source for Pomponius’ historical information. This cannot be proven, since we have no work extant written by any of these famous authorities. I find it impossible to believe that any of these jurists, who were well regarded in antiquity, could have written the historical sketch as we now have it in this epitome. In sum, this passage in the Digest is probably several removes from a good source, and it has no real value as an independent account on the creation of the praetorship. 3.1.3 John Lydus on the Early Praetorship We also possess a confused and confusing treatment on the development of the early praetorship by the Byzantine administrator Ioannes Lydus, who has the singular distinction of having bequeathed to us the only extant treatise on the development of Roman magistracies, his De Magistratibus Populi Romani. In particular, Lydus’ attempts at chronological precision can be a disaster. He employs three different chronological systems in the De Magistratibus, dating by consular, Varronian, and even Olympic years, not to mention a system of “intervals”, which leads him to miscalculate, for example, the death of his own contemporary Anastasius I (d. 518) by thirty-six years (i.e., 554).16 According to Lydus,17 the compromise of 367 in which the office of the praetorship was created came about for military reasons. After a five-year period of anarchy, “when consuls were elected once again, there were chosen from the patricians four aediles, two quaestors, a praetor (known as a strathgov~), legates (known as
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uJpostravthgoi), and twelve military tribunes, on account of the fact that Alexander the Macedonian was expected to wage war against the Romans.” Lydus is grouping together a number of administrative innovations which cannot have been contemporaneous. There is no good evidence that legati were instituted until the latter part of the third century.18 He also is wrong about quaestors: there were four by 367, elected from both the patricians and Plebs.19 The number of aediles—plebeian and curule—indeed totaled four after 367, but of course not all were patrician. And the last statement, that the Romans were expecting to fight Alexander the Great (in 367!), is a wild conjecture, perhaps Lydus’ own. Lydus, however, is correct that the praetor originally was a patrician. He has also chanced on an important feature of the praetorship ignored by Livy and the epitomator of Pomponius in their accounts of the creation of this magistracy: as a holder of imperium, the praetor was a potential military commander.
3.2 The “Legal” Motive for the Introduction of the Praetorship Livy’s statement that the praetor was created “qui ius in urbe diceret” must be in a sense anachronistic. The administration of law was just one of the praetor’s areas of competence, which came with the grant of imperium. Livy in a sense contradicts his statement on the motivation for the creation of the praetorship in his own account. It will be noted that the title praetor urbanus never appears in his second pentad: this particular designation may not yet have existed. 3.2.1 Activities of the Earliest Praetors The early appearances of the praetor in Livy are outside of Rome, in a military capacity. This is unexplained, and (strictly speaking) unexpected, to judge from Livy’s initial statement on the reason why this magistracy was instituted. When we do see the praetor acting in the city in Livy Books 7–10, he is doing practically everything accorded him by virtue of his imperium except hearing cases at law. The praetor assists a consul in detaining some treasonous soldiers.20 When the consuls are absent, the praetor acts in their place by presiding over the Senate.21 The praetor also exercises his right to treat with the People to pass bills.22 In one instance we do see him in a lawmaking context—but concerning Capua. In 318, Livy reports, “Prefects began to be elected and sent out to Capua, after the praetor L. Furius had given laws [i.e., to the Capuans]—both steps being taken at the instance of the Capuans themselves, as a remedy for the distress occasioned by internal discord.”23 It seems that two separate measures are noted here (“utrumque”). The first is the election of prefects; there is no reason to say who presided over that event. The second is the giving of laws to Capua by the prateor L. Furius. This sort of lawgiving for other communities is not a “legal” activity in the strict sense: the two categories should not be confused. Note that in the next year (317), it is not the praetor, but patroni offered by the Senate who act as lawmakers for Antium.24 The task may have proved too time-consuming for the praetor of that year, or a different procedure was followed since Antium was a colony.
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But there is no reason to suppose a magistrate with imperium was needed for such lawgiving in general. These passages do not exclude the (indisputable) fact that in the fourth century the praetor was also involved in the administration of law. But it is strange that Livy should choose to emphasize the legal aspect of the praetorship—to the exclusion of all other functions of the office—in presenting the motivation for its creation in 367, and then virtually ignore this very aspect in the extant portions of his own narrative. There is nothing on the legal functions of the praetor in Books 7–10, and very little in Books 21–45.25 The truth must be that no accurate record survived of the praetor’s legal activities, at least in the early period: there was no reliable way to ascertain whether this was indeed the motivation for the introduction of the office. It seems that neither Livy nor his late annalistic sources actually understood why the praetorship was created in the mid-fourth century.26 They did, however, offer a guess based on their own experience. The supervision of the law in the city by the praetor urbanus was of course the most familiar aspect of the praetorship by Livy’s own day. We shall see in 5.2.5 that Livy, despite his own detailed year-by-year narrative of the varied activities in the Hannibalic War of the two city praetors, the praetor urbanus and the praetor inter peregrinos, manifestly shows a basic misunderstanding of the early nature of their jurisdictions. For example, in his account of the year 216, Livy details a series of complex movements on the part of these two praetors. This includes the dispatch of the urban praetor to raid the coast of Africa (which would mean his absence from Rome for the greater part of his magistracy) and the departure of the peregrine praetor for a territorial provincia before the end of the year. But then Livy in his report of the next year, 215, expresses surprise that the city praetors were called upon to serve in a military capacity: “Exemption from the conduct of war was given not even to the praetors, who had been created to administer justice.”27 3.2.2 The Praetor, Consuls, and Early Civil Jurisdiction Some scholars, most notably F. De Martino,28 have connected the creation of the praetorship with a deliberate attempt on the part of the patricians to keep the law to themselves. To be sure, in the mid-fourth century, control of the administration of civil justice was of great importance. Issues such as debt suits and disputes concerning freedom were major points of contention between patricians and plebeians. Livy presents a coherent picture of the struggle concerning debt: note the lex Duillia of 357, which halved interest rates; a lex Genucia of 342, abolishing interest on loans; and the lex Poetilia of 326 (or 313), abolishing nexum for debt.29 Nevertheless, it is doubtful whether the patrician insistence on exclusive access to the praetorship is directly connected with the continuing disputes regarding private law. The law had ceased to be the “possession” of patrician magistrates with the publication of some rules of procedure in the XII Tables in 451–450, almost a century previous to the establishment of the praetorship. We may note that Livy in his narrative of the year 449 refers to plebeian “iudices decemviri.”30 It is also just possible that a few plebeians had already exercised the supreme jurisdic-
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tion of law in the city. One of the members of the substantially plebeian colleges of consular tribunes in 400 (four plebeians of the six), 399 (five of six), 396 (five of six), or 379 (three of six) may have been left behind (as was customary) to supervise civil matters. The hypothesis of a patrician attempt to retain the law makes sense only if the consuls (one of whom could now be plebeian) were positively debarred from the civil jurisdiction. This indeed was Mommsen’s view (1.5.1). He held that at the time of the creation of the praetorship in 367 the consuls were legally prohibited from the civil law. De Martino took this argument one step further: the consuls, who he believes were first introduced only in 367, never had the power of jurisdiction in the city.31 Mommsen’s view was refuted at length at the beginning of this century by F. Leifer.32 Leifer, in his (necessarily) theoretical study of the “unity” of imperium, conceded that there is no ancient evidence on the consul exercising jurisdiction between private citizens in the Republic. Instances when a consul did involve himself in the civil process in Rome must have been rare. But this was due to accepted custom, not a legal restriction. Since the consuls had to spend much of their time in the field, the responsibility of supervising the legal process at Rome must have quite soon devolved upon the praetor. We have no way of knowing whether the consuls participated in civil jurisdiction when not in the field. But a positive restriction on the consuls from exercising a power which had quite properly belonged to their imperium domi seems most unlikely. Leifer argued that it would have been strange for the Romans to devise the concept of the praetor as the minor collega of the consul and at the same time, to upset the collegiality by denying the consuls a power they originally had, and which their lesser colleague would retain. Leifer underscored his point by stressing that, in Livy’s account of the creation of the praetorship, the phrase “qui ius in urbe diceret” could be taken to imply that the praetor was debarred from exercising imperium militiae. This was obviously not the case. We cannot read too much into Livy’s unsatisfactory narrative. Even if we suppose for a moment that a law of 367 excluded consuls from civil jurisdiction, a plebeian consul could control the law indirectly by taking disciplinary action against a patrician praetor by virtue of his maius imperium in relation to that of the praetor. A consul potentially could strip a praetor of his jurisdiction if he indulged in personal favoritism or was arbitrary in the application of the law. In the later Republic we occasionally hear of a consul’s edict requiring the praetor to stop hearing cases (see 12.1.2, 12.2.2). This the consul issued simply by virtue of his greater imperium. He need not have invoked any constitutional right of a consul to intervene in civil jurisdiction.
3.3 The Political Aspects of the Creation of the Praetorship There is surely some truth in Livy’s view that the patrician praetorship “compensated” in part for the consular place reserved for plebeians. This we could guess even if Livy had not placed the reforms of 367 firmly in the context of the “strug-
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gle of the orders.” Patricians had grown accustomed to having two of their order returned as consuls in each of the years the magistracy was offered. In the years in which the consular tribunate was the chief magistracy, we have seen that patricians regularly filled all the available places. The patricians would have been quite unwilling suddenly to restrict themselves to simply one office involving imperium. Our record perhaps implies that the praetorship served its purpose as a compromise institution. We know of two early patrician praetors who never reached the consulship, either before or after the office, which prompts K.-J. Hölkeskamp to remark that this new magistracy may have been enough to satisfy their ambitions.33 The very establishment at this same time of the curule aedileship, with its alternating patrician and plebeian colleges, further substantiates the notion of social compromise which must have formed part of the background to the creation of the praetorship. The new office of curule aedile, with its wideranging responsibilities and consequent high public profile, offered patricians, as an ordo, a means of building the kind of popular support which would be useful in a bid for the consulship (patricians of course were excluded from the plebeian aedileship). 3.3.1 The Patrician Monopoly of the Praetorship The first plebeian to reach the praetorship was Q. Publilius Philo (cos. and dict. 339) in 336, as Livy explicitly tells us.34 Mommsen accepted Livy’s report that it took thirty years for a plebeian to attain the office.35 But he questioned Livy’s statement36 that, according to the compromise of 367, the praetor was to be created “from the patricians” (“ex patribus”). In Mommsen’s view, plebeians were admissible to the office from the very beginning: the Licinian-Sextian legislation opened all the higher magistracies, including the dictatorship, to plebeians. But the fact that the praetorship was the last of the major magistracies to fall to a plebeian— twenty years after the dictatorship—may confirm Livy’s statement that the praetorship was originally (and legally) the preserve of the patricians. It is worth examining briefly the background to the creation of the first plebeian praetor. The Licinian-Sextian legislation seems to have simply admitted plebeians to the consulship, limiting them to one of the two annual places. It is unlikely that there was at this time any legal safeguard to secure the distribution of the office between the two orders. In seven of the thirteen years 355 through 343 all-patrician consular colleagues appear.37 This in itself does not suggest that the patricians simply threw open all the higher magistracies in 367. The first plebeian to reach the dictatorship was C. Marcius Rutilus (cos. 357, IV 342), in 356. Nothing apparently was done—or could be done—at the time of his actual naming (dictio),38 but Livy reports patrician opposition to Rutilus once he was in office. According to Livy, the mostly patrician Senate impeded his war preparations, and he obtained a triumph for his successes over Etruscan and Faliscan forces by a vote only of the People.39 C. Rutilus was also the first plebeian censor, elected in 351. Livy describes how the two patrician consuls of that year, C. Sulpicius Peticus and T.(?) Quinctius Capitolinus, “refused to consider his candidacy; but [Rutilus] by his perseverance gained his object, and the tribunes aided him with all their power, so that they might regain a right which had been lost at
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40
the consular elections.” This must have been quite a row, with both consuls united against Marcius’ bid for the censorship. The notice of the consul C. Sulpicius Peticus’ opposition to the possibility of a plebeian censor is interesting: we shall meet the name again, in connection with the election of the first plebeian praetor. C. Sulpicius was evidently an older man, having served as tribunus militum consulari potestate in 380. He had been censor in 366, the first year of the new system of government,41 and perhaps even played a part in the actual compromise: in one of his first two consulships (364, 361) he had the ex-tribune and reformer C. Licinius Stolo as a colleague. (Patricians were likely to have viewed the Licinii as socially acceptable, since they had placed a member of their family in a mixed college of consular tribunes, that of 400.)42 Sulpicius was consul also in three of the seven post-367 colleges in which both members were patricians (355, 353, 351). This, however, might not in itself indicate strong sympathies for his ordo, since he of course was not the presiding officer at any of these elections.43 Despite the opposition of the consuls, the People elected C. Marcius Rutilus to the censorship. We can venture a reconstruction of how this happened. The presiding officer must have asked for the Senate’s support; the tribunes at the same time used what influence and powers of persuasion (not formal power) they had to press the claims of the plebeians.44 The consuls, or the presiding consul at the elections, dropped formal opposition when it was realized that the (expected) support of the Senate was not forthcoming. The fact that C. Marcius Rutilus had already gained the dictatorship will have helped in all this, as Livy himself notes.45 The dictatorship and censorship had fallen to the same plebeian in the space of five years. Nevertheless, despite C. Marcius Rutilus’ illustrious career—a dictatorship, a censorship, and four consulships in the period 357–342 (the difficult years of the “patrician reaction”)—he did not capture a praetorship. One would think that this man, if anyone, could have reached the office if it were “open.” One also would think that Marcius, if anyone, would have had the motivation and ability to win the praetorship, having broken new ground for plebeians in the dictatorship and censorship. But it was not until fourteen years after Marcius’ censorship that a plebeian gained the praetorship (discussed in 3.3.3). 3.3.2 The Genucian Plebiscites of 342 The 340s and early 330s saw a fresh outbreak of plebeian dissatisfaction, with open agitation (in fact, a mutiny) reported for 342.46 As far as the plebeian elite were concerned, despite the new system forged by the Licinian-Sextian legislation, all but a few plebeian families continued to be shut out of the nobilitas. It is remarkable to observe in the consular Fasti of the years 366–341 (and especially 355–341) the very limited number of plebeian families and plebeian individuals involved.47 Plebeians legitimately could complain that a few members of their ordo were monopolizing the top office. The opening of the dictatorship and the censorship by C. Marcius Rutilus will have brought little cheer to plebeian families which could not make it to the consulship: a plebeian who was “new” (novus) was hardly going to be appointed dictator or elected censor at this (or any) time.
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What was needed was another high-ranking magistracy to which plebeians could aspire. In 342, the tribune L. Genucius was said by some of Livy’s sources to have passed (in addition to a financial measure) a series of plebiscites stipulating that “no one should hold the same magistracy within ten years (intra decem annos), nor two magistracies in the same year, and that it be permitted for both the consuls elected to be plebeian.”48 In the very year of the alleged enactment of this first provision, C. Plautius Venox was elected cos. II for 341; Plautius was followed by the patrician T. Manlius Torquatus, cos. III in 340.49 This led Mommsen50 to suggest that the measure on iteration might just possibly belong to 330. But the difficulty here is only apparent. Regarding Plautius, the law probably could not apply until the next year, and for all we know may not yet have been passed. On Manlius, this may be good evidence that patricians did not recognize plebiscites in strict law as binding them—a matter which legislation of the very next year (339) tried to remedy (3.3.3), but which was resolved definitively only by the lex Hortensia of 287.51 Or perhaps Genucius did not even mean for his plebiscite on iteration to apply to patricians, and as such, did not submit it for validation by patrum auctoritas. But we should note that the provision that both consuls could be plebeian was realized only in 172, where it is duly noted by the Fasti Capitolini. All the same, these Genucian plebiscites should be genuine; their reported terms certainly relate to a real contemporary need. The combined problem of the occasional all-patrician consular colleges and the iterated consulships of a few members of the plebeian nobilitas had made the office quite difficult to obtain for plebeians who were not part of a narrow “ring.” Indeed, L. Genucius’ own family was shut out. There had been a Cn. Genucius as tribunus militum consulari potestate (in 399 and 396), and two Genucii (L. and Cn.) had held three consulships in the first years after the Licinian-Sextian legislation (365, 363, 362). But no members of the family had reached the office since the last of these years. The tribune’s family was fortunate in already having held the magistracy: there were surely a great many individuals from nonnoble plebeian gentes who were eager to reach the consulship at this time. But that was difficult. For example, C. Marcius Rutilus in 342 (the year of Genucius’ legislation) was holding the top office for the fourth time. C. Rutilus was cos. 357, II 352, and III as recently as 344; his patrician colleague had already been cos. 365 and II 362. Multiple consulships were becoming more frequent (we find coss. III, IV, or even V in 355, 354, 353, 351, 350, 348, 344, and 343), but the year 342 is the first case since 366 when both consuls had already iterated. It can be no accident that, following the report of the Genucian plebiscites in 342, consular colleges in which both members were patricians completely disappear. J.-C. Richard must be correct in his view that the law “uti . . . liceret consules ambos plebeios creari” (whatever its precise formulation) must have made mandatory the election of one plebeian to the consulship in each year: the LicinianSextian legislation had only provided for the possibility.52 If Genucius’ law stated that one consul must be plebeian,53 it may easily later have been credited with leaving the option that both might be. And iteration of the consulship at close intervals by plebeians does stop—for about a decade. No plebeians hold the consulship twice within the years 340 down to (certainly) 329 (and probably 327), though patricians iterate in 340, 335, 332, 330, and 329. The patricians evidently ignored the ban
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on iterations. It may be, as I have suggested above, that the law did not even apply to them. Most scholars, following Mommsen, regard the lex Genucia on iteration as a genuine piece of legislation, one which effectively regulated repeated officeholding until it was superseded by similar legislation in the early second century (see Additional Note II). Mommsen supposed that the (many) exceptions to the “ten-year rule” in the subsequent consular Fasti down to ca. 200—when we indeed start to find the regular occurrence of a ten-year interval, counting exclusively— were the result of special dispensation in times of military crisis. Recently, K.-J. Hölkeskamp has further developed Mommsen’s basic view in an attempt to show that the Genucian law on iteration was a turning point in the “struggle of the orders.” For Hölkeskamp, “[T]here were still a lot of breaches of this regulation, or rather exceptions to the rule. But such exceptions now had to be justified, and certain criteria fulfilled.” The Senate determined when dispensations should be granted on an ad hoc basis, but it developed certain guidelines, namely the existence of a “military or diplomatic” emergency and the requirement that candidates for iteration have “a distinguished record in office.” Both patricians and plebeians, argues Hölkeskamp, accepted those ordo-neutral criteria on the prerequisites for iteration at short intervals, later extending them to decisions regarding prorogation and grants of imperium to privati (on which see 3.5 and 3.6.2). Cumulatively, the “criteria of success and outstanding achievement . . . themselves contributed to the steadily increasing body of common rules and thus broadened the patricio-plebeian consensus.”54 But the actual evidence suggests that if the Genucian plebiscite on iteration of 342 was passed (as I accept here), it stipulated that “no one should be (re)elected to the same magistracy for the next ten years,”55 a provision that was recognized only by plebeians. This measure will have first taken effect for 340, and expired by 330 at the latest (333 is a “dictator year,” and probably should be excluded from the reckoning). The law was not renewed: plebeians hold iterated consulships in perhaps 328, and certainly 327, 326, and 321, and then often. So it seems that by the end of Genucius’ “ten years,” all the plebeian families that were ready for the consulship and could decently be elected either had gotten through or knew they would. It hardly would be surprising if annalists of the later Republic failed to recognize the temporary force of this lex Genucia, especially in the light of subsequent (second-century) laws on iteration (Additional Note II). This Genucian plebiscite even may have been adduced as a precedent for such provisions. But as a temporary measure, it hardly can have had the far-reaching social effects Hölkeskamp claims for it. 3.3.3 Aftermath of the Genucian Plebiscites The protest movement which found expression in the Genucian plebiscites soon was able to reap additional results. In 339, the consul Q. Publilius Philo—who during his term of office was also named dictator by his colleague—is said to have successfully carried a measure that one censor must always be a plebeian.56
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Henceforth, that is what we find in the actual record. Philo’s next target was evidently the praetorship, which he sought for himself two years later (i.e., in 337 for 336). Here the situation was not all that different from that of the censorial elections of 351 (see 3.3.1). Livy relates: “Q. Publilius Philo [cos. and dict. 339] was the first plebeian made praetor. The consul [C.] Sulpicius [Longus] opposed him, saying that he would not accept his candidacy; but since the Senate had not made the patrician qualification for office stick in the highest magistracies (in summis imperiis), it was less obstinate when it came to the praetorship.”57 A distinguished plebeian, who already had served as dictator and consul, attempted to win an office hitherto closed to his ordo; a patrician Sulpicius as consul of the year tried to block that bid. In fact, the consuls of 351 and 337 were probably uncle and nephew. As in 351, the Senate of 337—still overwhelmingly patrician58—did not support the consul. One difference is that the Sulpicius who was consul in 337 had not a patrician but a plebeian colleague, P. Aelius Paetus. The open conflict between C. Sulpicius Longus and Q. Publilius Philo in 337 surely did not go much further than this stage. As E. Badian59 points out, “[W]e have no reason to believe (indeed, it is constitutionally nothing less than absurd) that the consul persevered in his objection to the point of refusing the renuntiatio. It is difficult to see how he could have been (literally) forced not to do so if he had insisted.” After Philo managed to win election, there was never again (so far as we know) a serious question whether plebeians should be allowed to stand for the praetorship.60 But surely no legal provision was enacted at this (or any) time which guaranteed the distribution of the praetorship between the two ordines. For his part, Sulpicius Longus must have seen Q. Publilius Philo’s candidacy for the praetorship as a direct assault on the delicate compromise forged by the Licinian-Sextian legislation. We have noted that Longus’ (probable) uncle, C. Sulpicius Peticus, possibly had a hand in the actual arrangement which led to the creation of the praetorship. But the hypothesis of a family connection with the compromise is not absolutely necessary for us to understand why Longus was opposed to Philo’s candidacy for the office. Livy, in his report of C. Marcius Rutilus’ bid for the censorship in 351, states, “by declaring that he was a candidate for the censorship . . . he upset the consensus of the orders.”61 Q. Publilius Philo in effect was doing the same thing. The Licinian-Sextian compromise set up the praetorship as a specifically patrician office: even the pioneering C. Marcius Rutilus had not won (or probably even sought) this magistracy. Q. Publilius Philo, however, made an assertive bid in 337, challenging the earlier consensus of both orders that only patricians should stand for the praetorship. C. Sulpicius Longus was acting not merely in the interests of his own ordo, but also in defense of mos maiorum. Livy, in explaining the Senate’s attitude in this conflict (“since it had not made the patrician qualification for office stick in summis imperiis . . .”), may be thinking not just of the consulship and the dictatorship, but also possibly the censorship. We are also told that in 337 the Senate was hostile toward C. Sulpicius Longus and his consular colleague P. Aelius Paetus for their failure to aid the allied Aurunci.62 But this breach in itself is not enough to explain why the Senate would allow a traditionally patrician office to open to plebeians. The opposition of the patres to ple-
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beians in major magistracies will have been eroded over the years, after a few plebeians had proven themselves in the consulship (and entered into the Senate itself). We are also a full generation after the Licinian-Sextian reform. In an age that had seen plebeians hold multiple consulships—as well as plebeian triumphatores, dictators, and censors—a praetorship confined to patricians will have been regarded by some as an anomaly (as Livy himself implies). It is not entirely surprising that Q. Publilius Philo was the man who challenged this aspect of the Licinian-Sextian system. Philo had shown his activist tendencies as consul and dictator in 339. And as a consularis and ex-dictator, he brought substantial personal authority to his bid for the praetorship. Though Philo was the first of his family to have won the consulship, two of Philo’s ancestors had held the consular tribunate, in 400 and 399. He was probably an acceptable enough praetor, as far as the senatorial establishment was concerned.63 The opening of the praetorship to plebeians was not only a personal victory for Q. Publilius Philo. From the perspective of plebeian families who had held no senior magistracy—or nothing since the days of the consular tribunate—it was a victory for the ordo. The Genucian plebiscite’s temporary moratorium on iteration had helped, starting in 340, new (i.e., nonconsular) families reach the top office:64 Q. Publilius Philo himself can be considered a beneficiary of this law. The Senate itself must have recognized the social problem which had resulted from excessive exclusivity in the top magistracies. Otherwise it is difficult to see why it did not support the consul C. Sulpicius Longus against Philo’s praetorian candidacy.65 If the plebeians had not only one (secure) consular place, but also the possibility of winning the praetorship, consular iteration by plebeian families in the ring would become less of an issue. As it happens, starting in 330 (immediately after the expiration of Genucius’ “ten years”), established names and iterated consulships once again appear regularly (but not exclusively) in the plebeian Fasti.66 The evidence is not sufficient for us to attempt to generalize about what sort of plebeians sought the praetorship once it had been opened to both Orders. All the individuals in our small sample—L. Plautius (cos. 330; probably the same man as the pr. 322), P. Sempronius Sophus (cos. 304, pr. 296), M. Atilius Regulus (cos. 294, pr. 293), L. Caecilius Metellus Denter (cos. 284, pr. 283), and M.’ Curius Dentatus (cos. 290, pr. suff. 283)—were of consular status by the time of their praetorship. “Consular praetors” are not necessarily a demographic trend in themselves: wellknown individuals (from famous gentes) of course have a better chance of being mentioned in our sources.
3.4 Administrative Motives for the Introduction of the Praetorship Twenty-odd years before the passage of the Licinian-Sextian legislation, the Gauls had sacked Rome, threatening its very survival. The Romans spent the 380s and 370s mostly attempting to regain control of former allies, and to keep Etruscans and the peoples of the central Appennines out of Latium. In the 380s, the literary sources tell of victories (even triumphs) over the Etruscans, Volsci, and Aequi, as
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well as various Latin towns.67 In their effort to render Latium less vulnerable, the Romans established colonies at Satricum (385) and Setia (by 383) in southern Latium, and Nepet and Sutrium in Etruria (ca. 382); these latter two colonies were both defensive and offensive. Soon afterward, the Latin town of Tusculum came under Rome’s control (in 381) and received Roman citizenship—a measure motivated by military considerations.68 In this period, the Romans also took strong precautions for the defense of the city. As we noted earlier (1.5.2), U. Coli has the great merit of recognizing the importance of a chance notice in Livy’s narrative of the year 386, which mentions provisions for a consular tribune to command a “third army” (i.e., in addition to the two consular legions) composed of infirm and elderly soldiers, meant “to guard the city and walls.” Coli emphasized that the role of this consular tribune—and there were obviously others like him—paved the way for the creation of the later praetor urbanus. C. Starr reinforced Coli’s view, by emphasizing the defense requirements posed by the huge (eleven-kilometer) circuit of the “Servian” Wall, which is now generally agreed to have been built soon after the Gallic sack.69 Nevertheless, Rome’s recovery seems to have slowed after 380: the years 379–368 are entirely devoid of triumphs. In the early 360s, Rome still had abundant problems in central Italy, especially with Tibur, the Aequi, and the Hernici. Nor had the Gallic menace passed.70 An examination of the annalistic record reveals that the praetorship was created in the midst of a serious military crisis. 3.4.1 The Gallic Threat Polybius and Livy both record for the mid-fourth century a series of Gallic incursions into Latium. Polybius, in a summary of the major Gallic invasions, seems to draw on an annalistic source which placed the capture of Rome in 390.71 He states that Rome fought against the Gauls thirty and then forty-two years after the city was captured (360, 348); fifty-five years after the sack (335), the Romans and Gauls concluded a truce of thirty years. Livy also describes major fighting in 360 and 348, and a lot more beside. A Gallic incursion near Alba in 367 immediately precedes his account of the passage of the Licinian-Sextian compromise.72 Campaigns against the Gauls then feature throughout Book 7 (there is, however, no mention of a truce).73 Polybius’ omissions of the (frequent) minor campaigns in the annalistic account are no evidence against their authenticity: none show obvious marks of invention. The Gallic threat was certainly real in 367, and it surely contributed to the creation of the praetorship. The Romans needed to devise a chief command structure for fighting against powerful enemies on multiple fronts which was better than that of the consular tribunes. In fact, the first we see of the praetor in Livy is in a military capacity. The new magistrate plays an auxiliary role in fighting off two Gallic incursions, in 350 and 349. In the first of these years, when the plebeian consul M. Popillius Laenas received his infirm colleague’s command against the Gauls in Latium, he left a reserve force (to defend Rome?) to the praetor P. Valerius Poplicola. The consul was wounded in the battle which followed; the praetor, however, is not shown having any part in what turned out to be a Roman victory.74
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In the next year, 349, the patrician consul Ap. Claudius Crassus Inregillensis died in office at the beginning of the campaigning season. His consular colleague L. Furius Camillus (also a patrician) continued as sole consul. Livy notes that no dictator was appointed, and offers two (not very plausible) possible explanations.75 More to the point is the question why no suffect consul was elected, which is what we would expect (it was still early in the year).76 On subsequent occasions in this period when a consul died in office early in the year (305 and 299), a suffect was elected; when one of the consuls died in battle, fell ill, or was wounded later in the year (in 340, 325, 312, and 310) a dictator rei gerundae causa was named. There may have been social reasons for the decision—or rather nondecision—of 349. Perhaps the Senate feared that if the choice were left open to the People, they would choose a plebeian to replace the patrician Ap. Claudius.77 Whatever the explanation, L. Furius Camillus is the first consul in this period known to fight in cooperation with a praetor. (The next recorded example does not come for at least twenty-five—and perhaps more than fifty—years.) Since at this point Rome faced a two-pronged threat from Gauls in Latium and a Greek pirate force, the consul (we are told) left two urban legions to defend the city and ordered the praetor L. Pinarius to take part of his force of eight legions “to defend the sea coast and keep the Greeks from the shore.”78 Once the Gallic force was defeated, the praetor Pinarius naturally had to yield his independent command against the pirates to the consul.79 It might be argued that whatever annalist wrote this story sought to portray Furius—whose father allegedly “invented” the praetorship and whose elder brother was the first holder of that office—as true to family character, and thus eager to cooperate with a praetor. But the important thing to note is that the tradition Livy here follows obviously did not regard such praetorian military commands as anything surprising or exceptional in themselves. 3.4.2 Why Is the Early Praetor Mentioned So Seldom? Livy gives us the names of only about fifteen men who reached the praetorship in the period 366–292, and few details of their activities. We would expect to hear more of the praetor in the constant fighting of the fourth century, when there were only three regular magistrates with imperium. Part of Livy’s silence on the development of the praetorship in this period must be explained by the fact that his sources will have paid little attention to the movements of praetors in campaigns where higher magistrates are in command on the spot. Two such instances readily present themselves: in 360, when the dictator Q. Servilius Ahala defeated a Gallic force just outside the Colline gate; also in 359, when the consuls M. Popillius Laenas and Cn. Manlius Capitolinus Imperiosus repelled the Tiburtines from the gates of Rome.80 There is no mention of the praetor in either engagement, though he must have been close at hand. Another reason must be actual Roman practice in the deployment of the praetor. Livy in his account of the year 340 includes the praetor as one of the military commanders able to make a ritual devotion of oneself in battle (devotio).81 Yet in one crucial episode from this general period there may be positive evidence for his absence from the field: the praetor was not present in the army which the Samnites
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trapped at the Caudine Forks in 321. When the consuls made the disgraceful treaty, “the consuls, legates, quaestors, and military tribunes gave their pledge, and the names of all who did so are extant.” The praetor would have been required to attach his name to the sponsio had he been present.82 The praetor of this year should have been in Rome, seeing to the defense of the city and running public business. There are additional aspects to Roman administrative policy at this time which might explain why the praetor shows up so seldom in the early record. In the latter two-thirds of the fourth century a dictator rei gerundae causa was named in almost all emergencies, major and minor.83 When a consul was ill, the usual remedy in the fourth century was not for a praetor to fulfill his military functions, but rather for that type of dictator to be appointed to act in his stead. On one occasion, it is the praetor who is made dictator. As the story goes, in 340, after the consul P. Decius Mus had devoted himself at Veseris in Campania against the Latins, the surviving consul, T. Manlius Imperiosus Torquatus, found himself too ill to meet Antiate raids on neighboring towns in Latium, and so named the praetor L. Papirius Crassus dictator.84 Given these factors, the logic of the appointment is not hard to divine: it would be inadvisable to have a praetor as the only able holder of imperium in the state. Yet the tradition that L. Papirius Crassus was chosen may show that at this time the praetor was not regarded as absolutely essential.85 While Papirius was facing the Antiates, T. Manlius, though ill, presumably would stay in Rome to manage affairs in the city. It may be relevant that the praetorship is absent from our earliest cursus inscriptions. It was either not normally held, or not thought important enough to record. Only about one out of two consuls could be praetor; therefore there is a one in two chance that any given high-status individual we know about did not hold the office. Indeed, some men, or even families, may not have wanted to hold it, because it seemed to add nothing to one’s dignitas. When it was opened to plebeians, it must have lost a good deal of its attraction to patricians. 3.4.3 The Praetor’s Defense of the City The primary role of the early praetors was probably the defense of the city.86 Livy in fact has a notice for the year 296 which describes the praetor P. Sempronius Sophus in this capacity after the declaration of a iustitium. Both consuls were away at the time, and the praetor had to act on a report of a combination of Samnite, Etruscan, Umbrian, and Gallic forces. The rumor proved unfounded, however, and the iustitium was remitted after eighteen days.87 In cases where the praetor as well as the consuls were needed in the field, a praefectus urbi may have been appointed. There is one possible allusion to this practice, for the year 325—perhaps genuine, but at the very least, showing that such an appointment was conceivable in the later historical period. The consul L. Furius (Sp.f.) Camillus had fallen ill while waging war against the Samnites, and was forced to name as dictator L. Papirius Cursor.88 After a squabble in the camp and then in Rome between the dictator and his disobedient magister equitum Q. Fabius Maximus Rullianus, the dictator returned to Samnium, “having placed L. Papirius Crassus in charge of the city
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(praeposito in urbe), and forbidden the master of the horse Q. Fabius to do anything as magistrate.”89 T. R. S. Broughton90 considered Crassus a praefectus urbi, an office which, as we have seen, has no positive attestation in the Republic after the mid-fifth century.91 Yet the guess may be right: L. Papirius Crassus was a relative of the dictator, and when himself dictator in 340 had named L. Cursor as his master of the horse. The consul L. Furius Camillus may have been in the city, but too ill to officiate. What about the praetor, who is not mentioned in Livy’s account of 325? It is entirely possible that the praetor was still in the city at the time when L. Crassus was appointed prefect. His presence or absence cannot be inferred from the fact that Rullianus is found shortly before in Livy’s narrative complaining to the Senate about his dictator’s cruelty: this notice does not necessarily mean the magister equitum convened that body.92 The appointment of a praefectus urbi might be explicable if the consul was too ill to act, and if the dictator took the praetor into the field with him as a substitute for the disgraced Rullianus, who of course was debarred from further action. An alternative is that the dictator put a man he could trust in charge of the city, and ordered all the regular magistrates in the city not to interfere.
3.5 The Introduction and Early Development of Prorogation The principle of the annual magistracy is one of the foundations of the Republican Roman constitution. This principle remained in force (at least nominally) from the expulsion of the Tarquins down through the entire Republican period, and then lived on in the Empire. But by the mid-fourth century, a precedent was established by which the imperium of the consuls and praetors could be extended by a legal fiction into the next year. Our sources call this extension “to prorogue” (“prorogare”); the abstract noun “prorogatio” occurs, but rarely (only once in Livy).93 A prorogued consul is usually termed “pro consule” (“in place of a consul”), a prorogued praetor is termed “pro praetore”; however, sometimes they are simply called “consul” and “praetor.”94 Like many aspects of the Republican Roman constitution, prorogation was an ad hoc invention which gradually became more common and finally was institutionalized. But (despite the misleading habits of modern editors) our sources do not use the terms “propraetor” or “proconsul,” which shows that the Romans never came to terms with a promagistrate as holding an actual office. The first reliably recorded instance of such a grant is in Livy’s account of the year 327.95 The plebeian hero Q. Publilius Philo, as cos. II, was besieging Greekspeaking Neapolis. When his year of office was almost up, the Roman Senate, realizing that the city could be taken any day, decided not to recall Philo but instead had the tribunes propose a measure before the “People” (“populus”). Livy reports the terms of the tribunician bill: “that Q. Publilius Philo on the expiration of his consulship conduct the campaign pro consule until the war with the Greeks was concluded” (“pro consule rem gereret quoad debellatum cum Graecis esset”). Livy’s report is not strictly accurate in its reference to the populus. The only voting assembly the tribunes were competent to preside over was the concilium plebis, and
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that must be what is meant here.96 There is no problem with Livy’s notice that it was a plebiscite in accordance with a senatus consultum that secured the grant of prorogation for the consul Q. Publilius Philo. Plebiscita that were promulgated ex senatus consulto would have the full force of law, even at this time.97 In addition, a quick and easy procedure was required, since time was at a premium. The Plebs was not making a grant of imperium to Philo, only extending the imperium past his term of office.98 In any event, the measure was passed, Philo had his consular imperium extended, and we eventually find prorogation—in essence, a legal fiction—as a feature of routine Roman administrative practice. Livy says that this was the first prorogation, and that Philo also was the first to triumph as pro consule.99 It does seem plausible that prorogation was more or less accidentally invented to enable a popular man to finish a war, which (as we might expect) was followed by a triumph—all serving as a spectacular first example of the process. If we can trust Livy’s account, it would seem that Philo’s prorogation, though without strict temporal restriction, was intended to last only for a few days. We cannot check, since there are no more notices of prorogation or proconsular triumphs after Philo’s for almost a generation. It would seem that it was only the continued military necessity posed by the latter stages of the Second Samnite and then the Third Samnite Wars which prompted the Romans to revive and regularize the type of grant made for 326. Q. Fabius Maximus Rullianus (cos. II 310) is reported in the Fasti triumphales to have triumphed over Etruscans as pro consule on 13 November 309. We do not know on which day the consular year started in this period— Mommsen thought sometime in the autumn—and thus precisely how long Rullianus managed to fight as a promagistrate. One guesses for a few months at most, if Mommsen is right and the basic account of the Fasti here is correct. Yet the latter point, at any rate, is quite uncertain—especially since the year 309 is a “dictator year.” According to Livy, Rullianus celebrated the Etruscan triumph in his actual consulship of 310. This author then has Rullianus as cos. III 308 prorogued into 307 (“in insequentem annum”). The exact facts of Rullianus’ commands are irrecoverable, and may not matter all that much: we soon find a few further notices of prorogation, confirming that the practice had indeed caught on. Early in the Third Samnite War, in 297, Q. Fabius Maximus Rullianus as cos. IV and P. Decius Mus as cos. III received an extension of imperium for six months into 296. Two additional instances of prorogation are noted for this war, with many more to follow over the next half-century.100 The length of term Livy gives us for the two prorogations of 297 is striking— and I would suggest authentic, despite his previous notice of the consul Rullianus prorogued “in insequentem annum.” (The proconsular triumph reported for this man in the Fasti triumphales for 309 is too uncertain to be used as evidence in this connection.) I show in 4.1.2 that six months—not a year, as is universally supposed—was probably the normal period of prorogation at this time and for some time to come, since it would cover the length of a campaigning season. We shall see that this made the praetorship an alternative if one wanted a whole year’s extension (3.6.1). But starting with the Second Punic War, we find commanders receiving prorogation of their imperium for a full year, with the possibility of annual renewal until their task was completed. In this way the Romans were able to meet
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their military needs without increasing the number of magistrates or sacrificing the principle of the annual magistracy. Our first attested instance of a prorogued praetor is only in 241, when the imperium of the praetor Q. Valerius Falto (pr. 242) was extended beyond his original year of office to help in a peace settlement (4.1.3). It is unlikely that there was much need for prorogation of praetors before the First Punic War, Rome’s first overseas conflict (but see 3.7). The mechanics of prorogation are difficult to ascertain, since Livy’s language when reporting these grants is often inexact. The prorogation of magistrates certainly came from the initiative of the Senate, which proposed the individuals who were to receive extensions of command in specific provinciae. The People or Plebs then should have had to ratify these proposals; the word prorogare itself refers to this vote.101 Mommsen believed both the Senate and People or Plebs in this period had to approve a prorogation, even where both parties are not specifically mentioned. His view is no doubt correct. This is the procedure we find in the first recorded example of prorogation, that of Q. Publilius Philo.102 The involvement of the tribunes is found again for 295, when “the imperium of L. Volumnius [cos. II 296] was prorogued by senatus consultum and plebiscite for a year” (thus Livy, perhaps inaccurately in its reference to the temporal duration).103 Although Livy makes no mention of the People or Plebs in most of the early prorogations, this must only be carelessness.104 By the mid-second century, however, it seems that the Senate was competent to extend (or refuse to extend) commands without reference to the People or Plebs. This development is discussed in 8.2.1. K.-J. Hölkeskamp attributes a political importance to the introduction of prorogation, seeing it partly as a method of ensuring that “the few regular posts available annually were not blocked whenever the general situation seemed to make continuity in command necessary.”105 But that hardly can have been a motive for its introduction. Our first notice of prorogation, for 327, coincides with a new rise in iteration of the consulship, and has absolutely no effect on this trend. Seven consuls iterate in the years 329–321, and all four consuls of 320 and 319 are iterating at short intervals, with many subsequent examples to come (see Additional Note II). A military explanation for the introduction of prorogation is wholly adequate.
3.6 The Praetorship in the Third Samnite War In the general period of the Third Samnite War there seems to have been a marked reluctance to rely on the previously common expedient of naming a dictator rei gerundae causa in times of crisis. In the years 300 down to at least 292, no dictators are appointed—not even to hold elections or see to the fulfillment of religious rituals. It is noteworthy that in 294, when the consul L. Postumius Megellus was too ill to leave Rome, the Senate decided to make no special arrangement, despite the fact that the Samnites were said to have three armies in the field.106 When the report reached Rome that the Samnites had defeated his consular colleague M. Atilius Regulus, L. Megellus ventured out to battle, “though hardly in good health.”107 The Senate perhaps felt that what was meant to be only an emergency institution was supplanting the regular magistracies in the state: note that in 302, two separate dictatores rei gerundae causa had to be appointed.108
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How did the Romans in this period manage to meet their substantial military obligations without resorting to a dictatorship? The Third Samnite War was a time of innovation and experimentation.109 Capable consuls remained in command beyond their year of office, either prorogued or through election to a praetorship. Privati (of consular rank) received special grants of praetorian imperium to meet emergencies. The praetor also may have taken a more independent role in the field. It is necessary to examine these developments together, since they cannot be readily isolated from each other. 3.6.1 Continuity of Consulship and Praetorship We have noted (3.5) the prorogation—for six months—of the consuls of 297, Q. Fabius Maximus Rullianus and P. Decius Mus, and also Livy’s report of the senatus consultum and plebiscite that extended (also for six months?) the command of the cos. 296 L. Volumnius. A fragment of Cassius Dio shows that the cos. 292 Q. Fabius Maximus Gurges was also prorogued as pro consule into the next year.110 In an interesting twist, Ap. Claudius Caecus (cos. 296) was not prorogued, but made praetor for 295.111 Ap. Claudius was elected in absence, and remained with his army in what had been his consular provincia of Etruria until relieved by Q. Fabius Maximus Rullianus, now cos. V for 295.112 Claudius engaged in a good deal of independent action in the remainder of his year as praetor.113 There are two more examples of this particular practice in the Third Samnite War. M. Atilius Regulus (cos. 294) served as praetor in 293;114 while L. Papirius Cursor, consul in 293, presided over his own election as praetor for 292.115 This phenomenon of an individual being elected praetor for the year immediately following his consulship can be viewed as an alternative to prorogation pro consule, as some scholars have observed.116 What has not been realized is that the choice was between prorogation with full consular imperium militiae for six months, and election as praetor with minus imperium (both domi and militiae) for a year. The decision was no doubt taken in each instance by the Senate ad hoc; the Senate would then instruct the consul to follow the avenue it chose. Broughton regards it as axiomatic that “in the period before the Punic Wars the praetorship frequently followed immediately after the consulship.” He uses this assumption to date conjecturally the year of office of several problematic praetors.117 I would suggest that it was not a normal career pattern, but a device used in extraordinary circumstances to give an outgoing consul imperium (albeit “minus”) for a full year. Of the five alleged cases of a praetorship held in a year following the consulship, the first three fall within the period discussed here, the Third Samnite War.118 It may not be too much to suppose that the practice in fact first arose at this stressful time. 3.6.2 Grants of Praetorian Imperium to Privati A second development is first seen in the crisis year 295. In order to have enough officers in the field to combat the combined threat of the Samnites, Gauls, and Etruscans, the consuls made extraordinary grants of imperium to men who were not
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magistrates at the time but who were of consular rank. It is unclear whether this was an innovation devised only in this year, or whether consuls had delegated their imperium before: the first occurrence of this practice in Livy appears with no special notice. When the consul Q. Fabius Maximus Rullianus had to return to Rome to consult the Senate on the conduct of the war, he made L. Scipio Barbatus (cos. 298) pro praetore, placing him in charge of the Roman camp at Clusium.119 This command evidently lasted only as long as the consul Q. Fabius was absent from the camp; Scipio later shows up at Sentinum under Fabius as a “legatus”120—whatever that means at this time. Fabius’ consular colleague, P. Decius Mus, also is reported to have delegated imperium—at the very moment of his devotion. According to Livy, Decius ordered the pontifex M. Livius Denter (cos. 302) not to leave his side in the battle at Sentinum; after Decius’ devotion, we find Denter fighting in his place, “whom he had bidden to be pro praetore.”121 As we have seen in 2.1.2, this passage provides important evidence that a consul cannot have been qualified to give out anything more than praetorian imperium. In this same year, two other consulars—Cn. Fulvius Maximus Centumalus (cos. 298) and L. Postumius Megellus (cos. 305)—were stationed just north of the city, the one in the Faliscan district, the other in the Vatican, “both pro praetoribus.” The consuls later ordered these men to move to the area of Clusium, in the hope of creating a diversion which would draw the Etruscan forces away from Sentinum. Cn. Fulvius Maximus Centumalus, the privatus stationed in Faliscan land, is reported to have fought independently, against the Perusini and Clusini.122 Although Livy does not specifically tell us the manner of these individuals’ appointment, as in the cases of L. Scipio Barbatus and M. Livius Denter their commands must surely also have derived from delegation by one of the consuls in that year.123 There are no other instances of special grants of imperium in our (admittedly defective) record down to the time of the Second Punic War. Uneasiness about the radical nature of this expedient probably prevented it from being quickly institutionalized like prorogation. But much later the success of the ad hoc arrangements of 295 would be remembered and, as we shall see, would serve as a precedent in Roman administrative practice.
3.7 The Praetorship, 291–264 We have little information on the praetorship in the twenty-seven years following the end of the Third Samnite War in 291. No holder of the office in this period can be identified with certainty. There are, however, three instances in which there is enough material for conjecture. The first, that of M.’ Curius Dentatus as praetor suffectus in 283, who won an ovatio for fighting in Lucania, is complex; I have discussed it in full elsewhere. The case is important, for it marks an important first step in the establishment of a praetor’s right to triumph.124 The second instance is not easy to assess. Suetonius (in a compressed passage) relates how an early member of the gens Livia, by slaying the Gallic chieftain “Drausus” in hand-to-hand combat, gained the cognomen of “Drusus” for himself
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and his descendants. Suetonius goes on to state that as “pro praetore ex Gallia,” this Livius also recovered the ransom paid to the Senonian Gauls who had besieged the Capitol (i.e., in 390)—not Camillus, as the story has it. Suetonius adds that M. Livius Drusus, tr. pl. 122, was great-great-grandson (abnepos) of this individual.125 On the basis of the generation count, Münzer reasonably separates the first “Drusus” (who should be the magister equitum 324 known from two late Fasti) from the “pro praetore” who won back the Gallic gold. Münzer also rejects the phrase “pro praetore ex Gallia” as anachronistic for the early third century. Nonetheless, Münzer makes a detailed circumstantial case for accepting a (M.?) Livius Drusus as a praetor active in Gaul, in the territory of Pisaurum. His magistracy will have fallen sometime after 283, the date of the decisive subjugation of the Senones, and probably before 268, the establishment of Ariminum (which completed Roman control over the territory of this Gallic tribe).126 Münzer’s reconstruction is plausible, though it allows a few quibbles. Münzer seems to imagine an actual victory in the field; however, Drusus may have simply discovered the gold, or at least wrested it from the Senones without too much of a fuss. (We know of no major fighting against Gauls from the peace following Vadimon in 282 down to the mid-230s.)127 Münzer is also right to express skepticism about Suetonius’ reliability in reporting Livius Drusus’ title.128 But owing to the loss of Livy’s Second Decade, we cannot be certain whether the title “pro praetore” is in fact anachronistic. The first secure case in our record comes not much later than the date Münzer postulates for the relevant Livius Drusus, when we find Q. Valerius Falto (pr. 242) triumphing pro praetore in 241 for his victory over the Carthaginians at the Aegates Islands (4.1.3). The last instance, that of C. Genucius Clepsina, is probably connected only tangentially with the development of the praetorship. It accordingly is treated in Additional Note III.
4
Developments in the Praetorship, 263–219
4.1 The Praetorship in the First Punic War The struggle with Carthage in the First Punic War placed enormous strain on the now century-old system of three regular magistrates with imperium (the two consuls and praetor). It seems that in each of the years 263 through 243 both consuls fought overseas. The praetor could not simply remain near Rome to protect the city and act as the de facto head of state. Our information on the campaigns of the First Punic War is extremely poor, yet we can surmise from three passages in Zonaras and an entry in the Fasti Capitolini that the praetor now received responsibility for the defense of all Italy—and occasionally had to fight beyond Italy’s shores. 4.1.1 First Steps Abroad: The Praetor in 260 Our first case concerns the war in Sicily in 260. In that year, the consul C. Duilius commanded the land forces in Sicily while his consular colleague Cn. Cornelius Scipio Asina received charge of the new Roman fleet.1 Scipio’s tenure as admiral was quite short. At the very beginning of the campaigning season (in this period the consular year began on 1 May),2 the Carthaginians managed to capture him at Lipara, with seventeen of his ships. The consuls of the previous year had already returned home;3 in fact, they may not even have been in Sicily when Duilius and Cornelius entered into office. In the first few years of the First Punic War, consuls do not seem to have wintered in Sicily.4 Prorogation for the consuls of 261 was of course an impossibility once they had returned to Rome from their provincia.5 When C. Duilius learned of his colleague’s capture, he entrusted his own army to military tribunes, and went to take over the rest of the fleet.6 But disaster then struck the Roman infantry. The Carthaginian Hamilcar ambushed the military tribune C. Caecilius (Metellus), who was attempting to relieve Segesta. “The people of Rome, hearing of this, immediately sent out the praetor ‘urbanus’ (to;n ajstunovmon) and urged Duilius to hasten.”7 79
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The dispatch of this (unidentified) praetor must have been more than a temporary emergency expedient. The Romans obviously felt that their land army needed a magistrate with imperium to contain the able Hamilcar; with the Carthaginians holding one consul captive, it was likely the praetor would have to remain overseas for the rest of the year. Zonaras unfortunately does not bother to mention what the praetor actually did once he reached Sicily.8 He did not relieve Segesta: that the consul C. Duilius had to do himself, after his great victory in the naval battle of Mylae.9 The praetor may have been involved in the siege of Muttistraton, on the Halycus river. There were three attempts on this city in the years 261–258, and one of the first two sieges lasted six months.10 After C. Duilius returned to Rome, and before the arrival of C. Aquillius Florus (cos. 259), Hamilcar defeated a combined Roman and allied force on the north coast of Sicily near Thermae.11 There is no telling whether this army was under the command of the praetor of 260 or entrusted once again to military tribunes. We are not told who administered affairs in Rome in 260 in the praetor’s absence. Mommsen12 refused to believe that it was possible for the praetor to entrust the city to a subordinate, on the grounds that he was obliged to remain in Rome during his magistracy. This is a circular argument. Not only does the sole praetor leave the city three or four times in the First Punic War (we shall soon discuss the other examples), but in the Hannibalic and immediate post-Hannibalic period the urban praetor is twice found engaged in major actions outside of the city.13 There is no evidence for the legal restriction of the urban praetor to Rome until the late Ciceronian era, and even then an absence of up to ten days was permitted.14 Obviously, he could get a dispensation in an emergency. In 260, the Romans dispatched the praetor to Sicily when the consuls had already left the city, and so after the Latin Festival. At the end of the year, C. Duilius will have presided at the consular and praetorian comitia for 259: he was back in Rome by late February to triumph in his year of office,15 and was not prorogued. A praefectus urbi was fully competent to discharge all the normal consular responsibilities which fell between the Latin Festival and the elections. There are no reasonable grounds for doubting that a praetor, as a holder of imperium, could— and did—appoint one. 4.1.2 Nonprorogation in the First Punic War: The Case of A. Atilius Calatinus Under the consular year 257, the Fasti Capitolini record that A. Atilius Calatinus (cos. 258) triumphed on 19 January “pr. ex Sicilia de Poenis.” If the entry is correct (it is accepted by both Degrassi and Broughton),16 this would be the first known example of a full praetorian triumph. J. H. Thiel17 has launched a spirited attack on the notice of A. Atilius Calatinus as praetor in 257. “In 260 there had been . . . an emergency, but in 257 there certainly was not: if A. Atilius had been elected praetor for the year 257, the Romans could easily have prolonged the imperium of the consul [C.] Sulpicius [Paterculus, cos. 258], giving him a command in Sicily as proconsul and keeping the praetor at Rome where he naturally had to be.” Thiel goes on to suggest that “pr.” stands for
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“pro cos.” There is no parallel for this abbreviation in the Fasti triumphales or any other epigraphic source. If Thiel is correct that A. Atilius Calatinus was prorogued into 257, since the entry in the Fasti triumphales cannot be supplemented PR[O COS.],18 we have to assume that pr. is a mistake for pro cos., and should be corrected. The mistake would be unique: the Fasti triumphales (where they can be checked) are remarkably free of error in reporting Roman names and magistrates’ titles.19 If we examine general administrative attitudes of this era and the military and staffing situation of the years 258–257, we can see that when A. Atilius Calatinus triumphed in January of consular 257 (i.e., Julian 256), it quite probably was as praetor. As noted (4.1.1), in the period of the First Punic War the consular year seems to have begun on 1 May. As far as our information goes, before the Second Punic War magistrates simply were not prorogued to spend an entire additional year in their provincia.20 In 3.5 I have suggested that, before the Second Punic War, the Senate may well have viewed prorogation of the imperium of a consul for a full year—not to mention in an overseas provincia—as unacceptable. In this era, magistrates were prorogued merely for six months—the length of a campaigning season. We cannot tell whether six months was an actual term, so that prorogation would have to be renewed at its end. At this time, it may have been simply more maiorum, with the Senate not objecting if a man stayed on longer if he could not help it. For a powerful demonstration that, in this era, promagistrates were not used to supplant magistrates, one need look only as far as the dates of triumphs preserved in the Fasti triumphales. In the First Punic War consuls who gained a triumph held it in the early spring, that is, toward the end of their year of office, assuming an entrance date of 1 May.21 Prorogued magistrates who were awarded a triumph celebrated it, on the whole, in the autumn. They evidently stayed in what had been their consular (or praetorian) provincia through the summer which followed their year of office, and then returned home to triumph, usually in September or October.22 There are three examples in this period of a prorogued consul triumphing in the early spring, that is, eight or nine months after his original year of office had expired. But all three cases can be shown to have been due to exceptional circumstances.23 We have no example of prorogation in the two decades which followed the First Punic War, despite the fact that Sardinia and Corsica were a major theater of operations in the 230s. Nine of the ten triumphs (where dates are known) celebrated by consuls in the period 241–223 are celebrated in either February or March of their consular year, with one (that of Sp. Carvilius Maximus in 234 de Sardeis) held on 1 April. Thus we do not know for certain whether the six-month term of prorogation remained the standard Roman practice right down to the time of the Hannibalic War. To return to A. Atilius Calatinus and the year 258. In that year, the land forces in Sicily were commanded by Calatinus as consul and C. Aquillius Florus, cos. 259, who had been prorogued (i.e., for six months); Atilius’ consular colleague, C. Sulpicius Paterculus, was in charge of the fleet.24 Calatinus and the pro cos. C. Aquillius managed to capture a number of important towns (Hippana, Muttistraton, Henna, and Camarina); Aquillius and C. Sulpicius then returned to Rome
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(not necessarily together) to triumph, Aquillius in early October and Sulpicius sometime in his year of office, as the Fasti triumphales show. In 257, the consul Cn. Cornelius Blasio (cos. I 270) and A. Atilius Calatinus evidently commanded the land forces, and the consul C. Atilius Regulus the fleet.25 Polybius states that the Roman infantry commanders accomplished nothing worth recounting, having squandered their time on trifling operations.26 This may have been deliberate policy: Polybius and Zonaras both imply that the Romans actually were looking forward to the summer of 256, when they would launch a full-scale invasion of Africa,27 and so bring the war to a close. The Romans were playing it safe in the interim. At the elections for 257, they had taken the step of recalling the senior consularis Cn. Cornelius Blasio, and then had sent Blasio and his colleague C. Regulus immediately to their provinciae: these new consuls had to name Q. Ogulnius Gallus (cos. 269) as a dictator “for holding the Latin Festival” (“Latinarum feriarum causa”), the only instance in the Republic, so far as we know.28 Thiel does rightly explain the Roman strategy: “[T]here had to be two consular armies in Sicily, because one was not sufficient to maintain the status quo, and the Romans naturally did not want to lose ground.”29 Policy seems to have dictated that the two land commanders of 257 stay with their armies at least through early winter 257/256. Calatinus triumphed on 19 January in consular year 257. I suggest, then, that A. Atilius Calatinus, like Ap. Claudius Caecus in 295 (and L. Caecilius Metellus Denter in 283), was elected praetor in absentia for the year following his consulship. While Calatinus was in Sicily, affairs in Rome could be managed by a praefectus urbi appointed by the consuls of 257 before their departure, if not by the dictator Q. Ogulnius Gallus. Note that the praetor was back in Rome for the last three and a half months of the year; his return may have been prompted by the expiration of the dictator’s (six-month) term of office. So we should accept the notice of A. Atilius Calatinus’ triumph as praetor preserved in the Fasti triumphales. It is true that in 257, Calatinus served in the same provincia as the consul Cn. Cornelius Blasio, the command of the land forces in Sicily. As praetor, Calatinus certainly was tactically subordinate to the consul; he also presumably fought under the consul’s auspices. Nevertheless, Calatinus will not have gained his triumph for fighting as praetor in 257 (an uneventful year), but for his successes as consul in the previous year, when he acted in conjunction with the pro cos. C. Aquillius Florus.30 There was no question that in 258, Calatinus met the conditions of a triumph while fighting under his own auspicia. The fact that he triumphed only in the next year, as praetor, would not have raised serious objections, especially if we accept that M.’ Curius Dentatus set a precedent in this as praetor suffectus in 283. Dentatus apparently celebrated only an ovatio for a victory over the Lucanians,31 yet this would have cleared the way for acceptance of Atilius’ praetorian triumph. Even though A. Atilius Calatinus was technically the first praetor to celebrate a full triumph, his achievement merited no special annotation in the Fasti triumphales. What was important was the absolute first appearance in these Fasti of a praetor, and that (we can surmise) was noted under the year 283. It is also interesting that neither Dentatus’ ovation nor the instance of Calatinus in 257 set a firm
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precedent regarding praetorian triumphs, a matter clearly still unresolved (as we shall see in the following section) in 242/241. 4.1.3 A Dispute over the Praetor’s Right to Triumph In 253, according to the Fasti Capitolini, L. Postumius Megellus (who had been cos. 262) was both censor and praetor when he died in office. From the unusual cumulation of positions,32 it appears that this praetor was not expected to engage in major military missions—at any rate, certainly not outside of the Italian peninsula. Our next notice of a praetor in an actual military capacity does not come until the early 240s. In 248, the Punic general Carthalo tried to draw the consuls C. Aurelius Cotta and P. Servilius Geminus from west Sicily (they were in the area around Lilybaeum and Drepanum) by crossing over to Italy. Yet on the Carthaginian commander’s crossing, the approach of an unnamed praetor made him turn back to Sicily.33 There is nothing surprising in this: when both consuls were overseas—as they had been in each of the years since 263—the defense of Italy was simply an extension of the praetor’s role as chief magistrate in the city with imperium. But we shall return to this incident below (4.2), in our investigation of the creation of a second praetor. Six years later the praetorship spectacularly reemerges in our sources. The Romans had withdrawn from naval operations following the disaster at Camarina in 249, and had not returned to the sea for six years, “convinced that they would decide the war by means of their land forces alone.”34 But in the winter of 243/242, the Senate decided on a change of policy, and a renewal of naval warfare.35 One of the new consuls for 242, A. Postumius Albinus, was a flamen Martialis; a crisis arose when the pontifex maximus L. Caecilius Metellus forbade him to leave the city for his military province, the fleet in Sicily. This prohibition seems to have been unexpected (why else would the Romans have elected Albinus consul at this time?), and did not go uncontested.36 However, Albinus did not win his point. In his place the Romans sent the praetor “urbanus” Q. Valerius Falto37 with the other consul C. Lutatius Catulus to command the fleet; we can surmise that the restricted consul performed the duties of the praetor in his absence. We need not follow F. Münzer’s conjecture38 that the plebeians L. Metellus and C. Catulus were in collusion to deprive the patrician A. Albinus of the command. Both consuls were surely intended to fight abroad in that year, as in every year of the First Punic War; note that the Romans thought it necessary to send along the praetor Valerius as second commander. Q. Valerius Falto spent the entire year in a military capacity, this also perhaps contrary to expectation. Polybius reports that when the Roman fleet reached Sicilian waters, there was not a single Carthaginian ship there to meet it; they had retired to Africa, not expecting that the Romans would take to the seas that year.39 Before the Punic fleet came back to Sicily, C. Lutatius Catulus laid siege to Drepanum, where he was wounded.40 Several sources report that when the decisive naval battle against the Carthaginians at the Aegates Islands came—quite late in the consular year, on 10 March 241—it was the praetor Q. Valerius Falto who was in command.41
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Valerius Falto was prorogued into consular year 241 (he is pro pr. in the Fasti triumphales). This is the first certain instance of a praetorian prorogation we have in our record (leaving aside the mysterious Livius Drusus discussed in 3.7). Like most of the prorogations of the pre-Hannibalic period, it will have been intended for Valerius not to stay in his provincia for an entire additional year but to return at the end of the following summer. And this is what happened. On 4 October 241, C. Lutatius Catulus celebrated a naval triumph “pro cos. de Poeneis ex Sicilia”; Q. Valerius Falto followed him in this two days later, when he “pro pr. ex Sicilia navalem [sc. triumphum] egit.” It will be noted that the triumph was awarded for a victory in his actual magistracy; the praetor must have spent the subsequent five months in Sicily, helping C. Lutatius (and his brother, the cos. 241 Q. Lutatius Cerco) work out the settlement with the Carthaginians and seeing to the establishment of Rome’s first permanent territorial provincia.42 In 242, Q. Valerius Falto was acting de facto in the capacity of C. Lutatius’ restricted consular colleague, A. Postumius Albinus. As it turned out, Valerius also acted in place of the incapacitated C. Lutatius. Valerius Maximus tells of a major dispute before Q. Valerius Falto was allowed his triumph.43 After the Senate voted a triumph to C. Lutatius alone, Q. Valerius Falto brought him to a sponsio. It is impossible to ascertain the ultimate source for this contest as we have it in Valerius Maximus. It is unlikely to have survived in direct tradition, and may have been largely a later invention. Nevertheless, it is a clever story, and may contain some authentic details. As Valerius Maximus has it, Q. Valerius Falto did not want to deprive Lutatius of his triumph, only join him in the honor. The actual sponsio proposed by Valerius was whether the enemy had been defeated “under his own leadership” (“suo ductu”)—a wording carefully chosen to bypass the legal issue of auspicia. C. Lutatius, for his part, seems to have maintained that a praetor serving with a consul was not entitled to a triumph, since he was subordinate to the consul (“ne in honore triumphi minor potestas maiori aequaretur”). What Lutatius cannot have argued is that a praetor held a qualitatively inferior form of imperium and had no right to a triumph at all: the praetor was a colleague of the consuls, created under the same auspicia. That this was in fact not his argument is clear from the mention of minor and maior potestas. In the field, the potestas (and thus imperium) of a praetor is only minor in relation to that of the consul when they are in the same provincia.44 A most interesting detail of this sponsio is the notice of the judge whom the two parties found mutually acceptable: A. Atilius Calatinus, cos. 258, II 254, and pr. 257. The choice of Calatinus surely was not random. He was not only a distinguished consular,45 but also the only man alive at that time who could claim to have celebrated a triumph as praetor—albeit for successes gained in a consulship. There was simply no other man in Rome so well qualified to judge this sponsio. Atilius, as the story goes, would have none of Valerius’ terms (which, if accepted, would mean that the sponsio would have to be decided in his favor). Atilius instead steered the contest back to the legal issue: whether a praetor who was a colleague of a consul in the same provincia was not acting under the imperium and auspicia of the consul. Valerius Maximus states that the dispute was decided in
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favor of the consul C. Lutatius. Yet the Fasti triumphales report that the two celebrated triumphs two days apart. The praetor must have received his triumph by special dispensation.46 In whatever way the Senate justified Falto’s triumph, it cannot have been that he held delegated consular auspicia.47 If this were true, we would expect actual delegatees to use Falto as a precedent in the later period. More likely, a fiction was introduced that the infirm consul won the battle, but was technically “absent” from his provincia at the moment of the praetor’s victory. The case of L. Furius Purpurio’s triumph in 200 (discussed in 8.3.3) offers a parallel—but in this latter case the consul was indeed physically absent from his provincia, and, after discussion, completely excluded from the triumph. Unlike the notice of Q. Publilius Philo in the Fasti triumphales for 326, who triumphed “primus pro consule,” there is no special annotation for Q. Valerius in the Fasti such as “primus pro praetore,” even though he must have been the first to celebrate a triumph as a prorogued praetor. We can surmise that after Q. Publilius Philo’s landmark triumph, and after nine (or more) men in the period down to 241 had also triumphed as promagistrates, a triumph pro praetore was not deemed especially significant by the compilers of these Fasti.
4.2 The Creation of the Praetor Inter Peregrinos We possess only three sources—all unsatisfactory—that mention the decision to add this second praetor: the Livian Periochae, Lydus De Magistratibus, and the epitome of Pomponius found in the Digest. The epitomator of Livy (in his Periocha for Book 19), after mentioning the fine exacted from Claudia (the sister of P. Claudius Pulcher, cos. 249) in 246,48 notes only that “two praetors were then created for the first time” (“duo praetores tunc primum creati sunt”). The religious prohibition placed on A. Postumius Albinus then follows in the narrative (clearly a domestic affair of early 242). It is unclear from this bald summary whether Livy presented the creation of the second praetor as prior to 242, or (just possibly) in conjunction with the events of that year. But “tunc”—a very emphatic and precise term—probably excludes its attachment to the religious dispute of 242. The account of the development of the praetorship found in Lydus De Magistratibus49 is more expansive, but must be used with caution. Lydus purports to offer a precise date for the creation of the second praetor: In the two hundred and sixty-third year a second praetor was elected, the so-called “urban” praetor, that is, concerned with citizen affairs, and the peregrine praetor, that is to say, giving justice to foreigners (oJ legovmeno~ oujrbanov~—ajnti; tou` politikov~—kai; oJ legovmeno~ peregri`no~, oiJonei; xenodovkh~). When the People had been divided into four classes, and thirty-five tribes, three additional praetors were added to the aforementioned.
Later,50 Lydus remarks, “In the two hundred sixty-third year of the consuls a second praetor was introduced, so as to be an arbiter for foreigners (w{ste toi`~ xevnoi~ diaita`n).”
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Lydus’ chronology is, as often, confusing. The “two hundred sixty-third year of the consuls” can be reckoned either as 247, counting from 510, the year in which Lydus seems to believe consuls were first created,51 or 244, counting back from the next event Lydus dates by “consular years”, the dictatorships of 217 (“the ninetieth year of the consuls”).52 Nevertheless, it is interesting to note that the Periocha and Lydus both imply that the praetor inter peregrinos was created before 242. Lydus also states that the designations oujrbanov~ and peregri`no~ (= inter peregrinos) were introduced together, which may well be accurate. Lydus, however, becomes quite confused when relating what seems to be the addition of the Sicilian and Sardinian praetors: his mention of the creation of three additional praetors in or subsequent to 241 (“when the People had been divided into four classes and thirty-five tribes”) would mean an impossible total of five. Pomponius’ epitomator attempts to supply a reason for the creation of the second praetor. He states that, after the introduction of his praetor “urbanus”, “some years thereafter that single praetor became insufficient, because a great crowd of foreigners (peregrini) had come into that civitas as well, and so another praetor was established, who got the name “peregrinus,” because he mainly exercised jurisdiction as between foreigners (quod plerumque inter peregrinos ius dicebat).”53 Modern scholars54 usually have followed this interpretation, though it has all the signs of a guess. The actual phrase invariably found in Republican inscriptions is “praetor qui inter peregrinos ius dicit” (or similar).55 The notion of a praetor specifically created to hear mostly cases in which both parties were noncitizens is absurd56 The evidence of the XII Tables shows that, from an early time, peregrines (at least those with commercium) had access in some form to Roman law.57 If the original jurisdiction of this praetor was to deal with law cases in Rome involving conflicts of interest between citizens and noncitizens,58 one logically would expect a “praetor inter cives et peregrinos,” which was indeed the official titulature under the Empire.59 Yet in the mid-third century that task would hardly have been so onerous that it could not be performed by the original praetor. It is best to abandon Pomponius’ rationalizing explanation. Mommsen’s view was that the Romans introduced a second praetor in response to the crisis that resulted from the restriction placed on A. Postumius Albinus in 242 (i.e., starting for 241).60 Prima facie, this is a good hypothesis. But there may have been more to the creation of the second praetor than the unusual circumstances of 242. As we have seen, the praetor had to serve in Sicily (at least) in the years 260 and 257. The Roman decision after Camarina in 249 to abstain totally from naval warfare (for six whole years, as it turned out) may have forced this magistrate’s defensive role to expand. The praetor was now regularly the only holder of imperium for all Italy during the campaigning season (and perhaps beyond); and there was now no real obstacle to prevent Carthaginian ships from crossing over to Italy on raids. In 248, the praetor was needed to ward off the Punic general Carthalo, who was threatening the Italian coast in an effort to draw the Roman consuls of the year from west Sicily (4.1.3). More Carthaginian raids will have followed. Polybius tells us that in 247, Hamilcar Barca devastated the territory of Locri and the Bruttii; then, after establishing himself at the strongpoint of Heircte in west
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Sicily, “he would ravage the coast of Italy as far (north) as Cumae.” The Romans evidently took these incursions seriously, to judge from the establishment of citizen coloniae maritimae in Etruria at “Aefulum” (= ?Pyrgi) and Alsium in 247, at Fregenae two years later, and the founding of a Latin colony at Brundisium in 244.62 It is not too much to suggest that it was the defense needs of Italy in the crisis years of the mid-240s that prompted the Romans to create a second praetor. Even in the later period, the peregrine praetor was marked as a magistrate who could be sent wherever a commander with imperium was needed. Livy sometimes reports the allotment “provincia peregrina et quo senatus censuisset” (8.1.3). The frequent absence of the peregrine praetor from Rome during (especially) the Hannibalic War on special missions—to be discussed in 5.2.5—helps to confirm this interpretation.63 As we have seen, our two sources which offer a chronological indication for the decision to raise the number of praetors—the Periocha and Lydus—seem to imply that it was prior to 242. If this was the case, it is strange, from what we know of later Roman policy, that in 242 it was not the praetor inter peregrinos (strathgo;~ xenikov~, in Dio’s usage) but the urbanus (ajstunovmo~) who accompanied the consul C. Lutatius to command the Roman fleet: strange, but not impossible. Livy64 emphasizes the surprise on the part of A. Postumius Albinus when the pontifex maximus prevented him from proceeding to his consular provincia. The new second praetor already may have gone into the field by the time the unexpected dispute was resolved, with Lutatius and the praetor “urbanus” Q. Valerius Falto setting out for Sicily in early summer.65 It is difficult to see how the Senate could let Valerius leave for the fleet if indeed the Romans had no second praetor. The consul Albinus, now forbidden by the pontifex maximus to take leave from his religious obligations, was perfectly capable of seeing to the praetor’s routine tasks in the city. But at certain times he necessarily faced an impediment which prevented him from going to meet Punic seaborne forces that might land on the coast of Italy. How, then, do we explain the second praetor’s titulature, “inter peregrinos”? The preposition “inter,” of course, can be used in connection with the name of a place. In the phrase “inter sicarios,” it also seems to imply competence over a certain group: a Roman judge was not expected to adjudicate disputes between sicarii!66 Following the treaty with the Carthaginians and the organization of (western) Sicily by the Lutatii Catuli in 241 (4.1.3), the Romans may have used the second praetor—at least in part—as a commander in this new provincia. A Byzantine excerptor of Appian67 reports that after the Carthaginian parts of the island passed into Roman possession, the Romans “imposed tribute on the Sicilians, and having apportioned naval charges among their towns, sent a praetor annually to Sicily (strathgo;n ejthvs ion e[pempon ej~ Sikelivan).” We cannot be absolutely sure from this passage that the Senate immediately sent out a strathgo;~ ejthvs io~, a holder of (praetorian) imperium. Appian himself was abbreviating his source, as he always does, and he may be referring only to the ultimate decision about Sicily (around thirteen years later), not to instantaneous action, thus finishing off his story. And the excerptor may well abbreviate what does not closely concern him: if Appian did not say that this was the ultimate settlement of the provincia, the excerptor need not have bothered to be so precise.
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However, Appian was a procurator Augusti under Antoninus Pius,68 and had a particular interest in Roman administrative history. His statement on Sicily is not an isolated notice, but one of a series of remarks in which he explains a Roman administrative practice. There is an exact parallel for this passage in his account of the arrangements of the ten senatorial legati sent to Africa in 146: “They imposed a tribute . . . and decided to send a praetor annually (strathgo;n ejthvs ion) from Rome.” Although it is true that the Senate did not actually create a new praetor at this time, Appian is correct in that, from this point, a praetor did go as a regular commander to this province.69 He also mentions the Roman decision to send out strathgoi; ejthvs ioi (actually, privati cum imperio) to Spain, which he correctly dates to ca. 206;70 in the Mithridatica he notes that at his time of writing (the Antonine period) the Senate sent a strathgo;~ ejthvs io~ (in fact, a pro consule) to Pontus and Bithynia.71 Appian is not always accurate in reporting Roman administrative details.72 Nevertheless, it would be surprising if Sicily did not receive a regular Roman magistrate in (or soon after) 241. Since the main issue of the First Punic War was the dominion of this island, it is not too much to suppose that the Romans, once they achieved victory in this war, specifically charged a magistrate to protect and maintain this hard-won possession. Sicily was in fact the first permanent Roman provincia.73 A provincia certainly requires a magistrate (or promagistrate) to fill it, but need not call for imperium: there are ample references to quaestorian provinciae.74 However, the declaration of Sicily as a provincia after the First Punic War should be synonomous with the sending of a magistrate. It is unfortunate that we cannot ascertain exactly when the Romans first sent a quaestor to Lilybaeum—and whether it was one of the quaestors they already had, or after setting up two more.75 Mommsen speculated that one of the quaestors was sent to Lilybaeum to serve as the governor of (western) Sicily in the first years following the creation of the new provincia; the view that a quaestor was the original commander in Sicily still finds support.76 The quaestor at Lilybaeum must be early, and it would not be surprising if he dated back to the start of the provincia. But the one piece of evidence we do have, the Appian passage, suggests that it was not a quaestor (alone) but a praetor who first went to command in Sicily. Can he have been the second praetor, created in the 240s? Early on, J. Marquardt dismissed the report of the Appian Sicelica passage as erroneous, arguing that no praetor was designated specifically for Sicily until the number of these magistrates was raised from two to four in the early 220s (on which see 4.3.2).77 Nevertheless, Marquardt suggests that, after the settlement of 241, a holder of imperium was indeed sent to Sicily: “[W]e know nothing of the earliest administration of the province, and can only suppose that it was under one of the two city praetors or under a governor chosen extraordinarily by the People.” Marquardt’s conjecture that a privatus cum imperio served as a governor of Sicily finds no parallel in this era, and it safely can be dismissed. His other conjecture implies that there were already two praetors and that one (indeed, either) of them may have been stationed in Sicily. More recently, D. Kienast has emphasized the improbability that Rome would fight a tough twenty-three-year war for Sicily and then, after the peace settlement, simply leave it be. Kienast has suggested a con-
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tinuous Roman military presence starting in 241. Either a pro praetore (following Marquardt) commanded these troops, or “as later in the Second Punic War, the duae provinciae urbanae were combined, and the praetor peregrinus was sent to Sicily.”78 This latter hypothesis—which actually has a long pedigree79—comes close to what must be the proper explanation for the Sicilian commander. It must be emphasized (contra Kienast) that there is no evidence for a centrally levied army for the provincia at this time. The most likely scenario is that the praetor in Sicily commanded a small fleet and perhaps a few cohorts of socii, acting in concert with the Lilybaeum quaestor to protect the coastal parts of the provincia from pirates, and to see to the collection of taxes from those in the exPunic part of Sicily who were liable to them. The Carthaginians had their own problems at this time (see 4.3.1), and were unlikely to threaten the island—at least in the short term. Of course, the Romans hardly would have dispatched the original praetor (now termed praetor urbanus) as a regular governor of Sicily. The Faliscan war broke out shortly after the signing of the treaty with the Carthaginians in 241. This war, though shortlived, was serious enough to result in triumphs for both the consuls of that year.80 The Faliscan war would have driven home the point that it was inadvisable to have any of the three traditional holders of imperium routinely tied to the day-to-day administration of an overseas provincia. Yet if the new praetor received Sicily as his normal provincia, this might account for his title, as he would have been sent quite literally inter peregrinos. (Kienast’s hypothesis, which makes the Sicilian commander a reassigned city praetor, does not explain the titulature.) Below (4.3.1) we shall discuss a particularly striking case from the year 234, when the urban praetor was forced to travel to Sardinia to put down a rebellion, even though we know that there were no wars at the time other than in the two consular provinciae (the Ligurians and the Corsi). The praetor inter peregrinos can have been in no place other than Sicily.
4.3 The Praetorship between the First and Second Punic Wars 4.3.1 The Roman Acquisition and Conquest of Sardinia and Corsica The peace agreement of 241 in which Sicily was ceded to the Romans did not mention Sardinia or Corsica.81 Nonetheless, there is a Roman annalistic tradition which supports a Roman claim to Sardinia on the basis of a clause in this treaty which gave over “the islands between Italy and Sicily.”82 It seems unlikely (in view of Polybius’ silence) that the Romans demanded Sardinia and Corsica immediately after the conclusion of the First Punic War, falsely representing these (large) islands as having been surrendered by the Carthaginians in the peace settlement. But it is perfectly possible that this was a later apologia for the unscrupulous seizure which in fact took place.83 Rome acquired Sardinia when the Carthaginians, at the conclusion of their hard-fought Mercenary War, were blackmailed—by a series of Roman actions just short of a declaration of war—into renouncing their possession of the island.84 The
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Augustan antiquarian Sinnius Capito went so far as to state that the consul of 238, Ti. Sempronius Gracchus, “subdued” Sardinia and Corsica and filled Rome with so many captives that they had to be sold at knock-down prices.85 That the Romans conducted manoeuvres on Sardinia and Corsica in order to force the Carthaginians’ hand is unlikely and unrecorded, except for Sinnius Capito’s absurd story of “Sardinians on sale” (‘Sardi venales’). A major campaign on Sardinia and Corsica is precluded by Zonaras’ statement that Rome gained control of Sardinia without having to fight (ajmaceiv),86 and perhaps the fact that Gracchus was not awarded a triumph. Summer 237 is the most probable date of the formal agreement in which the Carthaginians ceded Sardinia.87 The Carthaginians may have given up their possession of Corsica at the same time as they left Sardinia, even though it was not required of them in the terms which the Romans extorted.88 Corsica was a particularly wild place, and the Carthaginians perhaps thought that their resources were better applied to the conquest of Spain, which Hamilcar started in autumn 237.89 There would have been little profit in maintaining this sole outpost in the Tyrrhenian Sea, especially now that the Romans looked across at them from Sardinia. There is no trace in our sources of a permanent Carthaginian force on Corsica once Roman operations start on that island in 236. The unruly tribes of Sardinia and Corsica—or, at the least, those inhabiting coastal areas—had to be subdued before the Romans could declare these islands a regular provincia. The Romans first attempted to assert their control over Corsica. This was no doubt the more difficult island to subjugate. There was never in this period—or any subsequent period, as far as our information goes—a proper triumph de Corsis granted by the Senate.90 The Romans started campaigning on Corsica in 236, with mixed results. The consul C. Licinius Varus, who had received the Boii (i.e., Gaul) as his initial provincia, on the conclusion of this war sent an advance force to Corsica under a M. Claudius Clineas. No title is preserved. Claudius is unlikely to have been more than a military tribune, or at most, a praefectus appointed by the consul. M. Claudius made an unauthorized treaty with the Corsi, for which he was later handed over to them—and handed back.91 After M. Claudius had made his unsanctioned terms, C. Licinius Varus crossed from Italy and campaigned against the Corsi with some success.92 By the next year, 235, it may well have been thought that Sardinia and Corsica were firmly in hand. When the consul T. Manlius Torquatus gained a triumph for successes in Sardinia, the Romans went so far as to close the temple of Ianus Geminus, signifying that “all peoples round about had been subdued.” This had not happened (so tradition has it) since Numa Pompilius, and would not occur again until Octavian’s victory at Actium.93 Zonaras reports, however, that in 234, Carthaginian agitation in Sardinia and Corsica and a simultaneous rising of the Ligures prompted the Romans “to divide their forces into three parts.” They sent the praetor urbanus (to;n ajstunovmon) P. Cornelius and the consul Sp. Carvilius Maximus to Sardinia and Corsica respectively, while Carvilius’ consular colleague L. Postumius Albinus fought in Liguria. The urban praetor P. Cornelius died during the campaigning season, a victim of
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Sardinia’s unhealthy climate. Sp. Carvilius was forced to cross over from Corsica; he earned a triumph de Sardeis for his successes on this island.94 Where was the praetor inter peregrinos during this year? He was not away fighting, as is clear from Zonaras’ statement that the Romans had divided their force into (merely) three. He could not be left in charge in Rome while the praetor urbanus was sent overseas (this would be absurd, and it occurs only once in our entire period).95 One can think only of Sicily, where he would not rate a mention in Zonaras’ account of this year. The situation is not all that different from our reconstruction of the events of 242. A major uprising in Sardinia and Corsica was surely a surprise, especially straight after Torquatus’ triumph and the closing of the temple of Ianus. Since the peregrine praetor was already committed to serve in Sicily, and may even have set out for his command by the time of the military emergency of 234, it was necessary for the praetor urbanus to proceed to a special provincia. As usual, we have no indication in our sources how affairs in the city were managed in the absence of the consuls and urban praetor. This is yet another instance in which we may suppose that a praefectus urbi was appointed. As matters turned out, the Romans had to declare Sardinia and Corsica consular provinciae for the next three years before they finally could bring these islands under control, in 231.96 4.3.2 The Creation of Sicily and Sardinia as Praetorian Provinciae At some point in the early 220s, it was decided to create two additional praetors, to serve as regular commanders in Sicily and Sardinia. No source gives us the precise date or motivation for this decision. The consensus among scholars has long been that the Senate resolved to increase the number of praetors from two to four in 228 (for 227).97 Now, in Periocha 20, the compiler summarizes Livy’s report of the murder of the envoy which led to the Roman declaration of war on the Illyrians in consular year 230 (“bellum . . . indictum est”)98 and Livy’s narrative of the war itself in 229 (“subacti . . . in deditionem venerunt”). Then comes the notice of the increase in praetors, followed by the defeat of the Transalpine Gauls in 225. War was declared against the Illyrians on account of the murder of one of the envoys who had been dispatched to them, and they were subdued and received in surrender. The number of praetors was enlarged to four. Transalpine Gauls who had made an incursion into Italy were cut to pieces.
Where we can check, the author of the Periochae generally follows the sequence of the Livian narrative in his notices pertaining to changes affecting Rome’s magistracies.99 Since the Periocha always seems to put res domi before res militiae, the year 229 should be excluded for this development, leaving each of the years down through 225 as possibilities for the creation of the Sicilian and Sardinian praetors. Two other literary sources contribute some useful details regarding the dispatch of special praetors to Sicily and Sardinia. Solinus confirms that the two new
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praetorships were created at the same time, and that a M. Valerius obtained Sardinia, while C. Flaminius (tr. pl. 232, cos. 223 and II 217) received Sicily. This seems to be good information; Livy provides independent confirmation of C. Flaminius’ praetorship in Sicily.100 Zonaras relates that there was trouble in Sardinia following the sending of regular praetors. After describing an event of the year 228, Zonaras says, “The Sardinians revolted, indignant at the fact that a Roman praetor had been established regularly for them (strathgo;~ ÔRwmaivwn ajeiv kaqeisthvkei aujtoi`~); but once again they were enslaved.”101 De Sanctis tentatively dates this revolt to 226;102 however, to judge from its position in Zonaras’ narrative, it can have taken place anywhere in the period 228 through early 225. What Zonaras (or Dio) seems to say (in badly expressed form) is that the rebellion was because of the appointment of an annual praetor—which the Sardinians would presumably at once hear about—not that several had already been there. The epitomator of Pomponius’ Encheiridion also mentions the creation of praetors for Sicily and Sardinia in his sketch of how the Flavian total of eighteen praetors came about, but his account is quite confused. After his discussion of the introduction of the praetor urbanus and the praetor inter peregrinos, we find the statement, The annexation of Sardinia and soon afterward of Sicily and in due course of Spain and finally of the province of Narbonensis brought the creation of as many praetors as there were provinces that had come under Roman rule, some of these praetors presiding over the affairs of the city, others over provincial affairs. Then, Cornelius Sulla set up criminal courts . . . and he added four further praetors.103
The passage is basically worthless for our investigation.104 On reflection, the great Roman expedition to the east in 229 must have some relevance to the problem of the decision to create two new praetors. In spring of that year,105 the Romans had to send both consuls to Illyria with a massive force (allegedly 20,000 infantry, 2,000 cavalry, and 200 ships).106 There was no telling at the beginning of the consular year exactly how long this campaign would take. According to Polybius, the military aspect of the First Illyrian War was concluded relatively quickly, within consular year 229 (i.e., before 30 April 228).107 Peace was made in spring 228 (i.e., before the end of consular 229 or at the start of consular 228), the triumph of the pro cos. Cn. Fulvius Centumalus coming in June, as the Fasti triumphales show. The Romans saw fit to return two successful triumphatores as iterated consuls for the year 228: Sp. Carvilius Maximus, who had triumphed de Sardeis in 234, and Q. Fabius Maximus Verrucosus, who had celebrated a triumph de Liguribus as consul in 233. Consular iterations within such a short space of time were by no means frequent in the period following the First Punic War.108 There had been no example of two consulars iterating in the same year since 248 (only one triumphalis), and the situation would recur only once before the Hannibalic War, in 224 (again both triumphatores), during a Gallic war. It is a bit difficult to account for the choice of two triumphales viri as coss. 228 on the facts we have (we do not know the consular provinciae for that year).109 The victory over the Illyrians in 229 may have come very
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late in the consular year, or perhaps did not seem as complete at the time as it does in retrospect (or did to Polybius). Alternately, the Senate may have anticipated one or more emergencies outside of Illyria for 228. There is some (indirect) evidence for strong Roman fears about its northern frontier precisely at this time.110 The Illyrian emergency of 229 exposed the Roman vulnerability in Sardinia and Corsica. It is true that Sardinia at the time of the expedition was thoroughly pacified, and Corsica alone might be thought not to matter all that much compared to the Illyrian crisis. We have no evidence that either island actually rose up in arms at the time of this war—yet an important lesson had been learned. Had there been serious trouble in Sardinia in 229, it would have meant a return to the unacceptable situation of 234, when there was no magistrate who could go to the island other than the praetor urbanus. The election of two iterated consuls for 228 (one of whom had recently triumphed over the Sardinians) amply indicates the perceived military danger of the time. The Romans soon took a major and (in this form) unprecedented step to avoid surprises such as that of 234. Two new praetors were created, one each for Sicily and Sardinia. The chronology of Periocha 20, taken in combination with Dio/Zonaras, suggests that the Senate made this move, at the earliest, in 228 (i.e., with the regular provision of four praetors starting in 227). And that is where I would place this decision, in view of the likely connection with the events of the Illyrian war. It has been suggested that the Sicilian praetor was modeled on the Sardinian one.111 In a strict sense, this may be true, though the precise situation is a bit more complex. Though Sardinia had its agricultural value (see 6.1), it was foremost a military provincia, with major battles almost every year in the latter half of the 230s; at the time of the First Illyrian War, it stood very much in need of a permanent commander. As I have suggested, the praetor inter peregrinos had already been going to Sicily (in what was essentially an ad hoc arrangement) for more than a decade, which effectively kept the island under control. That use of the peregrine praetor will have been the immediate inspiration for dedicating a regular praetor to Sardinia. In general, at all stages of the Republic, magistrates (like tribes) were increased in even numbers.112 And so the Romans, when giving Sardinia its praetor, decided to create a permanent commander for Sicily as well. The new arrangement of a permanent praetor for Sardinia and Corsica did not immediately achieve its desired effect. In 225, the consul C. Atilius Regulus had to receive Sardinia as his provincia, even though a Gallic tumultus was expected.113 Atilius was soon recalled to face the Gauls in Etruria, sometime (surely) in summer 225.114 But in his few months on Sardinia or Corsica he must have snuffed out what there was in the way of a revolt; these islands were not again declared a consular provincia until 177. F. W. Walbank115 is unconvincing in his suggestion that Atilius was sent to Sardinia to guard against a possible Punic attack. There is no evidence that Hasdrubal, who at the time was busy consolidating Punic power on the Spanish mainland, commanded a large fleet: note that the Roman agreement with him in 226/225 contained no naval clause.116 Sicily and Tarentum each received a legion in 225.117 Although Sicily was of course conceivably open to a Carthaginian naval attack, the legion at Tarentum was surely to cover the Illyrian coast against new trouble.
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4.3.3 Implications of Four Praetors for the Roman Political and Administrative System The increase of the total number of praetors from two to four was one of the most important decisions in the history of Roman magistracies. Among other things, it changed the relationship of the praetorship to the consulship in the career path. This doubling of the number of praetors—an increase by fifty percent in the number of holders of imperium—removed the numerical coordination of the praetorship to the consulship. This innovation immediately transformed the social nature of the office. In the days when there was only one praetor, the office, when held, could—and did—either precede or follow the consulship. Sometimes the office was held even in the year directly after one’s consulship. This may have been viewed (as I argued at 3.6.1) as an alternative to prorogation: the magistrate would hold only praetorian imperium, but he could have it for the entire year, not just six months. The addition of a second praetor in the mid-240s had made it likely that the praetorship would precede the consulship in the normal career pattern. When the number was raised to four for 227, this pattern became almost inevitable. After this addition, it would be quite exceptional for an ex-consul to serve as praetor. In fact, there is no attested instance of a consular as praetor after the emergency of the first few years of the Hannibalic War. What is more, starting in 227, those who held the praetorship cannot have expected automatically to reach the consulship. We know little of the prior careers of the consuls of the decade before the start of the Second Punic War. But in the mid-220s, we begin to see consuls who come to the office through the praetorship: certainly C. Flaminius, cos. 223; M. Claudius Marcellus, cos. 222; and M. Valerius Laevinus, cos. 220.118 A neglected inscription from Nemi suggests the possibility that M. Livius Salinator (cos. 219) also rose to the consulship through the praetorship (see Additional Note III). It would not be rash to surmise from this fragmentary evidence that at least one consul per year in the period 223–219 had held the praetorship prior to the consulship. This stands to reason: in normal conditions, ex-praetors who were successful in the office will have had a better chance than nonpraetors of reaching the top office. The outbreak of the Hannibalic War, however, disrupted this emerging career pattern. It is not until 204 that we find two attested ex-praetors as consular colleagues, both holding the consulship for the first time. Some related developments deserve comment. It must have been the conditions of the First Punic War and then the introduction of the overseas provincia of Sicily which forced the Romans to accept the convenient expedient of “automatic” prorogation, by which a man continued in his command into the next administrative year until succeeded,119 with (surely) no special approval on the part of the People or Plebs (as was necessary, at least originally, with regular prorogation). Soon after 227, the Romans also may have decided that the term of prorogation henceforth should always be a full year. There is no evidence, of course, for the actual decision. But this will have been a natural consequence of the fact that standing commands had been established in overseas provinciae. It is unlikely that the Senate—which now saw Rome well provided with magistrates for routine fighting and administration—would have to make much use of prorogation of praetors
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in the period down to the start of the Hannibalic War. But the decision to set the term of such extensions at a year—for consuls and praetors alike—already may have been made in principle, before the need actually arose. In sum, the decision of 228 to double the number of praetors corresponds in importance to a decision we shall discuss at length at 9.3, the Senate’s resolve in 146 not to add more praetors.
4.3.4 The Praetor Inter Peregrinos after 227 Once the number of praetors was increased to four, the praetor inter peregrinos will have shed his primary role (according to my hypothesis) of overseas provincial governor, and was once again free to be deployed wherever he was needed. Nevertheless, the title “inter peregrinos” was retained. There are only two instances in the decade before the Second Punic War when we can posit the location of what must be the peregrine praetor, and both times it is outside of Rome. Once Livy’s account comes to our aid, we can see that this was almost invariably the case for the two decades 218–198. Throughout the Hannibalic War, and down into the early years of the second century the peregrine praetor regularly fought outside of Italy, namely in “Gallia.”120 The near-continual service of this magistrate beyond the Po in the years 219–198 must have ensured the persistence of the title “inter peregrinos.” In 225, when the Romans had heard that the Gallic Gaesatae had crossed the Alps, they sent the consul L. Aemilius Papus with an army to Ariminum and, since the other consul C. Atilius Regulus was then engaged in Sardinia, “one of the praetors” to Etruria.121 This unnamed praetor received the command of a large allied contingent and, in an effort to check the Gauls’ advance on Rome, took a position at the northern frontier of Etruria.122 Polybius’ statement (probably from Fabius Pictor) that this force consisted of fifty thousand infantry and four thousand cavalry—an army equal in size to that commanded by both consuls, excepting the socii—must be the “paper strength” of the forces at Rome’s disposal at that time, not the actual forces sent.123 The numbers are not pure exaggeration124 but rather a combination of theory and particular facts—as throughout Polybius’ report on the Roman manpower for the year 225. All the same, the praetor soon fell into a trap at Faesulae, and suffered a significant defeat; the consuls L. Aemilius and C. Atilius (now back from Sardinia) had to stop the Gallic advance and retrieve the loss.125 The hapless praetor should be the praetor inter peregrinos: we would expect that the urban praetor remained behind in Rome, in charge of a reserve force of (reportedly) four Roman legions, with allied supplements.126 The reserve legion in Sicily in this year (according to Polybius, 4,200 infantry and 200 horse)127 would have been under the command of a third praetor, whether the regular governor for that year, or of the previous year (i.e., with prorogation of imperium). The command of the legion in Tarentum mentioned by Polybius in this same passage is less certain. We should perhaps assume an instance of delegation of praetorian imperium by the consul L. Aemilius Papus before he set out to Ariminum, or possibly prorogation (here or somewhere else) of a praetor of 226.
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In each of the years 224 through 220, both consuls operated in the area north of the Po.128 The praetor inter peregrinos may have accompanied the consuls in these campaigns as a helper (adiutor), but there is of course too little evidence to allow even conjecture. In 219, when the consuls L. Aemilius Paullus and M. Livius Salinator campaigned against Demetrius of Pharos in Illyria,129 the Senate seems to have entrusted Gaul to a praetor, L. Manlius Vulso.130 The evidence for the date and provincia of his praetorship is provided by Livy’s notice (in his account of the events of 217) of the letting of a contract for a “temple of Concordia, which in the midst of a mutiny two years earlier L. Manlius had vowed as praetor in Gaul.”131 Livy must be referring to an incident he related (or should have related) in Book 20, and now lost to us. Not only does Livy give a precise chronological indication (“biennio ante”),132 but also the retrospective mention of a mutiny corresponds to nothing we know from the extant portions of his narrative.133 The fact that a temple of Concordia is being vowed may indicate that this mutiny was not a petty incident. The ever-volatile situation in Gaul will have required a holder of imperium to safeguard the substantial Roman advances of the past five years. L. Manlius’ praetorian province may well have been “peregrina cum Gallia,” an allotment attested in the Hannibalic period.134 Manlius’ special task in 219 probably was to make safe the area around Placentia and Cremona, in anticipation of the establishment of colonies there. The actual colonial commission (or commissions) seems to have been sent prior to 218, although the two colonies dated their foundation to that year.135 L. Manlius shows up in Gaul also in 218. In early summer of that year,136 the Boii attacked Placentia and Cremona and made prisoners of a Roman embassy consisting of C. Lutatius Catulus (cos. 220) and two (unnamed) ex-praetors near Mutina.137 L. Manlius was already in the area,138 and attempted to aid the envoys and the garrison at Mutina, but fell into an ambush and was himself besieged at Tannetum.139 When news of his predicament reached Rome, the consul P. Cornelius Scipio ordered the man who must be the peregrine praetor, C. Atilius, to take his own recently levied consular army and bring aid to Manlius. This task Atilius was able to accomplish without fighting.140 Both L. Manlius and C. Atilius remained in Gaul until the consul Scipio relieved them, sending them back to Rome on the grounds that they were no longer needed.141 Yet C. Atilius was back in this provincia before the end of the year, presumably with the consul Ti. Sempronius Longus, after the battle at Trebia and the consular elections. Livy reports that one of the new consuls for 217, C. Flaminius, received legions from Ti. Sempronius and C. Atilius at Placentia.142 L. Manlius must have been pro praetore in 218. The fact that L. Manlius is consistently called “praetor” in Livy and eJxapevleku~ in Polybius in their accounts of that year is not an obstacle to our supposing he was a prorogued magistrate.143 In Livy’s account of the provincial arrangements for 218, the statement that “the praetor L. Manlius . . . was designated for Gaul (L. Manlius praetor . . . in Galliam mittebatur) with a formidable army” should refer to a prorogation of the praetor’s imperium.144
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It is instructive to examine the movements of these early peregrine praetors. Sparse as our evidence may be, it militates against the traditional view that legal concerns led to the creation of this magistrate. One wonders how individual peregrine praetors in the third century would have the time to hear a sufficient number of cases “inter (cives et) peregrinos” in Rome to develop—as many postulate (5.6.3–4)—any procedure parallel to the civil law. True, as governors in Sicily in the years 241 down through 228, the praetors inter peregrinos occasionally will have encountered legal conflicts between Romans and noncitizens. After 227, the peregrine praetor was back on the Italian mainland; the urban praetor may have relegated to him cases of this sort when he was available in Rome. But long stays in the city were probably rare. We see that the peregrine praetor saw action as a commander in Gaul in the decade 227–218. We shall soon discover (5.2.5) that the peregrine praetor is found outside Rome in almost every year in the period down to 198. The peregrine praetor cannot have started shaping Roman law until sometime into the second century.
5
The City Praetorships, 218–122
Livy in Books 21–45 gives us a relatively full picture of activities in the urban and (to a lesser extent) peregrine provinciae. However, we possess only scattered information on the urban and peregrine praetors of the years 165–122. The identities of little more than a dozen city praetors are known for this period, only one of whom (Cn. Cornelius Scipio Hispanus, pr. 139) is specifically attested as praetor inter peregrinos. It is therefore nearly impossible to attempt to sketch developments in these two provinciae for these particular years. In treating these two praetorian provinciae, I would like to offer first (5.1) an overview of their titulature and relative status, necessarily drawing on sources from the entire Republican period (and also a bit beyond). What then follows (5.2–3) is an examination of some of the most important major developments affecting these provinciae. In the remainder of the chapter (5.4–6), I attempt to reconstruct some of the “normal” functions of the city praetors in the period 218–122, focussing on what differences—if any—we can discern in their respective competences.
5.1 General Characteristics of the City Praetors 5.1.1 Titulature Livy in his regular reports of the annual praetorian sortition repeatedly emphasizes the legal function of the praetor urbanus and praetor inter peregrinos.1 The provincia of the urban praetor is frequently called a “jurisdiction” and the like;2 when describing the allotment of the urban and peregrine provinciae, Livy notes that praetors received these “to administer law at Rome” (“ut ius dicerent Romae”).3 This author, however, is less consistent in his formulation of the actual titulature of the urban and peregrine praetors. Consider Livy on the provincia peregrina in the years 197 to 166. He first introduces the official Republican title inter peregrinos only for 189, when one man (apparently) received a combined lot urbana et inter peregrinos, only to have that changed when the Senate forced the praetor allotted 98
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Sardinia, the flamen Quirinalis Q. Fabius Pictor, “ut ius inter peregrinos diceret.”4 Though the title “inter peregrinos” then sporadically reappears in Livy’s narrative,5 it is mixed indiscriminately with other variants. For example, the same praetor in 168 is said to hold “inter peregrinos iurisdictio,” but also “ius dicere Romae . . . inter cives et peregrinos.”6 Likewise in 167, Livy speaks of the lot “inter peregrinos,” but slightly later of the praetor “cuius inter cives et peregrinos iurisdictio erat.”7 Nevertheless, the official Republican title appears more frequently than the Augustan description “inter cives et peregrinos,”8 but much less than the simple iurisdictio or provincia peregrina (a popular title?).9 In the fifth decade, Livy, when describing the sortition, twice refers to the “two urban provinces (duae urbanae provinciae),” with no further specification.10 Inaccuracies such as these make a study of the development of the praetorship quite difficult. Additional evidence on the titulature of the urban and peregrine praetors is not all that plentiful for this period. According to Livy, the Marcian oracle in 213 (5.2.2) stipulated that the presidency of the new Ludi Apollinares should go to “the praetor who shall give the highest law to the People and Plebs (iis ludis praeerit praetor is qui ius populo plebeique dabit summum).” There is no parallel for this particular designation of the urban praetor. This alliterative phrase may be simply a literary creation, perhaps by an annalist; the phrasing of the “oracle” is unlikely to reflect actual technical language.11 The earliest reliably attested title for this praetor is simply “praetor urbanus,” first found in 186, in the S.C. de Bacchanalibus.12 In inscriptions, the Greek equivalent is strathgo;~ kata; dh`mon13 or strathgo;~ kata; povlin.14 In the epigraphic agrarian law of 111, we first find the further qualification “quei inter ceives (tum) Romae ious deicet.”15 For the peregrine praetor, the designation “praetor qui inter peregrinos ius dicit” (or similar) is invariable in the Republican period, but we first find it rather late: the earliest epigraphic attestation of the full phrase is ca. 120, in the Gracchan repetundae law.16 The Greek equivalent in official documents is strathgo;~ ejpi; xevnwn (or similar).17 The titles of the two city praetors are first found in collocation in a Greek language document of 94, a treaty with Thyrrheum in Acarnania, where the date is given by the names of the consuls of the year in addition to the names of the praetors in the urban and peregrine jurisdictions.18 There is also an inscription of 78, the bilingual S.C. de Asclepiade, where the date is indicated by the names of the consuls as well as that of the (joint) urban and peregrine praetor, L. Cornelius Sisenna.19 The collocation of the titles of the two city praetors is first preserved in Latin in an inscription of 45, the so-called Lex Iulia municipalis.20 We simply do not have enough information to know for certain how the designation “praetor urbanus” first came about. The title should be somehow connected with this praetor’s basic (though never total) restriction to Rome. Now, the epitomator of Pomponius’ Encheiridion implies that, from the start, the original praetor was called “urbanus,” “because he exercised jurisdiction within the city.”21 We have seen this particular explanation is simply a post eventum conjecture, or derived from the account of Livy, who retrojects the practice of his own day. Even if the two regular magistrates with imperium were still called “praetores” in 366, why use the adjective “urbanus” to differentiate the new magistrate? This would
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imply that the praetor’s basic restriction to Rome is as old as the mid-fourth century, a view which we have rejected in 3.2.1. The title “urbanus” would make sense only when another praetor was created, the praetor inter peregrinos, intended not to stay in Rome. Lydus in fact seems to have found this explanation in his source.22 In the preceding chapter (4.2), we investigated a possible origin of the title “praetor inter peregrinos.” It was argued that this magistrate was sent literally inter peregrinos, as a commander in the first Roman overseas provincia, Sicily. Yet starting in the Augustan age and through the Imperial period this praetor is known as the “praetor qui inter civis et peregrinos ius dicit.” Livy is perfectly familiar with this title. How did this later title emerge? At some point in the Republican period, this praetor must have assumed competence over conflicts of interest between Roman citizens and noncitizens. This role was natural enough. I have suggested (4.3.4) that as a governor in Sicily in the years 241 down through 228, the praetor inter peregrinos occasionally will have had to hear cases of this sort. But in the years 227–198, the peregrine praetor saw almost constant service in the field, and will have had little or no time to attend to common jurisdiction in the city. It was not until 197, when the Romans further raised the number of praetors to six, that the peregrine praetor could be expected to remain the entire year in Rome. I hope to demonstrate below (5.3.2) that this increase brought about some consequential changes in the Roman administrative system; among other things, it facilitated the development of the peregrine praetor, by the time of the late Republic, into a primarily (though never exclusively) legal magistrate. In Republican inscriptions, we find the official titles “praetor urbanus” and “praetor inter peregrinos” in instances where the names of the city praetors are used to date a document (see above in this section), or in a context in which a specific procedure to be followed is prescribed (e.g., “ad pr(aetorem) urb(anum) . . . profitemino,” of a formal declaration). However, in senatus consulta which are passed and letters which are drafted under the presidency of a praetor, the invariable title—regardless of the praetor’s individual jurisdiction—is simply “praetor,”23 or in Greek, strathgov~24 or strathgo;~ ÔRwmaivwn.25 The simple “praetor” may have been used also for edicts, but we do not know. At any rate, we have a terminatio where the praetor designates himself as such, which is at once followed by an edict.26 This usage may show that in situations when a city praetor acted as chief magistrate in the city (e.g., actions such as presidency of the Senate), he acted qua praetor (i.e., as a colleague of the consul and a holder of imperium) and not qua urban or peregrine praetor. The full titulature of the praetor in such instances is never recorded, since it may have been irrelevant to the task at hand. An alternate explanation is that it was the praetor urbanus who was expected to discharge these tasks,27 and the term “praetor” means “praetor urbanus.” There is abundant evidence, starting with Plautus,28 that the term “praetor” can mean “praetor urbanus,” in nonlegal speech. This is good evidence for what must have been the normal colloquial usage at Rome in the early second century. It is extremely common in Cicero,29 and Livy himself uses it.30 This of course implies that the Romans viewed the holder of the urban jurisdiction as the descendant of the original praetor.
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5.1.2 Relative Status The praetor urbanus was the “senior” praetor: he had general precedence over the peregrine (and we can assume) all other praetors.31 Our record for the entire welldocumented period 218 through 166 demonstrates that the urban praetor was de facto entrusted with the bulk of the important duties in the city. In these particular years, the administrative year started on 15 March. Livy frequently records the departures of consuls for their provinciae (usually immediately after the Latin Festival in May), and the return of (usually) one consul in late winter/early spring to hold consular and praetorian elections for the following year. We have no secure instance of a consul active in the city in midwinter in this whole period. True, in some years of the Hannibalic War consuls returned to Rome during the campaigning season to see to the defense of the city or consult with the Senate (especially in the crisis years 217, 216, and 211). Nevertheless, we perhaps can legitimately assume from Livy’s silence that, while Hannibal was still in Italy, consuls routinely wintered with their armies in the field. Furthermore, if consuls allotted ‘Italia’ after the Second Punic War returned to Rome for the winter, we hear nothing of it in Livy—though it is difficult to see why they would have to stay in Liguria or Gaul through the winter in “quiet” years. Overseas commanders naturally would stay in their provinciae for the entire year. In the absence of his senior colleagues, the praetor urbanus did everything the consuls did as heads of state, except hold the Latin Festival and preside over elections of consuls, praetors, and censors.32 This precedence of the urban praetor continued through the Republic.33 We shall examine the regular civil and military responsibilities of the urban (and peregrine) praetor below (5.4–5.6). Strictly speaking, when it came to acting in the absence of the consuls, a peregrine praetor should have been able to do all that an urban praetor could do and vice versa. The two in fact shared some prerogatives. Only these praetors are found convening the Senate (5.4.1), and, as we have seen, the praetor urbanus and praetor inter peregrinos were later, at least, occasionally included along with the consuls of the year in the prescript of important documents. There also appears to have been a legal requirement for the election of a suffect if the urban or peregrine praetor died in office (early in the year). This appears always to have been so for consuls. So it may also have been for all praetors, suspended only when they were specifically sent to a provincia militiae: we do not find overseas praetores suffecti (Additional Note IV). The stipulation on the election of a suffect, however, was not so strict that the Senate could not find other simple alternatives when an urban praetor died, such as the formal allotment of the provincia urbana to the peregrine praetor.34 Another similarity is that the urban and peregrine provinciae were placed in the sortition each and every year, at least in the Livian period. We never see an urban or peregrine praetor prorogued for a second year to serve in his same (i.e., city) provincia. Even in the emergency of the Hannibalic war, Q. Fulvius Flaccus, praetor urbanus in 215 and 214, was refectus (i.e., reelected)—not prorogued—for his second year, and assigned the urban jurisdiction extra ordinem.35 Territorial provinciae, on the other hand, could be left out of the sortition for several years at a time.
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The annual sortition of the city provinces must be due to the fact that a promagistrate could not exercise his imperium in the city; a pro consule or pro praetore lost his imperium once he crossed within the pomerium.36 This is not to say that urban and peregrine praetors could not be prorogued: indeed both were. But when the command of a city praetor was extended, he was sent to a provincia “militiae” (9.4.2). The first apparent exception to this practice comes in the mid-second century. We know especially from Frontinus37 that in 144, the Senate ordered the urban praetor Q. Marcius Rex to repair two aqueducts and also enforce regulations relating to the private use of public water. As it turned out, Marcius was to be prorogued into the next year, for he had started the construction of a third aqueduct, the famous “aqua Marcia.” We need not suppose, however, that he held the urban province for two years in a row. It is more likely that the Senate created a special provincia for him—with special powers—for his second year of imperium (see further in 8.6.2).
5.2 The City Praetors in the Second Punic War There is conclusive proof from the first years of the Second Punic War that the urban praetor’s original wideranging military role had by now fallen into desuetude. It is important to note that the praetor urbanus was not at Cannae, the greatest emergency in the history of the Republic. He was not among the dead nor among the survivors, and he obviously could not be one of the senatorial volunteers.38 Indeed, we find that the activities of the praetor urbanus were largely in Rome and its immediate environs during the period 218 down to 201. But this is not to say that the praetor had lost completely his military function. 5.2.1 The Military Role of the Urban Praetor Immediately after the news of the Cannae rout reached the city, the urban and peregrine praetors of 216 are said to have summoned the Senate “concerning the defense of the city.” Both praetors initially may have expected to stay in Rome for some time.39 But the pr. urb. P. Furius Philus was soon de facto made the praetor for Sicily (with authority to raid Africa),40 thus enabling his praetorian colleague M. Claudius Marcellus to operate against Hannibal in the south. The peregrine praetor M. Pomponius remained in Rome, or was based close enough to the city to pass in and out when needed.41 In the event, the praetor P. Furius Philus did not return to the provincia urbana. In late winter of consular year 216 a report was received from the pro pr. T. Otacilius Crassus (pr. 217 for Sicily), “that the praetor P. Furius had come with his fleet from Africa to Lilybaeum; that Furius himself had been seriously wounded and his life was in the utmost danger.”42 This acute crisis is the only instance in the Hannibalic War—in fact, pretty much for the whole subsequent Republican period—when we find the urban praetor sent for an extended time on a mission outside the city.43 Before the end of the year, the peregrine praetor M. Pomponius had to proceed to a territorial provincia as well.44 One important reason for keeping the urban praetor near Rome was that he was expected to see to the defense of the city. A report of an arrangement for the
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45
year 214 is the closest thing we have to an explicit statement of this responsibility: “The Senate decreed that Q. Fulvius [Flaccus, pr. urb. 215 and now reelected pr. II] should by special arrangement (extra ordinem) hold the urban provincia, and that he in preference to anyone else should be in charge of the city when the consuls set out for war (is . . . potissimum consulibus ad bellum profectis urbi praeesset).” As matters turned out, when the Carthaginians actually attacked Rome in 211, the praetor urbanus did not have to defend it alone. The consuls were called in aid of the city, and Q. Fulvius Flaccus (now cos. III 212) as pro consule received a special grant of imperium to enable him to come into Rome.46 In this extreme emergency it was the role of the pr. urb. C. Calpurnius Piso merely to guard the Capitolium and the arx. The consuls encamped near the Colline and Esquiline gates: it was they who were expected to counterattack Hannibal. The crisis evidently did not prevent the praetor urbanus from attending to his formal duties. We learn from Festus that Hannibal’s main assault on the city came during the praetor’s supervision of the Ludi Apollinares.47 The urban praetor also was expected to protect the coast near Rome. We have positive attestation for this duty in two years (215, 208), and there may have been other years, not reported by Livy, in which the praetor urbanus fulfilled this same function. In both 215 and 208, the urban praetors were also able to attend to their formal duties in the city.48 Since the defense assignment was near Rome in both cases, these praetors would not be away long, at any one time, even if they did go to look to the coast themselves.49 Another possibility is that the coastal fleet was given over to a praefectus, the urban praetor acting only in a general supervisory capacity. 5.2.2 The Institution of the Ludi Apollinares Even during the course of the Hannibalic War, religious duties may have prevented the praetor urbanus from leaving the city at certain times of the year (see 5.5.2). Perhaps the first—and certainly the most important—of these obligations was the Ludi Apollinares. The origin of these games is described in detail by Livy. The urban praetor of 213, in the course of confiscating unauthorized religious materials, received the oracles known as the carmina Marciana. These at the end of his term of office he handed over to his successor, the praetor urbanus et inter peregrinos of 212, P. Cornelius Sulla. On the basis of a quite specific prediction made by these carmina, the Senate, after consultation with the Xviri sacris faciundis, decided that games to Apollo be vowed and performed under the supervision of the praetor urbanus, as the actual oracle had outlined.50 P. Cornelius Sulla was the first to celebrate these games, which took place in the Circus Maximus. From that point on, each year the urban praetor held Ludi Apollinares (evidently) in that site,51 though the games seem to have become a regular festival only in 208. In that year, Livy52 reports that the pr. urb. P. Licinius Varus “was ordered to propose a law to the People that those games be vowed in perpetuity for a fixed date.” Livy supplies a motive for the permanent vow (a serious pestilence), and his emphatic language (“ipse [sc. P. Varus] primus ita vovit . . .”) shows that this was probably the year in which the festival acquired a set calendar date (13 July). By 190, the Ludi
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Apollinares had been extended (backwards) to three days, for in that year they were being held on 11 July.53 These games at the end of the Republic had reached a full seven days.54 No other praetor could fulfill the religious duty of the Ludi Apollinares without a special extra ordinem grant, to judge from Livy’s notice of the arrangement of provinciae for 184. On the death of the urban praetor (and the cancellation of the election of a suffect), the Senate decreed the peregrine praetor “should hold both jurisdictions in the city and should preside at the games to Apollo.”55 5.2.3 The Urban Praetor and Military Supplies When the urban praetor found himself as the chief magistrate in the city, it was he who made the contracts with the publicani who supplied the various Roman armies. Livy, under the year 215, describes a meeting between the urban praetor and the publicani, where the praetor granted several major concessions. In 213, the dishonest dealings of one of these publicani were first reported to the urban praetor, who relayed the news to the Senate. Yet for the moment, no senatus consultum was made. The scandal broke open late in 213, and the Senate decided to hold it over merely until the new consuls should take office—as we might expect for a matter of considerable public importance.56 If we can judge from later Republican practice, the awarding of contracts was a complex responsibility. The urban praetor would set the date for the locatio, and would have full discretion in setting the terms of the contract, including the specifications for the goods (which would be based on the request of the magistrate in the field),57 the date by which the goods were to be delivered, and the amount of the sureties to be provided by the contractors. We would also expect this praetor normally to conduct the probatio, the establishment of the quality of inspectable goods furnished under the contract.58 During at least one crisis in the Hannibalic War (in the year 208), the urban praetor had to get together on short notice a substantial fleet (fifty ships, twenty of which to be built from scratch). We are not told the actual mechanics of how this was done, for this or any other year. As in the provision of military supplies (and the construction of public buildings), the praetor no doubt had to let a contract.59 Indeed, shipbuilding is one area where we may be able to trace the process by which the office of urban praetor became saddled with a traditionally consular responsibility. Once shipbuilding and ship restoration devolved upon this praetor in this panic of 208, it remained his for the rest of the Livian period. Other praetors—and not just the inter peregrinos—helped him when necessary, and as was convenient. But in each of these instances it was the urban praetor who had to do most of the time-consuming work. Though only occasional, this marked a significant addition to his already substantial responsibilities.60 5.2.4 Nonmilitary Responsibilities of the Urban Praetor Numerous additional factors contributed to the “localization” of the urban praetor. Of course, in the absence of the consuls, the praetor urbanus had to preside over
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the Senate and direct state policy. This magistrate by custom also had charge of civil jurisdiction in Rome, as well as the main responsibility for convening criminal trials involving a capital charge before the People. His superintendency of civil procedure (of which we know almost nothing for this period) may have made it difficult for him to leave the city for an extended period of time unless a iustitium were declared.61 The urban praetor also saw to the annual appointment of deputies to see to adjudication in a special class of praefectures throughout Italy. We can suppose that the praetor supervised their legal activities as well; for instance, it appears that the praetor’s praefecti were expected to refer major or intractable disputes back to him in Rome.62 There is also the fact that in most years of the Hannibalic War, and for a few years beyond, the urban praetor probably took on the civil duties (whatever those were) of the peregrine praetor.63 The separate allotment of the provincia peregrina to an individual is recorded (or can be readily surmised) in only nine out of the twenty-one years of the period 218 down to 198.64 Even when an individual peregrine praetor was appointed, he might hand his jurisdiction to the urban praetor and leave the city—what I shall call the “mandatory” process. Our first notice of the peregrine praetor handing over his jurisdiction to the praetor urbanus comes in 213; Livy mentions another instance for 206. Although the mandatory process is only twice reported for this period, we should take it as the standard practice. Below (5.4.1–7 passim) I have attempted to detail some of the essential duties which devolved upon the urban praetor when the consuls were away. We hear of the urban praetor presiding over the elections of minor magistrates and special commissions, conducting special quaestiones, as well as (5.2.3) letting state contracts and building ships. Taken cumulatively, these responsibilities make it understandable why we have no further attestation of the praetor urbanus leaving the city during the Hannibalic War. Apparent exceptions are readily explained. It is true that in 205 the pr. urb. Cn. Servilius Caepio was ordered by the Senate to enforce special residential regulations imposed on the ex-Campanians.65 However, he surely cannot have been expected to go to Campania in person; if he had, the city would have been left without a holder of imperium, since in that year no praetor received the peregrine jurisdiction as a separate provincia. The praetor urbanus may have been only in charge of the operation: we find him in the city after the assignment was given.66 Just how massive an undertaking the police work would have been—the inspection of where each person lived and the comparison with a site plan—can be easily imagined. C. Sergius Plautus, the praetor urbanus of 200 (another year with no separate sortition reported of the provincia peregrina), also probably only supervised the huge task of assigning land to veterans who had served in Spain, Sicily, and Sardinia in his year of office. After he was prorogued into 199 specifically to see to this task,67 C. Sergius could have traveled to the actual sites. Note that in 173, the consul L. Postumius Albinus, though assigned Liguria as his provincia, spent the entire year attempting to recover ager publicus in Campania from private possessors.68 This was a difficult task, no doubt calling for the consul’s presence because of the personal and “diplomatic” problems involved (senators and well-connected equites, for example).
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5.2.5 Deployment of the Peregrine Praetor in the Hannibalic War Since Livy reports the praetorian elections and the allotment of the various praetorian provinciae starting only with the year 216, the treatment of the provincia peregrina in 218 and 217 is uncertain. It does seem, however, from what little evidence we do have, that at the outset of the Second Punic War the Senate planned to keep the peregrine praetor near Rome, to help defend the city and (surely) to command reserve forces. The Romans could not have anticipated that within a few years into this war, the continuing military crisis would force the peregrine praetor to spend almost all of his term of office in the field, in distant theaters of operations. In 218, the Senate may have expected L. Manlius (pr. per. 219) to remain in Gaul for the entire year as pro praetore, allowing the peregrine praetor C. Atilius (?Regulus) to stay in or near the city. But in the event C. Atilius had to go and aid Manlius; when his mission was completed, a consul ordered him (and Manlius) back to Rome. There it seems Atilius stayed until (perhaps) after the consular elections, when he returned once again to the north.69 In the next three years of the Hannibalic War (217, 216, and 215), we see the praetor inter peregrinos as well as the urban praetor prepared to act as the president of the Senate. In 217, the peregrine praetor M.(?) Pomponius was at the meetings where the Senate debated how to respond to the disaster at Lake Trasimene. He is even said to have announced to an assembly of the People the news of the defeat— all too frankly, as it turned out (Additional Note VII). In the next year, as we have seen, the pr. per. M.(?) Pomponius (probably a different character from the pr. 217) was in Rome at the time of Cannae. He remained near enough the city to preside over the Senate, though an emergency at the very end of 216 required him to proceed to Gaul.70 Affairs in 215 were a bit different. At the beginning of that year, both city praetors moved their tribunals (probably from the eastern end of the comitium, near the curia Hostilia)71 to the piscina publica near the Porta Capena, close to where the Senate was planning to meet (probably in the temple of Honos) to facilitate audiences with the generals fighting in south Italy against Hannibal. “That place should be named—so [the praetors] ordered—in recognizances (vadimonia), and there justice was rendered that year (ibi . . . ius dictum est).”72 This is odd. Livy has just told us the Senate had decided—perhaps even before the time of the sortition— that the peregrine praetor was to proceed to a military provincia: M. Valerius Laevinus was earmarked to go to Apulia and take over (two) legions which had returned from Sicily.73 But when this praetor almost immediately had to go off into the field, and the pr. urb. Q. Fulvius Flaccus received responsibility (at least nominally) for the coastline near Rome, Livy seems surprised: “Not even those praetors who had been appointed to administer justice (qui ad ius dicendum creati erant) were granted exemption (vacatio) from the conduct of the war.”74 At least one scholar actually has taken this confused passage as proof that the praetor was created specifically to dispense justice.75 Rather, the statement is nothing more than Livy’s own colorless editorial comment, informed by no special knowledge other than the practice of his own day. Livy does not quite comprehend
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the situation. When the urban and peregrine praetors moved their tribunals to the southeast gate of the city, they surely did not intend to stay in the city to hear law cases. They moved there to participate (and if necessary preside) in the Senate. At this point in the war, one never knew, even a few days ahead, what might happen, or whether (for example) the consuls—who were still in Rome—and praetor urbanus might have to be out with a tumultuary force when the Senate came to meet. Having two praetors close at hand ensured flexibility if a crisis arose.76 As matters turned out, M. Valerius Laevinus soon set off for his command in Apulia. He established his headquarters at Luceria, and had an active if not entirely successful year.77 Laevinus was probably the first praetor inter peregrinos, since L. Manlius went to Gaul in 219, who could expect to be absent for the entire year. It soon became regular practice. The Senate sent the peregrine praetor to south Italy also in 214 and 213.78 In these (and all subsequent) instances the praetor inter peregrinos must have issued an edict on the referral of his cases to the praetor urbanus before leaving the city (the “mandatory” process). The year 212 saw a further innovation, when P. Cornelius Sulla received in the sortition as a joint provincia both city jurisdictions, “which previously had been the lot of two individuals” (“quae duorum ante sors fuerat”).79 His three praetorian colleagues all received special provinciae. This implies that the provincia peregrina had to be allotted—though not always separately—in every year. In the latter part of the war and the years which immediately followed its conclusion, the peregrine praetor saw most of his action in north Italy. Initially, the administrative tendency had been to declare Gaul and the peregrine jurisdiction as two separate provinciae (the years 216 and 213).80 But starting probably in 210, the two were regularly combined as peregrina cum Gallia.81 In the years 205 through 198, Gaul was entrusted to praetors every year except one (201), when it was declared consular. Livy only once mentions the peregrine provincia in this period (204).82 It seems unlikely that the Senate simply did not allot the provincia peregrina in these other instances. It must be only carelessness on Livy’s part that he fails to report whether the praetor urbanus was actually made praetor urbanus et inter peregrinos at the beginning of the year, before or after the sortition.83
5.3 Administration of the City Provinciae after 197 The year 197 saw a changed administrative attitude toward the city jurisdictions: the yearly appointment of urban and peregrine praetors with the intention that both serve in the city. Starting in 197 the peregrine praetorship is separately allotted in every year from 197 to 166 except two (191 and 189). In those years we are specifically told by Livy that one man received both the city jurisdictions,84 though in one of these cases—in 189—this arrangement was soon remodified. When the praetor for Sardinia and newly elected flamen Quirinalis Q. Fabius Pictor was prevented from leaving for his provincia by the pontifex maximus P. Licinius Crassus Dives, Pictor was made to take up the peregrine jurisdiction rather than abdicate from the magistracy.85
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It is noteworthy that in 183 the Senate made special arrangements to accommodate the flamen Dialis C. Valerius Flaccus: “The praetors were ordered to draw lots with the provision that the provincia of the flamen Dialis should be one of the jurisdictions in Rome; he drew the peregrine provincia.”86 This is good evidence that the peregrine praetor was by now expected to stay in Italy, if not Rome itself (more restrictions surrounded the flamen Dialis than the other major flamines).87 Indeed, after 197 we only occasionally find the praetor inter peregrinos outside of Rome, and usually on missions of limited scope, not as a commander in a major territorial provincia. The praetor urbanus is never again found far from the city on a mission in the period covered by the extant portions of Livy.88 In 165, the Senate did send the pr. urb. P. Cornelius Lentulus in person to buy up private land in Campania; we do not know where the consuls were in that year, or how long the praetor stayed away. That is the last time in our period that we see the praetor urbanus seeing to this type of chore, which seems to have been one of his traditional responsibilities (see 5.2.4). There may have been other examples, unknown to us; but it seems that the Senate eventually stopped using the praetor in this way. It is noteworthy that in 133, the agrarian legislation of Ti. Gracchus created special IIIviri to see to the purchase of land (on a massive scale) and with it the task of immediate redistribution. A project of this scope was really too much to expect of any praetor. But it is surprising that the praetor did not enter into the field aspect of this program at all. Instead, the IIIviri themselves had iudicatio, normally a part of imperium.89 On balance, well before the time of the Gracchi, it seems that the legal restriction on the urban praetor’s movements, mentioned by Cicero,90 was now in effect more maiorum. Perhaps the restriction was in force even legally, but this cannot be assumed until after Sulla.91
5.3.1 The City Praetors and the Slave Revolts of 198 and 196 A servile insurrection in Latium of 198 may have contributed to the formation of this new policy of keeping the urban praetor in the city. On the Senate’s orders, the pr. urb. L. Cornelius Merula had to travel about sixty-five kilometers south of Rome to Setia to quash a revolt of Punic slaves, leaving Rome without a holder of imperium. The consul Sex. Aelius Paetus (Catus) was in Gaul; his colleague T. Quinctius Flamininus was occupied with the war against Philip in Greece and Macedonia.92 As in the five preceding years, Livy does not state that the provincia peregrina was allotted separately in the sortition. Though in the event the urban praetor did not have to leave Latium, at the time there was of course no way to tell how far the slave uprising would spread or how long this magistrate would have to spend in the field. Merula, along with five legati, rapidly raised an emergency levy of two thousand men, and was able to crush the main band of slaves at Setia as well as a splinter group set to occupy Praeneste (from which it could threaten Rome). The minor magistrates at Rome were ordered to increase their vigilance, and the urban praetor sent a letter to the various Latin communities warning them to take special care in the surveillance of the prisoners placed in their charge.93
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This serious incident ought to have given the Romans a nasty shock. It must be more than coincidence that they immediately decided from that point on to keep the praetor inter peregrinos at home, though he was still available for extraordinary assignments. A recent series of controversies involving overly-independent peregrine praetors made change conceivable.94 The decision to elect six praetors each year, starting in 197, helped make this policy workable. (We shall examine the reasons for that increase in 7.2.1.) The new system reproduced, on an enlarged scale, what I have suggested for the decade after 228. Events soon revealed some advantages of this new (or rather revived) arrangement. In 196, the peregrine praetor M.’ Acilius Glabrio was available to set out with one of the urban legions to crush a slave revolt in Etruria. Yet this situation was much less critical than that of two years previous. It appears that the consuls (and provincial praetors?) were still in the city, as well as the praetor urbanus.95 5.3.2 Deployment of the Peregrine Praetor after 197 It is not readily apparent from our sources why the Romans then kept to the policy of keeping both the urban and peregrine praetors near the city for decades to come. As it turns out, we know of only four additional instances in the period following 196 in which the praetor inter peregrinos was sent out of the city on a mission. The first two (178, 172) occurred late in the year, and we are not told of any special arrangements to compensate for the absence of the peregrine praetor. The third (170) came in mid-year: the man who must have been praetor inter peregrinos was ordered to hold a modest levy on the Adriatic coast.96 The fourth example is the most interesting and potentially significant. The pr. per. L. Anicius Gallus went to the east in 168 to fight king Gentius of Illyria. This was not exactly a return to the administrative attitudes of the Hannibalic War. Anicius did not hand his jurisdiction to the urban praetor, but to the praetor for Sardinia. This is wholly unexpected; the case is worth examining in some detail. To meet the military and administrative requirements of the Third Macedonian War (171–168), the Senate had combined the two Spanish provinciae into ‘Hispania’ and left the city jurisdictions intact. The idea was to send the absolute minimum number of holders of imperium to the west while a major war in the east with the Macedonian king Perseus was still unresolved. The first three years of this war were a disappointment for the Romans.97 They decided, however, to make an all-out effort to end the war in 168, completing the election of magistrates and the sortition of consular and praetorian provinciae with remarkable speed.98 One of the praetorian provinciae was designated “peregrina et si quo senatus censuisset,” an allotment not explicitly recorded in the praetorian sortition since 208.99 By the time of the actual sortition all will have understood that the man who received this lot was certain to be sent to the east to succeed the privatus Ap. Claudius Centho, who was having trouble in Illyricum in his operations against Gentius.100 L. Anicius obtained this lot, and went off to the East. Livy then reports something extraordinary: “The praetors departed for their provinces, except for C. Papirius Carbo, who had received Sardinia. The Senate had decided that he render justice among citizens and foreigners—for he also had that lot (eum ius dicere
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Romae—nam eam quoque sortem habebat—inter cives et peregrinos patres censuerant).”101 This comment may be one of Livy’s own explanations, and thus worthless; or he is simply mistaken, as so often in reports of provinciae. Alternately, C. Papirius actually may have received in the sortition “Sardinia et peregrina.” If so, there must have been instructions on how it was done. Praetors for Sardinia had occasionally received a special allotment.102 But there is no parallel for an annual provincia being joined to Sardinia. On the whole only (in principle) short-term tasks were assigned, after which a praetor might hope to get to Sardinia. This combination of provinciae, both fully annual, seems unprecedented. If this report is true, C. Papirius Carbo may have been expected to exercise his command through a legatus. If this was indeed the case, we would have a mid-second-century precedent for the arrangement used by C. Calpurnius Piso (cos. 67) in his command in the Gauls in 66 and 65 (15.2.2), and by Cn. Pompeius Magnus in the Spains starting in 55 (13.4.8). It is apparent that the Senate by now thought it highly desirable to have two praetors in (or at least near) Rome. Hence we find separate allotment of the provincia peregrina in all but two of the years 197–166, and in one case (168) what is apparently an extraordinary arrangement to compensate for the absence of the peregrine praetor when he had to go overseas for the year. Explanations do not come readily. It may be that the peregrine praetor’s responsibility in the area of law had grown, but this is difficult to say, since there is no real evidence to indicate exactly what he was doing in this sphere for almost the entire Republic. Perhaps we should not discount Roman fears that something like the emergency caused by the Setine slave revolt of 198 should recur. But this alone would not explain the persistence of the new policy for (at least) thirty years. I would suggest that the predominant factor which brought about this reaffirmation of the institutional decisions taken in 228 was the growing public responsibilities of the urban praetor. In 5.2.2–4 and below in 5.4–5.6, I describe how several major tasks once performed by the consuls had in the Hannibalic period devolved—permanently, as it would turn out—upon the urban praetor. By 198, he may have taken on so much in addition to his (substantial) traditional tasks that it became almost essential to have a helper (adiutor) on hand. At that juncture, the Senate decided that, barring an emergency, the peregrine praetor should remain in the city and lend his aid. Now, at some point in the middle Republic the urban praetor had his lictors reduced from six to two in the city. The “two lictors” of the praetor urbanus are attested several times in the ancient sources, as early as Plautus’ Epidicus; thus the custom was observed by ca. 190 (Additional Note X). The purpose of this practice is hardly clear. It is just possible that it was taken at a time when the urban praetor was no longer expected to venture into the field. The reduced number of attendants would reflect his new (mainly civil) competence, though he would still have his six when he went outside the city. Indeed, one scholar recently has maintained that 242 (the widely accepted date for the creation of the second praetor) makes the most sense for the introduction of this innovation. The year 227—the return of the peregrine praetor to Italy—is an equally strong possibility. But the reduction perhaps makes the most sense for the period immediately after 197, the intention being
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to balance the grant of twelve lictors to each of the two new Spanish praetors (7.2, created in 198 for 197, and holding consular imperium). The peregrine praetor may also have had his lictors reduced when he was in the city, as well as (in a later period) those praetors who were assigned to permanent quaestiones in Rome.
5.4 Praetorian Presidency of the Senate and Assemblies The praetor was the magistrate third in order of precedence, after the dictator and consul, who was able to convene and preside over the Senate.103 This meant that in normal times, and during the regular course of the year, the praetor (almost invariably the urban praetor) chaired most of the meetings of that body. A valuable passage from Varro’s commentarium on Senate protocol (originally composed for Pompey in 70) allows for the technical possibility that any praetor could preside in the Senate.104 Indeed, the peregrine praetor is explicitly noted to have done so in the crisis year 216, when the praetor urbanus was in the field.105 5.4.1 The Peregrine Praetor as Senate President In the absence of the consuls, the praetor urbanus might yield voluntarily to a praetorian colleague. Such must have been the case in 200, when the (peregrine) praetor L. Furius Purpurio unexpectedly returned without leave to Rome, to demand a triumph for a victory at Cremona. We are told that Furius, “when he had unexpectedly come to Rome, summoned the Senate in the temple of Bellona (senatum in aede Bellonae habuit), gave an account of his exploits, and requested that he be allowed to ride into the city in triumph.” After a heated debate, Furius got his request (8.3.3).106 Though Furius as a praetor of course had a full legal right to convene and preside over the Senate, his defiance of normal protocol (i.e., supplanting the praetor urbanus) seems audacious and obnoxious. Yet, in the event, the urban praetor C. Sergius Plautus did not make a move, as far as we know. Why did he acquiesce in his colleague’s antisocial behavior? L. Furius Purpurio had substantial personal influence within the senatorial establishment,107 and, at any rate, was not acting openly against the res publica in asking for a triumph (the Senate could always turn him down). If Sergius wanted to assert his own rights, he probably had no recourse other than to use his collegial veto power to prevent this Senate meeting, an action which (I suggest) he would not have entertained, even if he were an enemy of Furius. In all periods of the Republic, when consuls are in conflict, they usually go no further than threaten to use their veto to invalidate a senatus consultum.108 There is no clear instance of even a tribune using his intercessio to prevent the Senate from being summoned, though Polybius109 tells us that he could. E. Badian recently has reminded us of the important principle (first enunciated by Mommsen) that, with rare exceptions, Republican magistrates used the “direct and brutal” powers of their office only in an emergency, and, as Badian stresses, after asking for support. For the urban praetor to use his power to the full in this instance by vetoing the Senate meeting would have been an affront to the dignitas of Furius, and, if not over-
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whelmingly backed by the Senate, would have constituted a serious breach of concordia. Badian explains, [O]ne of the main reasons for the long success of first the Patrician-led and then the noble-led Republic is precisely the combination of a theory of almost unlimited executive power with the practice of limitation by consensus, to produce, in most cases, an almost perfect balance. . . . Tough enforcement of authority would have torn the governing class apart.110
Although we are told that the praetor urbanus and praetor inter peregrinos sometimes jointly convoked the Senate (in the crisis years 217 and 216), we never find the two city praetors jointly presiding over that body.111 In Rome, where coordination meant full veto power, this would have been intolerable. It was bound to happen that the two city praetors were at enmity; it would happen more often that the two praetors disagreed on the terms of an individual motion. Joint presidency would be inconceivable in a major emergency, where quick decisions might be needed. The urban praetor would normally preside if available; the praetor inter peregrinos, if present, could speak if he wanted to. It is not surprising that there is no notice of the practice of the joint summons after the first few years of the Hannibalic War. But it does seem that the peregrine praetor regularly attended Senate meetings, as we would expect. Attendance at meetings of the Senate was nominally compulsory for all senators who were not absent from Rome on public business.112 5.4.2 Disputes over Precedence in Senate Presidency The praetor who convened and presided over the Senate in the absence of a consul had all the powers and functions of the consul doing so:113 his imperium, after all, was of the same kind. Most important, as presiding magistrate, the praetor had absolute power to frame relationes, the formal setting out of the subject for debate, which often formed the basis of senatus consulta.114 The praetor also moderated senatorial debate, and after a sufficient number of sententiae had been heard, put them to a vote—one at a time, as many as he chose, in whatever order he wanted (announcing this in advance, or not).115 In the pre-Gracchan period, a consul never uses his imperium to invalidate a praetor’s senatus consultum, once it was passed, nor, as it turns out, the senatus consulta passed under one’s consular colleague—though it was of course possible.116 Here again, concordia was an issue. The praetor’s power in shaping the senatus consultum is best seen for this general period in an incident reported by Polybius for the mid-150s. In the year 155, the pr. urb. A. Postumius Albinus (annalist and future cos. 151) is found presiding over a meeting of the Senate which heard an embassy from the Achaeans; they were requesting the release of their League members (over one thousand) who had been detained in Italy since the conclusion of the Third Macedonian War in 167. Polybius, who loathed Albinus, tells us that when three sententiae had been put forward—one urging their (unconditional) release, another in favor of keeping them detained, and a third in favor of release, “but not just yet”—the praetor ignored the compromise sententia, and gave the Senate the choice of only the first two alterna-
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tives. “Consequently those who were for delay joined those who were for absolute refusal, and thus gave a majority against release”—as Polybius implies the praetor knew would happen.117 This whole episode is an excellent illustration of one important aspect of the praetor’s power as Senate president—though it is hard to see why the detainees would be much better off under the third option as opposed to the sententia which actually got a majority!118 On occasion, serious conflicts did arise over senatus consulta passed under a praetor’s presidency. Livy reports an acrimonious dispute between a consul and praetor in 173 over the Ligurian tribe of the Statellates, the repercussions of which were felt well into the next year. It is worth examining the origins of this dispute in detail; three subsequent episodes in the story—each quite illuminating for the question of relative powers of consuls and praetors—will be treated in sequence later in this section and elsewhere in this chapter (5.5.1, 5.6.2).119 At the end of the campaigning season for 173, after the pr. urb. A. Atilius Serranus had read in the Senate a letter from the cos. M. Popillius Laenas reporting his “accomplishments” against the peaceful tribe of the Statellates, the Senate decreed that the actions of Popillius—who had disarmed and enslaved this people—should be reversed. When the consul returned to Rome that winter, he tried to get the senatus consultum repealed, and a supplicatio voted for his campaign (no doubt as a prelude to a triumph request). He also tried to fine the urban praetor. The praetor urbanus and Senate paid no heed to such intimidation.120 According to Livy, the consul Popillius complained that A. Atilius Serranus “had proposed a senatus consultum directed against himself and in favor of the enemy, by which he was transferring the consul’s victory to the Ligurians and, though a praetor, was almost ordering the consul to be delivered to them.” M. Popillius seems to have blamed the praetor urbanus for two things: the wording of the relatio, and the acceptance of hostile sententiae as the basis for a senatus consultum. The consul was probably within his rights disciplining the praetor, but he still could not get Serranus to back down: it is important to note that he did not go so far as to veto the senatus consultum (indeed, he might not have been able, since it had been passed so long ago). The Senate, which was against the consul, may even have remitted the fine. (We shall return to this story shortly.) When a dictator or consul was in the city, it was customary (and legally proper) for an urban praetor to step down as president of the Senate—and to yield in any other matter in which the superior magistrate ordered. For example, on one occasion, it seems that a consul refused to exercise his power of convening the Senate, and forbade the praetor urbanus to do so as well. The praetor had no choice but to obey; nevertheless, the Senate still met—under the presidency of a tribunus plebis. The story should be recounted in some detail. At the end of the year 210, when the consul M. Claudius Marcellus had pleaded that he could not hold the elections for 209 (as had been previously arranged), the pr. urb. L. Manlius Acidinus recalled the other consul, M. Valerius Laevinus, from Sicily. As it turned out, reports of the preparation of a major Carthaginian expedition against Sicily121 led the Senate to order Laevinus to name a dictator to hold the elections (“comitiorum habendorum causa”), and then to return to his provincia at once. Livy reports that a debate followed between consul and Senate.
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The consul M. Valerius Laevinus said that in Sicily (sc. on his return) he would name his praefectus classis M. Valerius Messalla (cos. 226) as dictator, while the Senate insisted that the dictio had to be made on ager Romanus.122 From this point, the chronology becomes less certain. The consul seems to have dragged his feet to such an extent on the issue that the Senate tried to remove the choice of a dictator from his hands: it ordered the consul to bring the selection of a dictator—a different matter than his appointment—before the People. (The other consul M. Claudius Marcellus could not be asked to come to Rome.) Laevinus refused to introduce such a bill, and in addition forbade the pr. urb. L. Manlius Acidinus to act on the matter.123 M. Valerius’ order to the urban praetor not to bring this rogatio before the People evidently was understood to extend even to the Senate meeting in which this rogatio was discussed. (He probably said so explicitly, although Livy does not.) The praetor of course had to bow to the maius imperium of the consul, and a tribune of the Plebs stepped in (or was asked to step in) as Senate president in the resulting constitutional crisis, though both consul and praetor were in the city.124 Presidency of the Senate by a tribune was quite unprecedented.125 It must have been public knowledge by this point that Laevinus would obstinately refuse to surrender to the People a matter which he deemed to be within his own competence. The rogatio itself was perfectly in order: indeed, it was passed by the Plebs. It was just that the consul did not want to be told whom to name. As it turned out, the consul secretly left the city for Sicily on the day the vote was to go before the Plebs. The Plebs chose Q. Fulvius Flaccus dictator, and (so it seems from Livy’s report) also chose the pontifex maximus P. Licinius Crassus to be Fulvius’ magister equitum. The other consul, M. Claudius Marcellus, was asked to appoint formally the choice of the Plebs.126 It is uncertain whether he had to leave his command in south Italy against Hannibal to do this.127 A senatus consultum may have been enough to give a praetor precedence over a cooperative consul. Livy states that on one occasion a Spanish praetor was instructed to preside over the Senate when arrangements for his provincia were being made at the beginning of the year 196. We would expect the consuls, or, in their absence, the praetor urbanus, to convoke the Senate on this matter. In fact, it seems to be the consuls who do preside over the Senate when the meeting actually comes around.128 It is possible that the news of the death of a praetor in Hispania Citerior—reported right before the sortition of provinciae for 196129—accelerated the Senate’s consultation and decision-making process, and the consuls supplanted the praetor for “Hispania” at the meeting in which the Spanish arrangements were discussed. A plebiscite was enough to give a praetor precedence over an uncooperative consul, as an episode belonging to the dispute over the Ligurian Statellates (see above) demonstrates. In 172, the Senate attempted to get the consuls C. Popillius Laenas (brother of the obnoxious cos. 173) and P. Aelius Ligus to reintroduce the motion concerning the restoration of the Statellates to freedom. C. Popillius refused, and prevailed upon his consular colleague to do the same. The consuls and Senate came to a stalemate: the consuls would not bring the issue before the Senate, and the Senate would not place the war against Perseus in the consular sor-
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tition (Liguria was decreed to both) or allow a consular levy until the affair was settled.130 The consuls in turn refused to set out for their provinciae. Matters came to a head when two tribunes threatened to fine the consuls if they did not leave for their military provinces, and then proposed and passed a plebiscite, which stipulated that the Statellates were to be restored by a set date (1 August), and that a quaestio be set up to investigate the matter.131 Livy reports: “In accordance with this plebiscite, the praetor C. Licinius consulted the Senate as to whom they would choose to investigate under that bill. The senators ordered Licinius himself to conduct the investigation.” The consuls were still in the city.132 In other words, part of the plebiscite must have been that the pr. urb. C. Licinius Crassus was to supplant the consuls as president of the Senate, at least for the particular session in which the S.C. de Statellatibus was reintroduced; the plebiscitum must also have forbidden the consuls from using maior potestas to stop the praetor. After this Senate meeting, Livy reports (with no explicit causal link) that the consuls left the city and received the army of M. Popillius Laenas.133 This is the only known occasion in the entire period covered by these volumes in which a praetor actually presided over the Senate when a higher magistrate was available. 5.4.3 Dealings with Legati and Foreign Ambassadors To return to the urban praetor’s routine duties in the absence of consuls: various tasks might follow from the praetor’s presidency of the Senate, such as the responsibility for appointing senatorial legati to serve as an investigative commission on a particular matter, and (on occasion) the discretionary power to implement its findings.134 In these Senate sessions, the praetor urbanus was responsible for introducing Roman magistrates and their legates,135 privati,136 and embassies from (exclusively) friendly or allied communities or peoples.137 He sometimes was charged with registering in the public record foreign visitors as friends or allies of the Roman People, and with arranging the presentation of diplomatic gifts.138 In 169, although it was the pr. urb. C. Sulpicius Galus who introduced the Macedonian defector Onesimus into the Senate (and who certainly presided over that session), it was the pr. per. C. Decimius who provided the trappings of amicitia. Why the peregrine praetor? C. Sulpicius Galus, who at that very time was occupied with arranging supplies for the Roman army in Macedonia, simply may have been too busy and so delegated the responsibility.139 Thus, when Livy reports only that the Senate charged the praetor inter peregrinos with arranging hospitality or giving the customary gifts to kings or foreign envoys, with no mention of the praetor urbanus,140 we cannot assume that it was the peregrine praetor who was presiding over the Senate. The peregrine praetor is twice found treating with foreign embassies concerning a Senate meeting. In 183, the pr. per. C. Valerius Flaccus introduced the Gauls who had attempted to settle near Aquileia, only to be disarmed by the cos. M. Claudius Marcellus. In 181, the peregrine praetor Q. Fabius Maximus was ordered by the Senate to refuse an audience to some envoys of the Ligurians who came to Rome allegedly offering a “permanent peace.”141 We should note that in both cases it is a defeated people asking for special treatment from the Romans. There is no
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reason to believe that the praetor urbanus was away from the city on either of these occasions. Ambassadors from nations who were still technically at war with Rome were not allowed to enter the city without permission, that is, they were received extra pomerium.142 The temple of Bellona was always appropriate for such meetings. But it is entirely possible that some of these embassies had to be questioned as to their intent before they drew near Rome.143 The praetor inter peregrinos—who had fewer responsibilities and thus more freedom of movement than the praetor urbanus— might sometimes be sent to hear the claims of these delegations. This might explain his role in introducing embassies of peoples not in Roman amicitia. (There may have been other reasons, however, unknown to us.) 5.4.4 Relations with Commanders in the Field The urban praetor, when acting as president of the Senate, received the communications of commanders in the field, and read their letters to the Senate.144 This praetor also transmitted the Senate’s orders to (often superior) commanders, which, of course, he had helped to formulate.145 These orders were usually of a routine nature—for instance, calling consuls back for the electoral comitia.146 When acting on the authority of the Senate, the praetor urbanus did not run a real risk of his letters being disregarded by magistrates higher than himself. Livy repeats an absurd story that in 203, the praetor urbanus feared the consul Cn. Servilius Caepio would ignore his letter ordering him to return from an unauthorized expedition to Africa, whereupon P. Sulpicius Galba Maximus was created dictator specifically to hale the consul back. The tale of the appointment should be rejected; presumably an annalist found P. Sulpicius as dictator without further qualification, and tried to explain it.147 The detail of the praetor’s reluctance to send a letter is likewise incredible. No parallel exists for such timidity on the part of the praetor urbanus— especially in his capacity as president of the Senate—in the face of consular imperium. But that is not to say consuls were always eager to cooperate. In 212, the praetor urbanus et inter peregrinos sent to the consuls at Capua, Q. Fulvius Flaccus and Ap. Claudius Pulcher, a letter which outlined the terms (surely dictated by the Senate) upon which the Capuans could leave their city. The consuls delivered the terms to the Capuans as instructed. Yet in 211, the praetor urbanus sent these same men (now pro coss.) a letter along with a senatus consultum that ordered that the decision on the fate of the Capuan senators be left to the Roman Senate. This did not keep Q. Fulvius Flaccus from ordering a mass execution of Capuan senators interned at Cales. It was not that he actually ignored the praetor’s communication. Livy relates that Flaccus deliberately postponed reading the sealed letter and senatus consultum; afterward, Flaccus opened and read the restraining order and declared he was unable to carry out any further executions.148 In situations where consular intransigence was expected, or where there was particular need of tact and diplomacy in dealing with a commander in the field, it seems to have become policy for the urban praetor to appoint legates from the body of the Senate to deliver official communications. The point of sending legati was not to overawe the commander with their personal authority, but with the Senate’s,
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and (above all) to provide responsible witnesses to what followed. A mere letter-carrier—presumably a slave or freedman—would not do for this purpose. If the commander showed signs of disobeying, a senator (however lowly) could harangue him on the consequences of a report on his actions. Thus in 193, the Senate gave the urban praetor the responsibility of choosing two legati to give an unexpected order to the consul L. Cornelius Merula to hold the elections.149 In 171, the Senate decided that the praetor urbanus should name three legati to catch up with the consul C. Cassius Longinus, who had crossed from his proper provincia to Illyria to attack Macedonia.150 The embassy the praetor chose from the Senate—M. Cornelius Cethegus, a M. Fulvius, and P. Marcius Rex—was not particularly distinguished: whether M. Fulvius was a Flaccus or a Nobilior, none of these legati is known to have held curule office by this date (though M. Cethegus was later cos. 160). Nonetheless, C. Cassius Longinus may have received quite a fright from this delegation. He stayed as a military tribune in the East at least through the year 168,151 surely to avoid disciplinary action at Rome. By this stage, the Senate appears to be firmly in charge in the matter of assigning provinciae.152 5.4.5 Letters to Communities The praetor urbanus had precedence over the praetor inter peregrinos (and the other praetors) in all affairs of state, so far as we can tell. As we have seen, the peregrine praetor is only twice found as president of the Senate (216, 200), in the first instance in the absence of the urban praetor, and in the second (we must presume) with the consent of this colleague (5.4.1). Apparent exceptions to this rule of precedence in other areas of competence are readily explained.153 More typical is the peregrine praetor’s role as helper (adiutor) of the urban praetor. Simply put, the tasks for which the urban praetor could not find time were regularly consigned to the praetor inter peregrinos. Letters to foreign communities may be an illustrative example. In the absence of the consuls, the praetor urbanus transmitted to communities, whether they be Italian towns or foreign states, the details of pertinent senatus consulta drafted under his presidency. For example, in 189, the urban praetor Sp. Postumius Albinus (informally and on his own responsibility) transmitted to the Delphians the contents of a senatus consultum—granting that they be declared liberi et immunes—in at least two copies, one sent to the Delphians, the other to the Amphictyonic League.154 (Further correspondence from Roman magistrates to the Delphians exists, but the dates are unknown.)155 In addition, after the conclusion of hostilities against king Gentius in 167, the praetor urbanus is found allotting booty (220 lembi or cutters) to Greek communities on the Adriatic. He presumably will have done this by sending a senatus consultum with a “cover letter” to the three communities involved. Livy does not note the letter: he states that the praetor actually sent them the ships (i.e., he designated men to deliver them).156 Nevertheless, we have one or two epigraphic letters addressed to Greek communities (from 193 and perhaps 186), summarizing the Senate’s response to the embassy they had sent to Rome, which feature only the name of the peregrine praetor in the prescript—in a form similar to that used by the consuls.157 But it is impor-
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tant to note that it is nowhere stated in the extant portion of either of these inscriptions that the praetor in question presided over the Senate in the relevant session.158 Why is the peregrine praetor writing to a foreign community? Since, in 193 (and 186, for that matter), the urban praetor was in the city for the entire year (as had become policy), we can guess only that he may have been too busy. In 193, we know that the Senate—under the presidency of the pr. urb. C. Scribonius Curio— was occupied hearing the cases of the envoys who had come “from all Greece and a great part of Asia, and also from the kings” (i.e., Antiochus and Philip V) to discuss the eastern settlement of T. Quinctius Flamininus (cos. 198).159 This may have forced the Senate (and the praetor) to remain in session for quite some time. If the other inscription dates to 186 (which is far from certain), the presence of the praetor inter peregrinos on the letter is entirely explicable. In that year, since the consuls were investigating the outbreak in Bacchic worship (8.4.2), the urban praetor T. Maenius had to take over the consular levy, as well as hear out all who considered all their worship necessary—and then refer these cases to the Senate.160 It is dangerous to generalize from our one certain example, the inscription of 193. But we may tentatively say that in the drafting of official letters the peregrine praetor is probably used only as a helper of the praetor urbanus. It may be significant that in the one case where we have a senatus consultum—rather than a simple letter—sent to a Greek community, it is the praetor urbanus, and not the peregrine praetor, whose name is on the document.161 I suggest it is quite probable (though not actually attested or certain) that in later senatus consulta where a praetor or strathgov~ is named in the prescript, it is in fact the praetor urbanus. We have a fair number of such documents preserved on stone (particularly from the Greek east). No provincia is recorded for Q. Minucius Q.f. (pr. ca. 164?), who saw to the passage of a senatus consultum ordering the Athenians to reopen the Sarapeum of Delos;162 L. Cornelius Lentulus Lupus (later cos. 156, and so pr. ca. 159), who sent a senatus consultum accepting the apology of the people of Tibur for an unknown transgression;163 C. Hostilius Mancinus (later cos. 137, and so pr. ca. 140), president of the Senate when it heard and decided on a dispute between envoys from the (independent) Thessalian towns of Narthakion and Melitaia;164 P. Cornelius Blasio (pr. ca. 140), who wrote a first-person “cover letter” to the people of Corcyra, communicating to them a senatus consultum passed under his presidency regarding a territorial quarrel between the Ambraciots and Athamanians;165 or (finally) Q. Calpurnius Piso (later cos. 135, and so pr. ca. 138), who sent the Senate’s instructions to the Milesians on how to arbitrate a land dispute between the Messenians and Lacedaimonians.166 In a document of the mid-second century, an M. Aemilius M.f. (perhaps Lepidus Porcina, cos. 137, in his praetorship) sends a “cover letter” and a senatus consultum to Mylasa (in Caria). It emerges from the senatus consultum that M. Aemilius had been instructed by the Senate to appoint a free state as arbitrator to settle various disputes (principally involving land, as so often) between Magnesia and Priene; if the quarreling parties could not agree on an arbitrator, the praetor was to select one himself. In the event, Mylasa was chosen—hence the letter.167 There are a few other names of (apparently) Roman praetors in official documents which concern eastern communities, but it is uncertain whether these indeed
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belong to our precise period—or in some cases whether indeed they are praetors at all.168 The L. Valerius L.f. strathgov~ who presided over a December Senate meeting reported by Josephus may well be L. Valerius Flaccus acting as consul in 131— he was in the city for the entire year—not praetor (as T. R. S. Broughton suggests). Note that according to Josephus another strathgov~ (C.) Fannius M.f. convened the Senate on 6 February in an unspecified year. It is hard to imagine that Fannius was acting as praetor—why would both consuls have departed from the city so early?— as opposed to consul (which office he held in 122). Josephus elsewhere seems to use strathgov~ for consul.169 5.4.6 Praetorian Presidency of Legislative Comitia We constantly find the urban praetor calling (and speaking at) contiones for purposes of public notification or discussion, for example, of proposed legislation.170 Like all higher magistrates (dictator, consul, and the lower-ranked magister equitum and interrex), the praetor could also propose bills (rogationes) before the People.171 But in the case of both contiones and formal assemblies (whatever their nature), a holder of higher imperium had precedence over a praetor.172 Praetorian laws seem rare: there is in fact no positive attestation of a successful rogation for the preGracchan period. However, the urban praetor may have passed any number of special laws granting imperium, which Livy simply has missed. In Additional Note I, I examine—and reject—the common assumption that the urban praetor was able to delegate his imperium to a nonmagistrate. But we can surmise that the Senate on occasion asked this praetor to propose a special bill to the People, so that an individual privatus could receive a grant of imperium. The urban praetor quite often must have secured leges de imperio for nonmagistrates in the Curiate Assembly. Livy relates that in 194, the pr. urb. Cn. Domitius Ahenobarbus saw to the election on the Capitoline of two groups of IIIviri with imperium for three years (“in triennium”), allegedly to found two Latin colonies in south Italy.173 If L. R. Taylor is correct,174 this passage refers to both the election and the conferment of imperium (i.e. militiae) on these IIIviri in the comitia curiata. The consul P. Cornelius Scipio Africanus was probably not yet in the city,175 which explains why the praetor urbanus was taking responsibility for the task. This probably was the routine method by which imperium was conferred on privati when no magistrate higher than the praetor urbanus was present in Rome. There is one known incident of a peregrine praetor attempting to introduce a bill before the People. This is unexpected. One would presume that, if the consuls were absent, the praetor urbanus would have precedence in this matter. In fact, in this instance superior magistrates were indeed available. Livy is at pains to point out all that surrounded this attempt was distinctly contra morem maiorum, although he does not explicitly point out that a consul and urban praetor were in the city. In 167, the Rhodian ambassadors were so despondent about the prospect of a war with Rome that they are said to have put on mourning clothes. So they were surely not pleased with the inflammatory actions of a demagogic peregrine praetor, M.’ Iuventius Thalna, who announced his intention (apparently in a contio) to pass
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a bill declaring war on the Rhodians.176 Polybius states that the ambassadors donned their garb only after “one of the praetors” mounted the rostra; he also adds that the tribune M. Antonius pulled this praetor back down.177 Perhaps this was also recounted by Livy, but lost in the lacuna in our text. At least one of the consuls, M. Iunius Pennus, was in the city, as well as the pr. urb. Q. Cassius Longinus:178 surely these men would have had precedence over the peregrine praetor when it came time to introduce such an important bill. The truth is, Thalna’s publication of his rogatio was a complete anomaly. Nothing like this had ever happened before.179 His motivation was, as Livy tells us, that he desired the command for himself. Even given the traditional wideranging role of the peregrine praetorship, it is hard to imagine how he thought he would get it, in the face of substantial senatorial and tribunician opposition. The Senate had not given Thalna permission to call the comitia centuriata (the assembly competent to pass war votes), never mind to supplant a consul and the urban praetor as presiding officer of that body. However, it is noteworthy that neither the consul nor praetor attempted to veto Thalna; tribunes were used instead (on this feature of the res publica, see 5.4.2). And the incident did not hurt Thalna’s career in the long run. He was elected consul four years later, for 163.
5.4.7 Praetorian Presidency of Electoral Comitia When no superior magistrate was present, the praetor urbanus had full competence to hold elections for minor magistrates and members of special commissions.180 If a dictator or consul was present in Rome, the Senate decided whether it was one of these men181 or the praetor urbanus182 who was to conduct a minor election. We often find the urban praetor holding elections for the members of special commissions, even when one or both consuls are in the city; thus it is impossible to guess who held such elections in the cases where Livy does not provide specific information.183 But we should have enough to say that commissions for land and colonies were elected by this praetor. That was certainly the case with the IIIviri capitales by the mid-second century; before that the praetor probably simply appointed them.184 There is one exceptional occasion which shows that the urban praetor did not have exclusive competence among praetors in holding lesser elections. After the battle of Cannae in the year 216, when the sole surviving consul C. Terentius Varro, the dictator M. Iunius Pera, and the two city praetors were outside Rome, we are told by Livy that there were elected IIviri aedi dedicandae (for the temple of Concordia) and the IIIviri mensarii.185 Since the urban praetor was based in Sicily (see 5.4.1), the presiding officer in these elections must have been the peregrine praetor M.(?) Pomponius (see 5.4.1). As a holder of minus imperium, a praetor could not preside at consular or praetorian elections. For this we have the explicit statements of the augurs M. Valerius Messalla (cos. 53) and Cicero.186 Cicero’s explanation (using the same source as Messalla) why a praetor cannot hold the election of praetors—”because they are elected to be colleagues of the consuls, whose imperium is maius”—is not quite
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logically satisfying. One wonders whether the relevant augural principle was indeed fully understood in the late Republic—or whether it had ever been worked out in detail at all. The praetor should have been able to officiate at the election of the curule aediles, as well as that of quaestors (both in the tribal assembly); unfortunately, we have no direct evidence on whether the praetor presided over either of these elections.187 It is widely thought that the urban praetor on one occasion supervised the naming of a dictator (and with him, his magister equitum)—by popular election. After the defeat at Trasimene in 217, with one consul dead and the other cut off from communication with Rome, Livy tells us the People created a dictator (Q. Fabius Maximus) and magister equitum. Mommsen suggested that the urban praetor was the presiding magistrate at this extraordinary election, in the Centuriate Assembly.188 But if so, why do we not find this used as a precedent by Caesar in 49, when he was very much in need of one in his attempt to be named dictator by a praetor?189 Caesar certainly knew his history—particularly sacred and augural history, no doubt. Although not an augur, Caesar was pontifex maximus, and ought to have been concerned with religio and mos maiorum. It is unlikely that there could have been a good precedent, concerning a famous consular, reliably recorded and therefore known to all educated Romans. The fact is, Caesar in 49 seems not to have cared about the legality of his appointment. Despite Cicero’s doubts, and probably without a decretum augurum, Caesar obtained the office; he was not elected to the post, but rather (so it appears) ritually appointed (“dictus”) by the praetor M. Aemilius Lepidus, after Lepidus had secured special dispensation from the People.190 It follows that this procedure—a lex enabling a praetor actually to “name” a dictator—cannot have been used in 217. There are two other instances when a magistrate who was not a consul is said to have appointed a dictator: in 426, the naming of a dictator by a consular tribune (on which see 1.3.2 and 2.4.2) and in 81, the naming of Sulla as dictator by an interrex. Again, neither of these is really parallel to the situation of 217.191 All the same, J. Linderski does not consider the “naming” of a dictator by a praetor impossible: “It is . . . important to remember that the dictio dictatoris was not a rogatio, and secondly that the dictator had a more powerful imperium and auspicium than that of the consul. So in any case the dictator was appointed by a holder of a lesser imperium and auspicium.” Linderski’s latter point is far from certain, as we have seen in 2.2.1. The consul had the imperium and auspicia of the kings or Rome: the dictator could have no more. Livy’s rationalization that Q. Fabius Maximus was appointed “pro dictatore” may be close to the truth of what actually happened. We know that within a few years the People could appoint a nonmagistrate pro consule.192 It is conceivable that at this time a man could be elected pro dictatore as well. The urban praetor of the year, M. Aemilius Regillus, could pass a rogatio as president of the Centuriate Assembly: we have seen (5.4.6) it was part of his normal competence. I would suggest that Q. Fabius Maximus, by virtue of this special law, would act pro dictatore until the one surviving consul of the year could perform the ceremonial dictio— though Livy himself is unaware of this proviso.193 In the emergency of the time, no one would object.
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5.5 The Levy and Religious Duties 5.5.1 The Dilectus The consuls were responsible for determining manpower levels and raising troops for Rome’s armies each year, but in special circumstances they could delegate at least the execution of the actual levy (dilectus) to a praetor or praetors.194 For example, in 186, when the consuls were wholly engaged in the quaestio de Bacchanalibus, they delegated to the praetor urbanus the task of conducting their levy.195 (The praetor seems to have been expected only to start this dilectus.) The Senate also occasionally ordered the city praetors—the urban praetor as well as the praetor inter peregrinos—to hold extraordinary levies.196 In a large emergency levy, the praetor urbanus appears to have been charged with mustering citizen legions, while the praetor inter peregrinos called up soldiers from the Latin League. For instance, in a serious Ligurian uprising of 181, the Senate ordered the consuls to proceed immediately to Pisa, before they had completed their proper levy. The praetor urbanus was then told to enroll two tumultuary legions of Roman citizens and to administer the military oath to all men less than age 50; the peregrine praetor levied an analogous force from the Latin League. Both armies were soon discharged by the relevant praetors.197 The Senate also could transfer the dilectus to praetors in the hope of disciplining recalcitrant consuls. The first instance is in 172, and formed part of the same dispute (over the treatment of the Ligurian Statellates) which led to a plebiscite enabling the praetor urbanus to supplant the consuls as Senate president (see 5.4.2). When the consuls of the year would not reintroduce the rogatio de Statellatibus, one way in which the Senate countered (besides leaving Macedonia out of the sortition) was by refusing to grant permission for a levy, though the consuls had requested new troops for Liguria and the praetors recently allotted the Spains had also asked for reinforcements.198 The Senate instead instructed the peregrine praetor, Cn. Sicinius, to conduct a levy to raise an expeditionary force to hold the coast of Epirus (no consul would be setting out against Perseus for another year), and allowed the Spanish praetors to hold their own (modest) levy. The consuls were still in the city at the time of both these senatus consulta.199 The initial levy order mentioned only the peregrine praetor: with a Macedonian war looming and two intransigent consuls now refusing to transact most public business, the praetor urbanus had to be kept on hand as a potential president of the Senate; it also may have been widely expected that he was to receive the quaestio on the Statellates.200 Once the consuls were in Liguria, the urban praetor wrote ex S.C. to the consul C. Popillius Laenas, and instructed him to hand over one of his veteran legions (with a Latin supplement) to Cn. Sicinius, who was to cross with them to Macedonia.201 The peregrine praetor may not have been able to secure these troops, despite Livy’s statement that “Cn. Sicinius the praetor . . . on arriving in Brundisium found everything in readiness.”202 There is a well-known discrepancy in Livy’s account of the troop numbers the Senate had ordered for Greece and those which are said to have
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crossed: this may have been caused by the consul’s uncooperativeness, as P. A. Brunt has suspected.203 In the next two years (171 and 170), the city praetors worked as helpers of the consuls, assisting them in the levy.204 But in 169, when the consuls of the year were having difficulty enrolling a sufficient number of iuniores, the urban praetor C. Sulpicius Galus and M. Claudius Marcellus (praetor for “Hispania”) were able to get the Senate to transfer the dilectus to themselves. Aided by a censorial edict, they enrolled in eleven days (presumably a short time for such a levy) all the troops decreed to the consuls.205 The Senate eventually went so far as to remove from the consul Cn. Servilius Caepio the option of choosing which newly enrolled legions were to serve in his provincia (“Italia,” meaning in this year Gaul). Tactfully, the praetors gave the consul his choice.206 Such provocative measures were most unusual. And (as we have seen just above, in 5.4.6) if a city praetor acted in place of the consuls without a senatus consultum, he could not expect support. 5.5.2 Religious Duties Mommsen long ago demonstrated that major religious duties such as the making of a vow for the state, the dedication of a temple, and the performance of games instituted as a result of vows were the responsibilities of magistrates (usually with imperium); the various colleges of priests acted in only an advisory capacity.207 In our period, such major responsibilities—with the important exception of the Latin Festival—routinely devolved upon the city praetors when no consul (or dictator) was available. Livy provides ample references to the urban praetor making vows on behalf of the state, declaring supplicationes, and the like.208 The praetor’s powers in religious matters are particularly well illustrated by an incident of 181, when the scribe L. Petilius (the name is doubtful) was made to turn over to a “familiaris” (thus Livy), the urban praetor Q. Petilius Spurinus, the socalled Books of Numa Pompilius, which he had unearthed when digging on his farm on the Janiculum. The urban praetor was not just a familiaris: he was also the competent magistrate, since the consuls were out of the city.209 The praetor decided that these books contained matter subversive to the Roman state religion, and he wished them destroyed. He had full power to do so: the scribe in turn could only appeal to the tribunes’ auxilium. When the tribunes turned the matter over to the Senate’s authority, the Senate backed the praetor, and the books were burned.210 A similar case belongs to the year 123. On her own authority, a Vestal Licinia made a dedication of a small shrine, with altar and pulvinar, on the Aventine, near the temple of Bona Dea “Subsaxana.” The Senate asked the urban praetor Sex. Iulius Caesar to refer the question of the validity of Licinia’s dedication to the college of pontifices. When the pontifices replied in the negative—for it had been made in a public place without the People’s permission—a senatus consultum instructed the praetor to take care that Licinia’s dedication not be regarded as sacred (probably by demolishing it), and to erase any inscriptions she may have made for her objects. As a Vestal Virgin, Licinia perhaps thought that she did not come under the
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purview of the relevant statute, the lex Papiria de dedicationibus, which required popular approval of a range of magisterial dedications. Judging from the pontiffs’ formal response, the Papirian law must have been in effect by this time.211 Note that the (probably contemporary) praetor C. Sextius C.f. Calvinus, who (merely) restored an altar on the Palatine, notes in his inscription that he did so “de senati sententia.”212 As in the dilectus, the urban praetor could perform state religious duties even when a superior magistrate was available—so long as the Senate considered it expedient. For example, in the year 217, since the dictator Q. Fabius Maximus was occupied with war preparations, the Senate charged the urban praetor to see to the fulfillment of a wide variety of religious obligations. Even though the dictator was present in the city, the praetor of 217 vowed five years’ worth of “ludi magni” to Jupiter, and performed the first of these.213 In 186, though the consuls had the quaestio de Bacchanalibus proper and were expected to spend part of the year in the city, any person who considered the Bacchic worship necessary was instructed “to make a statement to the urban praetor, and the praetor would consult the Senate.”214 And in 167, after the Roman victory in the east, the Senate decided that the two city praetors should repeat the same honors paid to the pulvinaria in Rome during the celebrations in 185 for the defeat of Antiochus III (on that earlier occasion, it was the consuls who saw to the task).215 The consuls were still in the city, but may have been occupied with the numerous embassies which had come from abroad to offer congratulations on Rome’s victory over Perseus: we are told one of the consuls was detained in Rome expressly for this purpose.216 The dedication of a temple to the Magna Mater and the celebration of the special Ludi Megalenses by M. Iunius Brutus, praetor urbanus et inter peregrinos in 191, offers a good example of the circumstances in which a consul might let a praetor take precedence in an important religious matter.217 At the time of the dedication of the temple, the consul P. Cornelius Scipio Nasica was still in the city, as was his consular colleague M.’ Acilius Glabrio.218 This is noteworthy. True, Dionysius of Halicarnassus says that “the praetors” (oiJ strathgoiv) had supervision of the rites of the Magna Mater—and so conceivably right from the introduction of the cult to Rome in 204. Yet when the image of the Magna Mater came to Rome on that occasion, it was Scipio Nasica who had been chosen as the “best man” (“vir optimus”) in the state to receive it.219 Here the motive was purely practical. Livy tells us explicitly that at the very time of the dedication Scipio was busy celebrating his own votive games, vowed two years before while he was fighting in Spain. The consul was quite strapped for cash. The Senate had rejected Scipio’s request for state money to hold his ten days of games as “unprecedented and unreasonable.”220 It is implied that he had already deposited the booty in the treasury, apparently without earmarking some for these games—a surprising technical oversight. And since M.’ Acilius Glabrio was preparing for a major war in the east and evidently trying to leave from Italy as early as possible, the dedication of the temple of the Magna Mater and the special games which followed devolved upon the praetor urbanus et inter peregrinos.221 Several religious duties of the praetor urbanus which are known for the later Republic have no specific positive attestation for this period: for example, the
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urban praetor’s regular sacrifice at the ara maxima and to the Dioscuri (12.1.1), the supervision of the Compitalia, and the obscure “piscatorii ludi.”222 In 197, the colleagues of the urban praetor, who was the disabled Hannibalic War veteran M. Sergius Silus, unsuccessfully tried to keep him away from the performance of religious duties—whatever they amounted to at this time—on the grounds that he was infirm.223 We must assume that if his colleagues had succeeded in this, the peregrine praetor—now relocalized in the city—would have taken over his responsibilities. But a formal reallotment of the provincia urbana to the peregrine praetor by the Senate might have been obligatory. We have seen that happen in 184: the praetor urbanus was the only magistrate competent to supervise the Ludi Apollinares, as the Marcian oracle had ordained (5.2.2). In other religious matters, the urban praetor seems to have had precedence over the peregrine praetor, but the two could work together if necessary.
5.6 Legal Duties of the City Praetors For the years 218–122, we know very little about the routine legal duties of the urban and peregrine praetors, in either the criminal or civil spheres.224 In this general section, I examine first (5.6.1–2) the evidence for the handling of criminal law, in particular special quaestiones, the one area of legal activity where we have some hard information for this period.225 Here we learn that, in a pinch, praetors are completely interchangeable, regardless of the provincia they received in the sortition. I then (5.6.3–4) argue that, when it came to the civil law, the peregrine praetor—the object of much modern speculation—was essentially the same in conception as the praetor urbanus and the praetors in their provinces. All praetors had the right (in their own provinciae) to hear cases between Roman citizens, or between citizens and peregrines, and in time we know they could even set up a framework for foreigners to contest a suit on the Roman citizen model.226 In the city, the peregrine praetor functioned (as in other areas of activity) as the adiutor of the urban praetor. As such, he was likely to receive responsibility for the cases which the urban praetor was too busy or considered less important. A fair number of those cases conceivably involved peregrini. But in no way was the peregrine praetor restricted to hearing cases in which a peregrinus was a litigant, nor, when it came to procedure, was he circumscribed in any formal way. 5.6.1 Criminal Law: General Considerations In Cicero’s ideal constitution of the De Legibus, all magistrates are to have “auspicium iudiciumque.” It stands to reason that all magistrates, from quaestor up, indeed received auspicia in some form (see 1.3.4). They seem certain to have had iudicatio as well, regardless whether their individual magistracy involved imperium.227 Recently, C. Mackay has argued powerfully (and, in my view, rightly) in support of Mommsen’s position that the iudicium populi is the original mode of criminal prosecution in Rome, one which was based on the Roman citizen’s right to provocatio.228 In Mommsen’s view, the Centuriate Assembly from the time of its creation properly heard all cases of provocatio against a magistrate’s iudicatio on a
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capital charge. The comitia tributa or concilium plebis voted on corresponding cases involving a fine.229 Since we hear of tribunes approaching the urban praetor to present a capital charge before the comitia centuriata well down into the second century (see below), we can assume for our period that this assembly remained the proper forum for the decisive stage of such trials.230 Where we can check, we find even common crimes being prosecuted “apud populum,” well into the second century.231 A word about procedure in iudicia populi. By the late third century, the anquisitio, or preliminary investigation for a comitial trial, consisted of four contiones. At the third contio, the magistrate—normally a quaestor or tribunus plebis—proposed a sentence. If it was capital, the quaestor or tribune requested a magistrate with imperium to set a day for a meeting of the comitia centuriata; if it involved simply a fine, a plebeian aedile or tribune would schedule a meeting of the concilium plebis. In either case, the last contio (“quarta accusatio”), where the magistrate pronounces his formal judgement (iudicatio, or in case of a fine, inrogatio) was held immediately before the relevant comitia. The comitia served formally as a court of appeal to the preceding iudicatio. The fact that the assembly had been scheduled even after the third contio shows that provocatio was by now an integral part of the process; in capital cases, it appears to have arisen automatically from the iudicatio. At the comitial meeting the iudicatio or inrogatio was contested, until finally the appropriate presiding magistrate put the matter to a vote.232 The capital procedure is reasonably well attested for our period. We are told that a tribune of 211 who sought to prosecute the defeated general Cn. Fulvius (pr. 212) for perduellio asked the urban praetor to summon the comitia centuriata, that is, so that the praetor could submit the tribune’s charge to a vote of the assembly. In 169, a tribune of the Plebs who wished to prosecute the censors of the year approached the urban praetor for the same reason.233 A fragment of Valerius Antias, from Book 45 of his Annales,234 shows this procedure yet again. In this fragment, an “M. Marcius praetor” is asked by the tribune “Licinius” to set a day for the comitia to vote on a charge of perduellio. F. Münzer235 guessed that “M. Marcius” might be identified with the M. Marcius Ralla who was praetor urbanus in 204. If so, Valerius Antias will have had to mention this incident in retrospect. A more likely alternative—judging from the book number and the mention of “perduellio” (and not “maiestas”)—is that the praetor M. Marcius belongs to the period ca. 125–110.236 These instances of the urban praetor setting the day for the Centuriate Assembly are, strictly speaking, examples of his right to treat with the People (ius agendi cum populo). We are not told that the praetor conducted the trial himself. He was simply in charge of the voting.237 In the year 211, we must have the same procedure as in these three examples when the tribunes decided to prosecute for a capital crime the publicanus M. Postumius Pyrgensis, and then those who rioted on his behalf.238 The fact that the tribunes “named a day for Postumius on a capital charge” (“rei capitalis diem Postumio dixerunt”) should not be taken to imply that they planned for the concilium plebis to decide the matter.239 Here (as often) Livy simply is neglecting to report the full procedure.240 But as we have seen, in cases where only a fine was involved the tribunes could preside over the relevant assembly meeting themselves.241
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Over thirty-five years ago, W. Kunkel proposed that a praetor—or, when it came to “criminals from the lower stratum of the free population,” a IIIvir capitalis—was capable of exercising inappellate criminal and even capital jurisdiction over Roman citizens. (For this, Kunkel adduces little positive evidence, none of it compelling.) Kunkel also argued that these magistrates always did this sitting with a consilium by whose decision they were bound.242 I find Kunkel’s views on criminal juridiction unconvincing. One counterargument to such a reconstruction is that the iudicia populi (as noted above) are found prosecuting even ordinary crimes. For a consul or praetor to hear capital cases involving Roman citizens outside the iudicia populi system, the People (in the comitia tributa) or Plebs had to authorize a special or permanent quaestio, specifying in the enabling law that there is to be no provocatio. If Kunkel is correct that praetors and the IIIviri normally exercised a capital jurisdiction, why should such a vote be necessary?243 It is just possible that at some time a general law was passed which allowed delegation of the People’s power to the IIIviri in certain cases. But for that there is no actual evidence.244 However, it does seem reasonable to suppose that the praetor had summary jurisdiction over noncitizens and slaves, outside and so surely inside the city—though the latter (perhaps understandably) again receives no positive attestation for our period.245 5.6.2 Division of Quaestiones and Police Actions The basic sense of a quaestio is a magistrate’s investigation of a matter, normally on instruction by the Senate. The annalistic tradition tells of some late fifth- and fourth-century quaestiones, some in the city, where consuls or even a dictator preside. Only one of these is perhaps genuine (a quaestio reported for 319 at Satricum).246 For the Hannibalic era, we have some reasonably trustworthy examples of quaestiones being conducted in the sphere militiae.247 Indeed, C. Mackay plausibly suggests that this was the original form; it was only later that quaestiones were transferred (by vote of the People or Plebs) to the sphere domi.248 The first two instances of special quaestiones within the city are found in Livy’s narrative of the mid 180s. In 187, a plebiscite allegedly set up a special quaestio to investigate reports of misconduct by L. Cornelius Scipio (cos. 190) and some members of his staff (the rogatio Petilia, discussed below in this section). In this particular quaestio, we are told that the penalty was to be a fine. But in the next year, in an attempt to stamp out the unauthorized performance of Bacchic rituals, the Romans introduced a capital quaestio which functioned both inside and outside the city.249 The institution was retained, once the Senate recognized its usefulness. We are not told that a plebiscite or law was passed in this instance, or in several subsequent examples. But Mackay is right to argue that the People or Plebs must have approved all such special quaestiones, even where a popular vote is not specifically mentioned.250 Consuls might preside over important quaestiones, both within Rome and beyond.251 However, normally the supervision of special quaestiones in the preGracchan period went to praetors: occasionally the urban praetor, but more often the peregrine praetor. Superintendency was probably determined simply by the relative availability of the various praetors, not by some exclusive power inherent in
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their respective provinciae. Consider the quaestiones on poisoning (de veneficiis) entrusted respectively to the peregrine praetor—aided by a praetor for Sardinia— in 180 and the urban praetor in 179. In 180, the peregrine praetor saw to poisoning cases in and near Rome (within the tenth milestone), surely because there were six praetors in that year. The urban praetor took over this same task in 179 because there were, under the lex Baebia, only four elected.252 The Senate may have felt that it was good policy to leave the praetor inter peregrinos unencumbered in the case of an emergency; and this particular quaestio would not have prevented the urban praetor from fulfilling his regular tasks. But it was not simply the city praetors who received such special quaestiones. In 184, a praetor for Sardinia (Q. Naevius Matho) had been detained for four months hearing cases de veneficiis, mainly outside the city. As noted, in 180 the Sardinian praetor, C. Maenius, helped the peregrine praetor with his investigation of poisoning cases, holding quaestiones outside the tenth milestone. A provincial praetor could also function in this capacity within the city. In 171, L. Canuleius— praetor for Spain—was responsible for setting up a special quaestio in Rome to allow certain Spanish allies to reclaim losses. And in 167, the praetor for Sardinia, A. Manlius Torquatus, conducted a capital quaestio (we are not told what charge was involved), probably in or near the city. There is a somewhat analogous case for 177. In that year, L. Mummius, a “praetor without portfolio”—he originally had been allotted Sardinia, but the Senate had officially superseded his provincia— found himself reassigned to a special quaestio in Rome concerning Latins who had taken up illegal residence in the city. So the city praetors were not uniquely qualified to conduct such trials.253 The division of police actions also may shed some light on the nature of the city provinciae. Both the urban praetor (in 161) and the praetor inter peregrinos (in 139) are reported to have issued edicts expelling unwanted groups. In the S.C. de philosophis et de rhetoribus reported by Gellius for 161,254 the praetor who convened the Senate on the matter, M. Pomponius (surely pr. urb.), received the task of expelling practitioners of these professions from Rome (“uti Romae ne essent”). Though the consuls evidently were not in the city at the time, the peregrine praetor should have been there, as was normal starting in 197. We know of no war in Italy or elsewhere in that year to which he might have been sent. The geographical area in which investigations were expected to take place (no further than the city limits) should explain the urban praetor’s involvement, rather than the citizen status of the philosophers and rhetoricians.255 In 139, we are told that the peregrine praetor Cn. Cornelius Scipio Hispanus issued an edict expelling Chaldaeans and (perhaps) Jews not just from Rome, but from all Italy.256 Cn. Scipio was involved surely not because he had a special jurisdiction over foreigners, but because he was free to leave the city to investigate compliance with his edict. The Senate may have expected him to do some police work to make sure that the targeted groups had actually left Italy. It would seem that the city praetors divided responsibility for tasks of this sort on the basis of location (“ratione loci”), depending on whether the Senate wished that the offensive parties be run out of Rome (as was the brief of the pr. urb. 161), or from Italy as a whole (the pr. per. 139). But if so, that scheme was flexible. It is
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instructive to look at the handling of two investigations (held ten years apart) made at the request of Latin envoys to Rome. In 187, when the Senate wanted to seek out and expel Latins who had illegally maintained a residence in Rome by passing themselves off as citizens, it gave the task to the peregrine praetor Q. Terentius Culleo. His quaestio rounded up 12,000 Latins, who were made to return to their homes. However, in 177, member communities of the Latin federation again complained that a large number of their citizens had moved to Rome and enrolled into the census. This time the Senate handed the special quaestio to an “extra,” unoccupied praetor of that year, L. Mummius, who originally had been allotted Sardinia, only to see it declared consular.257 Simple practical considerations must have been paramount. The Senate’s desire to keep the urban praetor free of complicated tasks outside the city (as seen in 187, 177, and 139) meant—if we are to believe Livy—that sometimes the peregrine praetor had to hold more than one quaestio concurrently. We are told that in 187, on the motion of the praetor urbanus, the Senate handed to the peregrine praetor Q. Terentius Culleo the criminal investigation and trial prompted by the tribunician bill of the two Q. Petilii. In this quaestio, L. Cornelius Scipio (cos. 190) and two members of his staff allegedly were found guilty of peculation.258 The quaestio is said to have taken most of the year;259 if true, it must have been held at the same time as the peregrine praetor’s quaestio on the Latins (see immediately above). In 180, the peregrine praetor C. Claudius Pulcher had responsibility for his quaestio de veneficiis (see above in this section—still going on in 179), perhaps at the same time as an investigation concerning the detention of Roman citizens in Corcyra by king Gentius. Livy expressly tells us the praetor did not have to travel for that second task. But again, we have here a dubious story, since Corcyra was under Roman “protection” and never controlled by Gentius.260 Rarely was a quaestio important enough to involve both city praetors. Only one shows up in our record—the last installment of the story of the Ligurian Statellates enslaved by M. Popillius Laenas (cos. 173) (see 5.4.2 and 5.6.1). In 172, a plebiscite stipulated that this tribe was to be restored to freedom by a set date (1 August). The same measure ordered that the praetor urbanus convoke the Senate—though the consuls were still in the city—regarding who was to head a quaestio to investigate Popillius’ actions. A second plebiscite later followed, stating that if the ex-consul did not return to Rome by the 13 November, the urban praetor should pass judgment on him in absentia. Popillius eventually returned, only to face a hostile Senate. A senatus consultum was passed, that the urban and peregrine praetors should see to the freeing of the Statellates, and that the consul C. Popillius (M. Popillius’ brother) should give this people land north of the Po.261 The intention behind this senatus consultum is clear. But it is difficult to imagine that both these praetors actually proceeded to Liguria to free the Statellates after the senatus consultum was passed (in mid-November?). The Statellates (or most of them) had probably been sold into slavery not on the spot, but in Italy, through established slave markets. That is why the praetors get the job of freeing them (perhaps one in and around Rome, and the other further afield). All the same, the praetor urbanus had to stay in the city, among other things, to hear the case of M. Popillius Laenas, which presumably would begin in mid-November
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and, as matters turned out, was drawn out to the very end of the year.262 Both praetors also had to start the military preparations for the expedition against Perseus well before the announced muster date of 13 February.263 At best, only the peregrine praetor Cn. Sicinius could assist during his actual year of office in the freeing of the thousands of Statellates, and then only briefly, before he crossed over with an expeditionary force to Macedonia. It must be admitted that the Senate did not realistically expect both praetors to try to free the Statellates in 172. It wanted to frighten the ex-consul M. Laenas, that he would have to appear before one of the praetors conducting this investigation. To save time, the senatus consultum probably authorized a hearing of the Statellates en masse. If Popillius refused to assert his claim (which we safely can assume is what happened), the Statellates presumably would be regarded as free. The consul could not risk turning up. His inevitable defeat would be a praeiudicium to his own case. This reconstruction may explain Livy’s assertion that “this senatus consultum restored many thousands of men to freedom.”264 Livy’s statement, however, oversimplifies the various things which had to be done, including finding out who might have been wrongfully enslaved and following up confirmed cases, and then paying the innocent buyers. There must have been a large number of cases to investigate, in view of the fact that all Ligurians who had kept the peace for the previous seven years were deemed “innocent.” We cannot tell how the praetors were meant to divide the job between themselves. Though Livy does not bother to notice, the urban praetor of 172, C. Licinius Crassus, may have had to finish up near the end of the year what his colleague Cn. Sicinius did not have time to do.265 The results of our inquiry on quaestiones and police actions are negative, but telling. In this sphere, there is no evidence in the Livian period (or beyond in the second century)266 for the division of responsibilities between the two city praetors on the basis of content (“ratione materiae”). At all times—but especially when the consuls were absent from Rome—the urban praetor had to see to a wide range of routine tasks. Occasionally, he might delegate some of his work to the peregrine praetor. The urban praetor was often the first in line to undertake extraordinary duties as well—unless those would take him too far from Rome, or seriously impinge on his other obligations. In that case, the Senate used the peregrine praetor, if available. But we have seen that other praetors could just as well assist the praetor urbanus or inter peregrinos. The Senate’s administrative decisions in this sphere were informed by pragmatic, not legal, concerns.
5.6.3 Civil Law: General Considerations As A. Watson has observed, “[A] few sober facts [pertaining to law] are given by Livy, but his lack of interest in all things legal makes him a particularly unhelpful source.”267 For the period of the Hannibalic War, direct evidence on the praetors’ role in the civil law is particularly sparse. Livy provides a brief notice that the urban and peregrine praetors of 215 moved their tribunals to a location near the southeast gate of the city (5.2.5), but that is all. Gaius speaks of a lex Atilia (generally dated to
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210), which allowed the (urban) praetor and a majority of the tribunes of the Plebs to appoint a tutor for a fatherless child.268 After the Second Punic War, references in our sources to the responsibilities of the praetor urbanus in civil law increase somewhat. This praetor (in chronological order) is found granting a tutor to a freedwoman,269 hearing a difficult inheritance case,270 presiding over the first stage of an actio tutelae,271 and (near the very end of our period) ruling on the admissability of a particular action against heirs.272 Varro recounted the story of a curule aedile, M. (Valerius) Laevinus, who was once haled before the praetor’s court by a private citizen. The incident may refer to the man who was pr. 182, but conceivably the cos. (?II) 210.273 Nevertheless, there are a few passages from which we can infer the nature of praetorian legal activity.274 The comedies of Plautus also provide a few glimpses into the legal aspect of the praetor.275 But most of Plautus’ references to the praetor—always singular, and thus surely the urban praetor (5.1.1)—are quite generic.276 Cumulatively, they simply confirm what we automatically would expect, namely that the urban praetor was responsible for routine civil jurisdiction. To form any idea of the praetors’ legal activities, we still must retroject from later sources, which means Cicero, or (more often) Imperial jurists. As far back as we can tell, a Roman civil trial before a praetor—whether under the procedure of legis actiones or per formulas (see immediately below)—took place in two stages. The praetor involved himself directly only in the first (“in iure”), where he defined the legal issue in contention, and appointed a juror (iudex) to render the actual judgment in a second (and final) stage (“apud iudicem”).277 Legal scholars have long attempted to trace the general methods by which the praetor managed to advance the law in the “dark age” before our sources marginally improve for the first century. Here I have little new to contribute, and so I shall mostly summarize some generally accepted lines of development.278 One avenue for change was the praetor’s manipulation of the preexisting civil law procedure for new ends.279 Another is the praetor’s recognition of new forms of action not provided by statute.280 The praetor also began to allow the iudex broad discretion as to what factors he should take into consideration when formulating his decision. Starting perhaps as early as the mid-third century, a particular type of action arose in which the praetor added in his instructions to the iudex the qualification “ex bona fide” (“in accordance with good faith”). In effect, this meant that the iudex, in forming his decision, also was to consider whether the plaintiff’s claim was inequitable.281 Indeed, the praetor’s promotion of the principle of aequitas must stand as his most significant contribution to Roman law.282 At some point in the mid-Republic, it was allowed for contestants in the first stage of a civil suit (i.e., “in iure,” before the magistrate) to state their claims (“per concepta verba”), rather than “per certa verba,” as in the ancient system of legis actiones.283 Now, in the legis actiones procedure, the plaintiff had to adapt his claim to a set number of fixed phrases (“certa verba”), according to which the praetor instructed a iudex to decide the matter in terms of the substantive law. Under the later formulary system, the litigants and praetor jointly arrived at a written “formula” to be used in the second stage of the trial (“apud iudicem”). One great advantage of the formulary system is that it allowed a more accurate definition of the
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issue at hand. In particular, the praetor might insert into the formula an exceptio, a clause instructing the iudex not to condemn if he finds a special set of circumstances to be true. The formulary system generally had the potential of producing more exact and thus fairer judgements than was possible under the less flexible forms of the legis actiones. It also (as is widely recognized) generally enhanced the importance of the praetorship in the city. A lex Aebutia—generally thought to date between 149 and 125—followed by two (Augustan) leges Iuliae had the cumulative effect of establishing the formulary actions as the standard mode of procedure in most legal situations.284 A common explanation for the emergence of the formulary system is that foreigners were unable to use the rigorous procedural forms of the legis actiones, hence the peregrine praetor developed the simpler type (formulae) for them.285 But I think the formulary system is more likely to have originated as a “dodge” of simple convenience, meant primarily for cases involving citizens. Varro (citing the jurist Q. Mucius Scaevola, cos. 117) tells us that a praetor was liable to religious penalties if he used the solemn formulas of a legis actio on a day marked “nefastus” in the calendar:286 we can assume pleading “per formulas” was not restricted in this way. It may have been an increase in the praetors’ legal (and other) work which prompted at some stage the pontifices—surely the competent body287—to allow that a formula could substitute for “certa verba” in a civil suit, thus allowing legal actions to proceed even on dies nefasti. Once that door was open, it was only a matter of time for praetors to start developing formulae for a wide range of actions. Eventually, professional jurists lent their hand to the praetors.288 By Cicero’s day, the formulary system had overtaken (though not eliminated) that of the legis actiones. It is difficult to come up with a chronology for these developments, but actions with formulae are likely to have been recognized as valid by the year 200.289 In contrast to the procedure of the legis actiones, the formulary system allowed the praetor great scope to develop new rights and even to restrict preexisting ones.290 Formulae were not prescribed by law: their composition and application rested on the praetor’s authority. In time, the praetor could agree to the use of a formula even if it had no basis in the civil law. Alternately, he could refuse to assent to a particular formula, even in an area where the civil law provided an action.291 The praetor also could provide remedies outside this procedural framework. Praetors issued interdicta in the context of private law as provisional remedies.292 They also might compel a party to make a promise to another (stipulatio), applying coercive measures (especially the device of missio in possessionem, an authorization for one party in a suit to enter into the property of another) if their order was refused or violated.293 Like other magistrates and the tribunes, praetors had the right to issue public notices (edicta) to the People; as early as Plautus’ Poenulus we find a parody of a praetorian edict meant to prescribe behavior at the festival where the comedy was staged.294 As the praetor’s flexibility in applying private law increased, at some point he started to promulgate in a written edict issued at the beginning of his term the general principles according to which he would act in this sphere: the edictum perpetuum, valid for the entire year of his magistracy.295 (Let us postpone for the
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moment the question of edicts other than that of the urban praetor.) It is possible (perhaps probable) that an early law required that the praetor urbanus issue an edict at the beginning of his term—just as a much later one required that he abide by it (12.1.3). In its developed form, the praetor’s edict specified (most importantly) the conditions under which he would grant formulae, the various exceptiones he would admit into those formulae, and also the remedies he would introduce where the civil law gave no action. There is no clear indication exactly when the praetorian edict started to compete with popular legislation as an instrument in modifying private law. We can assign a reasonably firm date to merely a few edictal provisions which substantially changed existing civil law rights. The date of only one measure is certain; interestingly—and perhaps significantly—it does not come from the urban praetor. In 76, the peregrine praetor M. Licinius Lucullus issued an edict concerning crimes by armed bands of slaves (“de vi coactis armatisque hominibus”) which soon found its way into the urban praetor’s edict (12.2.1). Our other, less specific scraps of evidence take us back perhaps only a few decades.296 It is particularly fruitless to attempt to date individual provisions on stylistic grounds.297 Nevertheless, we can ascertain that the praetor was effectively changing the substantive law by the early first century, and perhaps a bit before; how much so is a matter of contention.298 In the year 70, Cicero in the Verrines can refer to the “lex annua” and the “ius praetorium,” indicating that the praetors’ edictum perpetuum was by then viewed as containing a separate corpus of law, distinct from the ius civile. Some three decades later, in the De Legibus, Cicero could remark that many people thought the praetorian edict had eclipsed the XII Tables as a source for law.299 Soon the edict prompted written commentaries by Ser. Sulpicius Rufus (cos. 51), and more fully, by his pupil the jurist A. Ofilius.300 I shall examine some problems connected with the development of the praetorian edict in 12.3.1–3. 5.6.4 The Jurisdiction of the Peregrine Praetor No source gives us actual details of the legal jurisdiction of the praetor inter peregrinos for this period, or the later Republic. It is remarkable that he is never even mentioned by title in the extant works of Cicero. All the same, there is no shortage of modern hypotheses. In general, scholars have been reluctant to discard the statement of the epitomator of Pomponius, that the peregrine praetor “generally administered law among noncitizens” (“plerumque inter peregrinos ius dicebat”),301 which we have seen in 4.2 is very likely no more than a guess. The most stubborn defense of this passage has been offered by D. Daube. Daube—arguing largely from the evidence on titulature—asserts that before the creation of the peregrine praetor, the urban praetor, though exercising jurisdiction principally between citizens, also heard cases at law between peregrines and citizens, but not between peregrines. The peregrine praetor was created expressly to meet that need. In fact, this praetor had jurisdiction only in lawsuits involving peregrines down to the lex Calpurnia repetundarum of 149, when (according to Mommsen’s hypothesis) he first started hearing charges which peregrines in the provinces brought against their governors. This was his first work inter cives et peregrinos; eventually, Augustus
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changed the peregrine praetor’s title to reflect what had now become his de facto competence.302 In a 1954 monograph, F. Serrao took issue with Daube’s explanation, arguing that, in the mid-third century, suits in which both parties were peregrini can have constituted only a small proportion of legal cases. Serrao proposed that the two city praetors differed only in the legal procedure they used in their respective courts. Litigants who went before the urban praetor employed the legis actiones (which were not available to peregrini). When a peregrine and a citizen or two peregrines were involved in a suit, they pleaded before the peregrine praetor by formulae. But sometime in or soon after the third quarter of the second century, the lex Aebutia allowed the formulary process for cases in which both parties were citizens. This law meant the elimination of the rigid distinction between the operational modes of the two city provinciae. It also allowed the peregrine praetor to exercise jurisdiction inter cives, and the urban praetor to hear cases involving peregrini.303 Serrao in his work chose not to look at the non-judicial aspects of the peregrine praetorship. In 1955, D. Arriat, writing independently of Serrao, attempted to offer a more balanced view, examining the peregrine praetor’s legal duties against the background of his other functions, in both Republic and Empire. Arriat also imports some (dubious) parallels from Athenian law, especially the functions of the polemarch.304 Like Serrao, Arriat believes that the peregrine praetor was always competent in suits between citizens and peregrines. Indeed, for Arriat, the peregrine praetor was introduced precisely to protect commercial transactions between Romans and noncitizens. Since peregrines could not use the legis actio procedure, the Romans—under Greek influence—created this new praetor and at the same time a new process, the system of pleading per formulas.305 Many scholars other than Serrao and Arriat have attributed to the peregrine praetor the development of the formulary process.306 There are some considerable obstacles to this hypothesis. For a start (as we have already remarked in 4.3.4), there is a problem with logistics. Among his various duties, the peregrine praetor surely will have shared in the burden of hearing cases at law in Rome. He may have first begun this role as early as the 220s: remember that by 215, both the urban praetor and praetor inter peregrinos are said to have their own tribunals.307 But it was starting only with the year 197 that this magistrate can have spent enough continuous time in Rome to develop (as is so often alleged) a specialized legal competency distinct from that of the praetor urbanus. On this analysis, it is an open question when the peregrine praetor can have come up with the formulary system, or started the real work of what many postulate as his most substantial achievement, the creation of a comprehensive system of legal principles parallel to the ius civile, but open to foreigners (the “ius gentium”).308 J. S. Richardson309 more recently has produced some arguments from a legal perspective why the peregrine praetor is unlikely to have introduced the actio per formulas. For Richardson, the difference between the two city jurisdictions cannot depend on some exclusive competence relating to litigants’ citizen status, for peregrines can be shown to have had access to Roman law as early as the XII Tables. Nor is it based on procedure. Even in the developed formulary procedure, peregrines still needed a fiction of citizenship;310 it is unlikely that such a system was
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invented for their benefit. Richardson sees the creation of the peregrine praetorship—which he dates to 243—partly as a means to handle an overflow of cases brought before the urban praetor, and partly as a “paternalistic” creation to ensure the rights of Latins and other allies with commercium in business transactions. In return, the Romans expected the loyalty and material help of these socii in what would be the last great military effort of the First Punic War. The peregrines now had a praetor specifically (though not exclusively) concerned with their legal protection. In support of this hypothesis, Richardson can adduce little in the historical record except for the special conditions offered to the corporations of publicani who helped supply on credit the Roman armies in Spain in 215, and the willingness of socii in Etruria and Umbria to provide raw materials for a fleet in 205.311 But all we are told the publicani asked for in 215 was personal exemption from military service (for nineteen individuals in all), and transit insurance for their goods.312 At the time of the First Punic War, the creation of a new magistrate with imperium— the first in more than 120 years—largely to fill a specialized legal task would be an astounding concession to Rome’s wealthy allies. Even if we were to accept Richardson’s reconstruction, it seems Rome soon reneged on its promise. In 4.3.1 and 4.3.4, I have suggested that the peregrine praetor was based in Sicily from ca. 241 down to 227, and then employed for special tasks throughout Italy. When Rome received the help of its socii in 205, no peregrine praetor had spent the bulk of his term in the city for at least a decade.313 In truth, we have no firm evidence for this period that there existed for the peregrine praetor a discrete sphere of formal duties which he specially performed, even his iuris dictio. In nonlegal matters, throughout our period the two city praetors sometimes work in concert on negotia given to them by the Senate.314 Our consideration of the evidence so far shows that when the city praetors acted together, if tasks were divided, this was done by consideration of location (“ratione loci”), not substance or subject matter (“ratione materiae”). The peregrine praetor traditionally seems to have had few formal responsibilities in the city and more de facto mobility than the urban praetor. This is why he occasionally received different sorts of tasks from the praetor urbanus. For instance, we have already observed (5.5.1) that in an emergency dilectus the peregrine praetor usually mustered the allies of the Latin League, the praetor urbanus Roman citizens. In addition (5.4.3), the peregrine praetor dealt with embassies from nations at war with Rome, which were not allowed inside the pomerium and sometimes (though not normally) had to be questioned when they were far from the city. The urban praetor treated with the (far more numerous) friendly embassies. The same administrative principle must have been at work when it came to legal affairs.315 But for that question the bulk of the relevant material (such as it is) comes from the later Republic. We shall have to take up the topic in its proper place (12.2–3).
6
Sicily and Sardinia, 218–122
6.1 Military Activities of the Sicilian and Sardinian Praetors in the Second Punic War In a speech purportedly delivered in 217, Livy makes the hotheaded tr. pl. M. Metilius complain that “two praetors are busied with Sicily and Sardinia, neither of which needs a praetor at this time.”1 The remark is intended to characterize the man as a fool. In the war against Hannibal, the holders of praetorian imperium in the provinciae of Sicily and Sardinia played an essential military role. The Roman fleets stationed off the coast of Sicily and (later) Sardinia served not just as a deterrent to reoccupation—something the Carthaginians were always eager to attempt. This Roman naval presence was the first and perhaps the only regular impediment to the supply line from Carthage to Hannibal. These fleets also helped defend the west coast of Italy against Punic attack. It is difficult to tell what would have faced a Carthaginian armada once it had managed to break through this initial line of defense: we have notices of a secondary fleet guarding the Italian coast only in years of recognized emergency.2 A strong bridgehead in Sicily was crucial for Rome’s offensive policy as well. An invasion of Africa from Sicily was planned from the very beginning of the war. In 218, the consul Ti. Sempronius Longus received as his allotment Africa cum Sicilia. If we are to believe Coelius, the consul got so far as to send a spy ship to seek out a landing place on the African coast.3 Unfortunately for Rome, Hannibal’s presence in Italy delayed this action until the command of P. Cornelius Scipio (Africanus) (cos. 205) in 204–202. But in the meantime, Roman naval commanders (almost invariably of praetorian rank) kept pressure on Carthage with a succession of raids on the African coast. Then there was the agricultural produce of these islands. Once secured, Sicily, Sardinia and Corsica served as major sources of food and revenue for Rome; note, in this connection, the ear of wheat which is a symbol of Sicilian mints in the early denarius coinage.4 For that very reason, there always could be found natives who would have been glad to be rid of the Romans—and their heavy grain quotas. Food 136
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production in these provinciae in fact came to a near standstill in the first years of the war. As early as 216, the armies stationed in Sicily and Sardinia sought support from Rome.5 Since the Senate was unable to send any food or money abroad, the praetor for Sicily had to solicit help from Hiero’s kingdom in the eastern part of the island, while the Sardinian praetor had to look to allied communities on his island.6 The situation was exacerbated by a series of bitter struggles in east Sicily after the Roman defeat at Cannae in 216 and Hiero’s death in 215—as A. Eckstein points out, “an indication that Hiero’s regime was not, in fact, universally loved.”7 Eventually, the Sicilian and Sardinian commanders managed to revive agriculture on these islands. Sardinia is first reported to have resumed exporting grain to Italy in 212. Sicily, however, was not able to send much food to Italy until after M. Valerius Laevinus (cos. II 210 and then pro cos. into 207) had instituted an emergency agricultural program.8 This success contributed in no small part to Rome’s eventual victory.9 In this chapter, I first describe in outline the administrative arrangements in the Hannibalic War for Sicily (6.1.1, a severe summary, with two select problems examined in detail at 6.1.2–3) and Sardinia (6.1.4). This theater offers us an excellent opportunity to see how the Senate time and again could come up with flexible responses to quickly shifting conditions, including the dispatch of privati with imperium and the establishment of new independent commands (even a new, special provincia). Sicily in particular offers us a useful glimpse of how consular and praetorian commanders might interact in the same provincia: at one point we can see four holders of imperium active on the island (for 214 and perhaps 213), which is unparalleled for any provincia outside of Italy for our period. In 6.2.1–2, I discuss the Senate’s administrative attitudes toward Sicily and Sardinia (quite different) in the period from 200 down to the early 160s. Finally, the sections 6.3.1–2 outline the prosopography of commanders for Sicily in the years 165–122, which means mostly the First Slave War of 135–132 (the only stretch for which we can identify a sequence of praetors). We know the identity of none of the men who received Sardinia as a provincia from 166 down to ca. 107. 6.1.1 Sicily in the Hannibalic Period: An Overview In the First Punic War, Sicily routinely was assigned to two magistrates with imperium, and in one year (257) two consuls and a praetor (4.1.2).10 What is more, prorogation of consuls for six months into the following campaigning season was common. And so it was often the case (the years 258, 256–253, 250) that three or four men with imperium were at least notionally available for this theater in the summer and autumn months—though they also might have to fight in Corsica or Sardinia, or raid Africa. For that last task, the Senate also used private citizens who happened to have the money to keep ships in fighting trim.11 In the early years of the Hannibalic War, the problem of the defense of Sicily taxed the administrative ingenuity of the Roman Senate. With Hiero’s help, a single praetor was able to protect the provincia in 218 and 217. However, when the Carthaginans launched a two-pronged attack on Sicily in the crisis year 216, the Romans managed to avert disaster only by sending the urban praetor P. Furius
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Philus on a counterraid of the coast of Africa. In 215, upon the news of Hiero’s death, the Senate tried to respond to the instability which ensued by supplementing the regular command on the island with a special praetorian provincia (classis, “the fleet”—a handy designation, soon to reappear elsewhere), which it handed to a recently returned praetor for Sicily, though now a privatus (see further 6.1.2). Sicily was a consular provincia in each of the years 214 through 207, and then 205 and (surely) 204. Indeed, beginning with the year 214, the consular presence greatly diminished the independent role of the praetors and prorogued praetors who were stationed in Sicily. There was some opportunity for action during the campaign for Syracuse and the first year after its fall, in both east and west Sicily. Yet the bulk of those campaigns were conducted by a holder of consular imperium, with a praetor acting in tactical subordination. A notable exception is M. Cornelius Cethegus, a peregrine praetor who was sent as an interim commander to east Sicily in 211. Cethegus found plenty to keep himself occupied after the pro cos. M. Claudius Marcellus’ departure (that man had been on the island since his consulship of 214) and before he was himself superseded by the consul M. Valerius Laevinus. The arrival of the disgraced exercitus Cannensis in 215 and the exercitus Fulvianus in 212 also shaped the role of the praetors subsequently allotted the provincia of Sicily down to at least 204. The praetor in west Sicily in the years 214–210 was given little more to do than garrison duty and the defense of the Sicilian coast. Starting in 209, the praetor for “Sicilia” was based in the east. We are not told that he even participated in the agricultural program (though that may just be Livy’s selective reporting). Once in the eastern part of the island, this praetor had the potential for service in south Italy. But little is heard of his activities other than one praetorian commander’s subordinate role under the consul T. Quinctius Crispinus at Locri in 208. This lack of activity should not surprise us, for there was almost no trouble in Sicily proper after the campaign of M. Valerius Laevinus in 210. As we shall see (in 8.3.1), praetors with land forces in Italy too were used largely for garrison duty and minor operations until the end of the war. Once the fighting shifted to Africa, the Sicilian praetors remained in place, preparing (not conveying) supplies and defending the coastline against the possibility of a Carthaginian counterattack. An additional point: the example of Q. Pleminius, found as pro praetore at Rhegium and then Locri in 205 (see 6.1.3 for discussion), should alert us to the possibility that there were a few more privati with delegated imperium protecting major south Italian and Sicilian towns at this time.12 The praetors allotted Sicily were successful in that the Carthaginians made no serious attempt to attack the island after 211. The commanders in the provincia “classis” had a more active role, and it is they who cross over to Africa to serve in the final campaign under P. Scipio. Once the war came to an end, a single praetor administered the whole of Sicily with a much reduced force. In 201, the Senate probably removed the fleet altogether from the island, leaving the new praetor P. Aelius Tubero to command a land force of two legions.13 The next year, the Roman presence in the island was reduced to a skeleton force of five thousand allies to serve as a praesidium, mirror-
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ing developments in Sardinia, Gaul, and Bruttium. This was probably just above the bare minimum necessary to control Sicily.14 One additional general comment on Sicily in this period. A quaestor was stationed at Lilybaeum probably by 227, and perhaps as early as ca. 240 (4.2). We know for the later Republic that each praetor in Sicily regularly had two quaestors, one each for the eastern and western portions of the island.15 W. V. Harris16 has suggested that “the most plausible date for the creation of the second quaestorship is clearly 211 when the province had just been enlarged by the addition of Syracuse.” Harris’s precise date need not be accepted; however, we should regard 211 as a nearcertain terminus post quem. After the acquisition of Hiero’s kingdom, it would not be surprising if some in the Senate thought Sicily ought to be divided into two praetorian provinciae, if only for military reasons; experience had shown that the island was too large for one Roman commander to defend in an emergency. The two quaestors do seem to be a compromise solution, meant to remove the necessity of the addition of another praetor. (Even while the Second Punic War was in progress, many in the Senate must have anticipated the eventual annexation of the larger Iberian peninsula, with its bellicose tribes.) Another possible date for the introduction of the eastern and western quaestors is 206, the first year in which one praetor had to look after the entire island—and in which the Senate would have a bit of leisure to think about devising a permanent command structure for this enhanced provincia. After the Hannibalic War, the primary task of the two quaestors must have been to supervise taxation, that is, under two different systems, that of the old Syracusan kingdom and that of the original Punic provincia. Eventually, probably under the lex Rupilia of 132/131 (see 6.3.1), the two parts of the provincia were unified on the more profitable Syracusan model. But even after the unification of the provincia, the Romans, simply out of conservatism, retained the eastern and western quaestors.17 6.1.2 The Development of “the Fleet” as a Praetorian Provincia Not far into the year 215, word had come of the death of king Hiero in Syracuse. When the pr. 215 Ap. Claudius Pulcher sent two embassies to the king’s grandson Hieronymus, the Syracusan government unexpectedly revealed pro-Carthaginian sympathies.18 Immediately, the Senate decided to increase the Roman presence in the area. Now, in that year the peregrine praetor M. Valerius Laevinus (the future cos. 210) had been (or soon was to be) dispatched to Luceria,19 and Q. Fulvius Flaccus was the sole praetor in the city. The one remaining praetor of 215, Q. Mucius Scaevola, was soon to fall seriously ill in Sardinia. Of the four praetors of the previous year, one had been killed (L. Postumius Albinus), one had been seriously wounded during an extraordinary raid on Africa (P. Furius Philus), and the other two could not be moved (M. Marcellus in south Italy, Pomponius Matho in Gaul). The Senate’s response was to send the privatus T. Otacilius Crassus once again to Sicily—he had been there as pr. 217—this time with a special grant of imperium.20
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T. Otacilius Crassus had returned to Rome from that Sicilian praetorship of 217 by late 216 or early 215, and had completed an old vow to dedicate a temple of Mens (on the Capitol) in early summer 215 (the attested date is 8 June).21 Livy does not bother to explain the circumstances of his special command, other than that he was dispatched “with imperium to command the fleet” (“cum imperio qui classi praeesset”).22 This cannot have been prorogation. If Crassus (and the Senate) had expected in 215 that he was to return to Sicily, the simplest thing would have been for him to receive a dispensation from the Senate—or even the People—to perform the dedication and then resume his duties. But perhaps he had not planned to find himself back in Sicily. The reported date of his dedication (8 June) is somewhat into the campaigning season. Since the consuls were probably in the field by now,23 we should assume that the urban praetor secured a special lex de imperio for Crassus, perhaps from the People, but surely in the Curiate Assembly.24 Despite T. Otacilius Crassus’ special status, he is nonetheless described as “praetor.”25 This finds a parallel in the appointment of T. Manlius Torquatus in that same year, who was certainly a privatus when he received his grant of imperium for Sardinia (discussed at 6.1.4). And both these cases have a possible precedent from earlier in 215 (see 8.3.1 on M. Claudius Marcellus). T. Otacilius had a special provincia as well. We are told that his task was not simply to guard the Sicilian coastline, but also to ravage Africa, protect the shores of Italy, and especially to block the transport of goods from Carthage to Hannibal. He had varying success in this. Otacilius did manage to lay waste to the territory around Carthage. But when he later made for Sardinia (which illustrates the wide range of his command), Crassus was unable to inflict any real damage on a Carthaginian fleet which was heading to Italy, allowing it even to land at Locri.26 When T. Otacilius Crassus returned to Rome to stand in the consular elections for 214, the presiding officer—his own father-in-law, Q. Fabius Maximus (cos. III 215)— skewed the election by harshly criticizing his unexceptional performance. Fabius in fact wanted (and got) the consulship for himself; Crassus had to console himself with a praetorship for 214. At least that is the story Livy tells.27 This bit of luck (if that is what it was, and not conscious design) allowed the Romans to place the emergency administrative arrangements of 215 on a more secure footing. Crassus received as his praetorian provincia (apparently) the “classis,” that is, the same command he had had in 215. “Sicilia” (a different lot) fell to P. Cornelius Lentulus: that meant west Sicily, with command of a land force only.28 The Senate trusted T. Crassus enough to let him keep his naval command, as it turned out, for some years longer (he was to be prorogued through 211). He was by no means incompetent. Lentulus’ land force, which consisted largely of disgraced veterans of Cannae, was to be supplemented by men who were struck off the equestrian rolls by the censors of 214. No limit was placed on their service other than the expulsion of Hannibal from Italy.29 The year 214 was probably the first time the Senate placed the “classis” in the praetorian sortition. This was providential. The struggle for the control of Sicily was just beginning to heat up; it would remain a major theater of operations down through 211.30 The new provincia was flexible, in that the fleet entrusted to T. Otacilius Crassus was merely based in Sicily, and fairly mobile (he could leave for
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Sardinia and Africa). The expedient of the “classis” was retained, and, as we shall see in 8.5.3, was used widely, especially in the eastern wars of the first third of the second century. 6.1.3 The Affair of Q. Pleminius, 205–204 In the year 205, Sicily was given extra sortem to the consul P. Cornelius Scipio Africanus. Like his predecessor M. Laevinus (cos. 210), Scipio had permission to raid Africa. But what he really had hoped for was the allotment Africa cum Sicilia, and the forces to take the war to Carthaginian territory.31 Despite Scipio’s effort to supplement his small fleet of thirty “cruisers,” he really had only so many ships as were necessary to guard the coast of Sicily and make the now familiar smallscale raids on the coast of Africa.32 The oustanding event in the Sicilian theater in 205 was the consul P. Cornelius Scipio’s recapture of Locri. Scipio had his legatus Q. Pleminius hold the town, once taken. Now, Pleminius had been pro praetore in charge of the garrison at Rhegium.33 The Rhegium command may have been a standing position, to be filled by an appointee of the chief magistrate with imperium in Sicily. Since Pleminius had imperium, it will have been delegated from the consul.34 A chance reference in Livy reveals a D. Quinctius, a legatus of M. Claudius Marcellus (cos. 214), in the same position some years previously.35 Again, there must have been many more commands like this in the Hannibalic period than Livy reveals.36 Although Q. Pleminius is not termed pro praetore at Locri, he will have retained his grant of imperium. Pleminius was a poor steward of Locri, to say the least. The town tumbled into serious disorder, with Roman soldiers even despoiling its famous temple of Proserpina, a matter which forced Scipio to cross from Syracuse to Locri to investigate. Yet worse outrages followed when Scipio decided to leave Pleminius in his command. The Senate placed the Sicilian praetor for 204, M. Pomponius, in charge of the investigation of Scipio’s responsibility for the Pleminius affair, sending him a consilium of ten legati (chosen by the consuls of the year) to aid in the task. The dispatch of so many senatorial legates to a praetor is extraordinary, and finds no ready parallel in the Republic.37 But the number must reflect the object of the praetor’s investigation (i.e., the pro cos. Scipio), not the status of the praetor himself.38 The praetor Pomponius needed all the help he could get. The question he had to decide was in essence whether a superior magistrate was responsible for the actions of a man to whom he had delegated imperium. Nor was the praetor faced with simply an abstract constitutional and legal matter. Were the pro cos. Scipio to be found guilty, the praetor was supposed to order him back to Rome. The praetor’s imperium was of course minus against that of the pro consule: there was the danger that Scipio might simply ignore the praetor, and pass out of his provincia into Africa. Livy (implausibly) reports that two tribunes of the Plebs and a plebeian aedile accordingly came along with the consilium, in the event that the pro consule was found guilty. In that case, the tribunes were to order the plebeian aedile to arrest Scipio, and to hale him back to Rome by virtue of their sacrosanct power.39
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Even as Livy tells the story, none of this proved necessary. The legates upon their return to Rome were able to report that Q. Pleminius had not acted “by Scipio’s order or consent” (“neque iussu neque voluntate”).40 This report convinced the Senate that it was time to give Scipio permission for a full invasion of Africa. Pleminius, however, was taken into custody and sent to Rome, where he either died in prison before reaching trial, or was executed (a decade later!) after attempting a jailbreak.41 Livy has even two accounts of Pleminius’ arrest. One tradition held that Q. Caecilius Metellus, cos. 206 and now serving as one of the special legati sent by the Senate, forcibly captured Pleminius while making his way to exile in Naples. In an alternative version, Scipio dispatched a legatus accompanied by thirty especially distinguished cavalrymen who threw Pleminius and his coconspirators into chains. An epitome of Diodorus offers a third variant. While the legati were still on their way from Rome, Scipio summoned Pleminius to Sicily and threw him into chains, later (it is implied) handing him over to the two traveling tribunes of the Plebs, who the epitomator states were amazed at (the allegedly lax) Scipio’s resolute action.42 It is unfortunate that we can place little trust in our sources (all quite brief, as they are) on this point, since it would be useful to know how a man with delegated imperium was arrested. The situation probably had no real precedent, and so no fixed procedure—which gave plenty of scope for annalistic fabrication. However, it seems possible to assume that a delegatee’s outright desertion of his prescribed post (as in Livy’s first variant) would be considered voluntary exile,43 thus terminating his citizenship (and with it, of course, his imperium). Hence perhaps the story of his arrest by a (mere) legatus.44 6.1.4 Sardinia in the Hannibalic War Sardinia was never a major area of conflict during the Hannibalic War: in times of stress, it was commonly omitted from the sortition. A. Cornelius Mamulla, pr. 217, was prorogued into 216, when “Gallia” was allotted to L. Postumius Albinus;45 Q. Mucius Scaevola, pr. 215, remained in the provincia down through 212; C. Aurunculeius, pr. 209, was prorogued into 208; and in 200, the provincia was entrusted to M. Valerius Falto, pr. 201 in Campania, who crossed from the mainland to administer Sardinia as pro praetore. In the years 218–215, Sardinia probably had only one Roman legion (with an allied supplement), and no fleet.46 In 215, the Carthaginians took advantage of this modest military presence—and the strong native anti-Roman sentiment. Hasdrubal “Calvus” set off from Africa to aid the Sardinian leader Hampsicora in driving the Roman garrison from the island.47 This turned into a major crisis for the Romans, since the new praetor Q. Mucius Scaevola had fallen ill soon after his arrival in Sardinia. Once united, the joint force might have succeeded. But a storm carried Hasdrubal’s fleet off course to the Balearic islands;48 this gave the Senate some time to make emergency arrangements. The Senate stipulated that an ad hoc commander was to hold praetorian imperium in Sardinia and “manage affairs until Mucius had recovered.” In the absence of the consuls, the Senate allowed the urban praetor, Q. Fulvius Flaccus,
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to choose an individual to be sent with imperium and one legion to Sardinia.49 Livy is vague regarding the actual procedure which was followed, just as his account is unclear how the privatus T. Otacilius Crassus received his imperium a little earlier this same year (6.1.2). It was not delegation of imperium, which was impossible for a praetor to confer. It seems that the praetor either simply was to select a man and secure a lex de imperio for him (in the Curiate Assembly), or to make a nonbinding designation, subject to later appointment in the Centuriate Assembly. A lex de imperio would then still have to be passed, in the comitia curiata. In view of the military emergency, I would imagine the first (and simpler) option was adopted. But Livy’s language is so vague that any explanation must remain conjectural. The praetor’s choice fell on the experienced consular and triumphator T. Manlius Torquatus (cos. 235 in Sardinia, cos. II 224). Manlius crossed with an additional Roman legion to supplement the Roman and allied army on the island, and was able to defeat decisively the combined Sardinian and Carthaginian force in one season.50 Starting in 214, Sardinia received two Roman legions—but still no fleet. The seventy-five ships at Lilybaeum under the command of the praetor in the provincia “classis,” T. Otacilius Crassus, were enough to dissuade the Carthaginians from attempting anything for a time. However, late in 210, a quick-moving Carthaginian naval detachment on a predatory raid outfoxed the pr. P. Manlius Vulso, who appears to have had only a land force.51 No change was made—since no ships were available—for 209. However, in the next year came the rumor that a massive Carthaginian fleet of two hundred ships was poised to attack Italy, Sicily, and Sardinia. The collapse of Punic sea power in Spain after Scipio’s capture of New Carthage in that year had freed Rome’s hand a bit: the Senate requisitioned fifty ships from Spain to protect the vulnerable Sardinian coast.52 The addition of this fleet enabled the Romans soon to reduce their land force in Sardinia to one legion, in 206.53 The fleets stationed off Sardinia and Italy in the last years of the war defended the coast against attack, and also doubled as protectors of supply convoys to Africa. In 205, the praetor Cn. Octavius received Sardinia as his provincia, scoring a naval success which was unprecedented in those waters.54 Cn. Octavius was prorogued for 204, not in Sardinia, but in charge of forty ships “to defend the sea coast within the boundaries the Senate should set” (“quibus finibus senatus censuisset”).55 This technically must have been regarded as the provincia “classis”; as it turned out, in this year Octavius seems to have kept himself busy with the supply of Scipio’s troops in Africa.56 Cn. Octavius remained in command of a fleet as pro praetore down through 202, like T. Otacilius Crassus in Sicily (in different years of course). In this war, changes in competent naval commanders were rather unusual, except for special reasons. By late 203, and throughout the decisive year 202, the Romans altogether abandoned the serious defense of Sardinia. The important thing now was to aid P. Cornelius Scipio in the last operations of the war. The promagistrates charged in 203 with the defense of the Sicilian, Sardinian, and Italian shores against Carthaginian attack (M. Pomponius, pr. Sicily 204; Cn. Octavius, pr. Sardinia 205; M. Marcius Ralla, pr. urb. 204) all served as protectors of supply convoys to Africa.
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After a truce was declared in that year the actual praetor for Sardinia, P. Cornelius Lentulus, joined in the supply effort.57 In 202, P. Cornelius Lentulus (prorogued in his provincia) and Cn. Octavius, as well as M. Marcius Ralla, are simultaneously found off the African coast helping Scipio.58 In these years, the protection of the provincia of Sardinia must have been delegated to a legatus. After the victory at Zama, the Roman presence in Sardinia dwindled to that of a garrison force. The Sardinian praetor for 201 received only ten ships with which to guard the coast of his provincia.59 In the next year, 200, unrest in Italy and Gaul60 and the immediate prospect of a war with Philip of Macedon caused Sardinia to be omitted from the sortition of praetorian provinciae. The Senate withdrew Roman legions from the island and replaced them with a modest deployment of five thousand socii previously stationed in Campania. With these allied troops went their commander, the peregrine praetor M. Valerius Falto,61 now prorogued to act as the new governor of Sardinia.62 Peregrine praetors were of course quite mobile in this period. We have seen above (6.1.1) that in 211, the Senate transferred the peregrine praetor M. Cornelius Cethegus during his year of office to hold the chief command in eastern Sicily, until it could send a consul to replace the pro cos. M. Claudius Marcellus on the island. But the decision of 200 was a highly unusual arrangement for a regular provincia. M. Falto was only a prorogued praetor at the time of his arrival in Sardinia. Prorogued praetors occasionally move once the year has begun, to replace a commander who has died in transit to his provincia.63 But this is a rare instance in which a transfer was decided before the new administrative year, with the relocated pro praetore serving as the sole commander with imperium in a permanent overseas provincia.64 This arrangement reflects the shortage of suitable commanders at this time (when there were still only four praetors)—as well as the status of Sardinia among regular provinciae. Granted, there were for the present no troubles in the provincia: in just two years the garrison for Sardinia could be more than halved.65
6.2 Sicily and Sardinia in the Period 197–166 In the two decades following the decision of 198 to increase the number of praetors to six, it seems the Senate attempted to treat Sicily and Sardinia as a single administrative entity. Grain and commodity quotas were imposed simultaneously on these two (now) surplus-producing islands;66 their armies were discharged and replaced together.67 However, this system was temporarily interrupted at the start of the war with Antiochus III in 192. It was rumored that Antiochus might cross from Aetolia to Sicily.68 The Sicilian praetor for 192, L. Valerius Tappo, was ordered to raise a large army of tumultuary troops; he also received a modest fleet of twnety ships to defend the coast and surrounding islands.69 Indeed, a “state of emergency” was to exist on the island for all four years of the war. Sicily was a rich possession and a stepping-stone to Italy. What is more, a Hellenistic monarch might find some support on the island. Roman dominatio over the whole of Sicily—the old province as well as the former kingdom of Hiero—must have seemed incongruous to Greek contemporaries, and may have served as a useful point for anti-Roman propagan-
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da. No mention is made of threats to Sardinia at this time: it was hardly the type of place an eastern king would attack. 6.2.1 The Defense of Sicily in the War against Antiochus III The Romans had by now learned that Sicily as a whole was rather much for one holder of imperium to manage in an emergency. In 191, the Senate left it to the discretion of the new praetor, M. Aemilius Lepidus, to retain his predecessor L. Valerius Tappo and delegate to him the defense of the eastern shore of Sicily.71 The provincia must have been similarly divided in 190 between the praetor for the year, C. Atinius Labeo (who arrived with more troops), and M. Aemilius Lepidus.72 A more general point also emerges from this. In this period the consent of a commander in office seems to have been essential for another individual to be prorogued in his provincia.73 Indeed, such “discretionary prorogations” by a consul are positively attested in the next two decades.74 We know that M. Porcius Cato (cos. 195) made a speech “that a superseded magistrate should not have imperium when the new one has come” (“ne imperium sit veteri ubi novus venerit”). Context and content are unknown, but judging from Livy’s evidence on procedure in the provinciae, Cato (as often) is likely to be supporting an old principle rather than introducing a new one.75 M. Aemilius Lepidus’ prorogation into 190 can be inferred only from Livy’s report of the consular election for 189, where he is said to have arrived directly from Sicily. We are told Lepidus competed “amid universally hostile opinion” since he had left Sicily for Rome without the Senate’s permission.76 This was a serious offense, especially in light of the perceived emergency in that provincia. At the start of 189, though the war against Antiochus was well in hand, the Senate nonetheless saw fit to dispatch a Roman legion to Sicily.77 We know that the Romans in that year were on their guard against dissident activity on the Italian mainland, especially in south Italy (8.4.1); it is not impossible that the deployment of these troops to Sicily was intended to serve a similar function. It is apparent that M. Aemilius Lepidus wanted a command against Antiochus, especially now that the king was all but beaten.78 Yet Lepidus’ consular candidacy was a long shot at best. His model may have been Ap. Claudius Pulcher, the pr. Sicily 215 who served on the island under Marcellus for two additional years, and was then elected cos. 212. But that was in the special circumstances of the Hannibalic War. After that conflict had ended, it soon became very rare for a man to walk straight out of a praetorian provincia and into a consulship. Four well-connected individuals performed that feat in the period 200–166, three of whom had received the Spains and had engaged in sufficient fighting for a triumph or ovation. Here their enhanced imperium (see 7.1.3–4) also may have helped.79 There is only one known instance of a non-triumphator proceeding directly from a praetorian provincia into the consulship: Ti. Sempronius Longus, pr. 196 and pro pr. 195 in Sardinia, and then cos. 194 as colleague of P. Cornelius Scipio Africanus. Yet Scipio probably had handpicked this man, since “their fathers had been the consuls in the first year of the Second Punic War” (as Livy points out).80 In view of Scipio’s over-
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whelming auctoritas at this time, the Senate may have readily granted Longus a dispensation to leave the island, if he did not actually stand in absence. M. Aemilius Lepidus, however, had deserted his provincia. Once he realized the extent of the public’s disapproval, Lepidus must have argued in his defense that he had served in his post at the discretion of his successor, C. Atinius Labeo (cf. the arrangements for 191 detailed above in this section), and (we can speculate) that Labeo had given the pro praetore permission to leave as the end of the year approached. On the other hand, it could be argued (by Lepidus’ enemies) that Labeo had no right to give him leave. Since the imperium of a praetor and a pro praetore was at the same level, only the Senate could authorize Lepidus’ departure from the provincia. Now, we have no record of Ap. Claudius Pulcher having to ask the Senate’s permission to sue for the consulship of 212.81 But the consul’s imperium was maius, and that of the praetor C. Labeo (technically) was not. It may have been enough if a consul granted leave to a praetor who was subordinate to him in the same provincia. In the event, M. Aemilius Lepidus did not get his consulship;82 he had to wait until 187 for the office. And the Senate at this time may have clarified the constitutional ambiguity in an attempt to prevent the same situation from recurring again. Certainly by 171 the Senate was positively enforcing the principle that a commander had to stay in his given provincia.83 After 190, we have no further record of two holders of praetorian imperium based on Sicily. In 188, after the cessation of hostilities, the Sicilian land force and fleet were removed.84 No mention is made of relief of the army in Sardinia. In fact, from this point Livy ceases to provide any information on the routine discharge and replacement of troops in these provinciae. Sicily regularly had been allotted in the sortition of provinciae in each of the years from 208 to 199, and the practice seems to have continued (as far as we can tell)85 down to the end of Livy’s record in 166. Nothing of much importance for our study is recorded regarding Sicily in this period other than the export of surplus grain, ships and manpower in the Third Macedonian War.86
6.2.2 Sardinia: The Roman Administrative Attitude In the decade following 198, Sardinia was readily left out of the sortition in times of stress, as had been common during the Hannibalic period. The Sardinian praetor for 196, Ti. Sempronius Longus, was prorogued into the following year so that a praetor could receive Pisa.87 L. Oppius Salinator, pr. Sardinia 191, remained on the island as pro praetore for 190, a year in which three special provinciae were declared.88 By combining the two city praetorships, Sardinia as well as the special provincia of the fleet were able to be placed in the sortition for 189: a three-year term for a Sardinian governor was evidently deemed unacceptable. Nevertheless, since the new praetor (and recently appointed flamen Quirinalis) Q. Fabius Pictor was not allowed to proceed to the island (5.3), L. Salinator evidently must have been retained for yet another year. With the conclusion of the war with Antiochus in 188 came a change of policy: Sardinia came up in the sortition every year down to 166 (as far as our information
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goes). Nevertheless, even this measure did not prevent tenures of two years for some of the Sardinian commanders. Sometimes their would-be successors had to take on special tasks. In 184, Q. Naevius Matho was detained for four months hearing cases de veneficiis (mainly outside the city) before he could set out for Sardinia.89 In 180, the Senate made a similar duty actually part of the provincia of the new Sardinian praetor, C. Maenius—and this despite serious fighting by the praetor M. Pinarius Rusca against the Corsicans and the Ilienses of Sardinia the previous year.90 The peregrine praetor and C. Maenius were to divide the investigation of poisoning cases. Maenius (who had his jurisdiction beyond the tenth milestone from the city) later was to claim in a letter to the Senate that his rapidly expanding investigation of cases, which had already resulted in the conviction of over three thousand men, would prevent him from reaching Sardinia altogether. Livy unfortunately does not tell us whether C. Maenius ever made it to the province, or how long his predecessor, M. Pinarius Rusca, had to stay there.91 If Maenius did make it to Sardinia, he stayed only a few months, since it came up in the next year’s sortition.92 Toward the end of 178, Sardinia erupted once again. The Ilienses and Balari overran rural Sardinia, taking advantage of a pestilence which had debilitated the Roman force under the praetor T. Aebutius Parrus. A delegation of Sardinian natives had to travel to Rome to beg help for the island’s towns.93 In early 177, the Senate was sufficiently alarmed to declare Sardinia, already allotted to the pr. L. Mummius, a consular provincia.94 The consul Ti. Sempronius Gracchus went to the island; L. Mummius stayed in Italy to conduct a special quaestio, this time regarding Latins who had taken up illegal residence in Rome. T. Aebutius Parrus was prorogued to assist the consul.95 Come the next year, 176, the new praetor for Sardinia, M. Popillius Laenas, successfully begged off service in the provincia on the grounds that the Roman commanders there already had matters well in hand. It is suspicious that two of his praetorian colleagues also refused to go to their provinciae. The praetor P. Licinius Crassus, who had received Hispania Citerior, asked for an exemption from his command on the grounds that he had certain religious obligations to perform (sc. in the city); M. Cornelius Scipio Maluginensis also put in a request to excuse himself from his provincia of Ulterior. The two Spanish praetors then had to swear to the veracity of their claims.96 P. Licinius Crassus may have been stretching the truth regarding the extent of his religious commitments; M. Cornelius Scipio seems actually to have perjured himself, since he was expelled from the Senate in the next censorship.97 There is no ready explanation for the reluctance of these three praetors to go to their provinciae. An obvious suggestion is that they were frightened by the unusually long series of bad omens which Livy reports the new consuls encountered at the beginning of the year.98 But these particular portents are quite likely to have been introduced into the annalistic tradition in consequence of the fact that both consuls of the year later died in office.99 What does emerge from this episode is that the Senate was by now firmly in control of the disposition of provinciae. Just as the Senate was successful in keeping ambitious commanders out of a provincia they coveted,100 it was in a position to compel praetors to take up a provincia, or else to swear to an impediment.101
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It would be useful to know how the Senate employed M. Popillius Laenas, the praetor who should have gone to Sardinia in 176. He and the two Spanish praetors who turned down their provincia would hardly be allowed to remain completely idle. It will be noted that M. Laenas reached the consulship at the first available opportunity (for 173), the first Popillius elected to that office since the late fourth century (see the cos. 316). He must have done something in his praetorship. (P. Licinius Crassus, who refused Hispania Citerior, also reached the consulship, for 171; yet the Licinii had a consul in the previous generation.) Now, Valerius Maximus tells of a praetor M. Popillius Laenas who presided in the trial of a woman charged with matricide; the circumstances of the crime were such that (apparently) his consilium advised neither to acquit nor condemn. Though this capital case is usually assigned to a date ca. 142 (i.e., to the praetorship of Laenas’ son who was cos. 139), it can quite easily belong to 176, though surely not before.102 Sardinian praetors had seen to special quaestiones in Italy starting in the mid-180s (184, 180, 177); and we shall see below in this section that in 167, a Sardinian praetor was retained in Rome and specifically charged with investigating res capitales. In any case, the affair of 176 meant that the praetor of 178, T. Aebutius Parrus— a man of not particularly high social status and probably few connections—was forced to stay in Sardinia down into (at least) early 175. Aebutius’ extraordinarily long command (see 9.4.3), as well as the two three-year commands in the Spains necessary for T. Fonteius Capito and M. Titinius Curvus (prr. 178), probably forced the abandonment of the lex Baebia of 181. (We shall examine this same incident from the perspective of the Spains in 7.2.6.) It is just possible that T. Parrus stayed down through most or all of 175. Gracchus was denied permission to bring home his army at the beginning of that year; the pro consule returned to celebrate his triumph only on 23 February 174 (i.e., eleven months into consular 175).103 The praetor of 175, Ser. Cornelius Sulla, may have been sent in his actual year of office to Corsica (where trouble seems to have flared up) while T. Parrus and Ti. Sempronius Gracchus held the island of Sardinia.104 This was indeed the arrangement of the next two years: in 174 and 173, the praetor of the year fought in Corsica while the praetor of the previous year held command as a pro praetore on the island of Sardinia.105 C. Cicereius, pr. 173, an ex- (public) scribe, ended the unrest in Corsica with a decisive victory in which allegedly 7,000 of the islanders were killed and 1,700 captured. C. Cicereius even sought a triumph at the beginning of the next year for his exploits. When he was refused all honors—certainly in part because of his social status—Cicereius demonstrated his protest by celebrating a triumph on the Alban Mount (much) later in the year.106 The successful celebration of an Alban triumph was an extraordinary accomplishment for an ex-scribe. We know of only three previous Alban triumphs: C. Papirius Maso, who was cos. 231, pioneered the ceremony for his victory over the Corsi; M. Claudius Marcellus as pro cos. in 211 for his reduction of Syracuse; and Q. Minucius Rufus, cos. 197, over the Liguri, Boii, and Gauls. Although celebrated without the authorization of the state and at one’s own expense, out of the booty, the Alban triumphs (which had all the paraphernalia of the real thing) were registered in the Fasti and reckoned in the total number of one’s triumphs. Indeed, it
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seems to have been regarded as a higher distinction than the ovatio (which was on foot).107 There is no indication that the praetor Cicereius had received a supplicatio (an informal prerequisite for granting a triumph at this time) for his success, and his appearance at the temple of Bellona may have taken many senators by surprise. We can suppose the Senate was confident in denying Cicereius a triumph and an ovatio, thinking he would just go quietly away. But that was not to happen—though there is reason to think that his Alban triumph did not come without some bother. Livy mentions that Cicereius’ refusal came in early consular year 172; according to the Fasti, the ex-scribe held his Alban triumph on 1 October. It obviously took Cicereius some time to muster the political support necessary for this honor. There also were financial obstacles. No help was forthcoming from the aerarium, and the booty Cicereius brought back from Corsica (200,000 pounds of wax) was rather less easily disposed of than even barbarian coin. Sale of the 1,700 prisoners of war as slaves may have raised Cicereius some revenue, or perhaps the Scipionic clan (to which he had some connections) came to his aid. One therefore wonders whether the ordo scribarum (a remarkably close-knit group)108 helped him get rid of the wax, something which that profession could use, to enable his triumph. Livy makes no mention of Cicereius making any sort of deposit in the Roman treasury. In 168, C. Cicereius dedicated a temple to Moneta on the Alban mount which he had vowed during his praetorship. In making this dedication the ex-scribe may have been imitating once again the example of C. Papirius Maso (cos. 231), who dedicated a temple to Fons; neither evidently was allowed to make their dedication inside Rome.109 We hear of no Alban triumphs after that of Cicereius in 172. Perhaps the honor (now commemorated by Cicereius’ temple on the Alban hill) was henceforth regarded as so devalued that no would-be triumphator considered it as an option; the Senate may even have decided to put a stop to the practice. Once peace was restored, Sardinia again served as the provincia of first resort when the Senate needed to find a holder of imperium for a special (usually minor) task. This is similar, though not exactly analogous, to how it utilized the peregrine praetor for special missions in the Hannibalic period. It may be significant that soon we find even these two praetorian provinciae combined. In 5.3.2, we noted a puzzling report found late in the Third Macedonian War concerning the sortition of Sardinia. Livy is specific that C. Papirius Carbo (pr. 168) had been assigned two sortes, Sardinia and the provincia peregrina. He ended up staying in Rome.110 (We are not told whether the praetor of 169 for Sardinia, P. Fonteius Capito, was prorogued.) Nor was a praetor able to proceed to Sardinia in the next year. A. Manlius Torquatus, who had drawn the lot for Sardinia for 167, “was retained by senatus consultum to investigate capital crimes.”111 Again, Livy leaves us in the dark as to how Sardinia was to be governed. Now, Cicero mentions an A. Torquatus who “in the time of our ancestors” (“apud maiores nostros”) made a legal decision (“iudicavit”) in a dispute concerning burial privileges. If this A. Torquatus is the same man as the pr. 167,112 his jurisdiction had been widened to include religious matters. Had he also a double lot, Sardinia cum peregrina? This seems unlikely. There is no indication that at the beginning of 167, the Senate expected the peregrine praetor M.’ Iuventius Thalna to follow the example of his predecessor in the office, L. Anicius Gallus (pr. 168) and go overseas—as much as Thalna would have liked.113
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The allotment of Sardinia in the sortition for 168 and 167 surely would preclude the extension of the praetor of 169, P. Fonteius Capito, in the provincia— unless by unofficial, “automatic” prorogation. But it is just possible that Capito returned home as scheduled, and in these two years the praetors C. Carbo and A. Torquatus (whatever his exact duties) sent legati to govern Sardinia. Indeed, this arrangement would make sense particularly for Torquatus in 167, if he expected he would be able to get there before the end of his term of office. These praetors may have found a precedent in the year 202, when the two praetorian commanders P. Cornelius Lentulus and Cn. Octavius left the provincia to aid Scipio in Africa (see 6.1.4): a subordinate of some sort must have remained behind. The idea of governing overseas provinces (at this time!) through legati, and the growing practice of retaining the Sardinian praetor for legal chores, is quite interesting, perhaps (as I suggested in 5.3.2) even providing a precedent for C. Calpurnius Piso (cos. 67) and Cn. Pompeius Magnus (cos. II 55), who used legati to govern their consular provinciae. It is a pity, however, that Livy’s account almost immediately breaks off, before we can make real sense of these possible developments.
6.3 Sicily and Sardinia in the Period 165–122 We have little information on Sicily and the activities of its governors in the period following 166. The identity of only one Sicilian praetor is known in the period down to the time of the First Slave War of the 130s.114 And we know little of the actual fighting in that slave rebellion, the first such uprising which Rome had to face on a grand scale. The sources we do have on the First Slave War, which speak of both consuls and praetors holding commands on the island (6.3.1), are difficult to interpret, since we can only guess the actual administrative arrangements for Sicily at that time. In the two previous times of crisis in Sicily—during the Hannibalic War and in the years 191–190, when it was feared that Antiochus III would invade the island—a praetor divided the provincia with the governor of the previous year, who was prorogued pro praetore. We also have seen that each praetor in Sicily regularly had two quaestors, one each for the eastern and western portions of the island (6.1.1). It is probable that in a crisis the eastern and western quaestors would have some military responsibilities. This bifurcation might also be extended to men with imperium: a division into Syracuse and Lilybaeum might be set up at commanders’ level (i.e., a consul and praetor or pro praetore) in a major war. We shall see that the example of Spain shows that holders of independent imperia could cooperate in an emergency;115 and a consul, of course, could issue orders to a praetor even if the praetor had his own auspicia. Sardinia is a greater mystery. We do not know the name of a single praetorian governor of this provincia for the period 165–122, or indeed, down to the command of T. Albucius, who went as a praetor to Sardinia (probably) ca. 107, and was prorogued for at least one year (13.1.1). In times of serious trouble on Sardinia or Corsica in this period, the provincia was declared consular. In Corsica, we find M.’ Iuventius Thalna as cos. 163, and after his death late in the year, his consular col-
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league, Ti. Sempronius Gracchus. The fact that Gracchus had to set out to the Sardinian provincia—having already held the elections for the following year— suggests that there was no other holder of imperium serving there. The Senate had planned for one of the consuls of 162 to succeed to this command. But when Gracchus communicated to the Senate his belated discovery that he had made an auspical error as president of their election, both the consuls were recalled while en route to their provinciae and then forced to abdicate. Gracchus was prorogued to stay on somewhat into this year.116 He may have been succeeded by one of the new suffect consuls; probably no praetor was available at that stage. The next time117 we can glimpse the administrative arrangements for the provincia—about thirty-five years later—the Senate did not have the luxury of sending an annual commander to a Sardinian war. L. Aurelius Orestes (cos. 126) spent a full five years in Sardinia before celebrating a triumph in December 122. There is no sign that Orestes had a praetor under him. He had as quaestor, however, C. Gracchus, who thought that two years in Sardinia were quite enough for himself. He left the provincia in 124 without the permission of the Senate.118 Not too long afterward, M. Caecilius Metellus (cos. 115) served in this provincia for four and a half years, returning to triumph on 15 July 111—the same day his brother C. Metellus Caprarius (cos. 113) triumphed over Thrace. The two brothers certainly coordinated their return to the city, but it is unlikely that M. Metellus would have chosen to stay so long in his provincia just to secure this coincidence (13.1.1). The length of these Sardinian commands is quite striking, when one notes that other major wars of this general period received (at least initially) a regular succession of commanders.119 As indeed was the case in earlier periods, the Senate still seems to have used Sardinia as the provincia of first resort when it needed to make room in the praetorian sortition. 6.3.1 The Commanders in the First Sicilian Slave War One of the few reasonably well-documented episodes from the period 166–122 which are pertinent to our study is the First Sicilian Slave War; I have treated the praetorian commands of this war in detail elsewhere.120 Orosius positively dates the start of the rebellion to 135, heralded (inter alia) by the portent of volcanic activity on Aetna; Diodorus’ notice of a Roman embassy that traveled (safely) all over Sicily to take elaborate precautions at altars of Zeus Aetnaeus can be taken to confirm that date.121 My reconstruction shows a policy of annual succession of praetors for Sicily, even after the war had been declared consular. In 135, the praetor L. Plautius Hypsaeus was the sole commander in the provincia. T. Manlius, pr. 134, replaced Hypsaeus, but by mid-year was relegated to the western command while the consul C. Fulvius Flaccus fought the main war in the east. The year 133 saw the arrival of an entirely new pair of commanders. The praetor M. Perperna was active in the territory of Henna (later winning an ovatio for his efforts) while the consul L. Calpurnius Piso is attested at Henna and Morgantina; it is also possible that, in the crisis, T. Manlius was retained as pro praetore to restore order in the west. We have seen there is ample precedent for such a complex administrative arrangement in the periods of the Hannibalic and Syrian Wars (6.1.1, 6.2.1).
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We do not know whether P. Rupilius, cos. 132, came to the island with another praetor, but it is not unlikely, considering that at the beginning of the year the slave leaders Cleon and Eunus still posed a major threat. It is difficult to believe that Rupilius was not prorogued into 131. He first had to end the war before embarking on his reorganization of Sicily (not a quick and easy task). Rupilius’ elaborate lex provinciae was made on the recommendation of ten legati; these men had to be selected, and then needed time to travel and deliberate. There is no telling how long all this took. Rupilius had died by 129, reportedly from grief upon learning that his brother L. Rupilius had been defeated for the consulship, and that in spite of the help of Scipio Aemilianus.122 It is worth suggesting that Rupilius’ death came in late 131 (i.e. the time of the consular comitia for 130), perhaps even in Sicily: the election of his old subordinate M. Perperna as consul might have come as a shock! 6.3.2 Sicily after the First Slave War The famous acephalous elogium found at Polla in Lucania records that a man who built a (military) road from Rhegium to Capua had as “praetor in Sicilia” searched out and returned 917 runaway slaves to the “Italici” who owned them. He also claimed to have been the first to convert pastoral land of the ager publicus to agricultural, and he boasts that he built the forum where his elogium stands (he does not specify in what capacity). Broughton, following Mommsen, once supposed that this inscription referred to P. Popillius Laenas (cos. 132), a known roadbuilder in northeast Italy, whom he placed as praetor in Sicily 135.123 Yet T. P. Wiseman124 has shown convincingly that the inscription should be linked with the milestone found in 1953 near Vibo Valentia, inscribed “T. Annius T.f. pr.,” and attributed to T. Annius Rufus (the later cos. 128).125 Wiseman at first suggested this man was pr. Sicily 132 and pro pr. 131: “[I]f T. Annius Rufus . . . was entrusted with the job of helping to finish off the slave war, he could have built the road to Capua as propraetor in 131 to improve communications in Bruttium and Lucania and facilitate the control of any bands of fugitivi who were holding up there.” Wiseman later favored a praetorship in 131, with prorogation down to perhaps 129.126 It is reasonable to suppose that a Sicilian commander’s duties might extend to southwest Italy. In 133, there was a major slave rising at Minturnae and Sinuessa— not far south of Rome (8.6.2). Lucania and Bruttium were far more obvious trouble spots (cf. the murders at Sila in 138); and, as Wiseman notes, these trackless regions served as a likely place of refuge for the rebel slaves, once defeated. This is where the praetor T. Annius must have rounded up most of his nine-hundred-odd fugitives—and where their owners, the “Italici,” lived. A Sicilian praetor surely could act in south Italy, if the situation demanded it127—perhaps even without a consul’s order or the Senate’s dispensation. We are also justified in assuming prorogation of Annius’ praetorship. Indeed, the elogium, which marks different stages in this man’s career, suggests that the bulk of the roadbuilding (an enormous task) did not take place while he was technically praetor in Sicilia. There is nothing that forbids T. Annius from having set out for Sicily as praetor in 132, along with the consul P. Rupilius. As we have seen, the Senate followed a policy of strict annual succession for this provincia during the First Slave War—
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as indeed it had in the entire period 200–166. Yet if really praetor in 132, we might expect Annius’ elogium to contain some mention of military accomplishments against the slaves. T. Annius as pr. Sicily 131 and then pro pr. 130 is just as possible, and perhaps more likely. Whatever the exact chronology, the Senate can have given Annius the completion of his roadbuilding assignment as a special provincia in the year following his praetorship, extending his original imperium for the purpose. We would expect a regular praetor to be sent to Sicily in the year T. Annius was building his road. Even with P. Rupilius’ reorganization, the provincia must have seemed far from stable. As it happens, in the summer of 126, Aetna erupted yet again, this time with worrying effects felt as far away as the Lipari islands. The praetor T. Quinctius Flamininus (the future cos. 123) duly informed the Senate of the portents which followed this blast—including the formation of a new island. The haruspices, when consulted, interpreted these signs as a warning of rebellion. On their advice, the Senate sent a deputation to see to rituals of expiation.128 These portents demanded careful attention. In this very year, a consular army was sent to battle rebels on Sardinia (6.3); in two decades, Sicily would see another major slave war (13.1.3).
7
The Spains, 218–122
The year 197 is a landmark for this study. The number of praetors increased from four to six, and the two Spains were added to the traditional praetorian provinciae of the urban and peregrine jurisdictions, and Sardinia and Sicily. This decision brought to an end the string of nonmagistrates endowed with special imperium whom the Senate had sent as commanders to Spain since 218, the very start of Roman involvement in this area.1 It is impossible to examine the creation and development of the new provinciae of Hispania Ulterior and Citerior without some discussion of these privati (7.1.1–6). Their special commands provide precedents for a range of later practices, in the Spains and beyond. Livy usually—but not always—records the method by which individual privati received a grant of imperium to fight in the Spains. These notices will serve as the core of our study in the first sections of this chapter.2 What follows in 7.2.1–6 is a select discussion of some problems of the period 198–166. In particular, I examine the circumstances of the creation of two new praetors for the provinciae of Hispania Citerior and Ulterior (7.2.1); the activities of the earliest regular commanders for the Spains (7.2.2–3); and some implications of the increase in the size of the praetorian college to six (7.2.4–6). Finally, 7.3 is a general overview of the Spains in the period 165–122, where I set out some proposed solutions for some particularly thorny problems in the fasti of commanders for these two provinciae, and also try to delineate the Senate’s arrangements for carrying on near-continuous total war in this distant theater—for what proved to be a span of decades.
7.1 Commands to Privati, 218–198 7.1.1 The Commands of P. and Cn. Cornelius Scipio, 218–211 At the start of the conflict with Carthage in 218, the Romans did not expect that Italy was to be the main theater of war. The Senate declared Spain and Sicily (with Africa) as the consular provinciae, which were allotted to P. Cornelius Scipio and 154
The Spains, 218–122
155
3
Ti. Sempronius Longus, respectively. P. Scipio made it only as far west as Massilia in his actual year of office. The consul had to turn back to guard north Italy from attack by Hannibal, sending to Spain in his stead his brother, Cn. Cornelius Scipio (cos. 222). Cn. Scipio fought in that year (and most likely the rest of his long tenure) under his brother’s auspicia.4 Before P. Scipio finally made it to Spain as pro consule in 217,5 Cn. Scipio may have had his status formalized. In the years that followed, the two brothers maintained separate forces, and are mentioned as both receiving the provincia at the time of the sortition.6 Despite the silence of our sources, it is probable that Cn. Scipio in 217 had a special lex de imperio7 that enhanced his status from legatus to a commander with (praetorian) imperium. R. Develin8 has suggested that “Gnaeus had received propraetorian imperium by delegation in 218 [from the consul P. Scipio], which was in 217 not only confirmed and prorogued by popular vote but was also raised to proconsular status.” That Cn. Scipio had received delegated imperium from his brother in 218 is perfectly possible, but unfortunately unrecoverable. But there is no basis for Develin’s hypothesis that Cn. Scipio later was granted consular imperium: we possess no designation for this man during his time in Spain more specific than “imperator.”9 7.1.2 A Period of Transition: L. Marcius and C. Claudius Nero in 211 The deaths of the Scipiones in 211 left Spain bereft of any holder of imperium. Their armies would have been annihilated, were it not for the actions of two tumultuary leaders, Ti. Fonteius (a legatus of P. Scipio) and the talented military tribune L. Marcius10 (a protégé of Cn. Scipio). Once elected “dux” by his fellow soldiers,11 Marcius went on to use the title “pro praetore” in the prescript of a letter to the Senate detailing his exploits in Spain.12 L. Marcius cannot possibly have thought himself certified as the legitimate successor to his commander Cn. Scipio by an election of his fellow soldiers in the field. He must have used it as a de facto title. Marcius was, after all, in command of an army, therefore exercising the functions of a praetor. The Senate was evidently uncomfortable with this unofficial usage: L. Marcius cannot have had auspicia, and so his arrogation of “pro praetore” (surely) was worrying. Yet it is important to note the Senate did not censure L. Marcius. It could hardly afford to. The Senate had to provide a proper commander to be sent to Spain as soon as possible. It was decided that “the tribunes should be asked to bring before the Plebs, at the first opportunity, the question as to whom it desired to send with imperium to Spain and the army which the imperator Cn. Scipio had commanded.”13 What we have in this notice seems to be only the selection of a commander to fill the position of Cn. Scipio. This is not an election, strictly speaking; and Livy does not say that the plebiscitum was to give imperium (there is no evidence that it could). We are left in the dark as to what would be the next step in the process. Presumably, the chief magistrate with imperium in the city (whether the cos. P. Sulpicius Galba or the pr. urb. C. Calpurnius Piso) would obtain a lex curiata for the choice of the Plebs if that man turned out to be a privatus. We will find this procedure of selection of a Spanish commander or commanders by a plebiscitum (surely followed by a lex curiata when necessary) employed regularly—but not
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invariably—in the period down to 197.14 It is even possible that at some point (perhaps early 217?), Cn. Scipio himself was formally chosen for his command in this convenient and popular way. The choice of the Plebs, approved by the Senate, was C. Claudius Nero, pr. Suessula and Capua 212, and pro pr. at Capua in 211.15 This we must infer from the text of Livy, since he does not bother to tell us the result of the selection process he had taken the trouble to describe earlier in Book 26. C. Nero already held imperium at the time of his selection; thus the Senate may have planned simply to prorogue him into the next year when his current grant of imperium was due to expire. We probably should assume no special measure was taken to raise him to consular status, since he was merely an emergency replacement for Cn. Scipio: we shall see that the successor to Nero held only praetorian imperium. Nero went to Spain with (evidently) the only troops Rome could spare at the moment—one legion which had been at Capua, with allied supplements. Nothing was done for the moment about the former command of P. Cornelius Scipio (cos. 218). There was a real shortage of suitable commanders at precisely this time: for example, P. Sulpicius Galba, consul in 211, had not held any curule office before his election.16 Had Capua not just fallen, there is no telling what the Senate would have done to provide for the Spains. It would not be surprising if Ti. Fonteius and L. Marcius spent the better part of the year in de facto command of the Roman army in Spain, though they of course had to relinquish their forces once C. Claudius Nero arrived.17 C. Claudius Nero proved no match for the wily Carthaginian Hasdrubal, son of Gisgo. With only a single praetorian commander for Spain, the military situation in this theater started to deteriorate rapidly.18 Fortunately for the Romans, the crisis in Spain coincided with some important successes in Italy, Sicily, and Greece. Hannibal’s failure to relieve Capua in 211 (even by launching a march on Rome) and the fall of Syracuse in that same year surely bolstered Roman confidence and freed up some Roman manpower. An alliance with the Aetolian League removed the threat of Philip crossing over to Italy. By the beginning of 210, the Romans could prosecute the war in Spain with vigor. But there was still the problem of a shortage of suitable commanders. One of the consuls of 211, P. Sulpicius Galba, now proceeded ex consulatu to Greece, to succeed M. Valerius Laevinus (pr. 215), who had spent four years with imperium in the east. Galba’s consular colleague Cn. Fulvius Centumalus was retained to help M. Claudius Marcellus (cos. IV 210) fight Hannibal in south Italy. M. Valerius Laevinus (now cos. II 210) was needed in Sicily to drive the last Carthaginians out of the island and to revitalize the provincia. And matters were so tight with the praetors of the year that it appears legates held Gaul and Etruria for at least part of 210.19
7.1.3 P. Cornelius Scipio (Africanus) and M. Iunius Silanus, 210–206 The Senate’s solution to the leadership squeeze was to have the consuls of 210 hold a special election in the comitia centuriata. The People were to elect a man who
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would receive consular imperium and the chief command in Spain. They chose the son of the fallen consul of 218, P. Cornelius Scipio, the later “Africanus.” They also voted on a successor to the old command of Cn. Cornelius Scipio, now held by C. Claudius Nero: “M. Iunius Silanus pro pr. was given as a helper (adiutor) for waging war.” M. Iunius Silanus had served as pr. Etruria 212 (prorogued into 211) and was of somewhat advanced age.20 Mommsen rejected the notice of P. Scipio’s election in the Centuriate Assembly, principally on the grounds that it was the concilium plebis which “elected” all other commanders for Spain.21 Nevertheless, Livy seems to describe special commands in Spain granted by a rogatio ad populum in 204 (see 7.1.4). There was evidently more than one way to appoint a commander with imperium. We shall soon see (7.1.4) that the later cases Mommsen adduced of “election” by the concilium plebis are not strictly parallel to the vote of 210. The procedure in Scipio’s case may seem unusual—nothing quite like this had ever happened before—but it is by no means unbelievable. In 217, a popular vote brought a master of the horse to the same level of imperium as his dictator (2.3.1). At the end of 216, the People had raised the imperium of the praetor M. Claudius Marcellus (pr. 216, and prorogued into 215) to consular for the next year. The grant was allowed to stand even after he sought, won, and then was forced to abdicate a place as suffect consul for 215 (see 8.3.1). The case of Marcellus in fact may offer us a direct precedent for the Romans making a privatus into a pro consule. The logic in Scipio’s instance is not all that difficult to understand. The Romans were compensating for the inadequate number of magistrates with imperium by a legal fiction. It would seem that a simple rogatio ad populum presented by a competent magistrate legally could have secured a grant of consular imperium for Scipio. But the Senate was reluctant to make an abrupt break with mos maiorum. New consuls had always been created in the comitia centuriata, and so was (by an extension of this principle) the pro cos. P. Scipio. It is a pity that Livy tells us nothing of the actual mechanics of how the Romans appointed P. Sempronius Tuditanus as pro consule to hold the principal command in Greece five years later, in 205.22 Once the Romans had gotten used to the idea of a non-magistrate with consular imperium, they may not have felt the need to “elect” Tuditanus in the comitia centuriata. A legislative assembly perhaps was enough. What appears certain is that in 210, only one privatus—P. Cornelius Scipio— received a special grant of imperium for Spain. There surely was no precedent for the People simultaneously choosing two privati to be endowed with imperium to fight a major war. It is worth suggesting that M. Iunius Silanus still held imperium at the time of his selection for a Spanish command, just as C. Claudius Nero did when he set out to Spain in 211. It is true that in early 210, C. Calpurnius Piso (the urban praetor of the previous year) succeeded Silanus in his provincia of Etruria. But Silanus may have been prorogued and transferred elsewhere in Italy (unrecorded by Livy).23 An alternative possibility is that the Romans had extended Silanus’ imperium into 210 specifically so that he might supersede C. Claudius Nero. The Senate must have known at the beginning of the year that some more satisfactory arrangement had to be made for the Spains than the maintenance of a single praetorian commander.
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On balance, it appears that the Senate had indeed earmarked the pro pr. M. Iunius Silanus for a Spanish command some time before his actual appointment. The wording of Livy’s notice that M. Silanus “pro pr. adiutor ad res gerendas datus est” does seem to suggest an appointment by the Senate—though that is not necessarily the best evidence. What may count for more is that the Senate relieved Silanus in his provincia of Etruria by sending out the pr. urb. of 211, C. Calpurnius Piso, with prorogued imperium. This is highly unusual, in fact, the first instance of a prorogued urban praetor we have in our record of the Hannibalic War.24 Silanus (as pr. 212) had spent only two years in Etruria. This was a short tenure for this area by the standards of this particular period of the Hannibalic war. He did not absolutely have to be replaced. By way of example, M. Iunius Silanus’ successor, C. Piso (pr. urb. 211), was prorogued for two years beyond his praetorship in Etruria; Piso’s successor, the pr. urb. of 209, was prorogued through 204 (but not in Etruria for all these years). We are justified in suspecting that the Senate had planned Silanus’ transfer a fair bit before that famous extraordinary meeting of the Centuriate Assembly. The arrangement of the young future Africanus as pro consule and the older M. Iunius Silanus as pro praetore perhaps was meant to approximate the successful combination of 218–211, the consul P. Cornelius Scipio and the privatus cum imperio Cn. Cornelius Scipio (a senior consular). Incidentally, it seems that the decision to send Silanus to Spain was remembered for some time. Twenty-one years later, when another (less serious) emergency arose in Spain, it was again a pro praetore in Etruria who was sent to Hispania Ulterior.25 The future Africanus gave quite a measure of responsibility to legati in his Spanish campaigns, most notably C. Laelius (“without whom he did not wish to take any important action”)26 and L. Marcius. But we never hear that Scipio delegated imperium to these legati in the field. He may not have been able, since he himself was pro consule only by a special grant (see further below). In Livy’s account of the administrative arrangements for the year 209, we find the following notice: “No change was made regarding Spain, except that the imperium of Scipio and Silanus was prorogued not for a year, but until they were recalled by the Senate.”27 Livy has no report of activities in Spain for 208. However, at the beginning of 207, he tells us, “To P. Scipio and M. Silanus were decreed for a year their own [provinces of the] Spains and their own armies.”28 Are these two passages contradictory? Perhaps not. It is possible that the earlier resolve was routinely confirmed each year. The Romans had not yet taken official long-term commands for granted. We might guess that, in a way, the Senate had decided that it would prorogue P. Scipio and M. Silanus each year, until there was reason to recall them. Such a resolution, of course, was itself binding until revoked. The exact same measure was taken in the case of T. Quinctius Flamininus (cos. 198), when the time came for his first prorogation in Greece: “The Senate . . . prorogued the imperium of T. Quinctius until the arrival of a successor, authorized by its decree (donec successor ex senatus consulto venisset).”29 The Senate’s resolution also may have covered his brother, L. Quinctius Flamininus, who was serving under the consul as pro praetore.30 This did not prevent the Senate routinely confirming T. Flamininus’ (and perhaps his brother’s) command, even though (we are
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31
told) a vote on renewal of imperium was now not strictly necessary. The decision to prorogue a commander “donec successor veniret” perhaps was more common than is apparent from Livy’s account. For example, such a decision may have been taken at the beginning of 210, when P. Sulpicius Galba (cos. 211) was sent to Greece (see Additional Note XII). Galba stayed in this theater for four years, down through 207. The Senate surely knew that it could not send a suitable successor to supersede him after one year. It has sometimes been held that M. Iunius Silanus went as pro consule to Spain with P. Cornelius Scipio.32 There is no good evidence for this view. The Romans were most sparing with special grants of consular imperium in the Hannibalic War. Up to this point, there had been only two instances, namely, the promotion of the magister equitum M. Minucius Rufus in 217, and the special honorific raising of the imperium of M. Claudius Marcellus (pr. 216) for 215 (2.3.1, 8.3.1). It is hard to imagine that the Romans would create twin pro consulibus for Spain out of the blue, so to speak, with no available precedent. Though Polybius33 calls Silanus “the fellow commander” (oJ sunavrcwn) of Scipio, this may mean only that both held imperium. There is also a statement which Livy places in the mouth of P. Scipio (Africanus) in a speech to an assembly of mutinous soldiers (206): “M. Silanus, who was sent with me into the province with the same authority [and] the same imperium.”34 But it must be remembered that in Livy’s report of the dispatch of Scipio and Silanus in 210 the one was said to be pro consule, the other pro praetore.35 It is clear that Livy in that speech simply has forgotten what he had reported above. Indeed, elsewhere he says that all that was done in Spain was conducted “under P. Scipio’s leadership and auspices.”36 There is no strong case for M. Iunius Silanus “pro consule.” It does seem that Scipio’s imperium was nonetheless incomplete. When Scipio returned to Rome in late 206, he related his exploits to the Senate assembled in the temple of Bellona, and made a halfhearted request for a triumph, “since no one to that day was known to have triumphed who had commanded without having held a magistracy.” The Senate predictably denied Scipio’s request.37 It could hardly have granted the honor to P. Scipio, for this would lend unwanted legitimacy to his “election” in the Centuriate Assembly. Rome only wanted two actual consuls per year! However, immediately afterward Scipio was successful in his bid for the consulship for 205, in no small part thanks to the support of his recently discharged Spanish veterans.38 7.1.4 L. Cornelius Lentulus and L. Manlius Acidinus, 205–200 Early in 206, the Romans entrusted Spain to L. Cornelius Lentulus and L. Manlius Acidinus. Though L. Lentulus is not known to have held any previous office, L. Manlius Acidinus was a man of some experience: he had served as praetor urbanus in 210, and three years later held an independent command in the Appennines.39 Unfortunately, Livy gives no details of their appointment. It may be that L. Cornelius Lentulus and L. Manlius Acidinus are termed pro praetoribus at the time of their assumption of duties in Spain in late 206, though Livy’s text is quite uncertain.40 They surely held imperium: later Livy calls them imperatores, while Dio and
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Appian refer to L. Lentulus and L. Acidinus as strathgoiv.41 M. Iunius Silanus and L. Marcius may have taken charge of the Spanish forces until the arrival of these new generals.42 Within two years of Scipio’s return, we do see two consular commanders in the Spains. In 204, we are told, “Concerning the imperium of Spain, there was brought before the People the question what two men did it desire be sent pro coss. to this provincia. All the tribes ordered that the same men, L. Cornelius Lentulus and L. Manlius Acidinus, possess these provinces as pro coss., just as they had held them the previous year.”43 This may not be a simple statement of prorogation. What we may have here is a report of an actual decision of the People “de Hispaniae imperio.” It is possible that Livy has not quite accurately reproduced his source, which may have reported a decision taken by the People to confirm the two commanders in their provincia, but with enhanced (i.e., consular) imperium. I would suggest that initially, in 206, the Senate sent off the privati L. Cornelius Lentulus and L. Manlius Acidinus with praetorian imperium (it is irritating that the text of Livy is so uncertain at the relevant point, where he describes their arrival in the provincia). However, in 205, these generals had to face a major insurrection led by the chieftains Mandonius and Indibilis; we are told this broke out “only because admiration of Scipio gave rise to contempt for any other commanders.”44 After the Romans crushed the revolt, the Senate may have thought it expedient for all future governors to display the insignia of a consul (most importantly, attendance by twelve lictors) in order to overawe the bellicose Spanish tribes. Such visual symbolism was important,45 and (whatever the precise date of its introduction) was retained in the Spains throughout the Republic.46 It must be emphasized that the rank of pro consule had nothing to do with the size of the army these privati commanded. There were only two legions between two commanders in Spain in the period 205–201, and in the years 200–197 there was simply a garrison force approximating to one legion;47 nevertheless, the Spanish commanders retained their status as pro consulibus. When regular praetors were sent to Spain from 197 with consular imperium, they seem to have been expected to command only one legion each: that was certainly their troop strength in the years 196–188, and then again (probably) from 178 down to the mid-150s.48 Evidence from outside Spain also suggests that, in the case of praetorian commanders, enhanced imperium is not linked to the number of legions under command.49 Indeed, we may accept this as a general principle. In 205, Livy reports that “the curule aediles were Cn. and L. Cornelius Lentulus. L. (Lentulus) had Spain as his provincia; he was elected in absence, and in absence he held the office.”50 To at least one scholar, Livy’s statement has seemed too incredible to accept. How could L. Lentulus be in Spain and have an aedileship which was meant to be spent in Rome?51 For the year 184 it is positively attested that it was illegal to hold two magistracies simultaneously.52 However, cumulation of an overseas command with a minor office does not seem to have been prohibited in this general period. Two men who were appointed IIIvir coloniis deducendis for three years in 197 retained their position though they were sent out as praetors to overseas provinciae in the next year.53 But there is a big difference
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between participation on a colonial commission and the curule aedileship. We would be entitled to reject the notice of Lentulus’ tenure of this magistracy in 205 as a slip on Livy’s part, were we not told another Spanish commander attempted to do the same thing in 199.54 The cumulation of offices in these two cases is understandable, from a purely technical point of view, if we remember that the extraordinary Spanish commands were not regarded as magistracies: P. Scipio’s unsuccessful suit for a triumph in 206 (7.1.3) will have made this quite clear. L. Lentulus, who is not known to have held any office prior to his command in Spain, may have reckoned that he ran the risk of substantial opposition if he, on his return, should seek the consulship without having held a curule magistracy. Starting about 208, the curule aedileship or praetorship had emerged (or reemerged) as a customary prerequisite for the top office. By 199, there was a firm expectation that a man who hoped to be consul should have held one of these two offices. As we shall see below (7.2.4), the candidature of T. Quinctius Flamininus for the consulship of 198 ex quaestura (though, like Lentulus, he also had enjoyed a special grant of imperium) led two tribunes to veto the consular elections for that year. As matters turned out, L. Cornelius Lentulus actually made a request for a triumph on his return in 200. It is difficult to see on what basis he hoped to receive this honor. P. Cornelius Scipio had held the same type of command as L. Cornelius Lentulus, and had met as much success as one could reasonably expect—it was he who thrust the Carthaginians out of Spain. All the same, the Senate made it clear that Scipio could not get his triumph. L. Cornelius Lentulus cannot have imagined that personal influence alone could have pushed through his demand. But Lentulus may have thought that the holding of a curule aedileship in conjunction with his imperium extra ordinem would help his legal claim to a triumph. One thing can be sure: no one had ever been in a position to try this previously. In response to Lentulus’ unusual request, the Senate (if we can trust Livy here) seems to have refined the argument it used against P. Scipio in 206. It now argued that simply to have held a magistracy was not enough. One could not triumph ex aedilitate, even if one concurrently held imperium: “The Senate thought that his [i.e., Lentulus’] exploits were worthy of a triumph, but they knew of no precedent for a man to triumph who had held a command as neither dictator, nor consul, nor praetor. He had held Spain as a pro cos., not as a consul or praetor.”55 Nonetheless, L. Lentulus managed to celebrate an ovation. That is still astonishing, considering Scipio had come up empty-handed just six years earlier. A tribune, Ti. Sempronius Longus, in fact blocked the grant of the ovation to Lentulus, relenting in his veto only after some senatorial pressure.56 Cn. Lentulus, aed. cur. in 205 and cos. 201, will have helped his relative in all this. It is worth noting that when L. Manlius Acidinus left Spain in 199,57 on reaching Rome he too gained an ovatio from the Senate—no doubt after he cited his old fellow commander L. Lentulus as precedent. But when a tribunician veto blocked the Senate’s grant, L. Manlius evidently could not muster enough senatorial support to have the tribune back off.58 Connections were very much needed, especially at a time when the rules were so hazy.59
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7.1.5 C. Cornelius Cethegus in 200 L. Cornelius Lentulus was back in Rome in 200, L. Manlius Acidinus a year later. Even after the end of the Second Punic War, the Senate obviously felt it could replace only one Spanish pro consule at a time. True, in 201 Livy’s narrative makes it seem that the Senate contemplated the recall of both Lentulus and Acidinus with their armies. It then appears from Livy that Spain was to be entrusted to just one commander (selected by a plebiscite in the traditional manner) with one legion.60 However, if the Senate actually planned this optimistic arrangement, it had to abandon the idea before it could be brought into effect. There was still a shortage of eligible commanders, since the Romans were attempting to reimpose their control over south Italy, to secure the Gallic frontier and to prepare for a war against Philip of Macedon (this problem will be explored at length in 8.3–8.5). The Plebs’ choice for L. Lentulus’ command was C. Cornelius Cethegus (not known to have held previous office), who reached Spain in 200.61 C. Cethegus was obviously impressed by the spectacular successes of his predecessor. Cethegus attempted to emulate the career pattern of L. Lentulus by holding a curule aedileship in absence in 199. Yet the tribunes—the main activists for constitutional propriety in this period—had had enough of such machinations. “There was a plebiscite, in which the tribunes asked what two men should go to Spain and its armies with imperium, so that C. Cornelius the curule aedile might return to serve in his magistracy.”62 This measure also meant the return of L. Manlius Acidinus, who had been in Spain since 205 and whose supersession was long overdue. As matters turned out, the recall in no way damaged C. Cethegus’ prospects. He reached the consulship in 197, right before legislation came into effect which provided for an enforced cursus (on which see in 7.2.4). 7.1.6 Cn. Cornelius Blasio and L. Stertinius, 199–197 In 199, Cn. Cornelius Blasio and L. Stertinius set out for Spain; neither of them is known to have held previous office—a now typical background for these commands.63 These two men fought in Spain until the Senate organized the Iberian peninsula into two regular provinciae. Cn. Cornelius Blasio seems to have had no trouble obtaining an ovatio on his return early in 196.64 We are told Cn. Blasio’s cocommander in Spain, the privatus L. Stertinius, did not bother to ask for a triumph, and that despite substantial successes in Spain and considerable booty— roughly as much as Blasio.65 But Livy tells us he erected two fornices in the Forum Boarium and a third in the Circus Maximus (i.e., along the triumphal route), on each of which he placed gilded statues—widely considered to be the first “triumphal” arches in Rome. Stertinius, who was not from a distinguished family or even a magistrate of the Roman People, obviously had to have the Senate’s (if not the People’s) permission to do all this. It is not too much to suppose there was an arrangement between Senate and commander upon his return from Spain.66 Indeed, with memories of the Alban triumph of Q. Minucius Rufus (cos. 197) perhaps only a few months old (see 6.2.2), the Senate may have feared L. Stertinius would attempt the same feat if he was denied all official honors.
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Cn. Cornelius Blasio and L. Stertinius were anomalies, the last of the privati endowed with special imperium for Spain. On their return to Rome, they will have found that an enforced cursus had just been introduced (discussed in 7.2.4). L. Stertinius went as a legatus to the Greek east soon after his return in 196.67 After that he disappears from our record. Stertinius perhaps felt it not worth his while to go through the normal cursus (so far as it had developed) after holding consular imperium for three years; even with his new glory, he must have realized that his reaching the consulship was a far shot. Alternately, he even may have met with a repulsa for the praetorship, and then simply given up. Cn. Cornelius Blasio apparently did try to move through the new system; we find him as praetor for Sicily in 194.68 Yet he never reached the consulship.
7.2 The Spains as Praetorian Provinciae, 197–166 The privati with consular imperium who served as commanders in Spain in the years of the Hannibalic War invariably had long commands, with repeated prorogations: note, for example, L. Cornelius Lentulus and L. Manlius Acidinus, who both went to Iberia in 206, and returned only in 201 and 200 respectively. This should not surprise us. The Senate had all too few experienced generals to spare in the Second Punic War: Spain was far off and, after 207, not a major military theater. Nor did the Spanish commands—no matter what their length—affect the praetorian sortition (cf. 8.2.1). After the conclusion of the Hannibalic War, there must have been strong pressure to devise a more permanent arrangement for Spain. Few men of talent could have been eager to set out for the warlike Iberian peninsula in possession of an office which lay outside the recognized cursus, for an unspecified length of time, with no real hope of celebrating a triumph. The outbreak of the Second Macedonian War in 200 must have postponed (for a time) the decision to organize the Spains into regular provinciae. However, we can detect a tendency to shorten those special commands (note C. Cornelius Cethegus, pro cos. 200, who was succeeded by Cn. Cornelius Blasio in 199). There was perhaps even thought at this time of eliminating one of the two commands. Yet in 198—when the war still had not been resolved—the Romans finally decided to abolish the system of extraordinary commands granted by plebiscites, and send two praetors out instead. These new governors were to hold consular imperium, like their predecessors in the seven (perhaps eight) years down through 198. The status of these new praetors is revealed in a chance notice of Plutarch, that L. Aemilius Paullus set out for his provincia of Hispania Ulterior with twelve lictors, that is, consular imperium.69 For this period, in the four cases of praetorian triumphs or ovations from Spain where the entries are reasonably complete in the Fasti triumphales Capitolini or Urbisalvienses (195, 191, 175, and 174), these men are invariably termed pro consule.70 It is not my purpose to discuss more than a few of the military campaigns of the commanders who then received the provinciae of Hispania Citerior and Ulterior, though cumulatively they offer an excellent illustration of the praetor’s ability to carry out important independent tasks. J. S. Richardson has given us a detailed study of the basic activities of the Spanish commanders in the period
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197–166, and also a good treatment of the evidence for the actual administration of the provinciae in this period;71 there is no pressing need for these particular topics to be treated yet again. What is more, the fasti of the individual Spanish commanders present no significant problems after 195 down to the year 167. Here, I shall focus only on two major administrative questions. What exactly did the Roman commanders do in the crucial first years of these new provinciae (7.2.1–3)? And what was the background to the lex Baebia of 181, a law containing a (shortlived) provision which stipulated, in effect, that the Spanish provinciae be allotted only every other year (7.2.4–6)? A few remarks on the Spains in the aftermath of the lex Baebia follow. 7.2.1 The Creation of Hispania Citerior and Hispania Ulterior Livy had little interest in what was happening in the Spains in the decade before the arrival of M. Porcius Cato, cos. 195—not even the crucial years 198–196. These were the most brilliant years of T. Quinctius Flamininus in the east, for which Livy had Polybius’ detailed account; and so he devotes the bulk of Books 32 and 33 to the dramatic events of the Second Macedonian War. This is a major failing, since it obscures the Senate’s motivation for creating two new praetors and two additional permanent provinciae. All that Livy has to say about the newly created provinciae of the Spains for 197 and 196 is from the perspective of the city of Rome. We get the formal arrangements at the beginning of each of these two years, the contents of two letters sent to the Senate detailing campaigns, and a notice that two privati cum imperio from the old system returned to Rome.72 A major rebellion broke out in Spain not long after the Senate decided to send two praetors there as regular governors.73 This rebellion, which developed into a major war,74 pops up without background in one of those letters to the Senate, after Cynoscephelae in late 197, when M. Helvius was already in his provincia of Hispania Ulterior. The Senate learned that the chieftains Culchas and Luxinus were in arms in southern Spain, but it decided to postpone the question of this war until the new magistrates had taken office.75 Livy later (under the year 196) is specific that the Spanish war flared up again in the “fifth year after it had been ended along with the Punic War.”76 This notice is actually hard to date, since Livy reports no fighting in Spain from 205 down to 200.77 It can either be 198 (counting from 202, the battle of Zama) or 197 (more probable, from Livy’s context). Nevertheless, recent studies of this period seem to accept as certain that the revolt came only in 197.78 Native tribes might very well rebel at the establishment of a new Roman provincia, as Livy suggests. This had happened in Sardinia ca. 227.79 7.2.2 The First Regular Praetors for Spain, 197–196 Livy tells us the Senate had decided by early 197 to divide Spain into two praetorian provinciae; the first pair of regular praetors were to set the borders of “Hispania Citerior” and “Ulterior.”80 The line that divided the two provinciae at this time seems to have extended from modern Cartagena (Carthago Nova) on the coast to
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Linares: the saltus Castulonensis. Hispania Citerior will have comprised the east coast from Carthago Nova to the Pyrenees. The early provincia of Hispania Ulterior will not have been much larger than modern Andalusia, comprising the southern region from the Cartagena line to the river Guadalquivir (Baetis).81 We can take it as given that the Spanish praetors were not legally debarred from entering each other’s provinciae. Some tribes (such as the Turduli) will have straddled the border. And, of course, hostile tribes were not likely to respect Roman administrative divisions. For example, in 195, the Turdetani (of Ulterior) combined with Celtiberian mercenaries.82 Praetors for Ulterior sometimes would have to cross north of the provincial division, and commanders in Citerior occasionally would have to fight south of the line. Sometimes joint operations by both praetors will have been necessary.83 Surprisingly, G. V. Sumner dismissed Livy’s report of the demarcation. He argued Spain was divided into the provinciae of Citerior and Ulterior only after the fall of Numantia in 133: Before that time, it may be, the provinciae remained essentially as army commands. When two praetors held these commands, each would in normal conditions stay in one region and would be responsible for its administration. But in war or emergency there had evidently been no rule to prevent a praetor from leading his army outside his provincial territory, even into the territory of his colleague.84
This view is unconvincing—as a few scholars already have attempted to show.85 One detail of Sumner’s argument, however, has so far escaped refutation. Sumner was struck by the two letters M. Helvius (the first commander in the new provincia of Ulterior) sent to the Senate in late 197 and early 196. In the first, as we have seen, Helvius describes a rapidly spreading revolt on the southern coast and in Baeturia (i.e., his own provincia); the second letter reports—in vague terms and with no real background—the death of his colleague, C. Sempronius Tuditanus, who was killed in action in 197.86 Sumner87 rightly observes: “[I]t is curious that, whereas Helvius’ report of armed rebellion in the south is studded with detail of names and places, Sempronius’ disaster is quite featureless and simply occurs ‘in citeriore Hispania.’” That may just be Livy. Livy in general is quite sparing with place and tribal names pertaining to Hispania Citerior; his source or sources were much better informed about (or interested in) Hispania Ulterior. No campaigns in Citerior receive much geographical elaboration other than those of the consul M. Porcius Cato in 195 (Cato himself would be the ultimate source for that), and Ti. Sempronius Gracchus in 180–179. However, Sumner detects willful opacity: “The suspicion must be expressed . . . that Sempronius lost his battle and his life in the region where Helvius reported revolt: that Sempronius as well as Helvius was operating in southern Spain.” This is not impossible (though unprovable). Yet Sumner then takes his hypothesis as evidence there were no separate Spanish provinciae at this time. The truth is, there was trouble in Hispania Citerior even before Sempronius’ arrival in the provincia—as we have seen, trouble serious enough for Cn. Cornelius Blasio (pro cos. 199–197) to earn an ovatio for fighting in that region. And when M.
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Porcius Cato came there as consul in 195, he found turmoil in many scattered places all over northeast Spain.88 The outbreak in the south reported in M. Helvius’ letter surely did not cause all this. It is safe to conclude C. Sempronius Tuditanus met his end in his own provincia—as Livy tells us. Livy, for narrative reasons, did not care enough about Spain to report the extent of dissent in Hispania Citerior prior to Cato’s arrival. However, he could hardly not report the death of a praetor in action. This was a serious event, and not all that common, even in the Spains. There is only one other known instance in the pre-Gracchan period of a Spanish commander being killed in action, that of C. Atinius (pr. 188), who died in Ulterior while fighting the Lusitani in 186.89 M. Helvius was now left as sole commander in Spain, for a time. He may even have had to fight in Citerior before the arrival of the praetors for 196, Q. Minucius Thermus and Q. Fabius Buteo, in (respectively) the provinciae of Hispania Citerior and Ulterior. Little is known of the actual activities of these men.90 Thermus did write a letter to the Senate in which he reported a great victory near the town of “Turda,” apparently in south Spain.91 This need not exclude Hispania Citerior as his provincia. P. Manlius, who had Citerior in 195, was active at this same place.92 In the first years of the Spains as proper Roman provinciae, there evidently was a good deal of to-ing and fro-ing across the provincial boundary. The first regular commanders had to quash a major rebellion (or rebellions) which cut across administrative districts. But that is not to say that the Spanish praetors had not carried out the one specific order that the Senate had given them, to demarcate the border between what would comprise Hispania Citerior and Hispania Ulterior. 7.2.3 M. Helvius’ Ovatio in 195 The rebellion in Hispania Citerior by late 196 had grown quite serious, so much so that the Senate had to declare the provincia consular for the upcoming year. The consul M. Porcius Cato was to go to Citerior,93 and with him, a praetor of 195, P. Manlius, as helper (adiutor).94 P. Manlius had command of the army formerly led by Q. Minucius Thermus (pr. 196 Citerior), and also the veteran army which his praetorian colleague Ap. Claudius Nero found and discharged in Ulterior.95 What was Manlius’ status? It would not make sense to send two holders of consular imperium to the same provincia. P. Manlius surely went out with praetorian imperium, as had P. Scipio’s adiutor M. Iunius Silanus in 210. Nothing in Livy’s account contradicts this.96 It was Cato who paid the troops of P. Manlius:97 the praetor was wholly subordinate to the consul. As we would expect, there is no record that he sought a triumph or ovatio when Cato returned to Rome in 194. P. Manlius held a second praetorship in 182, with Hispania Ulterior as his provincia;98 perhaps he took this unusual step to prove himself in an independent command, all in the hope of winning the consulship. The new commanders for 195—M. Porcius Cato, P. Manlius, and the praetor for Hispania Ulterior, Ap. Claudius Nero—were already in Spain when M. Helvius fought a major battle against a large force of Celtiberians at the town of Iliturgi. We have seen that Helvius first came as praetor to Ulterior in 197; a serious illness
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explains his long stay. At the time of this battle, Helvius was being escorted out of the provincia. Ap. Claudius Nero had given him a guard of six thousand men to take him through hostile territory; with this force Helvius is said to have killed twelve thousand Celtiberi in battle, taken Iliturgi, and put all the adults in the town to death.100 Perhaps this was triumph-hunting. Helvius (as far as we know) had not achieved all that much in his two years in his provincia; he may have been anxious to compensate for the inactivity forced upon him by his lingering illness. On reaching Cato’s camp at Emporiae, M. Helvius dismissed the escort “because the region was now safe from the enemy,” and set out for Rome.101 Livy reports that, on Helvius’ return, the Senate denied him a triumph, “because he had fought under another’s auspices and in another’s provincia” (“quod alieno auspicio et in aliena provincia pugnasset”). Helvius had to content himself with an ovatio, which he celebrated as pro consule.102 He was lucky to get that. Helvius is the only man from an obscure gens to celebrate an ovation or triumph from Spain in the period 197–166.103 Livy’s report is hardly clear. M. Helvius obviously had kept his imperium up through the day of his ovatio. But under whose auspices had he fought, and in whose provincia? Livy previously had mentioned an “Iliturgis” in the land of the Ausetani (i.e., northeast Spain).104 But there was another Iliturgis/Iliturgi, generally agreed to be situated near the site of modern Andújar, forty miles southwest of Linares, and thus in the provincia of Hispania Ulterior; and this is where Livy in his notice of Helvius’ action seems to imagine it.105 R. Develin and J. S. Richardson both consider Helvius to have won his victory in the provincia of M. Porcius Cato.106 This probably is not correct, unless Cato had as his provincia all of Spain. Yet we hear of no dispute recorded between M. Porcius Cato and M. Helvius when the praetor arrived in the consul’s camp. The problem before the Senate presumably was that M. Helvius’ command technically had come to an end in early 196.107 He had fought using an escort which belonged to the present praetor for Hispania Ulterior, Ap. Claudius Nero. He had in fact won his victory alieno exercitu—it is surprising that the phrase does not come up in Livy’s account.108 Yet Helvius must have had some legal claim to a triumph. He would not have received an ovatio for a victory won without auspices. It surely was customary, even at this time, for a promagistrate formally to retain his imperium and auspicia until he entered the city of Rome.109 However, the Romans will not have expected a magistrate to fight after his supersession, while on his return home.110 The case of M. Helvius at Iliturgis was most unusual. When he gained his success, I would hold he was still in his original praetorian provincia of 197, Hispania Ulterior. But having seen by now two successors come to Ulterior (the prr. 196 and 195), he can be said to have fought in aliena provincia, that is, that of Ap. Claudius Nero. The statement alieno auspicio is more troublesome. The auspicia of Ap. Claudius Nero, a pro consule like M. Helvius, could not be technically superior to those of Helvius. It may have been customary, however, for the auspicia of the present commander in the provincia to have precedence over those of the commander he has replaced (see 6.2.1 for a speech of M. Porcius Cato on precisely this topic). And that is as far as we can go with Livy’s wholly inadequate narrative.
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7.2.4 Implications of the New System of Six Praetors By the end of the third century, the Romans must have known that if they were going to stay in the Iberian peninsula, they had to devise a permanent system for its administration. The creation of two additional praetors to serve as commanders was the obvious answer, but fraught with difficulties. An increase in the number of praetors by fifty percent, to six, was likely to have significant negative social effects in Rome. Six praetors could potentially all compete for the two consular places available each year. Under this system, an ex-praetor had less than a one in three chance of reaching the two consular places available each year, if men were able also to seek the highest office ex aedilitate, as had been traditional. With or without competition from aedilicians, multiple defeats in the consular elections would become a fact of political life. This was tolerable for plebeians from less-established families, on their way up; but nobiles could not risk more than one or (at most) two defeats in the electoral comitia. Increased competition would result in increased ambitus, “procuring election”—especially by bribery.111 Without legislation that required the praetorship to be held before the consulship, the introduction of two new praetors might bring chaos to the social system of Roman elites. But regulation of the cursus, in any form, was something the senatorial establishment in the immediate post-Hannibalic period firmly opposed. In 199, the candidacy of T. Quinctius Flamininus for the consulship of 198 had met a great deal of opposition, since he was seeking the office ex quaestura.112 Two tribunes vetoed the electoral comitia, complaining (as Livy has it) that nobiles were disdaining the midlevel magistracies of the aedileship and praetorship.113 Flamininus will have seen things differently. We shall see (in 8.3.1) that he had served as a pro praetore at Tarentum from 206 or 205 down to perhaps as late as 202. As a well-connected patrician, Flamininus evidently felt it unnecessary to sue for the praetorship, having held praetorian imperium for four or five years. The Senate eventually ruled in his favor: “It is right that the People have the power of electing any man who should seek an office which is legally permissable for him to hold.”114 There was to be no regulation of candidacy for political office other than (probably) the most basic leges: a requisite period of military service before seeking political office,115 election of patrician and plebeian curule aediles in alternate years, and the like. The senatorial establishment was on the side of an unregulated cursus, since lack of electoral restrictions permitted free use of patronage and private influence. And so, after the Hannibalic War, there was no immediate insistence on the praetorship as a prerequisite for the consulship. Fully four of the six consuls of the years 199 to 197 had not held the praetorship.116 The Senate did not delay the addition of two praetors until the war with Philip of Macedon had come to a satisfactory conclusion. Two regular praetors were added for 197, and sent to Spain. Regulation of the cursus soon followed. It can hardly be accident that all consuls (with only one exception) are known (or can be shown) to have been ex-praetors after 196, down to where Livy’s account breaks off with 166.117 The one exception, P. Cornelius Scipio Africanus, cos. 205 and cos. II 194, is clearly a special case. A. E. Astin118 must be correct in supposing that a new law came into effect, once the number of praetors was set at six, that all consuls be
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ex-praetors, with the requirement of a one-year interval between praetorship and consulship: note Q. Fabius Maximus, pr. 214 and cos. 213, and T. Quinctius Crispinus, pr. 209 and cos. 208; but Q. Marcius Philippus, pr. 188 and cos. 186, and also Q. Terentius Culleo and Ser. Sulpicius Galba, prr. 187, who were candidates for the consulship in 186 (for 185).119 A compulsory praetorship for consular candidates perhaps was not the only electoral law enacted at this time. The actual record suggests that, from 196 on, plebeian aediles quite likely were compelled to have an interval of at least one year before proceeding to the praetorship.120 Now, R. Develin121 has suggested that this putative law did not specify a one-year interval, but rather that “one should not stand for a curule office while holding the aedileship,” on the basis of Livy’s report that two of the men running for a suffect praetorship in 184 were Cn. Sicinius and L. Pupius, “who had been aediles the previous year.”122 (This retrospective notice is the only evidence we have for these men holding the office; if the date of 185 is accepted, they can only have been plebeian aediles.) But in this very passage, Livy terms a third competitor, Q. Fulvius Flaccus, “aedilis curulis designatus,” which is demonstrably false: as Mommsen recognized, Flaccus must have been curule aedile in 184, and he was attempting to cumulate offices.123 We cannot be confident that, though Livy is wrong on the aedileship of Q. Flaccus, he is correct in dating the aedileships of his two competitors. Indeed, it is no less likely that Livy has garbled a source which accurately transmitted the relative chronology of these candidates’ offices. Cn. Sicinius and L. Pupius may have been curule aediles in 186 (a plebeian year), or indeed plebeian aediles—none of the four aediles of that year are known—and thus “aediles the previous year” when Q. Flaccus was aedile designate. In any event, Livy’s account of the suffect elections of 184 offers slight grounds for abandoning the hypothesis of a mandatory one-year interval between plebeian aedileship and praetorship. As for the curule aedileship, a compulsory biennium between that office and the praetorship was eventually instituted, but probably only in 180.124 In spite of the new regulated career pattern, ambitus (procuring election) clearly became a serious problem. The increase in the number of praetors, despite the new stipulation that only ex-praetors could be consular candidates, meant that competition for the consulship soon became fierce.125 And competition was not limited to the top. There were four candidates for a position as suffect praetor in 184, an election which the Senate had to cancel when it grew too contentious.126 Connected with this (surely) is the legislation passed in 182 and 179 that regulated the cost of aedilician games.127 7.2.5 The Lex Baebia and Lex Villia Annalis The Romans attempted to settle the issues related to the cursus honorum once and for all with the introduction of two novel laws at the end of the 180s. In 181, the consul M. Baebius Tamphilus, along with his colleague, P. Cornelius Cethegus, passed a law regarding ambitus, which is the first of its type in our record since an alleged example in 358.128 What must be another provision in the same law required that four and six praetors respectively be elected in alternate years. Livy
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mentions this part of the law only once, retrospectively, but in a most significant context: “In that year [180], for the first time a motion was proposed by the tr. pl. L. Villius, fixing the ages at which each magistracy might be sought and held [see immediately below] . . . After many years, four praetors were elected under the Baebian law, which provided that four should be chosen in alternate years.”129 Mommsen130 was the first to see that the alternation in the number of praetorships must have been meant to reduce competition for the consulship by reducing the number of possible candidates for the office, and that this is the link with the ambitus measure.131 Now, M. Porcius Cato is known to have spoken in favor of the motion “that the Baebian law should not be ‘derogued’” (“ne lex Baebia derogaretur”).132 “Derogare” signifies only a partial change of a law.133 It is reasonable to surmise from this notice that there was but one lex Baebia—confirming Mommsen’s view that there was a strong connection between the ambitus measure and the provision on the number of praetors. Only the provision regarding the four and six praetors will have been challenged; the part on ambitus was surely to be left in place.134 Once the number of praetors was for the moment set (in effect, at an average of five per year), in 180 a second law, the lex Villia Annalis, was introduced. This evidently stipulated the minimum ages for candidacy for each (curule) magistracy—and kept the probable law of 196 which required the praetorship for candidates to the consulship. The lex Villia Annalis would have the immediate effect of controlling the number of men campaigning for higher office in any one year.135 It will not have been the first proposal of its kind. Cicero reports a heated public debate between the senior consular M. Servilius Geminus (cos. 202) and M. Pinarius (surely to be identified with the M. Pinarius Rusca who was pr. 181) over a lex annalis that Rusca was trying to propose.136 As in the Flamininus affair, the senatorial establishment was on the side of an unregulated cursus. Rusca’s proposal was clearly made in a tribunate, hence about the mid-180s (M. Servilius Geminus lived until 168). It is strange that Livy pays no attention to what Cicero describes as a quite heated dispute (1.2.3). Presumably, the lex Villia Annalis was simply the first law of its type which Livy found in his sources as actually having been passed. Once enacted, its provisions remained in effect through the time of Sulla (who expanded it—11.1.2), and then beyond down into the 40s b.c.137 To judge from statistics, the combination of the two laws of 181 and 180 did what they were supposed to do. The mid- to late 180s had seen some retarded careers. The plebeian consul of 184 had been praetor in 193; the consuls of 183 had served as praetors in 189 and 188 (not too slow). The consuls of 182, however, had come to the office quite late. The patrician L. Aemilius Paullus had been praetor in 191, and Cn. Baebius Tamphilus, brother of M. Baebius, was praetor in 199. This interval of seventeen years is the longest gap between praetorship and consulship in our record for this period.138 M. Baebius Tamphilus himself had to wait eleven years for his consulship, since he was praetor in 192. After the passage of the laws, praetors, particularly plebeian praetors, began reaching the consulship (on the whole) at a more swift pace in the 170s, usually three years after their praetorship. Only eight men performed this feat in the period 200 to 180, compared to fifteen in the years 179–162.139 Perhaps this new regulation of competition for the consulship
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helps explain why a surprising number of ex-praetors (some quite senior) came back in the 170s to hold a second praetorship: P. Aelius Tubero, pr. 201 and II 177; A. Atilius Serranus, pr. 192 and II 173; M. Furius Crassipes, pr. 187 and II 173; and Cn. Sicinius, pr. 183 and II 172. Of these men, only Serranus went on to become consul (for 170).140 All the same, how did the Romans expect the system of the lex Baebia to work? If anything, the Roman administrative system had been experiencing a good deal of pressure in the 180s, with praetors having to hold a number of special commands throughout Italy, where there was major dissident activity (see 8.4), as well as in Gaul. The strain was especially acute now that the urban and peregrine praetors regularly remained in the city. The implementation of Baebius’ law meant that to staff even the regular overseas provinciae at least two praetors would have to be prorogued every other year. It also (surely) implied reviving the original wideranging role of the peregrine praetor: henceforth it would be more difficult to make room in the praetorian sortition for special provinciae, especially in odd-numbered years. At this stage, the peregrine praetor’s presence in the city cannot have been absolutely indispensable. It helped that routine prorogation already had grown common in the Spains. At the time of the formal organization of these provinciae, the Senate seems to have envisaged a system of annual succession of pairs of praetors. This was a rather optimistic policy, in view of the distance involved from Rome.141 All the same, in each of the years 197 through 192, the two Spanish provinciae found a place in the praetorian sortition. The war with Antiochus III disrupted that pattern. The Spanish praetors for 192 had their provinciae changed to the fleet and Bruttium; this meant the prorogation of the two praetors of 193.142 The emergency in the east and (in 190) Etruria (8.4.1) meant that Hispania Citerior did not come into the sortition again until 189, which meant a four-year command for its incumbent, C. Flaminius.143 As matters turned out, the praetor who received Hispania Ulterior for 189 died en route to his province; a pro praetore had to be found to serve temporarily in his stead,144 and the Spains were allotted anew in the sortition for 188. This was to be the only occasion in the period 191–181 when the Spains were allotted two years in a row. By the mid-180s, we can detect that the Senate had given up on the idea of annual succession for the Spains. In 187, trouble flared up in south Italy, necessitating the special praetorian provincia “Tarentum” (see 8.4). The next year saw the peak of the (closely connected) Bacchanalian activity. The unrest in Italy—and the need to declare special praetorian provinciae—continued for the remainder of the decade. The Senate may have decided as early as 186 to send praetors only biannually to the Iberian peninsula. The Spains received new pairs of praetors only in the “even” years 188, 186, 184, and 182; these provinciae were omitted from the sortition in “odd” years, with prorogation of their commanders.145 However, the Romans never allowed a situation analogous to the repeated prorogations of C. Flaminius to recur, and henceforth sent out, prorogued, and recalled Spanish praetors in pairs whenever possible. The only exception to this policy occurred in 173, when the praetor for Hispania Citerior, N. Fabius Buteo, died at Massilia on his way to his provincia. As in the similar situation of 189, no suffect was elected.146
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In sum, the lex Baebia of 181 institutionalized the habit of biennial sortition of the two Spains. Under the law (we can be certain) Hispania Citerior and Ulterior were to be allotted in only even-numbered years. These provinciae were left out of the sortition in odd-numbered years, when there were just four praetors to go around for six regular provinces. Although we would never know it from Livy, the lex Baebia was of crucial importance in Roman administrative history. The law implies the first institutional acceptance of routine prorogation. 7.2.6 The Partial Repeal of the Lex Baebia Ti. Sempronius Gracchus (pr. 180 and prorogued into 178) brought a certain measure of peace to Hispania Citerior by a series of brilliant military victories against the Celtiberians, followed by an extensive (and longlasting) settlement in which he entered a number of peoples—perhaps even beyond Celtiberia—in treaties of friendship and alliance with Rome.147 Nevertheless, despite this new stability in Iberia, the Senate soon gave up on the portion of the lex Baebia which dealt with the routine prorogation of the Spanish praetors—perhaps as early as 175. In the previous year (176), the praetors for both Citerior and Ulterior and the praetor for Sardinia all had refused to set out for their provinciae (see 6.2.2). Unfortunately, a long gap in our single manuscript for Livy Book 41 makes it impossible to ascertain whether the sortition for 175 included the Spains, so as to relieve the two praetors who had been there since 178.148 These provinces came into the sortition for 174, as one would expect even under the terms of the lex Baebia. In 173, Livy reports the election of six praetors,149 and we have no further record of a limitation to four. As we have seen, M. Porcius Cato, now an ex-censor, spoke against amending the Baebian law. But he did not win his point. The scheme obviously was deemed to have failed. The victory of Ap. Claudius Centho (pr. 175) over the Celtiberians in 174150 reinforced the peace in the Iberian peninsula—for a time. With Centho’s success came an attempt to return to the principle of annual succession. The Spains came up in the sortition in at least seven of the eight years 173 through 166, where our record breaks off.151 However, Hispania Citerior and Ulterior were only one provincia, with one praetor, during the period of the Third Macedonian War (171–168).152 This administrative arrangement will have facilitated the resumption of “traditional” policy. The one instance where we may find prorogation finds a ready explanation. L. Canuleius Dives (pr. “Hispania” 171), probably arrived in his provincia too late in the year to justify his recall in 170. While still in Rome, L. Canuleius was responsible for a special quaestio, established by decree of the Senate, to allow certain Spanish socii to reclaim losses (Livy uses the phrase “pecunias repetere”) from the ex-governors M. Titinius (pr. 178), P. Furius Philus (pr. 174), and C. Matienus (pr. 173).153 One issue seems to have been that these commanders had been arbitrarily setting prices for the expected annual grain quota, and sending praefecti to the Spanish towns to exact money.154 Though Livy states the guilt of the ex-praetors was obvious, their trials evidently took some time. First, the Senate had to decide on how to try them. That must have demanded some deliberation, since Livy
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implies that the Spanish allies’ request for satisfaction was unprecedented. In the event, the Senate chose a procedure adapted from private law.155 The praetor L. Canuleius was ordered to assign five senatorial recuperatores to each defendant (to decide on the facts of each case and assess compensation), and to admit to the proceedings whatever patroni (i.e., as prosecutors) the Spaniards should choose. The selection of recuperatores in particular may have been a drawn-out process, in view of the political difficulties always inherent in prosecuting Roman senators—in this case, of praetorian rank. We then learn that M. Titinius was acquitted, after two adjournments (ampliationes), at his third hearing, while Philus and Matienus each had one adjournment before deciding to go into exile. It does not seem the patroni were expediting the trials: rumors floated that they were impeding influential witnesses from being called. Nor did the presiding praetor’s behavior allay these doubts about the integrity of the proceedings. While Canuleius’ quaestio was still in progress, he terminated it, started a levy, but then slipped off to Spain.156 If L. Canuleius arrived late in the campaigning season, it may have seemed more expedient to prorogue him than to send out a successor in 170. The Senate may not have minded too much that he abandoned his quaestio. Indeed, official indifference to the complaints of socii against the misconduct of provincial commanders would lead, within a half-century, to the creation of a special praetorian provincia concerned solely with cases of this sort—that of the praetor repetundis (9.2.2).
7.3 Administrative Policy in the Spains, 165–122 7.3.1 The Spains, 165–122: An Overview Our sources shed only occasional light on the deployment of praetors in the Spains in the decades after Livy’s narrative breaks off in 166. In a previous work, I have examined in detail the problems regarding the identity and chronology of the Spanish commanders in the years 157 through 150 and 147 through 142.157 Here, I summarize (quite severely) the findings of that study, adding a few general observations on Roman administrative policy in Iberia in those years and a bit beyond. Then in 7.3.2–3 I briefly examine some more particular problems relevant to the Spains in the years 166–122 b.c. For the period ca. 157–150, it seems probable that the Senate had a policy of regular succession for fighting the Lusitanian and (soon) Celtiberian wars—admittedly, at least partly because of the repeated failure of the commanders sent to that theater. For Hispania Ulterior, against Broughton, I have tentatively suggested that M.’ Manilius fought there as pr. 158 or 157, L. Calpurnius Piso Caesoninus as pr. 156, and (almost certainly) L. Mummius as pr. 155. (We have no record what was happening in Citerior during these years.) There is reason to think L. Mummius came late to the provincia, which would explain his prorogation into 154, even though he had incurred a major defeat soon after arrival. But once prorogued, L. Mummius chose to follow marauding Lusitanian bands across the straits into North Africa (which shows well the virtual independence of these Spanish praetorian commands), and fought well enough to earn a triumph. The triumphal Fasti
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(which are entirely complete from 178 down into 155) show there had not been one from Hispania Ulterior in twenty-five years (L. Postumius Albinus, pr. 179, in 178); the last men to have celebrated one from Citerior were M. Titinius Curvus (pr. 178) in 175, and Ap. Claudius Centho (pr. 175), who had an ovatio in 174. L. Mummius’ stunning success against an intractable foe surely made ambitious men take notice once again of the Spanish theater. And now there was news of a major revolt by the Aravaci in Citerior. The year 154, as it turns out, was only nine and a half months long, owing to the Senate’s decision to move the consular year back to start henceforth on 1 January rather than 15 March. In 153, the praetor M. Atilius (Serranus) was to succeed Mummius, while Hispania Citerior was allotted to the consul Q. Fulvius Nobilior. Fulvius was the first consul to receive either of the Spains since M. Porcius Cato in 195. In general, it must have seemed not absolutely essential to declare the Spains “consular” even in the face of major unrest, since from the beginning all the praetorian commanders for Spain as pro consulibus had the twelve fasces. Q. Fulvius Nobilior’s appointment shows the extent of the emergency—or the perceived opportunity to win military gloria. Despite the new-style year, Fulvius made it to his provincia only by late summer, and soon met disaster at Numantia. He had little chance to recoup his loss, thanks to the arrival of M. Claudius Marcellus (pr. 169 in “Hispania,” and cos. 166, II 155), who had been elected cos. III for 152, specifically (surely) to pick up the war in Citerior. The praetor M. Atilius (who, like Fulvius, may also have arrived late) was more successful, and despite a fresh revolt in his provincia in late 153, was allowed to stay in Ulterior through 152. Both the new consuls of 151, A. Postumius Albinus and L. Licinius Lucullus, worked to undermine Marcellus’ attempted settlement for Celtiberia, each hoping for himself to be sent to take up the fighting. They might even have pressed for both Spanish provinciae to be declared consular. Though the Senate decided to continue the war, it refused to let more than one consul have his way. It obviously had settled on a policy of entrusting Citerior to a consul or prorogued consul, while Ulterior was to remain exclusively praetorian: this is the arrangement we see in each of the years 153–150. Accordingly, Hispania Ulterior was allotted to the praetor Ser. Sulpicius Galba, who suffered a major loss soon after taking this provincia. Meanwhile the consul L. Lucullus, who managed to succeed Marcellus in Citerior, pursued one of the lower forms of triumph hunting, attacking pacified or pacific tribes.158 Nonetheless, Lucullus and Galba had their commands extended into 150. That is a bit of a mystery, especially in light of the pressure for quick supersession of generals in the years 153–151 (even the successful M. Claudius Marcellus). Owing to the severe problems surrounding the levy in 151, L. Licinius Lucullus and Ser. Sulpicius Galba may have reached their provinciae rather late. But whether that in itself explains their prorogation is doubtful: a delayed arrival had not saved Q. Fulvius Nobilior from supersession two years earlier. Rather, the new consuls of 150 must have realized that, for the moment, there was very little genuine fighting to be done in Spain. They may not have agitated for the command— especially now that that the dispute between Carthage and the Numidian king
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Masinissa was engaging the Senate’s attention. And the Senate, for these very reasons, was hardly going to send one of the consuls to Citerior. It also might have been reluctant to offend the dignitas of Lucullus, who surely claimed he was still engaged in important operations (e.g., Pallantia), by replacing him with a praetor after only one year. But once prorogued, Lucullus found so little to do in his provincia that he is found ravaging Lusitania. For his part, Ser. Galba had no notable military success in 150—only his massacre of several tribes of Lusitanians which are said to have placed themselves under his fides. What happened next deserves more detailed comment. Appian tells us that Galba, though a wealthy man, greedily kept most of the Lusitanian booty for himself, distributing only a small amount among friends and soldiers. That act of selfishness may be enough to explain why Galba soon landed in trouble. L. Licinius Lucullus did not—though he was no better when it came to keeping fides, and only the first of his family to have reached the consulship.159 A tribune of 149, L. Scribonius Libo, introduced a rogatio against Galba on his return to Rome. Libo proposed that a special (surely capital) quaestio be set up to try him, probably for res repetundae; also (in the event of conviction?) that the Lusitanians he had enslaved be set free.160 Before coming to a vote before the Plebs, the tribune’s proposal was debated in a series of contiones (we cannot tell how many, since this was not a trial). Libo’s rogatio found energetic backing from an enemy of Ser. Galba—M. Porcius Cato (cos. 195), now eighty-five years old.161 Q. Fulvius Nobilior, who of course had experience as cos. 153 in Citerior, tried to counter Cato (an old family foe) in Galba’s defence. Galba himself made a series of memorable speeches, including two against Libo and his proposal, and also one against a certain L. Cornelius Cethegus. This man was perhaps a son of the C. Cornelius L.f. Cethegus (cos. 197) who was pro consule in Spain in 201–200; like Cato, he must have had a special interest in Iberia. Cethegus evidently had charged that there was no justification for the slaughter. For his part, Galba replied that the Lusitanians had planned to attack his forces despite a truce. The formal issue of the case—the enslavement and plundering of these tribes—hinged on the circumstances of the massacre. Galba felt he had to show that these Lusitanians were a dangerous enemy, who earned the treatment they got.162 Significantly, he does not seem to have argued that his (enhanced) imperium was a justification in itself; that defense would have been futile, thanks to a precedent set in 171 (see 8.5.3). When it came to the actual comitial vote, Galba in a famous speech did not so much appeal to the facts as try to manipulate the emotions of the crowd. By making a tear-soaked plea, entrusting his two sons and a ward to the guardianship of the Roman People, he persuaded them to vote against the proposed quaestio. It is hard to remember this was not a trial—but it might as well have been. Had Galba failed, a vote of the Plebs to accept Libo’s bill would have constituted a powerful praeiudicium against him. As matters turned out, four years later he was elected to the consulship for 144. At the time, Viriathus was causing havoc in Spain. Galba may have won the office by campaigning as a “hardliner”: we shall see that he was anxious to get a chance to fight in this theater. Hispania Citerior and Ulterior should have come into the praetorian sortition for 149. However, now that both consuls were allotted the war in Africa, a combined
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provincia of “Hispania” is not out of the question: there was precedent for that from 171 (also the first year of an overseas war). At the present, the Romans had to watch the northern frontier of Italy, as well as the pretender Andriscus in Macedonia (the Senate had a praetor available to fight him later in the year). We also have no way of knowing how the Spains were handled in 148: Carthage was continuing its resistance and, for a second consecutive year, “Macedonia” had to be declared a special praetorian provincia and given to a praetor with enhanced imperium (9.1.2). By now, Iberia obviously was going to attract less interest and attention. Our sources (i.e., Appian, Diodorus, and Livy’s summarizers) do return to this theater to narrate the early stages of Viriathus’ revolt. Here they make a point of underlining the inadequacy of the praetorian commanders now sent to Spain, all to the greater glory of the Lusitanian rebel. In Hispania Ulterior, there is the “old and fat” pr. 147 C. Vetilius, whom Viriathus captured and (according to one tradition) put to death as a prisoner—the first time we find that in our record for any praetor. Vetilius’ successor, C. Plautius (pr. 146), is said to have withdrawn from the field in the middle of the campaigning season. On his return to Rome, he had to go into exile after being condemned (surely in 145) for perduellio. As far as we know, Plautius was the first Roman praetor to have suffered that particular fate since Cn. Fulvius Flaccus, who was defeated by Hannibal in 212 (8.3.1). For 145, the Senate finally declared Ulterior a consular provincia (the first time ever in our record), and it fell to Q. Fabius Maximus Aemilianus. Aemilianus took a cautious approach, refusing to commit his newly recruited army against Viriathus before they were properly trained, and so (on the whole) avoided disaster—which was a success of sorts. But in that same year, yet another praetor had a setback, this time in Citerior. Claudius Unimanus (who indeed might have had only one arm) incurred the disgrace of losing not just his standards but also his fasces to the Lusitanian leader. Each of the new consuls of 144, Ser. Sulpicius Galba and L. Aurelius Cotta, contended for the Spanish command. Hispania Citerior—the scene of the latest crisis—must have been the provincia which was open. There was no good reason to recall the careful Fabius Aemilianus, who was holding his own in Ulterior: his brother Scipio Aemilianus (whose auctoritas must now have been very powerful indeed) would oppose that in any case. Indeed, it is worth suggesting (to judge from the practice we find only a few years later) that in the emergency, the Senate had devised a solution which allowed, for the first time since 218–211, two men of full consular rank to operate in Spain—without having to send a pair of actual consuls, something which the Senate had always avoided. The Senate planned to send out one consul a year to either Ulterior and Citerior in alternation, with prorogation of one year expected (barring major disaster), until the war was brought to an end. In that way both provinciae would have consular commanders.163 When the consuls’ respective supporters in the Senate were quarreling over the question who would be sent to succeed Claudius Unimanus in Citerior, Scipio Aemilianus advised that neither Cotta nor Galba receive the commission. He evidently feared that each of these men would be more concerned with personal gain and advancement than seeing to the larger security of the peninsula; to be sure, Galba’s past record in that theater gave particular reason to worry. Surprisingly—
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for it upset the Senate’s nascent policy—Scipio’s sententia prevailed. What is more, the record shows that he must have obtained an extra ordinem command for his best friend C. Laelius (who had been pr. 145)164 to fill the gap in Citerior. Once the Senate adopted Scipio Aemilianus’ sententia, it probably had little choice but to acquiesce in this extraordinary appointment. After 146, when the number of praetorian provinciae had outstripped the number of praetors elected for each year, there were not enough praetors to replace unsuccessful commanders at short notice, especially in distant theaters. C. Laelius (perhaps technically as a privatus pro cos.) scored some successes against Viriathus in 144. But before the year was up, the Aravaci (and their city Numantia) were once more in revolt in Hispania Citerior. Despite the headway Laelius made, it was decided that both Spains be assigned anew for 143. The consuls of that year, Q. Caecilius Metellus Macedonicus and Ap. Claudius Pulcher, resumed the competition of 144 for Citerior, which was allotted (amid great acrimony) to Metellus. A praetor Quinctius was sent to succeed Q. Fabius Maximus Aemilianus, who had been in Hispania Ulterior for two years. We may note that, despite the ever-widening rebellion in Spain (and the absence of war elsewhere), the Senate still would not give both Citerior and Ulterior to two consuls in office. On one interpretation, the Senate may have thought that, even in times of major fighting, commanders of consular rank were desirable but not strictly necessary for the Spains. As I have stressed, there was no discernable difference between the insignia of a Spanish praetor (who held enhanced imperium) and that of a consul; and so it was acceptable to send C. Laelius to Citerior ex praetura in 144 and Quinctius to Ulterior in 143, each succeeding a consular commander, even with the war against Viriathus fully raging. The alternative is to suppose that Quinctius was a stopgap, and that starting for 142 the Senate was planning to restore its system of alternating consular commands. But the praetor Quinctius was not even able to maintain the status quo. Not long after arrival in Ulterior, this man lost his standards to Viriathus, and is said to have withdrawn into winter quarters before the campaigning season was up—like his praetorian predecessor C. Plautius in 146, who had been condemned for perduellio. For 142, the consul Q. Fabius Maximus Servilianus received Ulterior, while Q. Caecilius Metellus Macedonicus was prorogued in Citerior. In each of the next five years (even after the death of Viriathus in 139), we find this structure of a consul paired with a prorogued consul, with Citerior assigned anew in odd-numbered years (i.e., Q. Pompeius in 141, M. Popillius Laenas in 139, and C. Hostilius Mancinus in 137), Ulterior in even-numbered years (Q. Servilius Caepio, cos. 140, and D. Iunius Brutus, cos. 138), and routine prorogation of each consul for (only) one year. Again, I emphasize the possibility that the Senate started to apply this system as early as 145, but that the intervention of Scipio Aemilianus on behalf of his friend upset the Senate’s policy after only one year. In fact, this regular (though admittedly temporary) system of strictly alternating commands may have been partly intended to depoliticize the process of deciding which Spanish commander was to be superseded in a given year. For what it is worth, we do not hear of the consuls in the years after 143 ambitiously maneuvering to get to one of the Spains. However, this emergency method of deciding the consular provinciae was to be abandoned
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after 137, a year when the consul in Citerior, C. Hostilius Mancinus, was recalled during the actual campaigning season, and replaced by M. Aemilius Lepidus Porcina (also cos. 137). Starting in 136, we find a series of one-year consular commands in Hispania Citerior, with the immediate supersession of unsuccessful commanders: L. Furius Philus (cos. 136), Q. Calpurnius Piso (cos. 135), and finally P. Cornelius Scipio Aemilianus, cos. 147, and elected II 134 by special dispensation, specifically to finish the war in Celtiberia. In the crisis, D. Iunius Brutus, who was successful as cos. 138 and later pro consule in Hispania Ulterior, was kept in his provincia—perhaps down to 133 or even 132. It is unlikely that a praetor replaced him ca. 135, as has been suggested on the basis of some dubious evidence from two late epitomators. There may not have been any to spare at that time, thanks in part to renewed fighting in Illyria (which occupied Ser. Fulvius Flaccus, cos. 135), Macedonia (see 9.1.3 on the praetor M. Cosconius), and (especially) a full-blown slave revolt which erupted in Sicily in 135. That rebellion obviously was in danger of spreading to the Italian mainland—which it actually did in 133 (6.3.1; cf. 8.6.2). In the absence of conflicting evidence, we can tentatively assign D. Iunius Brutus a command of five or five and a half years in Ulterior (see 7.3.2). As it happens, the next commander for Spain we find in our period—the praetor Q. Fabius Maximus, the future Allobrogicus, in 123 (7.3.3)—happens to have been prorogued. So in what circumstances did the Senate employ the principle of annual succession for Spain in the mid-second century? For the Republic in general, when there was the opportunity for special military gloria, we know that incoming consuls often used all their influence for veteran commanders (regardless of their record) to be recalled.165 We can detect such pressure exerted by new consuls during the war in Spain in the late 150s (explicitly attested for 151) and then in the years after 145. But starting in perhaps the mid-140s (and certainly by the late 140s), the Senate attempted to assert its direction of the war by devising a regular “system” of what were de facto two-year consular commands (but never longer). This apparently aimed at orderly succession in Citerior and Ulterior in alternate years, so long as the emergency should last. Under this strict system, success in one’s command did not prevent supersession (note C. Laelius in 144). Nor did a serious defeat in the year of one’s magistracy rule out prorogation (Q. Caecilius Metellus Macedonicus, cos. 143, and Q. Pompeius, cos. 141). Why? The year 146 had seen some major accretions to the Republican empire (Macedonia, Africa)—and indeed the institution of a new-style administrative scheme (9.1.2–4)—and the Senate evidently was taking extra care in managing its system. But after Mancinus’ failure in 137, the Senate and People reverted to the “practical” policy for Spain. They quickly replaced unsuccessful commanders in Citerior (finally sending Scipio Aemilianus, cos. II 134 by special dispensation), and prolonged the imperium (for many years) of an effective general in Ulterior (D. Iunius Brutus, cos. 138), until both provinciae were thoroughly pacified, and ready once again for normal praetorian administration. A final note. One important thing to consider for our study is that only two regular praetors had to go to the Spains in the years 145 through 133. The availability of (on average) two “extra” praetors per year in this thirteen-year period when the
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Spains were regularly declared consular certainly must have blunted the impact of the Senate’s decision to add those two new praetorian provinciae in 146, but no new praetors. This situation in Spain may even have been one of the factors which emboldened the Romans to annex “Asia” for permanent administration in 133 (9.1.5), and just possibly, to institute a provincia “repetundarum” in 122. 7.3.2 The Commands of D. Iunius Brutus and “Sylla” in Hispania Ulterior At the time of the consular elections for 134, a plebiscite was passed to exempt P. Cornelius Scipio Aemilianus (cos. 147) from the prohibition then in effect on consular iteration (see Additional Note II), in the hope that he could bring the protracted fighting in Spain to a close. Aemilianus was elected to the office, and stayed in Citerior until the Numantine war was finished, returning to triumph in spring or early summer 132.166 The cos. 138 D. Iunius Brutus also had a triumph from Ulterior, which Eutropius (our only source that implies a date) groups with that of P. Scipio Aemilianus. After his notices of Aemilianus’ election to a second consulship (i.e., in 134), and the death of Attalus III in 133, Eutropius reports: “Soon also (mox etiam) D. Iunius Brutus with great glory triumphed de Callaecis et Lusitanis, and P. Scipio Africanus conducted a triumph de Numantinis, his second, in the fourteenth year after he had celebrated his first de Africa.”167 Eutropius’ quasi-archival style, listing the conquered peoples relevant to each triumph, and his (correct) notice of the interval of “fourteen years” between Aemilianus’ first and second, suggests that he is following Livy on the matter, and trying to be precise. Degrassi accepts Eutropius, and places Brutus’ triumph in late 133.168 But Eutropius can be a misleading source on triumph dates,169 and we must regard his implied chronology here only as possible. Broughton, like Münzer before him, was skeptical of Eutropius’ presentation, arguing that “a provincial command lasting from 138 to 133 appears to be quite extraordinary in this period, and no details are preserved of military operations under Brutus’ command after 136.”170 L. Curchin recently has attempted to find a solution to the problem of Brutus’ “incredibly long tenure in Ulterior” in a notice from one of Eutropius’ fourth-century a.d. contemporaries. The epitomator Rufius Festus, in a concise sketch of the provinces of his day, gives the following history of Spain down to the first century: Through Scipio, we first brought aid to the Spaniards against the Africans. Through Decimus Brutus, we took firm hold of the Lusitanians rebelling in Spain . . . [A]fterward, when Sylla was sent against the Spaniards who were causing a disturbance, he conquered them (postea ad Hispanos tumultuantes Sylla missus eos vicit). The Celtiberians in Spain often rebelled, but when the younger Scipio was dispatched, they were subdued with the destruction of Numantia.
Jordanes (sixth century a.d.), in an even more compressed sketch of Spain, places a “Sylla consul” who quelled a Spanish rebellion between mention of Scipio Africanus and Scipio Aemilianus. Curchin (interpreting postea in Rufius Festus to
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mean “immediately”) uses these two epitomators as evidence that “this Sylla must have succeeded Brutus in Ulterior, as praetor pro consule . . . [T]his one may be P. Sulla, who was a monetalis in the 140s or early 130s.”171 This “Sylla” certainly is a mystery. Some older scholars, in desperation, accepted the (absurd) emendation of the name to “Silanus,” that is, M. Iunius Silanus (cos. 109), who obviously had to have served as praetor somewhere.172 Now, it is not impossible that a Cornelius Sulla—perhaps the dictator’s own father, who is likely to have been of praetorian status173—fought in the Spains sometime from the late 130s on. If so, he could even have won a triumph for his accomplishments without us knowing (the triumphal Fasti are lacking until 129), though that would be strange. Alternately, his victory did not lead to a triumph, but was picked up by historians because he had a famous name. But these particular late epitomators hardly inspire confidence. If “Sylla” did exist, it is difficult to believe he fought in Spain as Brutus’ “successor” in the mid130s (as Curchin would have it), or even late 130s. It is almost impossible to accept that a praetor was sent to quell a major revolt (the clear implication of both sources) which broke out in Spain immediately after D. Iunius Brutus’ departure, triumph, and reception of the honorary agnomen “Callaicus.”174 For what it is worth, Appian reports that the ten legati who went to the Spains in 132 based their work of reorganization on the deditiones obtained by Scipio Aemilianus and, before him, D. Iunius Brutus.175 Appian obviously has no third commander “Sylla.” And if a rebellion erupted soon after the settlement of the ten legates, we might expect to see “Sylla” in the triumphal fasti which resume in 129, which of course we do not. Rufius Festus (and thus Jordanes)176 might simply be in error. Can D. Iunius Brutus have had a command of five or five and a half years in Ulterior? The soldiers he commanded were due to be discharged in 136,177 but their mutiny at the river Lethe surely gave the Senate an excuse to keep them in Spain, especially while the military emergency was still continuing. It is true that no commander, to our knowledge, had such a prolonged tenure in the Spains ever since they were made formal provinciae: the closest is C. Flaminius, pr. 193, and prorogued through 190. But such repeated prorogations for consular commanders soon make their way into our record, defective though it is. There may have been any number of similarly prolonged commands in this general era; we know of the men who had long commands only because they triumphed (15.3.1). Nevertheless, Brutus’ extended command seems to have raised controversy. Scipio Aemilianus delivered a speech “On the imperium of D. Brutus.” This must have concerned his prorogation, and as such can be placed in any of the years 137 through 134; since only a single word survives, we cannot ascertain the issue at hand, or which side Aemilianus took on the matter.178 7.3.3 Q. Fabius Maximus The only man certain to have been praetor in Spain after Quinctius in 143 and before the end of our period shows up in 123. In that year, Q. Fabius Maximus (the later Allobrogicus, cos. 121) was a prorogued praetor in one (or both?) of the Spanish provinciae. Plutarch mentions that the tr. pl. C. Sempronius Gracchus prompted
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the Senate to censure Fabius for his excessive grain exactions, on the grounds that they made Rome’s government intolerable to the provincials. (Fabius in this bid for popularity surely was already looking forward to standing for the consulship on his return.) Gracchus convinced the Senate to sell the grain which Fabius had sent to Rome, and reimburse the Spanish towns. It may be that C. Gracchus was not merely responsible for the relatio against Fabius Maximus but actually presided over the relevant Senate meeting; Plutarch’s wording does seem to suggest it. If true, that would show no higher magistrate was willing to introduce it. Whatever the case, Plutarch tells us that the senatus consultum that resulted brought C. Gracchus great fame and popularity in the provinces (but, we can guess, not in the city of Rome). E. Badian rightly suggests that C. Gracchus’ accusation in 123 was meant to uphold his family’s reputation for justice among the Spaniards, which was founded by his father’s settlement of 179—and perhaps diminished by the repudiation of his brother’s treaty of 137. We have seen that a similar case in 171 gave rise to the appointment of recuperatores, and by 123 there was of course a quaestio perpetua in place for more than a quarter century, to be overhauled this year and the next by Gracchus’ own reforms, which made it an actual praetorian provincia (9.2.2). But here the Senate issued its reprimand without even investigating the matter (as far as we can tell). There were obviously no grounds to suspect that Fabius was seeking to enrich himself.179 As it turns out, we know the consul Q. Caecilius Metellus was also in the western Mediterranean in 123, pursuing operations against the pirates based in the Balearic Islands. Of these islands, Mallorca lies just 225 kilometers off the east coast of Iberia, Minorca a bit farther. Hispania Citerior was the obvious base for Metellus to launch his conquest and settlement of the Balearic Islands, which included the transfer of three thousand “Romans” from Spain (perhaps “Hispanienses”?) to inhabit Palma and Pollentia on Mallorca. To see to these tasks, Q. Caecilius Metellus was prorogued down into 121, the year in which he apparently triumphed de Baliaribus. M. G. Morgan has suggested that Q. Metellus may have had Hispania Citerior as his provincia in 123 and 122, which would make Q. Fabius Maximus (Allobrogicus) commander in Ulterior in (at least) 124 and 123.180 Morgan’s suggestion is perfectly possible, especially considering the settlement of individuals from Spain on Mallorca. But if so, the Balearic war surely will have been specified in his provincial designation.
8
The Special Provinciae, 218–122
Praetors played only an ancillary role in the defeat of the Carthaginians in Italy, as well as in the conquest of north Italy which commenced (or rather resumed) after Hannibal’s departure from Bruttium in late 203. There were no praetorian triumphs during the Second Punic War. However, outside Italy in the years 218–166 the Romans let privati and then praetors do the bulk of the fighting in Spain, and used holders of praetorian imperium from time to time in important independent commands—particularly naval commands—in the Macedonian Wars, the war against Antiochus III, and the Third Illyrian War. This was partly a function of geography. In the period 218–166, every year except 189 saw at least one of the consuls committed to campaigns in Italy.1 The Spains, Macedonia, Greece, and Asia were distant from Italy, and were in themselves large and physically difficult military theaters. In 8.1, I examine the titulature of the special praetorian provinciae: this is important if we hope to understand what these commanders actually did (or were expected to do). Then (8.2) I investigate the various methods by which a praetor or a holder of praetorian imperium could receive a special geographical area or a task as a provincia. What follows (8.3–6) is an attempt to trace developments in the declaration and assignment of special praetorian provinciae, and the responsibility of the relevant praetorian commanders. The status of the Spains in the period 218–198 and special commands connected with the urban jurisdiction, Sicily, and Sardinia—topics which we have treated in chapters 5, 6, and 7—will find mention only in cases where they offer parallels to problems in the nontraditional provinciae.
8.1 Titulature of the Special Praetorian Provinciae 8.1.1 Official Names of Territorial Sortes in Italy Territorial praetorian provinciae in Italy in the years where we have good information (i.e., 218–166) sometimes take their name from a people. For instance, the dis182
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trict of Etruria twice comes into the praetorian sortition in our period, in 212 and 190.2 The name of the provincia as preserved by Livy in both cases—the “Tusci”— is doubtless the official one. This designation indeed spelled out the main task which awaited the praetors of each of these years in this provincia: to guard against the possibility of insurrection by this people. Livy’s frequent references to the assignment of “Etruria” to pro praetoribus and consuls should probably be regarded as not reflecting official usage.3 The terminology of the praetorian provincia of the “Bruttii” (standard in Livy) presents no problem: “Bruttii” is the invariable name in classical Latin for the district in which these people lived.4 Other provinciae are named after a base. To judge from the annalistic sections in Livy, Gaul seems to have been designated as “Ariminum” in (at least) the Hannibalic era. Livy himself points that out.5 Nevertheless, Livy (or his source) freely substitutes “Gallia” and even “ager Gallicus” for what must have been the name on the official sors.6 In similar fashion, in Livy’s reports of the consular sortition, the designations “Gallia” or “Ligures” often appear in place of the official “Italia.”7 Like “Ariminum” and “Gallia,” Livy perhaps uses the two names “Luceria” and “Apulia” to designate the same provincia in the Hannibalic War.8 But after the Hannibalic War, “Luceria” seems definitely to have been broadened to “Apulia.”9 Allotment of the provincia “Tarentum” also seems to fall into this category. That lot entailed responsibility for the entire heel of Italy (modern Calabria) as well as (at least after the war) parts of Apulia.10 The full provincial designation— if it is not Livy’s gloss—may be “Tarentum et Sallentini provincia.”11 After the Hannibalic War, the designation “Tarentum” persists, though it is apparent that the praetors who received this lot had responsibilities further afield than the town and its immediate area.12 Tarentum—like Ariminum and Luceria—was the natural base for a large area, not easy or convenient to define precisely. Each of these places also probably served as a regular muster point (“locus dictionis”) for the army. The announcement (dictio) of the day—and surely also the place—where the legions were to meet for a campaign was an important religious act, attended by a taking of the auspices.13 But the designation “Suessula” had nothing to do with the meeting place (locus ad conveniendum) for armies which were to serve in Campania. The town of Suessula, in Roman control since 338, was located on the via Appia, and occupied a strategic position halfway between Capua and Nola (approximately ten miles from each). Sortition of “Suessula” meant in fact command of the legions at the castra Claudiana, located above Suessula, with the potential (we can assume) for action throughout Campania. Praetors and pro praetoribus in the “Suessula” command are recorded as having seen action at Capua and Nola.14 After Capua fell to the Romans in 211, “Suessula” is no longer allotted; henceforth “Capua” is the military provincia.15 The example of “Suessula” should demonstrate that it is chiefly the base that is specified in provincial titulature; of course, the locus dictionis will often coincide. Consider also “Pisae” and the Ligurians. One or both consuls fought against the Ligurians in almost every year in the period 197 down through the late 170s, and a consular triumph over the Ligurian Apuani is recorded as late as 155. In Livy’s report of the sortition of consular provinciae, allotment of “Pisae” is explicitly linked
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with campaigns against the Ligures.16 Pisa was located to the immediate south of Ligurian territory, and was a military base—but just one meeting place—for expeditions against this people.17 Sometimes “Pisae” and the “Ligurians” were even allotted separately.18 Gradually, the area (rather than the base) comes to be used as the name of the provincia, by analogy with the overseas provinciae.19 Livy, who often employs literary variation in his annalistic accounts of administrative arrangements, does not enable us to follow this development in detail. The change in name of provincia from base to area may first have come in Italy proper (e.g., “Luceria” to “Apulia”). The designations “Ariminum” and “Pisae” seem to have persisted longer, since they continued to be bases against a foreign enemy. The names of these bases were so well established that the obvious task is unlikely to have been specified: when we find such instructions, it is surely Livy (or a predecessor) who expounds.
8.1.2 Specific Tasks as Provinciae Livy is so inaccurate in his handling of official terminology that we can be sure of very little in the development of titulature of provinciae involving special tasks. The command of a fleet was the most important sors of this type. The Senate normally assigned “the fleet” (“classis,” surely the official title of the provincia) to praetors,20 though it could also declare it a consular provincia.21 Here, the Senate may have regularly added a further definition to circumscribe the magistrate’s sphere of activity: otherwise a commander could sail anywhere he liked! One praetor, A. Atilius Serranus, received the compound lot “classis et Macedonia” in 192.22 Praetors allotted the fleet as a provincia could (and did) operate on land—and not just in coastal areas. This lends some support to the hypothesis that the “classis” may actually be an abbreviation.23 We cannot tell whether the rest was expressed in the actual provincial designation, merely understood (i.e., to act in accordance with the praetor’s own good faith), or given as special instructions. The wording of the entries for the naval triumphs of the early and mid-second century (recorded in the Fasti triumphales) does not get us much further, since it reflects nothing more than annalistic tradition.24
8.1.3 “Quo Senatus Censuisset” Finally, there was the lot “wherever the Senate will have decided” (“quo senatus censuisset”). This was obviously available at all times, for praetors as well as consuls.25 It was a stopgap, a temporary expedient; the Senate would provide further territorial definition as soon as events allowed. We know that, as late as 192, without a plebiscite one could not change a provincia which had been drawn in the praetorian sortition.26 A lot designated “quo senatus censuisset” would remove the inconvenience of such a vote in a legislative body. We have three explicit reports of the allotment of this sors to praetors in our period (for 208, 171, and 168).27 (There may have been more: Livy might not report every instance of this practice.) In two of these three cases the “noncommittal” praetorian lot is connected with the provin-
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cia peregrina (208 and 168)—surely a vestige of the original role of the peregrine praetor, which was simply to be available for deployment anywhere. The Senate seems to have resorted to the consular and praetorian lot “quo senatus censuisset” in cases when it was uncertain at the beginning of the year, pending certain information, whether or not a new theater of operations would have to be opened.28 It was also standard procedure to use this cautious terminology when a war was expected but not yet formally declared.29 After all, it was proper that a potential enemy’s land not be declared a military provincia until there was an actual declaration of war! Of course, it usually was known reasonably well in advance where the magistrate who had the province quo senatus censuisset might be needed (Livy tells us as much),30 though circumstances did not yet allow a final administrative decision to be made. The designation is not quite used, as J. Briscoe31 would have it, “in reference to cases where the Senate wants to leave a province unspecified in case of an emergency.” There were precious few moments in the history of the Republic when enough commanders were on hand and administrative committments were so light that a magistrate with imperium could be kept idle until something came up. Perhaps this was true of the peregrine praetor in certain years in the decade 228–219 and for a short time after the transformation of the office in 197—but that is all. Although “compound” provinciae can be assumed as certain, we cannot tell when (and what) combinations were used in any given case. Obvious combinations, such as “classis et Macedonia” or “peregrina et quo senatus censuisset,” seem acceptable. Complex instructions (ut, etc.) are unlikely as parts of a military provincia.
8.2 Methods of Obtaining Special Praetorian Commands In the mid-Republic, the Senate usually decided the consular provinciae for the coming year. The regular praetorian provinciae, however, were fixed. In particular, the urban and peregrine jurisdictions had to be allotted to an individual praetor each and every year: we never hear of prorogation in these provinces. The overseas provinciae—Sicily, Sardinia, and after 197, the two Spains—were also expected to come up in the sortition each and every year (except for the Spains in the period of the lex Baebia), though here modifications could be made on an ad hoc basis. In the Second Punic War, the imperium of praetors in the regular provinces was prorogued for a year at a time. This was a natural development, in view of the annual sortition and the necessity for commanders to winter in overseas provinciae. But the year may have been no more a legal term of prorogatio than the earlier “term” of six months (3.5, 4.1.2). Note that when a commander received a special provincia, it appears from Livy to have been understood by both Senate and commander that the individual would hold imperium until his task was completed—subject to the Senate’s annual review (7.1.3). There were two ways in the period 218–166 to free up an individual lot so that a praetor could proceed to a military command in Italy32 or the East: the Romans left a regular overseas provincia out of the sortition, or combined two regular sortes.
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First, omission. When special provinciae had to be declared in the years 218–198, there were only two regular praetorian provinciae—Sicily and Sardinia—which could be removed from the sortition to make room. Military conditions meant that praetors for Sardinia were more than twice as likely to be prorogued as their Sicilian counterparts. Sardinia was removed from the sortition to make room for a special provincia seven years in all (216, 214, 213, 212, 208, 202, and 200). In the last of these years, M. Valerius Falto, pr. Bruttium (and Campania) 201, received Sardinia as pro praetore. In this same period, Sicily came into the sortition in all but three years (213, 212, and 209). One might add that in 216, M. Claudius Marcellus, the praetor allotted Sicily, never made it to the island and T. Otacilius Crassus (pr. 217) must have been prorogued. In 197 to 166, the Spains were the provinciae most often subject to change. Leaving aside the “Baebian” years (see 7.2.5 and 7.2.6), Hispania Citerior and Ulterior were removed from the sortition in 192 (following a last-minute decision, discussed in 8.2.1), 190, 187, 185, 183, 181, and 170 (in this last year the two provinciae had been combined into one). The easily rationalized omission by the Senate of the Spains from the sortition in this later period meant that Sardinia was left out in only two years (195 and 190),33 Sicily never. And so these two island provinciae were able to enjoy a regular annual (on the whole) succession of governors. As we have noted (7.2.5), it became common in the 180s to leave the Spains out of the sortition in odd-numbered years. For a short time, a provision of the Baebian law of 181 even institutionalized this administrative practice (for the years 179 and 177). But the nonallotment of the Spains under the lex Baebia made it more difficult to declare special praetorian provinciae, since under this law in oddnumbered years there were also to be colleges of only four praetors. The Senate apparently felt the Republic could get by without routine recourse to special praetorian lots—despite the necessity to declare two such provinciae in the very year the Baebian law was passed. The Senate must have envisaged sending out the praetor inter peregrinos (as it did in the Hannibalic era) to meet special administrative needs which might arise in the “Baebian” years. The other way to make room for a special provincia in the sortition was to combine two regular praetorian provinciae. Livy speaks of a praetor of 212, P. Cornelius Sulla, drawing as his provincia the urban and peregrine jurisdictions combined, “which before had been the allotment of two men.”34 Livy is habitually too inaccurate in these matters to allow us to be certain whether this “combination” was in fact an important innovation. The alternative is that it merely is an instance of the “mandatory” process, an arrangement which Livy had explicitly reported for the previous year, and which would be employed probably in each of the next fourteen.35 Yet twice during the war with Antiochus III (191 and 189), it does seem that the two city jurisdictions were in fact drawn as one sors.36 Also, Hispania Citerior and Ulterior became one provincia during the period of actual fighting in the Third Macedonian War (171–168). In the year 170, both these approaches—omission and combination—were used. Spain was regarded as one provincia and omitted from the sortition, leaving room for (we can guess) two special sortes to be drawn (7.2.6).
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8.2.1 The “Ordo Provinciarum” and the Senate’s Acquisition of the Right to Prorogare If Livy’s reports of combination of the city jurisdictions in 212, 191, and 189 are accurate, this arrangement would surely require the approval of the People (or perhaps the Plebs). At this time, the Senate by itself does not seem to have been able to change the actual sortition of regular provinciae. Mommsen demonstrated his characteristic insight in noticing, from a chance report in Livy, that in the Hannibalic period a special vote by the People still was required to take a regular provincia out of the sortition. When it was decided to prorogue the praetors of 209 for Gaul and Sardinia, Livy implies the People had to give their approval for the Sardinian praetor to continue in his command (i.e., in place of one of the praetors for 208). After reporting a number of prorogations, Livy states: [P]rorogued also was the command of L. Veturius Philo [pr. 209], to hold Gaul as pro praetore—the same provincia with the same two legions that he had held as praetor. What the Senate decreed in the case of L. Veturius it likewise did in that of C. Aurunculeius [pr. 209], and the measure to continue his command was brought before the People (decretum ab senatu, latumque de prorogando imperio ad populum est). As praetor, he had held Sardinia as his province with two legions.37
The same vote surely will have been required for prorogation in Sicily at this time, if it resulted in the omission of that provincia in the next sortition. But it appears from Livy that the extension of praetorian commanders in a special provincia—which had no effect on the fixed provinces—did not require approval of the People. L. Veturius Philo had his command extended in Gaul (apparently) by decision of the Senate alone. It would be interesting to know whether prorogation in the regular provinces needed approval by the People when it had no effect on the praetorian sortition. For example, when P. Cornelius Lentulus was allotted the provincia of Sicily for 214,38 was a vote of the People needed to prorogue the praetor of the previous year, Ap. Claudius Pulcher, in that same provincia? Although this is only a guess, it would seem that a vote was not required. However, a senatus consultum and a popular vote were at one time necessary to remove provinciae once duly drawn by lot. Livy reports that as late as 192, the Senate had to ask the Plebs to cancel the allotment of the Spains to two praetors, and instead substitute two special provinciae: M. Baebius Tamphilus [drew] Hispania Citerior, A. Atilius Serranus Ulterior. For these two men, their provinciae were changed first by a senatus consultum, and then by a plebiscitum: to Atilius the fleet and Macedonia were assigned, to Baebius the Bruttii.39
This is a different type of case than the one for 208 Mommsen attempted to explain. But these two notices demonstrate that in Livy we get only occasional glimpses of what must have been the full and correct procedure when it came to modification of the sortition.
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The arrangements for 208 and 192, when taken together, also seem to show that there must have been, at least notionally, a fixed roster of provinces (the phrase “ordo provinciarum” itself is not attested) consisting of the four (later six) regular praetorian provinciae. On one occasion Livy in fact tells us that a praetorian provincia was allotted “extra ordinem,”40 but this may be only literary variation for his more common “extra sortem.” However, in the late Republic, “imperium extraordinarium” is a technical term.41 The conceptual background to this designation is perhaps the “ordo provinciarum.” Imperium in provinces allotted extra ordinem may have been deemed “extraordinarium,” since (as we have seen) the men who received such provinciae—which were not anchored in the regular sortition—were generally expected to stay in their commands until their tasks were done. We have little further information to help us follow the development into what we undoubtedly find in the late Republic, when the Senate had the right of altering the traditional provinciae and extending magistrates in their commands without submitting the change to a ratifying vote by the People or Plebs. According to Polybius,42 the Senate had full powers to “prorogue” magistrates by the mid second century: “It depends on the Senate whether or not strathgoiv [i.e., magistrates with imperium] can carry out completely their conceptions and designs, since the Senate has the right of either sending out another magistrate when one’s annual term of office has expired, or of retaining him in command.” Polybius may well be accurate. If in Cicero’s day legislative assemblies still had to approve the Senate’s decision on these matters, we would expect that at some point a tribune would veto the proceedings. But in fact we never hear of such a veto.43 Despite the lack of detailed evidence, it is worth asking how the Senate gained this right, since it represents a quite significant aggrandizement of power at the expense of the People. It is possible that at some point a positive enabling law was passed which granted the Senate the ability to extend imperium beyond any magistrate’s term of office. But it is equally possible the Senate simply arrogated this right, perhaps even during the period 218–166, unnoticed and unremarked by Livy. The most plausible way in which the Senate could have done this was to use its competence over the special praetorian provinciae as a “handle” to gain control over the fixed provinces as well.44 By the time of the war with Hannibal, at the end of each administrative year the Senate must have reviewed all the provinciae—regular and special, praetorian and consular, those held by magistrates (and ex-magistrates) and those held by private citizens with imperium—and determined which commanders were to be replaced and which prorogued. Livy actually reports the details of one such meeting, at the end of 216, which may be based on a good source.45 At this session, we are told that it was decided to leave one of that year’s special provinces, “Gallia,” out of the coming praetorian sortition: this the Senate could do without reference to the People, as we have seen. Livy also reports that the Senate decided the imperium of the consul C. Terentius Varro was “propagari in annum” (“to be extended for a year”); he was to hold a command in Picenum. Livy’s unusual wording calls for attention. The verb “propagare” may be the original technical term for the extension of a command by the Senate, made without a vote by the People (which, properly speaking, is “prorogare”). But in time, “prorogare” came to refer to any extension of imperium.
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Livy uses “propagare” of a magistrate’s imperium only in this passage. In fact, the Renaissance humanist, Lorenzo Valla, thought the reading so odd that he “corrected” it in his (formerly Petrarch’s) manuscript of Livy to the familiar “prorogare.” Valla’s conjecture was picked up by R. S. Conway and C. F. Walters in their Oxford edition of Livy, and, more recently, is adopted by Dorey in his Teubner text. “Propagari” is now relegated to the apparatus, despite the unanimous manuscript tradition. But to judge from some later occurrences of the word,46 in an administrative context, “propagare” indeed seems to imply an extraordinary extension of a command. To press this hypothesis further: A two-tiered system, “propagatio” and prorogatio, may have remained in effect for some time. How long, we cannot tell. Livy simply is too inaccurate to allow us to be certain how or when the Senate finally assumed the right to prorogare. It would seem that the Second Punic War facilitated this development. The Senate’s leadership was never questioned in the seventeen years of this war, which was virtually one continuous state of emergency. A large number of special consular and praetorian provinces had to be declared, both in Italy and abroad. Each year the Senate automatically would review the progress of commanders in each of the provinces. By this time the Senate had the full power to propagare commanders in provinces which were outside the “ordo provinciarum.” When it came to the “fixed” provinces, the Senate’s recommendations regarding the extension of commands surely were never rejected by the People or Plebs. But if we accept Polybius’ statement, at some point in the early or mid-second century, the People (and Plebs) must have relinquished what hitherto had been an important restraint on the Senate’s power, the vote on arrangements affecting the fixed provinciae. A most tentative suggestion: In 7.2.5 we examined some consequences of the lex Baebia of 181, one part of which provided for alternating colleges of six and four praetors. Under this law, the two Spains were left out of the sortition in odd-numbered years, when there were just four praetors to go around for six regular provinces. It is quite possible that the Baebian system marked the first time regular praetorian provinciae could be omitted from the sortition without requiring a vote by the People or Plebs. The experiment of biennial sortition of the Spains soon floundered: by the mid-170s, six praetors were again being elected every year. But the People, by passing the Baebian law in the first place, may have cut irrevocably into their own prerogatives. Once the precedent was set, it would not be surprising if they never again were requested to approve the prorogation of commanders in the Spains. The Senate soon may have stopped asking for a ratifying vote for the other “fixed” provinces as well. I would suggest—cautiously—that this is how the old distinction between “prorogatio” and “propagatio” will have lost all its force, to the great benefit of the Senate, at a formal disadvantage to the People. A final point: The vote of a legislative assembly surely was not needed for the “mandatory” process, when a peregrine praetor who was needed outside the city handed his jurisdiction to the praetor urbanus. We have seen (in 4.2) that the whole reason for the creation of the provincia peregrina was to have a magistrate with imperium who could be sent simply “quo senatus censuisset.” The Senate traditionally was allowed to handle emergencies. We never hear of a vote of the People
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or Plebs to define (or redefine) the task of the peregrine praetor. Surely none was needed, at any time. 8.2.2 Special Praetorian Commands Not Involving the Sortition Occasionally we find that a city praetor is prorogued, and sent ex praetura to a special command (9.4.3). This practice is not especially common. There are four known cases of such prorogation to hold a territorial provincia in our period: one peregrine praetor and three urban praetors, distributed quite evenly over the time of Hannibal’s Italian campaign (but none later, in the “Livian” period). In the city, a grant also could be made of a special command pro praetore to a nonmagistrate. This method was effected by a senatus consultum, followed by a lex de imperio passed (sometimes) by the People and (always) in the Curiate Assembly. It seems unlikely that the Senate ever arrogated this particular power to itself. The only method by which imperium could be granted in the field was delegation of praetorian imperium by a holder of consular imperium. There are four certain (or highly probable) cases of delegation of imperium by a consul in our sources for the period 218–166; there must have been more, unrecorded by Livy.47 Praetorian commanders who were placed in the field by any of the above methods, save delegation, could be prorogued into the next year. Indeed, commanders in special provinciae (whether holding consular or praetorian imperium) were much more likely than commanders in regular praetorian provinciae to receive repeated prorogations. The necessity of a vote by the People or Plebs to remove regular provinciae from the sortition must have been a factor in this. We have seen repeated prorogation in the Spains—for privati endowed with a special grant of imperium—during the Second Punic War (7.1.1–6). Examples from other theaters include M. Valerius Laevinus, who was pr. per. 215, and, after coming into the field by the “mandatory” process, pro praetore in Apulia and (later) Macedonia through 211. Valerius was succeeded in his eastern command by P. Sulpicius Galba Maximus, cos. 211 and pro consule in Greece from 210 through 206. In Italy, C. Hostilius Tubulus, pr. urb. 209, was pro praetore in Etruria and (later) Capua down through at least 204 (a command ex praetura). The two Flaminini (uncle and nephew), K. Quinctius Claudus (pr. 208) and T. Quinctius, held Tarentum for perhaps seven years, the former from 208 into 206 or 205, the future consul from 206 or 205 down through perhaps 202.48 It would appear from these instances that prorogation in special provinciae for extended periods was common when the commands in question were geographically remote, or in regions which required simply a garrison.
8.3 Developments in the Use of Special Praetorian Provinciae in the Italian Peninsula Praetorian commanders in Italy during the Second Punic War rarely fought in the major battles against the Carthaginians, or took on Gallic invaders in the field.
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Most of their activities concerned members (and former members) of the Italian confederacy.49 But even then, our record reveals mostly consuls and prorogued consuls in the major operations against disloyal allies. Consular commanders always directed siege movements against great centers of rebellion (Capua, Tarentum, Locri). Once a town had come into Roman control, holders of consular imperium, when available, had responsibility for taking disciplinary action against the ex-rebels.50 Thus, the Senate decreed Etruria as consular (or to be entrusted to a pro cos.) in each of the years 207 through 200. Yet praetors, as holders of imperium, of course had full competence to implement all these penalties: in the years 202 through 199, when one of the consuls in each of these years was committed to an overseas command, the Bruttii (who had sided with Hannibal) were made a praetorian provincia. Praetorian commanders are often recorded to have reduced lesser towns,51 and we have a few references to praetors taking less dramatic disciplinary action against cities in Italy.52 In the decade before the Hannibalic War, we happen to know of two praetors who suffered setbacks in north Italy: an unnamed praetor who was defeated by Gauls in 225, and a pr. 219 who quelled a mutiny of his men, only to be ambushed and besieged by Gauls as a pro praetore in 218 (4.3.4). In 225, a consular commander had to come to the rescue; in 218, another praetor. But these are isolated notices, which have come to us only by chance. In the period 218–166, we have enough information to detect several phases in the use of special praetorian provinciae and commands. In the acute emergency of the first eight years or so of the Second Punic War, the Romans were quite ready to send praetorian commanders in Hannibal’s path, combine regular praetorian provinciae, employ prorogation on a large scale (often for long periods of time), and bestow grants of praetorian imperium on privati (sometimes to serve as sole commanders in large and important theaters). However, from 210 on, with the improving military situation, it appears the Senate attempted to moderate these particular practices. Praetorian commanders also are absent from south Italy except for garrison duty at Tarentum and Capua. However, following Hannibal’s departure from Italy in late 203, they would return to restore order in the south. After the creation of six praetors for 197, the sortition process regulates the assignment of special praetorian provinciae. Extended prorogation of praetors in special commands and grants of imperium to nonmagistrates virtually disappear. I will illustrate how praetorian commanders were used in special provinciae in Italy by examining administrative developments in three areas: the conflict with Hannibal, the northern frontier, and the reestablishment of control in the peninsula in the post-Hannibalic era. I shall not attempt to provide a detailed summary of all the movements of holders of praetorian imperium in these years, since that would involve writing a good deal of the Roman military history of the period. 8.3.1 Special Praetorian Provinciae in the War against Hannibal Only two praetors in the entire Hannibalic period encountered Hannibal in a major engagement without consular support and emerged successful. The first was
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M. Claudius Marcellus (cos. 222), who scored a modest (but psychologically important) victory at Nola as praetor in the extraordinary year 216.53 Marcellus’ status was exceptional. At the end of the year the Senate summoned Marcellus, the dictator M. Iunius Pera and the mag. eq. Ti. Gracchus to Rome to give advice concerning the direction of the war. (The cos. C. Terentius Varro was not named in the senatus consultum, and remained in Apulia.) In addition, we find that Marcellus was not just (apparently) prorogued into 215, but had his imperium raised to equal that of a consul.54 According to Livy, this enhanced status reflected the reality of the very independent (and successful) command he had exercised the previous year: “The People ordered (iussit) that M. Marcellus as pro cos. hold imperium, because he alone of the Roman imperatores after the disaster at Cannae had fought successfully in Italy.” All the same, it is tempting to connect this vote of consular imperium with Marcellus’ attempt (soon after his prorogation) to win a suffect consulship for 215, replacing L. Postumius Albinus, who had been killed while consul designate (see below in this section).55 The story is well known. At the start of the new year, the surviving consul for 215, Ti. Sempronius Gracchus, presided over the election of Marcellus as his colleague—which meant for the first time ever a college of two plebeians. But when Marcellus attempted to take his auspices of investiture, Jupiter replied in the negative, and this new consul was forced to abdicate as “vitio creatus.”56 However, Marcellus still received his special command for 215: Livy mentions Marcellus’ rank as pro consule (in the context of his assignment of an army to guard Nola) just after relating his abdication from the consulship.57 Marcellus must have found himself in an unprecedented constitutional position. We are not entitled to assume automatically that Marcellus’ status as prorogued praetor from 216 still held good after election to, and abdication from, a consulship, nor that the People’s vote of consular imperium remained valid. Quite possibly the notice of the vote of consular imperium that Livy assigns to late 21658 properly belongs to early 215, and was in fact a “compensation prize” for the lost consulship. But in sum, Marcellus’ position in 215 was probably that of a privatus with (consular) imperium. Many more examples would follow: two men with praetorian imperium in the year 215 alone (6.1.2 and 4), and then, starting in 210, a series of commanders sent pro coss. to Spain (7.1.3), as well as a commander pro consule in Greece for 205 (Additional Note XII).59 But to return to praetorian action against Hannibal. The other instance of a successful praetor comes a full nine years later, in 207. The pro pr. C. Hostilius Tubulus (pr. 209), while leading troops from Tarentum to Capua, made a sudden and, as it turned out, wholly effective attack against Hannibal near the borders of the ager Sallentinus. Hannibal was forced to withdraw from the southeast corner of Italy back to the Bruttii when the prospect arose of facing not only Tubulus but also the pro praetore for “Tarentum,” who had started to move out of his winter quarters. The consul C. Claudius Nero had not yet arrived in his provincia in south Italy.60 Tubulus’ unusually aggressive move may need no explanation other than that he was acting under his own initiative in the absence of a consul from this theater. But it is certainly possible that he was operating under special instructions from the Senate. Livy tells us the Roman strategy for that year was at all costs to contain
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Hannibal in the south and to prevent him from joining forces in north Italy with his brother Hasdrubal.61 Regular practice was much more mundane. In the early years of the war praetors were employed to regain the smaller towns which had gone over to the Carthaginians, as well as to prevent defections in the areas which were still loyal (though not all equally so). The regions in which praetors are reported to have faced unrest before Hannibal’s departure are Gaul, Etruria, the area of Campania around Capua, Apulia (for a time), and the ager Sallentinus. This list corresponds only in part to the well-known roster of Italian peoples that revolted, found at the end of Livy 22.62 Praetors are not found in Bruttium, Lucania, or Samnium while the Carthaginians were still a threat in Italy. Defections in these areas were handled by consuls. This was also the case with Apulia after the praetor Cn. Fulvius Flaccus met disaster there in 212,63 and with Etruria once serious trouble started around 208.64 As the war progressed, the activities of praetors in Italy grew ever more restricted. The main function of praetors and praetorian commanders in Italy in the latter part of the Second Punic War seems to have been simply to maintain order and to prevent defections in problematic districts, especially in the north—well away from Hannibal. No praetors participated in the siege of Herdonea and the campaign to recapture Tarentum. In 208, when T. Quinctius Crispinus needed assistance in his siege of Locri, he had to call in the Sicilian pro pr. L. Cincius Alimentus (pr. 210).65 There was a praetor in the provincia of “Tarentum” and a pro consule at Capua in that year, but they evidently could not be moved from their garrison duties in the ager Sallentinus and Campania respectively. In 207 Capua was entrusted to the pro pr. C. Hostilius Tubulus. For the next five years, the garrisons at Capua and Tarentum were the only praetorian commands in south Italy. We possess almost no details for these other than their existence. We are justified in suspecting that after the crisis years at the beginning of the war, a principle evolved that praetorian commanders should not fight in independent action against Hannibal and the Carthaginians. At most, praetors (or pro praetoribus) should help a consular commander (or commanders) in major campaigns. Thus in 212 and 211 C. Claudius Nero (pr. Suessula 212) assisted in the effort to take Capua; L. Porcius Licinus (pr. Gaul 207) played a role under the consuls M. Livius Salinator and C. Claudius Nero in the battle at the Metaurus.66 This policy was partly a consequence of the praetors’ minus imperium when they served in the same provincia as a consul. Then there is the basic fact that praetors often received less experienced troops than consuls and proven consular commanders— and were expected to give up their armies, once seasoned, to their superiors.67 A few notable defeats suffered by praetorian commanders in the field also must have conditioned the Senate’s willingness to entrust major military responsibilities to men of this rank. Leaving aside some pre-Hannibalic defeats (4.3.4), the first such disaster of the actual Hannibalic war came early, to a privatus with imperium. In 217, after the battle of Trasimene, the consul Cn. Servilius Geminus delegated praetorian imperium to a nonmagistrate, C. Centenius; he was meant to deliver a force of four thousand cavalry to Servilius’ colleague C. Flaminius. Hannibal surrounded Centenius, and destroyed half his force, capturing the other half (includ-
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ing presumably the commander himself). Our sources tell us explicitly that this mishap contributed to the appointment of the dictator Q. Fabius Maximus.68 The Centenius disaster, of course, did not put an end to special commands for privati in Italy. At the beginning of the very next year, 216, Cn. Servilius Geminus and M. Atilius Regulus (the suffect consul who replaced the fallen C. Flaminius) did not have their consular imperium prorogued, but instead received delegated praetorian imperium from the consul L. Aemilius Paullus. Polybius makes it clear what was expected of the ex-consuls as pro praetoribus. They could deploy their troops as they liked, but nonetheless had to take orders from the consuls: Polybius is trying to explain their position for his Greek readers as best he can. In particular, Polybius tells us the consul Aemilius ordered Cn. Servilius to avoid a general engagement and to stick to skirmishing, in order to train his inexperienced army: “[Aemilius] thought their previous disasters had come about especially on account of using forces of new and quite unpracticed recruits.”69 In only one instance do we find what might possibly be a privatus with an independent command actually engaging the Carthaginians in the field. In 215, Ti. Sempronius Longus (cos. 218) was active fighting against Hanno in Lucania,70 quite probably with imperium. Late in the previous year, 216, it is positively attested that there was no Roman commander in this area.71 Longus may have been granted imperium by a lex or by consular delegation in 215. The alternative is that he had been prorogued in each of the years since 218, but not come to the attention of our sources until now. Ti. Sempronius had seen active fighting as a consul, and had not done too badly—hence his independent (or, on the other interpretation, extended) command.72 All subsequent praetorian commands held by privati in our record are defensive in nature. The Senate seems to have identified certain tasks that needed imperium but not much fighting experience, and then given those to nonmagistrates. We have a chance notice of a Pomponius (possibly the pr. per. 217) as pro praetore in charge of the camp near Suessula in 214.73 C. Terentius Varro (cos. 216) as pro praetore guarded against defections in Etruria in 208 and 207. In the first of these two years he assisted C. Hostilius Tubulus (pr. 209); in the second year he replaced him.74 Probably C. Terentius Varro was simply prorogued into a second year; we need not imagine that another lex de imperio was passed for 207. When Livy reports Varro was “sent to Etruria as pro praetore” (“in Etruriam pro pr. missus”), this should be recognized as the standard language for the conferment of a special command.75 It does not imply that he returned to Rome at the end of 208, and was sent out again. T. Quinctius Flamininus succeeded his uncle in the praetorian command at Tarentum in 206 or 205; he continued at Tarentum as pro praetore perhaps as late as 202.76 One notices that none of the men listed above had much experience of command, except for C. Terentius Varro (and in his case, not with the best of results). But it is also likely that the Senate and magistrates in the top positions genuinely feared the possibility of misguided initiative on the part of privati cum imperio. An incident connected with the battle at the Metaurus may show the fears of one consul in the later years of the war. In 207, the consul C. Claudius Nero com-
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municated with the Senate his plans to join his consular colleague, M. Livius Salinator, in the north against Hasdrubal. On his departure from Apulia to Picenum, he is said to have left the legatus Q. Catius in charge of his camp “with neither powers nor imperium nor auspices” (“sine viribus, sine imperio, sine auspicio”), though the consul appears to have left approximately the force of one legion in this camp. If Livy is accurate (he certainly is emphatic), Nero evidently wished to debar his legatus from engaging Hannibal. Any fighting in this region in the consul’s absence surely was to be the responsibility of the pro cos. Q. Fulvius Flaccus.77 Grants of praetorian imperium to nonmagistrates virtually disappear after the Second Punic War, at least down to 166 (when Livy’s continuous narrative gives out). There obviously were no more military crises on the scale of Hannibal’s invasion of Italy, and after 197 there were (except for a few years) six rather than four praetors on hand. On the two occasions in this later period when we do find such commands, a praetor designate (or almost designate!) is used. L. Oppius Salinator (aed. pl. 193 and later pr. 191) was sent in late 192, right before the elections, with imperium to guard the coast of Sicily; his election as praetor may have been foreseen (and when it did come, must have been in absence). There is also Cn. Sicinius, granted imperium as praetor designate in late 173 to combat a locust plague in Apulia.78 Regular praetors also had their setbacks in the Second Punic War. In 216, the praetor for Gaul, L. Postumius Albinus, who already had held the consulship twice (234, 229) and was now consul designate for 215, fell into an ambush by the Boii in the Litana forest. It is reported that the Gauls destroyed two Roman legions with allied supplements, a total of twenty-five thousand men. The loss of Albinus and his legions, following only months after Cannae (not days, as Polybius has it), passed into tradition as one of the major defeats in the war against Hannibal.79 The immediate result was that the Senate decided to postpone a fullscale Gallic war until Hannibal and the Carthaginians had been driven out of Italy.80 Another great praetorian defeat came in 212. The Senate was amenable to some experimentation in that year, if we can believe the story of the centurion M. Centenius Paenula, who is said to have lost approximately fifteen thousand men when sent to draw Hannibal away from Capua, during a crucial stage in the Roman siege of the town.81 Soon after the (alleged) Paenula fiasco, Cn. Fulvius Flaccus, pr. 212 in Apulia, was busy recovering towns which had gone over to the Carthaginians when he ill-advisedly committed his forces to the field against Hannibal.82 The loss is reported to have been tremendous (sixteen thousand men). In the next year, the praetor’s remaining troops were deported to Sicily to join the exercitus Cannensis; Fulvius himself was forced to go into exile, having been condemned for perduellio.83 The “clades Fulviana” cannot but have made the Senate even more reluctant to have praetors encounter the Carthaginian forces in the field. It is interesting that armed attacks on even (merely) disloyal cities are no longer reported for praetors after the defeat of Cn. Fulvius Flaccus, who was engaged in precisely this type of activity when he was surprised and overwhelmed by Hannibal.
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8.3.2 Praetorian Commands in North Italy and Gaul, 218–198 I have suggested (in 4.3.4 and 5.2.5) that in the decade preceding the Second Punic War, there was a strong link between the peregrine jurisdiction and Gaul. This was modified somewhat from the year 216 (the first occasion in the Hannibalic conflict when Gaul was declared a praetorian provincia) down through 211. When Gaul came up in the praetorian sortition (216 and 213), it was allotted discretely from the peregrine provincia. Nevertheless, in an emergency, it still was the peregrine praetor whom the Senate sent there (Pomponius Matho at the end of 216, after the death of the regular praetor, L. Postumius Albinus). Almost nothing is known of the subsequent activities of Matho (who served as pro pr. for Gaul through 214) or P. Sempronius Tuditanus, who was allotted Gaul as pr. 213 and was prorogued through 211 (5.2.5). In early 210, in a brief burst of confidence, it seems a legatus was appointed to hold the chief command in Gaul, perhaps with the intention that he serve for the entire year. In 210, it was decided that “Gaul and its legions were to be under the command of the man appointed by the consul whose provincia was Italy.”84 Livy never explicitly tells us whom the relevant consul, M. Claudius Marcellus, appointed to the command; however, the one unassigned praetor of 210, C. Laetorius, is found as pro praetore at Ariminum at the beginning of the following year. The description of his provincia in 210 is uncertain; he may have received either “Gallia” or “peregrina cum Gallia.”85 It would be surprising if the praetor C. Laetorius was the consul Marcellus’ original appointee in 210. The decision of where to send a newly elected praetor is always that of the Senate; at most, the Senate grants a consul permission only to retain a praetor in a provincia as pro praetore.86 The Senate may have planned for a legate to administer affairs in Gaul: indeed, at the very time of these provincial arrangements Etruria was held by the legatus C. Sempronius Blaesus.87 A legatus appointed by the consul may have been a temporary expedient, intended to relieve the commander P. Sempronius Tuditanus (who had been in the provincia for three years) and to give some time to C. Laetorius to see to affairs in and around the city before he headed north. It is also possible that Hannibal’s attack on Rome in 211 and the extraordinary measures which had to be taken to ensure that there were enough magistrates with imperium to meet the threat (see Additional Note V) made the Senate eager to keep both city praetors in or near the city. On this hypothesis, our putative legatus was replaced when it was clear that Hannibal was well contained by the consular commanders in the south, or when events in Gaul (unknown to us) showed the experiment to be a failure, or when news reached Rome of a possible invasion by Hasdrubal (reported for late 210).88 The administrative decision to entrust Gaul to the peregrine praetor C. Laetorius reestablished an old pattern. In the period which followed down through 198, the peregrine praetor was sent to Gaul in every year except two. In 208, the peregrine praetor was given the lot “quo senatus censuisset,” probably in the expectation that a massive Carthaginian fleet would put in at some unknown point on the Italian shore; the praetor of the previous year (pr. per. in 209) was prorogued in the north. In 201, with the Hannibalic war concluded and the Second Macedonian War not
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yet started, Gaul was declared consular. The Senate obviously was aiming at a principle of annual succession for Gaul at this time. The praetors and pro praetoribus who held Gaul in the years 210–202 were expected for the most part to perform garrison duty. For example, Q. Mamilius Turrinus (pr. 206) “was ordered . . . to devastate the territory of the Gauls who had revolted to the Carthaginians upon the arrival of Hasdrubal”; he also had the responsibility of guarding the colonists at Placentia and Cremona from their Gallic neighbors.89 This may have been typical of these praetors’ regular duties (of which not much is known). Major actions against the Carthaginians and their Gallic allies were entrusted to consular commanders; praetors only assisted, as can be seen from Livy’s reports of fighting in this area in 207, 205, and 203.90 The situation in the north had grown more serious in 205 with the arrival in Gaul of Mago, who started negotiations with the Ligurians. Mago’s presence caused a commander of consular rank to be assigned to join the annual praetor in the provincia in each of the next two years; in addition, Sp. Lucretius, the praetor of 205, was prorogued into 203.91 And so in 204 and 203, three magistrates with imperium were in the provincia. But in the latter of these two years, Sp. Lucretius was prorogued only in order to rebuild Genua; the weakness of his forces can be deduced from the fact that his presence in this area did not prevent Carthaginian envoys from landing in Genua’s harbor.92 The successful joint operations in 203 of the praetor P. Quinctilius Varus and the pro cos. M. Cornelius Cethegus (cos. 204) against Mago and the Insubres eliminated the need for such precautions. Mago withdrew from Italy, and for a time single commanders now received the provincia: the praetor M. Sextius Sabinus in 202, and the consul P. Aelius Paetus in 201.93 8.3.3 L. Furius Purpurio The Gallic front exploded in 200, when the Insubres, Cenomani, Boii, and some Ligurians under the leadership of the Carthaginian Hamilcar launched an entirely unexpected attack on Placentia and Cremona. The praetor for Gaul for this year, L. Furius Purpurio, had been instructed by the Senate to dismiss the veteran legions upon his arrival in the provincia; he himself was to hold only five thousand allied troops to act as a garrison force for the region.94 When Furius reported by letter the news of the tumultus to Rome, the Senate gave two choices to the consul C. Aurelius Cotta (whose provincia was “Italia,” meaning in that year Etruria). The first option was for the consul to change the meeting place of his legions from Etruria to Ariminum and to proceed at once against the Gauls. The second alternative was to write to the praetor L. Purpurio and order him to exchange his allied force with the consular army which was to assemble in Etruria, and then for the praetor himself to raise the siege of Cremona.95 What happened next is puzzling. Livy does not tell us explicitly which of these two options the consul chose. We learn only that the praetor proceeded to win a splendid victory against the Gauls, recovering Placentia and Cremona before the consul was even able to set out from the city. Livy then goes on to state that, when Cotta arrived in Gaul, he was furious at the praetor “because he had fought in his absence.”96 Something in the story obviously has been left out. The consul could
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not reasonably have asked L. Furius to fight, and then objected when he did. Cotta evidently asked the praetor to hold the enemy until he himself could finish his tasks in the city and then take over.97 If so, L. Furius fought suis auspiciis, under his own auspices (since he was praetor), but not suo exercitu, with his own army. If an arrangement was made for a delayed change of command, as Cotta later claimed (see below) and as seems likely enough, the praetor only doubtfully fought in sua provincia. The angry Cotta sent the praetor into Etruria; the consul then engaged in some desultory raids in the now pacified provincia. Yet L. Furius then left his newly assigned command in Etruria and unexpectedly returned to Rome to demand a triumph for his deeds.98 Livy reports a heated debate in the Senate.99 Two points are said to have been at issue. The first was whether a praetor was entitled to a triumph when he was borrowing a consul’s army. The second was the propriety of Furius’ leaving his military provincia without the permission of the Senate: “This he had done with no precedent.” In the debate that arose over the first of these points, the consulars in the Senate are represented as taking the lead in prescribing the course of action that the praetor should have taken: to pitch his camp near Cremona and protect the colony without actually committing his forces to a set battle.100 No mention is made of the order that Furius “himself should set out to relieve the colony from the siege.” This “order” may have come from a second source which Livy has (unhappily) combined with his main account; or Livy may have changed sources on the incident by the time we pick it up again.101 Another possibility is that the wording is Livy’s own. Still another is that the consul did issue such an order, but belatedly backtracked when he realized he had miscalulated and missed out on the fighting. To judge from the quarrel between consul and praetor (the only certain aspect of this tale), C. Aurelius Cotta must have had every expectation that L. Furius Purpurio would have followed the now common practice of awaiting a consular commander before risking any action that might prove decisive—even though Livy says the opposite.102 Against the consulares (as Livy has it), Furius’ supporters—a majority in the Senate—urged that only the technical aspects of the claim be examined: “nothing other than his achievements, and whether he had fought during his magistracy and under his own auspices” (“nihil praeter res gestas, et an in magistratu suisque auspiciis gessisset”). They also pointed out that no senatus consultum had been issued debarring the praetor from action, nor had the consul C. Cotta been present to meet his army when it had crossed—on his orders—from Etruria to Ariminum. In the end, the praetor gained his triumph, but it is reported that his personal influence (and the consul’s absence from the debate) played a part in the decision. Mos maiorum offered no precedent or guidelines, so the decision depended on the praetor’s personal authority. In this case, the right of a praetor to triumph, even from the same provincia as a consul, was not at issue. This difficult question had been settled—in the affirmative—at the end of the First Punic War. Although Livy is unaware of it, Furius’ case must have been helped by the precedent of Q. Valerius Falto, who gained a triumph by (we must assume) special dispensation in 241 (4.1.3). There were obviously
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still men of auctoritas in the Senate in Furius’ day who remembered the incident of 241, since even we know about it. (At that time one perhaps could gain a qualifying magistracy for the Senate at age thirty, or even earlier.) Even in Falto’s day, a praetorian triumph per se should have posed no problem. Earlier in Livy’s account of 200, it is positively attested (in connection with the request of the Spanish commander L. Cornelius Lentulus) that the triumph was regarded as open to any magistrate (or prorogued magistrate) with imperium.103 The second argument against Furius, that he had left the provincia of Etruria without the Senate’s permission, was in fact a serious charge. We are told on subsequent occasions that such behavior aroused general expressions of disapproval; in the case of M. Aemilius Lepidus, pr. Sicily 191, it contributed to two defeats for the consulship (6.2.1). Furius’ supporters must have defused this argument against the praetor. They may have argued that Furius’ behavior, although far from acceptable, was not pertinent to the main issue, whether he was legally entitled to a triumph for his victory in Gaul. The substantial personal influence (“gratia”) of the praetor, mentioned by Livy,104 may have been especially useful at the point in the debate when the Senate was entertaining the relevance of the Etruria issue to the request for the triumph. L. Furius Purpurio’s desertion of his provincia was of course a gamble. Livy states that the praetor reckoned he would stand a better chance of obtaining a triumph in the absence of the consul Cotta. But his decision to leave Etruria is still astounding. Furius had a legal claim to a triumph, but not a strong one. He had no way of telling how the patres would react to his (then unprecedented) arrival in the city without the Senate’s leave. He must have known that the consul’s absence from Rome would be used against him in the debate.105 And the praetor did not have even a token army to bring back with him, a technical requirement that seems (fortunately for Furius) to have been ignored or overlooked in the debate at Rome.106 Cotta, on his return to Rome, pointed out (as Livy has it) that this condition had not been met.107 Nevertheless, on balance, it seemed preferable to Furius to ask for a triumph while Cotta was in Gaul than to attempt to secure it with Cotta as a hostile president of the Senate. This in fact is eloquent testimony for the power of the presiding magistrate in the Curia. Why was the triumph given to the praetor? It may have seemed perverse to deny Furius a triumph for his magnificent exploits, when earlier in the same year the privatus cum imperio L. Cornelius Lentulus had been allowed to celebrate an ovation. L. Cornelius Lentulus managed swift election to the consulship for 199. A consulship for 199 (and an eastern command against Philip of Macedon) will not have appeared plausible to Furius. The praetor knew that C. Aurelius Cotta would run the electoral assembly, making continuatio of office108 very difficult indeed. In the event, Purpurio, despite the fact that he was the first praetor ever to be granted a full triumph in his year of office,109 did not reach the consulship until 196, when (it may be noted) the electoral rules had been changed to benefit ex-praetors. His work as a legatus in Greece in 199110 may have accounted for some, but not all of this delay. It would seem Furius’ consulship was shunted off until the row over the circumstances in which he gained his triumph had subsided. There is a good pos-
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sibility that L. Furius Purpurio as consul in 196 was turned down in a request for a second triumph.111 Many in the Senate must have thought that Furius was fortunate enough to have managed to triumph as praetor in 200. 8.3.4 Praetorian Commanders in Gaul in 199 and 198 The story of Furius has an interesting epilogue. In 199, Gaul was allotted to two commanders, the praetor Cn. Baebius Tamphilus and the consul L. Cornelius Lentulus. The praetor was to take over the legions which belonged to C. Aurelius Cotta in the previous year; when the consul Lentulus arrived in the provincia with two new legions, the veteran legionary soldiers were to be discharged and the praetor was to command a force of five thousand allies.112 In obvious emulation of L. Furius Purpurio, the praetor Baebius—who had a history of opportunism113— attacked the territory of the Insubres with Cotta’s old army before the consul Lentulus had managed to set out from Rome. This rash act allegedly resulted in a loss of 6,700 men. On hearing the news, L. Lentulus rushed to Gaul and ordered Cn. Tamphilus out of the provincia and back to Rome.114 This episode had a profoundly (but not permanently) negative effect on Baebius’ career. He reached the consulship, but only in 182, an interval of seventeen years. This is the longest in our record until the first century (L. Gellius, pr. 94, cos. 72). The interval was not for want of Baebius’ trying: he is said to have been a perennial candidate for the consulship.115 It is a wonder that he eventually won it at all. He presumably would have claimed he had been kept out of the office by ambitus, to judge from his brother’s legislation of 181 (7.2.4). In the year following Cn. Baebius’ praetorship, 198, the Romans expected more trouble in the north.116 Gaul once again was allotted to a consul and a praetor; the Senate had to repeat its instructions regarding the dismissal of Cotta’s old army. The consul Sex. Aelius Paetus and the praetor C. Helvius were made to set out together from Rome, obviously to prevent any unwanted initiative on the part of the junior commander. As it turned out, the consul Aelius allowed the praetor to keep Cotta’s army, perhaps in expectation of a major uprising in the provincia (it never came).117 The consul Sex. Paetus obviously—and rightly—trusted the praetor Helvius. 8.3.5 Praetorian Commands in Gaul after 198 Starting in 197, praetorian commanders are regularly excluded from operations against the Gauls and Ligurians. It was policy for both consuls to proceed to the north, except in certain years when an overseas war was in progress. In the years 195 (a major war in Celtiberia), 191 and 190 (war against Antiochus and the Aetolians), 177 (Sardinian war), and 171–168 (Third Macedonian War) only one consul served in north Italy. In addition, in 186, the quaestio de Bacchanalibus required so much attention that only the cos. Q. Marcius Philippus made it north, though both he and his colleague had been allotted the Ligurians as their provincia.118 In circumstances when only one consul was available to be sent to the north, the Senate on the whole avoided declaring Gaul or Liguria a praetorian province. Rather, the
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Senate preferred to prorogue a consul who was already in the area (in one case for quite a long period of time—Q. Minucius Thermus, cos. 193, and prorogued into 190) or let the sole consul fight unaided (e.g., Cn. Servilius Caepio, the cos. 169, who held command in this provincia for most of 168, owing to the fact that his successor was detained in the city).119 In 189, the one year in this period when both consuls went to the east, the Senate still did not send a praetorian commander to Gaul or Liguria. Exceptions to this policy are rare. P. Porcius Laeca (pr. 195) held Pisa in lieu of the consul M. Porcius Cato, who had gone to Spain: this is the only praetor to be found in north Italy in the decade following the creation of six praetors in 197.120 When praetorian commanders reappear in Gaul in the 180s, the two consuls of the year are found serving in the north as well. Yet the Romans immediately discovered that this in itself was not an adequate safeguard against a praetor ambitious for military glory. In 187, amid rumors that a major Ligurian war was in the works, the consuls M. Aemilius Lepidus and C. Flaminius were allotted the Ligures,121 and the praetor M. Furius Crassipes received Gaul.122 Furius must have been eager to make a name for himself as praetor, since his one recorded action in Gaul is his disarming of the Cenomani, a tribe which had been peaceful since their defeat by C. Cethegus in 197. When the Cenomani sent an embassy to complain at Rome, the Senate gave the consul M. Aemilius Lepidus in Liguria full power to investigate the case. The consul ordered M. Crassipes out of his provincia (remember the fate of Cn. Baebius Tamphilus in 199), undid his action, and fined him.123 In later years, praetors were still occasionally sent to Gaul, but the Senate had learned from Furius’ actions, and its instructions were becoming more explicit. In 183, a colony was planned for Aquileia. But a report had come to Rome at the beginning of the year that Gauls had crossed the Alps and moved into that very district; they had even started building a town there. The praetor L. Iulius was ordered to make haste to his provincia of Gaul; but the Senate told him explicitly to avoid armed conflict at all costs, and to inform the consuls if matters came to a head.124 The Senate did not want another Purpurio, Tamphilus, or Crassipes. L. Iulius was not prorogued into 182, since M. Claudius Marcellus (cos. 183) is found in Gaul as pro consule in that year.125 Marcellus was succeeded in 181 by the praetor Q. Fabius Buteo, who seems to have effectively protected the new colony of Aquileia from the Histrians. Buteo must not have overstepped his competence, since he is reported to have been prorogued into 180.126 In 179, both consuls fought against the Ligurians; someone presumably served in Gaul, where there was the potential for trouble from migrating Transalpine tribes.127 Gaul had received a holder of imperium in at least thirty-six of the thirtynine previous years (the years 186 and 184 are apparent exceptions, and we do not have a report of the praetorian provinciae for 185), and it was to be declared consular for 178.128 It is worth suggesting that the peregrine praetor for 179, Cn. Cornelius Hispallus (for whom no actions are recorded), served in Gaul at least part of this year.129 Yet soon the practice of sending praetors to the north stops altogether. Apart from Ti. Claudius Nero (pr. per. 178), who held a rationalized command pro consule at Pisa in 177,130 no other praetors are found in northern provinciae down through 166.
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It does not seem that praetors were kept from major commands simply because they were considered too inexperienced. In the one case in which we have enough information to compare the military record of a praetor for Gaul with that of the consul to whom he was subordinate—M. Furius Crassipes and M. Aemilius Lepidus in 187—the praetor seems equally, if not more, experienced. M. Furius had served in Gaul before, as a legatus under L. Furius Purpurio (a relative) in 200; he had also held imperium for three years as a member of a special commission to colonize parts of the land of the Bruttii in 193–191 (5.4.7, 8.4.1). M. Aemilius Lepidus had not seen any fighting as praetor in Sicily in 191, and had in fact deserted his provincia during a military emergency in 190 (6.2.1).131 But praetors had more reason than consuls to go triumph-hunting, and so were a danger to Roman lives and reputation. They not only, like consuls, wanted military glory, but they wanted it in order to win a consulship. A prorogued (and therefore tried) consul was at least safe: hence the commands of Q. Minucius Thermus, cos. 193, and pro consule into 190, and Cn. Servilius Caepio, cos. 169, and sole commander in Gaul through most of 168.
8.4 Praetors and the Reestablishment of Roman Control in Central and South Italy In a speech put in the mouth of P. Sulpicius Galba, cos. 200, the Lucanians, Bruttians, and Samnites are portrayed as ready for revolt should another Hellenistic king cross to Italy in the style of Pyrrhus.132 The reference to the Bruttii should not be regarded as exaggeration. Bruttium, which had declared for Hannibal in 216, was one of the most serious areas of disaffection during the war. Starting in 211, Hannibal based himself in the densely wooded land of the Bruttii, and from there he launched his attacks on Campania, Apulia, and the area surrounding Tarentum. This district also served as the Carthaginian general’s regular winter headquarters until his recall in 203. It is no accident that Hannibal’s example was later followed by such desperadoes as Spartacus and the Catilinarians: T. P. Wiseman133 rightly notes that this part of Italy “was by its remoteness and awkwardness of access an excellent refuge for insurgents on the defensive.” These factors—and the availability of harbors at Buxentum, Tempsa, Vibo, and Croton—later raised Roman fears that Lucania or Bruttium would be a likely landing point for an invasion from the east by a Philip or Antiochus.134
8.4.1 The Special Praetorian Commands of 193–187 In the period immediately following Hannibal’s departure from Italy, the Bruttii were declared a praetorian provincia by default. We would expect a consul to have seen to the punishment of the people of this area; however, one was diverted overseas in each of the years 202 through 199. Had the Bruttii been declared a consular provincia in one or more of these years, we probably would know more about the actual mechanisms by which the Senate reestablished control over the area. As it is, Livy provides few details of the activities of the three praetors who operated
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among the Bruttii in these four years. Nor do we hear much about the two commissions of IIIviri with (praetorian) imperium—exceptionally for this period, granted for three years (“in triennium”)—who later were active in the south in the years 193–191, ostensibly to found colonies, but perhaps also to police the area.136 Appian, however, provides a general assessment which may well be correct: at this time, the Bruttii were practically enslaved.137 The Senate dispatched actual praetors to south Italy in each of the years 192–190, to combat the threat posed by Antiochus III of Syria. These commanders not only had to guard the southern coastline against attack but (surely) also had the responsibility of defusing the possibility of revolt among Rome’s reluctant allies. M. Baebius Tamphilus (praetor for the Bruttii in 192) and A. Cornelius Mamulla (who had the same provincia as pr. 191) eventually crossed with their forces to Greece, Baebius in the actual year of his magistracy. The possibility that Baebius might cross to Greece to fight against the Spartan Nabis was allowed from the start;138 the praetor’s initial task, however, was to occupy a defensive position in south Italy. Later in that year, Baebius and his troops were moved to Tarentum and Brundisium and then to Epirus.139 It may have been thought that the Sicilian praetor for 192, L. Valerius Tappo, in conjunction with the privatus cum imperio L. Oppius Salinator,140 was capable of looking after south Italy as well as Sicily for the rest of the year (to guard against the possibility of Antiochus’ crossing), until a new praetor should be allotted the Bruttii as a provincia. Baebius was succeeded in his command by A. Cornelius Mamulla, pr. 191. Although the “Bruttii” are recorded as his provincia (and that is where his main force seems to have been stationed), he was charged by the Senate “to guard the entire coast in the vicinity of Tarentum and Brundisium.”141 We know nothing of his activities during his actual year of office. Like Baebius, Mamulla eventually crossed to Greece, but only as pro praetore in 190.142 (The activities of these individuals in the east are discussed in 8.5.1.) In 190, the praetor M. Tuccius received as his provincia in the sortition “Apulia et Bruttii.” The “Bruttii” were by now expected, despite the slim odds at this point of an invasion by Antiochus.143 But the addition of “Apulia” (unexplained by Livy) is most surprising. There must have been unrest there of some sort. Nor did it disappear. By early 189, we are told the Romans “had ceased to fear the king”:144 M. Tuccius, however, was prorogued in this same joint provincia down through 188. In the latter of these two years, he even received two veteran legions which had seen service in Gaul under C. Laelius (cos. 190). For 187, Livy reports the sortition of the provincia of Tarentum to the praetor P. Claudius Pulcher.145 No explanation is offered in the ancient sources for a praetorian command in south Italy in 188 and 187, when the eastern war had been resolved. The possibility of serious troubles among the people of south Italy is confirmed by a parallel development north of Rome. In 190, for the first time in a decade, Etruria is declared an armed provincia, and allotted in the praetorian sortition to P. Iunius Brutus.146 Like M. Tuccius in Bruttium and Apulia, P. Iunius Brutus was prorogued in Etruria into 189, retaining his substantial force—a Roman legion as well as ten thousand infantry and four hundred allied cavalry. Early in that year, the Senate decided to transfer P. Iunius to fill in for a praetor who had died while proceeding to his province of Hispania Ulterior. Nevertheless, the praetor’s army
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remained in Etruria, under one of his legates;147 for how long, we cannot tell. Dissident activity in Etruria may have continued. According to one tradition, in 187 P. Cornelius Scipio Africanus served there as a legatus. It is just possible that he may have been there on a commission charged to investigate disturbances.148 8.4.2 Quaestio de Bacchanalibus and Aftermath The situation in south Italy and Etruria must have been quite serious if the Senate thought it necessary to keep two praetors there in 190, when the war in the east was still far from settled, and then to maintain those forces (at least in south Italy), even after the war was over. The explanation for the deployment of these praetorian commanders appears when we look at a series of instances of public disorder from later in the decade. In 186, disturbances related to the practice of the Bacchic cult had grown so serious that both consuls of the year were assigned extra ordinem to a quaestio de Bacchanalibus.149 The consuls appear to have needed military force to restore order.150 In the case of the consul Sp. Postumius Albinus, these activities prevented him from ever seeing his proper provincia, the Ligures. The one extant epigraphic copy of the S.C. de Bacchanalibus151 was set up in the ager Teuranus in Bruttium (a region for which Livy does not explicitly record Bacchic activity); all Italy is said to have been affected.152 Etruria was supposed to have been the region from which the craze for the Bacchic mysteries spread directly to Rome, and archaeological evidence suggests that this area did indeed host clandestine Bacchic activity at this very time.153 Livy identifies among the heads of the conspiracy a Faliscan, L. Opicernius, and a Campanian, Minius Cerrinius.154 Apulia and Tarentum were also problem areas; Tarentum in particular was a traditional center for the cult.155 But what we have in the south at this time is surely not a genuine religious revival.156 The Bacchic cult, spreading from Etruria, was seized upon by the rebels of south Italy as a means of channeling their resistance. The Bacchic rituals gave a religious sanction and organization to their defiance of Rome. In each of the years 185 through 180, a praetorian commander is found in south Italy; down through 181, suppression of the Bacchic cult is said to have been a prime concern. L. Postumius Tempsanus, praetor in 185, was originally instructed to suppress Bacchanalian activities in the area of Tarentum, and also to round up and send to Rome those who had fled to this corner of Italy to avoid prosecution for their participation in the excesses of the cult. Postumius was diverted from this task by the need to take action against the brigandage of shepherds in Apulia, which was, at least in its effects, nothing other than a big slave uprising, as Livy has it. It seems possible that the disturbances of the slave shepherds in the south had gone on almost continuously and had nothing to do with the Bacchic cult. These two quite different activities led to L. Postumius Tempsanus’ prorogation into 184.157 His successors in this command, L. Pupius (pr. 183 and pro pr. 182 Apulia) and L. Duronius (pr. 181 and pro pr. 180 Apulia), must have continued in this dual role of containing slave brigandage in Apulia and rounding up Bacchic suspects in the south, at least into 181.158 But by 181, both matters evidently were well in hand.
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The praetorian provincia allotted to L. Duronius was expanded to include not just Apulia (i.e., the shepherds) and the quaestio de Bacchanalibus, but also the “Histri,” that is, checking the pirate raids launched from Illyria against the coast in the area of Brundisium and Tarentum.159 Circumstantial evidence, namely, the praetorian commanders stationed in Etruria, Apulia, and Tarentum in the years 190–187, suggests that the explosion of Bacchic cult activity in 186 was not as spontaneous as it seems from Livy’s account—as J.-M. Pailler has noted.160 The lists of praetorian provinciae preserved in Livy indicate that disturbances related to the cult had flared up at least as early as 190 in both Etruria and south Italy. The presence of praetorian commanders in Etruria at least through 189, and at Apulia and Tarentum through 187,161 demonstrates the seriousness of the situation. But it was only in 186 that the outbreak had grown so serious as to justify strong central controls such as are documented in the S.C. de Bacchanalibus. Livy provides no real background to this major decision. Deliberate suppression of the facts, since there had been no previous flareups worthy of mention, is not out of the question. Besides the story of the “obscure Greek” (date not specified) who brought the cult to Etruria, the closest Livy comes to providing any background to the major decision to entrust a quaestio de Bacchanalibus to both consuls of 186 is the statement put in the mouth of L. Postumius Albinus, consul in that year: “Whatever transgressions have been committed in recent years (his annis) out of lust or fraud or wickedness have arisen from this one cult.” This is Livy’s one nod to the notion there was some development of the problem, and not a sudden explosion.162
8.5 Praetorian Commands in the Greek East The holders of praetorian imperium who managed to serve in the east in our period de facto had much greater latitude in the exercise of their commands than their counterparts in the special Italian provinciae, and this eventually resulted in increased responsibility. There were three basic ways in which praetorian commanders were employed in this theater. One method was to deliver an expeditionary Roman force to the east, with the expectation that they soon would be replaced. This is first attested for 201, in the preliminaries to the Second Macedonian War, and then at the start of each of the major wars down through the 170s. We also find in the Second Macedonian War (200–196, with Roman occupation of parts of Greece continuing until 194) certain individuals in command of a fleet as (so it seems) legati pro praetore of a consular commander. The success of these men—in particular, L. Quinctius Flamininus (pr. 199), who served under his brother T. Flamininus when the latter was cos. 198 and then pro consule down to 194—hastened the development of a third category. Starting in the late 190s with the Syrian War, and then again in the Third Macedonian War, praetors regularly went to the east as genuinely independent commanders, especially to conduct naval operations. The Senate had noted the usefulness of the legati pro praetore, but sought to avoid extended commands such as that of L. Flamininus by placing the “fleet” in the praetorian sortition each year during actual fighting.
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8.5.1 Expeditionary Commands Praetorian commanders regularly were charged with crossing an expeditionary force consisting of a modest number of infantry troops and ships, with the aim of establishing a beachhead on enemy territory.163 Once these commanders had crossed, they usually established a base near the coast, and sent out junior officers to take care of immediate military needs in interior regions. On the whole, these praetorian commanders maintained a strictly defensive posture up to the time of their supersession. This general opening strategy is seen at the beginning of the Second Macedonian War, the Syrian and Aetolian Wars, and the Third Macedonian War. At the initial stage of each of these conflicts, a praetorian commander, once he had crossed, was the only holder of imperium in that theater until he was succeeded by a consul. In these wars, the usual interval was a little less than a year. The first of the praetors (or pro praetoribus) who was sent with an expeditionary force to the east is M. Valerius Laevinus, who received a special grant of praetorian imperium and crossed with thirty-eight ships to Macedonia in early consular 200, at the start of the war with Philip V. Laevinus was selected for this command by the cos. 201 P. Aelius Paetus, who had been ordered by the Senate “to send with imperium a man of his own choice” (“quem videretur ei cum imperio mitteret”).164 This most likely involved the consul passing a special lex—not just simple delegation of imperium—for Laevinus was prorogued in this theater into 200.165 His mission was not merely to observe the king’s movements but also (surely) to hold fast Rome’s allies in Illyria until war was formally declared and a proper force could be sent.166 In 192 and 191, at the opening of the Syrian War, an expeditionary force was divided between M. Baebius Tamphilus and A. Atilius Serranus. These praetors of 192 had originally drawn the Spains in the sortition, only to have their provinciae changed to “Bruttium” and “the fleet and Macedonia.” Once in the east, these two men had two separate commands, with different instructions, if not provinciae (8.2.1). M. Baebius brought over a small force which he was to hold in the vicinity of Apollonia,167 while A. Atilius Serranus sailed east with twenty-four or twenty-five ships “to protect the allies” against Nabis of Sparta (who had died by the time the praetor arrived in Greece).168 In 191, the consul M.’ Acilius Glabrio succeeded Baebius on land, and the praetor for the fleet, C. Livius Salinator (bringing over ffity decked ships, in addition to many lighter ones), succeeded Atilius on the Greek seas.169 The mission of Cn. Sicinius, who sailed to Epirus as pr. per. 172 and remained as pro praetore in Illyria in 171, was to hold the Macedonian theater with five thousand infantry and three hundred cavalry until a consular successor could prosecute the war against Perseus in earnest.170 It will be noted that none of these men had received this assignment in the original praetorian sortition. Another common denominator is that at the time of each of these expeditionary missions war had not been formally declared. V. M. Warrior171 has suggested, “it is possible that a war-vote was passed at this time by the People and that it was the normal practice to propose such a motion only at the beginning of the consular year.” Since in each of the years in question the Roman
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official calendar was probably somewhat in advance of the seasons (exactly how far is a vexed question),172 it devolved upon holders of praetorian imperium to sail with an advance force to set up a defensive position in Greece. At the beginning of the next administrative year, the war vote would be taken and a consul (with a proper force) would depart for the east. Warrior explains that the discrepancy between the official and solar calendars meant that “there was need for the prorogation of the praetor’s power to cover the long period before the new consuls could reach their provinces and take the field.” For example, Cn. Sicinius in 172 is said to have mustered at Brundisium the troops he was to cross on 13 February, that is, a little more than a month before the start of consular 171.173 This muster date should, however, be related to a time in late autumn or early winter; the consul assigned the war with Perseus (who took office in early or midwinter) will necessarily have had to wait three or more months for suitable sailing weather.174 Once these praetorian commanders had crossed, they were fully capable of taking action before the arrival of a consul, if the occasion demanded and if support was forthcoming from Rome’s allies in Greece. For example, in 191 (before the advent of the consul M.’ Acilius Glabrio), the pro pr. M. Baebius Tamphilus joined with Philip and advanced into Perrhaebia and north Thessaly to prepare for the advance of the consular army against Antiochus later that year.175 His praetorian colleague, A. Atilius Serranus, joined his modest fleet to that of Eumenes, and operated against the Laconian coast towns taken by Nabis of Sparta. Atilius also took action against supply ships of Antiochus.176 These commanders probably did not have to wait for a formal declaration of war before engaging in minor hostilities; but they had to yield their command when the consul (or in Atilius’ case, praetor) to whom the war had been properly allotted showed up in the provincia.177 8.5.2 The Legati Pro Praetore of the Second Macedonian War Next, we should examine a problematic transitional category which we find only during the Second Macedonian War: regular grants of special naval commands with imperium to privati. In this war, the Roman campaign in the east was conducted by a succession of consular commanders: P. Sulpicius Galba (cos. II 200), P. Villius Tappulus (cos. 199), and finally, the brilliant T. Quinctius Flamininus, cos. 198 and pro cos. in Greece through 194. No praetor was allotted the “classis” or “Macedonia” in the sortition. In late fall 200, the privatus cum imperio M. Valerius Laevinus was succeeded in his “expeditionary” command in Greece by the consul P. Sulpicius Galba. Galba had under him two junior officers, L. Apustius Fullo, aed. pl. 201 and now termed legatus, and C. Claudius Centho (for whom Livy reports no title).178 Both these officers were to perform important military functions, especially L. Fullo, who in 199 harassed Philip’s eastern flank while Sulpicius (now pro cos.) attempted to penetrate the western regions of Macedonia.179 On the arrival of Galba’s successor, P. Villius Tappulus (cos. 199), L. Apustius Fullo and C. Centho disappear from sight. P. Tappulus had his own “praefectus classis,” Livius180 (surely C. Salinator, pr. 202). No actions are recorded for this man. In fact, he did not have
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much time to make progress: Livius and his superior officer Tappulus, who had arrived in Greece in late fall 199, were themselves succeeded in spring 198.181 It is not necessary to accept Münzer’s view that the Senate’s rapid replacement of C. Salinator was due to personal reasons.182 The Senate at this point in the war was trying to maintain annual consular commands in the east, and when the consuls were relieved their appointees went with them. It has been suggested that L. Apustius Fullo and (C.) Livius (Salinator) had received special grants of praetorian imperium.183 Now, one did not need imperium to command a fleet.184 And the evidence is slim in this particular instance: Zonaras calls L. Fullo oJ strathgo;~ ejpi; tou` nautikou` (“commander in charge of the fleet”) and shortly afterward strathgov~.185 But Zonaras, in the passage in question, also differentiates C. Claudius Centho as a uJpostravthgo~ (“legatus”)186 and provides independent material (not in Livy, but quite possibly reliable) on an illness of Sulpicius in 200,187 which lends some credence to this report. If Zonaras’ term is in fact accurate, L. Apustius Fullo and, after him, C. Livius Salinator will have obtained their commands by privilegia passed by the People under (respectively) the presidency of the consuls P. Galba and P. Tappulus. The procedure followed when the consul P. Aelius Paetus secured imperium for the privatus M. Valerius Laevinus in 201 will have served as the most immediate precedent in these cases.188 In late spring 198, the consul T. Quinctius Flamininus and his brother L. Flamininus (pr. urb. 199) arrived in Greece. Titus was to succeed P. Villius Tappulus, and Lucius C. Livius Salinator. Livy describes L. Quinctius Flamininus as “the brother of the consul, to whom the supervision of the fleet and the imperium of the sea coast had been handed by the Senate.”189 What was his official position? Livy’s wording (“imperium mandatum ab senatu”) may suggest prorogation of Lucius’ praetorian imperium into 198.190 Prorogation obviously would be a simpler expedient than securing a special lex. A precedent for the prorogation of an urban praetor into the next year to command a fleet was readily available: M. Marcius Ralla, pr. 204 and pro pr. 203 (6.1.4). Plutarch reports that the consul T. Flamininus asked the Senate’s permission for his brother to serve with him in command of the fleet, with the implication that the request was unusual.191 One possible explanation: the Senate may have planned to prorogue (or already had prorogued) L. Quinctius Flamininus into 198, but had earmarked him for service in Italy, specifically in the task of allocating land to veterans. This had been the duty given to C. Sergius (Plautus), pr. urb. 200, and in 199 prorogued “to see to the assignment of land to soldiers who had served for many years in Spain, Sicily, and Sardinia.”192 I would suggest T. Quinctius Flamininus (who himself had performed similar work in 201, and knew what was involved) used his influence to get his brother off the hook, so to speak. C. Sergius accordingly may have been prorogued in this provincia (an enormous task) for a second year, his extension of command unnoted by Livy. This would not be surprising in itself: Livy ignores (at least) two prorogations made in 198, namely, the extension of the commands of the privati Cn. Cornelius Blasio and L. Stertinius in Spain.193 The quick turnover in legati for the fleet in the early years of the Macedonian War must also have some bearing on this request for a special type of appointment.
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In any case, a praetorian command for Lucius in the east is highly probable, since he is named among Livy’s list of prorogued commanders for 197.194 He is also referred to as Roman “fleet commander” ([tw`/ st]rathw`/ tw`n ÔRwmaivwn tw`/ ejpi; tw`n nau[tikw`n]) in an inscription from Lampsacus.195 The titulature should be accurate, despite the fact that it is a Lampsacene, rather than an official Roman, document.196 The Lampsacenes in the same document got Titus’ status right, calling him “consul” (to;n [tw`n ÔRwmaivwn strathg]o;n u{paton).197 Strathgo;~ ajnquvpato~ would have been more correct, since T. Flamininus was pro consule at the time of this inscription; but the phrase is not attested for almost another fifty years, when we see it used by the earliest praetorian commanders for Macedonia (9.1.2–3). L. Flamininus remained with his brother in the east down through 194,198 successfully coordinating his naval force with the Pergamene and Rhodian fleets, and assisting the Roman land army when necessary. (Philip’s navy had been soundly defeated by Pergamum and Rhodes off Chios in 201, and so posed little difficulty.) L. Flamininus scored some notable successes. In 198, he was responsible for the capture of Eretria and Carystus, and the winning over of the Achaeans to the Roman side; the following year, his skillful mix of military might and diplomacy secured an alliance with Nabis of Sparta and the towns of Acarnania. Finally, in 195, a joint land-sea effort of the two Flaminini secured the surrender of Gytheum, cutting Nabis (now hostile) off from the sea.199 There is no telling whether L. Quinctius Flamininus retained imperium for his entire period in the east. He may have been prorogued pro praetore every year, as I have suggested for 197, unrecorded by Livy. What does appear reasonably certain is that L. Flamininus did not hold an independent command of his own.200 So it does seem as though the legati L. Apustius Fullo in 200, C. Livius Salinator in 199, and L. Quinctius Flamininus in 198 had served in the east as pro praetoribus. The first two men probably received their imperium through the agency of the consul who (no doubt) had chosen them and was to take them along. There was in each of these cases plenty of time before departure for the passage of an enabling law, which was probably the customary way to confer a special command when the privatus was in the city (Additional Note I).201 On the other hand, the imperium that L. Quinctius Flamininus held in the years 198 through (perhaps) 194 probably derived from his praetorship of 199, that is, by successive prorogations.202 Why were regular praetors not sent to command the fleet in these years? J. H. Thiel suggested that “the co-operation of Senate and consul in appointing the naval commander guaranteed a better selection of able men equal to this rather special task than the regular elections could effect.”203 Yet the notion of “quality control” exercised by consular commanders does not entirely explain the Senate’s decision to implement and then maintain this unusual system. We must look elsewhere for an explanation why it never declared the eastern fleet a special praetorian provincia in this war. Administrative necessity and conservatism probably are at the root of it all. At the time of the appointment of each of these legates there were of course still only four praetors. In 200 (in particular), there was an acute shortage of commanders for even the regular provinciae. Sardinia had to be governed by M. Valerius Falto, pr.
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Bruttium 201, as pro praetore. Rumblings in Gaul and serious disaffection among the Bruttii meant that two praetors (in addition to the urban praetor) were occupied in Italy. Faced with this shortage, the Senate authorized a special command in the east for a plebeian aedile of the previous year, L. Apustius Fullo. Once the precedent was set, the Senate employed the expedient also in 199 and 198, though the shortage of potential commanders was not so severe. And no one was going to touch L. Flamininus so long as his brother remained in charge of the war. The example of L. Apustius Fullo was remembered and revived in an emergency situation later in the decade. L. Oppius Salinator, aed. pl. 193, in 192, at the start of the war with Antiochus, was sent with imperium in command of a fleet— though (significantly) not to the east, but rather to protect Sicily.204 The use of Fullo and Salinator in these commands may show that ex-plebeian aediles had already at this point gained membership in the Senate ex officio;205 the other two legates discussed (C. Livius Salinator and L. Quinctius Flamininus) were surely senators at the time of their dispatch to the east. As it happens, L. Oppius Salinator turns out to be the last individual to receive a special grant of praetorian imperium to command a fleet in the period covered by the extant portions of Livy. As we shall see, the Senate now reserved eastern naval commands for praetors in their actual year of office.
8.5.3 Independent Commands The term “independent” is somewhat misleading, since the praetorian imperium of the individuals in charge of the expeditionary forces and of the men in what I shall call “independent” commands was of course not a bit different. “Expeditionary” praetors could act quite independently until superseded. But these commanders must have been under instructions from the Senate to avoid decisive action until the arrival of a consul. That such senatus consulta existed is implied, for example, by Livy’s report of the debate which arose over the triumph of L. Furius Purpurio.206 Indeed, after the case of L. Purpurio, the Senate will have been more careful to define what was expected of a praetorian commander once he arrived in his provincia. A praetor who fought a major battle with a consular army which he had been ordered merely to transport and arrange in a defensive position in Greece presumably would have been denied a triumph. If he lost such a battle, his career would be finished. But the question is purely hypothetical: we hear of no such engagements. The first praetorian commander whose career should be examined in this connection is M. Valerius Laevinus, pr. II 215 at “Luceria,” with superintendency of the “coast between Brundisium and Tarentum.”207 His position in the east as pro praetore in the years 214 through early 210 was a hybrid between an expeditionary and a fully “independent” command. Some background is necessary. The news of Cannae had prompted Philip II to approach Hannibal for an alliance in 215. Though his emissaries were captured—twice, in Livy’s account—with incriminating documents by Valerius’ men,208 the praetor was ordered to adopt a “wait-andsee” approach. The fleet of twenty-five ships under P. Valerius Flaccus, M.
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Laevinus’ legate and praefectus classis (a non-technical term), was doubled and his role expanded to include reconnaissance of Philip’s movements; Laevinus was given full authority to cross to Macedonia, if necessary, to contain Philip.210 Later, the consul Ti. Sempronius Gracchus ordered the praetor to take over personally the prefect’s work.211 M. Valerius Laevinus did not have to cross in the actual year of his praetorship, and he was prorogued into 214 in the area of Brundisium.212 But in that year, after a treaty with Hannibal had been finalized, Philip made an aggressive seaborne attack on Roman interests in south Illyria, timed to coincide with Hannibal’s (ultimately unsuccessful) attack on Tarentum.213 Only then did Laevinus cross over. However, his instructions evidently were to prevent a serious deterioration of conditions in the east; he simply did not have the forces to wage total war against Philip and the Macedonians.214 M. Valerius Laevinus was an exception. He was very probably of consular status at the time of his election to a second praetorship in 215;215 his appointment to an eastern command in 214 came during a time of acute crisis, and, in the event, his role was largely defensive. A more productive precedent emerged in the Second Macedonian War. In this conflict, as we have seen (8.5.2), the Romans entrusted their fleet to a series of legati attached to a consul, the last of whom was L. Quinctius Flamininus for the years 198–194. I have argued that this man came to the east technically as a prorogued praetor, though he functioned as a legatus under his consular brother. L. Flamininus’ hybrid status makes him an important transitional figure. The success of his wide-ranging commission was noted, and his position regularized. Genuinely independent praetorian commands—subject however to strict annuality—almost immediately emerge in the east, with the men who received the “classis” as their lot in the praetorian sortition in the Syrian War and (twenty years later) in the Third Macedonian War. The eight men who received an independent praetorian command of this type in the east are thus A. Atilius Serranus, pr. 192 (but see 8.5.1, on the expeditionary commands); C. Livius Salinator, pr. 191; L. Aemilius Regillus, pr. 190; Q. Fabius Labeo, pr. 189 (and pro pr. 188); C. Lucretius Gallus, pr. 171; L. Hortensius, pr. 170; C. Marcius Figulus, pr. 169; and Cn. Octavius, pr. 168 (and pro pr. 167, to help see to the peace settlement). All had the “fleet” as their provincia. In the last year of fighting in the Third Macedonian War (168) the principle was extended and an independent praetorian command was created on land (the war in Illyricum against king Gentius) and assigned to the pr. per. L. Anicius Gallus (5.3.2). This decision was forced upon the Romans: the Senate had attempted to avoid committing a proper force to Illyria as long as it was possible. The sympathies of king Gentius remained ambivalent enough for the first year or so of the war that no large armed force seemed necessary to hold the region.216 In 170, the consul A. Hostilius Mancinus had sent a legate, Ap. Claudius Centho (pr. 175) with four thousand troops “to protect Illyria’s neighbors.”217 Centho soon took unauthorized initiative and attempted to turn his assignment into an independent command; by 169, he had transformed into a proverbial loose cannon.218 In the praetorian provincial arrangements for 168 it was decided that L. Anicius, who had originally received as his lot “peregrina et [si] quo senatus censuisset,” should go specifically to the provincia “Illyricum in the area of Lychnidum.”219 Ap. Claudius Centho had
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run into serious military difficulties, and Gentius had by now all but declared for Perseus.220 The independence of the praetorian naval commands is amply shown by four triumphs of this period: L. Aemilius Regillus (pr. 190), as pro praetore in 189; Q. Fabius Labeo (pr. 189) as pro praetore in 188; and Cn. Octavius and L. Anicius Gallus (prr. 168) as pro praetoribus in 167. L. Regillus was granted a naval triumph “with the great approval of the Senate.”221 And Livy tells us that in 167, “there was no dispute over the triumph of Anicius or Octavius.”222 Only Q. Fabius Labeo had to seek his triumph over tribunician opposition, which he was able to surmount, thanks to his considerable support in the Senate. The grounds on which Q. Fabius was challenged (we can suppose) were that he had not fulfilled the (still emerging) technical requirements regarding the magnitude of the victory.223 There is no hint in Livy’s account that the dispute was over a praetor’s right to triumph, which by this point was no longer an issue. One of these men, in fact, later positively celebrated his independence. Livy224 tells us that in 179, the ex-praetor L. Aemilius Regillus set up two copies of a votive tablet, one above the door of a temple he had vowed during his magistracy, another in that of Jupiter Optimus Maximus. In Livy’s account (ultimately based on an authentic document),225 Regillus boasts that his naval victory at Myonessus was achieved completely under his own command (“auspicio imperio felicitate ductuque eius”). The fact that he could install a plaque with this formulation on the wall of Jupiter Capitolinus—where official permission would surely be needed—demonstrates that his full claim had official sanction. Not that we need this additional confirmation. His triumph is proof enough that the praetorian naval commanders of this period, though they were tactically subordinate to the consul (or consuls) who operated on land in the eastern theater, fought under their own auspices and with their own imperium.226 It would not be an exaggeration to state that praetorian imperium militiae appears in its fullest sense in the “independent” praetorian commands in the Greek east. It is in this theater that one can see the praetor acting in actual fact as a “colleague” of the consul. The praetor in charge of the fleet operated as joint head of a substantial armada, working in concert (as in the Second Macedonian War) with the allied Pergamenes and Rhodians, each of whom seems to have had de facto veto power over the other.227 In the Syrian War, seventy-seven Roman quinqueremes were in Aegean waters alone, with a further eighteen in the Adriatic; in the Third Macedonian War, there was a smaller flotilla of forty ships (not counting a small squadron in Illyria). This was supplemented by the Pergamene and (after 191) Rhodian naval contingents, as well as small contingents from various Greek states.228 These praetors for the fleet also could act on land. In 191, the praetor C. Livius Salinator successfully pressed into naval service the coloni maritimi in Italy, though not without a dispute which had to be decided by the Senate. The praetor’s assertive action set a precedent, since henceforth these coloni were liable for such duty.229 And we hear of these praetors fighting land battles against enemy forces.230 But this was incidental, and not relevant to their triumphs. The provincia was obvi-
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ously “classis.” In like manner, L. Anicius Gallus, who as praetor had command of the land forces in Illyria in 168, had a fleet at his disposal.231 J. H. Thiel has outlined in detail the major strategic decisions various praetorian naval commanders in charge of these fleets (and the men on board) were able to make and implement without reference to a consular commander or the Senate. The outstanding example is C. Livius Salinator’s decision to shift the naval war to Asiatic waters in 191.232 Holders of consular imperium on occasion are reported to have given orders to a praetor in charge of the fleet,233 but on the whole there seems to have been remarkably little coordination between the (consular) land forces and the (praetorian) naval command in the Syrian War, and hardly any in the Third Macedonian War until 169. The council of war in Thessaly between the consul Q. Marcius Philippus and the praetor for the fleet C. Marcius Figulus (probably relatives, both descended from the cos. 281 Q. Philippus)234 is the first such planning session in our record; close coordination between land and sea forces continued in 168 between the consul L. Aemilius Paullus and the praetor Cn. Octavius.235 Almost all the action taken by the naval commanders in 191 through 189 and 171–170 should probably be regarded as essentially independent, though of course some general instructions will have been given at the outset of the campaign by the Senate and by the consul in the east. The praetors prosecuted the war as they saw fit, with full ability to exercise the right of the victor, within recognized guidelines. It is instructive to note in this connection C. Lucretius Gallus’ treatment of the pro-Macedonian town of Haliartus in Boeotia after it had fallen to the Romans. The praetor’s stern measures were deemed legitimate, since the town had to be subjected to a siege. He was found culpable only for his (similar) measures against Thisbe and Coroneia, which had surrendered to him. The Senate had the praetor urbanus set up a factfinding commission on the matter, and soon passed at least one senatus consultum critical of Lucretius’ conduct in the field. C. Lucretius was later condemned for these actions after his magistracy, which led to his exile.236 The case is important. This is a clear early example of the encroachment of the Senate on the praetor’s (originally absolute) powers of imperium within his provincia, one which we shall examine further below. Important tasks were sometimes delegated by praetors to their legati: as a praetor’s virtual representative, these legati could in turn act with tremendous authority. In 171, when the praetor C. Lucretius Gallus was detained by an illness, he sent his brother and legate M. Lucretius ahead to gather allied naval contingents. On arrival in Boeotia, this legatus ordered a legatus of a consul (P. Cornelius Lentulus) to desist from the siege of Haliartus: “He sent a messenger to order him in the name of the praetor (praetoris verbis) to depart from there.” Surprisingly, P. Lentulus yielded. M. Lucretius then picked up the siege himself until his brother arrived.237 Starting in 169, there was not only more land-sea coordination in the east, but also more senatorial regulation of the requisitions of magistrates in this theater. Down through 170, praetors (like consuls) had the full power to requisition troops and supplies from allies as needed. However, there were abuses of this power; the high-handed actions recorded for P. Licinius Crassus (cos. 171) and C. Lucretius
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Gallus (pr. 171) against the Athenians238 will not have been isolated instances. Such behavior led to a senatus consultum of 169 that firmly circumscribed the powers of praetors (and consuls) in this respect: it stipulated that the Greeks could not be forced to furnish troops or supplies to a Roman commander without a senatus consultum to back the demand.239 Although these strictures were all in a good cause, it must be emphasized that this was a major arrogation of power by the Senate. The Senate was no longer merely specifying provinciae, but limiting the powers of imperium itself without (even) any recourse to the People.240 It is interesting that, notwithstanding the passage of this measure, the Greek allies still apparently feared abuse. In 169, the legate Ap. Claudius Centho in Illyria requested troops from the Achaean League. Despite the fact that it was made by a magistrate without imperium and in contravention of a senatus consultum, Polybius (as representative of the Achaeans) still had to treat the demand with considerable delicacy.241 Once hostilities were brought to a conclusion, we find the praetorian commanders also arranging peace settlements. Praetors acted as assistants to a consul in securing the technical aspects of a peace arrangement.242 For instance, Q. Fabius Labeo (pr. 189) must have set the boundary in Thrace which excluded Maronea from Philip’s kingdom, but almost certainly as a participant in the larger (consular) settlement of 188.243 (Labeo could hardly have drawn such a contentious boundary entirely on his own initiative.) Also, Cn. Octavius (pr. 168) must have acted in an important capacity in the eastern settlement in 167, in which Macedonia was divided into four independent (but tribute-paying) republics.244 Yet praetors could set the details of terms themselves, when provided with a senatus consultum and a proper senatorial consilium. L. Anicius Gallus, pr. 168, was prorogued into 167 to arrange the settlement of Gentius’ kingdom, just as the consul L. Aemilius Paullus and the praetor Cn. Octavius had their commands extended for this very same reason in Macedonia.245 The Senate provided Anicius with general guidelines and a senatorial consilium of five legates. His responsibilities may have included setting the exact boundaries by which Illyria was to be divided into three districts.246 The rationale for a consilium of five legati (whereas a consul was advised by ten) perhaps was on the analogy of the lictors: a praetor’s imperium was represented by one-half the consular total. One final observation: The Senate adhered rigorously to the principle of annual succession in the Syrian and Third Macedonian wars, replacing each year even capable naval commanders (e.g., C. Livius Salinator, pr. 191) as well as successful consuls (L. Cornelius Scipio, pr. 190, who had his elder brother with him as a legatus). Prorogation of consuls and praetors (other than “automatic” prorogation)247 is not found until the hostilities in the east were settled and peace arrangements had to be made (in 188 and 167). This is striking, since the “classis” was a special praetorian provincia. As we have seen (8.3.1), holders of special provinciae were in general apt to receive repeated prorogations; and in the Hannibalic War, the tendency was to keep competent naval commanders on the seas for as long as possible (6.1.4). The pressure to institute this policy concerning the “fleet” doubtless came from within the ruling class itself. Properly elected magistrates no doubt resented the “bottleneck” which resulted when a previous commander in a coveted post was prorogued into one or more years; the example of T. and L. Flamininus, who each
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held imperium for five years in the Second Macedonian War, must have been directly responsible for this change in policy. Everyone wanted their chance against a Syrian or Macedonian king!248
8.6 Special Praetorian Provinciae, 165–122 We hardly can hope to trace developments in the declaration of special praetorian provinciae once we lose Livy’s continuous account with the year 166. In this area there is little which can be said with absolute certainty other than that special provinciae continued to be declared. The individual cases—each, as they turn out, rather different—do, however, provide some material for speculation. In particular, in 8.6.1 we examine some subordinate naval commands where previously we had seen praetors or legati pro praetore (cf. 8.5.2–3), but now find simply ex-praetors as legati. A more substantial conclusion may emerge from 8.6.2. It appears that, after 146, when there were more fixed praetorian provinces than praetors, the Romans were forced occasionally to revive the (previously rare) expedient of special promagisterial provinciae, that is, tasks dissociated from the provincia of the magistracy. This development may have helped the Romans rationalize their later practice of sending city praetors out in the year after their magistracy to hold a command in a regular territorial provincia (15.3.1). 8.6.1 Special Provinciae Overseas and in North Italy In 149, the Senate allowed both the consul L. Marcius Censorinus and his colleague M.’ Manilius to fight what was expected to be an easy war against Carthage. Manilius proceeded to Africa in command of the land forces, while Censorinus had charge of the fleet. It is remarkable to find this type of dual consular command for an overseas war, considering the restricted scope of the theater in this particular instance. Such an arrangement was common in the first conflict against Carthage, but really had not been seen since the First and Second Illyrian Wars of 229–228 and 219.249 In 204, when the pro cos. P. Cornelius Scipio brought the war to Africa, the fleet sailed under the fleet prefect C. Laelius, aided by L. Scipio, the general’s brother (and legatus).250 And we have discussed how in the Second Macedonian War the Roman and allied navy operated under legati pro praetore of a consular commander; in the Syrian War and the Third Macedonian War, praetors received in the sortition the special provincia of the “fleet” to conduct naval operations (8.5.2–3). Private compromise and special pleading—not military necessity—prompted the Senate’s dispatch of M.’ Manilius and L. Marcius Censorinus against Carthage in 149.251 Appian (whose account is based at least indirectly on Polybius),252 as well as Zonaras, take pains to emphasize the incompetence of these consuls, all to the greater glory of P. Scipio Aemilianus, who was serving under M.’ Manilius as a military tribune. But even allowing for (Polybian) pro-Scipionic bias, the consuls certainly seem to have seriously underestimated the enemy. Their attempts to take the city resulted in demoralizing reverses, allegedly with worse disasters only narrowly averted (usually through the agency of Scipio!). Marcius, before sailing back to
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Rome to hold the consular elections, is singled out for the losses he incurred, with little to show in return. After his departure, his colleague launched a particularly ill-fated attack on a Carthaginian supply base.253 There was also bad news from the east: Macedonia was in open revolt under Andriscus, requiring the dispatch of a legion under a praetor’s command (on the events of 149, see further below, and in 9.1.2). For 148, in response to the emergency the Senate substantially modified the administrative arrangements for the war in Africa. Only one of the new consuls of the year, L. Calpurnius Piso Caesoninus, proceeded to Carthage, where he superseded Manilius. The fleet was placed under the command of a man who must be a praetor or praetorius, L. Hostilius Mancinus, the future cos. 145. Of our three sources on Mancinus’ commission, Appian and Zonaras offer no title, but the Livian Periocha calls him “legatus.254 Münzer suggested that he was a praetor or pro praetore.255 But we shall see that the title provided by the Periocha must be correct. In early 147, Mancinus, launching an attack from sea, was able to breach a neglected portion of the city wall of Carthage. Appian and Zonaras tell a dramatic story. The Carthaginians trapped Mancinus and his force, but the new consul for 147, Scipio Aemilianus, accompanied by his own admiral “Serranus,” sailed into this theater just in time to extricate them. Appian tells us Scipio then sent Mancinus home.256 Mancinus later managed to use his Carthaginian exploit to good effect—over Scipio’s criticisms—in his successful consular bid for 145.257 We cannot infer Mancinus’ status from the fact that the consul Scipio, on his arrival in 147, ordered him to return to Rome.258 Even a magistrate with imperium was retained in his old provincia at the discretion of the new commanding officer (6.1.1), and Scipio was superior to Mancinus in any case. There are better indicators. Our sources suggest that the consul Scipio Aemilianus was in direct control of the fleet,259 and so his admiral “Serranus” is unlikely to have held an independent command. Indeed, “Serranus” is probably the praetor M. Atilius who fought so well in Spain in 153 and 152 (see 7.3.1). (Sex. Atilius Serranus, the future cos. 136, would be too junior for such a major role.) If indeed “Serranus” can be identified with the pr. 153 M. Atilius, he must now be serving as a legatus (second praetorships are at all times rare).260 And since the Periocha explicitly terms his predecessor Mancinus “legatus,” it is reasonable to conclude that each of these men held that position. But there is no hint that either man received imperium. So we are left with the unexciting conclusion that in the years 148 and 147 (and presumably until Carthage fell in 146), the Roman fleet sent to Africa operated under legati, albeit of praetorian status. After the two consuls of 149 produced so few results, the Senate evidently chose not to reintroduce the independent naval commands employed earlier that century in Rome’s eastern wars. Instead, it returned to the simple consul and legatus system that had brought Rome success in the African campaign of the last years of the Second Punic War. This arrangement was obviously the best suited to conducting joint naval and land operations in a quite limited area.261 In 9.1.2, we shall see how the unavailability of both consuls of 149 caused a praetor of that year, P. Iuventius Thalna, to receive Macedonia as a special provincia to fight the pretender Andriscus. Iuventius, after being prorogued into 148, was
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killed in battle—probably after the consuls of that year had received and set out to their own provinciae. In the crisis, a praetor of 148, Q. Caecilius Metellus, went to Macedonia, where he remained until 146.262 The praetors P. Thalna and Q. Metellus served very much as stopgaps, and they were meant to substitute for a consular commander. Indeed, we shall see that Q. Caecilius Metellus even received a special grant of consular imperium to conduct operations in his special provincia. We also hear of an “Oppius,” who as praetor or pro praetore in 146 fought successfully against Gauls.263 In that year, the consul L. Mummius was overseas in Achaea; there is no telling where the other consul Cn. Cornelius Lentulus was fighting— perhaps even in the same theater as Oppius. Any or all of these three praetors—P. Thalna, Q. Metellus, and Oppius—may have held the peregrine provincia. We do not know the names of either of the city praetors in the years of the relevant period (149 through 146); there is also ample precedent for a peregrine praetor to be sent during his year of office to either the east (most recently, L. Anicius Gallus, pr. 168) or Gaul. The alternative is that one or more of these praetors were allotted special provinciae. One further case may just possibly belong to this category. Appian in a summary passage of his Illyrica states that “[C.] Sempronius Tuditanus [cos. 129] and Ti. [Latinius] Pandusa fought against the Iapydes on the nearer side of the Alps. The Iapydes appeared to have capitulated to them, as did the Segestani to L. Cotta [cos. 119] and Metellus [discussed 10.5.1], but both tribes evidently revolted not long afterward.”264 What can be the status of this Ti. Pandusa? None of our other sources on C. Tuditanus’ consulship mention this man. We know from the Fasti triumphales that Tuditanus triumphed de Iapudibus on 1 October 129; an elogium he set up in Aquileia records action against the Taurisci, Carni (?), and another people, now entirely lost; Pliny knew of his victory over the Histri, and implies he made it as far as the river Tityus in Illyria. The Livian Periocha tells only of Tuditanus’ fighting against the Iapydes: after the consul had suffered a defeat (described as a clades), D. Iunius Brutus—the cos. 138 who had triumphed in the mid-130s from Lusitania (7.3.2)—scored a victory that compensated for that initial loss.265 D. Iunius Brutus’ position actually seems clearcut. Since Tuditanus received the triumph, Brutus must have been his legate, though perhaps with delegated imperium. Consular legates (under a consul) are perfectly possible,266 and there is no other plausible explanation of Brutus’ role. Broughton, following Münzer, initially identified Ti. Pandusa as a praetorian governor of Macedonia in 129 who assisted the consul Tuditanus in his fighting (adding that D. Brutus “probably” served as the consul’s legatus). But logistical considerations—namely, the lack at this time of a suitable land route from the provincia of Macedonia to northeast Italy267—make it unlikely that a Macedonian commander could meet Tuditanus to assist him against “the Iapydes on the nearer side of the Alps.” As an alternative, some scholars have preferred to consider Pandusa a praetor in Cisalpine Gaul in 129.268 M. G. Morgan, impressed by the breadth and speed of Tuditanus’ campaign (he was back in Rome by the end of September), elaborated on this basic idea. Pandusa, Morgan argues, “must have been a praetor, a propraetor or a legate—and there is little reason to think him a legate when Tuditanus could persuade a man like D. Brutus Callaicus (cos. 138) to serve under him in that capacity.” Morgan
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goes on to suggest that Ti. Pandusa had been sent to Histria as pr. 130, where he started the work against the tribes in the hinterland of Aquileia (at least bringing the necessary troops into place), and as a prorogued praetor served under Tuditanus in 129. Broughton in the end tentatively accepted Morgan’s solution, suggesting that Pandusa perhaps continued with the consul as a legatus until the defeat of the Iapydes.269 However, a simpler solution is that Ti. Pandusa only came to Histria as a legatus of C. Sempronius Tuditanus. Morgan was incredulous that Pandusa, if merely a legatus, could serve alongside the ex-consul and triumphator D. Iunius Brutus. But if Ti. Pandusa were already a praetorius, especially of senior standing—and the sorry state of the praetorian fasti after 166 does not allow us to exclude this possibility—his presence as a legatus on this campaign would be perfectly acceptable. For instance, in 171, the consul P. Licinius Crassus brought to Macedonia as his legates both Q. Mucius Scaevola (cos. 174) and the senior praetorius M. Valerius Laevinus (pr. 182), probably as well as some less distinguished men.270 For all we know, Ti. Pandusa may have been a highly qualified military man by the time of his appointment. If C. Sempronius Tuditanus had two experienced legati on his staff (perhaps with delegated imperium), it certainly would help explain how the consul managed to cover so much ground in so little time; we have seen that D. Iunius Brutus did the actual fighting which brought Tuditanus his triumph. A much less likely possibility is that Ti. Pandusa should be dissociated from the consul of 129, receiving the war against these Iapydes as a special praetorian provincia sometime after Tuditanus’ triumph of 129. Appian in the relevant passage clearly makes this a joint operation, leading to one cooperation, just as by Cotta and Metellus. 8.6.2 Special Provinciae in the City and in Central and South Italy In the year 149, a quaestio perpetua to try cases of provincial extortion was established in Rome, supervised by the peregrine praetor (9.2.1). And special quaestiones also crop up in this period. For example, we know that L. Hostilius Tubulus, pr. 142, supervised one inter sicarios in his year of office, probably as urban or peregrine praetor, but perhaps after having received a territorial provincia in the sortition.271 But no quaestio constituted an entirely selfstanding provincia until C. Gracchus’ repetundae law of 122 (9.2.2). So probably the criminal courts had no significant impact on the praetorian sortition before that time. There is one apparent instance of a special promagisterial provincia in the city. Frontinus tells the story. On account of growth in the size of the city, the Senate charged Q. Marcius Rex (pr. urb. 144) with repairing the Appian and Old Anio aqueducts, and with tackling the problem of private diversion of public water without permission—a serious matter.272 Marcius also was ordered to increase the water supply which came into the city; this resulted in his building the famous “Marcian” aqueduct. This aqueduct “is the largest before the time of Claudius and the most expensive building project recorded under the Republic. . . . [T]he urgency with which it was undertaken is not only recorded by Frontinus, but may be inferred
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from the fact that the oversight of the work was entrusted, quite exceptionally for the Republic, to a praetor”—as opposed to waiting for the next pair of censors (the last was in 147).273 Here there is a problem, since Frontinus then reports that Marcius was prorogued to complete this work. No promagistrate had ever received the provincia urbana, as far as we know (5.1.2).274 M. G. Morgan275 has summarized Marcius’ probable responsibilities in this commission. It involved “finding satisfactory sources of water, surveying the land between these sources and Rome itself in order to select the best route for an aqueduct, purchasing any privately owned land along the route, and letting the contracts for the actual construction.” And so this task surely will have brought him within the pomerium. The aqua Marcia was apparently planned to provide water exclusively to the city of Rome.276 What is more, Frontinus reports a Senate debate in the year of this man’s promagistracy (143) on the question—raised by the Xviri sacris faciundis—whether an aqueduct should reach up to the Capitol. The opposition was successful, which led to an interruption in the work. There was a dispute on this same issue in 140, but this time the opposition failed to prevent the line being taken up to the Capitol.277 Q. Marcius Rex should not have been prorogued in the urban jurisdiction, but rather a special provincia that nonetheless allowed him access to the city without losing his imperium when crossing the pomerium. We can reconstruct the rationale for such an assignment. Marcius’ experience in his magistracy proper should have demonstrated to the Senate that these tasks were too complicated and timeconsuming for an individual to combine with the regular tasks of the urban praetorship (the consuls of 143 were to be sent to Gaul and Spain). However, it would be useful for the man in charge of improving the conduits to have imperium when it came to reclaiming public water from unscrupulous (and perhaps well-connected) individuals. We simply cannot know the exact nature of Q. Marcius’ provincia of 143. The college of augurs even may have had to pass a special decree if this man was to be allowed as pro praetore to work inside the pomerium.278 Of course, the assignment of a special provincia to a prorogued urban praetor had some precedent, though, as far as we know, the Senate had not used this device since the very beginning of the second century, when there were still only four praetors. C. Sergius Plautus, the pr. urb. 200, was extended as pro praetore to assign land to veterans in 199; I have suggested that L. Quinctius Flamininus, pr. urb. 199, was slated as pro praetore to perform the same task, but instead managed to go to the east with his brother, the cos. 198 (8.5.2). The example of C. Laelius, a praetor of 145 who received a military command in 144 (7.3.1), is also perhaps relevant— though we do not know for sure whether he held a city jurisdiction, and his destination (Hispania Citerior) was not a special provincia. The real novelty of Q. Marcius Rex’s prorogation into 143 was that he was to work in and around the city. At the end of the 130s, we might have another example of the Senate setting the completion of a task as a special provincia in the year following one’s praetorship, but for a praetor who is already militiae. T. Annius Rufus, who as pr. 132 or 131 had received Sicily as his province, built a military road from Rhegium to Capua— much of it (surely) as pro praetore (6.3.2). If our record were more complete, we might find other examples of such special promagisterial provinciae, for both city
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and noncity ex-praetors. The addition of Macedonia and Africa as regular praetorian provinciae in 146 (see 9.3) may have positively necessitated the reintroduction of this old pre-197 tactic. For the year 133, we have a chance reference to another old expedient, last seen for L. Oppius Salinator in 192 and Cn. Sicinius in 173 (8.3.1). Orosius reports for 133 that the shock waves from the First Slave War in Sicily had spread abroad, and that a slave uprising in Italy at Minturnae and Sinuessa had to be put down by Q. (Caecilius) Metellus (cos. 143) and Cn. Servilius (Caepio, the cos. 141). In all, they put 8,500 slaves to death.279 We must assume that Metellus and Caepio—both experienced consulars—received a special grant of imperium, almost certainly at the praetorian level. The use of relatively senior consulars, rather than praetorii, must mean that there was a major danger (the reported number of slaves they punished is quite large). Yet in this case the status of the enemy would hardly demand enhanced imperium.280 The striking thing about the emergency of 133 is that the Senate used privati. In the past, the peregrine praetor had been employed in emergencies of this sort (5.3.1). But at this point there were eight regular praetorian provinciae, but still only six praetors (9.3). In 133, the slave war in Sicily was at its height, occupying a consul and a praetor of the year, as well as (probably) a pro praetore of 134. Diodorus also speaks of a slave revolt in Rome about this time.281 And this same year, of course, had other sorts of internal and external turmoil. So it is quite possible that the praetor inter peregrinos (assuming there was one in this year) was unavailable, owing to duties in or near Rome, in another part of Italy, or in a territorial provincia.282 We should not take this emergency use of privati in 133 as indicative of general policy. The next time we hear of a slave revolt in Italy (an uprising at Capua in 104) it is a city praetor, L. Licinius Lucullus, who is sent to quash the insurrection (12.4.1). There is one final case for our roster of special praetorian provinciae. When the important Latin town of Fregellae rebelled in 125, it was a praetor, L. Opimius, who was sent to reduce the town, which he razed after it was betrayed to him. This is startling: in the Hannibalic War (the one previous period for which we have comparanda for the treatment of disloyal allies) we have seen that the Senate usually used praetors to garrison Italian towns, not to bring them to submission or destroy them. Fregellae was indeed a major affair. Cicero and Asconius allude to the general atmosphere of danger, and the possibility of wider revolt. The town was taken (so it appears) only through treason. And Opimius killed enough Fregellans to feel justified later in asking the Senate for a triumph. He was turned down, so we are told in a well-informed section of Valerius Maximus, because of the town’s allied status. There is no doubt that he totally vanquished the rebels; Macrobius speaks of a devotio, and the author of the Rhetorica ad Herennium compares the destruction of Fregellae to that of Carthage, Corinth, and Numantia. The upper-class Fregellans who had remained loyal were probably settled in the Roman citizen colony of Fabrateria Nova, established near the site of Fregellae in the next year.283 Why a praetor? It is probable that the insurrection at Fregellae was subsequent to the consul M. Fulvius Flaccus’ unsuccessful attempt near the beginning of the year to extend the choice of citizenship or provocatio to the Italians, after which the
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Senate soon dispatched Flaccus to the region of Massilia. In any case, he would not have had the least interest in the Fregellae command. The other consul M. Plautius Hypsaeus, if available (his provincia is unknown), may not have wanted the job of crushing socii either—whatever the standing of Fregellae among its neighbors at this time.284 Hence the decision that a praetor should handle this politically sensitive (if not to say invidious) task. Opimius obviously felt no moral ambivalence when it came to supressing those he perceived enemies of the state, as can be seen from his tactless request for a triumph for Fregellae, and his activities later as an anti-Gracchan consul in 121. His political sympathies might have specially recommended him for the task.285 If we allow for the possibility that the Senate’s selection of L. Opimius was ad hominem, the praetor could have held either of the city jurisdictions then in existence, or both combined. However, the exact provincia which allowed for this man’s appointment against Fregellae must remain one of the numerous mysteries of this ill-attested period.
9
General Developments in the Praetorship, 165–122 In this chapter, I examine the Senate’s decision not to annex one territory (Cyrene) in 154, and the addition of the new praetorian provinciae of “Macedonia” and “Africa” in 146, and “Asia” following a bequest of Attalus III in 133 (9.1.1–5). I postpone the question of the consular campaigns in Gallia Transalpina in the years 125–121 and the foundation, soon afterward, of Narbo Martius—steps which some have argued constitute the foundation of a new Roman provincia—to 10.2.3. What follows (9.2.1–2) is a brief discussion of the creation of a new praetorian provincia in the city—the quaestio repetundarum—in 122 b.c. Finally, in 9.4 I have added some observations on the staffing of the various provinciae down to 122 b.c. A corresponding survey for the period 122–50 b.c. can be found in 15.3.
9.1 New Praetorian Territorial Provinciae down to 122 9.1.1 The Nonannexation of Cyrene in 154 After the partial repeal of the Baebian law ca. 175 (7.2.6), the number of praetors and praetorian provinciae remained stable at six apiece down to the mid-140s. Rome did not add any new provinciae for almost fifty years—although it had the chance if it so wanted. In 154, there was a decision not to annex Cyrene, to which Ptolemy VIII Euergetes II (“Physcon”) of Egypt had given the Romans virtual legal entitlement in an unusual disposition, meant to safeguard the king against the machinations of his brother Ptolemy VI Philometor. An epigraphic version of this testament is preserved.1 It is unfortunate that we do not have any details of the Senate’s debate on Euergetes’ will: there must have been some, especially since the king formally had deposited a copy of the document in Rome.2 E. Gruen,3 in discussing the terms of the will, argues, “[T]he testamentary form was mere facade. Rome would inherit only if Ptolemy died childless—an unlikely event, as the king was still in his twenties. . . . The scheme was clever and ineffectual. The literary sources pass over the 222
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testament of Ptolemy Euergetes altogether. It made little or no impact in Rome.” Yet how do we know? The silence of our extremely lacunose sources for this period is no evidence that the Senate wholly ignored the king’s testament—though in the end there was no opportunity for the inheritance, that is, the king’s death without an heir. The interest of at least some senators must have been piqued by a provocative clause in this document in which Euergetes entrusts protection of his kingdom to Rome.4 This would have given the Senate enough of a legal “handle” to take over Cyrene, if wanted to do so; the examples of Sardinia and Corsica (see 4.3.1) show that Rome might annex territory in times of peace on quite slender legal grounds. However, a majority of the Senate was evidently predisposed against such action. Indeed, in 96, when the kingdom of Cyrene was fully bequeathed to the Roman People by king Ptolemy Apion, the Senate’s reaction to this gift was to decree that the cities of that kingdom should be “liberae” (10.3.1). The availability of only six annual praetors was surely an important factor—though obviously not the only one—in each of the decisions not to annex Cyrene. From the standpoint of Rome’s administrative system, the first significant developments in the period after Livy fails us come in 148–146. There were several major decisions taken in that three-year period. The Romans added two new praetorian provinciae, Macedonia and Africa. Grants of consular imperium began to be extended beyond Spain, to praetorian governors in the east. And the Senate made a firm resolution not to create any more praetors above the total of six which had been elected annually since 197. 9.1.2 The Annexation of Macedonia In the late 150s, a certain Andriscus had set himself up in Macedonia posing as Philip, the son of Perseus. The genuine Philip in fact had died in imprisonment in Italy—where Andriscus himself had at one time been interned—more than a decade before.5 Andriscus’ success in raising a revolt in Macedonia came as a total surprise to the Romans. In (probably) late 150 or early 149, the Senate sent a commission headed by P. Cornelius Scipio Nasica Corculum to Macedonia to investigate this rising. Nasica was a man of some experience, having triumphed from Dalmatia as cos. II in 155. He soon recognized the seriousness of the military situation, and even went so far as to organize—on the spot—a force from the allies to contain Andriscus in Macedonia and prevent his invading Thessaly.6 Nasica’s later report to Rome7 will have led to the declaration of Macedonia and the war against Andriscus as a (special) provincia, which fell to a praetor of 149, P. Iuventius (Thalna).8 The exact chronological relationship of the outbreak of Andriscus’ revolt to the decision process that led to the Third Punic War (on which cf. 8.6.1) must remain uncertain. However, it should already have been decided in 150 to go to war with Carthage.9 The Senate had little choice but to send a praetor to Macedonia, since by the time it received Scipio Nasica’s report, both consuls of 149 surely had set out (or were about to set out) for the war with Carthage—L. Marcius Censorinus in command of the fleet, and M.’ Manilius at the head of the land forces. Even if the
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consuls were still in the city, we can presume either of these men will have used what influence they had to prevent being diverted from the extremely prestigious (and potentially lucrative) Punic campaign to combat this wholly unexpected emergency in the east.10 There is no hint in our sources that the man sent to fight Andriscus, P. Iuventius, possessed anything more than praetorian imperium, which was appropriate to the task at hand, as it was perceived at the time. Indeed, he went to the east with only a single legion. But as it turned out, the Senate had underestimated the danger. At the beginning of the next year’s campaigning season (early 148), Andriscus routed Iuventius’ force, killing the commander (now pro praetore) in battle.11 This was the first genuinely serious Roman reverse in the east since the very start of their involvement in this theater. One can imagine the shock waves throughout the Greek world when the Macedonian pretender then followed up his victory by bursting into Thessaly.12 It is a bit surprising that in response it was another praetor, Q. Caecilius Metellus, who was sent to the east to check Andriscus. A contemporary dedication of Thessalonica to Q. Metellus uses the term strathgo;n aj[nquvpaton] to describe the commander.13 M. Holleaux14 collected close to twenty occurrences of this title (and its shortened form ajnquvpato~) in Republican inscriptions, which must translate the official Roman designation pro consule: Metellus was the first example of the title in this form known to him (and to us). Thus it appears Metellus was granted enhanced imperium, that is, pro consule,15 and with it the traditional consular complement of (probably) two legions.16 The explanation for this arrangement must be that, by the time news of P. Iuventius’ defeat reached Rome, the consuls of 148 already had set out for their provinciae, Africa and (probably) Gaul.17 The praetor Q. Caecilius Metellus was then sent to Macedonia literally “pro consule,” in place of a consul, since neither of the consuls of the year was available for fighting in this theater. After halting Andriscus (who did not give Metellus much trouble), the praetor went on to conduct military action against the Achaeans, though only after L. Mummius had been sent against them as consul, in 146.18 At some point between 148 and 146, Q. Metellus also organized Macedonia as a new, regular provincia. The exact date must remain uncertain: the fact that the “Macedonian era” was considered to have started in 148/147 may only commemorate the “liberation” of Macedonia from Andriscus by Metellus’ victory, and not the formation of the Roman province.19 The task was probably not all that time-consuming. Metellus merely will have retained the system instituted by L. Aemilius Paullus in 167, and added provisions for the Macedonians to pay Rome a regular tribute.20 For his efforts, the Senate granted Metellus a triumph and voted him the honorary agnomen of “Macedonicus,” the first (and the only) one ever conferred on a praetor for his activities in this magistracy.21 Fighting in Greece proper ended with the destruction of Corinth by the consul L. Mummius in 146. Ten legati were sent to assist with the peace settlement in late 146 or early 145.22 The embassy seems to have added portions of Achaea and (probably) all Euboea and Boeotia to the provincia of the governor for “Macedonia.”23 The decision to bring these southern areas under direct control
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comes as a bit of a surprise, especially since Macedonia itself involved weighty military responsibilities (most importantly, the defense of the northern frontier). The addition of these southern areas is probably to be explained as a security measure prompted by Rome’s military difficulties in the west.24 The year 146 saw some fighting in north Italy (8.6.1, against Gauls), and the conclusion of a three-year war against Carthage, which brought a new provincia with new obligations (9.1.4). But what was particularly worrying was the resurgence of serious trouble in Spain (7.3.1). Viriathus and his rebels had captured and put to death C. Vetilius, pr. 147, and twice defeated C. Plautius, pr. 146 (which on his return led to condemnation for perduellio). Sometime in 146, the Senate decided to make Hispania Ulterior a consular provincia for the next year—the first time ever in our record. It could not afford trouble from a strong Achaean League. Notwithstanding the accretion of parts of southern Greece, “Macedonia” was surely the name of the provincia henceforth placed in the praetorian sortition. There was no praetor for “Achaea” at this time.25 Plutarch26 for one is explicit that “Macedonia” was the name of the province: he relates that in the late 70s, his city of Chaeronea was put on trial as if it were an individual “before the commander of Macedonia (ejpi; tou` strathgou` th`~ Makedoniva~), for not yet were the Romans sending commanders to Greece (ou[pw ga;r eij~ th;n ÔEllavda ÔRwmai`oi strathgou;~ diepevmponto).” Plutarch’s statement finds abundant confirmation in the epigraphic evidence.27 Gruen’s suggestion that Macedonia was never organized as a regular praetorian provincia in the Republic is wholly unconvincing. Among his arguments, Gruen implies that titles attested for later commanders such as strathgo;~ ajnquvpato~ ejn Makedoniva/ or “praetor in Macedonia” argue against permanent administration.28 But this seems to have been one regular designation for a provincial commander, with no reference at all to the status of the province.29
9.1.3 Early Commanders for Macedonia/Achaea The rank of Q. Caecilius Metellus—a praetor endowed with consular imperium— is inconclusive in itself for the administrative history of Macedonia, since he was no ordinary governor, but fought a major war. However, subsequent praetorian commanders sent to Macedonia, like Metellus, are regularly attested as pro consulibus. A recently discovered bilingual milestone, found in the vicinity of Thessalonica, gives us the name and rank of a new Macedonian praetor: “Cn. Egnati[us] C.f. pro cos.,” the builder of the via Egnatia.30 The Greek version is Gnai`o~ ∆Egnavtio~ Gaivou ajnquvpato~ ÔRwmaivwn; this provides additional confirmation for Holleaux’s view of the title (strathgo;~) ajnquvpato~. Cn. Egnatius must have held his command after the “pacification” of the provincia, subsequent to the two-year tenure of Q. Caecilius Metellus, pr. 148, who returned to Italy in 146. The most plausible date for Egnatius’ command is a date in the mid-140s, as one of the first regular governors. He must be the same man as Cn. Egnatius C.f. of the tribe Stellatina who appears as the senior witness to a senatus consultum sent to Corcyra, plausibly dated on independent grounds to the late 140s.31
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Another early governor now appears to be the Q. Fabius Q.f. Maximus pro cos. who wrote a letter to the Achaean city of Dyme after reaching judgment with his consilium on three of its anti-Roman conspirators; these men had burned down the town hall (and its archives) and had written their own revolutionary constitution. Most (but not all) scholars had identified this magistrate with Q. Fabius Maximus Eburnus, cos. 116, supposing that he held a command in Macedonia as a prorogued consul. Yet it appears that there is another letter to the Dymaeans (still unpublished) written by a Q. Fabius Q.f. Maximus pro consule, which details the privileges accorded to the town’s Dionysiac guilds. J.-L. Ferrary has reported that this second letter is dated in the “second year” of what should be the Achaean era.32 If so, since “Year 1” of the Achaean era is either 146/145 or 145/144, this second letter belongs to either 145/144 or 144/143, with Ferrary preferring the latter date,33 a view which I accept here. Ferrary argues that the same Q. Maximus probably wrote both letters to Dyme. If so, the pro consule in Macedonia is best identified with Q. Fabius Maximus Servilianus, the later cos. 142. As step-brother of Q. Fabius Maximus Aemilianus (son of Aemilius Paullus),34 he would be a good choice to hold a command in this area at a particularly delicate time. The letter dated to “Year 2” of the Achaean era suggests that Q. Fabius Maximus was pr. 145 (the latest possible under the lex Villia Annalis) with prorogation into 144. Since Ferrary adopts the majority opinion that “Year 2” corresponds to 144/143, he is absolutely required to assume that Fabius was prorogued. (Unfortunately, Ferrary does not address the question of how, in that case, Fabius’ term of office relates to that of Cn. Egnatius.) The contents of Q. Fabius’ (undated) letter—written in response to violent revolutionary activity in Dyme—certainly seem consistent with the period soon after the formation of the provincia. From this document, we learn that Fabius decided to execute two of the town’s coconspirators, and also ordered a certain Timotheus to go to Rome, “after making him swear that he would be there on the first day of the ninth [month].” Fabius relates that the praetor inter peregrinos has been informed of the fact “that there should be no return home for him, unless he . . .”; the text breaks off soon after this point, so the next stage is quite unclear.35 It is possible that Timotheus was to be put on trial in Rome (thus R. Sherk in his commentary on the inscription), or detained until certain conditions were met. The mention of the peregrine praetor is curious: where we can check, the praetor urbanus seems to have supervised the confinement of prisoners.36 This detail in fact may confirm the date of 144.37 We happen to know that in that year the urban praetor, Q. Marcius Rex, was busy supervising a massive project of aqueduct repair and construction (5.1.2 and 8.6.2), and probably could attend to little of his routine city business for much of the year. Hence perhaps the involvement of the praetor inter peregrinos in these extraordinary circumstances. There are two attested governors of Macedonia in the late 140s. The first is the praetor Licinius Nerva, variously dated to 143 or 142, on the basis of the Livian Periocha. When Nerva was absent on a mission, his quaestor L. Tremelius Scofa put down a revolt by yet another false Philip; this one allegedly had gathered an army of sixteen thousand slaves. Nerva received an imperatorial acclamation for his subordinate’s victory.38 Chronological precision is difficult. Eutropius apparently
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offers Q. Caecilius Metellus’ successes as pro consule in Celtiberia in 142 as a synchronism for the quaestor Tremelius Scrofa’s success against the Macedonian pretender. On the other hand, Julius Obsequens reports for the year 142 a Roman setback in Macedonia (“in Macedonia exercitus Romanus proelio vexatus”). (He has nothing for Macedonia under 143, and the year 141 is omitted altogether by the Obsequens manuscript.)39 The other attested Macedonian commander of the late 140s is D. Iunius Silanus Manlianus, generally (and I think rightly) identified as pr. 141.40 Early in the year 140,41 we find the Senate receiving a delegation of Macedonian provincials who complained of Silanus’ venality (“acceptis pecuniis”) and his rapacity as praetor. We do not know whether Silanus was back in Rome at the time this embassy first lodged its complaint; but if he was not, he soon returned. The Senate was receptive to entertaining the Macedonians’ charges, doubtless remembering the recent uprising of the pseudo-Philip. It even planned to start an investigation, evidently as a prelude to a criminal trial under the relevant statute, the lex Calpurnia de repetundis (see 9.2.1). But in a remarkable turn of events, D. Iunius Silanus’ natural father, T. Manlius Torquatus (cos. 165 and pontifex)42—who Cicero explicitly tells us had emancipated Silanus—prevailed on the Senate to let him first look into the matter in a domestic tribunal. (Silanus’ adoptive father may have been no longer living; if alive, this arrangement will have required his consent.) We are told that the provincials gladly agreed. This senior consular’s request was a charged one; the gens Manlia was notorious for its rigorous family justice. The Senate was evidently offering Torquatus the possibility of distancing his family from the praetor Silanus’ behavior,43 but perhaps also trying to make a gesture for the benefit of its new and troubled provincia.44 Torquatus “ordered” his son to plead his case before him; Silanus could hardly refuse, if he wanted to stand a chance in a public trial. T. Manlius Torquatus lived up (no doubt, quite self-consciously) to his family’s reputation. The consular—without even the customary consilium45—heard arguments from both the Macedonians and his natural son. At length he decided that Iunius in his command had acted unworthily of the gens Manlia, and “banished him from his sight.” Obviously, when a father issued such an order, he inflicted a tremendous disgrace on his son.46 Silanus, after his adoption into the Iunian gens, was no longer in Manlius’ patria potestas, and it is difficult to see what legal effect Manlius’ private verdict in this investigation (for that is what it was) could have on the ex-praetor—even if its formulation did resemble a capital sentence.47 But Iunius knew all too well that the ignominy inflicted by this adverse verdict from his natural father—a senior consular and surely one the oldest pontifices at the time48—would serve, leaving aside the loss of face, as a powerful praeiudicium in his own upcoming case. The next night, the ex-praetor committed suicide, thus forestalling a trial. In 141, we know from the Oxyrynchus epitome of Livy that the Romans suffered a military disaster in the territory of the Scordisci (“in Scordiscis cladis accepta”).49 The Celtic Scordisci had as their center an area in the north Balkans, namely, the territory between the Sava and Danube rivers, just west of modern Belgrade. But in the first half of the second century, the Scordisci extended their
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hegemony simultaneously west, east, and south: Strabo tells us that at their height they advanced “as far as the Illyrian, Paeonian, and Thracian mountains.” In the mid-150s, they can be found (unsuccessfully) fighting Roman troops in the context of the Dalmatian war of 156/155. By the 140s, they surely had subdued the Dardanians on the Upper Axius, and perhaps also had already come into alliance with tribes in west Thrace, most importantly the Maedi. In short, by 141 the Scordisci were now dangerously close to—if not actually pressing against— Macedonia’s northern boundary.50 If D. Silanus was to blame for the calamity “in Scordiscis,” it certainly would help explain why he was back in Rome in early 140, after only one year in a distant provincia (i.e., without prorogation). But it is curious that none of our sources on Silanus’ “trial” mention military disgrace: “clades” is a strong word, connoting heavy casualties.51 The answer to this puzzle may be that it was a subordinate of Silanus’ who incurred the loss, most likely a quaestor. We have seen that in the year 143 or 142, the praetorian commander Licinius Nerva was absent when his quaestor Tremelius Scrofa had to crush an incipient revolt; the danger was great enough to earn Licinius a claim to a triumph. It is difficult to see how a praetor, if indeed in his provincia, could have missed the rising of a pretender king—especially considering the havoc Andriscus caused just six or seven years earlier. But the situation is adequately explained if the praetor was off protecting the northern frontier of his provincia, where we know there was serious trouble in just the next year or two (and for some decades to follow). When we remember that Obsequens reports a Roman defeat “in Macedonia” for 142, the praetor’s absence during the pseudo-Philip affair finds an explanation: Licinius had his hands full with the Scordisci, and had a tough time of it. In 141, Licinius’ successor D. Iunius Silanus must have reversed the administrative arrangements, perhaps to maximize his own opportunity for military gloria—without the risks. I suggest this time the praetor remained in the provincia, where he saw no serious fighting, but managed only to fall afoul of powerful provincials (not yet inured to the greed of Roman governors). Meanwhile, the quaestor went off to fight on the northern frontier of Macedonia. It seems unlikely that the quaestor was ordered to march into the territory of the Scordisci. The exploits of his predecessor Tremelius Scrofa perhaps fired him with foolhardy ambition; alternately, the Scordisci lured the quaestor into an area they controlled, and there ambushed him. D. Iunius Silanus will have been only indirectly responsible for this disaster (he was busy lining his own pockets, so we are told). But the quaestor’s clades might explain this praetor’s quick supersession, as well as why the Senate so eagerly acceded to demands for his prosecution—even going so far as to allow his natural father T. Manlius Torquatus to set up a private (and literally prejudicial) hearing. The clades marked the beginning of a long struggle with the Scordisci. The one other praetor we can firmly identify for Macedonia in our period, M. Cosconius, was fighting this people north of the northeast border of the provincia around the year 135 (“in Thraecia,” according to the Livian Periocha). Cosconius’ campaign may explain why it was a consul, Ser. Fulvius Flaccus, who was sent across the Adriatic in 135 to punish the Ardiaei and Pleraei for raiding territory in
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(southern) Illyria under Roman protection. For his part, Cosconius campaigned successfully against the Scordisci, and the Senate kept him on longer than his predecessors in the province of Macedonia—a command of at least three years.52 But others would be less lucky. In 119, a praetor was killed in battle, and in 114, a consul met a major disaster at the hands of the Scordisci, a defeat which caused grave panic in Rome (14.1.1). In fact, the Scordisci remained a serious enemy of the Romans down to the 80s. They became Roman allies only in 14 b.c., when they were induced to aid the future emperor Tiberius against the Pannonians.53 M. G. Morgan offers a much different reconstruction of the Macedonian commands of the late 140s.54 Morgan suggests that the notice “in Scordiscis cladis accepta” should be harmonized with Appian’s undated reference to a “Cornelius” who was defeated by the Pannonians, terrifying “all the Italians,” so that for a long time afterward consuls were afraid to march against this Balkan people.55 Morgan accordingly makes D. Silanus pr. 142 in Macedonia, and this “Cornelius” pr. 141. Morgan then goes on to identify “Cornelius” with P. Cornelius Scipio Nasica (cos. 138). Despite Morgan’s detailed argumentation, his latter two conjectures are far from compelling. Appian’s notice suggests widespread fear of an invasion of Italy. But the Roman defeat of 141 cannot have taken place in the actual home territory of the Scordisci on the Savus, but much further southeast, near the northeastern frontier of Macedonia: it was the Roman provincia, if anything, which was in danger. In any event, Appian speaks of “Pannonians”; it seems quite doubtful whether they can be equated with the (Gallic) Scordisci, who soon turned out to be a formidable enemy for Rome. Finally, if Licinius Nerva was still in Macedonia in 142— as seems likely from Obsequens—Morgan’s entire hypothesis must be abandoned. Let us now take stock of our findings.56 Q. Fabius Maximus—who must be pr. 145—was in the provincia for at least part of 144. Licinius Nerva was pr. 143 or 142 (but very likely in the provincia that latter year), which gives us D. Iunius Silanus as pr. 141. We still must decide where to place Cn. Egnatius. If not actually pr. 146, we have little alternative but to fit him in between Q. Fabius Maximus on the one hand, and the praetors Licinius Nerva and D. Iunius Silanus on the other. That gives us for Egnatius’ praetorship one of the years 146, 144, or 143, perhaps with prorogation—even remaining in the provincia for a time after his successor arrived (he had to build his road). Regular succession is conceivable in these years, despite the new disparity in the number of praetors and praetorian provinciae. At this point very few praetors in office were being sent to the Spains—one in 145, another in 143, then no more until at least 133 (7.3.1–2). The fact that—like Cn. Egnatius—Q. Fabius Maximus as well as praetorian governors in Macedonia after our period are described in inscriptions as pro consulibus should demonstrate that this was the normal title for praetorian commanders in the provincia.57 Macedonia was of course often declared consular: a total of (at least) twenty-five years between 148 and 81. The term strathgo;~ ajnquvpato~ could be applied to consuls as well, when it was appropriate, that is, when their commands had been extended beyond the initial year of their magistracy.58 The grants of consular imperium to praetors in Macedonia perhaps came about in roughly the same way as (it was suggested) they had been instituted in Spain sixty years earlier. After the departure from Spain in 206 of P. Cornelius Scipio
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(Africanus), a privatus endowed with consular imperium, the Romans perhaps attempted to make do with two privati sent out pro praetoribus; however, a native revolt prompted the Romans in 204 to raise the imperium of these men to consular (7.1.4). Both Spanish commanders certainly had consular imperium by 204, and that special grant of enhanced imperium was preserved when the Spains were organized into two proper provinciae for 197. In any case, it is clear that the inhabitants of Macedonia had grown used to consular commanders. Starting in 210, with the arrival of P. Sulpicius Galba, it had become invariable for holders of consular imperium to exercise the supreme command in each of the major wars in Macedonia and Greece. The case of the privatus P. Sempronius Tuditanus in 205 demonstrates that a consular commander was provided for this theater even when the military situation did not strictly warrant it—and when no consuls or ex-consuls were available. The Senate followed a similar policy in Liguria, that is, Ti. Claudius Nero, pr. per. 178 and pro consule at Pisa in 177.59 As we have seen, the Romans in 149 had seriously misjudged Andriscus’ strength in sending out the praetor P. Iuventius Thalna with a single legion. His successor Metellus’ grant of higher imperium was retained for all subsequent praetorian commanders in the new provincia of Macedonia. The institution of praetorian commanders with consular imperium would became generalized and extended to other eastern provinciae when annexed in the pre-Sullan period, namely, Asia (discussed in 9.1.5), and a bit later, Cilicia (10.1). Again, it must be emphasized that the grant of enhanced imperium to praetors is not directly related to the number of legions to be commanded (7.1.4).
9.1.4 The Annexation of Africa After P. Cornelius Scipio Aemilianus had taken and destroyed Carthage in 146, he organized its territory, on the advice of a senatorial embassy of ten, into the Roman provincia of Africa.60 The Roman arrangements for control of their new province appear to have been very rudimentary.61 Pro-Carthaginian towns were destroyed. A poll tax was placed on men and women alike in the provincia, and a stipendium was levied on the land of cities which had not aided the Romans in the war. Utica, which had made a deditio in fidem to Rome in early 149, before the start of hostilities, was rewarded with a large tract of land. And, most importantly for our study, it was decided, as Appian notes, to send a praetor annually (in principle) to the new province. However, no praetorian commanders in Africa can be identified by name until the end of the war with Jugurtha: the first known is L. Bellienus, who is found as praetor at Utica in 105.62 Because of the paucity of our evidence, it is uncertain whether the pre-Sullan praetorian commanders for the provincia of Africa possessed only praetorian imperium. It is true that Q. Caecilius Metellus Pius (probably pr. 88) claimed consular imperium (i.e., pro consule) when in Africa in the years 87 to 84. Yet this was conferred on him to fight the Samnites in the last stage of the Social War, not to govern a provincia—Metellus’ presence in Africa as governor was unauthorized (10.5.5, 14.3.3).
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Though the territory covered by this new provincia was by no means large (initially under five thousand square miles), the early praetors for Africa might have occasion to command a large military force, as a chance notice from near the end of our period shows. Orosius reports that during a severe epidemic of 125, “in the city of Utica itself, thirty thousand soldiers, who had been appointed as a garrison for all Africa, were entirely wiped out,” in addition to allegedly two hundred thousand civilian casualties in this same region. Augustine gives the same number for the military force, but has two-thirds die. Even allowing for the usual exaggeration of the figures, it appears that the province probably had a fighting force of two legions with socii.63 If this interpretation is accepted, we still are at a loss to explain why such a large army should be in the provincia, especially since at this time there cannot have been real prospect of actual fighting with the Numidian kingdom. F. Hinard64 suggests that the Senate may have established a standing army for Africa from the establishment of the provincia, to defend its territory but especially to ensure its steady provision of grain to Rome (on which see below). But this seems quite unlikely when one considers the severe manpower shortages of the previous decades, especially the mid-130s (cf. 6.3.1, Rome’s problems during a major slave war in Sicily). Africa probably always offered some military opportunities.65 And there may have been large displaced populations in the provincia anxious to get their land back. However, no good explanation offers itself as to why such a large army should be in place there in the mid-120s; it is distressing how we have practically no information on events in this provincia for the first three decades after its creation. A. N. Sherwin-White is entirely too confident in stating that “there was no Roman warfare for a generation after the creation of the province in 146”; but he is right to point out that “there is no trace of the presence of any regular Roman troops when the troubles began with Jugurtha in 112.”66 After the disaster of 125, Rome probably never had the opportunity to bring the provincia back up to adequate military strength. A few additional observations. The destruction of Carthage and her allied cities gave Rome a fourth great source of grain, alongside Sicily, Sardinia, and Spain.67 It also offered new land for Roman settlement: in a little more than two decades after the formation of the provincia we find the first efforts to reinforce the Roman presence in Africa with an ambitious program of colonization.68 In the new provincia of Africa, Utica became by far the richest and most important city, with the best port. Utica also eventually became the center of Roman administration: a strange development, since it was technically a free city.69 Our evidence is so poor on the pre-Sullan provincia of Africa that all explanations of this development must remain purely speculative. Perhaps the arrangement dated from the beginning of the provincia. On this hypothesis, Rome’s generous grants of land to Utica at the time of the organization of Africa in 146 may have been meant to compensate somewhat for this evident infringement of her free status. Or perhaps the development came organically, soon after the Romans established a permanent presence in the provincia.70 One other possibility is that once Roman commanders during the Numidian War (111–105, discussed in 14.3.1) set themselves up in Utica and its port, and used it as a base of operations against Jugurtha,71 they never left.
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Whatever the chronology, once it did happen, Utica may have been quite pleased. There were business profits to be had from being the administrative center, especially if one had the relative protection of libertas as well. It may be that the actual governor’s headquarters (praetorium) was given extraterritorial status, so that the praetor could keep his full insignia (most importantly, the fasces) when hearing cases. All sorts of questions arise from having a “free” city as a provincial capital. It is unfortunate that our sources provide no answers. 9.1.5 The Roman Provincia of Asia After adding “Macedonia” and “Africa” in 146, the Senate soon took on further administrative commitments. The kingdom of Pergamum, bequeathed to the Roman People by Attalus III upon his death in 133, was made into the Roman provincia of “Asia.”72 This annexation had virtually been forced upon the Senate by the actions of Ti. Sempronius Gracchus, tr. pl. 133. Gracchus’ father (the cos. 177, II 163) had been a patron of Pergamum; when a Pergamene embassy led by one Eudemus arrived in Rome to announce the terms of Attalus’ will, Tiberius (who gave lodging to the delegation) was the first to know. Plutarch reports: At once Tiberius, playing the demagogue, brought forward a bill [sc. before the Plebs] which provided that the money of king Attalus, when brought to Rome, should be given to the citizens who received a parcel of the public land [i.e., under Tiberius’ agrarian bill] . . . and as regarded the cities which were included in the kingdom of Attalus, he said it did not belong to the Senate to deliberate about them, but he himself would submit a resolution to the Plebs (tw`/ dhvmw/). By this proceeding he gave more offense than ever to the Senate.73
E. Badian74 has shown that the Senate could take offense at Tiberius’ action for quite a number of reasons. His proposal flaunted the Senate’s traditional control over foreign affairs as well as finance—Tiberius had not even given the Senate a chance to refuse him the Pergamene funds for his projects. It also was absolutely unprecedented for a Roman aristocrat to exploit inherited clientelae to seize a treasure of this magnitude, and then to attempt to distribute those monies to the People as if they were his own to give. But it was particularly alarming that Tiberius, with such a potentially dangerous situation in Asia Minor (the revolt of Aristonicus may already have begun), utterly disregarded the freedom of the cities. Attalus deferentially had given this matter to the Romans to decide,75 but, as Badian observes, [T]he cities . . . were anticipating freedom, even though the Roman decision had not yet been taken. Tiberius’ irresponsible proposal might drive them into the arms of anyone who chose to contest the will. It was probably to some extent due to the fact that Tiberius was prevented from carrying out these plans that the cities, on the whole, joined Rome and not Aristonicus in the end.
Tiberius’ action and the Plebs’s vote destroyed the possibility of temperate debate in the Senate on whether or not to accept the bequest.76 We cannot assume automatically that, if the question were able to come to a vote first in the Curia (as was proper), an overwhelming majority of the Senate would have supported it.
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True, the wealth of Attalus’ kingdom made it an almost irresistible temptation. The Roman treasury was particularly dry at this point77 and, for members of the ruling class, the possibilities for self-enrichment and the acquisition of clientelae will have seemed limitless. Perhaps only a few would voice objections from genuinely held moral convictions. But at least some must have wondered aloud, especially after the Plebs’s vote, how Rome could manage to govern Asia, especially given the imminent necessity of returning the two Spains—which just two praetors had received in the sortition in the previous twelve years (7.4)—to normal praetorian administration. It was one thing to prorogue a commander for two or three years in hostile Spain or Macedonia. Asia, however, was a special case. It would be the wealthiest provincia in Roman possession.78 Note that the Romans at first took control of only a portion of the old Pergamene kingdom, which might show “that the inheritance of Asia was regarded by the Senate as in some degree an embarrassment.”79 Because of its wealth (surely), Sicily had been placed in the sortition every year in the period 200–166 (6.2.1), a practice that well may have continued down to and even after 146. Routine prorogation for Asian commanders was similarly impracticable. Once “Asia” came into existence, it should be noted that—where we can check—a new governor was sent to the provincia probably (roughly) every other year, even in the hard-pressed 90s (14.5.8), when the number of praetorian provinces had grown to a dozen or more. Since we can see the principle of annual succession at work where we have the evidence, we can safely assume it was operative at all times (allowing for exceptions in detail). The privileging of Asia in that respect inevitably meant longer tenures for the praetors who were sent to Macedonia and Africa, and perhaps also occasionally affected the regular sortition of the Spains, Sardinia, and even Sicily. Let us now return to the actual acquisition of the provincia. We have an epigraphic copy of the very senatus consultum (dating, so it appears, from late 132) that ratified Attalus’ will, guaranteeing that all future Roman governors of the new province would uphold the acts of the Pergamene kings “up to one day before Attalus’ death.” This document may show it was planned from the start that praetorian commanders were to hold “Asia.”80 The war against Aristonicus started in earnest in the year 131, but only after a bitter quarrel in Rome, known to us from a chance reference in Cicero’s Philippics. The consul P. Licinius Crassus Mucianus, who was also pontifex maximus, struggled with his consular colleague L. Valerius Flaccus, a flamen Martialis, for the eastern command.81 Flaccus must have received the war in the sortition, but Crassus claimed the flamen had no right to take leave from his religious duties— an old problem.82 Crassus even went so far as to make good on his threat of fining Flaccus if he abandoned his duties as flamen (Flaccus obviously had made preparations to take up the command). But Crassus faced his own technical impediment: no pontifex maximus had ever before left Italy to fight a war.83 Eventually, the People (in the comitia tributa) were asked to resolve the dispute by choosing the commander who would prosecute this war. Now, we have seen (7.3.1) that in a stalemate between the consuls of 144 over the Spanish command, P. Cornelius Scipio Aemilianus (cos. 147, II 134) took advan-
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tage of the situation and persuaded the Senate to send his friend C. Laelius (a praetor of the previous year, and now a privatus) to do the fighting. In the dispute of 131, it seems that Scipio Aemilianus sought such an extraordinary appointment for himself, for Cicero tells us the People voted on the proposition.84 We can suppose Aemilianus and his supporters might claim Laelius as a recent precedent, and also the fact that in 133, two senior consulares had received a special grant of imperium to put down a slave revolt in Italy (see 8.6.2). Of course, further back in history, there was the outstanding example of Aemilianus’ adoptive grandfather, P. Cornelius Scipio, who went as a privatus pro consule to Spain in 210 (7.1.3), and others to boot. Aemilianus for his part must have viewed an eastern war as an irresistible opportunity. A victory over Aristonicus would round off his triumphs from Africa in 146 and over the Numantines in Spain just the year before the dispute, in 132. It also offered the possibility of organizing (yet again) a new provincia. In the event, the People decided to uphold the prohibition on the flamen Martialis (though remitting his fine). Instead, it put aside another set of religious scruples and decided to send the pontifex maximus P. Crassus to Asia. The proposal to invest Aemilianus with special imperium proved to be a non-starter. Despite Aemilianus’ position as the outstanding military man of his generation, only two (out of thirty-five) tribes voted to give him this command against Aristonicus. Most Romans who voted on this occasion were obviously more willing to ignore a religious impediment than create a new and dangerous precedent by removing a major war from the superior magistrates of the state, especially at a time when there were no other significant external threats to the res publica. But why not simply send a praetor? The military threat to the region must have been considered too grave, and the political stakes too high, for that solution. Many were no doubt mindful of the death of P. Iuventius Thalna (pr. 149) in Macedonia at the hands of another eastern pretender (9.1.2). But praetors might have served as subordinates in the war against Aristonicus.85 And we do find one instance of a legatus who received praetorian imperium by (a consul’s) delegation in the field (9.3.4). In the event, P. Licinius Crassus Mucianus was captured and put to death early the next year after a defeat in battle, before the arrival of his successor, M. Perperna (cos. 130). Perperna managed to capture Aristonicus at Stratoniceia in Lydia, but himself died before being able to return home. The consul of 129, M.’ Aquillius, finished the pacification process and, with the aid of ten legati, set up the framework for the formal organization of the provincia. M.’ Aquillius probably will have served as the sole Roman magistrate with imperium in Asia down into 126, the year of his return to Italy (he triumphed in November of that year).86 The arrival of the first praetorian commander in “Asia” may date to that year, or—if the pro cos. Aquillius on his departure gave over the province to a quaestor (or just possibly, a legatus)—the next, 125.87 The first named praetorian commander (C. Atinius Labeo) is firmly attested for the year 122/121, which makes dubious indeed E. Gruen’s hypothesis that for Asia, too, the Romans were slow to make a permanent commitment.88 We can say with some confidence that, as in the case of the commanders for Macedonia/Achaea, praetorian commanders for Asia were sent out from the start pro consulibus (14.5.1).
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The provincia was no sooner established than the trials began in Rome. M.’ Aquillius not long after his triumph found himself a defendant for repetundae. And it is quite possible that the first or second (unnamed) commander who received Asia as his praetorian provincia had to face the same charge: C. Eilers has made a good case for Cn. Domitius Ahenobarbus (the future cos. 122) prosecuting an unknown Roman official (surely not Aquillius himself) on behalf of Samos, just before C. Gracchus established his permanent quaestio repetundarum. One or two additional commanders for Asia were haled into this court before the province was a decade old.89
9.2 Introduction of the Permanent Quaestio in Rome 9.2.1 The Pre-Gracchan Permanent Quaestio A quaestio perpetua repetundarum, that is, a standing criminal court to try cases of provincial extortion, had been in existence at Rome since the tr. pl. 149 L. Calpurnius Piso established it by a law de pecuniis repetundis. Cicero, in an informative passage from his Brutus tells us this was the first permanent one in Rome.90 Before Piso’s law, the Senate had dealt with cases of provincial extortion with ad hoc courts, such as the one we see the Spanish praetor L. Canuleius preside over in 171 (7.2.6). It is probable that L. Cornelius Lentulus Lupus (cos. 156) was condemned in such a court, in one of the years 155 to 150. Also, the Livian Periocha speaks of “several praetors” condemned in the year 153 on a charge of “avaritia” after accusation by provincials; the charge may have been either repetundae or peculatus.91 It is widely (and I think rightly) thought that the tribune L. Piso introduced his permanent court in direct response to the affair of Ser. Sulpicius Galba (pr. 151 and prorogued for 150 in Hispania Ulterior); Galba had escaped prosecution for his conduct in Spain (7.3.1) when the People were dissuaded from passing even the measure establishing a quaestio extraordinaria to try him.92 The early quaestio perpetua repetundarum evidently came under the responsibility of the praetor inter peregrinos. This may be inferred from the fact that in the repetundae law of the Tabula Bembina (123 or 122, but very likely the latter),93 the peregrine praetor is instructed to nominate the first panel of jurors introduced by this new measure and see to the running of the court for its first year.94 The exact procedure of the Calpurnian quaestio perpetua is unknown, but it was unlikely to be much different from that used in the earlier ad hoc extortion quaestiones. Since it operated under the system of legis actiones,95 peregrines still had to act through Roman citizen patroni.96 Rather, it was the permanence of the court, and the fact that the crimen repetundarum was now (surely) given a fixed legal definition,97 which were the real innovations. A. H. J. Greenidge’s98 cautious reconstruction is still valid: “The praetor peregrinus was, doubtless, directed to instruct recuperatores who were chosen from the Senate. The recovery was in sim-
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plum and the actio sacramento [the use of prescribed oral formulae in the stage of the trial before the praetor] was, or might be, used. Patroni were assigned to the plaintiffs, but by what authority is unknown.” One important clarification: The praetor doubtless chose the senatorial board99 himself; we shall see that one innovation of the later Gracchan law was that it restricted the praetor’s ability in this respect. What remains an open question is how he selected the members of his consilium—whether it was from the Senate at large, or from an album chosen for the whole year (as a standing consilium? Or as a panel from which the praetor would take his consilium in each case?). Cicero in that Brutus passage has been taken to imply that other quaestiones perpetuae were established after the lex Calpurnia de repetundis and before the 120s. The only plausible candidate is the quaestio inter sicarios, that is, the murder court: we know that a L. Hostilius Tubulus, pr. 142, supervised such a quaestio in his year of office.100 Tubulus was probably urban praetor or inter peregrinos; but it is also possible that he was a provincial praetor to whom this task had been given before he was to set off for his provincia.101 In addition, an M. Popillius Laenas as praetor heard a case of parricidium (in fact, matricide) in which (evidently) his consilium advised neither to condemn nor acquit. This praetor is commonly identified with the M. Popillius Laenas who was cos. 139, thus placing the trial ca. 142 (i.e., around the same time as Tubulus’ quaestio); but it is possible that it is this man’s father (cos. 173), as pr. 176. Or it may be his (putative) son, who is attested as a legatus pro praetore at Cos.102 In any case, these two quaestiones are probably only a special magisterial “investigation,” as often. In the second half of the second century, we have at least two examples of murder cases which do not come before a praetorian court “inter sicarios,” as we would expect if it were already in place.103 The first evidence for a permanent quaestio “inter sicarios” or “de veneficiis” comes only in the early 90s (10.4.3). There is no good evidence for the establishment of additional quaestiones perpetuae between the tribunates of L. Calpurnius Piso and C. Gracchus.104 Cicero summarizes L. Tubulus’ notorious praetorship: When he as praetor administered a quaestio inter sicarios, he so openly took bribes for his verdict that in the next year the tr. pl. P. [Mucius] Scaevola brought before the Plebs the question whether it wanted an inquiry on this matter. Under this plebiscite, the Senate decreed the inquiry to the cos. Cn. [Servilius] Caepio; but Tubulus immediately went into exile, for his guilt was clear.105
Asconius adds the puzzling notice that L. Tubulus, “when, on account of his many misdeeds, was summoned back from exile (cum de exsilio arcessitus esset) to be executed in prison, drank poison.”106 How could he be summoned back, when already condemned for a capital crime?107 B. A. Marshall108 suggests that Tubulus returned to Rome in defiance of a decree of aqua et igni interdictio. But this is quite far removed from Asconius’ statement. A more plausible scenario is that popular feeling against Tubulus was so strong that the consul Caepio had him arrested as he was making his way into exile. For that, one tradition on the fate of Q. Pleminius in 204 (6.1.3) offers a parallel.109
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9.2.2 The Praetor Repetundis In 123 or (more probably) 122, the tr. pl. C. Gracchus converted the quaestio repetundarum into something new. After a preliminary attempt at reform (the lex Iunia of 123), Gracchus changed the procedure so that trials for repetundae were conducted before an all-equestrian jury.110 The important thing for our study is that in Gracchus’ definitive legislation, he provided that the court be made into a regular praetorian provincia, allotted in the sortition. (We hear of no move to increase the actual number of praetors.) Gracchus’ reform is of crucial importance: within a few decades, the permanent praetorian quaestio would replace the iudicia populi as the predominant form of public criminal prosecution in Rome (10.4.5). Appian111 may be correct in his belief that Gracchus’ immediate motivation was a recent series of unsatisfactory trials before senatorial judges. Appian offers three names: (L.) Aurelius Cotta (surely the cos. 119, prosecuted for actions as praetor sometime in the 120s, as C. Cichorius suggested), Salinator (unknown, but perhaps even a praetor), and M.’ Aquillius (cos. 129, and back in Rome in late 126). Appian states that all three commanders were acquitted “by the judges” (uJpo; tw`n dikasavntwn), despite the presence of foreign ambassadors who went around denouncing these ex-magistrates. These envoys were still present in Rome at the time of Gracchus’ second tribunate of 122, the date of the final form of the repetundae law. C. Mackay plausibly suggests that the ambassadors were in Rome only for Aquillius, whose trial (under the old lex Calpurnia, which evidently had no restriction on adjournments)112 must have started before the lex Iunia of 123, and was still dragging into 122. The presence of the provincials—who naturally would link Aquillius’ trial with other scandalous extortion cases—must have helped Gracchus in the passage of his own law (as Appian implies).113 The fragments of Gracchus’ own speeches show him hostile to the notion of Roman governors and their staffs fleecing the provinces for their own gain.114 As E. Badian has argued, it was Gracchus who first “established the principle that the provinces of the Roman People were to be exploited for the benefit of the Roman People.”115 The Gracchan lex Acilia repetundarum, preserved in part on the Tabula Bembina, provides for the permanent extortion court to be administered for a first year by the peregrine praetor (as we have seen), and thereafter by a praetor repetundis, a different office.116 Though the title “praetor repetundis” is not found in the actual document, the elogium of C. Claudius Pulcher, praetor in 95, confirms that a praetor repetundis was in fact established, surely by this law.117 This praetor in charge of the repetundae court presumably administered the task for the whole year. He may have needed it—the Gracchan law stipulated that the praetor take a much more active role in each extortion proceeding than the peregrine praetor doubtless had under the old procedure of the lex Calpurnia.118 In the legis actio sacramento system, we can suppose the praetor merely defined the legal issue at the first stage of the proceedings, held in his court (“in iure”); he then left the actual decision and assessment of damages to a iudex or senatorial recuperatores, exercising only broad oversight. Gracchus’ law, however, enmeshed the praetor in the repetundae proceedings, very much in the interest of the plaintiffs. He also had general responsibility for the integrity of each trial.119
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The praetor was required to provide each complainant with a Roman patronus to plead for him in court, should he wish—and find a replacement should the first choice be repudiated. The praetor supervised the collection of evidence, ordered qualified witnesses to testify (imposing a fine, so it seems, on those who did not appear in court), and took responsibility for the safe custody of both witnesses and evidence. When conviction was reached in cases brought before 1 September, the praetor compelled the defendant to provide sureties to a quaestor; if they were not provided, the praetor was to confiscate and sell the convicted’s possessions. (A simpler procedure, however, seems to have been followed in cases which fell after the Kalends, in which the praetor was not responsible for expediting payment in this way.) Finally, it was the praetor who, after the assessment of damages by the jury, oversaw the payment to the plaintiff or plaintiffs, and publicized the sums awarded (restitution was now to be twofold); monies exacted from the convicted party were kept by a quaestor in baskets (fisci) marked with the name of the praetor who heard the case.120 This was of course in addition to the routine formal duties, most importantly, the selection of a panel of 450 suitable equestrian iudices at the beginning of each year, and ensuring their names were a matter of public record.121 The thoroughness of C. Gracchus’ reform is laudable—from a moral point of view. In its final form, Gracchus’ extortion law had removed a large part of the private nature of the quaestio repetundarum, especially the soft penalty of simple reparation. He also strengthened the authority of the extortion court by putting a stop to the practice of senators as iudices judging senators as defendants. The praetor was under obligation to choose the year’s panel of iudices, 450 in all, from a restricted class of individuals that excluded senators, their relatives, and those who had held minor magistracies.122 For a trial, the prosecutor chose from this panel one hundred men to serve as jurors, of which the defendant was to reject half. The fifty that remained were to pronounce the verdict in each case. The praetor—though the presiding magistrate in each trial—then was compelled to accept the finding of this body, which the law calls a consilium.123 This detail is particularly remarkable from a constitutional perspective. Never before, as far as we know, had a magistrate been legally required to abide by the decision of his consilium.124 We are perhaps justified in viewing this measure as an encroachment on the (originally near-absolute) imperium of the praetor. For our study, the real innovation of the Gracchan repetundae process was that it involved the praetor directly in all stages of the legal case, except of course for the actual decision, which he was obliged to take from his nonsenatorial consilium.125 But the introduction of a new praetorian jurisdiction raised considerable difficulties for the Roman administrative system. C. Gracchus, like his brother Tiberius in the case of Asia, had foisted upon the Republic a new praetorian province—this one absolutely demanding annual sortition—but with scant regard as to how it would be managed. The full effects of annexing Asia for permanent administration will hardly have shown themselves at the time of C. Gracchus’ law, for the first Roman praetor went there probably only in 125 (9.1.5). So, on the face of things, a further addition might not have seemed too problematic. As we have seen (5.1.2), it was not mos maiorum for a praetor to be prorogued in the urban or peregrine jurisdiction, for the very good reason that promagistrates
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lost their imperium once within the pomerium. City praetors, when prorogued, served in a provincia dissociated from that of the magistracy—probably even Q. Marcius Rex, pr. urb. 144, whose imperium was extended to bring a new aqueduct into Rome (8.6.2). This convention lasted through the Republic (as far as we can tell); the same principle no doubt extended to Gracchus’ new provincia (and later to the other statutory courts which sprung up). In any case, it is hard to imagine that a praetor would be prorogued to serve in the city for a second year in charge of a politically important court such as the standing quaestio repetundarum. One may note the case of C. Verres, who, upon learning of the election and allotment of M. Caecilius Metellus as praetor repetundis for 69, attempted to prolong his trial into that year.126 As it happens, there is no evidence (in our admittedly defective record) that a praetor (or later, an aedile or ex-aedile as iudex quaestionis) actually was extended into a second year to supervise a court in the Republic.127 We can be confident that it simply was not done. The handling of the praetorian urban and peregrine provinciae will have served as a powerful negative precedent in this, as will have the political realities of the day.128
9.3 The New Administrative System of 146 9.3.1 The Institutionalization of Prorogation We have seen (9.1.2) that the lex Calpurnia of 149 apparently attached a standing quaestio repetundarum to the jurisdiction of the peregrine praetor. We also find that a special quaestio, to be supervised by a praetor, was created inter sicarios for the year 142. The only reason we hear of this quaestio is because of the scandalous conduct of its president, L. Tubulus; there were surely other temporary courts from this period about which we hear nothing. Yet the supervision of these quaestiones— even the Calpurnian extortion court—is likely to have formed only part of a praetor’s duties, and not his entire jurisdiction, just as was the earlier practice with special quaestiones. As such, these particular courts would have only a modest effect on the prorogation of commanders in the territorial provinciae. The Senate’s decision to add Macedonia and Africa in 146 was a much different matter. Given the nature of our sources, it is not entirely surprising that we are left in the dark regarding the background to this important step. Although both the new provinciae of Macedonia and Africa were to receive (in principle) regular praetorian commanders, it was resolved not to increase the number of praetors. The immediate effect of this decision was that it became, for the first time since the partial repeal of the Baebian law (176 for 175?) (7.2.6), impossible for all the provinces to be governed by regular magistrates in their year of office: there were now eight praetorian provinces, counting the two city jurisdictions, but only six praetors.129 The Senate may have added new quaestorships to help mitigate the effects of its decision. But this is only a guess: we have no information on the general development of this office between ca. 267 (when the number was raised from four) and the year 81 (the Lex Cornelia de XX quaestoribus). Quaestors did not pose a political threat; they were not even a part of the Senate in the year 146 b.c.130 But the number of praetors was not raised, surely for the same reason they had been
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decreased under the lex Baebia. More praetors meant more competition at the top, for the consulship. The only way to keep ambitus in the consular elections within acceptable limits was to control the number of praetors. E. Badian was the first, so it seems, to emphasize properly the importance of the Senate’s nondecision of 146 and the effect of the creation of further provinciae.131 As Badian points out, the decision to add the two new provinciae of Macedonia/Achaea and Africa in 146 and not to increase the number of praetors marked, in effect, a new system of provincial administration. Routine prorogation for the commanders in Macedonia and Africa was needed to make the system of six praetors and eight provinciae work. Mommsen,132 with his usual perspicacity, had noticed that the Romans let the number of praetorian provinciae outstrip available praetors starting in 146. But he stopped short of recognizing that the Senate at this time made a conscious decision to institutionalize once and for all prorogation as a permanent and necessary feature of the res publica. 9.3.2 The Senate’s Confidence in the New System Once the number of provinciae outstripped that of holders of imperium, it would be difficult—given the inevitable, near-constant military emergencies Rome had to face in its large empire—to ensure regular (annual or biennial) succession of all commanders. By chance, one or both Spains would be declared consular in each of the years 145 to 133 (7.3.1), which freed up one praetorian lot in 145 and 143, and (significantly) two additional ones in all the other years. As such those sortes could be reassigned. Yet we know that the praetor M. Cosconius had to have an extended tenure in Macedonia in the mid-130s. He was in Macedonia by 135 (when he fought successfully against the Scordisci), and remained in the provincia at least until the time of the revolt of Aristonicus, which began in 133, a command of three years—at a minimum (9.1.3). The slave war that was raging in Sicily (with some effects felt even in Italy) during these very years (6.3.1) may partly explain Cosconius’ long command. Since he was obviously a capable general, the Senate simply kept him in place until it could afford to send out a successor. The fact that the Romans, after the annexation of Macedonia and Africa, soon went on to add even more praetorian provinces demonstrates the Senate’s confidence in this new system. However, the traditional one-to-one correlation between praetors and regular praetorian provinciae, removed in 146, soon became quite stretched. It is safe to say that the notion of making a quaestio into a praetorian province came only with C. Gracchus and his praetor repetundis. His reform of 122 brought the total of praetorian provinciae to ten (Sicily, Sardinia, the Spains, Macedonia/Achaea, Africa, and Asia, and three city jurisdictions). But there were still only six praetors. Gracchus’ reform placed great pressure on Rome’s administrative system, more than the simple arithmetic of praetors and provinciae reveals. I have argued above (9.2.2) that it was highly likely that all three city jurisdictions had to be placed in the annual praetorian sortition. If this was done without combination, there would be not quite enough room for each of the overseas provinciae to be allotted even
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once every other year, since only three sortes would be available to allot seven overseas praetorian provinciae. It is true that on occasion the Senate might combine the urban and peregrine jurisdictions. It also might declare a traditionally praetorian provincia as consular, thereby allowing that praetorian sors to be reallocated. On balance, however, this will not have relieved much—if any—of the administrative pressure. Accidents were bound to happen, and sometimes special praetorian provinciae needed to be declared.133 One wonders how Gracchus got the Senate to agree to the creation of a new praetorian provincia—especially a city one—in the first instance. Perhaps this is where his law on consular provinces (lex Sempronia de provinciis consularibus) comes in. This law (dated variously to 123 or 122) provided that the Senate select the consular provinciae for the following year before the consuls designate were elected; its choice was not to be liable to tribunician veto. The law remained on the books until the year 52 b.c.134 Cicero remarks on the irony that it was C. Gracchus, the archetypal popularis, who guaranteed that each year the Senate have absolute power of assigning the consular provinces—but gives no motive for this part of his legislation.135 It seems perfectly conceivable that it was a trade-off for the creation of the praetor repetundis. Whatever the case, Gracchus’ introduction of a new city praetorian provincia proved influential. As we shall see (10.4), other standing courts modeled on the extortion court were surely instituted between 122 and 82. Nor did the number of overseas territorial praetorian provinciae remain stable. The addition of Cilicia ca. 100 (10.1) placed further pressure on the already overextended Roman administrative system. But despite these accretions, no new praetorships were created.
9.4 The Staffing of the Praetorian Provinciae after 146 down to 122 How did the Romans make the post-146 system work? Once the Senate made the decision not to increase the number of praetors to match the number of praetorian provinciae, it had no option but to return to the administrative stopgaps employed in the Hannibalic period, a time when military and administrative needs constantly outstripped the number of commanders with imperium (then, two consuls and four praetors). These devices included combination of the two city jurisdictions (usually by the “mandatory process”) so as to free up the peregrine praetor; commands ex praetura for city praetors; prorogation (sometimes for long periods of time) of praetors in the noncity provinciae; and special grants of imperium to nonmagistrates. There had been a brief revival of some of these practices in the Third Macedonian War (171–168), when the two Spains were combined into one provincia; in the last of these years, the praetor inter peregrinos even surrendered his city jurisdiction at the beginning of the year to go to Illyria.136 But it was indeed a major step for the Senate of the mid-second century to institutionalize administrative practices which previously had been restricted, by and large, to acute military emergencies.
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9.4.1 Combination of Provinciae After 197, we can detect a marked reluctance to collapse the two city jurisdictions into one provincia. The Romans combined the urban and peregrine jurisdictions in two years of the Syrian War (191 and 189)137 and again in 184,138 but that is all for the “Livian” period. However, we cannot rule out the possibility that in the poorly attested years 166–122—especially after 146, when new pressures started mounting on the administrative system—the Romans occasionally were forced to combine the two traditional city provinciae. There is only one year in the later period 146–122 in which we can be certain the urban and peregrine jurisdictions were in fact not combined: in 139, when Cn. Cornelius Scipio Hispanus held the provincia peregrina.139 In addition, the office of the peregrine praetor is mentioned in the Gracchan repetundae law.140 But of course the peregrine jurisdiction could be allotted separately and then subsequently changed, and the praetor inter peregrinos sent elsewhere. Hispania Citerior and Ulterior are also likely candidates for combination. We have seen that the Spains were particularly prone to modification or omission in the sortition process in the three decades following 197, their institution as regular praetorian provinciae. Indeed, under the (shortlived) provisions of the Baebian law of 181, the Spains were to be allotted to praetors in only odd-numbered years; in the Third Macedonian War (171–167), the two became one provincia, “Hispania.” The Spains are positively known to have been held by two commanders in the war years 153–151 and 145–133. C. Vetilius, who was worsted by Viriathus in Lusitania (probably) in 147, and C. Plautius, who met the same fate in 146, are the only commanders known for Spain in those years—but that should be due only to the sketchy nature of our sources rather than the combination of the two Spains as one provincia. There recently had been a good deal of trouble in that theater, and there soon would be more to come: these praetors presumably received Hispania Ulterior, not both Spanish provinciae. But in the years after 133, when P. Scipio Aemilianus had reduced Numantia, it may well have been the case that “Hispania” at times was once again allotted as a single provincia (15.3.1). 9.4.2 Commands Ex Praetura We have to wait until the last quarter of the second century for the first certain attestation of a city praetor proceeding in the year after his magistracy to hold a command in a regular territorial provincia (13.3.1). It is unlikely that there was much need for such commands ex praetura before 122, the date when the third city jurisdiction was added. The first attestation of a command ex praetura for a city praetor is Pomponius Matho, pr. per. 216, and afterward pro praetore in Gaul 215–214. It seems to have been used only in emergencies, and even then rarely.141 One particularly interesting case is M. Valerius Falto, who must have been praetor inter peregrinos in 201, but (evidently) had surrendered his jurisdiction to the praetor urbanus and served in Bruttium. In 200, he was transferred to Sardinia with prorogued imperium to serve as sole commander in that provincia;142 this is the only occasion in the
General Developments in the Praetorship, 165–122 243
Hannibalic era when the ex praetura expedient was employed to provide a commander for a regular praetorian provincia. Prorogation of city praetors (in a noncity provincia) is rare in the “Livian” period after the introduction of six praetors for 197. There are two known instances: Ti. Claudius Nero, pr. per. 178, and prorogued (with consular imperium) at Pisa 177–176; and Cn. Sicinius, pr. per. 172, and prorogued into the next year in Macedonia (see Additional Note IX). There is good reason to think that in 144, C. Laelius (pr. 145) had gone to Citerior after having served for a year in a city jurisdiction (in which case at the moment of his appointment he must have been a privatus) or a territorial provincia outside Spain (see 7.3.1 and 9.4.4). However, in the next year, Q. Marcius Rex, pr. urb. 144, was prorogued—surely in a different (special) provincia—in order to complete a special task relating to the city’s water supply (5.1.2 with 8.6.2). This should be considered a secure instance of an ex praetura command.
9.4.3 Repeated Prorogation in Noncity Provinciae In the crisis of the years 218 down to 197, when there were only four praetors, the Senate regularly acquiesced in long praetorian commands (and, to a lesser extent, consular commands) in order to ensure that there were enough magistrates with imperium to cover all theaters of operations. To elucidate the Senate’s policy of prorogation, we must leave out of consideration “automatic” prorogation, and retention of imperium to triumph early in the year after the magistracy.143 Keeping this caveat in mind, it still appears that commands of four (or more) years were not unusual in the emergencies of the Hannibalic War and the First and Second Macedonian Wars. There are ten men from this period who are known to have held four or more years of imperium resulting from a single praetorian command,144 and five instances from a single consular command.145 The Senate went to great lengths to avoid commands of more than two years in the period 200–166. Long praetorian commands virtually disappear in the “Livian” period after the creation of six praetors for 197. There are 111 men in the period 197–167 who received a noncity provincia in the sortition and whose length of command can be determined. The Senate did not extend a full three-quarters of these praetors beyond their year of office; a modest 20 percent (22 men) held their provincia for a second full year;146 and just 5 men (not quite 5 percent of the total) had their commands prolonged for a second year beyond their magistracy.147 Consuls in the period 197–166 also were rarely extended for more than one year beyond their magistracy.148 However, T. Quinctius Flamininus (cos. 198) and his brother Lucius (pr. 199) were repeatedly prorogued—Titus for five and Lucius for six consecutive years—even though the number of praetors had been increased for 197. It is significant that the Senate decided to waive administrative principles (even at the very beginning of the new system) rather than replace this successful combination. Other than this clearly exceptional case, the Senate voted to prorogue only one praetorian commander as much as three times, allowing him to hold imperium for four consecutive years.149 This goes some way toward confirming a principle articulated by J. A. North:
244 The Praetorship in the Roman Republic The function of the system [of prorogation in the Middle Republic], whether consciously worked out and planned or not, was to make sure that office, provinces, the opportunities of laus and gloria, were none of them monopolized by particular individuals or particular families. . . . [I]t must have been far more important to all factions to keep a regular flow of opportunities and profits, than to attempt to exclude rivals from command.150
The policy of limited prorogation which the Senate observed in the period 197–166 had to be modified after the addition of Macedonia and Africa as praetorian provinciae in 146. Since the number of praetors was maintained at six, even though the number of praetorian provinciae was now eight, regular prorogation of praetors in some overseas commands was now necessarily part of the actual administrative system. The situation would be exacerbated with the later gradual addition of more provinciae but no new praetors. Simple calculations show that as more provinciae were created, praetors would be detained in their commands for longer periods of time. However, it is almost impossible to divine from the patchy evidence of the third quarter of the second century which provinciae were particularly affected, the frequency of prorogation, and the length of praetorian commands. The fact that praetorian commanders dispatched to the Spains, Macedonia, and Asia (and, by the end of the century, Cilicia) were sent out with enhanced imperium complicates matters further. It is of course impossible to tell from the title pro consule whether an individual was in the actual year of his magistracy, or whether he had been prorogued (any number of times). All the same, it appears that a threeyear tenure was entirely possible. Such is the term attested for M. Cosconius, pr. ca. 135 (see above), before the period when one would expect these effects: only two regular praetors had to go to the Spains in the years 145 through 133, a situation which will have eased pressure in the other praetorian provinciae.151 There is somewhat more evidence on the length of consular commands. A combination of the consular Fasti and triumphal Fasti at first glance seems to show that commands of two or more years are common in this period. But, as noted above, we must allow for the fact that the lower date, posited by the Fasti triumphales, may not actually represent a full year in a provincia (the exact date on which an individual triumphed is preserved in only half the entries). Many of the apparent two-year commands may in fact involve only one extra year in the provincia (plus “automatic” prorogation until one’s successor should arrive, which must be excluded in this reckoning). “Automatic” prorogation would keep a consul in his provincia until a month or so after the feriae Latinae of the next year, so one would not be back in Rome until May at the earliest, perhaps later (depending in large part on where the provincia was). The Senate’s management of the two Spanish provinciae during the hard fighting of the latter half of the 140s and 130s (7.3.1) shows nicely its wish in this era to put a lid on prorogation—and the limits of that policy. For a full six-year stretch (142 through 137), we find a command structure in which a consul is paired with a prorogued consul, with Citerior assigned anew in odd-numbered years, Ulterior in even-numbered years, and routine prorogation of each consul for (only) one year. However the disastrous command of the consul C. Hostilius Mancinus in 137 upset
General Developments in the Praetorship, 165–122 245
that patient approach. In Citerior, the Senate started superseding unsuccessful commanders immediately (Mancinus in mid-year, and three other consuls at the end of their magistracy), and eventually allowed the cos. 147 P. Cornelius Scipio Aemilianus to iterate for 134, proroguing him until he finished the war in that provincia. Meanwhile, the Senate kept D. Iunius Brutus, who was successful as cos. 138 and later pro cos. in Hispania Ulterior, in his province perhaps down to 133 or even 132, a command of five or five and one-half years. Somewhat analogous is the war against Aristonicus. There we find the series P. Licinius Crassus Mucianus, cos. 131; M. Perperna, cos. 130 (sent before Crassus’ death);152 but then M.’ Aquillius, cos. 129, who kept his imperium for three and one-half years in all (albeit in large part to organize Asia as a Roman province). Not long afterward, there is a certain five-year consular command: L. Aurelius Orestes (cos. 126), who triumphed in December 122 from Sardinia (see 6.3). Other tenures of a comparable length were soon to follow (15.3.2). It stands to reason that few (if any) of these men will have wanted another consul or praetor to replace them before they had achieved the requisites for a triumph. Nevertheless, it is difficult to believe that it took Orestes all that time to meet the requirements for a triumph in his provincia. His long stay in Sardinia must have been affected by the shortage of commanders to cover all the provinciae. Note in this connection the Gallic commands of M. Fulvius Flaccus, cos. 125 (triumphed 123), C. Sextius Calvinus, cos. 124 (triumphed 122), Cn. Domitius Ahenobarbus, cos. 122 (triumphed 120), and Q. Fabius Maximus Allobrogicus, cos. 121 (triumphed 120) (10.2.2), each of them prorogued at least once. Outside of the Spains, it is difficult to ascertain from our quite fragmentary record in what circumstances the principle of annual succession was employed by the Senate in the third quarter of the second century. Practical sense would suggest that unsuccessful consuls and praetors received a successor as soon as possible in a noncity provincia and that successful commanders were retained, except in the case of certain very high-profile wars (where there would be a great deal of pressure from the consuls of the year for the veteran commanders to be recalled). This “practical” policy seems to find confirmation in the actual record, but it must be stressed that we simply do not have enough information to draw any valid conclusions regarding annual succession. 9.4.4 Special Praetorian Commands Given to Privati In the Hannibalic period, privati were sent out to hold commands in territorial provinciae in Sicily and Sardinia (both in 215) (6.1.2 and 6.1.4), the Spains (218–198) (7.1.1–6) and Greece (206–205) (Additional Note XII). But this practice virtually disappeared in the period 197–166: the only instances known are L. Oppius Salinator in 192 and Cn. Sicinius in 173 (8.3.1 and 8.5.1). There are only three possible special commands reported in the period after Livy fails us down to 122, two (apparently) granted at the same time in the same year. The first concerns C. Laelius, pr. 145, and sent with imperium to hold Hispania Citerior for 144 (7.3.1). The second and third examples fall in 133. In that year, Q. (Caecilius) Metellus (Macedonicus) (cos. 143) and Cn. Servilius Caepio (cos. 141) seem to have received a special grant
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of (praetorian?) imperium to put down slave revolts at Sinuessa and Minturnae (8.6.2). Praetors either were not available or were not wanted. Once the Senate decided to make use of privati, we can readily understand why it employed two relatively senior consulars, rather than praetorii. The slave revolt in Sicily—where in any case praetors up to this point had not fared too well (6.3.1)—was still blazing, indeed now spreading to the eastern Aegean as well as the Italian mainland. At the time, the danger must have seemed exceptionally great. The dispatch of two accomplished military men would send a strong signal to any slaves who were contemplating joining the incipient rebellion in Italy. It also was surely meant to reduce panic among Rome’s citizens and allies. There may have been other special commands in the field during this general period: we have seen (9.1.5) that P. Cornelius Scipio Aemilianus tried to obtain one to fight Aristonicus in 131. However, it seems unlikely that before the Social War administrative demands ever became pressing enough to necessitate widespread use of this expedient. Consuls seem to have continued to delegate imperium to privati in the field in the years following 166. Only one instance is known for the period 165–122, not entirely surprisingly, since we have no continuous, detailed source for these years where we might expect a possibly routine administrative practice to be reported. An inscription (now lost, except for a handwritten copy) records that M.’ Aquillius (cos. 129 and pro cos. down to 126 in Asia) left Cn. Domitius Cn.f.—to be identified with Ahenobarbus, the future cos. 122—as pro praetore (ajntistravthgo~) in the territory of Bargylia in southwestern Caria, entrusting to him some of the Roman army and a majority of the allied force, before himself setting out to the mountain region of Abbaitis (between Mysia and Phrygia).153 Further examples of delegation show up shortly after this period (15.1.3, in Sallust’s Bellum Jugurthinum), suggesting that it had been practiced all along—just as in the well-attested Hannibalic period. We cannot tell precisely when the development of delegation of imperium by a praetor pro consule came into effect. No such grants are recorded for the praetors sent to the Spains with enhanced imperium, even for the years where we have Livy. Nor (apparently) do they appear in Macedonia for our period. When the quaestor L. Tremelius Scrofa scored a victory over the Macedonian pretender “Philip” in (probably) 142, there is no hint that this quaestor was left pro praetore by the praetor Licinius Nerva, who seems to have been protecting the northern frontier of his provincia at the time (9.1.3). (Naturally, the imperatorial acclamation for this success went to his superior officer: the quaestor would not be fighting suo exercitu and, even if pro praetore, probably not under his own auspices.) Our first datable cases of a praetor with enhanced imperium making a subordinate pro praetore come only in the last decade and a half of the second century (15.3.4). Before grants of consular imperium to praetors became more generalized (i.e., before ca. 125, when praetors started going out to Asia), it might not have been recognized as acceptable for praetorian commanders pro consulibus to perform delegation.
Notes to Volume I
Chapter 1 1. In this study I call these praetors—who each had official duties in Rome—“city praetors.” There is some ancient justification for this usage (see 5 n. 10 with text on “duae urbanae provinciae”). I use the same terminology for the praetors who supervised the various criminal courts. 2. Plb. 4.2.3. 3. For the concept of the “hourglass,” see E. Badian in T. A. Dorey (ed.), The Latin Historians (London 1966) 3, 11f; also E. Meyer, RhM 37 (1882) 615–616, and J. Vansina, Oral Tradition as History (Madison, Wis. 1985) 23–24, 168–169. 4. D.H. 1.6.2, noting that the early annalists Q. Fabius Pictor and L. Cincius Alimentus treated events after the foundation of the city down to their own day only in summary fashion. For a brief overview of the problem, see T. P. Wiseman, Clio’s Cosmetics (Leicester 1979) 9f; R. Develin in K. A. Raaflaub (ed.), Social Struggles in Archaic Rome (Berkeley 1986) 329–334; cf. also the wideranging survey of S. P. Oakley, A Commentary on Livy Books VI–X, vol. I, Introduction and Book VI (Oxford 1997) 21–108, esp. 72–75. 5. Cato HRR I2 F 77. 6. Thus T. J. Cornell in K. A. Raaflaub (ed.), Social Struggles in Archaic Rome 52–76, and The Beginnings of Rome (London 1995) 12–16; E. Badian in W. Eder (ed.), Staat und Staatlichkeit (Stuttgart 1990) 215–217; cf. C. Ampolo in E. Gabba (ed.), Tria Corda: Scritti in onore di A. Momigliano (Como 1983) 9–26 (esp. 12f) and J.-C. Richard, MEFRA 97 (1985) 751–752 for documents surviving the Gallic sack. Many scholars have been deeply pessimistic about the reliability of the early annalistic record. For a comprehensive survey of attitudes (up to 1978), see R. T. Ridley, Athenaeum 58 (1980) 264–298 (though I cannot accept his statement at 275 and 297 that Pais “proved” there were no official Fasti in the Republic); after 1978, cf. J. Rüpke, Klio 75 (1993) 155–179 (himself arguing that pontifical publication of contemporary material starts only ca. 249) and 77 (1995) 184–202 (more deep skepticism). At any rate, the consular Fasti from 366 on are generally acknowledged to be reliable. For the tabula itself, see the exhaustive study of G. Bucher, AJAH 12 (1987) [1995] 2–61, esp. 31–34 with 38, where he argues that the physical circumstances surrounding its compilation and display significantly limited its usefulness as a reliable historical record.
247
248 Notes to Chapter One 7. It would be surprising if dictators “rei gerundae caussa” were also regularly listed in the tabula, in view of the confusion over “dictator years” and the like in the later record: see E. Badian in W. Eder (ed.), Staat und Staatlichkeit 216; also 2.2 below. 8. Cf. A. E. Astin, Historia 31 (1982) 177, for the counting of lustra in the Capitoline Fasti. 9. See S. P. Oakley, Commentary I 51 n. 121 (even more optimistic). 10. E. Badian in W. Eder (ed.), Staat und Staatlichkeit 216; also S. P. Oakley, Commentary I 34. 11. Liv. 8.40.4–5; cf. also Cic. Brut. 62. 12. On this last point, see E. Gabba, Athenaeum 67 (1989) 570–575 (esp. 574, casting doubts on a large part of legislation ascribed to the latter half of the fourth century). 13. On the interests of the antiquarians, see K. A. Raaflaub in Raaflaub (ed.), Social Struggles in Archaic Rome 23f. On their (dubious) reliability in interpreting what they found, see the discussion of C. Ampolo in Tria Corda 19–26; E. Badian in W. Eder (ed.), Staat und Staatlichkeit 216. 14. On this subject, see T. P. Wiseman, Clio’s Cosmetics passim, esp. 24f, 122–125. 15. On the two late sources that purport to present a short history of the praetorship— the epitomator of Pomponius in the Digest (1.2.2.27–28, 32) and Ioannes Lydus—see 3.1.2–3 below. 16. Plb. 6.11–18 (the “mixed” constitution), 19–42 (the Roman military system), 43–56 (comparison with other states, especially Carthage, with a digression on Roman funerals), 57 (conclusion); see esp. 11.3–8 for Polybius’ defensive explanation of his deliberate omissions. It is interesting to observe that Polybius rarely mentions praetors by name, even where we might expect him to have had the information (see esp. 2.23.5 and 24.6, 3.40.14; and cf. 1.60.4–61.8, ignoring the praetor who actually won this battle, and 3.40.9, where his reticence extends to praetorii). But it seems he makes an exception for friends (36.5.8–9, with which cf. 31.23.5) and enemies (see 33.1.5–8, with 39.1.1–12). 17. See Mommsen, St.-R. III 414 n. 3; T. C. Brennan, Athenaeum 67 (1989) 473 n. 32. 18. In T. A. Dorey (ed.), Livy (London 1971) 59. 19. Quotations from Linderski in W. Eder (ed.), Staat und Staatlichkeit 88, and Roman Questions: Selected Papers (Stuttgart 1995) 613. 20. See, e.g., Linderski’s masterly commentary on Livy’s description of the inauguration of Numa (1.18.6–10), in ANRW II 16.3 (1986) 2256–2296. 21. Cf. J. Linderski, Roman Questions 511 (the senatus consulta were collected in a published commentarius, going back to at least 146, with each book presumably covering one consular year); E. Badian in J. Bibauw (ed.), Hommages à M. Renard I (Brussels 1969) 63–64; also R. Sherk, RDGE pp. 7–10. For Livy and the S.C. de Bacchanalibus, see ILLRP 511 with Liv. 39.14.5–10, 17.4 and 18.8–9, and M. Gelzer, Kleine Schriften (Wiesbaden 1962–1964) III 256–269. 22. In general, see the remarks of A. E. Astin in C. Deroux (ed.), Studies in Latin Literature and Roman History IV (Brussels 1986) 122–134, esp. 126–128; many of his observations on Livy’s ultimate sources for the censorship can also be applied to the praetorship (though in our case, the annales of the pontifex maximus are not relevant). 23. Mommsen, St.-R. III 942; see also the discussion of W. V. Harris, War and Imperialism in Republican Rome, 327–70 B.C. (Oxford 1979) 6–7 and 255. 24. See M. Gelzer, Kleine Schriften III 275, on Liv. 42.14.1, one apparent exception to this rule. 25. For example, Livy gives no background, biographical or otherwise, to the debate whether T. Quinctius Flamininus should be allowed to stand for the consulship of 198 ex quaestura (see 7.2.4 below). The heated public debate between the senior consular M.
Notes to Chapter One
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Servilius Pulex Geminus (cos. 202) and (M.) Pinarius Rusca over a lex annalis (7.2.5) was available to Cicero, no doubt via an annalist, and thus to Livy as well; yet Livy pays no attention to what Cicero (De Orat. 2.261) describes as a vociferous row. 26. For instance, there is the troublesome fact that the manuscripts of Livy cannot be trusted to distinguish between M. and M.’: see T. C. Brennan, Athenaeum 67 (1989) 475 n. 40. 27. Codex Vindobonensis Lat. 15, best observed in the edition of C. Giarratano, Titi Livi Ab Urbe Condita Libri XLI–XLV2 (Rome 1937); see also J. Briscoe’s Teubner text of Livy 41–45 (Stuttgart 1986). A lacuna in the text after 41.18 makes it difficult for us to ascertain even the number of praetors elected for 175. Almost all the details of the elections for 174 are swallowed in the lacuna before 41.21 (the identity of the pr. urb. for that year cannot be reconstructed with certainty). Another lacuna after 43.3 leaves us somewhat in the dark about the choice of praetors and their provinciae for 170. 28. The latter are collected in T. R. S. Broughton, Candidates Defeated in Roman Elections (Philadelphia 1991). 29. Here I will register just some examples of the less expected denotations. Strathgov~ meaning “consul”: see M. Holleaux, Études d’epigraphie et d’histoire II (Paris 1938) 179–198 (cos. 129 in Asia); I. Cret. 3.4.9 lines 20 and 87 (cos. 112). Also Plu. Gracch. 25.2 (cos. 132), and 23.2, 5 and 9 (a cos. 126 in Sardinia); Mar. 11.13 (coss. who fought against the Cimbri after 113); Str. 4.1.13 p. 188 (cos. 106 in Transalpine Gaul); Plu. Sert. 3.5 and Crass. 6.1 (coss. 98 and 97 in the Spains); App. Mith. 90.411 (cos. 67 in Asia). (Strathgov~ in the sense of “prorogued consul” is very common.) “Quaestor”: Plu. Sert. 21.2 (q. in Spain 75). “Legatus”: Plu. Sull. 6.9 (leg. in 89); D.S. 37.2.10 (leg. in 88); App. BC 1.108.508 (leg. in Italy 77) and Mith. 88.400 (leg. ca. 68 B.C. in Asia), Plu. Pomp. 29.2 (leg. 67 in Crete), Jos. BJ 1.143 (leg. in Judaea 63; contrast AJ 14.59). See further in particular 10.5.6–7 for some instances of motley individuals who get the common label strathgoiv. 30. St.-R. II3 193–238. A comparatively small portion of G. Wesenberg’s 1954 article in Pauly-Wissowa (RE s.v. praetor cols. 1581–1605) is concerned with the nonlegal aspects of the actual Republican praetorship (cols. 1587–1593), and even there he makes little attempt to trace the development of the office. Wesenberg rather concentrates on a speculative reconstruction of the pre-366 origins of the magistracy (cols. 1582–1587, but see n. 93 below) and the praetor’s jurisdiction in the city (cols. 1593–1599). R. L. Stewart, Sors et Provincia: Praetors and Quaestors in Republican Rome (diss. Duke 1987), places an unacceptable emphasis on the importance of the sortition process in defining the powers of this magistracy. (The revision of this dissertation, published as Public Office in Early Rome: Ritual Procedure and Political Practice [Ann Arbor 1998], came into my hands only after this book was submitted to the Press; the basic argument—and my objection—remains the same.) W. Kunkel, Staatsordnung und Staatspraxis der römischen Republik (Munich 1995), collects much valuable material on the praetorship, but offers no separate sketch of the magistracy (as he does for others), instead entwining it with three other “Obermagistraturen”—the consulship, dictatorship, and the office of the master of the horse—and a wide variety of other issues, such as procedure in the Senate (293–390). 31. St.-R. I3 22–24 (imperium); 90 (imperium and auspicium overlapping concepts); 382 n. 1 (the king’s fasces); 76–116 (auspicia; see esp. 76, 88–90 and, for the “Kriegsauspicien,” 99 n. 5). 32. See Römische Geschichte I7 (Berlin 1881) 287 n. (best general formulation of imperium); also St.-R. I3 22–24; 61–65 (division domi/militiae, esp. 64 n. 6 on the finis auspicii urbani); 94 (no possibility of conflict of imperium and auspicia); 214 (auxiliaries); II3 10–12 (the king’s power in general); 180 (right to lend fasces); cf. 616 with n. 1 (king’s naming of mandataries).
250 Notes to Chapter One 33. Untersuchungen über römische Verfassung und Geschichte I (Cassel 1839) 62f, 82–96, 345. 34. St.-R. I3 90–91; 98 n. 2 (the first interrex did not hold the comitia, citing Asc. p. 43 C and Schol. Bob. p. 116 St.); 647–661, esp. 654–656. For a lucid description of the position of the first interrex, see A. Magdelain in M. Renard and R. Schilling (eds.), Hommages à J. Bayet (Brussels 1964) 427–473, at 433–434 = Jus Imperium Auctoritas (Rome 1990) 346–347. 35. Rep. 2.25; cf. the clear exposition of the two-part process at 31 “Tullum Hostilium populus regem interrege rogante comitiis curiatis creavit, isque de imperio suo . . . populum consuluit curiatim”; also 33, 35. 36. St.-R. I3 609–610. 37. St.-R. II3 74, 79. 38. Tab. III 5 (= Gel. 20.1.47); VIII 9 (= Plin. Nat. 18.12); VIII 14 (= Gel. 11.18.8); cf. XII 3 (= Fest. s.v. vindiciae p. 518 L). 39. Following the ancient view: see Var. L. 5.80; 87; cf. also Varro ap. Non. s.v. consulum p. 35 L with St.-R. II3 74 n. 2. The consul presumably preceded his troops when leading them out of the city, and continued to do so on the march, as a point of dignitas. 40. Mommsen, St.-R. II3 74–79, pointing out (78) that the terminus ante quem for the introduction of the title “consul” is 268, and that the addition of a third “praetor” in 367 is the most likely date for the change. 41. St.-R. I3 609–615; II3 10f and 93 with n. 3. 42. St.-R. I3 212–215. 43. On collegiality, see St.-R. I3 27–44, esp. 28f; 258–266; II3 89. For the one-year term, see II3 82. 44. St.-R. III 351–354 (with cross-references) for provocatio (cf. also Römisches Strafrecht (Leipzig 1899) 151–174); I3 37–41 (esp. 39) for the rotation of fasces in the city; 48 and 95–96 for rotation of auspicia in the field. On the auspicia and imperium of the consul without fasces as “dormant” (the formulation is that of J. Linderski), see 2.2.2 below. Soon (after 494) the powers of the tribunes would encroach further on the consuls’ exercise of imperium in the urbs (St.-R. I3 26 n. 1; 271–291; II3 290–293). 45. St.-R. I3 66–71, esp. 68 n. 6 on the axes. 46. E. S. Staveley, Historia 5 (1956) 74–122, has usefully summarized some of the most important views on the Republican magistracies and their powers which emerged in a particularly energetic period of speculation; cf. also Historia 12 (1963) 458–484. G. Valditara, in his Studi sul magister populi dagli ausiliari militari del rex ai primi magistrati repubblicani (Milan 1989), collects a tremendous amount of secondary literature on many of the topics I discuss here (but offers no subject index and no general bibliography). W. Eder (ed.), Staat und Staatlichkeit 562–586, provides a reasonably comprehensive list of important works relevant to the monarchy and early Republic. Also useful is the brief survey of J. Rüpke, Domi militiae (Stuttgart 1990) 41–51. In this area, we should expect most hypotheses to be unsuccessful: cf. the comments of K. A. Raaflaub in Raaflaub (ed.), Social Struggles in Archaic Rome 24 n. 57. 47. A. Heuss, “Zur Entwicklung des Imperiums der römischen Oberbeamten,” ZRG 64 (1944) 57–133; J. Bleicken, Zum Begriff der römischen Amtsgewalt: Auspicium—Potestas— Imperium (Göttingen 1981), esp. 21, 23, 41; cf. also Bleicken’s Die Verfassung der römischen Republik. Grundlagen und Entwicklung (Paderborn 1975) 80 and 83 (military origin of imperium); A. Heuss, Gedanken und Vermutungen zur frühen römischen Regierungsgewalt (Göttingen 1982); see esp. 3–7, 44–47, 72–76 (“auspicium” identical with magisterial power); O. Behrends in O. Behrends and C. Link (eds.), Zum römischen und neuzeitlichen Gesetzesbegriff (Göttingen 1987) 34–122, esp. 72–75 (imperium a purely legal construct,
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which developed only toward the end of the third century under the influence of Greek constitutional thought!). 48. In V. Arangio-Ruiz et al. (eds.), Studi in memoria di E. Albertario I (Milan 1953) 399–432; cf. also P. De Francisci, Arcana Imperii III 1 (Milan 1948) 3–59, esp. 29–40. 49. “Regnum,” SDHI 17 (1951) 1–168 = Scritti di diritto romano I (Milan 1973) 321–483. 50. Coli provides an impressive roster at Scritti di diritto romano I 328 n. 21. 51. E.g., P. M. Martin, L’idée de royauté à Rome I: De la Rome royale au consensus républicain (Clermont-Ferrand 1982) 290, who takes it for granted. 52. ANRW II 16.3 (1986) 2147–2312. For a short overview of the sources for the augural law, see Linderski in W. Eder (ed.), Staat und Staatlichkeit 88. 53. Especially Roman Questions nos. 48–51, 55–56. For an appreciation of this volume, see T. C. Brennan, BMCRev 8.2 (1997) 151–158. 54. Cic. Brut. 13.4 [= 1.5.4] “dum enim unus erit patricius magistratus, auspicia ad patres redire non possunt”; also Leg. 3.9 (in an interregnum) “auspicia patrum sunto.” Cf. Dom. 38; also Liv. 1.32.1 “res . . . ad patres redierat” and 8.17.4 “res ad interregnum rediit.” 55. Liv. 6.5.6 “ut renovarentur auspicia res ad interregnum rediit”; see also 5.31.7 (“placuit per interregnum renovari auspicia”) and 52.9 (“auspiciorum . . . renovatio”). 56. On the patres, see the helpful bibliography A. Momigliano provides in K. A. Raaflaub (ed.), Social Struggles in Archaic Rome 193–194, with Raaflaub’s appendix at 194–197. 57. P. Catalano, Contributi allo studio del diritto augurale I (Turin 1960) 454–460; see text below in this section for the impossibility of this view. 58. Gedanken und Vermutungen, esp. 23, 44–47. See also S. Mazzarino, Dalla monarchia allo stato repubblicano (Catania 1945) 218; U. Coli, Scritti di diritto romano I 414–416 (auspicia publica populi Romani a Republican invention, derived from the auspicia privata of the patres); A. Giovannini, Consulare Imperium (Basel 1983) 53, and also (more strongly) in W. Eder (ed.), Staat und Staatlichkeit 406–436, esp. 415–417, 430–431 (cf. also his comments at 84). J. Bleicken, Zum Begriff der römischen Amtsgewalt, is more tentative in ascribing actual “ownership” of the auspices to the patres (but note p. 9, where he thinks they actually made that claim). 59. J. Linderski in W. Eder (ed.), Staat und Staatlichkeit 476–477. 60. In Hommages à J. Bayet 427–473 = Jus Imperium Auctoritas 341–383. 61. Noticed long ago by P. Willems (Le Sénat de la république romaine: Sa composition et ses attributions [Louvain 1883] II 14 and 16), leading him to suggest that interreges were drawn only from “senatores curules patricii.” In the years 53 and 52, we find as interreges two praetorii and a possible aedilicius (MRR II 229, 236–237). The interrex of 53, Q. Caecilius Metellus Pius Scipio Nasica (pr. 55, and later cos. 52), was not a plebeian, as has been often supposed: see J. Linderski in J. Linderski (ed.), Imperium Sine Fine: T. Robert S. Broughton and the Roman Republic (Stuttgart 1996) 148–154. 62. In W. Eder (ed.), Staat und Staatlichkeit 39. 63. When the Senate was called into the curia, the phrase (in its full form “qui patres, qui conscripti”—see Fest. p. 304 L; cf. Liv. 2.1.11 “qui patres quique conscripti” with R. M. Ogilvie, A Commentary on Livy Books 1–5 [Oxford 1965] 236) should mean “those who are patres, those (of them) who are enrolled.” That defines exactly the composition of the original (patrician) Senate. Magdelain’s notion ultimately goes all the way back to the antiquarians, and is shared by many modern scholars. See the survey in J.-C. Richard, MEFRA 97 [1985] 756–763, with Richard himself holding this view; also T. J. Cornell, who argues that the early Senate was not an exclusively patrician body, subsumes Festus’ formulation under that of Livy and then builds his argument on top of that (The Beginnings of Rome: Italy and
252 Notes to Chapter One Rome from the Bronze Age to the Punic Wars [c. 1000–264 B.C.] [London 1995] 245–251, esp. 247 with 445 n. 18). 64. Asconius (p. 33 C) says of the first interrex of the year 52, M. Aemilius Lepidus, “is . . . magistratus curulis creatus.” Asconius here must be referring not to the office of interrex (which incidentally is omitted from virtually all of the official lists of magistrates we have—cf. Mommsen, St.-R. I3 562 n. 2), but to the qualification for it (cf. MRR II 228, III 7). 65. He cannot have been magister equitum in 362, as A. Magdelain suggests (Jus Imperium Auctoritas 341 n. 4, following P. Willems, Sénat I 90 n. 4); the man who held that post was a Cornelius Scapula (see MRR I 118 with III 70). 66. In general on the interregna of these two years, see J. Jahn, Interregnum und Wahldiktatur (Kallmünz 1970) 172–181. 67. St.-R. I3 654, III 1037–1038 (esp. 1038 n. 2). The patrum auctoritas does not enter into our study, since it was substantially limited in its effectiveness as a tool of control by a lex Publilia of 339, followed by a lex Maenia (after 292?): see the discussion of K.-J. Hölkeskamp, Die Entstehung der Nobilität: Studien zur sozialen und politischen Geschichte der römischen Republik im 4. Jhdt. v. Chr. (Stuttgart 1987) 110–113, with full citation of earlier literature. 68. See Mommsen, St.-R. I3 18 for magistratus patricii and plebeii. 69. In W. Eder (ed.), Staat und Staatlichkeit 84–85 (stressing that we know nothing of the actual ceremony of renovatio auspiciorum). But for a modified view, where E. Badian argues for the possibility of special plebeian public auspices, see J. Linderski (ed.), Imperium Sine Fine 197–202. 70. Liv. 6.41.4–12, with J. Linderski, Roman Questions 560–569; the quote is from 41. See also E. Badian in W. Eder (ed.), Staat und Staatlichkeit 84–85. The plebeian public auspices existed only within plebeian institutions; but after the lex Hortensia of 287, they were valid, in plebiscites, for the entire People. 71. K. A. Raaflaub in Raaflaub (ed.), Social Struggles in Archaic Rome 198–243 (the last stage, which featured demands for full political integration, provided the model for the entire conflict). 72. Thus J.-C. Richard, Historia 28 (1979) 65–75; see also 3.3.2 below. 73. J. Linderski, Roman Questions 567–569. On the unsuccessful attempt to have two plebeian consuls for 215, see Linderski, ANRW II 16.3 (1986) 2168–2173. 74. J. Bleicken, Zum Begriff der römischen Amtsgewalt 15 n. 37, provides an adequate bibliography of approaches to the problem. 75. St.-R. I3 609–610; cf., e.g., U. Coli, Scritti di diritto romano I 363, 480–482. 76. Agr. 2.27 “comitia . . . curiata tantum auspiciorum causa remanserunt”; 31 “comitiis . . . per XXX lictores auspiciorum causa adumbratis.” 77. Agr. 2.30 “consuli, si legem curiatam non habet, attingere rem militarem non licet”; see also Liv. 5.52.16 “comitia curiata, quae rem militarem continent.” 78. Rep. 2.25, 31, 33, 38. 79. See Att. 4.17 (18).2 (1 October 54); cf. 4.15.7. For the chronology of events in these (and related) letters, see E. Hermon, Ktèma 7 (1982) 304f. Pulcher ended up going to the provincia without it: Fam. 1.9.25 with Q. fr. 3.2.3 and Att. 4.18.4. 80. D.C. 41.43.1–4; cf. P. Catalano, Contributi I 265–265 and 424 with n. 125. 81. As has been supposed, e.g., W. W. How in W. W. How and A. C. Clark (eds.), Cicero: Select Letters II (Oxford 1926) 235; P. Catalano, Contributi I 424. Dio’s point here about the absence of this law should be interpreted to mean that, in general, the consuls’ military auspices (the only ones relevant in Thessalonica) were not in order. The lex curiata had nothing to do with the ability to convene the Centuriate Assembly for elections, as
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the example of the interrex (who is not known to have had a law passed in his favor) goes to show. 82. D.C. 39.19.3. This statement (often doubted) is accepted by P. Catalano, Contributi I 425 n. 126, 470 n. 104. 83. Agr. 2.26, tendentiously explaining it as “a double vote,” in case the People should change its mind about bestowing its beneficium. (He is playing to his audience here.) On this passage, see also P. Catalano, Contributi I 469f. 84. Ann. 11.22.4. 85. Gel. 13.15.4. On Messalla’s tenure of the augurate (55 years), see especially Macr. 1.9.14. 86. For a defense of the text, see J. J. Nicholls, AJPh 88 (1967) 271–274; cf. A. Magdelain, Recherches sur l’Imperium (Paris 1968) 12–17. Here “creatis” must have present passive meaning, as is not uncommon in Augustan Latin (see R. Kühner, C. Stegmann, and A. Thierfelder, Ausführliche Grammatik der lateinischen Sprache I3 [Leverkusen 1955] 758). R. Develin (Mnemosyne 30 [1977] 51–52, 60–61) also supports the text as given, postulating that there were two types of curiate laws for magistrates. One was given to all magistrates, and made a magistracy “iustus”; another dealt with the departure of a magistrate for the field. Develin’s hypothesis however rests on his own interpretation of a difference between auspicium and auspicia, which has no basis in fact (as I hope to show elsewhere). 87. Some scholars have tried emendation: U. von Lübtow, ZRG 69 (1952) 154–171, at 169; K. Latte, NGG Philol.-hist. Kl. Altertumswiss. 1934–1936 61. Cf. J. Bleicken, Zum Begriff der römischen Amtsgewalt 15–21, esp. 19 with n. 50 (using emendation to deny the lex curiata to non-military magistrates). 88. E. Badian in W. Eder (ed.), Staat und Staatlichkeit 467; cf. E. S. Staveley, Historia 5 (1956) 88–90 (but arguing unconvincingly that the lex curiata made the magistrate’s auspicia into “auspicia populi Romani”). 89. See E. Badian in W. Eder (ed.), Staat und Staatlichkeit 467. The phrase “auspicia militiae” is not attested, but see (close to it) Cic. Div. 2.77 “auspicium militare.” 90. Cic. Leg. 3.9 “ave sinistra”; see 2.2.1 below. For the dictio of the dictator, see the references collected in Mommsen, St.-R. II3 151–152. 91. If the superior magistrates gained only auspicia militiae through the lex curiata, they would not need the law on their very day of entry into office (contra A. Magdelain, Recherches sur l’Imperium 26); but it would be advisable to convene the comitia curiata as soon as possible, especially for the sake of the lower magistrates. In the later Republic, the quaestors must have had their curiate law passed by an outgoing consul or praetor (see immediately below in text). 92. Mommsen, St.-R. I3 604–608. 93. G. Wesenberg, RE s.v. praetor cols. 1581–1587 (a useful summary of views on “praetor” and imperium down to ca. 1937); E. Meyer, Römischer Staat und Staatsgedanke3 (Zurich 1964) 37–43 with corresponding notes on 448–460; J.-C. Richard, Les origines de la plèbe romaine (Rome 1978) 433–478; J. Bleicken, Zum Begriff der römischen Amtsgewalt 27–33; T. J. Cornell, Beginnings of Rome 227–230; cf. G. Valditara, Studi sul magister populi 307–365, esp. 318–319 nn. 67–69; also Cornell, Beginnings of Rome 230–232 (properly emphasizing the real dearth of usable comparative evidence from non-Roman cities in Italy). 94. R. Werner (Der Beginn der römischen Republik [Munich 1963] 251) even made the suggestion that the term “praetor” is older than the introduction of a hoplite army to Rome, since in hoplite tactics the commander does not precede. But no ancient source which offers a definition for the title (see n. 39 above) says anything about actual battle; Werner’s idea is irrelevant if (as likely) “praeire” simply refers to the commander’s dignitas. (See also below in text for a criticism of how Werner develops his suggestion.)
254 Notes to Chapter One 95. For bibliography on the term “praetor,” see J.-C. Richard, Les origines de la plèbe romaine 460 n. 88; G. Valditara, Studi sul magister populi 336; D. Sohlberg, Historia 40 (1991) 260 n. 17. 96. E. Täubler, Der römische Staat (1935, repr. Stuttgart 1985) 14; C. Gioffredi, SDHI 13–14 (1947–1948) 14ff; cf. K. Hanell, Das altrömische eponyme Amt (Lund 1946) 158 with n. 20. This interpretation has its roots as far back as Varro (L. 5.80), where it probably represents an antiquarian attempt to combine the etymology with the accepted fiction (3.1–2 below) that the praetorship was a legal office. 97. Thus G. I. Luzzatto, Eos 48 (1956) 439–471; A. Giovannini, MH 41 (1984) 15–30 (extending “praeire” to include administration of the military sacramentum). Against “formulary” interpretations, see C. Gioffredi, Iura 9 (1958) 22–49, esp. 41–46, and G. Valditara, Studi sul magister populi 336 n. 149. For further bibliography on this question, see T. J. Cornell, Beginnings of Rome 441 n. 37. 98. Even the king (St.-R. II3 II 78). 99. Liv. 7.3.3–9; T. Mommsen, Die römische Chronologie bis auf Cäsar2 (Berlin 1859) 175–180; St.-R. II3 75 with nn. 2 and 4. 100. Cf. Paul. Fest. p. 49 L s.v. clavis annalis. 101. R. S. Conway and C. F. Walters in the Oxford Classical Text rightly obelize here. See my further discussion at 1.4.2. 102. Fest. p. 152 L. 103. Fest. pp. 152 and 154 L. On the proper context of these passages, see J. Pinsent, Military Tribunes and Plebeian Consuls: The Fasti from 444 V to 342 V (Wiesbaden 1975) 24–28; cf. J. Linderski, ANRW II 16.3 (1986) 2177–2180. See also my discussion in 2.2.2. 104. First advanced by W. Ihne in Forschungen auf dem Gebiete der römischen Verfassungsgeschichte (Frankfurt 1847) 43–51; see also his Römische Geschichte I (Leipzig 1868) 107f, 112, and 116 n. 2. Ihne is followed by A. Schwegler, Römische Geschichte im Zeitalter des Kampfes der Stände II (Tübingen 1856) 86–94, and many others. 105. F. De Martino, ANRW I 1 (1972) 244–249 and Storia della Costituzione Romana I2 (Naples 1972) 236–250; cf. V. Arangio Ruiz, Storia del diritto romano7 (Naples 1957) 28–30 (with second thoughts at 407–409). Cf. D. Flach, Die Gesetze der frühen römischen Republik: Text und Kommentar (Darmstadt 1994) 14–17. 106. Thus H. Rudolph, NJAB 114 (1939) 151 n. 8; A. Giovannini, MH 41 (1984) 21. For a good discussion of the sources on the introduction of the Republican dictator (as a temporary, extraordinary magistrate), see E. Gabba in Gabba (ed.), Tria Corda 215–228. 107. Gedanken und Vermutungen 76–80. 108. But for an attempted defense of this view, see A. Guarino, Le origini quiritarie (Naples 1973) 77–79. 109. G. De Sanctis, Storia dei Romani I (Turin 1907) 404–406; also RFIC 61 (1933) 289–298 (esp. 297–298). On Sanctis (and some of his followers in this view), see P. De Francisci, Primordia Civitatis (Rome 1959) 752–753. 110. See P. Fraccaro, Opuscula II (Pavia 1957) 287–306. 111. D. Sohlberg, Historia 40 (1991) 257–274. Sohlberg places special emphasis on the appearance of the praetor urbanus and praetor inter peregrinos alongside the consuls to date certain epigraphic documents of the second and first century; cf. F. De Martino, Storia della Costituzione Romana I2 427–428, who also uses this feature as a foundation for a speculative theory. See in addition G. Valditara, Studi sul magister populi 307–365. 112. See the roster in G. Valditara, Studi sul magister populi 318 n. 67. 113. Thus H. Delbrück, Geschichte der Kriegskunst im Rahmen der politischen Geschichte I3 (Berlin 1920) 270. For a very different view, cf. F. De Martino, ANRW I 1 (1972) 237 (existence of two legions at the beginning of the Republic does not necessarily mean two prae-
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tores of equal power). Some date the doubling of legions as late as the year 405 (U. von Lübtow, Das Römische Volk: Sein Staat und sein Recht [Frankfurt a. M. 1955] 211 with earlier bibliography in n. 530; A. Guarino, Le origini quiritarie 139 n. 51). 114. On the history of this problem, see above all the comprehensive study of R. T. Ridley, Athenaeum 58 (1980) 264–298 (Ridley is sympathetic to views that plebeians did reach the early consulship). Also A. Momigliano, in K. A. Raaflaub (ed.), Social Struggles in Archaic Rome at 187f (only the last in a series of articles in which Momigliano suggests that the “plebeian” consuls are identical with the “conscripti,” which the Latin hardly permits); J.-C. Richard, Les origines de la plèbe romaine 519–539 and in Raaflaub (ed.), Social Struggles in Archaic Rome 120–124 (accepting Momigliano, with modifications); cf. P. M. Martin, L’idée de royauté à Rome I 292–303 (detailed examination of the Fasti down to 493). 115. Most recently, F. Cuena, BIDR 27 (1985) 328; T. J. Cornell in E. Gabba (ed.), Tria Corda 101–120, and Beginnings of Rome 252–256. Not just the early Fasti have received this scrutiny. J. Pinsent, Military Tribunes and Plebeian Consuls 62–69, rejects all plebeian consuls between 366 down to 342! 116. I. Shatzman, CQ 23 (1973) 65–77 (good on the coexistence of patrician and plebeian branches in a single family); P.-C. Ranouil, Recherches sur le Patriciat (509–366 avant J.-C.) (Paris 1975) 173f; J.-L. Halpérin, RD 62 (1984) 163; cf. K. A. Raaflaub in Raaflaub (ed.), Social Struggles in Archaic Rome 228 n. 107 (bibliography on gentile names in cities other than Rome); F. Millar, JRS 79 (1989) 149. 117. Mommsen, St.-R. II3 179f. 118. Liv. 4.1–6 with Cic. Rep. 2.63. The quotation is from Liv. 4.6.2, cf. 2.5; the translation is that of J. Linderski, Roman Questions 560–561 (which offers also an explication of the background). See also Linderski’s discussion of this law, ibid. 558–559. 119. F. De Martino, ANRW I 1 (1972) 225. 120. See J. Linderski, Roman Questions 542–559, 575–583. 121. K. A. Raaflaub in Raaflaub (ed.), Social Struggles in Archaic Rome 230. 122. Discussion (with sources) in R. M. Ogilvie, Commentary 273f (who dates the migration to the monarchic period); but see J. Linderski, Roman Questions 551. 123. R. E. A. Palmer, The Archaic Community of the Romans (Cambridge 1970), esp. 243–281 and 290–297 (closure in 367). See K. A. Raaflaub in Raaflaub (ed.), Social Struggles in Archaic Rome 205 with nn. 15–16, for a survey of views on the “closure” of the Republican patriciate in the fifth century, and 228–236 for his own arguments (freezing of membership in the early fifth century, certainly by 458); J.-C. Richard, MEFRA 97 (1985) 776–782 (who argues that there were no new patricians only after 433) also provides a good bibliography of the problem. 124. Cf. B. J. Kavanagh, AHB 4 (1990) 131–132. 125. On some ways this might happen, see P.-C. Ranouil, Recherches sur le Patriciat 143–180; K. A. Raaflaub in Raaflaub (ed.), Social Struggles in Archaic Rome 232 n. 120 and 236 n. 131. Voluntary transitiones ad plebem are most unlikely (at any rate, before the election of one plebeian consul became law): see in general M. J. Slagter, “Transitio ad Plebem: The Exchange of Patrician for Plebeian Status” (diss. Bryn Mawr 1993). 126. St.-R. II3 93. 127. St.-R. II3 108f; cf. 131–132 for another example, the right to draw on the aerarium. 128. St.-R. II3 79, 204. 129. Praetor as collega minor, with legal specialization: St.-R. II3 78–79, 193. Restriction of pr. urb. to city, and consequences to praef. urb.: 194–195; 233 n. 4. Consul largely debarred from law: 101–102, 207–208. 130. St.-R. II3 227 with 233.
256 Notes to Chapter One 131. St.-R. II3 101, 207–208, 219, 221 and 232–233. Mommsen’s view on the consul losing “judicial” imperium is somewhat softened in Abriss des römischen Staatsrecht (Leipzig 1893) 156; but cf. 164. 132. St.-R. II3 207f with 233. 133. Additional praetors as judicial magistrates: St.-R. II3 207f with 233. The praetors’ limited competences: 207f; cf. I3 30–31 (collegium and collegiality). 134. St.-R. II3 196–197, 211, 220. 135. Though Mommsen admits that this was not always so; he finds only six examples (St.-R. II3 102 n. 3). For the above points, see also St.-R. II3 94f, 102–103, 219, 234. 136. St.-R. II3 198–200, 212; cf. 205–206 for the de facto independence (on account of travel time) of a provincial command, in all periods, from the actual magistracy; also 213, where Mommsen gives early (Hannibalic era) precedents for proroguing a praetorian commander in a different provincia than the one of his magistracy. 137. St.-R. II3 201–202 (post-81 expedients), 209–214 (the “Livian” period; see esp. 210 for the “mandatory” process, where the pr. per. entrusts his provincia to the urban praetor), 214–219 (sortition post-Sulla). 138. Position of the consuls after 81: St.-R. II3 94–95; 103. Of the urban praetor: 200. 139. St.-R. II3 95 n. 4; 99–100; 234–235; cf. 110, 117–118 for consular criminal jurisdiction, and 223–225 for the new criminal procedure of the quaestiones. 140. The Latin Festival: St.-R. II3 136. The praetor and elections: 80, 126 n. 2; cf. 126 and 127 n. 1 for the urban praetor’s supervision of elections for IIIviri capitales, members of colonial commissions, and the like. Praetorian naming of a dictator: 217. 141. St.-R. II3 139 (security); 130 (Senate); 127–128 (the comitia); 135–136 (religion); 96 and 99 (the levy), 196 and 198 (special status of the “city praetors”), 221 (Petillian rogation), 232 (esp. n. 3) and 233 n. 1 (changes in hierarchy). 142. Cf., however, J. Bleicken (Zum Begriff der römischen Amtsgewalt 11), who thought it hard to square with Mommsen’s theory of “indivisible” imperium. 143. Die Einheit des Gewaltgedankens im römischen Staatsrecht (Munich 1914) 184. 144. See, e.g., H. Last, JRS 37 (1947) 158–159, for his theory of the “permanent” imperium maius of the dictator (i.e., not simply activated in case of conflict), which made him responsible for every other Roman magistrate; E. S. Staveley, Historia 5 (1956) 108f; A. Giovannini, MH 41 (1984) 19; D. Cloud in CAH IX2 (1994) 498. 145. Thus A. Giovannini, Consulare Imperium 59–65; C. Nicolet, CCGG 3 (1992) 163–166; cf. U. Hackl, Senat und Magistratur in Rom von der Mitte des 2. Jahrhunderts v. Chr. bis zur Diktatur Sullas (Kallmünz 1982) 162. But this view rests mainly on two passages in Cicero which assert the right of a consul to enter any provincia by virtue of his office (Att. 8.15.3 “more maiorum”; Phil. 4.9). This doctrine is probably a product of only the late Republic (the first we hear of it is in 49), not a firm constitutional principle: see E. Badian in G. Crifò (ed.), Costituzione romana e crisi della Repubblica (Perugia 1986) 84. There is no good reason to think, as often has been alleged, that Pompey in 67 was granted imperium maius over other pro coss. (see K. M. Girardet, ZPE 89 [1991] 201–215 and CCGG 3 [1992] 177–188, both with discussions of earlier views). His imperium was clearly only “aequum”: C. Calpurnius Piso’s resistance is decisive (15.2.2 below), as is Q. Metellus’ (11.3.2 below) for the 66 grant (M. Gelzer, Pompeius2 [Stuttgart 1959] 70, 73f; Girardet, CCCG 3 [1992] 182). See further in 2.2.1 below. 146. NJAB 114 (1939) 145–164, esp. 155–164. 147. Phil. 2.31 with Rudolph, NJAB 114 (1939) 162f, who sees in this territorial restriction the origins of the overseas praetorian “provincia.” 148. “Sors et Provincia” 80–134, further elaborated in Public Office in Early Rome 95–111; the quotation which follows below is from “Sors et Provincia” 132.
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149. Liv. 7.42.1–2, on which see 3.3.2 below. (At Public Office in Early Rome 151, Stewart places somewhat less stress on this argument.) 150. Gedanken und Vermutungen 72–76. 151. Already O. Karlowa, Römische Rechtsgeschichte I (Leipzig 1885) 208; F. Leifer, Die Einheit des Gewaltgedankens 206–224; and see my discussion in 3.2.2. For an attempted defense of Mommsen’s position, see H. Rudolph, NJAB 114 (1939) 153 with 162. 152. Against Mommsen, see P. Willems, Sénat II 577–581; A. Nissen, Beiträge zum römischen Staatsrecht (Strasbourg 1885) 109–118; H. Pelham, Journal of Philology 17 (1888) 27–52 = F. Haverfield (ed.), Essays by Henry Francis Pelham (Oxford 1911) 60–88; J. P. V. D. Balsdon, JRS 29 (1939) 57–73, 167–183 (usually, in English-language scholarship, getting the full credit for this observation); M. Grant, From Imperium to Auctoritas (Cambridge 1946) 420 n. 3; K. M. Girardet in W. Görler and S. Koster (eds.), Pratum Saraviense: Festgabe für P. Steinmetz (Stuttgart 1990) 89–126 (esp. 90–93) and in CCGG 3 [1992] 213–220. Cf. C. Nicolet, Rendre à César: Économie et société dans la Rome antique (Paris 1988) 271–313 (esp. 296–299) (Sulla’s alleged law was proposed by Pompey in 52, and finally put into action by Augustus in 27); Girardet in Görler and Koster (eds.), Pratum Saraviense 118–121 (dating it only to 19/18). 153. For a decisive refutation, see F. Leifer, Die Einheit des Gewaltgedankens 303–326, esp. 312 (provincial jurisdiction stems from “Lagerjurisdiktion”). But see A. Giovannini, Consulare Imperium 65–72, claiming that the difference between praetorian provinciae and consular ones is that the former are territories which the Senate has delimited “principally” for jurisdiction, the latter for military activity. The existence of special praetorian provinciae (on which see ch. 8) and the abundant number of praetorian triumphs from the fixed provinciae are just two arguments against this fallacy. 154. Most recently (a sample), A. Heuss, Gedanken und Vermutungen 74; J.-C. Richard, RPh 56 (1982) 19–31; A. Giovannini, MH 41 (1984) 15–30; J. S. Richardson, JRS 81 (1991) 1–9; D. Sohlberg, Historia 40 (1991) 257–274 and CCCG 4 (1993) 251; D. Flach, Die Gesetze der frühen römischen Republik 17; T. J. Cornell, Beginnings of Rome 334. 155. SDHI 21 (1955) 181–222 (esp. 208–209) = Scritti di diritto romano II 571–611 (esp. 597–599). 156. Liv. 6.6.14 and 9.5. The number of consular legions was raised to four by the year 311 (Liv. 9.30.3). 157. Details with discussion in T. Steinwender, Philologus 39 (1880) 527–540. 158. The Beginnings of Imperial Rome: Rome in the Mid-Republic (Ann Arbor 1980) 16–19 and 24 n. 10; R. E. Mitchell, Patricians and Plebeians: The Origin of the Roman State (Ithaca 1990) 185, joins Starr in accepting Coli. For an excellent discussion of the “Servian” Wall (begun by 377—see Liv. 6.32.1 with 7.20.9), see R. Thomsen, King Servius Tullius: A Historical Synthesis (Copenhagen 1980) 222–235; on its manpower demands, see W. V. Harris in W. Eder (ed.), Staat und Staatlichkeit 509 n. 40. 159. Stewart, “Sors et Provincia” 83f, 158–168 (but see her less emphatic view in Public Office in Early Rome) 117 n. 72; W. Kunkel, Staatsordnung 296 with n. 5. 160. Patricians and Plebeians 184–186. Page 185 alone contains a number of dubious arguments ex silentio and some actual errors (e.g., “the praetor peregrinus . . . was primarily concerned with affairs outside the city until late in the second century,” against which see 5.3.2 below). For a thorough (and critical) review of Mitchell’s book, see P. Zamorani, SDHI 57 (1991) 302–334. 161. The classic formulation is at Römische Geschichte I7 781; in general, see the detailed study of E. Badian, Roman Imperialism in the Late Republic2 (Oxford 1968). Cf. also W. Dahlheim, Gewalt und Herrschaft: Das provinziale Herrschaftssystem der römischen Republik (Berlin 1977) 65–67 (social factors affecting expansion) and, for patterns of annex-
258 Notes to Chapter Two ation, 74–152 (except for pirate areas, eastern lands less in need of a permanent military presence than those of west). 162. In The Origins and History of the Proconsular and Propraetorian Imperium to 27 B.C. (Chicago 1950). 163. A. W. Lintott, Imperium Romanum: Politics and Administration (London 1993), does, however, serve its stated purpose as an introductory overview of both Republican and Imperial practice, and collects in one place much recently discovered evidence. 164. In Gnomon 51 (1979) 792–794. Cf. also E. Badian s.v. provincia in OCD3 1265–1266. 165. For a detailed study of this last stage, see E. Badian, PACA 1 (1958) 1–18 = Studies in Greek and Roman History (Oxford 1964) 71–104. 166. P. Wehrmann, Fasti Praetorii ab A.U. DLXXXVIII ad A.U. DCCX (Berlin 1875); M. Hölzl, “Fasti praetorii ab A.U. DCLXXXVII usque ad A.U. DCCX” (diss. Leipzig 1876); E. Maxis, “Die Praetoren Roms von 367–167 v. Chr.” (diss. Breslau 1911); F. Stella Maranca, “Fasti Praetorii I: Dal 366 al 44 av. Cr.,” in MAL 6.2 (1927) 277–376. 167. Gelzer articulated his view in his classic 1912 essay, “Die Nobilität der römischen Republik,” reprinted in English as The Roman Nobility, trans. R. Seager (Oxford 1969) 3–139 (esp. 27–53); cf. Mommsen, St.-R. III 462. P. A. Brunt (JRS 72 [1982] 1–17) questioned Gelzer’s findings for the Republic, suggesting (10–11) that also the praetorship might have conferred nobility. For a clear refutation of Brunt, see D. R. Shackleton Bailey, AJPh 107 (1986) 255–260; also L. Burckhardt, Historia 39 (1990) 77–99, esp. 80–82. E. Badian (Chiron 20 [1990] 371–413) supports the Gelzer interpretation of nobilitas by collecting the facts of descent which are attested. In the Empire, both paternal and maternal descent counted for nobilitas: see Gelzer, The Roman Nobility 151 with Seager’s note suggesting (from Cic. Phil. 3.15) that this development started in the late Republic. Professor Badian has suggested to me that it probably began with Q. Lutatius Catulus ca. 103 (see Cic. De Orat. 2.44), and certainly by the 50s, as can be seen from the L. Brutus/Ahala coins of “54” (thus M. R. Crawford, RRC I 455f no. 433). 168. On deployment, see the remarks of W. Kunkel, Staatsordnung 306. 169. The most influential studies on this theme have been those of F. Millar, in a series of articles culminating in The Crowd in Rome in the Late Republic (Ann Arbor 1998). Note also J.-L. Ferrary in L. Firpo (ed.), Storia delle idee politiche, economiche e sociali I (Torino 1982) 723–804; L. Perelli, Il movimento popolare nell’ultimo secolo della Repubblica (Turin 1982) passim; A. W. Lintott, ZRG 104 (1987) 34–52; and J. A. North, P&P 126 (1990) 3–21 and CPh 85 (1990) 277–287. For reactions, see the essays in M. Jehne (ed.), Demokratie in Rome? Die Rolle des Volkes in der römischen Republik (Stuttgart 1995). W. V. Harris, CPh 85 (1990) 288–294, offers a good short critique of the notion of “Roman democracy”; I share Harris’s endorsement (ibid. 292) of the balanced assessment of the mid-Republican political culture by A. E. Astin in CAH VIII2 (1989) 163–196.
Chapter 2 1. D.H. 2.12.1, attributing the institution of the praefectus to Romulus; Lyd. Mens. 1.21 W. See in general P. M. Martin, L’idée de royauté à Rome I: De la Rome royale au consensus républicain (Clermont-Ferrand 1982) 127–131; G. Valditara, Studi sul magister populi dagli ausiliari militari del rex ai primi magistrati repubblicani (Milan 1989) 233–250 (cf. 340–343). Tacitus (Ann. 6.11.1) offers the names of three of these regal praefecti, only one of which is plausible: Sp. Lucretius, the father of Lucretia, appointed by Tarquinius Superbus (see also Liv. 1.59.12; cf. D.H. 4.76.1 and 84.5 mesobasileuv~ = interrex).
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2. Epitomator of Pomponius, Dig. 1.2.2.33 (see text in n. 8 below). 3. See MRR I for A. Sempronius Atratinus in 499; T. Larcius Flavus (cos. 501, II 498) in 494; Sp. Larcius (cos. 506, II 490) in 487; Q. Servilius (cos. 468, II 466) in 465; L. Valerius (cos. 483, II 470) in 464); Q. Fabius Vibulanus (cos. 467, II 465) in 462; L. Lucretius (cos. 462) in 459; and Q. Fabius Vibulanus again (now cos. III 459) in 458. For tribuni militum consulari potestate functioning as praefecti urbi, see 2.4.2 below. 4. See Additional Note VIII for a discussion of Liv. 8.36.1, where it is suggested that L. Papirius Crassus (cos. 336, II 330) served as praefectus urbi in 325. If true, this case would disprove Mommsen’s assertion (St.-R. I3 666, often followed, e.g., by G. Valditara, Studi sul magister populi 239f and W. Kunkel, Staatsordnung und Staatspraxis der römischen Republik: Die Magistratur [Munich 1995] 274), that the creation of the praetorship in 367 made the institution of the praefectus urbi redundant. 5. St.-R. I3 666 n. 3. 6. For a general sketch, see St.-R. I3 663–674; P.-E. Vigneaux, Essai sur l’histoire de la praefectura urbis à Rome (Paris 1896) 17–24; G. Vitucci, Ricerche sulla praefectura urbi in età imperiale (Rome 1956) 9–20; R. M. Ogilvie, A Commentary on Livy Books 1–5 (Oxford 1965) 229. On Caesar’s praefecti, see 2.3.1 below. 7. Ann. 6.11.1 “profectis domo regibus ac mox magistratibus, ne urbs sine imperio foret, in tempus deligebatur qui ius redderet ac subitis mederetur.” 8. Dig. 1.2.2.33 “quotiens . . . proficiscuntur [sc. magistratus], unus relinquitur, qui ius dicat.” 9. D.H. 8.64.3 (the year 487); cf. 6.2.3 (the year 499); 6.42.1 (494); 9.69.2 (462); 10.22.2 (458). 10. 3.9.6 (462); 3.29.4 (458). 11. 3.5.3 (464); 3.8.7 (462). 12. 3.29.7. 13. JRS 49 (1959) 154; the references are to Tac. Ann. 6.11.1 and Mommsen, St.-R. I3 672–674. 14. St.-R. I3 673; for later scholars, see G. Valditara, Studi sul magister populi 298 n. 102 (Valditara himself agrees). We need not accept Mommsen’s view that the praefecti must have had only civil imperium and lacked imperium militiae, arguing that they were not allowed to leave Rome for more than a day. As evidence for this restriction of movement Mommsen could cite only a provision regarding the praefecti iure dicundo in the (Domitianic) municipal constitution from Spanish Salpensa (FIRA7 29 ch. 25); this document is of dubious value for reconstructing the nature of the original Roman office, instituted more than five centuries earlier (cf. also G. Valditara, Studi sul magister populi 341 n. 167). 15. See the discussion of P. M. Martin, L’idée de royauté à Rome I 55–67, on “l’ ‘associé’ du roi,” where he discusses the attempts of Roman antiquarians to project precedents for the Republican consulship onto their kings. Martin argues that no Roman king created a full associate in power, or a collega minor (Cic. Rep. 2.14—anticipating the praetorship!), but only an “apprentice” to the kingship. 16. Cic. Rep. 2.37. Cf. Liv. 1.41.6 with Bayet’s emendation “Servius . . . primus iniussu populi, <sine> voluntate patrum regnavit” (on which see P. M. Martin, L’idée de royauté à Rome I 50–53). The second—and last—would be Tarquinius Superbus (Liv. 1.49.3). 17. Liv. 1.41.5–6; D.H. 4.4.6; 5.2–3, 8–10; Cic. Rep. 2.38. 18. Cic. Rep. 2.38. Also D.H. 4.12.3; Liv. 1.46.1. See R. M. Ogilvie, Commentary 87; P. M. Martin, L’idée de royauté à Rome I 42–55. 19. R. M. Ogilvie, Commentary 163–164 on Liv. 1.41.5. 20. E.g., Liv. 1.41.6 “cum trabea et lictoribus prodit ac sede regia sedens . . . se regem esse simulat”; Cic. Rep. 2.38 “regio ornatu . . . iussu Tarquinii se ius dicere probavisset.” See
260 Notes to Chapter Two Mommsen, St.-R. I3 662 n. 2 on the account of D.H. 4.5.2 (uJpo; tou` basilevw~ ejpivtropon . . . ajpodeiknuvmenon; cf. 4.4.6). 21. Liv. 1.42.3. On the whole “Latin” tradition of Servius’ rise to power, see R. Thomsen, King Servius Tullius: A Historical Synthesis (Copenhagen 1980) 108–112 (“a clear usurpation”). 22. Liv. 10.29.3 “cui lictores [Decius] tradiderat iusseratque pro praetore esse.” On the actual devotio, see C. Guittard, CRAI (1984) 581–589 (of the devotiones by members of this gens in 340, 295 and 279, only the second is genuine); cf. also Guittard in D. Porte and J.-P. Néraudau (eds.), Hommages à H. Le Bonniec (Brussels 1988) 256–266. 23. Liv. 10.25.11–26.15, on which see 3.6.2 below. 24. See St.-R. I3 683 with n. 3, with 9.3.4 below and Additional Note I. 25. Liv. 1.26.5–7. 26. D.H. 3.41.4; 4.3.2; 4.6.4. For the tyrannicide L. Iunius Brutus as tribunus celerum see D.H. 4.71.6, 4.75.1, and Liv. 1.59.7 with R. M. Ogilvie, Commentary 228 (the office is a later addition to the original tradition, meant to explain how he could have held his famous contio). Cf. also D.H. 4.85.3 (two u{parcoi left in the field by Tarquinius Superbus). 27. The proper technical term; see St.-R. I3 667 n. 3. 28. Denied by L. Lange, Römische Alterthümer I3 (Berlin 1876) 380. But in the passage Lange adduces as support, Liv. 3.24.2 (the year 459), political considerations, not a lack of competency, clearly are in the forefront. 29. Liv. 3.5.4; cf. 3.5.14 (464). For the implications of a iustitium, see G. Kleinfeller, RE s.v. iustitium cols. 1339–1340. 30. On excusationes that were actually used, see J. K. Evans in T. Yuge and M. Doi (eds.), Forms of Control and Subordination in Antiquity (Leiden 1988) 121–140, esp. 124–131. 31. When a praefectus urbi of the year 42 celebrated the festival of Jupiter Latiaris, Dio makes it clear that this was outside his competence (47.40.6). 32. Except for one alleged example in 509, which is impossible to believe. 33. See St.-R. I3 561–563. 34. This type of activity is already attested for the year 310, for the praefectus classis P. Cornelius (Liv. 9.38.2–3); on the early naval prefects in general, see C. G. Starr, The Beginnings of Imperial Rome: Rome in the Mid-Republic (Ann Arbor 1980) 63. Independent action by prefects is amply illustrated for the Hannibalic War: note, e.g., the praefectus socium T. Pomponius Veientanus (Liv. 25.1.3–4, the year 213); M. Atinius, praefectus of a garrison at Thurii in 212 (Liv. 25.15.9–17); D. Quinctius, praefectus classis in 210 (26.39.2–19); and M. Valerius Messalla, fleet prefect starting in 210 (Liv. 27.5.1, 8–9). For the basic similiarity in conception between praefecti, regardless of their specific function, cf. G. Tibiletti, RIL 86 (1953) 95–98 (originally, “praefectus” simply meant “ufficiale nominato dall’alto e imposto dall’esterno”). 35. This type of special command also was given in the Republic by a vote of the People: “‘cum potestate est’ dicebatur de eo, qui a populo alicui negotio praeferebatur” (Paul. Fest. p. 43 L). 36. In addition to the praefecti urbi listed in n. 3 above, see various other types of praefecti at Liv. 4.12.8 (440), 4.27.8 and 9 (431), 5.8.9 with 12 (402), and Plu. Cam. 35.1 (389). Sex. Tempanius, listed as a praefectus for 423 in MRR (I 68), was merely a cavalry decurio (Liv. 4.38.2–41.9). 37. In what we have of his discussion of the patriciorum auspicia (= public auspices), the augur M. Valerius Messalla (cos. 53) ap. Gel. 13.15.4 does not mention how privati fit into the scheme, nor can we hope to know whether he mentioned them as an appendix. 38. “Dodges and Rackets in Roman Law,” summary in PCA 61 (1964) 28–30 = D. Cohen and D. Simon (eds.), Collected Studies in Roman Law (Frankfurt 1991) 1081–1082.
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39. Indeed, the pontifices (and augurs) are very likely the earliest exponents of “dodges” and legal fictions. On the former, see F. Wieacker, “Altrömische Priesterjurisprudenz,” in Iuris professio: Festgabe für M. Kaser (Vienna 1986) 347–370, esp. 365–368. 40. Magister populi: St.-R. II3 143–145 and 158–159; “naming” of dictator: ibid. 151–152; “naming” of magister equitum: ibid. 174f. For a massive (though undigested) bibliography of work on the dictator up to 1965, see P. Pinna Parpaglia, SDHI 35 (1969) 233–234 n. 41.More useful is the select introduction to the literature assembled by F. Hinard and C. Nicolet in M. Duverger (ed.), Dictatures et légitimité (Paris 1982) 82–84; for further studies up to 1989, see G. Valditara, Studi sul magister populi 177–232 passim. M. E. Hartfield, “The Roman Dictatorship: Its Character and its Evolution” (diss. Univ. California, Berkeley 1982) concentrates on the reasons for the appointment of individual dictators, and explicitly avoids “engaging the multitude of ancient definitions and generalizations for the office” (270). For a brief outline of the problems (encompassing also the dictatorships of Sulla and Caesar), see C. Nicolet in M. Duverger (ed.), Dictatures et légitimité 69–82. 41. Liv. 9.38.15 (the dictator had already named a mag. eq.) with 39.1; cf. 5.46.10. 42. Pace Plb. 3.87.8, on which see Mommsen, St.-R. II3 155 n. 4. F. W. Walbank, A Historical Commentary on Polybius I (Oxford 1974) 422 offers a list of later authors who share Polybius’ misconception. See below (2.2.2) for a possible explanation. 43. St.-R. II3 163–166. 44. Evidence collected in St.-R. II3 141f; see also R. T. Ridley, RhM 122 (1979) 303–309, for a survey of modern explanations of the reasons for the emergence of the office. Ridley’s own suggestion, that Livy (2.18.4) seems to suggest that the Romans modeled their office on the Latin federal dictator, is not compelling. 45. St.-R. II3 160; 175. 46. J. Linderski, ANRW II 16.3 (1986) 2181. 47. 4.41.11.The fact that Livy thinks Tubertus served as a legatus—at this time—may also be held to affect the reliability of his narrative at this point (and in similar reports). 48. 7.3.8. 49. Liv. 8.32.3 “cum summum imperium dictatoris sit pareantque ei consules, regia potestas, praetores, iisdem auspiciis quibus consules creati”; cf. 6.38.3 and 22.27.6, where again the dictator is said to have “summum imperium.” Note also for Livy’s opinion 2.18.6 (of the first dictator) “moderatorem et magistrum consulibus appositum.” 50. Rep. 2.56 “viris summo imperio praeditis, dictatoribus atque consulibus”; also Ver. 1.37; Rab. Perd. 3; Sest. 25; N.D. 2.11; cf. Rep. 2.61, the decemviri, who had consular imperium. 51. At 4.1.3 and 26.10, 5.14.1 (consular tribunes), 6.35.1 and 28.27.12 (a pro cos.). 52. At Liv. 30.24.2–3, when the Senate learned that Cn. Servilius Caepio (cos. 203) had crossed out of his provincia (Bruttium) into Africa, it ordered the pr. urb. to write a letter to him to return; after the praetor protested that his dispatch would be ignored, P. Sulpicius Galba Maximus (cos. 211, II 200) was created dictator for this purpose, and recalled the consul to Italy “pro iure maioris imperii.” This story is contradicted by the Fast. Cos. Cap. of the year and some of Livy’s other sources (30.26.12 with MRR I 311 and 314 n. 2); but Livy’s own view of the constitutional situation is clear. (On this passage, see also 5.4.2 below.) I shall discuss the problems raised by Liv. 22.10.10 (217) below (2.2.2) in the text. 53. ILS 212 col. 1 lines 28–29 “dictaturae hoc ipso consulari impe|rium valentius.” 54. JRS 37 (1947) 159. 55. Degrassi, Inscr. Ital. XIII 1 68f; Liv. 7.11.4–11.The authenticity of the triumph should be accepted: see K.-J. Hölkeskamp, Die Entstehung der Nobilität: Studien zur sozialen und politischen Geschichte der römischen Republik im 4. Jhdt. v. Chr. (Stuttgart 1987) 88–89, against Münzer, RE s.v. Poetilius 7 col. 1166.
262 Notes to Chapter Two 56. As Professor Linderski has pointed out to me. 57. 7.11.5. 58. Cf. V. Max. 2.8.2, discussed in 4.1.3 below. 59. There is no difficulty with M. Fabius Ambustus, since his victory over the Hernici was clearly in a different provincia: cf. the Fast. triumph. for the consuls’ triumphs in the years 361 and 358. Incidentally, the technical requirement of number of enemy killed (implied in the Tiburtes’ criticism) is certainly anachronistic for the fourth century; it is first attested for only the mid-second (8.6.2 below). 60. Liv. 8.38–40, esp. 40.1–3. 61. 8.40.4–5. 62. Münzer, RE s.v. Sempronius 92 col. 1442. 63. 3.9 “oenus ne amplius sex menses, si senatus creverit, idem iuris quod duo consules teneto, isque ave sinistra dictus populi magister [ = dictator] esto.” For the problem of the date of this work, see E. Rawson, ANRW I 4 (1973) 334–356 = Roman Culture and Society: Collected Papers (Oxford 1991) 125–148, esp. 125–129; cf. also 141–146 on Cicero’s innovations in the “laws” themselves. Rawson inclines toward the opinion that the work was written mostly in the late 50s, but revisions coming just possibly as late as 46. 64. As Professor Linderski has suggested to me. But probably at other delegations, especially of imperium, the delegator took auspices which did not involve the flight of birds (e.g., ex tripudiis). 65. See n. 41 above. 66. Ap. Gel. 13.15.4. 67. St.-R. I3 514 n. 1. 68. See Mommsen, St.-R. I3 513f with Additional Note IV. 69. St.-R. I3 37–41, esp. 40 n. 1, citing Suet. Caes. 20 “antiquum retulit morem, ut quo mense fasces non haberet, accensus ante eum iret, lictores pone sequerentur”; see also W. Kunkel, Staatsordnung 191–192. For the “dummy rods,” see D.H. 5.2.1 (who dates this practice to the beginning of the Republic) and D.C. 53.1.1 with E. S. Staveley, Historia 12 (1963) 466–467. Livy evidently knows about the accensus, but not the lictors: see 2.4.3 below with n. 155. 70. Rep. 2.55; see also Liv. 2.1.8, D.H. 5.2.1–2, and V. Max. 4.1.1, who all date the institution of the rotation to the beginning of the Republic. 71. Livy indicates that the rotation was in force in the late fourth century (8.12.13—339; 9.8.2—320). Mommsen thought it was abandoned in the third century, only to be revived by Caesar in 59 (St.-R. I3 39). L. R. Taylor and T. R. S. Broughton (MAAR 19 [1949] 10 n. 8) disputed Mommsen’s view, arguing that the rotation was always in force; but Suetonius’ “rettulit antiquum morem” (Caesar in 59—see n. 69 above) is decisive for abandonment of the basic practice, at least for the time after Sulla, and probably somewhat longer (though we need not go back as far as Mommsen does). 72. ANRW II 16.3 (1986) 2179 n. 115. 73. Liv. 28.9.10 “eo die quo pugnatum foret eius forte auspicium fuisset”; cf. 22.42.7–9, where a consul—presumably not possessing the fasces—uses his auspicia to block his colleague’s attempt to engage the enemy. 74. Fest. p. 154 L: “‘Maiorem consulem’ L. Caesar [cos. 64 and augur] putat dici vel eum, penes quem fasces sint, vel eum, qui prior factus sit. Praetorem autem maiorem, Urbanum: minores ceteros.” Yet at the beginning of the year, when several important sacral obligations had to be carried out, the consul “penes quem fasces sint” and the consul “qui prior factus sit” were one and the same: the consul returned first was also the first to receive the fasces (L. R. Taylor and T. R. S. Broughton, MAAR 19 [1949] 3–13).
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75. 3.87.8. Other references to the twenty-four lictors of the dictator are collected in St.R. I3 383 n. 3. 76. Per. 89 “Sylla dictator factus, quod nemo umquam fecerat, cum fascibus viginti quattuor processit” (see OLD s.v. procedo 3b, “to come into public view, appear (in a particular guise)”; also App. BC 1.100.465. 77. Thus Mommsen, St.-R. I3 383 with n. 4; that is all we would expect, considering his dictio by a consul. Lyd. Mag. 1.37 in fact explicitly gives the dictator the regal number of twelve. 78. See Plb. 6.53.6–9, esp. 7–8. These aristocratic funerals may also have influenced Polybius’ description of censors’ garb (see ibid. with 2.5.2 below), though of course he knew actual censors. Plutarch (Fab. 4.3) has Q. Fabius Maximus as dictator in 217 appear (apparently) in the city with twenty-four lictors, which W. Kunkel (Staatsordnung 120 n. 66) prefers to the explicit notice of Per. 89 on Sulla. But the quality of Plutarch’s information on this dictator is suspect: see n. 80 below. 79. 3.87.8. 80. In the year 217, the dictator Q. Fabius Maximus is said to have ordered the one surviving consul, Cn. Servilius Geminus, as he approached for a meeting in Umbria (near Ocriculum) “to come without his lictors” (Liv. 22.11.5; cf. Plu. Fab. 4.3). Coelius Antipater and the other annalists, whose treatment of Fabius’ dictatorship Livy criticizes (22.31.8–11), may have offered a different narrative of the consul Servilius’ movements. But in the tradition Livy follows, the consul evidently did not lay down the insignia of his office “immediately” after the dictator’s appointment (on which see 5.4.7 below). So perhaps he took up those insignia (in modified form?) after the dictator assigned him a new mission, a naval command (22.11.7–9, cf. 12.1–2 and 31.1–7; cf. also Plb. 3.88.8, a bit surprising after his statement at 87.8, but showing that he knew a consul retained his powers on an independent campaign). Yet some of our later Greek sources imagine that Fabius’ appointment reduced Servilius to a privatus (Plu. Fab. 4.3; App. Hann. 12.50). 81. 7.3.5 “lex vetusta . . . ut qui praetor maximus sit idibus Septembribus clavum pangat.” For previous scholarship on this problem, see 1.4.1–2 above. 82. Liv. 30.43.9 (the fetiales crossing to Africa in 201 requested an S.C. stipulating that each take one flint knife and tuft of foliage) “ut, ubi praetor Romanus imperaret ut foedus ferirent, illi praetorem sagmina poscerent”; see also Fest. p. 152 L (an actual augural decree mentioning praetores maiores and minores = consuls and praetors) with J. Linderski, ANRW II 16.3 (1986) 2177–2180. 83. Cf. Ps.-Asc. on Cic. Ver. 2.1.36 (p. 234 St.) “veteres. . . omnem magistratum cui pareret exercitus praetorem appellaverunt”; note also perhaps Polybius’ titulature for the dictator strathgo;~ aujtokravtwr (3.86.7; 87.8; also D.S. 19.76.3). See 1.4.1 above with n. 98 for Mommsen’s acceptance of this view. 84. 22.10.10 “ut is voveret cuius maximum imperium in civitate esset” with 9.7–11. On the circumstances of Fabius’ appointment as dictator, see 5.4.7 below; for the (later) elevation of his magister equitum to the same level of imperium, see 2.3.1. 85. Att. 4.1.7 “maius imperium in provinciis quam sit eorum qui eas obtineant.” 86. App. BC 4.58.248; Vell. 2.62.2; cf. Cic. Phil. 11.30 and 36. See K. M. Girardet, CCGG 3 (1992) 188 for the impossibility of an absolute imperium maius in the Republic; cf. also Girardet’s comments at 214–215, against J.-M. Roddaz, CCGG 3 (1992) 189–211. 87. See, for example, Mommsen, St.-R. II3 176 with n. 4; E. Westermayr in RE Suppl. V s.v. magister equitum cols. 644–645 and 647; T. A. Dorey, JRS 45 (1955) 94; A. N. SherwinWhite and A. W. Lintott in OCD3 910 (“he held imperium derived from the dictator and ranked with the praetors.” )
264 Notes to Chapter Two 88. Sources in MRR I 243; also Münzer, RE s.v. Minucius 52 cols. 1957–1962. For the actual nature of the promotion, see esp. Plb. 3.103.3–4; Liv. 22.25.10 with 26.7, 27.3 and 5–6, 27.8, and 28.40.10; Inscr. Ital. XIII 3 80 (“dictator magistro equitum Minucio, quoius populus imperium cum dictatoris imperio aequaverat . . . subvenit”). T. A. Dorey (JRS 45 [1955] 92–96) made a good case for preferring the “Livian” tradition of “aequatum imperium” to Polybius’ statement of the constitutional situation. Dorey also argued (ibid. 94; cf. 96) that the object of the grant was “to protect Minucius from the dictator’s absolute power of coercitio” (on the dictator’s plans to punish his subordinate for fighting against orders, cf. Liv. 22.25.13, 27.3 and Plu. Fab. 9.1, all from speeches). This solution now holds the field, and its general outlines are tentatively adopted here. In general, see M. E. Hartfield, “The Roman Dictatorship” 498–499 (accepting Dorey’s view). 89. Liv. 22.25–26, esp. 25.10–11 and 16; cf. 28.40.10; Plu. Fab. 8–9, esp. 8.4–5, 9.1–2 and 5. On the naval commission of Cn. Servilius Geminus (cos. 217), see n. 80 above. 90. Liv. 22.30.4 (plebiscitum); 27.3 (iussu populi). On “populus” = “plebs” in Livy, see my discussion at 3.5. 91. Plb. 3.103.5 tw`/ de; Mavrkw/ diasafhqeivsh~ th`~ te tou` plhvqou~ eujnoiva~ kai; th`~ para; tou` dhvmou dedomevnh~ ajrch`~ aujtw`/ with Münzer, RE s.v. Minucius 52 col. 1960. 92. Populus: Inscr. Ital. XIII 3 80 (cited in n. 88 above). Plebs: V. Max. 5.2.4; cf. also Sil. 7.542 (which does not count for much). Senate: V. Max. 3.8.2; App. Hann. 12.52. 93. On possible ways of giving out imperium, see Additional Note I. For the Plebs’ power to abrogate, see n. 96 below. 94. Compare Liv. 22.25.17–19 (the junior praetorian and “low-born” C. Terentius Varro as “sole advocate” of the law) with App. Hann. 12.51–52 and Plu. Fab. 7.5–6. Livy has nothing else to say about Minucius’ positive support among the ruling class, other than of course that of M. Metilius (for Livy’s characterization of this man, see 6.1 below). For his access to different traditions on the Minucius story, cf. 22.24.11. 95. For “coercive” measures of this type, note that a plebiscite of 210 (in this case ex S.C.) removed the choice of a dictator from the consuls of the year, while another of 172 forced the Senate to take cognizance of a matter which the consuls had blocked (5.4.2 below). P. Pinna Parpaglia (SDHI 35 [1969] 243–245) is wrong to argue that in our situation of 217 only the dictator was competent to summon the comitia centuriata for all other magistracies (except the tribunes) were in abeyance (2.2). 96. For the possibility of plebiscites de imperio abrogando of prorogued magistrates, see Liv. 27.20.12 (209) and 29.19.6 (204). On these passages, and on abrogation in general, see Mommsen, St.-R. I3 628–630; cf. R. A. Bauman, RhM 111 (1968) 37–50, esp. 37–41, but misinterpreting Livy’s reference to tribunician bills before the “populus” to mean the comitia tributa, and not the concilium plebis, and seeking to show (against the evidence) that abrogation might be directed against any holders of imperium “who while exercising their office militiae were guilty of offences against the State” (ibid. 37). 97. See, e.g., Liv. 22.26.7 and 28.40.10; V. Max. 3.8.2; Vir. Ill. 43.3. 98. 42.27.2. 99. 3.9 “equitatum . . . qui regat habeto [sc. the dictator] pari iure cum eo quicumque erit iuris disceptator.” 100. CIL I2 582 (= RS I 7, Lex Latinae tabulae Bantinae, sometimes identified with the lex Appuleia de maiestate of 103 or 100) lines 15–16 “dic., cos., pr., mag. eq., cens., aid., tr. pl., q., III vir cap., III vir a.d.a, ioudex ex h.l. plebive scito | [factus]”; CIL I2 583 (= RS I 1, Lex Acilia repetundarum, from the year 122) line 8 “dic., cos., pr., mag. eq. [ . . . ]”; cf. Cic. Rab. Post. 14 “dictator, consul, praetor, magister equitum.” In general, see St.-R. I3 561 n. 2, 562 n. 3; Kunkel, Staatsordnung 41–43. 101. Liv. 6.39.3–4.
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102. One notes that in 362, when the consul L. Genucius Aventinensis (who waged war “primus . . . de plebe consul . . . suis auspiciis”) was killed in an ambush, his consular colleague named a (patrician) dictator (Liv. 7.6.7–12). The Senate might have feared the election, as suffect, of another plebeian consul that year. 103. D.C. 43.48.1–2. Caesar’s praefecti appear to have had two lictors: see A. Alföldi in Mélanges d’histoire ancienne offerts a W. Seston (Paris 1974) 1–14, at 10–12, with MRR III 125–126. 104. Plu. Marc. 5.6 with V. Max. 1.1.5; cf. Plin. Nat. 8.223 “sauricum occentu dirimi auspicia annales refertos habemus.” I cannot enter here into the vexed problem of whether the Plutarch and Valerius Maximus passages refer to the same incident (as we can see, Pliny tells us that this type of augural vitium was frequent). See in general M. E. Hartfield, “The Roman Dictatorship” 489–494 (plausibly suggesting two incidents involving two dictatorships, one after the other in the year 219); cf. E. Badian, Gnomon 33 (1961) 497. 105. As Mommsen (St.-R. II3 174 with n. 7) thought, from Liv. 3.27.1 (the year 458). 106. See Mommsen, St.-R. III 365 n. 1, citing Liv. 10.47.1 (tribunes of the Plebs in 292) and 30.39.8 (plebeian aediles in 202). 107. D.C. 42.21.1–2; cf. 45.27.5 and 46.13.1. For Caesar as the first dictator named for a full year (probably starting in late October 48—MRR II 284 n. 1), see also D.C. 42.20.3 and Plu. Caes. 51.1. Sulla as dictator 82/81 (see Badian’s views reported at MRR III 74–75) therefore must have had his auspicia renewed each six months. Sulla probably kept the auspices of his magister equitum at six months as well (or else the commentarii of the augurs would have noted it). This was the safe course of action: the man in question (L. Valerius Flaccus, cos. 100, on whom see MRR II 67) was quite distinguished and, if given a full year, might conceivably develop ambitions of his own. Sulla presumably appointed another magister equitum after the first term (and we do not hear about it), or reappointed Flaccus. 108. Explicit in Plb. 3.87.9; Plu. Ant. 8.5. 109. For the dictator compelling abdication by the magister equitum, see St.-R. II3 176. 110. Liv. 8.31.1 with 32.12–33.2. The theme of the master of the horse’s fear of execution by his superior shows up also in the M. Minucius Rufus incident of 217: see Liv. 22.27.3 and Plu. Fab. 9.1.Though rhetorical and exaggerated, these passages may be relevant to the question whether the magister equitum in his original form ever had imperium. See further below in text. 111. As Livy tells it, the dictator charged his magister equitum with exposing the res publica to serious danger: when Papirius had gone to Rome “ad auspicia repetenda,” Fabius dared to attack the enemy incertis auspiciis (Liv. 8.32.4–7). At 10.3.6 we have a case where a Master of the Horse actually is defeated when the dictator had set out “auspiciorum repetendorum causa,” thus “proving” this theological point (on which see J. Linderski, Roman Questions: Selected Papers [Stuttgart 1995] 616–618, esp. 617 with 624 n. 31)—and showing to us that the Romans did not view the Master of the Horse as fighting under his own auspices. 112. 6.39.4 “negantem magistri equitum maius quam tribuni consularis imperium esse.” 113. 23.11.10. 114. P. Pinna Parpaglia (SDHI 35 [1969] 245–246) thinks this “quae consularis potestas sit” refers specifically to the power of M. Minucius Rufus after his promotion in 217; but the present subjunctive does not favor this interpretation. Varro’s speculative etymology of “magister equitum” (L. 5.82, “quod summa potestas huius in equites et accensos, ut est summa populi dictator”) is (as so often) clearly factitious, and does not help us with this problem. 115. Besides Caesar’s first dictatorship sine magistro equitum, followed by a year-long term of office (for both dictator and mag. eq.) in 48 (MRR II 257; 272 with text 2.3.1 above; MRR II 284 n. 1), see, e.g., Cic. Att. 9.15.2 (Caesar’s contention that “vel ut consules roget
266 Notes to Chapter Two praetor vel dictatorem dicat”; cf. 9.9.3), and Caes. Civ. 2.21.5 (Caesar finally dictus by a praetor under special dispensation provided by a lex, yet evidently without a hoped-for decree from the augurs). 116. D.C. 42.27–32. But Rome remained in turmoil, and there was actual fighting in Italy. 117. D.C. 42.27.2; 30.1. 118. Sources discussed in St.-R. II3 188f (esp. 189 n. 2). For Livy’s terminology (our most important source for this magistracy), see R. T. Ridley, Klio 68 (1986) 444–465, esp. 444–445. One designation sometimes found, “tribuni militum pro consulibus” (Liv. 4.7.1, cf. 41.10; Gel. 14.7.5 “tribuni militares, qui pro consulibus fuissent”; in general, St.-R. II3 188 n. 4), is an obvious anachronism: the concept pro consule is first found only for 326 (discussed below in 3.5). For a bibliography of the principal discussions (from Niebuhr on) of the consular tribunate, see J.-C. Richard, MEFRA 102 (1990) 767–799, at 767 n. 2; also (more generally) S. P. Oakley, A Commentary on Livy Books VI–X, Vol. I: Introduction and Book VI (Oxford 1997) 367–376. 119. Claudius in ILS 212 col. 1 lines 34–37; D.H. 11.56.3.The epitomator of Pomponius (Dig. 1.2.2.25) reports “these . . . magistrates as established were variable in number. Sometimes there were twenty, sometimes more, occasionally fewer” (“interdum . . . viginti fuerunt, interdum plures, nonnumquam pauciores”). This statement is absurd as it stands. But if “viginti” is in fact a mistaken interpretation of VI (cf. St.-R. II3 185 n. 1), “interdum plures” should refer to eight consular tribunes. 120. See Livy for 403 (5.1.2; cf. 2.10; 6.37.6) with MRR I 82 n. 3; cf. also St.-R. II3 184 n. 2. 121. Liv. 4.1–6, esp. 4.6.8; D.H. 11.53–61; Zonar. 7.19.3–4; the epitomator of Pomponius Dig. 1.2.2.25. R. M. Ogilvie (Commentary 540–541) suggests that the annalist Licinius Macer—Livy’s (4.7.12) and Dionysius’ (cf. 11.62.3) chief source for the introduction of consular tribunes—in fact fabricated the “political” explanation. 122. J.-C. Richard, MEFRA 102 (1990) 772 n. 18, provides a long list, noting variants in interpretation. 123. For a general discussion of the evidence on the individual colleges contained in Livy and Diodorus (often significantly different), see A. Drummond, Athenaeum 58 (1980) 57–72; S. P. Oakley, Commentary I 370–371. Drummond postulates a common ultimate source on the consular tribunes for these two authors, but with Diodorus’ account showing much more confusion and negligence in transmission, including contamination between colleges of different years. 124. See MRR I for the years 444 (one plebeian), 422 (one), 400 (four; according to Liv. 5.12.9 and 11–12 and 6.37.8, this is the first year in which a [sole!] plebeian reached the consular tribunate, a mistake noticed at least as early as B. G. Niebuhr, Römische Geschichte [Berlin 1811–1812] II 411 and 422), 399 (five), 396 (five, all iterating), 388 (one), 383 (one), and 379 (Livy gives three, while Diodorus adds two more). Cf. also MRR I 106 n. 1, on Diodorus’ report of the college of 380 (supplying a C. or Cn. Terentius, not found in Livy). C. G. Starr (The Beginnings of Imperial Rome 56 n. 45) doubts the existence of the Philones who were consular tribunes in 400 and 399; J. Pinsent (Military Tribunes and Plebeian Consuls: The Fasti from 44 V to 342 V [Wiesbaden 1975] 36–50) goes much further, rejecting all plebeian members of these colleges (which he thinks never totalled more than four). On the prosopographical problems in general, see R. T. Ridley, Klio 68 (1986) 450 with 455. 125. In Tria Corda 111f; cf. J. -C. Richard, MEFRA 102 (1990) 789–794, who likewise considers plebeian names among the consular tribunes to be “conscripti,” but with the possibility of plebeian participation starting in 400.See however 1 n. 63 above, where it is argued that “conscripti” never formed a separate class in the Senate. 126. 4.7.2.
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127. For a roster, see R. T. Ridley, Klio 68 (1986) 455 n. 41 and 459 n. 53; cf. 460, where Ridley discusses the view of E. Meyer (Kleine Schriften II [Halle 1924] 303) that the tribunate was meant to allow more patrician nobles to hold high office. However, S. P. Oakley (Commentary I 373–376) attacks both the political and the military explanation for the introduction of the consular tribunate, cautiously offering that it “remains enigmatic.” 128. Commentary 540. 129. G. V. Sumner, JRS 60 (1970) 72; cf. the similar (and likewise unconvincing) argument of R. E. Mitchell, Patricians and Plebeians: The Origin of the Roman State (Ithaca, N.Y., 1990) 139–142. 130. MEFRA 102 (1990) 767–799, esp. 794–798. 131. See Lyd. Mag. 1.38 with J.-C. Richard, MEFRA 102 (1990) 790 n. 72. 132. For their title, see St.-R. II3 702 n. 2. 133. MEFRA 102 (1990) 767–799, esp. 780–788. 134. ILS 212 col. 1 lines 34–37. 135. 17.21.19. Some take this at face value, attributing full imperium to the consular tribunes: H. Rudolph, NJAB 114 (1939) 152; F. Sini, SDHI 42 (1976) 420–421; J.-C. Richard, MEFRA 102 (1990) 781. Cf. also the view of H. Versnel, cited below in this section. 136. In W. Eder (ed.), Staat und Staatlichkeit in der frühen römischen Republik (Stuttgart 1990) 469. 137. Liv. 5.52.16; cf. 13.3 and 18.1–2. 138. Liv. 4.31.2; 36.5 “praefectus urbis”; 45.7–8; 59.1; 6.6.15. 139. Ridley (Klio 68 [1986] 456) notes that consular tribunes were elected in quite a few “years of peace,” namely 444, 438, 433, 432, 425, 424, 422, 420, 419, 417, 416, 387, and 384. But he rightly goes on to stress that the possibility of military action in most of these years was very great. G. V. Sumner (JRS 60 [1970] 72) is unconvincing in his argument that the Romans chose consular tribunes primarily in years when they did not plan a military initiative. For the impossibility of rationalizing the appointment of consular tribunes by years of “war” and “peace”, see F. De Martino, Storia della Costituzione Romana I2 (Naples 1972) 320–321. 140. K. Hanell, Das altrömische eponyme Amt (Lund 1946) 177–180; R. Werner, Der Beginn der römischen Republik: Historisch-chronologische Untersuchungen über die Anfangszeit der libera res publica (Munich 1963) 354; cf. the discussion of J. Linderski, Roman Questions 570–572. A. Heuss (Gedanken und Vermutungen zur frühen römischen Regierungsgewalt [Göttingen 1982] 72) thinks that the consular tribunes were all informally called “praetores,” which gave rise to the later (post-367) technical title. Cf. the similar but more extravagant hypothesis of D. Sohlberg in Historia 40 (1991) 257–274 and CCCG 4 (1993) 247–258. 141. So far H. Versnel, Triumphus (Leiden 1970) 350, with n. 1 for previous scholarship. Auspicia maxima are denied to the consular tribunes by R. Combès, Imperator: Recherches sur l’emploi et la signification du titre d’imperator dans la Rome républicaine (Paris 1966) 46. 142. J. Linderski, Roman Questions 570. 143. See Liv. 4.31.4 “cum . . . religio obstaret ne non posset nisi ab consule dici dictator, augures consulti eam religionem exemere.” I thank Professor Badian for pointing out the significance of this episode to me, and suggesting this line of interpretation. In general on this, see J. Linderski, ANRW II 16.3 (1986) 2180–2181. For consular tribunes later naming dictators, see Liv. 4.31.5; 46.11; 57.6; cf. Zonar. 7.19.5. 144. Zonar. 7.19.5 levgetai de; o{ti oujdei;~ tw`n ciliavrcwn, kaivtoi pollw`n pollavki~ nikhsavntwn, ejpinivkia e[pemyen, with nothing in the Fasti or our literary sources to gainsay him. On this see J.-C. Richard, MEFRA 102 (1990) 784 with n. 55, against R. E. A. Palmer’s hypothesis (The Archaic Community of the Romans [Cambridge 1970] 222) that Augustus had
268 Notes to Chapter Two such notices removed from the triumphal Fasti. For treatments of the problem, see T. J. Cornell, The Beginnings of Rome: Italy and Rome from the Bronze Age to the Punic Wars (c. 1000–264 B.C.) (London 1995) 463 n. 22 (with Cornell seeing no technical reason why consular tribunes should be debarred from the honor). 145. St.-R. I3 128 (cf. 22 n. 1); II3 190. J. Linderski (ANRW II 16.3 [1986] 2180f) has decisively refuted the old view of R. Laqueur, that tribunes did not have auspicia at all (Hermes 44 [1909] 228f); this is also the opinion of, e.g., R. M. Ogilvie, Commentary 584; A. Heuss, Gedanken und Vermutungen 69–72; and R. E. Mitchell, Patricians and Plebeians 140 n. 34. 146. Klio 68 (1986) 459. 147. See MRR I for the coss. M. Geganius Macerinus in 443 (triumph), A. Cornelius Cossus in 428 (triumph), N. Fabius Vibulanus in 421 (ovatio), C. Valerius Potitus Volusus in 410 (ov.), and L. Valerius Potitus II and M. Manlius Capitolinus in 392 (triumph and ov. respectively). If there were any possibility that a consular tribune might triumph, we might expect someone eventually to prevail successfully on the augurs to issue a responsum allowing it! 148. Triumphus: An Inquiry into the Origin, Development and Meaning of the Roman Triumph (Leiden 1970) 168 n. 2 (citing Cic. Att. 4.18.4); 186–188; 350–351. 149. Pace R. T. Ridley (Klio 68 [1986] 456), resuscitating an old suggestion of Sigonius: “[T]he curia Faucia was the first curia to vote in two disastrous years, that of the Gallic sack and of the Caudine forks ([Liv.] 9.38.15). Thus the tribunes had the lex curiata since they held office in 390.” But the lex curiata for which the curia Faucia voted first in 390 was surely that of the dictator M. Furius Camillus (Liv. 5.46.11, passed just before the fall of Rome). Faucia is said to have been “insignis . . . captae urbis,” not for the disaster at Allia incurred by the consular tribunes. This may be the reason why the Romans regarded Faucia’s leading vote for the curiate law of another dictator in 310 a triste omen (9.38.15). All the same, cf. also A. Bernardi, Athenaeum 30 (1952) 42 (who supposes the consular tribunes were actually tribuni celerum, enhanced by election in the comitia curiata); J.-C. Richard, MEFRA 102 (1990) 778–779 and RPh 63 (1989) 80–81. 150. As we might expect from the mention of “ave sinistra” in Cic. Leg. 3.9 (cited in 2.2.1 with n. 63, both above). As far as our information goes, commanders in the field do not usually seem to have taken auspicia by observing the flight of birds. But see Plu. Marc. 5.2; cf. also Liv. 27.16.15 (where the auspicant is in the city of Tarentum). 151. Pace J.-C. Richard, MEFRA 102 (1990) 787. 152. 4.50.5. 153. 4.7.2. 154. St.-R. I3 38 n. 3; II3 184–185. 155. Liv. 3.33.8, translation adapted from that of B. O. Foster in the Loeb edition (1922). 156. Liv. 3.36.3–5, translation adapted from that of B. O. Foster (see preceding note). 157. Somewhat analogous is the rule, attested for the late Republic, that holders of delegated (praetorian) imperium were entitled to lictors, but not the praetor’s full complement of six (Caes. Civ. 1.30.2 and Cic. Att. 10.4.9 with Mommsen, St.-R. I3 385 and n. 3; also E. S. Staveley, Historia 12 [1963] 470 with n. 60; E. Badian, Phoenix 25 [1971] 141). In Cicero’s day, at least, delegated imperium apparently was considered weaker than that which proceeded from a magistracy. 158. Cf., e.g., Liv. 6.22.1, where four tribuni militum are stationed in or near Rome. 159. References in St.-R. II3 332–335; also J. Suolahti, The Roman Censors (Helsinki 1963) 20–21. On the lustrum, see R. Ogilvie, JRS 51 (1961) 31–39. 160. Election auspicato in the comitia centuriata: Messalla ap. Gel. 13.15.4 “maiores [sc. magistratus, i.e., consuls, praetors, censors] centuriatis comitiis fiunt”; Liv. 9.34.10 (310),
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40.45.8 (179) and cf. 24.10.2 (214); see in general St.-R. II 335–336; 340–341. For the eighteenmonth period, see Zonar. 7.19.7 (ejpi; trei`~ eJxamhvnou~, perhaps preserving the official formulation of the censors’ term) and Liv. 4.24.5 (434); cf. 9.33.6 and 34.6–16 with J. Suolahti, The Roman Censors 26–30. On the authenticity of the censorship of 443 (doubted by Mommsen, St.-R. II3 334f, among others), see A. E. Astin, Historia 31 (1982) 174 n. 1. 161. 4.8.2–7. 162. Similar motivations for the introduction of the office, though with less elaboration, are found in D.H. 11.63.2; Zonar. 7.19.6, and the epitomator of Pomponius in Dig. 1.2.2.17. 163. The Roman Censors 676–677. 164. J. Suolahti, The Roman Censors 23 and 673–679, with previous bibliography. Only the matter of the census (and its attendant rites) seems to have been at issue. Like the consuls before them, the consular tribunes are said to have conducted the lectio senatus; nevertheless, by the year 312 the censors saw to that too (Fest. s.v. praeteriti senatores p. 290 L, with G. Niccolini, I Fasti dei tribuni della plebe [Milan 1934] 389f). See further in 2.5.2. 165. Liv. 7.22.7–10; cf. 10.8.8. C. Marcius Rutilus’ election is discussed in 3.3.1 below. 166. Liv. 8.12.16; Plu. Cat. Mai. 16.2. For the first plebeian lustrum, see Fast. Cos. Cap. under the year 280; Per. 13. 167. Per. 59. 168. Messalla ap. Gel. 13.15.4; Cic. Agr. 2.26. 169. Cf., however, R. Develin, Mnemosyne 30 (1977) 64, who tries to use this statement in its literal sense to aid his own theory of the lex curiata, adding an implausible suggestion on the lex centuriata (the curiae formed “a purely city assembly” and the censors, to fulfill their tasks, needed to receive potestas from a body representing a larger geographical area). 170. Full auspicia: Messalla, “patriciorum auspicia in duas sunt divisa potestates. maxima sunt consulum . . . censorum.” Different electoral auspices: Messalla, “censores . . . non eodem rogantur auspicio atque consules.” Lex centuriata: Cicero, “centuriata lex censoribus ferebatur . . . curiata ceteris patriciis magistratibus.” Two grades of maxima auspicia: Messalla, “maxima sunt consulum . . . censorum. Neque tamen eorum . . . inter se eadem aut eiusdem potestatis, ideo quod conlegae non sunt censores consulum . . . Ideo neque consules . . . censoribus neque censores consulibus . . . turbant aut retinent auspicia; at censores inter se, rursus . . . consules . . . inter se et uitiant et obtinent.” 171. Var. L. 6.93 and Plin. Nat. 35.197; contra Zonar. 7.19.8. 172. Gel. 14.7.4. 173. Zonar. 7.19.8. 174. On the privileges and powers of the censors, see in general Mommsen, St-R. II3 354–356; J. Suolahti, The Roman Censors 70–73. On the purple toga, see Plb. 6.53.7 (who, as noted in 2.2.2 above, must have seen the Roman funerals where actors wore the regalia of the various magistrates) with F. W. Walbank, Commentary I 739 (suggesting the possibility that the censors did not actually wear the purple in their lifetime). Some scholars have tried to give the censors—at least the early ones—imperium: cf. R. Develin, Mnemosyne 30 (1977) 63f, and in K. A. Raaflaub (ed.), Social Struggles in Archaic Rome (Berkeley 1986) 334 (with n. 21 for further literature). 175. See 1.3.2 above. 176. In ILLRP 310, the elogium of L. Cornelius Scipio (cos. 259 and ces. 258)—probably contemporary with his burial ca. 240–230—line 1 “aidiles, cosol, cesor” is simply chronological in order; but note line 5 “consol censor aidilis,” where these offices must be listed in descending importance. This order is confirmed by ILLRP 309, the elogium of his father L. Cornelius Scipio Barbatus (cos. 298, ces. 290), line 4 “consol censor aidilis.” Barbatus’ elogium is generally thought to be carved later than that of his son, perhaps by a full gener-
270 Notes to Chapter Three ation; but R. Wachter (Altlateinische Inschriften [Bern 1987] 318) and G. Radke (RhM 134 [1991] 69–79) have each argued that its language shows composition soon after Barbatus’ death (i.e., ca. 270–260), and not near the end of the third century. 177. The first is CIL I2 583, cited in n. 100 above. But the lists in these laws must go back to the fourth century order, or as close as we can get to it; it is unlikely that they were ever radically changed. For the conservatism of these formulaic sections, note, e.g., in the laws of the late Republic the persistence of the (mostly) outmoded offices of dictator and master of the horse (cf. Cic. Rab. Post. 14, cited in n. 100 above). 178. See n. 100 above. Zonaras (7.19.10) states “of the occasional magistrates, dictators were given first rank, censors second, while Masters of the Horse had third place.” Zonaras seems to refer to speaking order in the Senate, as seen from a reference to the princeps senatus that follows. Virtually all censors in the developed Republic were consulares (see Mommsen, St.-R. I3 549 with n. 1, noting this was invariable from 209 down into the triumviral period), which may explain this anomalous statement. On anachronism elsewhere in this passage, cf. M. G. Morgan, Athenaeum 79 [69] (1991) 362–363. 179. Inscr. Ital. XIII 3 79; cf. 12. 180. On the lex Ovinia, see Fest. s.v. praeteriti senatores p. 290 L with A. E. Astin, Historia 31 (1982) 185–187, esp. 185 n. 15; K.-J. Hölkeskamp, Die Entstehung der Nobilität 142 n. 15. Before that law—to take the most common interpretation of Festus’ entry—consuls or consular tribunes adlected individuals into the Senate. On the other hand, this passage of Festus admits the possibility that censors started compiling the Senate list at some point (perhaps well) before 312, and the innovation of the lex Ovinia was simply to instruct them how to do it. 181. As can be inferred from the fact that no men who were not ex-consuls receive the censorship between 209 and 42; at this precise time the Romans started to insist on the praetorship as a prerequisite for the consulship (7.2.4 below). Notes to Chapter 3 1. For a collection of all the sources on this legislation, with short discussion and fundamental bibliography, see D. Flach, Die Gesetze der frühen römischen Republik 280–297, esp. 294–297 on the lex Licinia Sextia de consule plebeio. 2. Messalla ap. Gel. 13.15.4; cf. Liv. 7.1.6 praetorem...collegam consulibus atque iisdem auspiciis creatum; other sources are collected in St.-R. II3 193 n. 2. The survival of the formulation “iisdem auspiciis” strikingly demonstrates the conservatism of the language of the augural books; by 197 (Liv. 33.24.2) consuls and praetors no longer were elected on the same day (see J.-C. Richard, RPh 56 [1982] 26 with nn. 41 and 42). This arrangement obviously was another “dodge” needing augural approval. Was the observation that consuls were elected not at the same time, but returned one after the other (Serv. A. 4.102 “non simul”) used as a “wedge” to allow for the separate election of praetors when their number reached four or six? At any rate, it is inconceivable that no auspices were taken before praetorian elections once they became separate, and that the consular elections were “deemed” to be carrying on: perhaps “iisdem auspiciis” was reinterpreted as meaning “auspices taken in the same way “ (sc. as the consular ones). 3. See St.-R. II3 80 n. 7; 135f. 4. 387/386 according to Plb. 1.6.1–2. This date may have come from a Hellenistic synchronism: note Just. 6.6.5 with F. W. Walbank, A Historical Commentary on Polybius (Oxford 1957) I 46f. Yet Polybius also seems to have had an annalistic account which placed the capture in 390, in the context of the Gallic Wars (2.18.6–19.1). This tradition seems fairly substantial, whereas synchronisms are a bit suspect.
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5. Continuity is stressed by F. De Martino, ANRW I 1 (1972) 248–249, but in the context of his own speculative reconstruction of the early constitution; cf. J.-C. Richard, RPh 56 (1982) 23, who emphasizes the influence of the praefectura urbi and consular tribunate in giving rise to the praetor (in his view, primarily a legal magistrate). 6. Liv. 6.34.5–11; cf. D.C. 7 F 29.1–2. For the historical incongruities in the anecdote of Fabia, Licinius’ wife (plebeians were also eligible for the consular tribunate, and had held it as recently as 379), see K. von Fritz, Historia 1 (1950) 4–6. T. J. Cornell in E. Gabba (ed.), Tria Corda: Scritti in onore di A. Momigliano (Como 1983) 114–115, who wants to use this tale to support his hypothesis that the consular tribunate was open to “conscripti” (a mirage—see 1.3.3 with n. 63, both above) but not plebeians, overrates the ability of the annalists to keep their stories straight. For a literary analysis of this anecdote, see C. S. Kraus, Phoenix 45 (1991) 314–325, and also her commentary Livy Ab urbe condita Book VI (Cambridge 1994) 271–277 (arguing that it is a comic treatment of the Lucretia theme). 7. Liv. 6.35.6–10. See J. Bayet in his Budé edition of Livy Book 6 (Paris 1966) 130f, for a discussion of the “quinquennium anarchique.” There is only one year of anarchy in Diodorus’ account (15.75.1). 8. Liv. 6.38.4–9. 9. Liv. 6.42.4–8; Plu. Cam. 40–41. 10. Liv. 6.42.10. 11. 6.42.11 “concessumque ab nobilitate plebi de consule plebeio, a plebe nobilitati de praetore uno qui ius in urbe diceret ex patribus creando.” For the curule aedileship, see 6.42.14; 7.1.6. Livy again alludes to the social motivation for instituting the praetorship at 7.1.1: “hos sibi patricii quaesivere honores [the praetorship and curule aedileship] pro concesso plebi altero consulatu.” There is no good reason to consider the creation of the praetorship an act separate and subsequent to the Licinian-Sextian compromise, as do H. Siber, Römisches Verfassungsrecht (Lahr 1952) 58; also U. von Lübtow, Das römische Volk: Sein Staat und sein Recht (Frankfurt a. M. 1955) 228, and in Studi in onore di A. Biscardi IV (Milan 1983) 350. 12. Liv. 7.1.2. 13. Dig. 1.2.2.27 “cum . . . consules avocarentur bellis finitimis neque esset qui in civitate ius reddere posset, factum est, ut praetor quoque crearetur, qui urbanus appellatus est, quod in urbe ius redderet.” Translation in text is that of A. Watson in T. Mommsen, P. Kreuger, and A. Watson, The Digest of Justinian I (Philadelphia 1985). 14. Dig. 1.2.2.25. 15. In ANRW II 15 (1976) 518–533. 16. Mag. 1.2; cf. 35. On Lydus’ errors in chronology, see A. Bandy, Ioannes Lydus On Powers (Philadelphia 1983) xxiiif, and especially T. Wallinga, RIDA 39 (1992) 359–380. For a list of Lydus’ named sources for the De Magistratibus (far more impressive than what he actually gives us in his own work!), see C. N. Tsirpanlis, Byzantion 44 (1974) 487–489. 17. Mag. 1.38. 18. Mommsen believed that legati were only regularly appointed by the Senate after the time of the Second Macedonian War, although he conceded that they must have been first developed at the time (ca. 228) of the creation of “die überseeischen Commandos,” Sicily and Sardinia (St.-R. II3 696f; cf. J. Linderski, Roman Questions: Selected Papers [Stuttgart 1995] 301–302). However, in this work I tentatively accept the general conclusion of B. Schleussner (Die Legaten der römischen Republik: Decem legati und ständige Hilfsgesandte [Munich 1978] 101–147), that the Senate sent its members as legati to accompany commanders on the Italian mainland in the Hannibalic War. 19. Liv. 4.43.12; cf. Tac. Ann. 11.22.3–5. 20. Liv. 7.39.3.
272 Notes to Chapter Three 21. Liv. 8.2.1–2. 22. Liv. 8.17.12, a grant of civitas sine suffragio to Acerrae (nr. Cremona) in the year 332; cf. Vell. 1.14.4 (who does not mention the praetor, but only the censors who actually enrolled the Acerrani). 23. 9.20.5 (cf. 10) with J. Linderski, Roman Questions 144 n. 5, for the correct translation of this passage. It does not seem that these praefecti were sent to Capua regularly after 318: see R. C. Knapp, Athenaeum 58 (1980) 25–26, noting previous discussions of this passage at 25 n. 53. On “praefecti iure dicundo” in general, see 5.2.4 below. 24. Liv. 9.20.10. 25. In the view of R. E. Mitchell (Patricians and Plebeians: The Origin of the Roman State [Ithaca, N.Y. 1990] 184 and 185, discussed in 1.5.2 above), “the praetor urbanus certainly was not associated with Roman law until nearly two centuries after the office was created”— an astounding argument from silence. 26. Cf. Liv. 10.22.7, with more anachronism. 27. 23.32.15 “qui ad ius dicendum creati erant.” 28. Storia della Costituzione Romana I2 (Naples 1972) 429. See also U. von Lübtow, Das römische Volk 230–231, and in Studi Biscardi IV 351–352. 29. Liv. 7.16.1, 42.1; 8.28.1–9 with MRR I 146. For a basic bibliographic discussion of the historicity of these issues see K.-J. Hölkeskamp, Die Entstehung der Nobilität: Studien zur sozialen und politischen Geschichte der römischen Republik im 4. Jhdt. v. Chr. (Stuttgart 1987) 36 n. 160 (nexum), and 40 nn. 178–179 (debt problem); see also the narratives of L. Savunen in U. Paananen (ed.), Senatus Populusque Romanus: Studies in Roman Republican Legislation (Helsinki 1993) 143–159; T. J. Cornell, The Beginnings of Rome: Italy and Rome from the Bronze Age to the Punic Wars (c. 1000–264 B.C.) (London 1995) 330–333. 30. 3.55.7. If the notice is genuine, their function nevertheless must remain a mystery. See E. Ferenczy, ZRG 89 (1972) 338–344, on the case for and against identifying these “iudices” with the Xviri stlitibus iudicandis; Ferenczy, following Mommsen (St.-R. II3 605), argues for the identification. 31. Storia della Costituzione Romana I2 420–422. 32. Die Einheit des Gewaltgedankens im römischen Staatsrecht (Munich 1914) 206–224. 33. See Die Entstehung der Nobilität 77, on Sp. Furius Camillus (pr. 366) and L. Pinarius (pr. 349); we may note that the latter man served during the high point of the “patrician reaction” (see 3.3.1 below), when two patricians regularly filled both consular places. Contra S. P. Oakley, A Commentary on Livy Books VI–X, Vol. I: Introduction and Book VI (Oxford 1997) I 649, remarking on Livy’s report of the compromise of 367: “this kind of bargaining has an air of unreliability about it.” 34. 8.15.9. 35. St.-R. II3 204. All the known holders of the praetorship in the thirty years following the Licinian-Sextian compromise are indeed patrician (see the praetorian Fasti in Appendix B). 36. 6.42.11. 37. See St.-R. II3 79–80; K.-J. Hölkeskamp, Die Entstehung der Nobilität 62–90, esp. 74–82. Patricians inevitably presided over the consular elections in this era: the first certain example of a plebeian president comes only in 296 (R. Rilinger, Der Einfluss des Wahlleiters bei den römischen Konsulwahlen von 366 bis 50 v. Chr. [Munich 1976] 52; cf. K.-J. Hölkeskamp, Die Entstehung der Nobilität 115–119, accepting the possibility for 326). Patrician colleagues held the consulship in 355–353, 351, 349, 346 and 343; for the patricians’ efforts to keep the plebeians out of the consulship in this period, see Liv. 7.18.3–10, 21.1–4, 22.10–11 and 24.11. See further 3.3.2 below on the Genucian plebiscite of 342. 38. F. Münzer (Römische Adelsparteien und Adelsfamilien [Stuttgart 1920] 31) assumed automatically that it was the plebeian consul M. Popillius Laenas who performed the dictio,
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as have most subsequent scholars: see G. Poma, RSA 25 (1995) 81 with n. 46. But it might have been his colleague M. Fabius Ambustus, father-in-law to the plebeian activist C. Licinius Stolo (Liv. 6.34.5). 39. Liv. 7.17.9; 10.37.10. 40. Liv. 7.22.8–9 with K.-J. Hölkeskamp, Historia 37 (1988) 379–382 on the identity of the consul Quinctius, arguing against his identification with T. Crispinus, cos. 354. 41. See Inscr. Ital. XIII 1 32f, 104, 398f with MRR I 115 n. 2. 42. On the Licinii in this period, see J.-L. Halpérin, RD 62 (1984) 167. But see n. 63 below on the status of descendants of consular tribunes. 43. There has been much speculation on this man’s political attitude, with Münzer (RE s.v. Sulpicius 83 coll. 817–820) suggesting an eventual volte face after initial membership in a mediating faction (as seen from his censorship of 366): for discussion, see K.-J. Hölkeskamp, Die Entstehung der Nobilität 48–51, esp. 50 n. 74. 44. Perhaps the tribunes, even at that time, could threaten a formidable veto: see Cic. Brut. 55, reporting an incident of probably 291 (G.V. Sumner, The Orators in Cicero’s Brutus: Prosopography and Chronology [Toronto 1973] 28f), with E. Badian in W. Eder (ed.), Staat und Staatlichkeit in der frühen römischen Republik (Stuttgart 1990) 473. 45. 7.22.7–10. 46. See the sources in MRR I 133–134. For discussion (portraying the citizen mutiny as a preliminary to the Genucian laws of that same year), see E. Gabba, Le rivolte militari romane (Florence 1975) 39–45 and RFIC 103 (1975) 148–149; also K.-J. Hölkeskamp, Die Entstehung der Nöbilitat 90–113 passim and Historia 42 (1993) 12 with n. 1. 47. In 355, 354, and 353 there were two patrician consuls; then C. Marcius Rutilus cos. II 352; two patrician consuls in 351; M. Popillius Laenas, cos. III 350; two patrician consuls in 349; M. Laenas, cos. IV 348; C. Plautius Venox cos. 347 (cf. his relative C. Plautius Proculus, cos. 358); C. Poetilius cos. II 346; two patrician consuls in 345; C. Rutilus, cos. III 344; two patrician consuls in 343; C. Rutilus, cos. IV 342; and C. Venox, cos. II 341. As K.-J. Hölkeskamp notes (Historia 42 [1993] 22), “C. Marcius Rutilus and M. Popillius Laenas . . . share nearly half of all plebeian consulships between 366 and 342”; cf. Die Entstehung der Nobilität 86. 48. 7.42.2 (after the notice of a financial measure) “item aliis plebi scitis cautum ne quis eundem magistratum intra decem annos caperet neu duos magistratus uno anno gereret [not actually attested before 342—Mommsen, St.-R. I3 513f] utique liceret consules ambos plebeios creari.” Genucius’ political measures are much discussed: see K.-J. Hölkeskamp, Die Entstehung der Nobilität 86, 94–95, esp. 95 n. 32 for earlier treatments, to which add (especially) G. Poma, RSA 22–23 (1992–1993) 43–68 and 24 (1994) 49–69; W. Kunkel, Staatsordnung und Staatspraxis der römischen Republik: Die Magistratur (Munich 1995) 6–7 (questioning authenticity). 49. A full list of “violations” of the alleged Genucian law against iteration is compiled by R. Billows, Phoenix 43 (1989) 112–133, at 116 n. 8; see also S. P. Oakley, A Commentary on Livy Books VI–X, Vol. II: Books VII–VIII (Oxford 1998) 24–25. I cannot agree with the general conclusion of Billow’s article (accepted tentatively by N. Rosenstein, Phoenix 47 [1993] 317 n. 7), that the lex Genucia was a forgery of the early second century, perhaps by Sex. Aelius Paetus Catus, cos. 198. 50. St.-R. I3 519 n. 5. 51. On the law of 339—introduced by Q. Publilius Philo as dictator—see Liv. 8.12.15 “ut plebi scita omnes Quirites tenerent”; cf. Gai. Inst. 1.3, asserting that before the lex Hortensia of 287 patricians did not consider themselves bound by plebiscites. For the debate over the historicity of the lex Publilia, see K.-J. Hölkeskamp, Die Entstehung der Nobilität 163–166 and AKG 70 (1988) 292–295 (who himself chooses to regard it as an anachronistic
274 Notes to Chapter Three anticipation of the lex Hortensia of 287). For an attempted defense of this law, see R. Develin, Mnemosyne 31 (1978) 55–60 and The Practice of Politics in Rome, 366–167 B.C. (Brussels 1985) 60–61 (also suggesting that Publilius may have been thinking of patrician disregard of the lex Genucia); cf. A. H. M. Jones, The Criminal Courts of the Roman Republic and Principate (Oxford 1972) 33, for repetition of laws on the same subject in the Republic. 52. Historia 28 (1979) 65–75; see also (accepting this interpretation) T. J. Cornell, Beginnings of Rome 337f; S. P. Oakley, Commentary I 653f. 53. More accurately, as Professor Badian has suggested to me, that one plebeian consul must be creatus per year: this would explain how in 86 L. Valerius Flaccus was elected to serve as suffect consul along with L. Cornelius Cinna (MRR II 53), though both were patricians. 54. Historia 42 (1993) 24–25; see also Hölkeskamp’s full discussion in Die Entstehung der Nobilität 126–140. 55. Cf. TLL VII 2 cols. 40f s.v. intra I B 1 b for this meaning of the preposition. 56. Liv. 8.12.16. The terms of this law must follow what Richard (see above 3.3.2 with n. 52) has suggested for the Genucian plebiscite, which related to plebeian consuls. See also K.-J. Hölkeskamp, Die Entstehung der Nobilität 109–110. 57. 8.15.9. 58. There could have been at the very most a dozen plebeian consulares alive at this time, including Q. Publilius Philo. Only fourteen individual plebeians had reached the consulship in the years 366–338, two of whom had died in office (L. Genucius, cos. II 362; and P. Decius Mus, cos. 340). There is no telling, of course, whether any of the plebeian consular tribunes from the early part of the century were still active. 59. In W. Eder (ed.), Staat und Staatlichkeit 473. 60. See the praetorian Fasti in Appendix B under the years 322, 296, 293, and 283. 61. 7.22.7 “concordiam ordinum turbavit.” 62. 8.15.1–6. 63. However, the question of the status of gentes descended from plebeian consular tribunes is a difficult one. Many of these families failed to produce consuls for centuries to come, if at all (e.g., the Titinii, Maelii, Trebonii, Sextilii, and Antistii), which may suggest that Philo’s ancestry did not in itself make him “regimentsfähig” (M. Gelzer’s term in his Die Nobilität der römischen Republik [Leipzig 1912], to avoid the possibly anachronistic nobilis) in the eyes of the incipient consular clique. 64. P. Decius Mus, cos. 340; Q. Publilius Philo, cos. 339; C. Maenius, cos. 338; P. Aelius Paetus, cos. 337; K. Duillius, cos. 336; A. Atilius Regulus, cos. 335; T. Veturius, cos. 334; (333 is a “dictator year”); Cn. Domitius Calvinus, cos. 332; M. Claudius Marcellus, cos. 331. There were Publilii as tr. mil. c.p. in 400 and 399; a Duillius as tr. mil. c.p. in 399; and an Atilius (but not necessarily a direct ascendant of the cos. 335) as tr. mil. c.p. in 444, 399 and 396. On the origins of these plebeian consuls, see also M. Gelzer, Kleine Schriften I (Wiesbaden 1962) 190–192. 65. On this incident, cf. K.-J. Hölkeskamp, Die Entstehung der Nobilität 115 (suggesting that the Senate wanted to avoid a new controversy between the Orders after the troubled year 342 and Philo’s activism of 339). 66. Note L. Plautius Venno (a relative of the cos. 347, II 341), cos. 330; C. Plautius Decianus (another Plautius, but a Decius by birth), cos. 329; P. Plautius Proculus, cos. 328; Q. Publilius Philo, cos. II 327; C. Poetilius, cos. III 326 (cos. 360, II 346!). New gentile names then appear in the plebeian Fasti roughly once every three years (in which consular pairs, and not dictators, are reported) down to 287. See MRR I on the plebeian consuls for 325, 323, 322, 307, 305, 304, 302, 300, 293, 290, and 289.
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67. See MRR I, esp. 97 (the year 389, a triumph over Volsci, Aequi, and Etruscans); 101 (385, another Volscian triumph); 105 (380, triumph over Praenestini). 68. Sources for the colonies in E. T. Salmon, Roman Colonization under the Republic (Ithaca, N.Y. 1970) 43 with 171 n. 53. For Tusculum, see Liv. 6.26.8 with R. J. Rowland, Latomus 42 (1983) 749–762, at 758–759. 69. Liv. 6.6.14 and 9.5 with U. Coli, Scritti di diritto romano (Milan 1973) II 597–599; C. G. Starr, The Beginnings of Imperial Rome (Ann Arbor 1980) 16–19 and 24 n. 10. 70. See in general G. Bandelli in A. Momigliano and A. Schiavone (eds.), Storia di Roma I (Turin 1988) 505–525, esp. 512–514; also S. P. Oakley, Commentary I 360–365. 71. 2.18.6–19.1, in contrast to an earlier passage (1.6.1–2), which places the sack in 387/386: see n. 4 above. 72. 6.42.4–8; cf. Plu. Cam. 40–41. 73. Liv. 7.1.3 (366); 9.6–11.1 (361); 11.2–11 (360); 12.7–15.8 (358); 23.1–24.9 (350); 25.3–26.9 (348). 74. 7.23.3–4, 24.9. 75. 7.25.10–11. 76. Despite the precedent of 362, on which see 2.3.1 above. At all times, when a consul died early, a cos. suff. was supposed to be elected (Additional Note IV). 77. See 7.25.1, alleging popular discontent over the original election of the consuls for that year. 78. 7.25.12. Livy does not mention who commanded the two urban legions: it must have been the praetor (in combination with his other duties), unless a praefectus urbi had been appointed. J.-C. Richard (Historia 28 [1979] 70–72) has thankfully refuted the contention of E. S. Staveley (Historia 3 [1954–1955] 208–211), that L. Pinarius was a plebeian. 79. 7.26.10–15. 80. Liv. 7.11.6; 12.1–4. 81. 8.10.11. 82. Liv. 9.5.4, and cf. also 9.9.7–8 (the speech of the consul Sp. Postumius Albinus). Though the story of the Caudine disaster obviously invited a good deal of tendentious elaboration, I am not convinced that the sponsio itself must be regarded as a fake, as M. H. Crawford has argued (PBSR 41 [1973] 1–7). In Liv. 8.34.7–10, the (highly rhetorical) speech of the dictator L. Papirius Cursor, the praetor is not envisaged as present in the normal chain of military command; but here Livy (or whoever wrote this speech) may well be influenced by what was the later normal Republican practice of keeping the pr. urb. at home. 83. See MRR I for 362, 361, 360, 358, 356, 353, 352, 345, 342, 340, 339, 337, 334, 332, 325, 322 (uncertain), 320 (uncertain), 316, 315, 314, 313 (uncertain), 312, 310, and 302 (two pairs of dictatores rei gerundae causa). 84. Liv. 8.9–11;12.2–3. But on this devotio, see 2 n. 22 above. 85. This is the only example of the cumulation of the praetorship and dictatorship in the Republic: see St.-R. I3 514 n. 1. The only near parallel—unless it is a mistake by the antiquarians of the late Republic—is L. Postumius Megellus, censor “idem qui pr. erat” in 253 according to the Fasti Capitolini. 86. It would be useful to know the exact status and identity of the P. Cornelius who in 310 commanded a Roman fleet off Campania “quem senatus maritimae orae praefecerat” (Liv. 9.38.2–3). Broughton’s conjecture of “IIvir navalis” (MRR I 163) should be ruled out, because these men were created (in 311) only “classis ornandae reficiendaeque causa” (Liv. 9.30.4). Since no office is mentioned, he is probably at most a praefectus. 87. Liv. 10.21.3–4; 6.
276 Notes to Chapter Three 88. Liv. 8.29.9. 89. 8.36.1. 90. MRR I 148. 91. See 2.1 above. Mommsen (St.-R. I3 666) accordingly held that the institution of the praefectus urbi was made redundant by the creation of the praetor in 367 (a supposition which forces him to explain the appointment of L. Papirius Crassus as akin to a replacement magister equitum—St.-R. I3 665 n. 3). This view depends on taking Livy at his word, that the praetor was created “qui ius in urbe diceret.” The Romans will not have completely eliminated this useful office. See 4.1.1 below for the possibility that praetors also could leave a praefectus when they left the city. 92. Liv. 8.33.3–4 with Additional Note VIII. 93. 8.26.7, describing the first prorogation (in 326), discussed immediately below in text. 94. Noted already by A. W. Zumpt, Das Criminalrecht der römischen Republik II (Berlin 1868) 37. 95. 8.23.10–12. For a full discussion of this and all subsequent prorogations down to the time of the Second Punic War, see I. Buti, Index 19 (1991) 245–267 and 20 (1992) 435–472. On T. Quinctius Capitolinus Barbatus, cos. III 465 and anachronistically termed “pro cos.” in our two main sources for 464 (Liv. 3.4.10; D.H. 9.63.2), see R. M. Ogilvie, A Commentary on Livy Books 1–5 (Oxford 1965) 399f (suggesting that he was appointed by Rome in 464 to serve as one of the two annual commanders of the Latin League); K.-J. Hölkeskamp, Die Entstehung der Nobilität 147 n. 48; I. Buti, Index 20 (1992) 437–438. 96. See Laelius Felix ap. Gel. 15.27.4; L. R. Taylor, Roman Voting Assemblies from the Hannibalic War to the Dictatorship of Caesar (Ann Arbor 1966) 60. Livy’s inaccurate formulation has spawned some consequential misinterpretations, e.g., R. T. Ridley, Historia 30 (1981) 295 (“prorogatio had originally been managed by the comitia, since it called for a reaffirmation of the People’s choice in the election a year earlier”). 97. See 3.3.2 with n. 51, above. 98. One might compare how in the late Republic a plebiscitum backed by an S.C. could secure the abrogation of a magistrate’s imperium (cf. 2 n. 96 above). 99. Liv. 8.26.7; Inscr. Ital. XIII 1 70f “primus pro cos.” 100. See Inscr. Ital. XIII 1 70–71 (against Liv. 9.40.20) for the triumph of Q. Fabius Maximus Rullianus as pro cos. 309. Mommsen suggests an autumn start of the consular year in the period 319–295 at St.-R. I3 599 with n. 2; on “dictator years” see n. 108 below, and also MRR I 163 (on 309 in particular). For Rullianus as pro cos. 307, see Liv. 9.42.2 and 6; on the prorogation of the coss. 297, see 10.16.1, cf. 20.2. For subsequent prorogations in the Third Samnite War, see MRR I 178 (a cos. II 296) and 183 (a cos. 292); for those later in the century, 4.1.2 below. 101. For the term, see St.-R. I3 640 n. 3; W. F. Jashemski, The Origins and History of the Proconsular and Propraetorian Imperium down to 27 B.C. (Chicago 1950) 11–12; K.-J. Hölkeskamp, Die Entstehung der Nobilität 147–150. 102. St.-R. I3 643 n. 1; see W. F. Jashemski, Origins 15, for a list of early instances of prorogation. 103. Liv. 10.22.9. 104. See, e.g., the comments of H. Kloft (Prorogation und außerordentliche Imperien 326–81 v. Chr. [Meisenheim am Glan 1977] 47 n. 3) on Liv. 9.42.2, the prorogation of Q. Fabius Maximus Rullianus (cos. III 308) into 307. 105. Die Entstehung der Nobilität 136–140; Historia 42 (1993) 24–25, esp. 25 for the quotation. 106. Liv. 10.32.3; cf. 1–2. 107. Liv. 10.33.8.
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108. MRR I 169–170. I do not believe that the existence of the so-called “dictator years” (333, 324, 309 and 301) in the various Fasti consulares has anything to do with this question of a moratorium on appointment of dictators. J. Pinsent (Military Tribunes and Plebeian Consuls: The Fasti from 444 V to 342 V [Wiesbaden 1975] 5) is no doubt correct in his view that “the dictator years are, as they stand, a chronological device by which a standard list of colleges might be extended back four years for one reason or another, and other sources might wish to extend the list only by two or three years.” See also A. Drummond, Historia 27 (1978) 550–572 (quite speculative on the origin of this fiction). 109. Thus rightly T. J. Cornell, Beginnings of Rome 360–362. 110. D.C. 8 F 36.31 ej~ to; e[peita ajnti; uJpavtou a[rxai ejkevleusan; cf. Zonar. 8.1.14. The fact that his father, Q. Fabius Maximus Rullianus, was serving under him as “legate” (Dio, Zonaras) surely influenced the Senate’s decision. 111. Liv. 10.22.8–9. 112. Liv. 10.24.18; 25.9. 113. As praetor, Ap. Claudius stayed in the city until after the great battle at Sentinum, when he received the consul P. Decius’ old army, presumably from the pro pr. M. Livius Denter (10.30.8; cf. 29.3). We are not told who managed affairs in the city when the praetor went into the field; perhaps Claudius appointed a praefectus urbi before leaving Rome (see 4.1.1 below). Ap. Claudius fought against Samnite forces, at first independently and then in concert with the pro cos. L. Volumnius, who was based in Samnium (10.30.4–7; 31.1–7). Although Ap. Claudius must have been tactically subordinate to the pro cos., he commanded his own army (cf. 10.31.8). 114. M. Atilius Regulus spent at least part of the year in the city, since he is reported to have introduced Samnite envoys into the Senate (Liv. 10.45.4). 115. Liv. 10.47.5. 116. R. Rilinger, Chiron 8 (1978) 308; cf. R. E. Mitchell in n. 117 below. 117. MRR I 130 n. 2; see MRR on the “praetors” of the years 347, 283 (probably authentic—see n. 124), 280, and 233. R. E. Mitchell (Patricians and Plebeians 184) apparently accepts all these instances (“the single praetorship . . . was essentially a promagisterial position”). 118. See MRR for Ap. Claudius Caecus cos. II 296, pr. ?II 295; M. Atilius Regulus cos. 294, pr. 293; and L. Papirius Cursor cos. 293, pr. 292. The fourth (L. Caecilius Metellus Denter cos. 284, ?pr. 283) and fifth (A. Atilius Calatinus, cos. 258, termed PR. in the Fasti triumph. for 257) are special cases. L. Caecilius Metellus Denter was almost certainly praetor in the year immediately following his consulship: see T. C. Brennan, Historia 43 (1994) 423–439. A. Atilius Calatinus is discussed in 4.1.2 below. 119. Liv. 10.25.11; 26.12. 120. Liv. 10.29.5–6. 121. 10.29.3. 122. 10.26.15; 27.5–6; 30.1–2 123. The alternative method, a rogatio ad populum, is not attested until the time of the Hannibalic War (see 8.3.1 below on M. Claudius Marcellus in 215). That seems unlikely: W. Kunkel, Staatsordnung 18–19, reasonably suggests that each of these appointments was meant for the short term. 124. See T. C. Brennan, Historia 43 (1994) 423–429. 125. For a discussion of the sources on this ransom and its recovery, see R. M. Ogilvie, Commentary 736, on Liv. 5.48–50. 126. Suet. Tib. 3.2 with Münzer, RE s.v. Livius 12, 13 cols. 853–855, adducing various material which links the gens Livia to Pisaurum. 127. Cf. Plb. 2.21.1. Cf. V. Kruta, EC 18 (1981) 7–38 and M. Landolfi, EC 28 (1991) 219–235, who argue from burial finds that the Romans rendered the Senones militarily ineffective after 283, but hardly eradicated this people.
278 Notes to Chapter Four 128. See T. C. Brennan, Emerita 63 (1995) 52 n. 19 for a certain example of Suetonius’ anachronism regarding a (mid-second-century) praetor’s status. Notes to Chapter 4 1. Plb. 1.21.4 and 22.1; Zonar. 8.10.8 erroneously reverses these commands. For an attempt to discredit Polybius’ explicit assertion (1.20) that this fleet had just been built, see G. Forsythe, The Historian L. Calpurnius Piso Frugi and the Roman Annalistic Tradition (Lanham, Md. 1994) 355–362. 2. See T. Mommsen, Die römische Chronologie bis auf Cäsar2 (Berlin 1859) 101f with n. 178, also n. 22 below. 3. Zonar. 8.10.8. 4. The first recorded instance is the consul C. Aquillius Florus (cos. 259) in 259–258 (Zonar. 8.11.6). See M. G. Morgan, Chiron 7 (1977) 96 n. 36. 5. Mommsen, St.-R. I3 641, arguing that a magistrate’s tenure of imperium ceases with the arrival of his successor in the provincia. Mommsen is not right in this in the late Republic, when imperium, at any rate, was retained until one entered Rome (7.2.3 below). 6. Plb. 1.23.1. 7. Zonar. 8.11.1, wrongly supposing the consul had not yet reached Sicily. 8. Note the lines in Naevius Bellum Punicum Book IV “virum praetor advenit auspicat auspicium/prosperum” (F 34 Strzelecki, with textual notes; F 37 Marmorale, with commentary), which C. Cichorius, Römische Studien (Leipzig 1922) 32f, plausibly identified with the situation of 260. 9. Plb. 1.24.1–2. See also A. Degrassi on the Fasti triumph. (Inscr. Ital. XIII 1 76–77, 548) and Elogia (Inscr. Ital. XIII 3 13, 69 = ILLRP 319). Degrassi is right to argue that these inscriptions do not prevent us from following the chronology of Polybius and Zonaras, which puts the land successes of C. Duilius after Mylae; see also J. H. Thiel, A History of Roman Sea-Power before the Second Punic War (Amsterdam 1954) 187–190. 10. See D.S. 23.9.3–4; G. De Sanctis, Storia dei Romani III (Turin 1916) 1 127 with n. 65. 11. Plb. 1.24.3–4; D.S. 23.9.4. 12. St.-R. I3 670. 13. The urban praetors P. Furius Philus in 216 and L. Cornelius Merula in 198, discussed in 5.2.1 and 5.3.1 below. 14. See Cic. Phil. 2.31 with 5.3.1, 12.4.1 below. 15. K. INTERKALAR. in the Fasti triumph. 16. Degrassi, Inscr. Ital. XIII I 548; Broughton, MRR I 208. 17. History 201 n. 446. 18. Rightly stressed by Broughton in MRR I 208. 19. See Degrassi’s list of errors in Inscr. Ital. XIII 1 642. 20. This is the basic premise of R. Develin, Latomus 34 (1975) 716–722, who however does not examine the triumphal dates of promagistrates in this period. I. Buti, Index 20 (1992) 435–472, attempts to sort out which commanders down to 218 are likely to have been prorogued to carry out actual military operations for a full campaigning season (the majority, as it turns out), and which ones simply to be able to triumph; but see 4.1.3 with n. 42 below for an untenable conclusion he has offered on Q. Valerius Falto (pr. 242 and pro pr. 241). 21. See Fasti triumph. for M.’ Valerius Maximus, cos. 263, 17 March; C. Duilius, cos. 260, 24 February (k. Intercalar.); L. Cornelius Scipio, cos. 259, 11 March; C. Sempronius Blaesus (cos. 253), 1 April; C. Aurelius Cotta (cos. 252), 13 April. We do not know the dates for the triumphs of C. Sulpicius Paterculus (cos. 258) and L. Manlius Vulso Longus (cos. 256). According to the Fasti triumph., Sulpicius triumphed on III non. of an unknown
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month. Degrassi (Inscr. Ital. XIII 1 548) holds that he triumphed the day after the triumph of the pro cos. Aquillius Florus, i.e., 5 October. There is no reason to believe this: Florus was in charge of a land army (in conjunction with the cos. A. Atilius Calatinus) and triumphed de Poenis because of his success in the taking of Muttistraton, Camarina and Henna (G. De Sanctis, Storia III 1 134), while Sulpicius, in charge of the fleet, triumphed de Poeneis et Sardeis because of his activities in Sardinia. In other words, the two triumphs are not directly connected. 22. C. Aquillius Florus (cos. 259 and pro cos. 258), 4 October; L. Caecilius Metellus (cos. 251 and pro cos. 250), 7 September; C. Lutatius Catulus (cos. 242 and pro cos. 241), 4 October; Q. Valerius Falto (pr. 242 and pro pr. 241), 6 October. Note also, in the earlier period, Q. Publilius Philo (cos. 327 and pro cos. 326), 1 May (i.e., soon after the expiration of his office); Q. Fabius Maximus Rullianus (cos. 310 and pro cos. 309), 15 October; Q. Fabius Maximus (cos. 292 and pro cos. 291), 1 August; L. Aemilius Barbula (cos. 281 and pro cos. 280), 10 July. In the period between the First and Second Punic Wars, note Cn. Fulvius Centumalus (cos. 229 and pro cos. 228), 22 June. 23. The first two are a pair. On 20 and 21 January 253 (i.e., nine months into consular 254), Ser. Fulvius Paetinus and M. Aemilius Paullus (coss. 255 and pro coss. 254) celebrated naval triumphs, one on each day. These men had wrecked their ships off Camarina: they certainly tried to get back to Rome before early December (still seven months), as Polybius explicitly tells us (see Plb. 1.37.1–6, esp. 4; Zonar. 8.14.5). The third example is Cn. Cornelius Scipio Asina (cos. II 254, pro cos. 253), who triumphed on 23 March 252. He probably did not expect to stay in his consular provincia for so long. The fact that the consuls of 253 were unusually both in (incompetent) command of the Roman fleet during their magistracy (Plb. 1.39.1, Zonar. 8.14.6, Eutrop. 2.23.1, Oros. 4.9.10—a unanimous tradition doubted without good reason by G. De Sanctis, Storia III 1 163 n. 40, followed by J. H. Thiel, History 247 n. 597) probably is enough to explain the circumstances that made Cn. Asina stay two winters in Sicily. But he must have been prorogued. 24. Plb. 1.24.9–12; D.S. 23.9.4–5; Zonar. 8.11.10–12.6. 25. Plb. 1.25.1–6; Zonar. 8.12.7 with Fasti triumph. 26. 1.25.6. 27. Plb. 1.25.7; Zonar. 8.12.8. 28. See Inscr. Ital. XIII 1 42f, 434f. A similar policy may have been followed in 246. The year saw M.’ Otacilius Crassus (cos. 263) as cos. II and the appointment—for the first time since 280—of a dictator comitiorum habendorum causa. As in 257, no major successes are recorded. 29. History 201 on the year 257; his remarks are also applicable to 246. 30. Recognized by G. De Sanctis, Storia III 1 137, who nonetheless holds that Calatinus triumphed pro cos. 31. See 3.7 above. 32. L. Megellus is the only example we find of an individual simultaneously holding a censorship and praetorship, but see 2.2.1 above. On Megellus’ death and the subsequent abdication of his censorial colleague, cf. F. Münzer, Hermes 57 (1922) 145–147. 33. Zonar. 8.16.1; cf. Oros. 4.10.4. 34. Plb. 1.59.1 (“almost five years”) with F. W. Walbank, A Historical Commentary on Polybius (Oxford 1957) I 123, explaining Polybius’ erroneous calculation; cf. 1.55.2. 35. Plb. 1.59.2–3. On the chronology (arguing that the Roman calendar and the Julian year indeed agreed at this time, contra Beloch and others), see M. G. Morgan, Chiron 7 (1977) 109–112. 36. Liv. 37.51.1–2; see also Per. 19 “in urbe tenuit nec passus est a sacris recedere”; V. Max. 1.1.2 “urbem egredi passus non est”; Tac. Ann. 3.58.3 “privatis . . . simultatibus.” For a
280 Notes to Chapter Four basic discussion of this case, see J. Bleicken, Hermes 85 (1957) 446–468, esp. 450. On the disciplinary power of the pontifex maximus over individuals subject to his captatio, see J. Linderski, ANRW II 16.3 (1986) 2218 n. 274. The prohibition on the praetor and flamen Quirinalis Q. Fabius Pictor in 189 was also a surprise to the magistrate in question (see Liv. 37.51.1–6, where Livy adduces the situation of 242 as a parallel, discussed in 5.3 below). The technical point at issue may have been that the flamen Martialis—like the pontifex maximus—was expected to remain in Italy: see I. Müller—Seidel, RhM 96 (1953) 256; cf. G. Wissowa, Religion und Kultus der Römer2 (Munich 1912) 504–508, esp. 505 n. 6, and A. Heuss in W. Eck, H. Galsterer, and H. Wolff (eds.), Festschrift F. Vittinghoff (Cologne 1980) 129–130, on the more tightly restricted flamen Dialis. The Periocha and Valerius Maximus passages cited above need not imply that the consul and flamen A. Albinus could not budge from Rome for the entire year, only that L. Metellus prevented him from leaving for his provincia. For a similar dispute between flamen and pontifex maximus in 131, see 9.1.5 below. 37. Zonaras’ designation ajstunomw`n (the verb is found only here in Zonaras and Dio), like ajstunovmo~, must mean praetor urbanus (Zonar. 8.18.10, D.C. 42.22.2, 47.20.2, etc.). The term, however, may be anachronistic and cannot be pressed to indicate that there was a praetor inter peregrinos (strathgo;~ xenikov~ in Dio’s usage—47.20.2, 53.2.2) in existence at the time: note Zonar. 8.11.1 (the year 260) where the (sole) praetor is called ajstunovmo~. In reporting the incident of 242, Zonaras (or Dio) may have made up the praetor’s provincia, or read it into his source (it is not specified in Valerius Maximus’ account). R. T. Ridley is wrong to suggest Falto was a consular legatus (Historia 30 [1981] 294 n. 41). 38. Römische Adelsparteien und Adelsfamilien (Stuttgart 1920) 261. 39. 1.59.9; 60.1. 40. Zonar. 8.17.1; Oros. 4.10.5; cf. Eutrop. 2.27.2, Var. ap. Non. s.v. catapulta p. 887 L. 41. For the date, see Eutrop. 2.27.1. For Q. Valerius Falto’s role in the battle, see Zonar. 8.17.1, with the cognomen “Flaccus”; Val. Max. 2.8.2; cf. D.S. 24.11.1. On the settlement which followed, see Plb. 1.62.8–63.3; Zonar. 8.17.3–4. 42. Pace I. Buti, Index 20 (1992) 458, who thinks that Q. Lutatius remained alone in Sicily for the summer, with Q. Falto owing his status as pro pr. only to the comitial vote which allowed him to triumph. For praetors assisting consular commanders with settlements following a major war, see 8.5.3 below. 43. 2.8.2. 44. St.-R. II3 95f. 45. Cf. his elogium (probably contemporary with his death) reported in Cic. Sen. 61 and Fin. 2.116. 46. For such special dispensation (but for an ovatio), in this general period see the case of the privatus cum imperio L. Cornelius Lentulus in 200 (Liv. 31.20.1–7 with 7.1.4 below). The Fasti triumph. for 241 seem to show that the praetor’s triumph was regarded as inferior to that of the consul. Not only did Falto’s come two days later, but it was only ex Sicilia, not de Poenis ex Sicilia, like Catulus (the distinction is rightly noted by L. Loreto, MEFRA 101 [1989] 729 n. 40). 47. As J. S. Richardson implies, JRS 81 (1991) 8 n. 68. 48. For the date, see Ateius Capito in Gel. 10.6.2–4, esp. 3. 49. 1.38. 50. Mag. 1.45 51. Cf. Mag. 1.27, where Lydus equates the consulship of (M. Atilius) Regulus and “Iunius” (= L. Iulius Libo) in 267 with the “two-hundred--third year of the consuls” (the supplement is Mommsen’s; see R. Wünsch’s Teubner text ad loc.). 52. Mag. 1.38, with Wünsch’s app. crit.
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53. Dig. 1.2.2.28 (A. Watson translation, from T. Mommsen, P. Kreuger, and A. Watson, The Digest of Justinian I [Philadelphia 1985]). 54. The Digest explanation is accepted in its essentials by D. Daube, JRS 41 (1951) 66–70; Daube is supported by A. Watson, Law Making in the Later Roman Republic (Oxford 1974) 82; cf. F. De Martino, Storia della Costituzione Romana II3 (Naples 1973) 230f with 231 with n. 43, and B. W. Frier, The Rise of the Roman Jurists: Studies in Cicero’s Pro Caecina (Princeton 1985) 52 n. 38. For a discussion of the Republican evidence on the iurisdictio of the peregrine praetor, see 5.6.4. 55. First attested in the Gracchan repetundae law, CIL I2 583, lines 12 and 89 (ca. 122). The titulature of the peregrine praetor is discussed in 5.1.1. 56. See the perceptive (though rarely cited) article of R. L. Gilbert, “The Origin and History of the Peregrine Praetorship, 242–166 b.c.,” Res Judicatae 2 (1939) 50–58, esp. 58. 57. See RS II Tab. II 2, where a “status dies cum hoste” (i.e., with a peregrine) is accepted as a legitimate excuse for postponing a iudicium; cf. also Tab. VI 4. On these passages, see the brief discussions of J. S. Richardson, RD 68 (1990) 147–155, at 149–150; M. Kaser, ZRG 101 (1984) 15–17. For further bibliography, see F. Wieacker, Römische Rechtsgeschichte I (Munich 1988) 265 n. 138 and 266 n. 139; D. Flach, Die Gesetze der frühen römischen Republik: Text und Kommentar (Darmstadt 1994) 122–123, 151 with 155–156. 58. Thus D. Arriat, Le préteur pérégrin (Paris 1955) 37; F. Wieacker, Römische Rechtsgeschichte I 440–441; cf. W. Kunkel, Staatsordnung und Staatspraxis der römischen Republik: Die Magistratur (Munich 1995) 202. J. S. Richardson (RD 68 [1990] 154–155) offers perhaps the most specific version of this hypothesis, on which see 5.6.4 below. 59. See 5.1.1. Failure to recognize that this title is not the original Republican one vitiates, e.g., the thesis of V. Marotta, Ostraka 5 (1996) 63–138, that a major role of the early peregrine praetor was to guard commercial transactions under the “ius gentium.” The term “praetor peregrinus” (no doubt a popular title formed on the analogy of “praetor urbanus”) recorded by the epitomator of Pomponius is not attested before the principate of Tiberius (AE 1991, 307 [a.d. 18]; 1987, 163 [a.d. 25–26]; cf. further St.-R. II3 197 n. 2). 60. St.-R. II3 196 n. 2. 61. 1.56.2–3 and 10. 62. Vell. 1.14.8; cf. Per. 19. On these colonies, and the possible equation of Velleius’ Aefulum with Pyrgi, see E. T. Salmon, Roman Colonization under the Republic (Ithaca, N.Y. 1970) 65 with 180 n. 120. 63. Cf. also R. E. Mitchell, Patricians and Plebeians: The Origins of the Roman State (Ithaca, N.Y. 1990) 185f (discussed in 1.5.2 above): “The praetor peregrinus originally was more concerned with foreigners and foreign areas than he was with adjudicating cases between Roman citizens and foreigners.” 64. 37.51.1–2. 65. Cf. Plb. 1.59.8 for the chronology. 66. TLL VII 1 col. 2128. See also D. Arriat, Le préteur pérégrin 45–46; cf. J. S. Richardson, RD 68 (1990) 151. 67. Sic. 2.6 = Exc. de leg. gent. 12 p. 526. 68. Proem. 14.62. 69. Pun. 135.641. 70. Hisp. 38.152. 71. Mith. 121.596; see D. Magie, Roman Rule in Asia Minor (Princeton 1950) II 1532 n. 7, and (on Appian’s choice of the term strathgo;~ ejthvs io~ to denote a provincial commander) T. J. Luce, CPh 56 (1961) 22–23. 72. E.g., at Hisp. 102.444 he reverses the facts of the Imperial administration of the Iberian peninsula.
282 Notes to Chapter Four 73. Cic. Ver. 2.1.2; cf. Solinus 5.1 (text in n. 100 below), who (erroneously) infers that both Sicily and Sardinia were simultaneously declared provinciae from the fact that both received regular praetors at the same time (first for 227, as we shall see 4.3.2 below). 74. St.-R. II3 534. 75. See Mommsen, St.-R. II3 570–572 on the (allegedly) four “quaestores classici” created ca. 267–264, citing Per. 15 and Tac. Ann. 11.22.5 with Lyd. Mag. 1.27 (all poor sources). W. V. Harris (CQ 26 [1976] 92–106 and BASP 16 [1979] 199–200) more plausibly suggests the addition of two (not four) quaestors at this time, with two more created ca. 227. The argument of L. Loreto (Historia 42 [1993] 494–502) that four quaestors were gradually (i.e., one by one) added in the period ca. 267–ca. 210, seems improbable in light of regular Roman practice; for the habit of increasing magistrates in even numbers, see 4.3.2 below. 76. St.-R. II3 572. Recent supporters of Mommsen’s hypothesis include R. Marino, La Sicilia dal 241 al 210 a.C. (Rome 1988) 25–27, who neglects to explain the Appian passage on the strathgo;~ ejthvs io~, though she includes it in her comprehensive collection of testimonia on early Roman Sicily (101); also L. Loreto, Historia 42 (1993) 496–498; W. Kunkel, Staatsordnung 338 with nn. 142–143. On the Sicilian quaestor, see further in 6.1.1 below. 77. Römische Staatsverwaltung I2 (Leipzig 1884) 243. See also W. Dahlheim, Gewalt und Herrschaft: Das provinziale Herrschaftssystem der römischen Republik (Berlin 1977) 48 n. 94, rejecting the report as stemming from annalistic fabrication. For a list of other scholars who have rejected Appian’s notice, see J.-L. Ferrary, Philhéllenisme et impérialisme: Aspects idéologiques de la conquête romaine du monde héllenistique, de la seconde guerre de Macédoine à la guerre contre Mithridate (Rome 1988) 18 n. 46. 78. For an earlier view of Kienast on the problem of Appian’s strathgo;~ ejthvs io~, see ZRG 85 (1968) 358. There he suggests (following one of Marquardt’s guesses) that, on the analogy of Spain in the years 210–197 (see 7.1.3–6), the Romans sent privati cum imperio to Sicily until the institution of a regular praetor in 227; this is the solution adopted by J.-L. Ferrary, Philhéllenisme et impérialisme 18–19. Both options—the privati and the peregrine praetor—are offered by Kienast in L. Amirante et al. (eds.), Sodalitas: Scritti in onore di A. Guarino I (Naples 1984) 105–123, at 119–121; cf. 122–123, where Kienast plausibly suggests there was a quaestor at Lilybaeum as early as 241 but certainly by 227. 79. See E. Cuq, Manuel des institutions juridiques des Romains2 (Paris 1928) 806 n. 3; much more fully, R. L. Gilbert, Res Judicatae 2 (1939) 50–53. 80. See Inscr. Ital. XIII 1 76–77 with Plb. 1.65.2, Per. 20; V. Max. 6.5.1, Eutrop. 2.28, Zonar. 8.18.1, and Oros. 4.11.10 (Orosius erroneously dates this war to 238). For the chronology of the Faliscan “revolt,” see G. De Sanctis, Storia III 2 659. On the war itself, see L. Loreto, MEFRA 101 (1989) 717–737; cf. H. I. Flower, JRA 11 (1998) 224–232. 81. Plb. 1.62.8–63.3; Zonar. 8.17.4. 82. Plb. 1.63.3. See also Liv. 22.54.11; Oros. 4.11.2; Eutrop. 3.2; explicit in Vir. ill. 41.2; and in general G. De Sanctis, Storia III 1 280 n. 34. 83. Thus rightly W. L. Carey, CPh 91 (1996) 203–222, at 210. But Carey in effect offers another apologia for the Senate’s actions by arguing that they fell within contemporary standards of Roman civil law, specifically that in 237 the Senate thought Sardinia met the conditions for usucapio (adverse possession). 84. Plb. 1.88.8 and 10; 3.10.1–3 (for the Roman threat of a declaration of war); Zonar. 8.18.3; cf. Liv. 21.1.5, and in general, G. De Sanctis, Storia III 1 280f. On the series of exchanges between Rome and Carthage, see the reconstruction of F. W. Walbank, Commentary I 149. 85. Ap. Fest. s.v. Sardi venales p. 430 L. Sinnius Capito evidently confused Gracchus with his grandson, the cos. 177 (E. Meyer, Kleine Schriften II 385–386); Florus (1.22.35) also may have done the same, for he states (in the context of the Hannibalic War!) “Sardiniam
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Gracchus arripuit.” W. L. Carey, CPh 91 (1996) 206 n. 16, attempts to save the testimony of Sinnius Capito by suggesting as one possibility the elder Gracchus’ prorogation into 237. 86. 8.18.3. 87. Walbank, Commentary I 150, reconciling the chronology of Zonaras (8.18.3), who dates the annexation of Sardinia to 238, and Eutropius, who puts it in 237 (3.2, with proRoman distortion). 88. Plb. 1.88.12; Zonar. 8.18.3, with J. H. Thiel, History 199 n. 438. There is no ancient evidence on how the Romans came into possession of Corsica other than the confused statement of Sinnius Capito. The traditions that Rome set up a colony in Sardinia in 386/385 (D.S. 15.27.4) and also sought to colonize Corsica “at some time,” i.e., in the fourth or very early third century (Thphr. HP 5.8.2), should be rejected: see W. V. Harris in W. Eder (ed.), Staat und Staatlichkeit 501 n. 20. 89. Plb. 2.1.5 with 1.88.7. 90. But there were two triumphs celebrated on the Alban Mount (231, 172) for victories in Corsica: see below in this section, and also 6.2.2. 91. In addition to Zonar. 8.18.7–8, see V. Max. 6.3.3; Amm. Marc. 14.11.32. For Claudius’ title, see Münzer, RE s.v. Claudius 115 col. 2696. Münzer is right to express caution in identifying this man with M. Claudius Glicia, dict. 249 “qui scriba fuerat” and a senator (Per. 19 “praetextatus”); cf. also J. Suolahti, Arctos 10 (1976) 100. But M. Claudius Clineas, if tr. mil., could easily be his son. The legal aspects of the deditio and subsequent exile or execution of M. Claudius Clineas are discussed by G. Crifò in R. S. Bagnall and W. V. Harris (eds.), Studies in Roman Law in Memory of A. A. Schiller (Leiden 1986) 21–22. 92. D.C. 12 F 45, Zonar. 8.18.8. 93. Liv. 1.19.2–3. See MRR I 223 for sources on the triumph of T. Manlius Torquatus and the closing of the temple of Ianus. 94. Zonar. 8.18.10; Fasti triumph. On the malaria problem in Roman Sardinia, see G. De Sanctis, Storia III 1 285 n. 52; also P. J. Brown in M. S. Balmuth and R. J. Rowland, Jr. (eds.), Studies in Sardinian Archeology I (Ann Arbor 1984) 209–235. 95. See 5.2.1 below on the case of P. Furius Philus, the pr. urb. 216 who was sent in the extreme emergency after Cannae to take charge of a fleet. 96. See MRR I 224 for M.’ Pomponius Matho (cos. 233); I 225 for M. Aemilius Lepidus and M. Publicius Malleolus (coss. 232); and I 226 on M. Pomponius Matho and C. Papirius Maso (coss. 231), who quashed the remnants of revolt in Sardinia and Corsica respectively. This whole series of campaigns must be what Per. 20 refers to in its statement “Sardi et Corsi cum rebellassent, subacti sunt.” Against the notion of P. Meloni (La Sardegna romana [Sassari 1975] 43–49) that these campaigns were fought against the Corsi of northern Sardinia, see T. C. Brennan in R. W. Wallace and E. Harris (eds.), Transitions to Empire: Essays in Greco-Roman History, 360–146 B.C., in Honor of E. Badian (Norman, Okla. 1996) 332 n. 29. 97. For the date 228–227, see Mommsen, St.-R. II3 198; G. De Sanctis, Storia III 1 283; MRR I 229. 98. See E. Badian, Studies in Greek and Roman History (Oxford 1964) 2–5, for a discussion of this series of events. 99. Examples collected by W.J. Bingham, “A Study of the Livian ‘Periochae’ and Their Relation to Livy’s ‘Ab Urbe Condita’” (diss. Univ. Illinois 1978) 404–405. The following Livian items are each reported in proper book sequence in the corresponding Periocha: 2.33.2 (the creation of five tribunes); 3.30.7 (increase to ten tribunes); (apparently) 4.6.5–7.3 (first consular tribunes); 4.8.2–7 (first censors); 6.42.9–14 (Licinian-Sextian laws); 7.1.1 (introduction of praetorship and curule aedileship); 32.27.6 (increase to six praetors). The translation of Per. 20 in the text is that of B. O. Foster in the Loeb edition (1926).
284 Notes to Chapter Four 100. Solin. 5.1 “utraque insula in Romanum arbitratum redacta isdem temporibus facta provincia est, cum eodem anno Sardiniam M. Valerius, alteram C. Flaminius praetor sortiti sunt”; Liv. 33.42.8. On the identification of the praetor M. Valerius, see Additional Note III. 101. 8.19.10. This statement follows the notice of the conclusion of the First Illyrian War (229) and the burial of two Greeks and two Gauls in the Forum (dated to 228 by Tzetzes on Lycophr. Alex. 603); it precedes an account of the rising of the Insubres in 225 (8.20.1). 102. Storia III 1 283. 103. Dig. 1.2.2.32 (A. Watson translation); see 1.2.2.27–28 for the urban and peregrine praetor and 1.2.2.34 for the Flavian number of eighteen. 104. Cf. St.-R. II3 198 n. 2. Against the Digest passage, no new praetor was created for Gallia Transalpina (on which see 10.2.3 below), nor for any of the other territorial provinciae or permanent quaestiones established from 146 down to the time of Sulla; furthermore, the Sullan total of “ten” is impossible (pace J. D. Cloud, LCM 13.5 [1988] 69). 105. For the chronology, see Plb. 2.2.1 and 11.1 with M. Holleaux, Études d’epigraphie et d’histoire grècques IV (Paris 1952) 9–25. 106. Plb. 2.11.1 and 7. 107. Plb. 2.12.1–6. There is no doubt that 1 May was still the beginning of the consular year at this time: see Mommsen, Die römische Chronologie2 101f with n. 178. 108. Two other examples: L. Postumius Albinus, cos. 234, II 229 (occasioned by the First Illyrian War); C. Flaminius, cos. 223, II 217 (Hannibal in Italy). The other three examples of consular iteration in this period show greater intervals: C. Atilius Bulbus, cos. 245, II 235 (a nine-year interval, unless the count at this time was inclusive); T. Manlius Torquatus, cos. 235, II 224; Q. Fulvius Flaccus, cos. 237, II 224 (a serious war against the Boii and Insubres). 109. On this cf. R. F. Vishnia, Athenaeum 84 [74] (1996) 443–446 (inconclusive). 110. Zonar. 8.19.10, the live burial of two Greeks and two Gauls in the Forum (see n. 101 above on the date) as a prophylactic against an oracle that “Greeks and Gauls should occupy the city.” I thank Professor J. D. Morgan for pointing out the possible relevance of this passage to the increase in praetors. 111. W. Dahlheim, Gewalt und Herrschaft 48 with n. 94 (adducing however the epitomator of Pomponius Dig. 1.2.2.32—cited in this section in text above—as evidence); cf. R. Marino, La Sicilia dal 241 al 210 a.C. 26–27. 112. Cf. Mommsen, St.-R. I3 31–33 (magistrates); L. R. Taylor, The Voting Districts of the Roman Republic (Rome 1960) 7 (tribes). 113. Plb. 2.22.7–9; 23.6; 27.1. This allotment may possibly hint at continued trouble in this provincia; an alternative explanation is that this was the “enslavement” of the Sardinians mentioned by Zonaras at 8.19.10. 114. Plb. 2.27.1 115. Commentary I 196. 116. Plb. 2.13.7 and 22.11; 3.15.5, 21.1, 27.9, 29.2–3 and 30.3. 117. Plb. 2.24.13. 118. M. Marcellus and M. Laevinus were praetores iterum in 216 and 215, respectively (Liv. 22.35.6–7; 23.24.4). Their first praetorships surely preceded their first consulships. 119. See St.-R. I3 640–641 (and cf. III 1089–1091) for this common practice. 120. At this time (and for most of the second century) the political boundary of Italy was the River Aesis, between Sena and Ancona (Plb. 2.14.7 and 11 with F. W. Walbank, Commentary I 175f; 396f). 121. Plb. 2.23.5 and 24.5–6. 122. Plb. 2.24.6 with F. W. Walbank, Commentary I 184; P. A. Brunt, Italian Manpower, 225 B.C.–A.D. 14 (Oxford 1971) 44–60; for the consuls’ army, see Plb. 2.24.3–4.
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123. Cf. the observations of D. W. Baronowski on this passage in Historia 42 (1993) 182–183. 124. As was maintained by K.J. Beloch, Der italische Bund unter Roms Hegemonie (Leipzig 1880) 94, and G. De Sanctis, Storia III 1 307 n. 107. 125. MRR I 230, esp. Plb. 2.24.6, 25.1–11. 126. Plb. 2.24.9. 127. Plb. 2.24.13. 128. For the year 224, see MRR I 231; for 223, MRR I 232; and for 222, MRR I 233. The coss. 221 made a successful expedition against the Histrians (MRR I 234). By this time the Romans can be said to have overrun all Cisalpine Gaul; the consuls of 220 are reported to have advanced “as far as the Alps, and without any fighting they won over many people” (Zonar. 8.20.10). 129. Sources in MRR I 236; on Livius, see E. Badian, Studies 30 n. 74. 130. For his cognomen, see Liv. 22.35.1. 131. 22.33.7 “aedem Concordiae, quam per seditionem militarem biennio ante L. Manlius praetor in Gallia vovisset”; cf. 23.21.7. 132. Pace MRR I 240 n. 4. 133. Cf. Liv. 28.38.14 (205) for the completion of a similar vow made during a mutiny. Also see 21.62.5, a list of portents predicting events of the year 218: “in Gallia lupum vigili gladium ex vagina raptum abstulisse” (cf. Zonar. 8.22.8–9). “This omen . . . suggests that in 219 there was a force of Roman regulars stationed somewhere in Gallia” (A. M. Eckstein, Senate and General: Individual Decision Making and Roman Foreign Relations, 264–194 B.C. [Berkeley 1987] 22 with n. 80). E. Gabba in Le rivolti militari romane (Florence 1975) misses this incident. 134. Liv. 27.7.8 (209); 29.13.2 (204). 135. Per. 20 “coloniae deductae sunt in agro <de> Gallis capto Placentia et Cremona” (the last item in a miscellaneous section of this Periocha, and following a notice pertaining to C. Flaminius’ censorship, i.e., the year 220/219). See Asc. p. 3 C for the foundation date of Placentia; Tac. Hist. 3.34 firmly dates that of Cremona. A. M. Eckstein, in Senate and General 18–22 and 327–329, esp. 18 with n. 61, assigns the Senate’s decision to found the colonies to late 219, which is about right: the project was deemed behind schedule in spring 218 (Plb. 3.40.3). On the (perhaps insoluble) problem of identifying the colonial commissioners for Placentia and Cremona, see Appendix B n. 17. 136. Perhaps in June; cf. Liv. 21.25.1–5 with 20.9 for the chronology. Sumner (PACA 9 [1966] 5–30; esp. 30) dates this attack to ca. 21–31 May. 137. Sources in MRR I 240, 241 n. 12. 138. Plb. 30.40.11; cf. Liv. 21.25.8. 139. Liv. 21.25.9–14, Plb. 3.40.11–14. L. Manlius was ambushed twice, according to Liv. 21.25.12. This seems a bit too much to believe, and may indicate a problem of source variation. 140. Plb. 3.40.14; Liv. 21.26.1–2. For C. Atilius’ provincia, see Additional Note III. 141. Plb. 3.56.6; Liv. 21.39.3; App. Hann. 5.18–19. 142. Liv. 21.63.15, on which see Additional Note III. For the consul Sempronius’ movements, see Liv. 21.57.1–4, 59.1–10 with B. Amat-Seguin, RSA 16 (1986) 89–93. 143. See St.-R. II3 240 n. 5. J. E. A. Crake ap. MRR I 240 n. 4 has in fact suggested that L. Manlius was pr. 219, pro pr. 218. 144. Liv. 21.17.7. At least in Livy, mittere sometimes seems to be used as a technical term, equivalent to mandare, for appointing a man as a commander against a specified enemy; it tells us nothing about where the appointee was. See also Liv. 27.35.2 and 29.13.7 with T. C. Brennan, Historia 43 (1994) 431–432.
286 Notes to Chapter Five Notes to Chapter 5 1. For a documented discussion of the titulature of the two city praetors, see Mommsen, St.-R. II3 193–198; F. Serrao, La “iurisdictio” del pretore peregrino (Milan 1954) 18–22; D. Arriat, Le préteur pérégrin (Paris 1955) 14–20. 2. “Romae iuri dicundo urbana sors” (Liv. 22.35.5, the year 216); “urbanam . . . sortem in iuris dictione” (23.30.18, the year 215), and “iurisdictio urbana” at 25.41.13 (211); see also “urbana iurisdictio” at 30.1.9 (203); 32.28.2 (197); 33.26.1 (196); 34.43.6 (194); 38.35.10 (188); 40.1.1 (182); 41.8.2 (177); 42.10.14 (172). 3. For the year 192 (35.21.1). Note also 38.42.5 “duas (provincias) Romae iuris dicendae causa” (187), 39.45.4 “altera iuris dicendi Romae provincia” (183) and 42.28.6 “provinciae . . . duae iure Romae dicendo” (171), and cf. n. 9 below on “iurisdictio peregrina.” 4. 37.50.8; 51.6. For Q. Fabius Pictor, see 5.3 below. 5. See the description of the sortition for 182 “iurisdictio inter peregrinos” (40.1.1), 176 “provincia inter peregrinos” (41.15.4–5), 174 (following a lacuna) “inter peregrinos” (41.20.13), and 172 “iurisdictio inter peregrinos” (42.10.14). 6. Liv. 44.21.4; 45.12.13. 7. Liv. 45.16.3; 21.1. 8. First found epigraphically in the Augustan edictum de aquaeductu Venafrano, CIL X 4842 = FIRA7 73 line 65 (9 B.C.); see Mommsen, St.-R. II3 197 n. 1. Livy has “inter cives et peregrinos” in the description of the sortitions for 196 (33.26.1), 186 (39.8.2), 184 (39.38.2) and 173 (42.1.5). 9. “Iurisdictio peregrina” found for 197 (32.28.2), 194 (34.43.6), 188 (38.35.10), and 177 (41.8.2); cf. 191, when one man is allotted “iurisdictio utraque” (36.2.6). “Provincia peregrina” is found for 195 (33.43.5), 193 (34.55.6), 192 (35.20.8), 190 (37.2.1), 187 (38.42.5), 183 (39.45.4), 181 (40.18.3), 180 (40.35.8), and 179 (40.44.7). 10. 43.11.8 (169); 45.44.2 (166). 11. For a different view, see J.-C. Richard, Les origines de la plèbe romaine: Essai sur la formation du dualisme patricio-plébéien (Rome 1978) 124–126 (the formulation is original to the oracle of 213, and was deliberately designed to win the support of the Plebs for these new games). 12. CIL I2 581 (= ILLRP 511) lines 4, 8, 17, 21. 13. RDGE 12 line 10, almost certainly from 101; on the date, see 9 n. 80 and Additional Note XIII. 14. SIG3 732 lines 3–4 (the year 94) (cited in n. 18 below); RDGE 22 (year 78). 15. CIL I2 585 (= RS I 2) lines 73 and 74. See also the (second century?) lex Papiria de sacramentis in Fest. p. 468 L (= RS II 45) “praetor . . . qui inter cives ius dicet.” On the date, see 5.4.7 below. 16. CIL I2 583 (= RS I 1) line 12, cf. 89; see also (from the 40s) the Lex Rubria de Gallia Cisalpina (CIL I2 592 [= RS I 28] ch. 20 lines 24–25 and 34) “is quei Romae inter peregrinos ius deicit.” 17. RDGE 43 lines 26–27 (ca. 144—see 9.1.3 below) oJ ejpi; tw`n xevnwn strathgov~; SIG3 732 lines 3 and 5 (the year 94) (cited in n. 18 below); RDGE 22 line 2 (the year 78) strathgou` de; kata; povlin kai; ejpi; tw`n xevnwn (the Latin version of this prescript is not preserved). 18. SIG3 732 lines 3–5: strath|[go]u`nto~ kata; povlin Gaivou Sentivou Gaivou uiJou`. | [ejpi; d]e; tw`n xevnwn Leukivou Gellivou Leukivou uiJou`. 19. RDGE 22 line 2 (cited in n. 17 above). 20. CIL I2 593 (= RS I 24) lines 8 and 11–12 “ad pr(aetorem) urb(anum) aut, sei is Romae non erit, ad eum pr(aetorem), quei inter peregrinos ius deicet, profitemino.” 21. Dig. 1.2.2.27; see 3.1.2 above.
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22. Mag. 1.38, on which see 3.1.3 above. 23. S.C. de Tiburtibus (CIL I2 586 = ILLRP 512) line 1; cf. the S.C. de philosophis et rhetoribus (ap. Suet. Rhet. 1.1 = FIRA7 37; also see Gel. 15.11.1). 24. RDGE 34 line 2 (the year 193); RDGE 2 line 1 (170); RDGE 5 line 16 (ca. 164?); RDGE 9 lines 8–9 (ca. 140); RDGE 4 line 3 (ca. 140—see H. Mattingly ap. MRR III 84, and 9.1.3 n. 31 below). Cf. also RDGE 7 line 35 (mid-second century), where the simple strathgov~ is a likely supplement. 25. RDGE 1 A line 1 and 1 B line 1 (the year 189); RDGE 8 lines 1–2 (second century?). 26. CIL I2 838 and 839 (= ILLRP 485) lines 1–3 “L. Sentius C.f. pr(aetor) de sen(atus) sent(entia) loca terminanda coer(avit)”; the edict is what follows. On this inscription, see J. Bodel, Graveyards and Groves: A Study of the Lex Lucerina (Cambridge, Mass. 1994) = AJAH 11 (1986 [1994]) 42–54. For its form, contrast CIL I2 2516 (= ILLRP 479), and see in general C. Fabricius, RE s.v. Terminatio cols. 779–781. 27. The few known exceptions are discussed below (5.4.1 and 5.4.2); cf. also Additional Note VIII. 28. E.g., Aul. 317, 760; Bac. 270; Capt. 450; Cur. 376, 684, 722; Mer. 664; Per. 487, 746, 752; Poen. 186, 790, 1361; Ps. 358; Truc. 840. 29. E.g., Quinct. 60, 82–84; Caec. 23 with 80, 89. 30. E.g., 27.5.17; also 11.6 with 7.8. 31. Cf. L. Caesar (cos. 64) ap. Fest. p. 154 L “praetorem autem maiorem, urbanum: minores ceteros,” and in general W. Kunkel, Staatsordnung und Staatspraxis der römischen Republik: Die Magistratur (Munich 1995) 204 n. 369. 32. St.-R. II3 135 with n. 7. 33. As is clear from e.g. the passage in the “Lex Iulia municipalis,” cited in n. 20 above. 34. Liv. 39.39.14–15 (184). 35. Liv. 24.9.4–5. 36. Mommsen, St.-R. I3 66f. Yet special arrangements could be made (see Additional Note V). 37. Aq. 1.7.1–5. 38. Cf. Liv. 22.49.16–17. 39. Liv. 22.55.1, cf. 7. 40. Liv. 22.57.1 and 7–8; cf. 23.21.2 (cited in text immediately below). 41. See Liv. 23.24.1 for his presidency of the Senate near the end of the year (a Senate meeting on the question of what magistrate would conduct the elections for 215). Livy’s report of an “M. Aemilius” presiding over that body after P. Philus’ departure (23.20.6; 22.4) is perturbing. This man was not one of the praetors elected for 216 (22.35.5–7), nor (pace Broughton’s suggestion in MRR I 253 n. 2) can he be a suffect. If we accept Livy’s chronology, “M. Aemilius” is found acting as praetor before there is any report of the wounding of the urban praetor P. Furius Philus in Africa (23.21.2), which would not cause a vacancy anyway. Nor would the death of the pr. L. Postumius Albinus in Gaul offer an occasion for suffectio (on which see Additional Note IV), for that came very late in the year (he was already cos. des. for 215—23.24.6). It is perhaps best to regard the notices of “M. Aemilius” as simply a mistake for “M. Pomponius.” 42. Liv. 23.21.2. However, he survived to become censor in 214 (MRR I 259). 43. For subsequent commissions for the pr. urb. outside Rome (but never again outside Italy) see 5.3.1 (198) and 10.5.6 (82, during civil war and thus clearly a special case). There is no good reason to suppose that Q. Tullius Cicero, pr. in 62 and sent to Bruttium during his magistracy, held the urban jurisdiction, as is sometimes supposed (11 n. 316, 11.8.9). 44. This may be inferred from the fact that at the very end of 216 we find a mag. eq. as president of the Senate (see Liv. 23.25.2 with Additional Note VIII). The surprising death of
288 Notes to Chapter Five the pr. L. Postumius Albinus (see n. 41) probably prompted the dispatch of the peregrine praetor Pomponius to Gaul (cf. Liv. 23.25.1–4), where he is found (as pro pr.) in 214 (Liv. 24.10.3)—and thus 215 as well. 45. Liv. 24.9.5. 46. Liv. 26.10.1–10, with Additional Note V. 47. Pp. 436 and 438 L. 48. In 215, the pr. urb. received twenty-five ships “ad suburbana litora tutanda” (Liv. 23.32.18), yet he is subsequently found in Rome (23.34.13–14; 41.7; 48.10–49.4). In 208, the pr. urb. organized and took command of a substantially new fleet of fifty ships “ut . . . oram maris vicinam urbi Romanae tueri posset” (27.22.12, with Additional Note VI). But again, he seems to have been able to act in the city (27.23.5). In both 215 and 208, the peregrine praetor appears to have been absent from Rome (see Appendix A.1). 49. M. Marcius Ralla, pr. urb. 204, was prorogued for 203 and ordered to protect the coast of Italy with forty ships (Liv. 30.2.5). But he surely was not prorogued in the provincia urbana (see 6.1.4 below). 50. Liv. 25.1.6–12; 12.2–15; cf. Macr. 1.17.25–30 with 5.1 above. For the origin and early development of the Ludi Apollinares, see J. Gagé, Apollon romain (Paris 1955) 257–296 (with much emphasis on the atmosphere of severe superstition in which the games were instituted); cf. also 395–418. 51. The games are explicitly attested as being performed in 211 (Fest. pp. 436, 438 L) and each subsequent year (Liv. 27.23.5). The report of Livy for 211, that the Senate on the motion of the pr. urb. decreed that the games be vowed “in perpetuum” (26.23.3) is not incompatible with the fact that in 209 we find the Senate instructing the pr. urb. to renew the vow (27.11.6). For the Circus Maximus as the regular site of the Ludi Apollinares, see 25.12.14 (212) and 30.38.10–12 (202). 52. 27.23.5–7. 53. Liv. 37.4.4. 54. For some speculation on the choice of a July date, see J. Gagé, Apollon romain 284–286; on the schedule of the Ludi Apollinares, H. H. Scullard, Festivals and Ceremonies of the Roman Republic (London 1981) 159–160 with 251 n. 194; for increases in length of games in general, M. G. Morgan, Philologus 134 (1990) 26–35. 55. Liv. 39.39.15. The other positive attestation for these games in our period is for the year 169 (Cic. Brut. 78). 56. Liv. 23.48.10–49.4 (215) and 25.3.8–4.11 (213) with E. Badian, Publicans and Sinners: Private Enterprise in the Service of the Roman Republic (rev. ed. Ithaca, N.Y. 1983) 16–20, esp. 19 (pointing up anachronisms in the story); on the figure of M. Postumius Pyrgensis, see also V. Scarano Ussani, ZPE 90 (1992) 134. 57. Cf. Liv. 44.16.1–4 (169), where the urban praetor fills a consul’s request for supplies to be sent to his army in Macedonia. 58. On the actual mechanism of the probatio, see S. D. Martin, ZRG 103 (1986) 321–337, esp. 323: in Rome, it is attested as a duty especially for censors (Liv. 45.15.9), but also consuls (CIL I2 694 = ILLRP 338, the year 144 or 108), the pr. urb. (Cic. Ver. 2.1.130–150, C. Verres in 74), as well as aediles (CIL I2 1560, ILLRP 449). It does seem reasonable to assume that, in any period, a praetor was fully capable of inspecting any goods he had contracted; however, we cannot automatically assume that a magistrate who let a contract always personally undertook the probatio as well (cf. E. Badian, Publicans and Sinners 31 with 125 n. 18). 59. Liv. 27.22.8 and 12. 60. See text above at 5.2.1 and Additional Note VI. Censors do not seem, at this or any time, to have been involved in the maintenance of Rome’s military forces: see A. E. Astin, Latomus 49 (1990) 25.
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61. There is one recorded instance for the period 218–122, in 186, when the Senate ordered the two city praetors to declare a iustitium for thirty days at the time of the quaestio de Bacchanalibus (Liv. 39.18.1). 62. See Fest. s.v. praefecturae p. 262 L with J. Linderski, Roman Questions: Selected Papers (Stuttgart 1995) 143–146 (discussing some incorrect translations of the passage); also R. C. Knapp, Athenaeum 58 (1980) 21–22 and 29–30 on the sphere of competency of these praefecti and the praetor’s role. This institution has been exhaustively discussed, and I cannot enter into the various problems here, especially since there is precious little direct evidence on the system for our period (but see 3.2.1 above on Liv. 9.20.5; also Additional Note III on a possible praefectus for Caere in the third century). F. Wieacker, Römische Rechtsgeschichte I: Einleitung, Quellenkunde, Frühzeit und Republik (Munich 1988) 480 n. 12, collects the fundamental modern treatments of the praefecti iure dicundo, of which E. Sachers, RE s.v. praefectus iure dicundo cols. 2378–2391, esp. 2382f, is basic. Cf. also M. Humbert, Municipium et civitas sine suffragio: L’organisation de la conquête jusqu’à la guerre sociale (Rome 1978) 355–402; R. Wittmann in W. Kunkel, Staatsordnung 540– 547. 63. Mommsen, St.-R. II3 210. 64. See the chart in Appendix A.1. 65. Liv. 28.46.6. 66. Liv. 28.46.13. 67. Liv. 32.1.6 “ut . . . agrum assignandum curaret.” 68. Liv. 42.1.2 and 6, 9.7; cf. 8.4. 69. See 4.3.4 above with Additional Note III. If this hypothesis is accepted, on both occasions when he left for Gaul, he must have entrusted his jurisdiction in the city to his colleague, the pr. urb. C. Atilius Serranus. 70. See 5.4.1 below with Additional Note VIII. 71. See Liv. 27.51.8 (the year 207) and Macr. 3.16.14–17 (161) with F. Coarelli, Il Foro romano II2 (Rome 1992) 22–27. There is no good reason to think that, at this time, the peregrine praetor’s tribunal was far from the urban praetor’s (contra O. Behrends, ZRG 92 [1975] 303 n. 22, who argues it might not even have been in the city!). In Cicero’s day, the tribunal of (at least) the urban praetor was located in the southeast end of the Forum, near the “puteal Scribonianum” (cf. Fest. pp. 448, 450 L): see the expositions of B. W. Frier, The Rise of the Roman Jurists: Studies in Cicero’s Pro Caecina (Princeton 1985) 57–63 (particularly good), and W. Kunkel, Staatsordnung 108f. For an attempt to reconstruct the intervening stages, see J.-M. David, Le patronat judicaire au dernier siècle de la République romaine (Rome 1992) 14–18, and Klio 77 (1995) 371–385; also M. J. Kardos, BAGB (1993) 254–262. 72. Liv. 23.32.3–4 (translation by F. G. Moore in the Loeb edition [1940]). 73. Liv. 23.32.2 and 16–18. 74. See Liv. 23.32.15. 75. R. Develin, The Practice of Politics in Rome, 366–167 B.C. (Brussels 1985) 35 n. 70. 76. See 5.4.1 below. R. E. Mitchell (Patricians and Plebeians: The Origins of the Roman State [Ithaca, N.Y. 1990] 185 n. 53), discussing the urban praetor of this year, suggests that his tribunal near the piscina publica “had nothing to do with dispensing justice, but was probably concerned with the military levy.” Livy’s explicit statement about vadimonia excludes full acceptance of Mitchell’s hypothesis; but later in the year this pr. urb. was ordered to hold an emergency levy, which he indeed may have conducted, for convenience’s sake, at the piscina publica (cf. 23.34.13 with 5.5.1 below). 77. See MRR I 255. 78. In 214, Q. Fabius Maximus, who served in Apulia (Liv. 24.11.2; cf. 12.6) and Luceria (24.20.8 “cui circa Luceriam provincia erat”) was probably a pr. per. (Livy does not give a full
290 Notes to Chapter Five report of the sortition of the praetorian provinciae for this year). In 213 he was succeeded in Luceria by a pr. per., M.’ Aemilius Lepidus (24.44.2; cf. 25.3.4 with T. C. Brennan, Athenaeum 67 [1989] 474 n. 37). 79. Liv. 25.3.1. 80. In the first of these years (216), Sardinia was left out of the sortition so that the pr. L. Postumius Albinus could go to Gaul (Liv. 22.35.5–6), where he was killed near the end of the year. The peregrine praetor of 216, M.(?) Pomponius, is then found pro pr. in Gaul in 215 and 214 (see n. 44 above). In 213, the omission of Sicily and Sardinia from the sortition enabled the allotment of Gaul and Suessula (Liv. 24.44.2–3). The praetor for Gaul for 213, P. Sempronius Tuditanus (Liv. 24.44.3), was prorogued for 212 and 211 (25.3.5; 26.1.5). Nothing is known of the activities of these two commanders who followed Albinus other than that they held the region with two legions (Liv. 24.44.3; cf. 25.3.5; 26.1.5), and that P. Tuditanus captured the town of Atrinum (location unknown) in 213 (Liv. 24.47.14). 81. See MRR on the peregrine praetors for 210, 209, (possibly) 208 (“peregrina et quo senatus censuisset”—Liv. 27.22.3), 206 and 204. The first of these years is problematic: see 8.3.2 below. 82. Liv. 29.13.2 “L. Scribonio Liboni peregrina et eidem Gallia . . . evenit.” 83. Note that in 209, L. Veturius Philo is said to have received the lot “peregrina cum Gallia” (Liv. 27.7.8); but later (27.10.12) is described simply as “praetor qui Galliam provinciam erat sortitus.” 84. Liv. 35.41.6 (191); 37.50.8 (189). 85. See Liv. 37.51.1–6 (189). For the restriction to Italy of the flamines Martialis and Quirinalis, see I. Müller-Seidel, RhM 96 (1953) 256; also 4.1.3 above and 9.1.5 below. On Pictor’s provocatio against the fine levied by the pontifex maximus (and the similar case of Liv. 40.42.8–10, the year 180), see J. Bleicken, Hermes 85 (1957) 446–468, esp. 451–453; A. W. Lintott, ANRW I 2 (1972) 244–245; C. Mackay, “The Judicial Legislation of C. Sempronius Gracchus” (diss. Harvard 1994) 68–69. 86. Liv. 39.45.4. 87. See 4 n. 36. 88. Two apparent exceptions do not stand up to examination. Pace Broughton (MRR I 395), M. Titinius, pr. urb. 178, never left the city, nor was expected to (Liv. 41.5.7–8, esp. 8 with Additional Note IX). It is also unlikely that the P. Aelius who was a IIIvir coloniae deducendae in 177 (41.13.4–5) was the same man as the P. Aelius Tubero who served as pr. urb. in that year (41.8.1; 2) (as MRR I 309 has it). The identification is rightly rejected by E. Klebs in RE s.v. Aelius 10 col. 489 and Aelius 152 col. 535. 89. On P. Cornelius Lentulus, pr. 165, see Cic. Agr. 2.82; Gran. Lic. p. 9 line 8 C records his office. For this aspect of the Gracchan tresviri a.i.a., see G. Tibiletti in Hommage a la mémoire de J. Carcopino (Paris 1977) 280–281. 90. Phil. 2.31 with 3.2.1 above and 12.4.1 below. 91. See the remarks of D. C. Earl, Athenaeum 43 (1965) 105 and Historia 14 (1965) 331, on the codification of custom into law by Sulla. 92. For Sex. Paetus, see Liv. 32.9.5, 26.1–3 and 27.5; for T. Flamininus, see Liv. 32.8.4 (full references in MRR I 330). 93. Liv. 32.26.4–18. The story is also found at Zonar. 9.16.6. Both Livy and Zonaras misreport the cognomen of L. Cornelius as “Lentulus” (cf. Liv. 32.26.8). For a detailed discussion of the emergency procedures used in this incident, see J. M. Pailler, Bacchanalia: La répression de 186 av. J.-C. à Rome et en Italie: Vestiges, images, tradition (Paris 1988) 325–329; see also F. Hinard, Athenaeum 81 [71] (1993) 260. 94. See 8.3.3 on L. Furius Purpurio, pr. 200, and Cn. Baebius Tamphilus, pr. 199. (Starting in 197, operations against the Gauls and Ligurians are given as a rule to consular commanders.)
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95. Liv. 33.36.2–4. 96. See Additional Note IX on Ti. Claudius Nero, pr. 178; Cn. Sicinius, pr. 172; and M. Raecius, pr. 170. There I also discuss the case of L. Cornelius Scipio, pr. per. 174, who was debarred from exercising his office. 97. Plb. 29.7.5; cf. Liv. 43.11.1. 98. Liv. 44.17.1–3; 6–7. 99. Liv. 44.17.10; cf. 27.22.3. 100. Liv. 44.21.4; cf. 20.5 with 8.5.3 below on Ap. Centho; for L. Anicius’ activities in the East, see MRR I 428, 434 and 8.5.3 below. For foreknowledge of the designation “quo senatus censuisset,” see Liv. 35.41.3 on the year 192 (explicit). 101. Liv. 45.12.13; cf. 13.8. 102. See Liv. 39.38.3 (184); 40.43.2 (180), both special quaestiones de veneficiis. In general, see 6.2.2 below. 103. See St.-R. I3 209–211. Surprisingly, M. Bonnefond-Coudry, Le Sénat de la république romaine de la guerre d’Hannibal à Auguste (Rome 1989), does not offer a systematic treatment of presidency of the Senate. 104. Var. ap. Gel. 14.7.4 “dictatorem, consules, praetores” (note the plural); the passage is quoted in full in Additional Note VIII. 105. Liv. 23.24.1 with 5.2.1 above. 106. At Liv. 31.6.2 and 8.7 his provincia is reported simply as “Gallia”; but see 5.2.5 above. M. Bonnefond-Coudry (Sénat 273, 586, 608) does not consider that Furius not only convoked but also presided over the Senate in this instance. But habere senatum can hardly mean anything else: see, e.g., Liv. 23.25.2, 31.3.1, 33.22.1, and esp. the disquisition of Varro ap. Gel. 14.7.4 “per quos more maiorum senatus haberi soleret.” 107. Liv. 31.48.1; 49.1. 108. P. Willems, Le Sénat de la république romaine: Sa composition et ses attributions II (Louvain 1883) 132 n. 3; see esp. Liv. 42.10.10–11 for the effectiveness of this tactic. For an exception, see 10.2.1 below (95 b.c.). 109. 6.16.4. 110. In W. Eder (ed.), Staat und Staatlichkeit in der frühen römischen Republik (Stuttgart 1990) 471–475, citing Mommsen, St.-R. II3 726, for an enunciation of the general principle; Badian’s quote is from 474. D. McFayden in Studies in Honor of F. W. Shipley (St. Louis 1942) 1–15 inadvertently provided an excellent demonstration of this principle by listing all the cases he could find where we might have expected a magistrate with imperium to exercise a veto on his colleague, but where he did not; McFayden finally comes to the (absurd) conclusion that par potestas gave no right of mutual veto. On the Senate’s toleration of altercationes, see P. Willems, Sénat II 191, and cf. Mommsen, St.-R. III 947. On the Senate’s limits in this regard, see D. F. Epstein, Personal Enmity in Roman Politics, 218–43 B.C. (London 1987) 12–13. 111. Liv. 22.7.14; 55.1. Consuls commonly convoked the Senate together (Mommsen, St.-R. II3 129), but I know of no instances where they actually preside together. M. Bonnefond-Coudry (Sénat 575) and W. Kunkel (Staatsordnung 204 n. 368) wrongly assume joint presidency of the two city praetors in 216. 112. St.-R. III 912–919. 113. Pace M. Bonnefond-Coudry, Sénat 574–577, who views the praetor presiding over the Senate as essentially passive, deferring even to prominent senators; in her view, owing to his inferior rank, the praetor “never intervenes to exert influence on the decision to be taken.” This is simply false, as, e.g., the example of L. Furius Purpurio in 200 (5.4.2 above) and L. Postumius Albinus in 155 (discussed immediately below) go to show. 114. On types of relationes, see Var. ap. Gel. 14.7.9. For a general discussion, see M. Bonnefond-Coudry, Sénat 472–520; W. Kunkel, Staatsordnung 311–318.
292 Notes to Chapter Five 115. Livy gives us a particularly full picture of some of these procedures for 203 (30.21.10) and 187 (38.54.4 and 55.1; also 39.5.6). 116. See Liv. 42.10.10. 117. Plb. 33.1.5–8 (an excerpt from the Constantinian De Legat. Gent., which may explain the obscurity in the report of the third sententia at 1.6, though here ejpiscei`n must have its common meaning of “delay”); cf. also 39.1.1–12 for Polybius’ extremely negative character sketch of Albinus. On these passages, see F. W. Walbank, A Historical Commentary on Polybius III (Oxford 1979) 542–543 and 726–728; the translation is that of W. R. Paton in the Loeb edition (1927). M. Bonnefond-Coudry (Sénat 544–548) refuses to believe that this Senate president—the “philhellene” Postumius—was capable of such hostile manipulation. But Albinus was acting fully within his rights: see W. Kunkel, Staatsordnung 317 n. 70. 118. Cf. also Plb. 36.4.4–9 (with D.S. 32.6.1), from early 149, the first year of the Third Punic War. When Carthaginian envoys in Rome offer their city’s deditio, a praetor reports to them the Senate’s terms of surrender, using a prejudicial formulation (on which see F. W. Walbank, Commentary III 656–657). But the relatio that formed the basis of this S.C. is unlikely to have arisen from the (unnamed) praetor’s own initiative; the consuls must have carefully instructed the praetor on this important matter before their departure for Africa. 119. On the incident of the Statellates in general, see esp. J. K. Evans in T. Yuge and M. Doi (eds.), Forms of Control and Subordination in Antiquity (Leiden 1988) 121–123 with 135 n. 7, for earlier literature; A. Graeber, WJA 15 (1989) 144–147. 120. Liv. 42.8.3–9.6. The quotation that follows in the text is from 42.9.3. 121. Liv. 27.5.10–13; 7.3. 122. Liv. 27.29.5. I hope to show elsewhere that the Senate may have meant “ager Romanus” in the narrow augural sense, i.e., that which contained the urbs and ager effatus. 123. Liv. 27.5.17. 124. Cf. 27.4.1–4; 5.16–17. 125. Pace the alleged fifth-century examples (mostly from Dionysius of Halicarnassus) collected by Mommsen at St.-R. II3 313–316. Nor had it happened in 216 (Liv. 22.61.5–9), as Mommsen believed (St.-R. II3 316 and 317 n. 1). This whole episode, in which even Livy notes the source problem (22.61.10; cf. App. Hann. 28.118–122, yet another version), is rightly rejected by J. Lengle, RE s.v. tribunus cols. 2479–2480. See also E. Badian in J. Linderski (ed.), Imperium Sine Fine: T. Robert S. Broughton and the Roman Republic (Stuttgart 1996) 207–208; and Additional Note VIII. 126. Liv. 27.5.18–19. 127. The dictio of the dictator was performed by virtue of a consul’s (or consular tribune’s) civil auspicia (2.4.2). The possibility of naming a dictator in the field must have been introduced only with some aid from the augural college, at a point when it was discovered how dangerous it was in time of warfare to insist on return to the actual capitol. Elsewhere I plan to argue that it was either M. Claudius Marcellus (cos. 210) or T. Quinctius Crispinus (cos. 208) who was the first to perform the dictio of a dictator in the field (see respectively Liv. 27.5.18 and 27.29.1–3 with 33.6), and that Livy’s fourth-century examples of naming a dictator in castris (7.21.9, Etruria in 352; 9.38.13–14, Etruria in 310; cf. 8.23.13–17, vitium committed while naming a dictator in Samnium in 327) should be considered as adulterated by the later reality (contra P. Catalano, Contributi allo studio del diritto augurale I (Turin 1960) 269–270 n. 89). In Livy’s first decade, only 7.19.9 (353) must preserve the proper procedure. 128. Liv. 33.21.9; 26.3–4 with 6. 129. Liv. 33.25.8–9. 130. Liv. 42.10.11–15; cf. M. Bonnefond-Coudry, Sénat 558–559. The dispute over the levy is discussed below (5.5.1). 131. Liv. 42.21.4–6 and 8; the quotation that follows in the text is from 21.8.
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132. Liv. 42.21.8. Translation is from the Loeb edition of E. T. Sage and A. C. Schlesinger (1938). 133. 42.22.1. For the praetor’s quaestio that followed, see 5.6.2 below. 134. Cf. the duties of Q. Maenius, pr. urb. 170 (see Additional Note IX), in RDGE 2, lines 10–13 (the pr. urb. chooses a senatorial commission to make a finding on a Greek city’s complaints) and lines 35–40 (the Senate declines to make a decision on one of the complaints, granting to Q. Maenius the full discretion to decide the matter for himself). 135. See Liv. 26.21.1 (211), 38.44.9 (187), and 41.6.4 (178) (all prorogued consuls or praetors asking for triumphs); also 30.17.1–3 (the legate of a pro cos. reporting a victory in 203). 136. In 212, the pr. urb. et per. introduced the centurion M. Centenius Paenula (Liv. 25.19.10). 137. Asking for hospitality from a Roman magistrate was considered a necessity for visiting foreign embassies (Liv. 42.26.5 “ut . . . sciretur . . . venisse eos et super qua re venissent”). Under Livy’s account of the year 167 we find a detailed example of how King Prusias of Bithynia asked the pr. urb. to grant him a session of the Senate so that he could commend his son to that body (45.44.4–9). Inter alia, the praetor charged a quaestor with giving official entertainment and renting a house for the king (45.44.7; for this function of the quaestor, see 45.14.9). Note also Liv. 30.17.7–14 (envoys of Masinissa) and 30.21.3–5 (an embassy from Saguntum) (both from 203). In 193, the pr. urb. introduced Greek and Asian ambassadors, as well as representatives of Philip, now surely an ally (cf. 33.35.5–6 with E. Badian, Foreign Clientelae (264–70 B.C.) [Oxford 1958] 92 n. 1), and legates of Antiochus, who was seeking friendship and an alliance with Rome (Liv. 34.57.2–3; cf. 6). See also 37.46.9 (colonists from Placentia and Cremona in 190) and 44.16.4–6 (the friendly Macedonian noble Onesimus in 169). 138. Liv. 30.17.13–14 (203), 42.6.10 (173), 43.6.10 (170; see Additional Note IX for Q. Maenius as pr. urb.), and see the text immediately below for 169. D. A. Bowman (CJ 85 [1989–1990] 330–336) collects much material relevant to the registration of foreign visitors to Rome as socii and amici; however, Bowman’s attempt to show development in the nature of registration rests on a shaky foundation (namely, the assumption that there was only one type of list, and that Livy, Plutarch, Appian and Dio are all absolutely precise in their report of the Roman technical term for it). 139. Liv. 44.16.4 and 7. 140. As at 42.19.6 (172) and 45.13.8 (168). 141. Liv. 39.54.5 (183); 40.34.9–11 (181). 142. Liv. 30.21.12 (203, discussed in n. 143 below); 42.36.1 (171). Cf. M. BonnefondCoudry, Sénat 139–140. 143. See Liv. 30.21.11–12 (203), where a Carthaginian embassy is met near Puteoli and escorted to Rome by a legatus of the pro cos. P. Cornelius Scipio. The pr. per. was not in Rome in that year. Though the pr. urb. presided at the actual Senate meeting, it seems likely that the legatus introduced the envoys to the Senate (30.21.12–22.6; also 23.5–6 and 25.9). This shows that “introducing” does not mean that one presided, though normally it would: see RDGE 4 lines 8–9 (an urban praetor) ejgw; aujtoi`~ suvgklhton e[dwka; 7 line 37 (another praetor); 8 line 5 (a praetor); 14 line 92 (a consul), etc. 144. Liv. 33.21.9 (with provincia misreported; cf. 32.28.2) (197); 44.17.3 (169). 145. Liv. 35.23.8—192 (the pr. urb. wrote to the pr. for Sicily to be on his guard against a possible attack by Antiochus III); 37.57.3–4—189 (the pr. urb. sent an S.C. and a letter to a pro pr. in Etruria to turn over his army and provincia to whomever he saw fit, and set out to Hispania Citerior); 40.16.6—182 (the Senate ordered the pr. urb. to instruct a pro cos. in Gaul to hand the question of the deditio of the Ligurians to the consuls of the year); 40.28.10—181 (the Senate ordered the pr. urb. to write to the consuls to discharge the emergency troops
294 Notes to Chapter Five they had enrolled in the fear of a Ligurian uprising); 42.27.5—172 (the Senate ordered the pr. urb. to write to a consul to send a Roman legion and an allied contingent to Brundisium so that the peregrine praetor of the year might cross with these to Macedonia). 146. Liv. 22.33.9 (217); 25.41.8 (212—the letter-writer a man who was both pr. urb. and pr. per.); 27.4.4 (210); 35.24.2–3 (192); 44.17.2 (169). In each of these cases, it is mentioned that the pr. urb. acted in accordance with an S.C., as we would expect. 147. Liv. 30.24.2–3 with 2.2.1 above. 148. Liv. 25.22.11 (212); 26.15.8–10 and 13 (211). 149. Liv. 35.6.5–7. 150. Liv. 43.1.10–12. For the consul’s provincia (“Italia”), see 42.31.1; 32.4–5. For his march, see also 8.6.1 below. 151. Liv. 44.31.15; cf. 43.5.1–9. 152. Thus E. Badian in OCD3 s.v. provincia 1265, citing this episode. See also W. Kunkel, Staatsordnung 306 n. 39 on Liv. 39.55.4–5 (the year 183), where the cos. M. Claudius Marcellus asks the Senate’s permission to march from Aquileia into Histria. 153. See Additional Note VII on the peregrine praetor Pomponius’ announcement of the Trasimene defeat in 217, and 5.4.6 below on M.’ Iuventius Thalna and his proposed rogatio of 167. 154. RDGE 1 document B (to the League) lines 1–2: Spovrio~ Postovmio~ Leukivou uiJo~v . strath|go;~ R J wmaivwn. On this document, see E. Badian in J. Linderski (ed.), Imperium Sine Fine 205 n. 27. 155. See RDGE 1 C lines 1–2: ∆Oktavio~ Gnaivou strat[hgo;~? sune-]| bouleuvsato th`i sugklhvtw/ (just possibly a pr. urb., but almost certainly Cn. Octavius, cos. 165, in his consulship, as suggested by R. Sherk, RDGE p. 24); and RDGE 1 D line 1 [L]euvkio~ Fouvrio~ L[eukivou uiJo~v , strathgov~] (perhaps the cos. 136, L. Furius Philus, as praetor or consul; a mention of “Delphi” is all that follows in this extremely fragmentary inscription). 156. Liv. 45.43.10. See R. Sherk, RDGE p. 13 on the “cover letter” of the magistrate who presided over the Senate in the session in which an S.C. was drafted. 157. In 193, M. Valerius Messalla sent a letter to the Teians in response to their request that their polis be declared holy, inviolable and exempt from taxation (RDGE 34). The prescript is interesting: Ma`rko~ Oujalavrio~ Mavrkou strathgo;~ kai; | dhvmarcoi kai; hJ suvnklhto~ (lines 2–3, on which see R. Sherk, RDGE p. 200). There are two more surviving examples of this formulation which includes both the tribunes and Senate. In 188, a consul sent a letter to the people of Delphi (RDGE 38 lines 1–2, with pp. 227–228 on the date). And in a second-century decree of unknown date a M. Licinius M.f. (?Lucullus, the pr. per. 186) wrote to the Amphictyonic League, perhaps to deliver an opinion on some local controversy (RDGE 39 lines 1–2). The person and date on this document are a pure guess, which may or may not be right. But it should date to the first half of the second century: note also a praetorian M. Licinius on the “handicapped” embassy of 149 (MRR I 460), and thus perhaps pr. ca. 160; a son of the pr. 186, or a Crassus. The prescript with the tribuni was probably the original form; at any rate, from RDGE 4 (ca. 140—see MRR III 64) and 7 we can see that a new style without tribunes is established by the 140s. The practice may have ceased when tribunes became members of the Senate ex officio. For full discussion, see E. Badian in Imperium Sine Fine 202–208, dating the lex Atinia (Gel. 14.8.2) that gave ex-tribunes a presumptive right to enter the Senate to the 160s. Previous speculation on the date and content of the lex Atinia has neglected to take this epigraphical evidence into account. 158. Contrast RDGE 2 lines 1–2 (170). 159. Liv. 34.57.2–3. 160. Liv. 39.20.4 and CIL I2 581 (= ILLRP 511) lines 4, 8, 17, 21; cf. also Liv. 39.18.8 and see 5.2.4 above.
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161. RDGE 2 (the year 170), with Additional Note IX on the praetor Q. Maenius. 162. RDGE 5 lines 15 and 16; see Sherk’s discussion at RDGE p. 39 on the date. 163. CIL I2 586 (= ILLRP 512) line 1. 164. RDGE 9 lines 8–9; note also lines 67–72, where the praetor orders the quaestor to present the traditional honorific gifts to each embassy. 165. RDGE 4 lines 1–3 with MRR III 84; cf. S. Ager, Interstate Arbitrations in the Greek World, 337–90 B.C. (Berkeley 1996) no. 131 (with date “c. 166?”). 166. See SIG3 683 (a Messenian document) lines 42–43 and 50 for the praetor Q. Calpurnius C.f. The document must date after 145 (lines 53–55, 64–65), which provides a terminus post quem for this man’s praetorship. 167. RDGE 7 (= SIG3 679 II b, from Magnesia) lines 35–38 (at line 35 strathgov~ is a likely supplement), 47–55, 57–63; the role of Mylasa as arbitrating state is revealed in the companion documents SIG3 679 I a and IV d. For the identification of the praetor with the cos. 137, see G. V. Sumner, The Orators in Cicero’s Brutus: Prosopography and Chronology (Toronto 1973) 47. See also RDGE p. 46 for speculation about this praetor’s identity (R. Sherk is wrong to admit M. Aemilius Lepidus, cos. 158, for he is M.’f. M.’n.). 168. See the two letters to the Delphians in n. 155 above quoting RGDE 1 C lines 1–2 (an Octavius Cn.f. presides over the Senate) and RDGE 1 D line 1 (L. Furius L.f.; his title and function are not preserved). A quite fragmentary (second-century?) letter with S.C. records that a P. Sextilius pr. gave a meeting of the Senate (apparently) to an embassy from Triccala in Thessaly (RDGE 8 line 1–2; cf. 5). 169. L. Valerius Flaccus: Jos. AJ 14.145 with MRR I 491 n. 2. Fannius M.f.: AJ 13.260, cf. MRR I 508 and 509 n. 2 with III 89f (“pr. ?127 or 126”). On strathgov~ as “consul,” see AJ 14.82 Gabivnio~ (i.e., the cos. 58) ejk ÔRwvmh~ strathgo;~ eij~ Surivan h|ken. For a general defense of the basic authenticity of the documents in Jos. AJ 14, see M. Pucci Ben Zeev, SCI 13 (1994) 46–59. 170. Liv. 23.48.10–49.4 (an announcement to the state’s creditors in 215); 25.1.6–12 (a contio concerning an outbreak of unacceptable religious practices in 212); 27.51.8 (announcement of a supplicatio in 207); and 43.4.11 (the pr. urb. of 170—on whom see Additional Note IX—announces an S.C. concerning the actions of the pr. L. Hortensius against Abdera). On this last item, cf. also RDGE 3, an extremely fragmentary S.C. de Coroneia. For the magistrate’s right to summon a privatus or another magistrate to address a contio (and also subject them to interrogation), see Mommsen, St.-R. I3 201; J. Linderski, ANRW II 16.3 (1986) 2209–2210. For praetorian contiones in the later Republic, see 12.4.3 below. 171. St.-R. I3 192f; cf. Liv. 27.5.16. 172. See Valerius Messalla ap. Gel. 13.16.1 with A. W. Lintott, ZRG 104 (1987) 43. 173. 34.53.1–2. Mommsen (St.-R. II3 631 n. 1) refused to believe the detail of their imperium, without good reason. On the purpose of this commission, see 8.4.1 below. 174. Athenaeum 41 (1963) 65–66. 175. Liv. 34.54.1; cf. 48.1. 176. Liv. 45.21.1–8. 177. Plb. 3.4–6; cf. D.S. 31.5.3. 178. M. Pennus: Liv. 45.17.6; Q. Longinus: 45.16.8; 35.4, etc. 179. Explicit in Liv. 45.21.4. 180. Attested as early as Liv. 10.21.9 (his narrative of the year 296) “tribunis plebis negotium datum est, ut plebei scito iuberetur . . . praetor triumviros . . . colonis deducendis creare,” which must at least reflect the first stage of the normal procedure, on which see P. Willems, Sénat II 678–683; also R. D. Weigel, PP 38 (1983) 191–195 (who tries to argue from Livy that the legislative approval of the tribal assembly came in only ca. 313). In the histori-
296 Notes to Chapter Five cal period, see Liv. 37.46.10–11 for the urban praetor’s election of IIIviri col. ded. in 190 (cf. 37.47.2, 57.7–8 and Vell. 1.15); no consul was in the city at the time. In an emergency of 181, IIviri navales were elected, to judge from Livy’s account, by the city praetors (or pr. urb.) directly after the consuls left for north Italy (40.26.8). The election of the IIviri navales would normally be a consular responsibility (cf. 40.18.7–8). 181. Liv. 23.30.13–14 (the consul Ti. Sempronius Gracchus, at the very beginning of his term of office in 215, presides at the election of IIviri to dedicate a temple). 182. In 217, the pr. urb. created IIviri for the locatio of an aedes Concordiae (Liv. 22.33.8), although the dictator Q. Fabius Maximus should have been in the city. Livy does not mention that the pr. urb. was instructed by the Senate to do so, but he surely was (cf. Liv. 22.33.9). In 212 “de senatus sententia plebique scitu” the pr. urb. held an election for several colleges of special (hence the plebiscite?) wartime magistrates (Liv. 25.7.5–6); the consuls were still present (cf. Liv. 25.12.1). In 201, although the consul P. Aelius Paetus was in Rome (Liv. 31.3.1–2 and 4.4), the Senate decreed that the pr. urb. create Xviri to allocate lands in Samnium and Apulia for veterans (Liv. 31.4.1–3). At the end of 186, the pr. urb. held an election ex S.C. for IIIviri to replenish the populations of two colonies (39.23.3–4; this passage implies the consul Sp. Postumius Albinus was in the city at the time). 183. Livy does not specify what magistrate in 212 saw to the creation of the two boards of IIIviri which the Senate ordered to assist with the levy (25.5.5–9). It may have been the consuls, or one of them (they do not seem to have yet set out for their provinciae—5.5), or the pr. urb. In 200, we do not know who held the election of IIIviri to supplement the colony of Venusia (31.49.6). 184. See Fest. p. 468 L s.v. sacramentum (a law of a L. Papirius, tr. pl.) “quicumque praetor post hoc factus erit qui inter cives ius dicet, tres viros capitales populum rogato,” with Mommsen, St.-R. II3 595 and nn. 1–3; D. Cloud, Athenaeum 80 [70] (1992) 159–186, esp. 173–175. Mommsen posits a date between 242 and 123, which is generally accepted; on the basis of style, F. Wieacker (Römische Rechtsgeschichte 305 n. 95 and 425) attempts to narrow the date for this law (and the quite similar lex Plaetoria, on which see Additional Note X) to the second century. As often, there is no telling what in this law is innovation and what is tralatician (thus rightly Cloud, Athenaeum 80 [70] [1992] 174–175), and so certainty is impossible (especially since a L. Papirius as tribune is conceivable at any point between 242 and 123). For the date of the creation of the IIIviri capitales (ca. 289), see E. Badian in W. Eder (ed.), Staat und Staatlichkeit 460 with n. 7. On the scope of their powers, see 5.6.1 below. 185. Liv. 23.21.6–7. 186. Messalla ap. Gel. 13.15.4 “praetor, etsi conlega consulis est . . . maiori [MSS. maiore] conlega rogari iure non potest.” See also Cic. Att. 9.9.3 “nos autem in libris habemus non modo consules a praetore sed ne praetores quidem creari ius esse idque factum esse numquam; consules eo non esse ius quod maius imperium a minore rogari non sit ius, praetores autem cum ita rogentur ut conlegae consulibus sint, quorum est maius imperium.” 187. For the election of curule aediles, see Mommsen, St.-R. II3 125 n. 5; for quaestors, St.-R. II3 126 n. 1. The evidence—mostly late Republican—seems to show that a consul was the normal presiding magistrate in these particular elections. But one wonders what the state of affairs was in the “comitia leviora” (Cic. Planc. 7) before Sulla based both consuls in the city during their year of office. The fact that in November 57 it was not the consul elected first but his colleague who was slated to hold the aedilician elections (J. Linderski, Roman Questions 79–80) implies that in earlier times responsibility might have devolved upon the urban praetor. In any case, the rule that aedilician elections must be completed in order for quaestorian ones to proceed (see D.C. 39.7.4 with Linderski, ibid. 102–103) does suggest that the same magistrate presided over both. In 101, C. Servilius Glaucia presided over the tribunician elections as tr. pl., not “praetor,” as App. BC 1.28.127 has it (accepted by Mommsen,
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St.-R. I 141 n. 1, though parallels are wholly lacking); see MRR III 196 for various explanations of Appian’s error. 188. Liv. 22.8.5–7, 31.8–11 pro dictatore; cf. Plu. Fab. 4.1 with St.-R. II3 147 n. 4. The best account of the background to Fabius’ election (or appointment, as Plutarch would have it) remains Münzer, RE s.v. Fabius 116 cols. 1818f. Most scholars accept Mommsen’s hypothesis of the involvement of the urban praetor (see the list in M. Gusso, Historia 39 [1990] 294 n. 18). The suggestion that Fabius was elected dictator under the presidency of an interrex (thus G. V. Sumner (Phoenix 29 [1975] 256f), is wholly unconvincing: see E. Gruen, CSCA 11 (1978) 63. It was impossible to appoint an interrex when one consul was alive and active, and there was no way of getting around that. Gusso (Historia 39 [1990] 291–328, esp. 317–324), however, picks up on this hypothesis, and quite implausibly argues that Fabius as interrex saw to the appointment of himself as dictator. 189. Cic. Att. 9.15.2; cf. also 9.9.3. 190. MRR II 256f. 191. Discussed by J. Linderski (with sources) in ANRW II 16.3 (1986) 2180–2184 (the quotation which immediately follows in the text is from 2183). Linderski attempts to demonstrate that the appointments of 426, 81, and 49 (the naming of Caesar as dictator by a praetor) were able to be performed legally and sine religione. Ignoring the alleged fifth-century precedent, the instance of Sulla is unobjectionable, provided L. Valerius Flaccus was the second (or later) interrex: those interreges (but not the first) had the full regal powers (St.-R. I3 657f). But there is no reason to believe that Sulla (himself a priest) would have ignored that well-known rule. The only thing he needed was an augural decree so that he could serve a year (i.e., two consecutive six-month terms)—which he surely obtained, since no one ever objects to Caesar’s year-long dictatorship (see 2.3.1 above). 192. This was the case in the Spanish commands of 210–198 and P. Sempronius Tuditanus in Greece in 205, which I discuss in 7.1.3—6 and Additional Note XII respectively. 193. For Livy’s dramatic story of the meeting of the dictator Fabius and the cos. Cn. Servilius Geminus in Umbria—and the possibility that there were other variants—see 2 n. 80. 194. See Mommsen, St.-R. I3 119; II3 96 with (especially) n. 1; III 1076. On the dilectus, see also W. Liebenam, RE s.v. dilectus cols. 591–609 (providing a comprehensive list), esp. 595f for the levy as a consular prereogative; P. A. Brunt, Italian Manpower, 225 B.C.—A.D. 14 (Oxford 1971) 391–415; D. W. Baronowski, Historia 33 (1984) 248–252. 195. Liv. 39.20.4, no S.C. mentioned. 196. In 215, the Senate ordered the pr. urb. to see to the recruitment and transport of a legion for Sardinia (Liv. 23.34.13). In 212, following two significant defeats in Apulia, the pr. urb. et per. held a levy and rounded up deserters from the army of slave-volunteers ex S.C. (25.22.4). In 178, the urban and peregrine praetors conducted a dilectus extra ordinem after the defeat of a consul in Histria (41.5.4; cf. 6–12 with P. A. Brunt, Italian Manpower 630 n. 3). See Additional Note IX for the special levy of M. Raecius, pr. 170, in the Adriatic region of Italy (Liv. 43.9.6). 197. Liv. 40.26.6–7 with 28.9–10. See also Liv. 42.27.3–6 and 8 (172), where the pr. urb. of the year enrolled Roman freedmen as socii navales (by this time, merely “naval personnel”) and the pr. per. enlisted allies for twenty-five ships, and levied infantry and cavalry from the Latin League (discussed further in this section, immediately below). 198. Liv. 42.10.12–13. 199. Liv. 42.18.2–3 and 6–7; on the consuls, cf. 21.6. 200. Liv. 42.18.6–7 with 10.9–15 (the military and political crisis) and 21.4–5 and 8 (the quaestio). 201. Liv. 42.27.5.
298 Notes to Chapter Five 202. Liv. 42.27.8. 203. At 42.27.3–4 (cf. 31.3) and 36.8, on which see MRR I 415 n. 2 and P. A. Brunt, Italian Manpower 659. 204. In 171, perhaps to expedite the departure of the consuls to the Macedonian war (cf. Liv. 42.35.3), the Senate ordered the pr. urb. to raise four legiones urbanae as well as a large force from the Latin League (42.35.4–5) as a reserve army (cf. 43.12.6–7, the year 169). Many men had been willing to volunteer in the consular levy of that year; but there is no reason why this would hold true for the legiones urbanae, making the urban praetor’s task truly enormous (42.32.6). It is not clear why the pr. per. of the year (cf. 42.28.5; 31.9) did not help him: we are not told that he was busy elsewhere. Perhaps since the levy was such a long and difficult job, the peregrine praetor attended to all legal business. For 170, see 43.9.6 with Additional Note IX. 205. Liv. 43.14.2–5; cf. 12.10–11 (Marcellus already was expected to enrol a modest force from the allies). The pr. urb. C. Sulpicius Galus was able to enrol four legions as well as the customary supplement (43.14.6–15.1). 206. Liv. 43.15.4–5, cf. 3. It is unclear from 43.15.5 whether we are to imagine C. Sulpicius Galus and M. Claudius Marcellus as the praetors on the tribunal (reviewing the levy?), or Galus and the peregrine praetor, C. Decimius. 207. St.-R. I3 42 n. 5; 243–246; II3 618–624. 208. In 218 the urban praetor made a major public vow (Liv. 21.62.10; cf. 22.9.11) and declared a supplicatio (21.17.4). See also 30.17.6 (the pr. urb. in 203 ordered the temples in the city to be opened in celebration of Roman victory in Africa) and 34.53.4 (the pr. urb. of 194 dedicated a temple which he had contracted to be built as aed. pl. 196; cf. 33.42.10). In 188, the pr. urb. handed over to the fetiales two Romans to be transported to Carthage; it was alleged that they had struck some Punic envoys (38.42.7; see D.C. 19 F 61; and V. Max. 6.6.3, who provides a different—and less plausible—date and circumstance). On this last incident, see T. R. S. Broughton, Phoenix 41 (1987) 51–52. 209. Cf. Liv. 40.26.6–7; 29.10; 35.1. 210. Liv. 40.29.3–14. For a complete list of sources on this story (treated by at least four major annalists, as well as Varro), see MRR I 384. For discussion (with bibliography), see especially K. R. Prowse, G&R 11 (1964) 36–42; K. Rosen, Chiron 15 (1985) 65–90; J.-M. Pailler, Bacchanalia 623–703 (each with their own speculative reconstructions of the background to this incident, which do not concern us here); G. Forsythe, The Historian L. Calpurnius Piso Frugi 207–215 and 457–458. 211. Cic. Dom. 136–137 (speaking of the severitas and diligentia of the S.C., which was extant in his day) with J. Linderski, Roman Questions 503–504. On the lex Papiria, see Dom. 127 with W. J. Tatum, CPh 88 (1993) 319–328, who discusses this incident at 325–326. 212. See ILLRP 291. A. Degrassi (in his commentary ad loc.) suggests that this is the son of the cos. 124, i.e., the orator known from Cic. Brut. 130 and De Orat. 2.246 (on whom see Sumner, Orators 76–77), though he is not known to have reached the praetorship—and quite probably did not (see E. Badian, JRS 58 [1968] 244). Badian (ibid.) favors the orator’s father for the identification; indeed, the formula de senati sententia (written out in full, with genitive in -i) may support Badian’s view. For parallels, note ILLRP 476, 477 and 517, all falling between ca. 140 and ca. 115, and cf. ILLRP 95, which Degrassi tentatively ascribes to a cos. 123; contrast ILLRP 269, 367, 368, 479, 485 (abbreviation of the formula as early as 122, and regular by the early first century). 213. Liv. 22.9.10–11 and 10.1–10; cf. 27.33.8. 214. Liv. 39.14.6–17.7; cf. 18.7 (the consuls’ provincia), 18.8; CIL I2 581 (= ILLRP 511) lines 3–6, cf. 8, 17, 21. 215. Liv. 45.16.7–8 with 31.8.2.
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216. Liv. 45.17.6. 217. Magna Mater: Liv. 36.36.4; the date of the dedication was 10 April 191 (Inscr. Ital. XIII 2 438). Ludi Megalenses: Liv. 36.36.4; cf. the didascalia to Plautus’ Pseudolus, performed at these games, where he is called simply “pr. urb.” The Ludi Megalenses were the traditional duty of the curule aediles later in the Republic; Mommsen (St.-R. II3 520 n. 3) noted that the praetor’s supervision of these games in this year must have followed from his dedication of the temple. 218. For Nasica, see Liv. 36.37.1. Glabrio is said to have departed from Rome for Asia on 3 May (36.3.14). 219. D.H. 2.19.4; Liv. 29.14.8; 35.10.9; 36.36.3. 220. See Liv. 36.36.1–3, cf. 35.1.8 for the original vow. 221. J. Briscoe (A Commentary on Livy, Books XXXIV–XXXVII [Oxford 1981] 274f) even has suggested that the Senate may have had a political motive in removing this important dedication from the consuls. Yet Briscoe himself notes that “the praetor urbanus would have been a logical choice” if praetors were already in charge of the cult of the Magna Mater. 222. Ara maxima: Var. L. 6.54 with St.-R. II3 236 and n. 1; see also 12 n. 21 below on Cn. Aufidius Orestes, pr. urb. 77. Compitalia: Gel. 10.24.3. The Compitalia were allegedly founded by Servius Tullius (D.H. 4.14.3–4)—i.e. presumably before the third century—and so in effect in this period, though we cannot know when the urban praetor took supervision of the festival over from the consuls. Piscatorii ludi: mentioned by Fest. p. 274 L. In the later Republic it seems that the home of the praetor urbanus might host the rite of the Bona Dea even when one or both of the consuls were present in the city (12.1.1 below). Perhaps the same was true of the earlier period as well. 223. Plin. Nat. 7.104–105, on which see the discussion of M. G. Morgan, CQ 24 (1974) 139. Physical disabilities did not debar one from the praetorship even in later periods: see Plu. Sert. 4.1–3 and esp. Luc. 12.5 on the one-eyed Q. Sertorius, pr. by 83. For a general discussion of physical fitness for Roman magistracies, see W. Kunkel, Staatsordnung 55–56. 224. I use these terms out of convenience, fully realizing there was probably no conception of “criminal” law in the Republic: cf. Cic. N.D. 3.74 with C. Mackay, “Judicial Legislation” 193–196. The classic statement on this topic is T. Mommsen, Römisches Strafrecht (Leipzig 1899) 525–527. 225. For quaestiones perpetuae (first seen in 149), see 9.2.1–2. 226. First attested for 87, in Hispania Citerior, in the Tabula Contrebiensis (CIL I2 2951a) lines 1–15; see F. Wieacker, Römische Rechtsgeschichte I 481 n. 17. 227. Leg. 3.10 and 27, with C. Mackay, “Judicial Legislation” 71–72 and 97 n. 51, against Mommsen, St.-R. II3 537–540 and Strafrecht 155–157 (arguing that consuls had to delegate their imperium to lower magistrates to try cases). 228. On the notion of the antiquity of provocatio, which Cicero thought existed even in regal times (Rep. 2.54), see A. H. M. Jones, The Criminal Courts of the Roman Republic and Principate (Oxford 1972) 32–33; C. Mackay, “Judicial Legislation” 89ff. 229. St.-R. III 357–358; Römisches Strafrecht 168. “Maximus comitiatus” in Cic. Leg. 3.11 and 44—in the latter passage, paraphrasing a provision of the XII Tables (9.2) that “de capite civis rogari nisi maximo comitiatu vetat”—is generally taken to mean the “senior” or “most important” of the different types of assemblies, readily understood to be the centuriata (A. W. Lintott, ANRW I 2 [1972] 227, citing earlier literature). Contra E. Gabba, who has suggested (Athenaeum 65 [1987] 203–205) that the adjective “maximus” implies only that the assembly be well attended, and cannot be taken as privileging the comitia centuriata against other assemblies. But this seems too vague for the XII Tables, and at any rate, we never hear of a quorum that was required for trials to be valid.
300 Notes to Chapter Five 230. Pace D. Cloud, CAH IX2 (1994) 502–503 (“as the Lex Hortensia of 287 gave the plebiscites passed by the concilium plebis the same force as the statutes passed by the centuriate assembly, one would have expected both assemblies to possess the same jurisdictional as well as law-making powers”). 231. See A. H. M. Jones, Criminal Courts 19–20; also C. Mackay, “Judicial Legislation” 57–59 with 96 n. 40, on Pl. Men. 585–587 (demonstrating that the iudicium populi is the normal mode of public prosecution in the early second century) and Gel. 4.14, a relatively trivial suit which A. Hostilius Mancinus (who must identical with the legatus 149, on whom see MRR I 460 n. 5) attempted to bring before the People. 232. The best description of the procedure is Cic. Dom. 45. For modern summaries, see A. H. J. Greenidge, The Legal Procedure of Cicero’s Time (Oxford 1901) 344–349 (but denying that the iudicium populi grew out of provocatio); L. R. Taylor, Roman Voting Assemblies from the Hannibalic War to the Dictatorship of Sulla (Ann Arbor 1966) 100–102 with 156 nn. 40–42; also C. Mackay, “Judicial Legislation” 70 with 106 n. 92. For possible telescoping of the preliminary contiones (at least in the late Republic), see A. H. M. Jones, Criminal Courts 25–26; Jones himself conflates the “quarta accusatio” with the actual comitial meeting where the vote was taken (ibid. 6–10). 233. Liv. 26.3.9–12 (211); 43.16.11–12 (169). 234. V. Ant. HRR I2 F 60 ap. Gel. 6.9.9 “denique [suggesting the end of a long narrative!] Licinius tribunus plebi perduellionis ei diem dixit et comitiis diem a M. Marcio praetore peposcit.” There is no reason to doubt the number of the book as XLV; Priscian cites from LXXIV (= V. Ant. F 61) and Gellius from LXXV (F 62), both unfortunately “timeless” fragments. On the other hand, F 57 = Gel. 6.9.12, on the dispute over the treaty of Mancinus in 136, is unlikely to be correctly assigned to Book XXII. Since Antias’ work went from earliest Roman history (with Numa still in Book II) down to at least 91 (F 64), something like XXXII or even XLII seems to be required. 235. RE s.v. Marcius 23 col. 1545. 236. See Peter’s commentary ad loc. in HRR I2 for various guesses as to the date (including that of Pighius, who placed it in 110); cf. also the discussion in MRR I 310 n. 1. 237. See L. R. Taylor, Roman Voting Assemblies 102; W. Kunkel, Staatsordnung 319 n. 75. In Var. L. 6.90–91 (from the “commentarium anquisitionis M. Sergii M.’f.,” and unfortunately quite corrupt), a quaestor is told “aut ad praetorem aut ad consulem mittas auspicium petitum . . . ac cum mittas, contionem avoces.” On the basis of this passage, it has often been thought that quaestors and tribunes of the Plebs “borrowed” auspicia from the praetor, and themselves presided over the comitia centuriata (see e.g. A. H. M. Jones, Criminal Courts 12). But Taylor (Roman Voting Assemblies 100–102, esp. 156 nn. 41 and 42) has persuasively argued that the Varro passage refers to the junior magistrate’s request for a “day” (i.e., after the third contio of the anquisitio) and his summoning of a fourth and final contio before the voting comitia. The detail of the quaestor’s “sending” for the auspices means only that he asks the consul or praetor to “take the auspicia for the day he is to set for the comitia centuriata.” In support of Taylor’s explanation, note that the announcement (dictio) of the “dies ad conveniendum” when (and where) legions were to meet for a campaign was attended by a taking of the auspices (8.1.1). The procedure of calling a meeting of the Centuriate Assembly—which of course was the “exercitus urbanus” (Var. L. 6.93)—may have been analogous. 238. Liv. 25.4.8–11, discussed at 5.2.3 above. 239. Pace D. Cloud in CAH IX2 503. 240. For which see Liv. 43.16.11 and V. Ant. HRR I2 F 60 (the latter of which is quoted in n. 234 above). When the defendants fled Rome in 211, the concilium plebis ratified their exile, as it was competent to do (on this, see, e.g., Liv. 26.3.12, from earlier that same year).
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241. E.g., Liv. 43.8.9–10 and cf. Zonar. 9.22.6 (170); Per. 55 (138). 242. W. Kunkel, Untersuchungen zur Entwicklung des römischen Kriminalverfahrens in vorsullanischer Zeit (Munich 1962) passim, esp. 48–51 (praetor), 71–79 (IIIviri), 79–90 (consilium); also An Introduction to Roman Legal and Constitutional History2 (trans. J. M. Kelly) (Oxford 1973) 64–65 (the quotation in the text comes from p. 64). Despite the counterevidence of Plb. 6.14.6 oJ dh`mo~ . . . qanavtou de; krivnei movno~ (also Dig. 1.2.2.16, where Pomponius’ epitomator is unlikely to have garbled this particular point), Kunkel’s hypothesis still has its influence (see n. 242 below on the work of D. Mantovani). For an adequate critique of the supposition that the praetor normally exercised criminal jurisdiction, see A. H. M. Jones, Criminal Courts 2–28 passim, esp. 26–28. Mommsen’s picture of a more restricted sphere of competence for the IIIviri (St.-R. II3 594–598) still seems the only one possible: see P. A. Brunt, RHD 32 (1964) 445; A. H. M. Jones, Criminal Courts 26–27; W. Nippel, Aufruhr und “Polizei” in der römischen Republik (Stuttgart 1988) 33–47; cf. R.-M. Rampelberg, CCCG 6 (1995) 250 n. 1 for subsequent discussions. Kunkel is not at all persuasive on the consilium: see 9 n. 124. Yet here again he has made an impact (e.g., D. Mantovani, Athenaeum 82 [72] [1994] 13–29, who argues that, well before the time of C. Gracchus, capital cases were traditionally heard in quaestiones, where juries had a binding vote). 243. On capital quaestiones, cf. V. Max. 2.6.15 with D.H. 20.16.1–2 = 20.7–8; Oros. 4.3.5 (the year 270); Liv. 26.33.12 (210); and below in 5.6.2. The Senate could not set up such a quaestio by itself (pace A. H. M. Jones, Criminal Courts 28–29, and many others); the People must have approved all such courts, even where its vote is not specifically recorded (C. Mackay, “Judicial Legislation” 81 with 120 n. 150). 244. D. Mantovani (Athenaeum 78 [68] [1990] 19–49 with Athenaeum 79 [69] [1991] 611–623) has argued that, at least from the third century, the praetor could function as a iudex in certain capital cases over Roman citizens. In Mantovani’s reconstruction, Roman citizens had recourse to provocatio against a magistrate only when sentenced for a crime not envisaged as capital by the substantive leges. L. Garofalo (SDHI 56 [1990] 366–397 with SDHI 57 [1991] 402–410) rightly assails this speculative reconstruction (indeed, point by point), upholding the exclusive competence of comitia in capital judgment over Roman citizens in the sphere domi. 245. For praetorian jurisdiction outside the city, see Liv. 23.17.1–3 (Nola, 216), 32.26.10 (quaestio at Setia in 198), and 33.36.2–3 (in Etruria, 196) (discussed at 5.3.1 above); cf. the consular quaestiones of 26.27.9 (Capua, 210); 28.10.5 and 29.36.10–12 (Etruria 207 and 204), with C. Mackay, “Judicial Legislation” 80–81 and 118. On jurisdiction within Rome, see Mommsen, Strafrecht 142–144 (quite thin on actual examples, with no historical ones for the period down to 122). V. Max. 5.4.7, an undated anecdote where a praetor hands over a freeborn woman to the IIIviri capitales for execution, is not an example of summary jurisdiction, as Mommsen (Strafrecht 142 n. 2) and W. Kunkel (Untersuchungen 49f) suppose. In this passage the reference to the praetor’s “consilium iudicum” must mean that she already had been condemned by a post-Gracchan criminal quaestio (see 9.2.2 below). Indeed, it is unlikely that the praetor in pre-Sullan times punished Roman women on his sole authority, except in the framework of a special quaestio authorized by the Senate and People: see J. L. Strachan-Davidson’s criticism of Mommsen in Problems of the Roman Criminal Law (Oxford 1912) I 141–143. 246. C. Mackay, “Judicial Legislation” 116 n. 136. See Liv. 4.50.6 and 51.2–4 (414/413); 8.18.2–13 (331, for veneficia); 9.26.5–22 (320, allegedly presided over by a dictator—but there is a conflict with the Fasti); 9.16.2–10, cf. 26.33.10 (319); 9.26.6–22 (314, another dictator). 247. Liv. 26.33.11–14 (Capua in 212, for which the Plebs approves a capital quaestio); 28.10.4–5 (206); 29.36.10–12 (204); note also the Pleminius affair, discussed in 6.1.3 below. 248. “Judicial Legislation” 85. Cf. H. Siber, Analogie, Amtsrecht und Rückwirkung im Strafrechte des römischen Freistaates (Leipzig 1936) 7ff; 48f.
302 Notes to Chapter Five 249. Sources in MRR I 371; see also 8.4.2 below. For the Bacchic quaestio functioning inside the city, see esp. Liv. 39.14.9–10 (activity of the aediles and IIIviri capitales). 250. C. Mackay, “Judicial Legislation” 81 with 120 n. 150; contra A. W. Lintott, ZRG 104 (1987) 45. 251. E.g., the Bacchanalian quaestio of 186, and the Silva Sila quaestio of 138 (Cic. Brut. 85–88). C. Mackay (“Judicial Legislation” 142) argues that the quaestio of 132, set up by the Senate (without recourse to the People) to punish Ti. Gracchus’ supporters (Cic. Amic. 37; V. Max. 3.7.1), imitated the form of a trial before a magistrate and his consilium, but really had as its basis the magistrate’s powers of relegation (cf. Liv. 40.41.10–11). 252. On the Baebian law, see 7.2.4 and 7.2.5 below; for references to the quaestiones of 180 and 179, see Liv. 40.37.4 with 43.2–3, and 44.6 with D. C. Earl, Athenaeum 38 (1960) 289–290. In 179, no mention is made of investigations concerning veneficia further than ten miles outside Rome. Either there was nothing left to be done, or the pr. per. Cn. Cornelius Scipio Hispallus (for whom no actions are recorded) got the assignment, and Livy has ignored it. But Cn. Cornelius may actually have seen action in Gaul that year (8.3.2 below). 253. On the quaestiones of 184, 180, 177, and 167, see 6.2.2; on 171, see 7.2.6. 254. 15.11.1; cf. Suet. Rhet. 1.1. 255. Citizen status in fact might be irrelevant to this problem, if “rhetores Latini” in the S.C. of 161 refers to the language, or if (as has been widely suspected) Gellius added “Latini” in mistaken reminiscence of the famous censorial edict of 92 (on which see MRR II 17). 256. V. Max. 1.3.3 provides a date and the provincia, but gives the erroneous cognomen “Hispalus” (cf. his elogium, CIL I2 15 = ILLRP 316, which adds the information that he was a Xvir sacris faciundis); see also Epit. Oxyr. 54, and perhaps Serv. A. 8.187 (quite vague). The expulsion of Jews reported by Valerius Maximus’ epitomators Januarius Nepotianus and Iulius Paris (and incorporated into Kempf’s 1854 text of Valerius—see E. N. Lane, JRS 69 [1979] 35–37) has been doubted, partly for the reason that the Epit. Oxyr. mentions only Chaldaei (see M. G. Morgan, Philologus 122 [1978] 52 n. 129). But omission by an epitomator is no argument at all. The incident is accepted as historical by M. Stern, Greek and Latin Authors on Jews and Judaism I (Jerusalem 1974) 357–360 (with a full previous bibliography on the question); M. Pucci Ben Zeev, Athenaeum 65 (1987) 337. 257. Liv. 39.3.4–6 (187) and 41.9.10, cf. 8.2 (177). On the background to these two incidents, see E. Frézouls, Ktèma 6 (1981) 115–132. 258. On this quaestio extraordinaria, see Liv. 38.54–60, esp. 60.1–10 (= V. Ant. HRR I2 F 45). But Gel. 6.19.1–7 (from the Exempla of Cornelius Nepos = HRR II F 3) offers a variant version of a comitial trial, which raises doubts whether the peregrine praetor (on whom see Taylor, VDRR 308 n. 30—a strong Scipionic partisan) was involved at all. E. Gruen, in A. Mohlo, K. A. Raaflaub, and J. Emlen (eds.), City States in Classical Antiquity and Medieval Italy (Stuttgart 1991) 263–267, tentatively suggests that the quaestio condemned L. Scipio and the concilium plebis voted on the penalty (a fine); but harmonization of these two versions seems out of the question, considering that Gellius himself (6.19.8) found Nepos’ version irreconcilable with Valerius Antias’. I have no solution to the problems of the case of L. Scipio (though I do hold that any attacks on him must have come in 187), or the interrelated “trial” of his brother P. Africanus (placed by most authorities in 184). The major treatments are Mommsen, Römische Forschungen II (Berlin 1879) 417–510, and P. Fraccaro, Opuscula I (Pavia 1956) 263–392 and 393–415. See also (a selection) H. H. Scullard, Roman Politics, 220–150 B.C.2 (Oxford 1973) 290–298, esp. 290 n. 1 (listing the sources); G. Bandinelli, Index 3 (1972) 304–342 and 4 (1974–1975) 93–126; R. Adam, REL 58 (1980) 90–99; R. A. Bauman, Lawyers in Roman Republican Politics: A Study of the Roman Jurists in Their Political Setting, 316–82 B.C. (Munich 1983) 192–212; cf. R. J. Evans, Klio 75 (1993) 182–183.
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The quaestio on L. Scipio of 187 is wholly rejected by C. Mackay, “Judicial Legislation” 119 n. 148. 259. Cf. Liv. 39.6.3–5 with Fasti triumph. 260. Liv. 40.42.1–5 with H. Nissen, Kritische Untersuchungen über die Quellen der vierten und fünften Dekade des Livius (Berlin 1863) 237. 261. Liv. 42.21.1–22.8, esp. 22.5 for the S.C. The consul C. Popillius was no help in this matter; see 42.28.2–3 with M. Bonnefond-Coudry, Sénat 469–470 (his unsuccessful attempt on his return to get a triumph de Liguribus from the Senate). 262. The pr. urb. C. Licinius Crassus was eventually persuaded to stall on the case, which meant a de facto acquittal for the cos. 173 (Liv. 42.22.7–8). 263. Liv. 42.27.1–6, esp. 6. 264. Liv. 42.22.6 (they also got their land). 265. The freeing of the Statellates cannot have dragged far into the next year, for soon C. Crassus also crossed to Macedonia, as a legatus of his brother P. Licinius Crassus, cos. 171 (Liv. 42.58.12). 266. We do not know who presided over the prosecution of L. Cornelius Lentulus Lupus (cos. 156)—apparently in a special quaestio—“lege Caecilia repetundarum,” sometime before he was elected censor for 147 (V. Max. 6.9.10); on this passage, see 9.2.1 below. In 152, two women suspected of poisoning their husbands were executed by their relatives, so as to forestall a lengthy “publica quaestio” (Per. 48; V. Max. 6.3.8), which the families quite evidently did not want. In 142, the praetor L. Hostilius Tubulus presided over a special quaestio de sicariis; when he was suspected of accepting bribes, a tribune set up another special quaestio (this time with a consul as president) to prosecute him (discussed in 9.1.3). L. Cassius Longinus (cos. 127) is implied to have served several times as a quaesitor in a murder trial (Asc. p. 45 C; cf. Rhet. Her. 4.47 with D. Cloud, CAH IX2 (1994) 521f). There must have been many special quaestiones we do not hear about. 267. Roman Private Law around 200 B.C. (Edinburgh 1971) 3. 268. Sources in MRR I 279, on which see M. Kaser, Das römisches Privatrecht I2 (Munich 1971) 357 n. 42; A. Watson, Roman Private Law 36 with n. 4. A later (post-125) lex (or leges) Iulia et Titia gave the same power to provincial magistrates: Watson, Law Making in the Later Roman Republic (Oxford 1974) 59; Kaser, Das römisches Privatrecht I2 357 n. 47. 269. Liv. 39.9.7 (186); cf. 19.5–6. 270. Masurius ap. Plin. Nat. 7.40 (the year 176); cf. Gel. 3.16.23. 271. See Cic. De Orat. 1.166 on the M. Licinius Crassus (Agelastus), praetor sometime in either the year 127 or 126 (see Appendix B n. 157 for the date). The notice is interesting, for it shows already a jurist (P. Mucius Scaevola, cos. 133) as a member of the praetor’s consilium—and impatient with the quality of the pleading. Cf. also De Orat. 1.168 (the year 91, discussed in 12.1.1 below) with F. Wieacker, Römische Rechtsgeschichte I 556 n. 19 for bibliography. 272. Rhet. Her. 2.19 “M. Drusus, pr. urbanus [and future cos. 112], quod cum herede mandati ageretur, iudicium reddidit, Sex. Iulius [Caesar, as pr. in 123] non reddidit.” For discussion of this passage, see A. Watson, Law Making 43; The Law of Obligations in the Later Roman Republic (Oxford 1965) 151–152; B. W. Frier, Rise of the Roman Jurists 76. See also 12.1.1 below. 273. Varro ap. Gel. 13.13.1–6, on which see Münzer, RE s.v. Valerius 210 col. 45. E. J. Weinrib (Phoenix 22 [1968] 34–35) points out that such cases must have been rare; it was the only precedent Gellius and his lawyer friends could find when a quaestor found himself in civil court in the mid-second century a.d. On the question of the later immunity of aediles to such suits, see F. X. Ryan, CPh 89 (1994) 159 n. 3 and 161–162.
304 Notes to Chapter Five 274. A good example is Rhet. Her. 2.19, which shows that by the latter half of the second century praetors were allowing actions under iniuria in cases where no blow had been struck; on this, cf. also Rhet. Her. 4.35 with A. Watson, Law Making 38 n. 4. 275. See passages collected in n. 28 above; in general, see E. Costa, Il diritto privato romano nelle comedie di Plauto (Turin 1890) 419–421; J. M. Kelly, Roman Litigation (Oxford 1966) 86 n. 1. The praetor is never mentioned by his office in Terence. 276. J. M. Kelly, Roman Litigation 85f; A. Watson, Law Making 36f, 49–50. 277. Details of civil procedure in the Republic can be found in any standard legal handbook, e.g., W. W. Buckland, A Text-Book of Roman Law3 (Cambridge 1963) 604–744 passim. For an excellent short summary, see R. J. Hoffman, IJ 11 (1976) 355–358. The best short treatment of the praetor’s role in the civil law remains that of F. Wieacker, Vom römischen Recht: Zehn Versuche2 (Stuttgart 1961) 83–127 with corresponding notes on 310–312. 278. On the points that follow, see A. Watson, Roman Legislation 88–92 (attributing them all to the urban praetor, on the assumption that it was only he who could hear cases involving Roman citizens); cf. M. Kaser, ZRG 101 (1984) 7–10. 279. See A. Watson, Law Making 88–89, on the “amicable” devices of cessio in iure and manumissio vindicta (doubtless early, but undatable). 280. See A. Watson, Law Making 89–92 with 42–44. The question of when the praetor, on his own authority, started introducing new actions for which there was no statute depends largely on the origin of the iudicia bonae fidei (see text immediately below with n. 281). The terminus ante quem is certainly the second half of the second century, and perhaps as early as ca. 200 (Watson, Law Making 43 n. 2). 281. For discussion and bibliography on the bonae fidei iudicia (their nature and development are much disputed), see M. Kaser, ZRG 101 (1984) 23–32; F. Wieacker, Römische Rechtsgeschichte I 442, 449, and 453f. 282. On aequitas, see the bibliography collected by U. von Lübtow in Studi in onore di A. Biscardi IV (Milan 1986) 359 n. 47, with his own discussion at 359–362; more generally, B. W. Frier, Rise of the Roman Jurists 120. 283. Cf. Gai. Inst. 4.30 for the definition. For the emergence of the formulary system, a relatively recent full-length study is I. Buti, Il praetor e le formalità introduttive del processo formulare (Naples 1984); M. Kaser, ZRG 101 (1984) 31 n. 134, provides a good list of the most important earlier works. 284. Gai. Inst. 4.30; cf. Gel. 16.10.8. The date and content of the lex Aebutia are of course quite controversial: for a basic bibliography on the question, see F. Wieacker, Römische Rechtsgeschichte I 450 n. 25. 285. Cf. Gai. Inst. 3.93. For this, and other less likely explanations of the emergence of the formulary process, see F. Wieacker, Römische Rechtsgeschichte I 449–450. I discuss the peregrine praetor’s supposed involvement further below (5.6.4). 286. Var. L. 6.30; cf. A. Michels, The Calendar of the Roman Republic (Princeton 1967) 115. As Professor Linderski has reminded me, this religious prohibition does not mean that other stages of the civil proceedings could not take place on these days. 287. See F. Wieacker in Iuris professio: Festgabe für M. Kaser zum 80. Geburtstag (Vienna 1986) 347–370, esp. 350 for the control of the calendar and 354–355 on pontifical responsa; A. Watson, The State, Law and Religion: Pagan Rome (Athens, Ga. 1991) 79–83; also J. Linderski, Roman Questions 499 and 508–511. 288. On the role of the jurists in crafting formulae, see F. Wieacker, Römische Rechtsgeschichte I 452–453. As early as 127 or 126 we find a jurist sitting on a praetor’s consilium: see n. 271 above. 289. Most scholars see already in Plautus’ Asinaria (before the year 200) a reference to the actio iniuriarum aestimatoria at lines 171f; e.g., M. Kaser, ZRG 101 (1984) 37f with n. 168.
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For a skeptical view, see A. Watson, Law Making 45f. The actio furti manifesti may also date to around this time (M. Kaser, ZRG 101 [1984] 38–42). 290. See A. Watson, Law Quarterly Review 89 (1973) 387–392; also (more generally) J. L. Strachan-Davidson, Problems of the Roman Criminal Law I 65–66. 291. First attested for the late 70s: see A. Watson, Law Making 93. For a full study, see A. Metro, La “denegatio actionis” (Milan 1972); cf. also the review-discussion of H. Ankum, ZRG 102 (1985) 453–469. 292. Probably by 161 (see A. Watson, Law Making 41 and Roman Private Law 64 n. 8 on Ter. Eu. 319–320; B. W. Frier, Rise of the Roman Jurists 53 with n. 41), and certainly soon after. In general, see Frier ibid. 64–65. 293. On praetorian stipulationes, see A. M. Giomaro in Studi in onore di A. Biscardi IV (Milan 1986) 413–440, with references to earlier literature. Q. Mucius Scaevola (cos. 95) was able to discuss the different genera possessionum, including that resulting from missio in possessionem (Dig. 41.2.3.23). But the earliest individual edictal stipulation we can date (damni infecti) is only for the year 58: see Plin. Nat. 36.5 and 6 with A. Watson, The Law of Property in the Later Roman Republic (Oxford 1968) 140. 294. Poen. 16–45 with A. Watson, Law Making 50. The play is probably one of Plautus’ latest (G. E. Duckworth, The Nature of Roman Comedy [Princeton 1952] 55). For a collection of the evidence on edicts, see Mommsen, St.-R. I3 202–209. 295. On the edictum “perpetuum,” see U. von Lübtow in Studi Biscardi IV 382; cf. N. Palazzolo in L. Amirante et al. (eds.), Sodalitas: Scritti in onore di A. Guarino V (Naples 1984) 2434–2437 (collecting much useful bibliography, but offering the dubious argument that all edicta de iurisdictione, at whatever point they were issued in the year, were deemed “perpetua”). 296. In general, see A. Watson, Law Making 31–32. An edict issued to restrict the right of patrons by the praetor “Rutilius’” (Ulpian in Dig. 38.2.1.1), belongs perhaps to P. Rutilius Rufus, cos. 105 and pr. ca. 118 (MRR I 527), but not certainly (see Watson, Law Making 55 n. 3 for some suggested alternatives); in any event, it must be previous to 74 (cf. Cic. Ver. 2.1.125–126). The formula Octaviana on metus, aimed at Sullani homines (Cic. Q. Fr. 1.1.21–22), is generally attributed to Cn. Octavius (cos. 76), as pr. ca. 79 (J. M. Kelly, Roman Litigation 15 and IJ 1 [1966] 346; B. W. Frier, TAPhA 113 [1983] 222 with n. 52); the identification is not certain (see Watson, Law Making 32 n. 3), but the edict certainly belongs around this year. On C. Aquillius Gallus (pr. 66) and the formula he created—but perhaps merely as jurist—“de dolo malo,” see 11.7.2 below. 297. J. M. Kelly, IJ 1 (1966) 346–348; A. Watson, Law Making 34. 298. F. Wieacker, Römische Rechtsgeschichte I 464 (suggesting this development started ca. 150); J. M. Kelly, IJ 1 (1966) 352–354 (arguing for ca. 125); A. Watson, Law Making 34 (placing it in the 110s). For various other views on the growth of the edict, see F. Wieacker, Römische Rechtsgeschichte I 464 with n. 115. Most scholars are agreed that the first half of the first century was the most significant for the edict’s development. G. Mancuso (AGSP 37 [1983] 305–443) has argued that the “edictum perpetuum” published on an album is a development of only the Principate; his view is demolished by C. A. Cannata, Iura 34 (1983) [1986] 205–208. 299. Ver. 2.1.109 and 114; cf. Leg. 1.17. 300. See Dig. 1.2.2.44 with R. A. Bauman, Lawyers in Roman Transitional Politics (Munich 1985) 13–14 and 71–89. 301. Dig. 1.2.2.28. 302. JRS 41 (1951) 66–70; cf. Mommsen, St.-R. II3 224. 303. La “iurisdictio” del pretore peregrino, esp. 10–17, 36–56, 120–137. 304. Against the notion of Greek influence on the creation of the peregrine praetor, see F. Wieacker, Römische Rechtsgeschichte I 440.
306 Notes to Chapter Six 305. Le préteur pérégrin, esp. 37–44. 306. For a good statement of this widespread view, see A. Guarino, ANRW II 13 (1980) 66; U. von Lübtow in Studi Biscardi IV 358. For bibliography on the peregrine praetor’s role in introducing the formulary system, see F. Wieacker, Römische Rechtsgeschichte I 449 n. 13. 307. Liv. 23.32.4 with 5.2.5 above. 308. On the peregrine praetor and “ius gentium,” see F. Wieacker, Römische Rechtsgeschichte I 444 with n. 20; also U. von Lübtow in Studi Biscardi IV 359. 309. RD 68 (1990) 147–155. 310. See Gai. Inst. 4.37 with F. Wieacker, Römische Rechtsgeschichte I 440 n. 9. 311. Liv. 23.48.10–49.4 (215), on which see 5.2.3 above; 28.45.13–18 (205). 312. They may also have received interest on the value of their loan (unmentioned by Livy): see E. Badian, Publicans and Sinners 16–17. 313. See the chart in Appendix A.1. 314. E.g., the peregrine praetor assisted the urban praetor in a particularly large shipbuilding effort in 192 (see Additional Note VI). 315. Recognized already by R. L Gilbert, Res Judicatae 2 (1939) 57: “[I]t would appear from Livy . . . that the two praetors, urbanus and peregrinus, were regarded as having very much a common sphere of duty in the city, the division of judicial function being a matter of administrative convenience rather than legal constitutional necessity, even after 197 b.c.”
Notes to Chapter 6 1. Liv. 22.25.6. 2. In 215 and 208, the urban praetor guarded (or rather supervised the fleet that guarded) the coast near Rome (5.2.1). M. Marcius Ralla, pr. urb. 204, was prorogued for 203 (surely in a special provincia such as “classis”) and ordered to protect the coast of Italy with 40 ships (5.2.1). The Senate evidently expected a Carthaginian attack. 3. Liv. 21.17.1; Coel. ap. Char. p. 264 B = HRR I2 F 12. 4. RRC I 150 no. 40 (which Crawford dates to the year 216), 152 no. 42 (214–212), 167 no. 68 and 168 no. 69 (211–208), and 170 no. 72 (211–210); for a revised relative chronological arrangement of these issues see C. A. Hersh, NC7 17 (1977) 19–24. For the productivity of the provinciae of Sicily and Sardinia at this time, see Liv. 23.48.7 with G. Clemente, Kokalos 26–27, 1 (1980–1981) 199 n. 15 (other Livian passages concerning Sicily); L. Gallo, ASNP (ser. 3) 22 (1992) 365–398 (importance of west Sicily, as well as the Syracusan kingdom); P. Meloni, ANRW II 11.1 (1988) 463 (Sardinia). In general, see G. Rickman, The Corn Supply of Ancient Rome (Oxford 1980) 104–107; also P. Erdkamp, Historia 44 (1995) 168–191 (mechanisms of and markets for export). 5. Liv. 23.21.2 and 4; cf. V. Max. 7.6.1. 6. Liv. 23.21.5 (Sardinia), 38.12–13 (Sicily), with discussion by A. M. Eckstein, Chiron 10 (1980) 198f. 7. Senate and General: Individual Decision Making and Roman Foreign Relations, 264–194 B.C. (Berkeley 1987) 137. For anti-Roman sentiment in Sicily, see Liv. 21.50.10; cf. also 49.4 and 23.30.10. For dissatisfaction in Sardinia, see Liv. 22.31.1 (the necessity for the Romans to take hostages); 23.33.9, 34.10. 8. Liv. 25.20.3 (Sardinia); for Sicily, see 26.40.15–16 (210), 27.8.18–19, and Cic. Ver. 2.3.125 (209). 9. Sardinia later proved a major source of food and clothing to the Roman expeditionary force in Africa (Liv. 29.36.1–3—204; 30.24.5—203; 36.2—202). Sicily also supplied
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Scipio’s troops in Africa (29.36.1—204; 30.24.6–12—a failed attempt in 203). For a complete list of the commanders who served in Sicily and Sardinia in the period 218–166, see Appendix A.2 and A.4. 10. For a fully documented discussion of this topic, see my dissertation, “The Praetorship in the Roman Republic down to 81 b.c.” (Harvard 1990) 160–175 with corresponding notes at 560–565. 11. Zonar. 8.16.3–4 (the year 247). 12. In the first decade of the war, praefecti praesidii were enough for Naples (MRR I 251—the year 216), Locri (MRR I 257—215), Tarentum (MRR I 261, 270, 281, 288—the years 214–209), Thurii (MRR I 270—212), and, in Sicily, Henna (MRR I 265—213). However, see Additional Note I for the suggestion that L. Cornelius Scipio (the future Asiaticus) held Messana for at least a short time with delegated praetorian imperium. 13. Liv. 30.40.12–13; 41.2. 14. Liv. 31.8.8. Note also the relative cutbacks in manpower made for Sicily and Sardinia in 198 (32.8.7–8). 15. Mommsen, St.-R. II3 563 with n. 4. 16. CQ 26 (1976) 104. 17. Thus J. Carcopino, La loi de Hiéron et les Romains (Paris 1914) 70–71; E. Badian, OCD3 s.v. provincia 1265f (esp. on the appointment and retention of quaestors). For a short description of the lex Hieronica, see R. T. Pritchard, Historia 19 (1970) 352–368; A. W. Lintott, Imperium Romanum: Politics and Administration (London 1993) 75–76. Most scholars consider that the unification of the island under the Hieronic law came soon after 210, which is really the first conceivable date (see the rosters in M. Mazza, Kokalos 26–27, 1 (1980–1981) 312 n. 72, and R. Marino in L. Amirante et al. (eds.), Sodalitas: Scritti in onore di A. Guarino III (Naples 1984) 1083 n. 2); but in that case, it would be difficult to account for the retention of two quaestors. Marino (ibid. 1083–1094) unpersuasively argues for a slow evolution after 210, with total extension of Hieronic law coming after the First and Second Slave Wars (so it appears). 18. Plb. 7.3.1–9; cf. 5.6–8. 19. Liv. 23.32.2 and 16. 20. This explanation of the command of T. Otacilius Crassus in 215 is offered by A. M. Eckstein, Senate and General 138–139 with n. 18; 348. 21. Crassus had vowed the temple as pr. 217 (Liv. 22.10.10). For the traditional date of the dedication, see Ov. Fast. 6.247–248; Inscr. Ital. XIII 2 58, 77, 216, 467. On the relevance of this dedication to the war in (west) Sicily, cf. I. Bitto, Archivio storico Messinese (ser. 3) 27 (1977) 121–133. 22. 23.32.20. 23. Cf. Liv. 23.32.13–15. 24. R. Develin (Klio 62 [1980] 357) is wrong about the procedure (“the propraetorian command of T. Otacilius Crassus in 215 will have been by delegation from the urban praetor”): see Additional Note I. 25. Liv. 23.41.8. 26. Liv. 23.41.8–12; see also 24.8.14 (the speech of Q. Fabius Maximus at the elections for 214). 27. Liv. 24.7.10–9.4 (highly dramatized). For relations (previous and subsequent) between the Fabii and Otacilii, see J. Pinsent, Phoenix 18 (1964) 18–29 (esp. 25–29). Fabius surely also was eager to check the ambitions of the flamen M. Aemilius Regillus, who, like Otacilius, had received the vote of the centuria praerogativa in the consular elections for 214 (thus I. Müller-Seidel, RhM 96 [1953] 250–254).
308 Notes to Chapter Six 28. See Liv. 24.10.5 “P. Cornelio Lentulo praetori Sicilia decreta provincia, T. Otacilio classis eadem quam adversus Carthaginienses priore anno habuisset.” This helps confirm T. Crassus’ provincia in his special command of 215. On the “classis” as a provincia, see 8.1.2. 29. Liv. 24.18.9. 30. Cf. Liv. 24.36.4 (213) for the intensity of fighting in Sicily. A. M. Eckstein (Senate and General 144–155) has covered in detail the movements of the various Roman commanders in Sicily in the years 214–212; and E. D. Clark (AHB 8 [1994] 133–140) attempts to sort out the disposition of the legions on the island for 214–210. 31. See Liv. 28.45.8 with 27.22.9 (one hundred ships for M. Valerius Laevinus in 208). 32. Liv. 28.45.21; cf. 46.1. 33. Liv. 29.6.9 reveals his rank. For a detailed discussion of affairs in Locri in 205–204 (related by Liv. 29.8.6–9.12 and 16.4–22.12 as well as by D.S. 27.4.1–8), see A. J. Toynbee, Hannibal’s Legacy: The Hannibalic War’s Effects on Roman Life (Oxford 1965) II 613–621; also D.-A. Kukofka, Süditalien im Zweiten Punischen Krieg (Frankfurt a. M. 1990) 133–146. On Livy’s report of the Senate debate over the Pleminius affair, see M. Bonnefond-Coudry, Le Sénat de la république romaine de la guerre d’Hannibal à Auguste (Rome 1989) 501–502. 34. Thus A. Ziólkowski in Eos 70 (1982) 319–329 is wrong to hold that Pleminius was not Scipio’s subordinate, but rather as a pro pr. “held an independent command” (English summary at 329). 35. M. Claudius Marcellus must have appointed D. Quinctius to the command at Rhegium sometime in the period 214–211 (Liv. 26.39.2–19). We do not know whether Quinctius was delegated imperium. 36. For a possible case of delegated imperium, cf. D. Iunius and M. Aurelius Cotta, placed in charge respectively of the mouth of the Volturnus and Puteoli by the consul Ap. Claudius Pulcher in 212 (Liv. 25.22.5). These sites had a real strategic importance (see 25.20.2); indeed, Puteoli is said to have had a garrison of six thousand men in this general period (24.13.7, under the year 214). 37. St.-R. II3 693 n. 4. L. Anicius Gallus (pr. 168) received a consilium of five legati for his settlement of Illyricum as pro pr. 167 (see 8.5.3 below). 38. For the principle, see perhaps 8.5.3 with n. 246, on RDGE 2 (the year 171) lines 10–13. 39. Liv. 29.20.4–11. The detail of the tribunes and the aedile is absolutely unparalleled—indeed, absurd—and should be rejected: see E. Badian in J. Linderski (ed.), Imperium Sine Fine: T. Robert S. Broughton and the Roman Republic (Stuttgart 1996) 195–196. 40. Liv. 29.21.10, no doubt reflecting a legal formulation; cf. Cic. Ver. 2.1.95 “omnia, etiamsi voluntate Dolabellae fiebant, per istum [i.e., C. Verres, legate of Dolabella in Cilicia] tamen omnia gerebantur.” 41. Liv. 29.22.7–12 with 34.44.6–8. For the tradition on Pleminius’ death, see A. J. Toynbee, Hannibal’s Legacy II 618–619; A. W. Lintott, ANRW I 2 (1972) 241–243. 42. Liv. 29.21.1–3; D.S. 27.4.6–7. 43. Cf. A. H. J. Greenidge, The Legal Procedure of Cicero’s Time (Oxford 1901) 511–513. 44. Of course, with proper instructions from one’s superior, a delegatee could move from assignment to assignment: cf. Liv. 29.6.9, the written order that transferred the pro pr. Q. Pleminius from Rhegium to Locri. 45. Liv. 23.21.4. On the spelling “Mamulla” (to be preferred to the “Mammula” of Livy’s manuscripts), see P. Castrén, Arctos 14 (1980) 5–13. On Cornelius Mamulla’s supposed coin issues, see RRC I 664 n. 3. 46. Cf. Liv. 23.32.8 “parvum ibi exercitum Romanum esse.” 47. Liv. 23.32.5–12. For background and details of the campaign, see S. L. Dyson, ANRW II 3 (1975) 144–145; R. Zucca in A. Mastino (ed.), L’Africa romana III (Sassari 1986)
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363–387; also S. Gozzoli, Athenaeum 65 (1987) 100–101, and P. Meloni, ANRW II 11.1 (1988) 456f (stressing economic factors for the revolt). 48. Liv. 23.34.16. 49. Liv. 23.34.14. For a full discussion of this grant of imperium, and possible parallels, see Additional Note I. 50. Liv. 23.40.1–41.7; cf. Eutrop. 3.12.3 and 13.1–2, both with the erroneous title pro cos.; Zonar. 9.4.1. 51. Liv. 27.6.13–14. 52. Liv. 27.22.6–8. 53. Liv. 28.10.14. 54. Octavius captured a Carthaginian convoy of eighty ships off the coast of Sardinia (Liv. 28.46.14; App. Hann. 54.226–227, asserting that he sunk a quarter of them). On Cn. Octavius’ career, see L. Pietilä-Castrén, Arctos 18 (1984) 77–82. 55. Liv. 29.13.5. 56. Liv. 29.36.1–3—two missions. 57. Liv. 30.3.2; 24.5. For the navigational aspects of these missions, see A. Mastino and R. Zucca in G. Camassa and S. Fasce (eds.), Idea e realtà del viaggio (Genoa 1991) 191–259 passim, esp. 208. 58. See Liv. 30.36.1–3 and 6; 38.4 and App. Pun. 49.212; cf. the mistaken report of Pun. 41.176 and 44.186. 59. Liv. 30.41.8; 44.3. 60. Liv. 31.8.11. 61. The four praetorian provinciae reported by Livy for 201 are the urban jurisdiction, Sicily, Sardinia and Bruttium. M. Valerius Falto, who received Bruttium, must then be the praetor inter peregrinos (30.40.5). 62. Liv. 31.8.9–10. 63. Cf. P. Iunius Brutus, pro pr. in Etruria 189, who was sent to Hispania Ulterior after the death of L. Baebius Dives at Massilia (Liv. 37.57.3–4). 64. M. Valerius Laevinus (pr. per. 215) went as pro pr. to Greece in 214 (see 5.2.5 and 8.5.1); but Greece was of course a special provincia at this time. 65. Liv. 32.8.7–8 (198). 66. Liv. 32.27.2 (198); 36.2.12–13 (191); 37.2.12 (190); 50.9–10 (189); cf. 42.31.8 (similar joint quotas for 171). 67. Liv. 32.8.7–8 (198); 34.56.8 (193). 68. Liv. 35.23.3. 69. Liv. 35.23.6–9. 70. See the speech put in the mouth of a Macedonian ambassador of Philip at an Aetolian council in 200, which portrays the praetor as dominus (Liv. 31.29.7–9); also, the speech of Minnio at Ephesus in 193 (35.16.4). 71. Liv. 36.2.10–11, esp. 11 “si ita videretur, pro pr. in provincia retinere.” 72. Liv. 37.2.8. 73. For this suggestion, see M. Griffin, Athenaeum 66 (1988) 506–507, commenting on the new fragment from Livy Book 11. In 177, the cos. C. Claudius Pulcher ordered the two prorogued consuls of the previous year out of his provincia of Histria, threatening to have them arrested if they failed to comply (Liv. 41.10.6–8; cf. 6.2). These individuals had as their consular provinciae Gaul and Liguria; Claudius must have considered them as good as privati in his provincia. 74. In 201, the pro cos. P. Scipio chose not to have Cn. Octavius, pr. 205, prorogued for another year (Liv. 30.41.7–8). In 193, the consul L. Cornelius Merula succeeded Ti. Sempronius Longus (cos. 194) as the Roman commander in Gaul. Nevertheless, Ti. Longus
310 Notes to Chapter Six remained in the provincia to serve under the consul; though termed legatus by Livy (35.5.1) he is also said to have had imperium (35.8.6). The case of M. Aemilius Lepidus, pr. Sicily 191 and his predecessor L. Valerius Tappo, pr. 192 (36.2.10–11) is discussed below (6.2.1). Cf. perhaps also M. Marcius Ralla, pr. urb. 204, pro pr. 203 in command of a fleet, and subordinate to P. Scipio in Africa in 202 (30.38.4, termed “legatus”). So perhaps the Senate gave M. Marcellus (cos. III for Sicily 214) the choice of whether he wanted Ap. Claudius Pulcher prorogued into the next year. Although (as in 214) Livy’s list of prorogations for 213 (24.44.4–5) does not include Ap. Claudius Pulcher (pr. Sicily 215), he is portrayed as having his own fleet, troops and camp and the capability for some independent action in 213 (Plb. 8.7.1–12; Liv. 24.36.6), and thus was probably pro pr. 75. Cato ORF3 F 223; cf. A. E. Astin, Cato the Censor (Oxford 1978) 120. 76. Liv. 37.47.6. 77. Liv. 37.50.9. 78. Cf. Liv. 37.51.9 (the Romans) “desierant . . . victum in Aetolia regem metuere.” 79. The first of these Spanish commanders is L. Cornelius Lentulus, pro cos. in Iberia 206–200, who celebrated an ovatio in (midsummer?) 200 and was elected cos. 199 (see 7.1.4). Note also Q. Fulvius Flaccus, pr. in Citerior 182 and pro cos. 181–180, who was elected consul for 179 while outside the city waiting for his triumph (Liv. 40.43.4). The last is Ti. Sempronius Gracchus, pr. in Citerior 180 and pro cos. 179–178, who triumphed late in 178 (“III Non. F[ebr.]”—Inscr. Ital. XIII 1 80f, 555) and was elected cos. 177. 80. 34.42.3. 81. Liv. 24.39.12 (noting that the pro cos. M. Claudius Marcellus “sent” him). 82. Liv. 37.47.7. He was defeated for 188 as well (38.35.1). But these early setbacks did not impede his later career, on which see F. Münzer, Römische Adelsparteien und Adelsfamilien (Stuttgart 1920), esp. 170–178, emphasizing his massive cumulation of auctoritas (thanks to two consulships, as well as the positions of pontifex maximus and princeps senatus). 83. Liv. 43.1.4–12 (171) with 5.4.4 above. 84. Liv. 38.36.2. 85. We have no knowledge of the arrangements for most provinciae for 185, 178, 175, and 170. 86. In 172, the Sicilian praetor C. Memmius may have furnished twelve ships for the war in the east (Liv. 42.27.1–2; 6); in 171, C. Caninius Rebilus shipped grain to the Roman army in Macedonia (42.31.8–9); in 169 Ser. Cornelius Lentulus enrolled one thousand socii navales for the war against Perseus (43.12.9). 87. Liv. 33.43.5. 88. Liv. 37.2.11. 89. Liv. 39.41.5–6 “per municipia conciliabulaque”; Livy reports that Valerius Antias claimed this praetor condemned two thousand men. On account of our ignorance of the provincial arrangements for 185, we do not know the name of the praetor who would have had to remain on the island until Naevius’ arrival. On quaestiones for veneficia at this time, see 5.6.2 above. 90. M. Pinarius Rusca (pr. 181) had crossed to Corsica first, presumably because his predecessor C. Terentius Istra could contain the Ilienses until his arrival. No prorogation or mention of Istra is recorded in the sources. For the fighting in 181 (the first recorded insurrection in this provincia since 215) see Liv. 40.19.6–8; 25.8; 34.12–13. Rusca was successful against these tribes in his year in office (Liv. 41.6.6 “pacatam provinciam”). 91. Liv. 40.43.2–3; cf. 37.4 with R. J. Evans, AHB 8 (1994) 28–34 on the background to this poisoning quaestio.
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92. Liv. 40.44.7. 93. Liv. 41.6.5–7. 94. Liv. 41.8.2. 95. Liv. 41.9.9–12 (Mummius); 15.6 (Aebutius). For the praetor’s occasional role as the consul’s adiutor, see also Liv. 33.43.5 (195), and cf. 26.19.10 (210). Aebutius’ prorogation is partly explained by the fact that L. Mummius was one of only four praetors in 177, under the lex Baebia (7.2.4—6). 96. Liv. 41.15.6–10. On these oaths see R. E. A. Palmer in J. Linderski (ed.), Imperium Sine Fine 94f, plausibly suggesting that responsibilities to clan religion were here at play. 97. Cf. Liv. 42.32.1–3 (P. Crassus); 41.27.2 (M. Scipio). 98. 41.14.7–15.4. 99. Sources for their deaths in MRR I 400. On the augural vitia incurred by the cos. Q. Petillius Spurinus before his death in the field (Liv. 41.18.5–14), see J. Linderski, ANRW II 16.3 (1986) 2173–2175. 100. Note the Senate’s resistance to a cos. 201 who wanted to join P. Scipio in Africa, if not supersede him (30.40.12–15 with 43.1–4); and its disciplinary actions against the cos. 171 who tried to leave his provincia to command in the war against Perseus (see 5.4.4 above). A. W. Lintott (Imperium Romanum 24f) notes for the later Republic that commanders who campaigned outside their provinciae could plead an exception “rei publicae causa”; but it is unlikely to have been allowed in the sweeping terms Lintott postulates. 101. In 189, when the pontifex maximus prevented the flamen Quirinalis and praetor Q. Fabius Pictor from proceeding to Sardinia, the Senate forced him to take up the provincia peregrina rather than abdicate (5.3 above). Though a flamen, Pictor was probably able to swear an oath (unlike the Dialis, on whom see Liv. 31.50.7–9; Paul. Fest. p. 92 L; Gel. 10.15.5 and 31); he obviously did not want to perjure himself to get the Senate’s leave. We shall see (11.1.6) that in the post-Sullan period, consuls and praetors routinely decline overseas provinciae. But we never hear of an oath. After 80, praetors received these provinciae usually ex magistratu; they therefore must have differed in legal status from the praetorian provinciae, which one presumably still could not refuse (at least we hear of no one doing so). (We do not have enough information to detect whether anyone turned down a provincia ex praetura in the pre-Sullan period; yet cf. 14.5.4 for a possible instance in the early 90s.) 102. V. Max. 8.1 amb. 1. MRR I 475 assigns the case to the year 142, with a query; M. C. Alexander, Trials in the Late Roman Republic (Toronto 1990) 4 evidently regards that identification as certain, for the query disappears. Münzer (RE s.v. Popillius 22 col. 60) rightly notes that the Valerius Maximus passage need not refer to the M. Laenas who was cos. 139 (though he offers no alternatives). The fact that Livy does not mention this incident under the year 176 is no great obstacle to the possible identification proposed here (cf. 1.2.3 above); on this trial, see further 9.2.1. 103. See Liv. 41.17.3–4 for Gracchus’ request to return to Italy; for his triumph, see 41.28.8–10 and Inscr. Ital. XIII 1 80f. 104. Cf. Liv. 41.21.2 with 45.17.3. A lacuna in the text of Livy after 41.18 makes it difficult for us to ascertain even the number of praetors elected for 175, not to mention their exact assignments; there is thus some room for conjecture. 105. Liv. 41.21.1–2; 42.1.3–4. 106. See Liv. 42.7.1–2; 21.6–7; Inscr. Ital. XIII 1 80f “[qui s]crib(a) [fuera]t, pro pr. ex Corsica in monte Albano K. Oct. an. D[XXCI]”; cf. also Liv. 45.15.10. For a summary of what is known of this man and his family, see J. Triantaphyllopoulos in R. Chevallier (ed.), Mélanges d’archéologie et d’histoire offerts à André Piganiol II (Paris 1966) 859–874. For the argument that follows below in fuller form (with documentation), see T. C. Brennan in E.
312 Notes to Chapter Six Harris and R. Wallace (eds.), Transitions to Empire: Essays in Greco-Roman History, 360–146 B.C., in Honor of E. Badian (Norman, Okla. 1996) 315–337. 107. Sources in MRR I 226 (Maso), 274 (Marcellus), and 333 (Minucius—incorrectly identified as an ovatio by Broughton). 108. E. Badian, Klio 71 (1989) 582–603; cf. C. Damon, HSPh 94 (1992) 243–244. 109. Liv. 45.15.10; cf. D.C. 39.20.1 with L. Pietilä-Castrén, Magnificentia Publica: The Victory Monuments of the Roman Generals in the Era of the Punic Wars (Helsinki 1987) 117f. and (for Maso) Cic. N.D. 3.52 “Fontis delubrum Masso ex Corsica dedicavit”; CIL VI 32493 “Fonti extra p[ortam . . .].” 110. Liv. 45.12.13, quoted in 5.3.2. For Carbo’s presence in Rome, see 45.13.8. 111. Liv. 45.16.4. 112. Suggested by Münzer, RE s.v. Manlius 75 col. 1194. But it must be remembered that our information on praetors after 166 is quite poor, so the identification is far from certain. 113. See 5.4.6 for his Rhodian rogatio. On Anicius in the east, see 5.3.2 and 8.5.3. 114. Q. Fabius Maximus Aemilianus (the later cos. 145), a praetorian governor of Sicily who conveyed three hundred leading Carthaginian hostages from Lilybaeum to Rome in 149 (Plb. 36.5.8–9). 115. 7.2.2. 116. See MRR I 440, 441, 442. 117. R. J. Rowland (in J. Fitz [ed.], Limes: Akten des XI. Internationalen Limeskongresses [Budapest 1977] 89) has attempted to demonstrate—on rather insubstantial grounds, namely, frequency of coin issues—that P. Cornelius Scipio Nasica Serapio (cos. 138) fought a Sardinian war between 138 and 135. We cannot rule out serious fighting in this provincia during these years, but we have no reason to believe that it was declared consular, especially when another overseas war was raging (in Spain) and there was the prospect of trouble in Italy; cf. the Silva Sila murders of 138, investigated by Serapio and his consular colleague (9.2.1 below with n. 103). 118. Plu. CG 2.7–9; see the discussion in T. C. Brennan, Chiron 22 (1992) 141. For Orestes, see MRR I 508 and 518. 119. See 7.3.1 on Spain in the 140s and 130s, and 14.1.1 on Macedonia in the 110s. 120. At RFIC 121 (1993) 153–184. 121. Oros. 5.6.3 (cf. Obseq. 26, also listing an eruption in this year) and D.S. 34/35.10 with T. C. Brennan, RFIC 121 (1993) 159–163. 122. C. Fannius HRR I2 F 6 = Cic. Tusc. 4.40; also Cic. Amic. 73; Plin. Nat. 7.122 with Münzer, RE s.v. Rupilius 5 col. 1230 and F. X. Ryan, CQ 45 (1995) 263–265 (the latter considering L. Rupilius a consular candidate “in 131 or 130”). 123. The Polla elogium is CIL I2 638 = ILLRP 454; cf. ILLRP 453 for P. Laenas as roadbuilder. For Mommsen’s view, see CIL I1 pp. 154–155, CIL V p. 935; for Broughton’s, MRR I 489. 124. PBSR 32 (1964) 21–37; see also his articles in PBSR 37 (1969) 82–91, 38 (1970) 128–130, and Athenaeum 67 (1989) 417–425. The first three are republished, with addenda and corrigenda, in his Roman Studies, Literary and Historical (Liverpool 1987) 99–156 and 377–379. 125. ILLRP 454a. See Broughton’s correction in MRR III 169; also (not coordinated with it) III 159. 126. Roman Studies 114, 123–125. 127. In the Hannibalic War, one notes Ap. Claudius Pulcher (pr. 215), as well as Sex. Caesar and L. Cincius Alimentus, pr. and pro pr. respectively in 208 (MRR I 254, 290, 293). See further (for some first century material) 13.1.4 below.
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128. See Str. 6.2.11 p. 277 (= Posidon. F 227 E–K), who calls the praetor “T. Flaminius,” with Broughton, MRR I 508 and 509 n. 1, adopting Du Theil’s correction to “Flamininus”; also Obseq. 29 (who provides the notice of the decretum haruspicum but regards the prodigies as portending the Second Slave War); Oros. 5.10.11, dating the portents firmly to consular 126; Orosius’ date is confirmed by Plin. Nat. 2.203.
Notes to Chapter 7 1. “Sex praetores illo anno primum creati crescentibus iam provinciis et latius patescente imperio” (Liv. 32.27.6). In Livy’s narrative, the events in Spain of 214–212 are compressed and those of 211 through 208 are all reported one year too early: see G. De Sanctis, Storia dei Romani III 2 (Turin 1917) 247–248 n. 76. The possibility of chronological error in his sources is recognized (belatedly) by Livy himself (27.7.5–6). 2. In Appendix A.4 there can be found a full chart of all commanders holding imperium (with probable titles) who served in the Spains in these years. 3. Sources in MRR I 238; see esp. App. Hisp. 14.53–54. For a detailed narrative of events in Spain in the years 218 down to 201, see A. M. Eckstein, Senate and General: Individual Decision Making in Roman Foreign Relations, 264–194 B.C. (Berkeley 1987) 187–232. 4. Liv. 21.40.3 (from a speech). 5. Liv. 22.22.1–23.1. 6. Cf. Liv. 24.41.2–11 for their armies; 25.3.6 (“212,” actually 211) for the shared provincia. 7. Such a procedure is attested (three times) for the year 215: see 6.1.2 (T. Otacilius Crassus), 6.1.4 (T. Manlius Torquatus), and 8.3.1 (M. Claudius Marcellus). If the hypothesis offered above is correct, and a lex de imperio was passed for Cn. Scipio in 217, he would be the earliest known individual to have received imperium by this process. 8. Klio 62 (1980) 356. 9. Liv. 25.35.4 and 26.2.5; cf. 25.32.1, 37.9, and 27.4.6. 10. Sources (many) in MRR I 275; on Piso HRR I2 F 32, see G. Forsythe, The Historian L. Calpurnius Piso Frugi and the Roman Annalistic Tradition (Lanham, Md. 1994) 371–374. Only Valerius Maximus gives the title tribunus militum (2.7.15), and he may be merely guessing. We do not really know whether L. Marcius was a tr. mil. or a centurion. But it is difficult to imagine the latter: he must have been capable of command to be “elected” in the crisis and to be retained by P. Cornelius Scipio as a legatus in the years that soon followed (see 7.1.3 below). 11. Liv. 25.37.5. On tumultuary leaders in general, see W. Kunkel, Staatsordnung und Staatspraxis der römischen Republik: Die Magistratur (Munich 1995) 288f. 12. Liv. 26.2.1–4 (discussed in Additional Note I); V. Max. 2.7.15. 13. Liv. 26.2.5 “ad plebem ferrent quem cum imperio mitti placeret in Hispaniam ad eum exercitum cui Cn. Scipio imperator praefuisset.” I.e., the Plebs was to be presented with a man for its approval—in the concilium plebis there were no motions from the floor! 14. See Liv. 30.27.3 (202); 41.4 (201); 31.50.10 (199) with 7.1.4 below. 15. Liv. 26.17.1. 16. Liv. 25.41.11. Note also M. Cornelius Cethegus, probably praetor at age twentyseven in this year (R. Develin, The Practice of Politics in Rome, 366–167 B.C. [Brussels 1985] 127). 17. Liv. 26.17.3. 18. Liv. 26.17.5–16; 18.1–2. 19. Liv. 26.28.5; 27.6.10 (discussed in 8.3.2).
314 Notes to Chapter Seven 20. Liv. 26.18.4–11; 19.10. Cf. 20.4 for Silanus’ succession of Nero, and Zonar. 9.7.4 for his age. We need not believe to the letter Livy’s dramatic tale of the circumstances of Scipio’s appointment. 21. St.-R. II3 652 and 659 n. 4; see also R. C. Knapp, Aspects of the Roman Experience in Iberia, 206–100 B.C. (Valladolid 1977) 89. 22. Liv. 29.12.2–16. For a discussion of this case, see Additional Note XII. 23. Note that in this same year Livy is silent about how the pr. per. C. Laetorius made it to Gaul in his year of office (5.2.5 above). 24. C. Calpurnius Piso himself was replaced in Etruria by a prorogued pr. urb. C. Hostilius Tubulus (pr. 209). After a few additional examples—M. Marcius Ralla, pr. urb. 204, C. Sergius Plautus, pr. urb. 200, and L. Quinctius Flamininus, pr. urb. 199 (see 8.5.2)—the practice stops, as far as we know, for more than fifty years. The next attested case is Q. Marcius Rex, pr. urb. 144, and pro pr. 143 (5.1.2 and 8.6.2). 25. See Additional Note IV on P. Iunius Brutus pr. 190, who as pro pr. in 189 was sent to Ulterior when its commander died en route to his provincia. 26. Liv. 27.17.8. 27. Liv. 27.7.17 “non in annum Scipioni Silanoque, sed donec revocati ab senatu forent prorogatum imperium est.” 28. Liv. 27.22.7 “P. Scipioni et M. Silano suae Hispaniae suique exercitus in annum decreti.” It is difficult to say whether Livy’s mention of “Hispaniae” is in fact anachronistic (see 7.2.1 below). 29. Liv. 32.28.9. E. M. Carawan (TAPhA 118 [1988] 221), viewing Livy’s report of Flaminius’ prorogation in isolation, considers it an exaggeration stemming back to Valerius Antias! 30. Liv. 32.16.2; cf. 28.11 with 8.5.2 below. 31. See Liv. 33.25.11 (196) “T. Quinctius Flamininus provinciam eodem exercitu obtinere iussus; imperium ei prorogatum satis iam ante videri esse” (the formulation here— which seems to distinguish between imperium prorogatum and provincia prorogata—is quite probably Livy’s own) with 33.43.6 (195) (no such additions). 32. W. F. Jashemski, The Origins and History of the Proconsular and Propraetorian Imperium down to 27 B.C. (Chicago 1950) 25f; G. V. Sumner, Arethusa 3 (1970) 88; R. Develin, Klio 62 (1980) 359f. Mommsen (St.-R. II3 652 n. 2) and G. De Sanctis (Storia III 2 455 n. 19) had rightly doubted this supposition. 33. 10.6.7. 34. Liv. 28.28.14 “M. Silanus eodem iure eodem imperio mecum in provinciam missus.” 35. 26.19.10. 36. Liv. 28.38.1. 37. Liv. 28.38.4 “neminem ad eam diem triumphasse qui sine magistratu res gessisset constabat” (cf. 31.20.3–4); see also D.C. 17 F 57.56 and V. Max. 2.8.5, to be preferred to the statement of Polybius (11.33.7) and Appian (Hisp. 38.156) that he received a triumph (see J. S. Richardson, JRS 65 [1975] 52). 38. Liv. 28.32.7. 39. Liv. 27.50.8 (207). 40. Liv. 28.38.1 (Scipio) “L. Lentulo et L. Manlio Acidino pro praetoribus provincia [thus C, corrected by an unknown hand; P has ‘pro provincia’] tradita . . . Romam rediit.” The reading “propraetoribus” is accepted by R. S. Conway and S. K. Johnson in their Oxford text; it is simply omitted by Weissenborn and Müller and most recently P. Walsh in the Teubner. 41. Liv. 29.2.1 and 13 (205); D.C. 17 F 57.56; App. Hisp. 38.156 (on which see 4.2 above).
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42. Cf. Plb. 11.33.8. 43. Liv. 29.13.7 “de Hispaniae imperio, quos in eam provinciam duos pro coss. mitti placeret latum ad populum est. omnes tribus eosdem L. Cornelium Lentulum et L. Manlium Acidinum pro coss., sicut priore anno tenuissent, obtinere eas provincias iusserunt.” 44. Liv. 29.1.19. 45. When it was necessary to relieve P. Sulpicius Galba (cos. 211 and pro cos. in Greece 210–206) for the year 205, the Senate made sure that the privatus they sent also had consular imperium. But here the Senate knew from the start they had to impress their wavering Aetolian allies, whereas the revolt of Mandonius and Indibilis seems to have come only after the Spanish privati of 205 took up their commands. For discussion, see Additional Note XII. 46. For the continuation of this grant of consular imperium to the privati sent to Spain, see Liv. 31.49.7 (200) and 50.11 (arrangements for 199). 47. For a reduced force of two legions in Spain in 205, see App. Hisp. 38.153 and Liv. 29.2.9 with De G. Sanctis, Storia III 2 505 n. 98; for the later reduction in the year 200, see P. A. Brunt, Italian Manpower, 225 B.C.–A.D. 14 (Oxford 1971) 661. 48. P. A. Brunt, Italian Manpower 661–663. 49. See Additional Note IX for Ti. Claudius (pr. 178), pro cos. at Pisa in 177 in command of one legion. Of course, praetors could (and did) fight with a “consular”-sized army of two legions, even after the emergency of the Hannibalic period: see R. E. Smith, Service in the Post-Marian Roman Army (Manchester 1958) 12f. 50. Liv. 29.11.12 “Lucius Hispaniam provinciam habebat; absens creatus absens eum honorem gessit.” 51. G. V. Sumner, The Orators in Cicero’s Brutus: Prosopography and Chronology (Toronto 1973) 143; cf. 99 n. 56, where he makes this curule aedile a P. Lentulus Caudinus; see also Arethusa 3 (1970) 89. Livy’s notice is accepted by Broughton, MRR I 302 (cf. I 267 n. 8) and R. C. Knapp, Aspects 92 n. 18; E. Badian, JRS 61 (1971) 110, points out that the cumulation of offices, “if true and not due to confusion, must show special influence.” 52. See Liv. 39.39.4 with A. E. Astin, Historia 11 (1962) 252–255; also Additional Note IV. 53. Q. Minucius Thermus (pr. 196 Hispania Citerior) and Ti. Sempronius Longus (pr. 196 Sardinia) (Liv. 32.29.3–4; 34.45.2). This cumulation is particularly intriguing, since the third member of their commission was M. Servilius Geminus, cos. 202, who was senior to both. Hence there was no iunior to whom they might leave the real work (for this feature of the colonial and agrarian commissions of this period, see E. T. Sage and A. J. Wegner, CPh 31 [1936] 23–32). 54. Liv. 31.50.6 and 10 (see 7.1.6 below). 55. Liv. 31.20.3–4. 56. Liv. 31.20.5–6. 57. Liv. 31.50.11. 58. Liv. 32.7.4. Note from this passage that—even allowing for exaggeration—Manlius had a lot less gold and silver to show for his efforts in Spain than Lentulus did (31.20.7). 59. On the Senate’s “rules” for granting triumphs and ovationes at this time, see T. C. Brennan in E. Harris and R. Wallace (eds.), Transitions to Empire: Essays in Greco-Roman History, 360–146 B.C., in Honor of E. Badian (Norman, Okla. 1996) 316–318. 60. 30.41.4–5 (the Senate decides) “uti consules cum tribunis agerent ut si iis videretur plebem rogarent cui iuberent in Hispania imperium esse.” 61. Liv. 31.49.7. 62. Liv. 31.50.10. The case of C. Valerius Flaccus, C. Cethegus’ colleague in the curule aedileship of 199—who as flamen Dialis could not swear the traditional magistrate’s oath to obey the laws—would have contributed to the tribunes’ irritation (Liv. 31.50.7–9).
316 Notes to Chapter Seven 63. Liv. 31.50.11 (“Cn. Cornelius Lentulus”). See 33.27.1 and A. Degrassi, Inscr. Ital. XIII 1 78f, 552 for the correct cognomen of Cn. Cornelius. 64. Liv. 33.27.1. See A. Degrassi, Inscr. Ital. XIII 1 78f, 552 with G. V. Sumner, Phoenix 19 (1965) 24–26 and Arethusa 3 (1970) 91f. This ovatio is discussed at length below (7.1.6). 65. Liv. 33.27.3–4. 66. See T. C. Brennan in E. Harris and R. Wallace (eds.), Transitions to Empire 326 with 335 n. 69, to which add I. Calabi Limentani, CISA 8 (1982) 123–135 (arguing that Stertinius’ fornices were placed alongside, not over, the via triumphalis, as some have thought). 67. Plb. 18.48.2; Liv. 33.35.2; Plu. Flam. 12.2. 68. Liv. 34.42.4; 43.7. 69. Plu. Aem. 4.2 with the clear explanation of W. F. Jashemski, Origins 40–47. Yet even after Jashemski, Plutarch’s notice continues to cause confusion: see, e.g., G. Fatás, HAnt 5 (1975) 284–285; G. I. Luzzatto, Storia di Roma XVII 1: Roma e le province (Bologna 1985) 61; cf. also n. 70 below. 70. Full references in MRR I 341, 354, 402, 404. R. Kallet-Marx, Hegemony to Empire: The Development of the Roman Imperium in the East from 148 to 62 B.C. (Berkeley 1995) 343–345, goes so far as to attempt to use Livy’s (careless) habits of titulature to refute the evidence of the Fasti triumphales. For the enhanced imperium of the praetorian commanders in Spain after 165, see ILLRP 461 and 462 (two milestones, probably late second century); A. Degrassi, Inscr. Ital. XIII 1 84f, 562 (the pr. L. Cornelius Dolabella, who triumphed pro cos. 98; cf. ibid. 84f, 561 for Q. Servilius Caepio, cos. 106, who triumphed 107 pro [cos.]); and the coins of C. Annius, pr. 81, in RRC I 381–386 no. 366. 71. Hispaniae: Spain and the Development of Roman Imperialism, 218–82 B.C. (Cambridge 1986) 73–125. 72. Liv. 33.21.7–8; 25.8–9; 27.1–5. 73. Appian (Hisp. 39.158–159) suggests the rebellion came first. As he has it, the Iberian tribes rose up when the Romans were busy in Gaul and with Philip in the east. This notice can fit any of the years 200–197; the lower date is provided by Appian’s statement that the Romans sent out (C.) Sempronius Tuditanus and M. Helvius, prr. 197, and then (Q.) Minucius (Thermus), pr. 196, to quash the uprising. 74. Liv. 33.19.7; 43.2; 44.4–5. On the general tendency of Roman historians to deemphasize native uprisings, see S. L. Dyson, ANRW II 3 (1975) 141. 75. Liv. 33.21.6–9. The decision to have the praetor allotted “Hispania” to consult the Senate is discussed in 5.4.2 above. 76. 33.26.5. 77. As is pointed out by J. Briscoe, A Commentary on Livy, Books XXXI–XXXIII (Oxford 1973) 290. 78. E.g., J. S. Richardson, Hispaniae 78–79; A. Montenegro Duque in R. Menéndez Pidal, Historia de España II3 1 (Madrid 1991) 53. M. H. Crawford, NC 7 9 (1969) 79–93, suggested that the revolt came when the first regular praetors (i.e., for 197) instituted Iberian coinage for purposes of taxation; see also S. L. Dyson, ANRW II 3 (1975) 146–147. 79. Zonar. 8.19.10 with 4.3.2 above. 80. Liv. 32.28.11 “terminare iussi qua ulterior citeriorve provincia servaretur.” 81. On this division, see Artemidorus ap. Steph. Byz. s.v. ∆Ibhriva 324 M with E. Albertini, Les divisions administratives de l’Espagne romaine (Paris 1923) 12–15; A. Tovar, Iberische Landeskunde I (Baden-Baden 1974) 11f. 82. Liv. 34.19.3–7. 83. Liv. 39.30.1 (185, a joint campaign of the two praetors into Carpetania); cf. 40.39.3–4 (180); 47.1 (179).
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84. Sumner’s original views on the nondemarcation of Hispania Citerior and Ulterior were advanced in Arethusa 3 (1970) 92–98. They were further developed in CPh 72 (1977) 126–130. The quotation is from the latter of these two articles, p. 130. 85. Most of the points Sumner advanced to support this view have been rebutted by R. Develin, Klio 62 (1980) 355–367, esp. 364–367; J. S. Richardson, Hispaniae 77f; and C. Ebel, Historia 40 (1991) 443–444 (cf. also A. W. Lintott, G&R 28 [1981] 54–55), and need not be discussed at length here. Yet new hypotheses continue to appear, such as that of P. Jacob, who (implausibly) argues that the Romans initially (206 to 190 b.c.) set up as provinciae “Hispania” and “Turdetania,” respectively north and south of the Sucro (Ktèma 15 [1990] 253–273). Against this view see (especially) Liv. 33.27.1, which suggests that if anything the designations “Citerior” and “Ulterior” predate the institutionalization of the provinciae. 86. 33.21.7–8; 25.8–9. On Sempronius’ death, cf. also 33.42.5. 87. Arethusa 3 (1970) 93 is the source of the next two quotations. 88. Cato had to take action against rebellious elements at Rhode (Liv. 34.8.6; modern Roses) and Emporiae (a major battle—34.9.1–10; App. Hisp. 40.161–41.169). He also took on the Ilergetes (Liv. 34.11.1–8; 12.1–8; Fron. Str. 4.7.31), the Bergistani (Liv. 34.17.5–6; 21.1–6— but their revolt seems to have been only after Cato’s arrival), and the Lacetani (Liv. 34.20.2–9). 89. Liv. 39.21.2–4. P. Sempronius Longus (pr. 184 Hispania Ulterior) died of an illness in late 183 or early 182 (Liv. 40.2.5). 90. For their provinciae, see Liv. 33.26.1–2. Livy’s later description of Q. Minucius as the “successor” of M. Helvius (34.10.5–6, sc. in Ulterior) must be a mistake (cf. 33.43.5 and 8). Livy often confuses provinciae (see 1.2.1 above). 91. Liv. 33.44.4–5. The location of “Turda” is unknown: perhaps somewhere in the area between modern Arcos and Jerez. See A. Tovar, Iberische Landeskunde I 150. 92. Liv. 34.17.1–4 and 19.1–2 (the consul M. Porcius Cato had to rescue Manlius) with Cato ORF3 FF 40, 41 “Turta.” 93. Liv. 33.43.2; Nep. Ca. 2.1. 94. Liv. 33.43.5. 95. Liv. 34.17.1. For Manlius’ difficulties in southern Spain against the unwarlike Turdetani, see n. 92 above. 96. The fact that he is called “praetor” at Liv. 34.17.1, 19.1 (bis) and 19.11 (bis) does not count for much: see W. F. Jashemski, Origins 43. 97. Liv. 34.19.11. 98. MRR I 382. I should note that P. Iunius Brutus, the pr. 190 in Etruria who was transferred to Ulterior in 189 after the death of its regular praetor en route to his provincia (see Additional Note IV), also served in Spain as pro pr., unless the Senate provided that his imperium be raised. 99. Liv. 34.10.5. 100. Liv. 34.10.1–3, from Valerius Antias (cf. HRR I2 F 35). 101. Liv. 34.10.3 “quia tuta iam ab hostibus regio erat.” This does not show that Helvius’ “victory helped to make the area of Cato’s camp safe from enemy attack” (thus J. S. Richardson, Hispaniae 182), but rather that the consul’s campaigns had made an escort for the praetor unnecessary past Emporiae. 102. Liv. 34.10.3–5; Inscr. Ital. XIII 1 78f, and the fragment from the Fasti Urbisalvienses at 338; see also 552. 103. Ovations: in addition to M. Helvius (pr. Hispania Ulterior 197) in 195, note M. Fulvius Nobilior (pr. Ulterior 193) in 191; L. Manlius Acidinus (pr. Hispania Citerior 188) in 185; A. Terentius Varro (pr. Citerior 184) in 182; Ap. Claudius Centho (pr. Citerior 175) in 174. Triumphs: Q. Minucius Thermus (pr. Citerior 196) in 195; L. Quinctius Crispinus and
318 Notes to Chapter Seven C. Calpurnius Piso (prr. Citerior and Hispania Ulterior respectively in 186) in 184; Q. Fulvius Flaccus (pr. Citerior 182) in 180; and Ti. Sempronius Gracchus and L. Postumius Albinus (prr. Citerior and Ulterior respectively 180) in 178. The alleged triumph of L. Aemilius Paullus (pr. 191 for Ulterior) on his return to Rome in 189 has been rightly rejected (see A. Degrassi, ILLRP 392 and 514 with commentary; M. H. Crawford, RRC I 441 no. 415). The Senate appears to have given out ovationes quite freely in this era, as a compromise solution in problematic cases: see T. C. Brennan in E. Harris and R. Wallace (eds.), Transitions to Empire 326–327. 104. 26.17.4 (211). 105. Liv. 34.10.1f “decedenti ex ulteriore Hispania” with A. Tovar, Iberische Landeskunde I 109f. 106. R. Develin, Klio 62 (1980) 367; J. S. Richardson, Hispaniae 181–183. Develin appears to think that the Iliturgis nr. Andújar would be in Citerior; Richardson holds that the Iliturgis in question was the one in the ager Ausetanus. See also Mommsen, St.-R. I3 128 n. 3; cf. 641 n. 4. 107. Liv. 34.10.5 “provincia successori . . . tradita.” 108. Cf. Liv. 31.48.2, the problem of L. Furius Purpurio in 200 (discussed in 8.3.3). 109. We are explicitly told in the pirate law from Cnidus (I. Knidos I 31 = RS I 12) that the promagistrate technically retains ejxousiva pavntwn pragmav|twn . . . kaqw;~ ejn th`i ajrch`i uJph`r|cen . . . e{w~ touvtou e{w~ a]n | eij~ povl[i]n ÔRwvmhn ejpanevlqhi (Knidos col. IV lines 33–39); see also Mommsen, St.-R. I3 641). This custom of retaining imperium until one’s entry into the city was evidently codified into law by Sulla (Cic. Fam. 1.9.25). 110. Note also the terms of the lex Porcia (pre-101, and perhaps tralatician) mentioned in the pirate law I. Knidos I 31 Knidos col. III lines 4–15, although this seems to refer to a magistrate’s proper behavior in his provincia, and not in transit. On col. III lines 8–9 and 15, see E. Badian, ZPE 35 (1979) 161–167. 111. For the history of ambitus in Republican Rome, and some possible explanations of the phenomenon, see above all E. Bauerle, “Procuring An Election: Ambitus in the Roman Republic, 432–49 b.c.” (diss. Univ. Michigan 1990) and P. Nadig, Ardet Ambitus: Untersuchungen zum Phänomen der Wahlbestechungen in der römischen Republik (Frankfurt a. M. 1997); also J. Linderski, Roman Questions: Selected Papers (Stuttgart 1995) 107–114 (esp. 111–113 for the evidence on Republican penalties); A. W. Lintott, JRS 80 (1990) 1–16 (who attempts to define the boundary between acceptable beneficia and largitio); T. Wallinga, RIDA 41 (1994) 411–442. E. Gruen (in A. Mohlo, K. A. Raaflaub, and J. Emlen [eds.], City States in Classical Antiquity and Medieval Italy [Stuttgart 1991] 255–257) argues that ambitus legislation, including that of the second century, was aimed primarily at novi homines. But there is little support for this view in the actual record: see the cases collected by Lintott, JRS 80 (1990) 4–5, e.g., Liv. 35.24.4 (in the year 191, “magna ambitio fuit, quod patricii tres in unum locum petierunt”). 112. Liv. 32.7.8–12, esp. 9 with 1 n. 25 above; also Plu. Flam. 2.1–2. See E. Badian, JRS 61 (1971) 109, who plausibly argues that T. Flamininus held the quaestorship in 206. 113. Perhaps cf. P. Sulpicius Galba (cos. II 200); he had held no curule offices before his first consulship, in 211 (Liv. 25.41.11). No serious objections could be raised against this ex-consul’s candidacy for 200. But his example may have sparked debate on regulation of the cursus. 114. Liv. 32.7.11 “qui honorem quem sibi capere per leges liceret peteret, in eo populo creandi quem velit potestatem fieri aequum esse.” 115. Ten years in Polybius’ day (6.19.4); see A. E. Astin, The Lex Annalis before Sulla (Brussels 1958) 6f.
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116. L. Cornelius Lentulus was aed. cur. 205, pro cos. in Spain 205 to 200 and cos. 199; Sex. Aelius Paetus, aed. cur. 200 and cos. 198; T. Quinctius Flamininus, pro pr. 206 or 205 to ?202 and cos. 198; C. Cornelius Cethegus, pro cos. in Spain 201–200, aed. cur. 199 and cos. 197. P. Villius Tappulus, cos. 199, was pr. 203; Q. Minucius Rufus, cos. 197, was pr. 200. 117. A. Manlius Vulso, cos. 178, and for whom no praetorship is recorded, must have been praetor in 185. See Additional Note XI. 118. Lex Annalis 27. 119. On this last pair, see Liv. 39.32.8 with R. J. Evans and M. Kleijwegt, ZPE 92 (1992) 184 (noting that a compulsory biennium between praetorship and consulship cannot yet have been in effect). 120. For the interval between plebeian aedileship and praetorship, see Mommsen, St.-R. I3 531–535; A. E. Astin, Lex Annalis 27. 121. Patterns in Office-Holding 366–49 B.C. (Brussels 1979) 26–27. 122. 39.39.2 “qui aediles proximo anno fuerant.” 123. St.-R. I3 513 n. 3; see also Broughton, MRR I 377 n. 1, and the discussion of G. Poma, RSA 24 (1994) 49–58. 124. See A. E. Astin, Lex Annalis 7–19, esp. 18. 125. See Livy on the consular elections for 192 (35.10.1), 191 (24.4), and 189 (37.47.6). 126. Liv. 39.39.1–15. 127. Liv. 40.44.10–11 with R. J. Evans and M. Kleijwegt, ZPE 92 (1992) 183. 128. Liv. 40.19.11; cf. 7.15.12–13. 129. Liv. 40.44.1–2 “eo anno rogatio primum lata est ab L. Villio tribuno plebis, quot annos nati quemque magistratum peterent caperentque . . . praetores quattuor post multos annos lege Baebia creati, quae alternis quaternos iubebat creari.” Translation in text is that of E. T. Sage and A. C. Schlesinger in the Loeb edition (1938). For magistratum as “curule magistracy,” see Cic. Man. 62 (pace D. R. Shackleton, HSPh 83 [1979] 254). Recent discussion is divergent on whether to view the lex Baebia as one or two laws: see E. Bauerle, “Procuring an Election” 42 (tentatively accepting it as a “lex satura”); cf. W. Kunkel, Staatsordnung und Staatspraxis 82 n. 96 (implying one law). P. Nadig, Ardet Ambitus 26–28, argues for two. 130. St.-R. II3 198–199. 131. For some dissenting (and not very convincing) views, see W. V. Harris, War and Imperialism in Republican Rome 327–70 B.C. (Oxford 1979) 160 n. 4. 132. Fest. p. 356 L = ORF3 F 137; cf. F 138. 133. See Paul. Fest. p. 61 L: “‘derogare’ proprie est, cum quid ex lege vetere, quo minus fiat, sancitur lege nova. derogare ergo detrahere est.” 134. Additional ambitus legislation was to come in 159 (Per. 47). 135. See R. J. Evans and M. Kleijwegt, ZPE 92 (1992) 184–187. 136. Cic. De Orat. 2.261; for the identification, see Münzer, RE s.v. Pinarius 21 col. 1404. M. Pinarius Rusca was probably born a plebeian (the praenomen M. is not found among the patrician Pinarii); we need not suppose a transitio ad plebem. 137. Only P. Cornelius Scipio Aemilianus (cos. 147, II 134) is known to have reached the consulship without having held the praetorship in the period down to the age of Pompey; his consular bid for 147 required a special S.C. (App. Pun. 112.531; Per. 50). In 89, C. Iulius Caesar Strabo Vopiscus (aed. cur. 90) demanded a similar exemption in order to seek the consulship of 88 (10.5.8 below). For Sulla’s lex annalis, see G. V. Sumner, Orators 7–10; elsewhere (Phoenix 25 [1971] 246–271, 357–371) Sumner demonstrates that the Sullan cursus was closely observed even in the period of Caesar’s dominatio, down through 46. 138. That is, excluding praetors who iterated before reaching the consulship. Only L. Gellius, pr. 94 and cos. 72, seems to show a longer interval in the Republic.
320 Notes to Chapter Seven 139. See R. Develin, Patterns in Office-Holding 71–80, for the estimated ages of consuls in the period 199–180. All four members of the first reduced college of praetors, that of 179, reached the consulship. 140. On these iterations (and on the phenomenon of praetorian iteration in general), see T. C. Brennan, Athenaeum 67 (1989) 467–487, esp. 482–484, where some other possible explanations for the second praetorships of the 170s are offered. There had been only three praetorian iterations in the three decades down to the time of the lex Villia Annalis: C. Aurelius Cotta, the cos. 200 who was pr. before the Hannibalic War and pr. II in 202 (surely the first man ever to win a consulship on the strength of a second praetorship); C. Livius Salinator, pr. 202, II 191 and cos. 188; and P. Manlius, pr. 195 and II 182. 141. On the disadvantages of maintaining a policy of annual succession in distant provinciae, cf. Liv. 32.28.3–4 (reported speech). 142. Liv. 35.20.8–11 with 8.2.1 below. 143. C. Flaminius’ command of four years is unparalleled in the period 200–166; hostility from the senatorial establishment may have played a part in this (cf. Liv. 35.2.3–8). Examples of even a three-year praetorian command are rare after 200: see 9.4.3 below. 144. See Additional Note IV on the death of the praetor L. Baebius Dives, reported at Liv. 37.57.1–2, and his replacement (57.3–4). 145. For a somewhat different example of the Senate’s use of an alternating sequence of commands to maximize its military resources during a crucial campaign, see B. D. Hoyos, Antichthon 10 (1976) 46–53. Hoyos shows that for Gallia Cisalpina in the period 196–191, the Senate sent out two cooperating consular armies in even years, and a single consular force in odd ones, until the Boii were brought under control. Operations on the northern frontier of “Italia” left little margin for error, and thus required the Senate to exercise special control over its commanders: see the remarks of A. M. Eckstein, Senate and General 321–322. 146. See Additional Note IV. 147. See esp. Liv. 40.47.1–50.5 and App. Hisp. 43.179 with J. S. Richardson, Hispaniae 112–123. On the evidence for previous (more limited) settlements in 205, 197 and 195, see E. Badian, Foreign Clientelae (264–70 B.C.) (Oxford 1958) 119–121 and B. D. Hoyos, Antichthon 7 (1973) 48–49; Richardson, Hispaniae (esp. 90–93), downplays their importance. For the activities of Gracchus’ colleague in Ulterior, L. Postumius Albinus (pr. 180 and prorogued into 178), cf. G. Fatás, HAnt 5 (1975) 298–305. 148. For 175, we possess only the name of the praetor for Hispania Citerior (Ap. Claudius Centho—Liv. 41.26.1), yet he must have been sent with a praetorian colleague who would relieve T. Fonteius Capito (pr. 178), who was still in Ulterior. 149. Liv. 41.28.5. 150. Liv. 41.26.5. 151. A lacuna after Liv. 43.3 makes it impossible for us to tell whether Hispania was allotted as a provincia in 170: three places are open, since only the fleet and the two urban jurisdictions are known to have been placed in the sortition (MRR I 420). 152. Liv. 42.28.6 “ut uni sors integra esset, quo senatus censuisset”; cf. 45.16.1. 153. Liv. 43.2.1–11. 154. On this, see A. W. Lintott, Imperium Romanum: Politics and Administration (London 1993) 98 with 212 n. 4. Cf. J. S. Richardson, JRS 66 (1976) 149–151, suggesting (implausibly) that Ti. Gracchus, pr. 180, was the first to introduce a fixed grain levy, ca. 179–178; before that, commanders simply requisitioned goods and supplies on an ad hoc basis. 155. For studies of the process, see C. Venturini, BIDR 72 (1969) 71–78; W. Eder, Das vorsullanische Repetundenverfahren (Munich 1969) 34–40; J. Muñiz Coello, El processo de repetundis del 171 a. de C. (Livio, XLIII, 2) (Huelva 1981) (emphasizing its ineffectiveness at
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securing justice for the provincials). A. W. Lintott in ZRG 98 (1981) 168–170 provides a good short description of the procedure. 156. At Liv. 43.3.1–4 (after the report of the praetor’s departure) we are told L. Canuleius also had to register the names of four thousand children of Roman soldiers and Spanish women; they had sent an embassy to Rome seeking their own colony. But the praetor must have been expected to do that task in his provincia. 157. Emerita 63 (1995) 47–76, with previous bibliography in 49 n. 7. That article contains the evidence and arguments for what follows in this section. 158. The sources are explicit that M. Claudius Marcellus had brought rebel Celtiberian tribes to terms (including a formal deditio) before L. Lucullus and the pr. 151 Ser. Sulpicius Galba arrived in Citerior and Ulterior respectively: see Per. 48; App. Hisp. 50.214; cf. Posidonius ap. Strabo 3.4.13 p. 162 (= F 271 E–K) for Marcellus’ exaction of a 600-talent tribute with A. E. Astin, Scipio Aemilianus (Oxford 1967) 42. 159. For further speculation on the reasons only Galba was prosecuted, see U. Hackl, Senat und Magistratur in Rom von der Mitte des 2. Jahrhunderts v. Chr. bis zur Diktatur Sullas (Kallmünz 1982) 60–68, esp. 65–66 (suspecting the involvement of Scipio Aemilianus). 160. That Libo’s bill aimed at setting up a quaestio is clear from Cic. De Orat. 1.227 and Brut. 89; cf. V. Max. 8.1 absol. 2 and see E. Gruen, Roman Politics and the Criminal Courts, 149–78 B.C. (Cambridge, Mass. 1968) 13 n. 11 (a full listing of sources, many of which think Galba actually made it to trial). This proposal, which Appian notes at Hisp. 60.255 (i.e., what seems to be the year 150), came only in 149 (MRR I 459, under L. Scribonius Libo, tr. pl.; on the date, see esp. Cic. Att. 12.5b with Epit. Oxyr. 49). For the charge, see Ps.-Asc. p. 203 St. “pro direptis Lusitanis”; Nep. Ca. 3.4 “qui diripuit Lusitanos”; cf. Hisp. 60.255. Per. 49 contains Libo’s proposal to free the Lusitanians. 161. A. E. Astin, Cato the Censor (Oxford 1958) 118f. Cato (who was to die later that year) managed to write up the affair in his Origines (reproducing one of his own speeches, and criticizing the rhetoric of Galba)—which is why we are relatively well-informed on the details. See Cato HRR I2 FF 106–110. 162. See Per. 49; cf. Gel. 15.13.5 = Cato HRR I2 F 101. 163. For the “alternating sequence” as an attested element in the Roman administrative repertoire, see n. 145 above. 164. Though not necessarily in the city, as I argued in Emerita 63 (1995) 65–69. The possibilities are a city jurisdiction or a non-Spanish territorial provincia. 165. See 8 n. 248. For later examples, see T. C. Brennan, Chiron 22 (1992) 141 n. 111. 166. For the exemption that led to his second consulship for 134, see Per. 56 with App. Hisp. 84.364 (the latter wrongly reporting that the issue was Scipio Aemilianus’ age); for the date of Aemilianus’ triumph, see A. E. Astin, Scipio Aemilianus 230f. 167. See Eutrop. 4.19 for Aemilanus cos. II; 18 for the death of Attalus, “rex Asiae,” which he synchronizes (“eodem tempore”) with Aemilianus’ victory at Numantia; and 19 for the two triumphs from Spain. Eutropius is demonstrably following Livy here: cf. Per. 59 on the “fourteen years.” 168. Inscr. Ital. XIII 1 558. Appian might be taken to imply Brutus returned home earlier than Scipio (Hisp. 73.310; 99.428). 169. See, for this general period, 4.14.2 (three triumphs of 146–145, which Eutropius misleadingly says were celebrated simul); 20.2 (correctly noting M. Perperna’s inability to triumph due to untimely death); 22 (triumphs of Q. Maximus and Cn. Ahenobarbus ca. 120, confirmed by Fast. triumph.); 23 (incorrectly attributing the triumphs of the pro coss. L. Metellus Delmaticus and Q. Marcius Rex in 117 to the consuls of the year, one of whom is L. Metellus Diademetus); 25 (M. Metellus and C. Metellus Caprarius, who triumphed on
322 Notes to Chapter Eight the same day in 111, incorrectly placed in 113, the year of Caprarius’ consulship); 27.4 (rightly noting that Q. Metellus Numidicus and C. Marius both triumphed over Jugurtha— but his summary disguises the fact that one was in 106 and the other at the beginning of 104). 170. MRR I 487 and 488 n. 5, suggesting Brutus triumphed “probably in 136 or 135”; cf. also Münzer, RE s.v. Iunius 57 cols. 1022–1024, rejecting Eutropius. H. Simon, Roms Kriege in Spanien, 154–133 v. Chr. [Frankfurt a. M. 1962] 169–171, however, fully accepts a late triumph, for 132. J. S. Richardson, Hispaniae 157, is noncommittal. 171. Ruf. Fest. Brev. 5.1–2 and Jordanes Rom. 212 with L. A. Curchin, Roman Spain: Conquest and Assimilation (London 1991) 38. For the monetalis P. (Cornelius) Sul(l)a, see RRC I 249–250 no. 205. Crawford dates him to 151; a bit early, but not inconceivable, to be praetor in the mid-130s, as Curchin suggests. 172. Rightly rejected by J. W. Eadie, The “Breviarum” of Festus (London 1967) 37; see also J. S. Richardson, Hispaniae 193. 173. E. Badian, Lucius Sulla: The Deadly Reformer (Sydney 1970) 5. 174. Sources on the agnomen in MRR I 487. 175. Hisp. 99.428. 176. Pace J. W. Eadie, The “Breviarum” of Festus 37, Jordanes here is not necessarily following this epitomator. 177. Cf. Z. W. Rubinsohn, RSA 11 (1981) 201. 178. Fest. s.v. potestur p. 277 L. See A. E. Astin, Scipio Aemilianus 147 (suggesting 137 as a strong possibility, because of his cooperation with M. Aemilius Lepidus Porcina in a siege of Pallantia against the Senate’s orders); but also 258–259 (more cautious). 179. Plu. CG 6.1–2 (th;n suvgklhton . . . sumbouleuvonto~ aujtou` [sc. Gracchus]. sunebouvleue . . . eijshgouvmeno~, then terming Fabius Maximus ajntistravthgo~) with E. Badian, Foreign Clientelae 183; cf. J. S. Richardson, Hispaniae 160, 167. C. Gracchus must already have passed his lex frumentaria (on which see MRR I 514 and G. Rickman, The Corn Supply of Ancient Rome [Oxford 1980] 158–161) by the time of this gesture to the Spaniards. For the suggestion that C. Gracchus presided at the meeting, see L. Thommen, Das Volkstribunat der späten römischen Republik (Stuttgart 1989) 194 n. 7 and 203; P. Willems, Sénat II 141 n. 3 makes him responsible for the relatio alone. 180. Sources on Q. Caecilius Metellus (Balearicus) in MRR I 513 (cf. 518) and 521, esp. Strabo 3.5.1 p. 167 on the settlement at Palma and Pollentia; see also MRR III 36f (citing Fron. Str. 4.1.11) for the possibility of early service in Citerior under his father, Q. Metellus Macedonicus, cos. 143 and pro cos. 142 (quite uncertain). On the Balearic war, see M. G. Morgan, CSCA 2 (1969) 217–231 (linking it with contemporary operations in Transalpine Gaul and Sardinia). For Metellus’ provincia, see Morgan, CSCA 2 (1969) 226 with n. 43, accepted by L. A. Curchin, Roman Spain 40–41; J. S. Richardson (Hispaniae 157) is less certain.
Notes to Chapter 8 1. In 189, the consular provinciae were Aetolia and Asia, perhaps in consequence of a report (soon proved false) that L. and P. Cornelius Scipio had been captured and their army had met disaster (Liv. 37.48.1–7 = V. Ant. HRR I2 F 42; cf. Liv. 37.51.8–10). On this incident see E. Gabba, Athenaeum 53 (1975) 10. 2. Liv. 25.3.2, cf. 3.4 (212); 37.2.1, cf. 9 (190). 3. For “Etruria” (inaccurately) as a praetorian provincia, see especially Liv. 27.6.1 (210), and 27.35.2 (207). “Etruria” is the usual term when this area comes up in Livy’s report of con-
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sular sortitions: see 29.13.1 (204); 30.1.8 (203); 30.27.5 (202), but note “Italia” at 31.6.2 (with 11.1–2) for the year 200. “In Etruria” (as opposed to plain “Etruria”) on the other hand does not claim to be technical. It is a (correct) geographical designation. Note Liv. 25.3.1–2 “praetores provincias sortiti sunt . . . M. Iunius Silanus Tuscos” (212) with a notice for the year 211, “M. Iunio in Etruria . . . prorogatum est imperium” (26.1.5); likewise 37.2.1 “P. Iunius Brutus Tuscos” (190) and the notice “prorogatum . . . P. Iunio pro pr. in Etruria” (37.50.13— 189). 4. Although all the Bruttii except Rhegium had gone over to Hannibal by late 216 (Liv. 23.30.1–9), praetors are found here only after the departure of Hannibal from Italy in 203 (30.28.1). The “Bruttii” were in the praetorian sortition for each of the years 202 through 200; praetors also went to this provincia in the years 192 through 189 (in 190 the Bruttii and Apulia were a joint provincia—Liv. 37.2.1). At least one holder of consular imperium operated in the region in each of the years 209 through 203. 5. Liv. 28.38.13 (205) “obtigit Ariminum—ita Galliam appellabant—Sp. Lucretio.” For Ariminum as a rallying point for Gallic campaigns, see, e.g., Liv. 21.63.1 (217), 27.7.11 (209), 31.11.1–2 (200), 41.5.7–8 and 11 (178); cf. also B. Amat-Seguin, RSA 16 (1986) 100–101. 6. See also Liv. 24.44.3 “provincia Ariminum” (213); 30.1.9 (203); 32.1.2 and 5 “circa Ariminum provinciam” (199). For the unofficial “Gallia,” see 22.35.6 and 23.24.3 (216); 27.7.8 “peregrina cum Gallia” (209); 27.36.11 and 12 (207); 28.10.12 (206); 29.13.2 “peregrina et eidem Gallia” (204); 30.27.7 (202); 31.6.2 (200); 32.8.5 (198); 38.42.6 (187); 39.45.5 (183); 40.18.3 (181); cf. 40.36.13 (180). See also Liv. 24.10.3 “ager Gallicus” (214). 7. See Mommsen, St.-R. I3 55–57; P. J. Rhodes, Historia 27 (1978) 617–620. We cannot tell from Livy’s annual reports whether, after the Second Punic War, “Ariminum” persisted as the official designation for the praetorian provincia in this area. The fact that it is found for 199 (Liv. 32.1.2 and 5) may be an example of (reverse) variatio. 8. In 215 (Liv. 23.32.16 with 33.5) and 214 (24.11.2), Livy reports that the peregrine praetors were sent to “Apulia” at the beginning of their year of office. But in the course of 214, it would appear that the peregrine praetor took over “Luceria” (and some other city not in Livy?) as his provincia from a commander with consular imperium (see 24.12.6 and 20.8). The praetor M.’(?) Aemilius (24.44.2) in 213 seems to have received the provincia “peregrina cum Luceria.” So “Luceria” may lurk behind the provincia “Apulia” allotted to praetors in 212 (25.3.2 and 4—this praetor takes over legions which Aemilius, pr. 213, held at Luceria) and 211 (26.22.1)—and perhaps 215 as well (Luceria is where the praetor of that year is found to have his camp). 9. Liv. 37.2.6 (190; cf. 50.13, the year 189), 39.45.5 (183), 40.19.9 (181); cf. also the special command of Cn. Sicinius, pr. des. for 172 (42.10.8). 10. “Tarentum” only once came into the actual praetorian sortition, in 208, the year after Q. Fabius Maximus (cos. V 209) recovered the town: Liv. 27.22.2–3. In 215, the praetor M. Valerius Laevinus, pr. per. and Luceria, also had responsibility for the “oram maritimam inter Brundisium ac Tarentum” (Liv. 23.32.16–17). This he first administered through legati, but later in person (see 8.5.3 below), finally leaving it in 214 to a sporadically able praefectus, M. Livius (see Plb. 8.27), who held Tarentum itself from 214 to 210, when he lost it to Hannibal. After its recovery in 209, it evidently was decided that commanders of praetorian rank should secure Tarentum and its surrounding area: see (in addition to the sortition of 208) Liv. 27.36.13 and 28.10.15 (prorogation of the pr. 208 through 206); and 29.13.6 (T. Quinctius Flamininus, pro pr. into 204). 11. Liv. 27.22.2; cf. 40.11 (207), where the pro pr. for Tarentum is said to have camps placed among the cities of the ager Sallentinus. 12. Liv. 38.42.6 (187); 39.29.8 (185); cf. 41.6–7 (184). We have a chance reference in Livy that the praetor for Tarentum in 185 was active in Apulia (39.29.8).
324 Notes to Chapter Eight 13. The basic discussion is that of I. M. J. Valeton, Mnemosyne 23 (1895) 38–40. A ritual flaw in the dictio could have serious consequences: see Liv. 45.12.9–12 (168), where the legions are unable to leave Rome in such a circumstance. 14. M. Claudius Marcellus (as pr. 216) established the castra Claudiana to serve as a base of operations in Campania against Hannibal (Liv. 23.17.3); see Liv. 23.31.5, 32.2, 39.8, 48.2; 25.22.7. The locus ad conveniendum in 215 for the force to be commanded by M. Claudius Marcellus (a privatus with enhanced imperium—8.3.1) was Cales (Liv. 23.31.3 and 5). In mid-year 215, the consul Q. Fabius Maximus succeeded M. Marcellus in the camp (Liv. 23.39.8, mistakenly calling Marcellus pro pr.; cf. 46.9—it is unknown whom he placed in charge; 48.2). In 214, we find a pro pr. Pomponius at Suessula, evidently as successor to Fabius (24.17.2). This man may be the M.(?) Pomponius who served as pr. per. in 217; he cannot be Pomponius Matho, the pr. per. 216, who was pro pr. in Gaul at this very time (Liv. 24.10.3; 44.3). Perhaps (rather than continuous prorogation) the consul Q. Fabius Maximus delegated him imperium. “Suessula” was placed in the praetorian sortition in 213 and 212; it is probable that when the praetor of 212 was prorogued in his command into the next year, he retained “Suessula”: see Liv. 24.44.3 (213), 25.3.2 (212); cf. 26.5.8 for the possible status of the pr. 212 in 211. 15. In 210, Q. Fulvius Flaccus (cos. III 212 and then pro cos. for the next two years) managed affairs in Campania from Capua. The detection of a serious conspiracy in the town that same year caused “Capua” itself to be declared praetorian and placed in the sortition for 209 (Liv. 27.7.8; cf. 3.1–5). “Capua” turns up as a military provincia for each of the next five years: the pro cos. Q. Fulvius Flaccus garrisoned it with one legion in 208, followed by a pro pr. from 207 down through at least 204. After Hannibal’s departure from Italy, a praetor (M. Valerius Falto) is reported to have served in the broadened provincia “Campania” (once only in Livy). There is no assurance that it was allotted as such in the sortition, especially since Livy demonstrably does not know how Valerius got there (see Liv. 30.40.5, cf. 41.1; 31.8.9). 16. Note Liv. 38.35.8, the consular provincia “Pisae cum Liguribus” (188); cf. also “Pisas et Ligures” at 41.14.8 (176, but here two separate provinciae). This is how the Senate may have typically formulated its instructions to the consuls, despite Livy’s usual designation, the simple “Ligures” or “Liguria.” 17. See Liv. 41.5.6 (178); Arretium also was used, as 34.56.4 shows (193). In normal practice, a praefectus may have held Pisa (cf. 34.56.1, a chance reference for 193) while a holder (or holders) of consular imperium penetrated into Ligurian territory. However, in the praetorian sortition of 195, P. Porcius Laeca received “Pisae,” the only praetor to receive this special provincia in our period (33.43.5). P. Laeca had Pisa (surely) because one of the consuls of the year, M. Porcius Cato, had to go to Hispania Citerior. Despite Livy’s editorial comment that the praetor (a relative of Cato) received “Pisae” “ut ab tergo Liguribus esset,” he seems to have held only a defensive position in the area while the consul L. Flaccus contained the Boii and rebuilt Placentia and Cremona (Liv. 34.22.1–3); the praetor also was supposed to keep an eye on north Etruria (33.43.9). The praetor probably did not have “Pisae cum Liguribus.” The area around Pisa was in danger at this time: see 34.56.1–2 and 10 for Ligurian attacks in early 193; and 35.40.4 for a consular counteroffensive in 192, really Rome’s first in this theater. The peregrine praetor for 178, Ti. Claudius Nero, went to Pisa well into his year of office as a replacement for the consul M. Iunius Brutus (whom a perceived emergency had drawn to Aquileia), where he was prorogued—pro cos., apparently— into the next year to garrison the area with one legion (see Additional Note IX). Only consular commanders had received Liguria since 194, and it would not do to give barbarian enemies the wrong impression of lessened power and interest. 18. Ti. Claudius Nero (see n. 17 above) was relieved in his command when the Senate declared “Pisae” consular in 176, separate from the “Ligures” (Liv. 41.14.8 and 9 with 15.5).
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The Ligurians may have threatened Pisa and the newly founded citizen colony of Luna (located on land donated by Pisa—40.43.1, 41.13.4–5); it was alarming that in 177 the Ligurians had captured Mutina, quite far east of their own district (41.14.2). “Pisae” and “Gallia” were the two consular provinciae of 167 (45.16.3 with 17.6–7), perhaps a response to the dispute between Pisa and the colonists at Luna which had been brought to the Senate’s attention the previous year (45.13.10). 19. Which themselves always kept their initial military name, even after annexation and organization: see the remarks of E. Badian, Roman Imperialism in the Late Republic2 (Oxford 1968) 23. 20. Liv. 36.2.6 (191); 37.2.1 (190), cf. 2.10 “maritima provincia” and 4.5 “navalis provincia”; 37.50.8 (189); 42.28.6 “quo senatus censuisset,” later “classis” (171); 43.11.8 (169); cf. 15.3 and 44.1.3, 44.17.7 and 10 (168). In Livy’s report of 214 (a year for which there is no ordered list of the praetorian provinciae allotted), 24.10.5 (cited in 6 n. 28 above) cannot be taken to reflect the actual language of the sortition. 21. The fleet (and with it, the war against the Carthaginians) was allotted to the consul Cn. Cornelius Lentulus in 201 (Liv. 30.40.12; 41.6; 43.1). 22. Liv. 35.20.10. In this particular instance, Livy is probably accurate in his report of the designation of the provincia. Livy’s mention of the fact that two of the original provinciae of the year were changed, and that a senatus consultum and a plebiscitum were needed to alter these provinciae (35.20.8–10, on which see 8.2.1), makes it likely that he had access to a reliable tradition. As matters turned out, A. Atilius Serranus operated chiefly against towns on the south shore of the Peloponnese (Liv. 35.22.2, 23.4 and 37.1); but see 36.11.9 for his presence off Cephallenia in early 191. When Atilius was succeeded in 191 his fleet was based off Peiraeus (36.42.7). 23. See in particular the activities of C. Livius Salinator, pro pr. 190 (Liv. 37.8.7, where he sends troops against Thyateira), and Cn. Octavius in 168 (Liv. 44.46.3, his capture of Meliboea, quite far inland in Thessaly). 24. See Inscr. Ital. XIII 1 80f and 553–554 for the triumphs of the pro prr. L. Aemilius Regillus in 187 and Q. Fabius Labeo in 188; and Inscr. Ital. XIII 1 80f, 338f, and 556 for that of the pro pr. Cn. Octavius in 167. If they indeed had a provincia joined with special instructions, it may have been something like classis et Asia (or Macedonia) ut cum rege Antiocho (or Perse) bellum gereret. 25. For a consular lot “quo senatus censuisset,” see Liv. 35.20.3 and 7 “extra Italiam quo senatus censuisset” (192). See also 35.41.3 and 5–6 (191), where the consuls receive “Italia et quo senatus censuisset”—“all knew that this [latter provincia] was the war against king Antiochus”; this was accompanied by a praetorian lot “classis, ut navigaret quo senatus censuisset” (on which see below). Cf. in general J. P. V. D. Balsdon, JRS 29 (1939) 180– 183. 26. Liv. 35.20.8–10 with 8.2.1 below. 27. In 208, the praetor P. Licinius Crassus received the provincia “peregrina et quo senatus censuisset” (Liv. 27.22.3). We do not know where he was sent, if in fact he left the city. As pontifex maximus he probably could not serve in a provincia outside of Italy. It is worth noting that (surprisingly) there was probably no formal safeguard against this man drawing Sicily or Sardinia in the sortition (see 4 n. 36; 9.1.5). Only after a dispute of 189 (4.1.3, 9.1.5) do we find a special arrangement for a praetor who held a priesthood involving a geographical restriction (Liv. 39.45.4, the year 183—see 5.3 above). More thought was given to consuls: Crassus as consul in 205 received the Bruttii extra sortem (28.38.12). In the praetorian sortition for 171, it was provided “ut uni sors integra esset, quo senatus censuisset” (Liv. 42.28.6; cf. 31.9); this in fact meant command of the eastern fleet (42.31.6–7). In 168 L. Anicius drew the lot “peregrinam et si quo senatus censuisset” (44.17.10).
326 Notes to Chapter Eight 28. In early 208, it was feared that a Carthaginian fleet of two hundred ships would assail the shores of Italy, Sicily, and Sardinia (27.22.8). The praetorian commanders in Sicily and Sardinia received extra ships to meet the threat (27.22.7–9) and the praetor urbanus took responsibility for the defense of the seacoast near Rome (27.22.12); the praetor inter peregrinos may have had to look after the rest of the coast of Italy. (The invasion never materialized.) In 168, L. Anicius held the sors “peregrina et si quo senatus censuisset” (thus the report of our sole manuscript, Vindobonensis), pending the report of an embassy sent to the east to investigate the military situation in Greece and Macedonia (Liv. 44.17.10; 18.5; 19.1–3; 20.1–7). When the Senate heard this report, the Senate specified his provincia as “Illyricum” (44.21.4), which meant that he had to yield the peregrine jurisdiction (45.12.13). “Si quo” at Liv. 44.17.10 is most unusual. This may be a textual error, or an (inaccurate) example of variatio on Livy’s part. 29. In expectation of a war against Antiochus III of Syria, one of the consuls of 192 and 191 each received a “noncommittal” provincia. In 192, the consul received an order to wait in the city until the embassy to Antiochus and Eumenes returned (Liv. 35.20.14; 22.1–3). However, these legati reported that a declaration of war was not yet sufficiently justified. In 191, as soon as war was actually declared, the Senate specified the open consular and praetorian lots as “Graecia” and the “classis” (Liv. 36.1.6 and 2.6). One last example. In 171, the praetor C. Lucretius Gallus received the “noncommittal” provincia (42.31.6–7 and 9). After the proper declaration of war against Perseus (42.30.10–11), he is found in command of the fleet bound for the east. Although his provincial designation is not immediately specified (42.35.3 and 5—early June), it is fixed before he departs from the city (42.48.5 “cui classis provincia erat”). 30. At 35.41.3. 31. A Commentary on Livy, Books XXXIV–XXXVII (Oxford 1981) 174. 32. I have left out of account the question of the defense of the city, as well as police action in Latium and south Etruria, both of which were handled by the city praetors simply ex S.C. See the discussion in 5.2.1 and 5.3.1. 33. Sardinia, however, had to be governed by a prorogued praetor (or possibly a legatus) in 189, 168, and 167 (see 6.2.2). 34. Liv. 25.3.1. The other three praetorian sortes in this year (as reported by Livy) were all “special” (Suessula, Apulia, Etruria). 35. Evidence for the “mandatory” process is discussed in 5.2.5. 36. Liv. 36.2.6 (191) and 37.50.8 (189, soon modified). 37. Liv. 27.22.5–6 (the translation is that of F. G. Moore in the Loeb edition, 1943); Mommsen, St.-R. II3 211 n. 1. This was the first prorogation for this particular praetor for Sardinia: we are left to guess whether a similar vote was necessary if the Senate decided to extend a commander a second time. 38. Liv. 24.10.5. 39. Liv. 35.20.8–10. It should be emphasized that the notice of this complicated procedure goes a long way toward explaining the existence of the expedient provincia “quo senatus censuisset” (see 8.1.3 above). 40. Liv. 24.9.5 (214) “comitiis praetorum perfectis senatus consultum factum, ut Q. Fulvio [Flaccus, pr. urb. 215] extra ordinem urbana provincia esset.” 41. TLL V 2 s.v. extraordinarius col. 2076 (section B 3a). 42. Plb. 6.15.6 (note the present tenses); translation adapted from that of W. R. Paton (Loeb edition, 1923). 43. It is instructive to remember that we would know even less of the lex curiata were it not for the fact that in the late Republic it was vetoed by tribunes; cf. Cic. Agr. 2.30 with 1.3.4 above. H. Kloft (Prorogation und Außerordentliche Imperien 326–81 v. Chr.: Unter-
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suchungen zur Verfassung der römischen Republik [Meisenheim am Glan 1977] 47–61) examines the evidence for the respective roles of Senate and People (or Plebs) in prorogation, but blurs the lines of development by failing to differentiate clearly between the routine extension of commands and special comitial grants of imperium (viewing votes of imperia extraordinaria in the late Republic as a reassertion of popular rights). U. Hackl oddly thinks that the Senate was legally capable of proroguing without popular approval starting from the time of the Second Punic War, but still sometimes asked the Plebs out of habit (Senat und Magistratur in Rom von der Mitte des 2. Jahrhunderts v. Chr. bis zur Diktatur Sullas [Kallmünz 1982] 165–166; cf. 74). S. P. Oakley assumes that a popular vote was taken down to the end of the Republic (A Commentary on Livy Books VI–X vol. I: Introduction and Book VI [Oxford 1997] 660f). 44. Presumably, special provinciae were originally put to a popular vote in some elastic form. Unfortunately, we have no positive evidence on this, or on the question of how the Senate assumed sole competence over special provinciae (which it surely had by 208). 45. See Liv. 23.24.1–2, 5; 25.2–11, esp. 6 and 11. The detail of the magister equitum Ti. Sempronius Gracchus as president of the actual Senate meeting is an entirely unexpected detail (not easily explained!) which may well point toward some veracity in the narrative (discussed in Additional Note VIII). 46. See Cic. Prov. 17 “sceleratissimorum hominum impunitas propagatur” (metaphorical, but in the precise context of a Senate decision on extending provincial commands); Att. 8.3.3 (Pompey’s services to Caesar) “ille provinciae propagator”; also Suet. Aug. 23.1 (after the clades Variana, Augustus) “praesidibus provinciarum propagavit imperium.” 47. On all this, see Additional Note I. 48. For the identification of K. Quinctius Flamininus, IIvir 217, with the “Q. Claudius Flamen” who received Tarentum as praetor in 208 (Liv. 27.22.3), see E. Badian, JRS 61 (1971) 106–110. Contra R. E. A. Palmer in J. Linderski (ed.), Imperium Sine Fine: T. Robert S. Broughton and the Roman Republic (Stuttgart 1996) 75–101, reconstructing the figure of a “Claudius” who in 223 refused to be flamen Dialis (see Fest. pp. 462, 464 L) and then identifying him with Livy’s praetor “Q. Claudius Flamen.” Unlike Quinctius Claudus, who received Tarentum as a special provincia in the sortition, the pro quaestore (possibly privatus) T. Flamininus, after his uncle’s death (from a plague? cf. Liv. 29.10.1–3), must have obtained his imperium through a special lex. 49. Polybius, in his theoretical sketch of the Roman constitution at the time of the Hannibalic War, at 6.13.4–5 offers a list of the circumstances that could lead the Senate to provide for criminal jurisdiction or administrative (even armed) intervention among the allied states in Italy. These (numerous and quite general) categories were surely made up by Polybius himself (cf. levgw d∆ oi|on in this passage) and have no basis in official language (contra A. H. McDonald, JRS 34 [1944] 13–17). Mommsen was right to hold that after the war the Romans almost certainly intervened in areas properly belonging to allied jurisdiction (St.-R. III 1209 n. 1; cf. also A. O’Brien-Moore, RE s.v. senatus col. 751). So we see that the Senate not only issued orders to the allies (ILLRP 511 lines 7–8, the S.C. de Bacchanalibus) but also sometimes declared allied territory (e.g., the “Tusci”) to be praetorian provinciae in time of peace. On the Polybius passage, see further E. Badian, Foreign Clientelae (264–70 B.C.) (Oxford 1958) 141–149; F. Wulff Alonso, Romanos e itálicos en la Baja República (Brussels 1991) 46–52; cf. also F. W. Walbank, A Historical Commentary on Polybius I (Oxford 1957) 679–680 and W. V. Harris, Rome in Etruria and Umbria (Oxford 1971) 108–111 (both the latter inclined to take the passage rather more literally than Badian and Wulff Alonso). 50. For the principle, see Liv. 27.21.6–7. 51. See M. Valerius Laevinus, pr. 215 in Apulia, but active among the Hirpini in Samnium (Liv. 23.37.12); Q. Fabius Maximus, pr. 214 in Apulia (24.20.8); P. Sempronius
328 Notes to Chapter Eight Tuditanus, pr. 213 in Gaul (24.47.14—we can assume that the town of Atrinum had declared for Hannibal); Cn. Fulvius Flaccus, pr. 212 in Apulia (25.20.6). 52. Liv. 27.24.1–9 (measures taken in 208 by the pro prr. C. Hostilius Tubulus and C. Terentius Varro at Arretium); 28.46.6 (the jurisdiction of the pr. urb. Cn. Servilius in 205 over the Campanians); see also 31.12.1–4 and 32.1.7–8 (the investigation of the praetor Q. Minucius Rufus in 200 and as pro pr. 199 regarding sacrilege at Locri). 53. For his provincia, see Liv. 22.57.1 and 8 (discussed in 5.2.1). For the victory at Nola, see 23.14.10–13. Although the army of the dictator M. Iunius Pera should have been in Campania at the time (24.14.1–3), the dictator himself may have returned to Rome, or was unable to act out of scruples regarding the auspices (cf. 23.19.3 and 5, but see G. De Sanctis, Storia dei Romani III [Turin 1917] 2 360). Marcellus’ victory passed into tradition as the first Carthaginian reverse in Italy (23.16.16; cf. Cic. Brut. 12). 54. Liv. 23.24.1, 25.5–7 and especially 30.19 (the source of the quotation which follows in the text) and 32.2 where the rank is confirmed. Cf. also 23.48.2 and Oros. 4.16.12. (“Pro pr.” at Liv. 23.39.8 must be a mistake.) Mommsen first believed Marcellus’ rank as pro cos. 215 to be from prorogation (St.-R. I3 642 n. 3), but then seems to have decided that this is a special command (St.-R. II3 649 n. 1), which surely is right. 55. Cf. R. Develin, JRH 10 (1978) 14, commenting on Liv. 23.31.7–9: “there were suspicions [i.e., at the time of the elections in early 215] that a grant of proconsular imperium to the outstanding plebeian noble M. Claudius Marcellus was a device to eliminate him as a candidate.” 56. Liv. 23.31.7–14 with J. Linderski, ANRW II 16.3 (1986) 2169 and cf. 2171. It is the only negative sign we ever hear of at the Republican consuls’ ceremony of investiture. 57. See Liv. 23.31.12–14 with 32.2. 58. At 23.30.19. 59. Cf. 7.1.1 above (a grant to Cn. Scipio in 217?) and Additional Note IX. Cf. also 2.3.1 on the “imperium aequatum” of the dictator and master of the horse of 217. 60. Liv. 27.40.10–12. 61. Liv. 27.29.3; 38.7. 62. Liv. 22.61.11–13. Livy does not mention the Etruscans in his list of rebellious Italian peoples, probably because they never rose in a full-scale, open revolt. 63. See below in this section for Cn. Flaccus as pr. Apulia 212. The consul Cn. Fulvius Centumalus was based in Apulia in 211 (Liv. 26.22.1) and in 210 as pro cos. (26.28.9). In the first of these years the praetor M. Cornelius Cethegus was also assigned Apulia in the sortition (Liv. 25.41.13) but evidently was soon moved to east Sicily (see 6.1.1). No actions are recorded for him in Apulia. 64. Unrest in Etruria forced the Romans to commit two legions to the area in each of the years 212 through 200. At first (212 through 208), one praetorian commander was enough for Etruria. But some way into 208, C. Terentius Varro (cos. 216) was sent to Arretium with a special grant of imperium—bringing the total of Roman legions in Etruria to three—and then extended into 207, the first time we see a privatus with imperium prorogued on the Italian mainland. Later, in each of the years 207 through 200, this provincia fell to a holder of consular imperium (M. Livius Salinator, cos. II 207 and pro cos. 206 and 205; M. Cornelius Cethegus, cos. 204; C. Servilius Geminus, cos. 203; M. Servilius Geminus, cos. 202 and prorogued through 201; and C. Aurelius Cotta, cos. 200). In those latter years, the Senate evidently was trying to maintain the principle of annual succession in this district. W. V. Harris has usefully summarized the situation in Etruria during the Second Punic War (Rome in Etruria and Umbria 131–143), and I accept most of the details of his reconstruction. But Harris consistently underestimates the level of discontent in Etruria, for the whole period 212–200. Most importantly, the declaration of Etruria as a praetorian provincia for 212 reveals
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that there was already serious danger of rebellion in that area. In 200, the pr. L. Furius Purpurio ended up in Etruria—the first praetorian commander there in some years—but only by default: see 8.3.3 for the story, and reactions to his desertion of the provincia. He was to be the last holder of praetorian imperium in Etruria until P. Iunius Brutus was allotted the “Tusci” in the praetorian sortition for 190. This was doubtless in connection with the affair of the Bacchanalia—though a full four years before the famous consular quaestio of 186 (8.4.2). For a documented treatment of commands in this theatre, see my dissertation “The Praetorship in the Roman Republic down to 81 b.c.” (Harvard 1990) 270–273, with corresponding notes on 609. 65. For Cn. Fulvius Centumalus (cos. 211) at Herdonea in 210, see MRR I 280; for Q. Fabius Maximus at Tarentum in 209, MRR I 285; for T. Quinctius Crispinus’ attempt on Locri in 208, see Liv. 27.25.11–14 and Plu. Marc. 29.1–18. Locri was finally taken by P. Scipio (Africanus) in 205, and entrusted to the privatus cum imperio Q. Pleminius (MRR I 301—discussed in 6.1.3). 66. Liv. 25.22.7–8; 26.5.7–6.8 (C. Nero); 27.46.5; 47.4; 48.1 and 4 (L. Porcius). 67. See Liv. 24.11.3–4 (214); 44.3, cf. 25.3.3 (213); 25.3.4 (212); 26.28.4 (210); 27.7.10 (209); 28.11.12 (206); 31.8.7 (201); 32.1.5 (199—the Senate’s order was not obeyed); 35.20.11 (192); 36.2.7 (191); and 37.2.6 and 9 (190). 68. Plb. 3.86.6–7; Liv. 22.8.5; see also Additional Note I on the grant of imperium. 69. Plb. 3.106.2–5. The fact that M. Atilius Regulus as well as Cn. Servilius Geminus in 216 held only delegated imperium points toward a larger policy decision than a strictly punitive measure for the Centenius disaster. On this grant, see Additional Note I. 70. Liv. 23.37.10–11, a Roman victory near Grumentum. 71. Liv. 23.20.6. 72. Sources for Ti. Sempronius’ consulship are in MRR I 238. Frontinus (Str. 3.6.5) speaks of a Cn. (Calpurnius) Piso whom the Carthaginian Mago defeated and then cunningly managed to besiege. Mago is surely Hannibal’s youngest brother (cf. Münzer, RE s.v. Calpurnius 68 col. 1379); we have no indication of rank, date, or theater for Piso (but he cannot have been a praetor). In any case, the engagement described seems like a small one. Piso’s defeat perhaps fell in the period 218–216, when Mago was fighting in Italy; the other possibilities are Spain in the years 215–206 (probably the most likely, to judge from the mention of the turris in the passage, as Professor Badian has pointed out to me), or northern Italy in 205–203. 73. Liv. 24.17.2. 74. Liv. 27.24.1–9 (208); 27.35.2, 36.13, cf. 28.10.11 (207). The quotation which follows in the text is from 27.35.2. 75. See 4 n. 144. 76. Cf. Liv. 29.13.6 with 8.2.2 above. 77. Liv. 27.44.4, cf. 43.12; for Q. Flaccus (cos. IV 209), see 27.42.17. 78. See Liv. 35.23.6–7 and 24.6 (192); 42.10.7–8 (173). 79. Liv. 23.24.6–13; Plb. 3.118.6; for the developed tradition concerning this battle, see Cic. Tusc. 1.89. 80. Liv. 23.25.4. 81. For Centenius Paenula’s defeat, see Additional Note I, where it is argued that he did not hold imperium. 82. See Liv. 25.20.5–21.10. 83. Liv. 26.1.9–10 and 2.7–3.12. On Fulvius’ trial and exile (at Tarquinii), see D. C. Earl, Athenaeum 38 (1960) 284 (defending the authenticity of the story, which G. De Sanctis had doubted); W. V. Harris, Rome in Etruria and Umbria 92f. A. W. Lintott (ZRG 104 [1987] 44 n. 51) calls Cn. Flaccus “the only man forced into exile or condemned on a capital charge
330 Notes to Chapter Eight in the middle Republic”—or, more accurately, the only one we hear about, until the Spanish commander C. Plautius (pr. 146) in 145 (7.3.1 above). 84. Liv. 26.28.5 “Galliae et legionibus praeesset quem consul . . . praefecisset.” 85. Liv. 27.7.11; cf. 26.28.4–5 with 27.4.4 (which shows that Laetorius was not pr. urb.). C. Laetorius’ successor, L. Veturius Philo (pr. 209), is said to have had as his provincia “peregrina cum Gallia” (27.7.8; cf. 11 where “C. Hostilius” is a mistake for Veturius). 86. Liv. 30.41.7 (201); 36.2.10–11 (191). The consuls’ right in the field to invest privati with (praetorian) imperium was of course a totally different matter: see Additional Note I. 87. Liv. 27.6.1. 88. Liv. 27.7.3. 89. Liv. 28.10.12; 11.11. 90. In 207, once the praetor L. Porcius Licinus reported Hasdrubal’s crossing of the Alps, he moved into a defensive position and summoned consular aid (Liv. 27.39.1–3); the praetor then served under the coss. in an ancillary role, though Livy represents him as helping plan the Roman strategy for the Metaurus battle (27.46.5–6; 47.4). In similar fashion, Sp. Lucretius (pr. for Gaul in 205) prompted the Senate to have the pro cos. M. Livius Salinator summoned from Etruria to advance against Mago and his Ligurian allies (28.46.12–13; 29.5.2–9). In 203, P. Quinctilius Varus is said to have fought against Mago under the pro cos. M. Cornelius Cethegus (Liv. 30.18.1–15 with MRR I 315 n. 3). 91. Liv. 29.13.4; 30.1.7. 92. Liv. 30.1.10; cf. 19.1–5. 93. For M. Sabinus, see Liv. 30.27.7; yet it is just possible that Sp. Lucretius (pr. 205) was prorogued for a fourth year of imperium, into 202 (cf. Liv. 30.27.9). There was some movement on the part of the Boii at the beginning of 201, which the consul P. Aelius Paetus did a poor job of containing (Liv. 31.2.5–11). For an overview of these campaigns, and fighting in Gaul over the next decade, see A. H. McDonald, Antichthon 8 (1974) 44–53; B. D. Hoyos, Antichthon 10 (1976) 44–55. 94. Liv. 31.8.7; 10.5–7. On the authenticity of Furius’ campaign and request for a triumph in 200, which Münzer (RE s.v. Furius 86 cols. 362–363) dismissed as an annalistic doublet of the later Gallic campaigns of C. Cornelius Cethegus as cos. 197 and Furius himself as cos. 196, see MRR I 326 n. 1, and especially J. Briscoe, Commentary on Livy, Books XXXI–XXXIII (Oxford 1973) 82–84, 110–115, and 158–161. On the Senate meeting which discussed his request for a triumph, see 5.4.1 above. 95. Liv. 31.11.1–3, esp. 3 “ut . . . proficisceretur ipse ad coloniam liberandam obsidione.” 96. Liv. 31.21.1–22.3, esp. 22.3. 97. Liv. 31.9.5–10. For examples of such holding operations, see below (8.5.1) on “expeditionary” commands by praetors. 98. Liv. 31.47.4–7 with 5.4.1 above. 99. 31.48.1–49.3. 100. Liv. 31.48.3–4. 101. At 31.21, after 10.1–11.3. 102. Dio (18 F 57.81) states that when Furius had returned to Rome, some senators contended not only that he had no independent authority, but also “demanded an explanation from him why he had not done what was instructed.” Surely these “instructions” (ta; prostacqevnta) were not an order to avoid engaging the enemy until the consul’s arrival: if true, this issue would have come up in Livy’s debate, and might have prevented the praetor from gaining his triumph. Rather, Dio must be thinking of Cotta’s dismissal of Furius from Gaul and his order to the praetor to stay put in Etruria on garrison duty. 103. Liv. 31.20.3, discussed in 7.1.4. 104. 31.48.1.
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105. As it was, according to Livy (31.48.4–5). 106. Liv. 31.49.10–11. 107. Liv. 31.49.11–12. For this requirement, see also Liv. 39.29.5 (185) and J. S. Richardson, JRS 65 (1975) 61f. 108. It is not impossible that continuatio still may have been permitted at this time: see 7.2.4 with Additional Note II. 109. There is a good possibility that M.’ Curius Dentatus received an ovatio as praetor in 283 (3.7 above); also A. Atilius Calatinus had a triumph (for deeds performed while consul) as pro pr. in 257 (4.1.2 above); the only other known praetorian triumph before 200 is that of the pro pr. Q. Falto in 241 (4.1.3 above). 110. Liv. 31.29.1–32.5. 111. Cf. Liv. 33.37.10, with his absence from the Fasti triumph., which are complete for the relevant years. 112. Liv. 32.1.3–5. 113. Cf. MRR I 312 (esp. Liv. 29.37.17) on his tribunate of either 204 or 203. 114. Liv. 32.7.5–7; Zonar. 9.15.8. 115. Liv. 39.32.8, under the year 185. 116. Liv. 32.8.3; 26.4. 117. Liv. 32.26.1–3. 118. The consular arrangements for 174 are uncertain. 119. On Cn. Caepio, see Liv. 44.21.7; 45.12.9–12; cf. 1.6. 120. For his (defensive) role, see n. 17. 121. To their dissatisfaction, according to Liv. 38.42.8–13; cf. M. Bonnefond-Coudry, Le Sénat de la république romaine de la guerre d’Hannibal à Auguste (Rome 1989) 556–557. On their subsequent campaign, see A. Barigazzi, Prometheus 17 (1991) 57–64. 122. On Furius as a legatus, see Liv. 31.21.8; cf. perhaps ILLRP 221. For Furius’ colonizing activities, see Liv. 34.53.1–2; 35.40.5–6. 123. Liv. 39.3.1–3; D.S. 29.14. M. Furius Crassipes was evidently an ambitious man. He sought and won a second praetorship in 173 (Liv. 41.28.5), no doubt seeking to rehabilitate his reputation. He may even have thought he had a chance at the consulship: see T. C. Brennan, Athenaeum 67 (1989) 482f. 124. Liv. 39.45.5–7, esp. 7 for the Senate’s injunction. 125. Liv. 40.16.4–6; note that even he is censured for not following protocol! 126. Liv. 40.26.2–3; 36.13. 127. Liv. 40.44.3; 53.1–6, esp. 5–6 for the migrations. 128. As is apparent from Liv. 41.1–5. 129. For Cn. Hispallus’ election and provincia in 179, see Liv. 40.44.2 and 7. But the report that Cn. Cornelius Scipio and C. Valerius Laevinus (prr. 179) were prr. for Gaul in 177 is obviously erroneous (Liv. 41.8.3 with MRR I 399 n. 1). 130. See n. 17 and Additional Note IX. For Ti. Nero’s actual campaign, see A. Barigazzi, Prometheus 17 (1991) 68–69. 131. Nothing relevant is known of the previous careers of the two other praetors who are found to have received Gaul in this period, L. Iulius (pr. 183) and Q. Fabius Buteo (pr. 181). Cn. Cornelius Scipio Hispallus (only a possible commander for 179) was perhaps a legatus in Greece and Asia under the cos. L. Scipio in 190 (MRR III 72). 132. Liv. 31.7.11–12. Strabo (5.3.1 p. 228) regards the three peoples as related. Cf. also Cato ap. Fest. p. 166 L = HRR I2 F 126 (from the Origines?) “[tu]multu Macedoniae, Etruriam, Samnites, Lucanos, inter se natinari [i.e., ‘get busy’], atque factiones esse.” It would be useful to know to which year this referred: ca. 200 seems the only real possibility. 133. PBSR 32 (1964) 35.
332 Notes to Chapter Eight 134. See A. Passerini, Athenaeum 11 (1933) 10–28. 135. Namely, C. Livius Salinator (pr. 202), M. Valerius Falto (pr. 201), and Q. Minucius Rufus (pr. 200, pro pr. 199). The initial Roman program of repression of the Bruttii must have been completed in the year 201, since the pr. M. Valerius Falto is reported to have seen service in Campania as well (31.8.9). But it may be that the investigation of the temple of Proserpina at Locri in 200 (31.12.1–4) quickly expanded into a virtual “witchhunt” of the dissident element in this area of south Italy: the pr. 200 for the Bruttii, Q. Minucius Rufus, was prorogued into 199 “to complete the quaestiones regarding conspiracies (de coniurationibus) among the Bruttii” (32.1.7–8). 136. For a detailed discussion, see my dissertation, “The Praetorship” 273–277 (with notes at 609–610). Planning started perhaps as early as 197 for a ring of colonies on the coast of Lucania and Bruttium (on the motives, see D. J. Piper, LCM 12 [1987] 59–60). For the two commissions of IIIviri, see Liv. 34.53.1–2 (creation in late 194); cf. 35.9.7–8 and 40.5–6 with 5.4.6 above; also G. Negri, CISA 21 (1995) 156, pointing out the usefulness of imperium for establishing colonies in such areas. The commissions had finished their ostensible tasks by 193 and 192 respectively, which prompted J. Seibert (RSA 2 [1972] 69) to suppose that they did not use the full term of their imperium; but on this, see T. C. Brennan, AJPh 118 (1997) 144. R. A. Bauman (Historia 28 [1979] 401–403) attempts to use these extraordinary commissions to demonstrate that the Gracchan “IIIviri a(gris) i(udicandis) a(ssignandis)” also had imperium (not impossible, but there is no clear evidence). 137. Hann. 61.252–253. We know from Strabo (5.4.13 p. 251) that, like the Picentines in central Italy, the Lucanians and Bruttii were debarred from military service, and instead were made into couriers and letter carriers. For the Roman appropriations in south Italy during this period, see A. J. Toynbee, Hannibal’s Legacy: The Hannibalic War’s Effects on Roman Life (Oxford 1965) II 119–121; cf. also the remarks of N. Valenza Mele, AMMG (ser. 3) 1 (1992) 158 n. 14. For an argument that south Italy went into only temporary decline, see P. A. Brunt, Italian Manpower, 225 B.C.–A.D. 14 (Oxford 1971) 269–277, 353–375; also K. Lomas, Rome and the Western Greeks, 350 B.C.–A.D. 200 (London 1993) 86–92. No doubt some areas were more resilient than others (cf. the comments of W. M. Owens, BMCRev 6 [1995] 39–40). It is worth suggesting that Livy, in his report of the establishment of the colony of Valentia in 192, may record the actual pretext on which the IIIviri cum imperio operated in their confiscations (for confiscations they were): “The land had recently belonged to the Bruttii; they in turn had taken it from the Greeks” (35.40.6). This type of explanation may have been used elsewhere as a rationalization for setting up colonies: see Liv. 37.57.8 (on Bononia in 189, “ager captus de Gallis Bois fuerat; Galli Tuscos expulerant”) with 39.55.7 (Mutina and Parma in 183) and 41.13.5 (Luna in 177). A. Barigazzi (Prometheus 17 [1991] 55) collects these northern notices, but takes them at face value, with no comment on the pattern. 138. Liv. 35.20.13. 139. Liv. 35.23.5–6; 24.7. 140. Liv. 35.23.6–7; 24.6. 141. Liv. 37.2.7 (whence the quotation) and 4.1 with 36.2.7. 142. Liv. 37.4.1; also 37.48.5 = V. Ant. HRR I2 F 42. 143. However, it should be noted that Sicily was still on full alert, with two holders of praetorian imperium on the island through 190; the two legions and fleet remained until early 188 (Liv. 38.36.2). 144. Liv. 37.51.9. 145. Liv. 38.42.6; see MRR I 367 n. 1 on the name. 146. Liv. 37.2.1. 147. Liv. 37.57.3–4.
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148. See Liv. 38.56.8–9 with A. Luisi, CISA 8 (1982) 184. 149. Liv. 39.14.6; cf. 16.12. C. Venturini (SDHI 53 [1987] 74–109, esp. 75–79) offers some tortuous speculation on the meaning of the phrase “extra ordinem” in these passages, considering it to modify the quaestio itself, and then concluding that Livy uses it anachronistically. But there are ample parallels in Livy to show that the phrase simply means that the consuls received the quaestio by decree of the Senate, and not through sortition or comparatio of provinciae—in a word, “extra sortem.” This meaning is most clear from 6.30.3; outside the first decade (where there are a number of instances) note 24.9.5. In Livy’s narrative of 186, “extra ordinem” implies nothing about the nature of the quaestio itself. 150. Cic. Leg. 2.37. For some speculation on what troops were used, see R. A. Bauman, Historia 39 (1990) 343–345. 151. CIL I2 581 = ILLRP 511. 152. Liv. 39.17.4; 18.7–8. The most thorough exposition of this affair is J.-M. Pailler, Bacchanalia: La répression de 186 av. J.-C. à Rome et en Italie: Vestiges, images, tradition (Paris 1988), with extensive bibliography. 153. Liv. 39.8.3–9.1. See J.-M. Pailler, MEFRA 83 (1971) 384–403 and 95 (1983) 7–54 for an early second-century subterranean Bacchic sanctuary at Volsinii, which had been (deliberately) destroyed by fire. 154. Liv. 39.17.6. On these “capita coniurationis,” see the brief but perceptive remarks of J. R. Patterson, JRS 76 (1986) 311. 155. Pl. Leg. I 637b. 156. As often argued, e.g., by A. J. Toynbee, Hannibal’s Legacy II 387–402; J. A. North, PCPhS 205 (1979) 85–103. Cf. C. Gallini, Protesta e integrazione nella Roma antica (Bari 1970) 86–90, who argues that the Bacchanals primarily sought escapism; similarly F. Wulff Alonso, Romanos e itálicos 108–131. E. Gruen, Studies in Greek Culture and Roman Policy (Berkeley 1990) 34–78, argues against a sudden rise in Bacchic activity at this time but rather in favor of the notion that a confident Senate leadership scapegoated legitimate Dionysiac ritual to demonstrate its wide-ranging authority. 157. Liv. 39.29.8, 41.6–7. Toynbee’s “theocentric” view (Hannibal’s Legacy II 321: “in Apulia in 185–184 b.c. there were no military operations against slave shepherds under arms, there was only a witch-hunt of bacchanals on the run”) has been refuted at length by M. Capozza, Movimenti servili nel mondo romano in età repubblicana I (Rome 1966) 152–158; cf. also G. Forsythe, The Historian L. Calpurnius Piso Frugi and the Roman Annalistic Tradition (Lanham, Md. 1994) 392–394 (taking Livy’s evidence at face value). On the activities of Tempsanus (whose existence was doubted by Münzer, RE s.v. Postumius 62 cols. 944–955), see the reasonable discussion of J.-M. Pailler, Bacchanalia 298–300 and 310–314. 158. L. Pupius seems to have spent the bulk of his time in the south controlling the slave population in Apulia, since Livy implies he only started the real work of his quaestiones de Bacchanalibus as pro pr. See Liv. 39.45.5; 40.19.10 and especially 19.9–10 (181). It follows from this last passage that L. Pupius must have been prorogued into 182, although Livy does not bother to record this. 159. Liv. 40.18.3–4; 19.9–10. Duronius actually crossed to Illyricum as pro pr. in 180, and found a link between King Gentius and these raids (Liv. 40.42.1–5). 160. Bacchanalia 297 (cf. 299); Pailler, however, fails to develop this important observation about the special praetorian provinciae of these years. 161. P. Claudius Pulcher even may have been prorogued into 186 at Tarentum: see n. 158 above on L. Pupius, pr. 183, pro pr. 182. 162. “Obscure Greek”: Liv. 39.8.3–8. Statement attributed to L. Albinus: 39.16.2. Augustine (C.D. 18.13), who asserts that “post tam multos annos” the Senate finally prohibited the celebration of Bacchanalian rites in (merely) the city of Rome, is too rhetorical and
334 Notes to Chapter Eight inaccurate to use as evidence for developments in Italy. P. G. Walsh, G&R 43 (1996) 188–203, nicely highlights the implausibilities in Livy’s account of the outbreak of the Bacchanalian crisis. 163. I am using the modern term “expeditionary” merely out of convenience; Livy himself does not call the type of praetorian commands discussed in this section “expeditiones.” V. Rosenberger (Bella et expeditiones: Die antike Terminologie der Kriege Roms [Stuttgart 1992] 135 with n. 39) postulates that already in the Republic the term “expeditio” might imply a commander of the highest (i.e., consular) rank, but has little evidence to show in support. 164. Liv. 31.3.2. 165. See Liv. 31.3.1–3, 5.5 and 7; also Additional Note I for the means by which Laevinus received his imperium. The authenticity of his mission has often been doubted, but has been convincingly defended by J. H. Thiel (Studies on the History of Roman Sea-Power in Republican Times [Amsterdam 1946] 212, 219–223) and now V. M. Warrior (The Initiation of the Second Macedonian War [Stuttgart 1996] 52–60, with 53 n. 6 for previous literature); cf. also C. P. T. Naudé in D. M. Kriel (ed.), Pro Munere Grates: Studies Presented to H. L. Gonin (Pretoria 1971) 127–141, esp. 133–136. 166. Cf. Liv. 30.42.5. 167. See Liv. 35.24.7 with P. A. Brunt, Italian Manpower 657f. 168. Liv. 35.20.13 and 22.2; for Atilius’ navy, see 35.37.3 and 36.42.7. 169. M.’ Acilius: Liv. 36.14.1; cf. 22.8 (M. Baebius remained as the consul’s subordinate). C. Livius: 36.2.14 with 42.1–7. 170. Liv. 42.27.3–6 and 36.8–9 with 5.3.2 above. Sicinius seems to have been aided in his troop preparations by A. Atilius Serranus, pr. urb. 173, who was now (it appears) a legatus appointed by the Senate (Liv. 42.27.4). See V. M. Warrior, AJAH 6 (1981) 22; Atilius, however, cannot have been prorogued for this task—this appointment is said to have come in mid-year. 171. AJAH 6 (1981) 5. 172. See P. S. Derow, Phoenix 27 (1973) 345–356, with cogent criticism by V. M. Warrior, AJAH 6 (1981) 41 n. 4. 173. Liv. 42.27.5 and 8; cf. 29.1. 174. The precise Julian date depends on the number of intercalations taken in the years 170–168, in addition to the one attested for 169 (Liv. 43.11.13). On this, see V. M. Warrior, AJAH 6 (1981) 21 and 41 n. 4; also Latomus 50 (1990) 80–87. 175. See Liv. 36.8.6; 10.10–14; 13.1–9. In early 191, M. Baebius as pro pr. sent ahead Ap. Claudius Pulcher to raise the siege of Larissa (Liv. 36.10.10f; 13.1; App. Syr. 16.67–69). Claudius took two thousand Roman troops (Syr. 16.68), a standard number for such missions: see Liv. 24.40.8 (214) and 42.36.9 (171). Baebius must have been hesitant to commit a substantial part of his force to Thessaly when there was a danger of having to face Antiochus in the field. Only in March 191, when Antiochus (on appeal from the Aetolians) had moved to Acarnania, can the praetor have felt it safe to advance and start the process of undoing the king’s Thessalian gains. 176. Liv. 35.22.2; cf. 39.1 with J. H. Thiel, Studies 284 n. 370; also Liv. 36.20.7–8; App. Syr. 20.91. 177. In 191, after M. Baebius Tamphilus had been succeeded in his command by M.’ Acilius Glabrio, he remained under the consul (Liv. 36.22.8—no title given). Baebius’ status for the remainder of that year was probably akin to that of Ap. Claudius Pulcher, pr. Sicily 215, who was prorogued even after his supersession by the consul M. Claudius Marcellus in 214 (6.2.1 above). 178. See Liv. 31.27.1 and 8; 44.1; 46.2 with V. M. Warrior, Initiation of the Second Macedonian War 82, 95–96, for the chronology (very end of the year’s campaigning season).
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The consul brought two legions and an indeterminate number of additional ships (cf. Liv. 31.14.2 with J. H. Thiel, Studies 220f). For estimates of the total Roman fleet in the east during this war, see G. De Sanctis (Storia IV 1 37–38, 69), who guesses 50; Thiel (Studies 210f) suggests 75. 179. The consul based C. Centho at the Peiraeus with a raiding force of twenty ships and one thousand soldiers (Liv. 31.14.3; 22.5–24.1). L. Apustius Fullo remained in Illyria with the consul and was used on land (31.27.1–8). In 199, L. Apustius Fullo brought the consul’s fleet into the Aegean (evidently superseding C. Centho), and fought in conjunction with Attalus. At the approach of winter, the legatus sailed back to the Roman naval base at Corcyra (31.45.1–47.2). 180. Liv. 32.16.4. 181. See Liv. 32.3.2, 9.6–8 with F. W. Walbank, Philip V of Macedon (Cambridge 1940) 151, 319. 182. Namely, hatred for his father M. Livius (cos. 219, II 207) and foreign mother (Calavia Pacuvi f., a Capuan: RE s.v. Livius 29 col. 888; F. Münzer, Römische Adelsparteien und Adelsfamilien (Stuttgart 1920) 119. 183. J. H. Thiel, Studies 217; cf. J. Briscoe, Commentary on Livy, XXXI–XXXIII 125. 184. E.g., as the example of the praefecti classis of the Hannibalic War show, or of course, the IIviri navales, first attested for 310 (Liv. 9.30.3–4 with 38.2–3) and occasionally afterward (Mommsen, St.-R. II3 579–581). C. Ebel (Transalpine Gaul: The Emergence of a Roman Province [Leiden 1976] 60), commenting on the IIviri navales elected to clear Italian waters of pirates in 181 (MRR I 386), states, “Pompey’s similar command in 67 had a worthy precedent.” This is misleading; Mommsen (St.-R. II3 580) more accurately compares their status to tribuni militum. 185. Zonar. 9.15.2. Zonaras elsewhere uses the phrase strathgo;~ ejpi; tou` nautikou` to denote a holder of praetorian imperium (see 9.22.5 for C. Lucretius Gallus, pr. 171). 186. For the equivalence, see Zonar. 8.1.10; 9.6.9, 19.9; cf. D.C. 22 F 78.2. 187. This may explain why L. Apustius Fullo was leading operations against Antipatrea and nearby towns in 200 (Liv. 31.27.2–8). 188. See Additional Note I. This has already been suggested by J. H. Thiel (Studies 216f), although we need not subscribe to his idea (influenced by Mommsen) that M. Valerius Laevinus was a “Stellvertreter” for the consul P. Aelius Paetus. 189. Liv. 32.16.2–4. 190. Thus Mommsen, St.-R. II3 234f; W. Dittenberger ad SIG3 591 n. 5; MRR I 332 n. 6; B. Schleussner, Die Legaten der römischen Republik: Decem Legati und ständige Hilfsgesandte (Munich 1978) 112 n. 42. W. F. Jashemski (The Origins and History of the Proconsular and Propraetorian Imperium down to 27 B.C. [Chicago 1950] 28) considers a special grant of imperium and prorogation equally possible. (She is wrong, however, to take Livy literally to mean “Quinctius received his imperium from the Senate.”) 191. Flam. 3.3. 192. Liv. 32.1.6. 193. Cf. Liv. 33.27.1–5. 194. Liv. 32.28.11 “L. Quinctius Flamininus was ordered to command (praeesse) the same fleet he had commanded (praeerat).” This vague notice conceivably can denote either a prorogation of imperium or the renewal of a special senatorial appointment; Livy even calls him legatus (see 33.17.2 and 14—197; 34.29.9—195; 34.50.11—194 “legato et praefecto classis”). But Livy is unreliable in his use of this term. A. Atilius Serranus, pr. fleet 192, is apparently called legatus (in the same command) in 191 (36.20.7) (but see n. 247 below); also note Ti. Sempronius Longus (cos. 194), in 193 called a legatus of the consul L. Cornelius Merula in Gaul (35.5.1)—but still possessing imperium (35.8.6).
336 Notes to Chapter Eight 195. SIG3 591 (year 196/5) lines 17–18; the name is missing, but it is surely L. Flamininus. 196. Pace J. Briscoe, Commentary on Livy, XXXI–XXXIII 194. 197. SIG3 591 lines 68–69. 198. Liv. 34.50.11. 199. Liv. 32.16.1–17.3, 19.1–23.13 (198); 32.39–40 and 33.16–17 with CIL I2 613 (197); Liv. 34.29–30 (195). Full references for L. Flamininus’ activities in the east can be found in MRR I 332, 334, 342, and 345. 200. In 197, the socii navales sent to the east as reinforcements were handed to the consul, and not the pro pr. (Liv. 32.28.10). 201. In the first two of these years, the consuls and their legati set out from the city well into the campaigning season: cf. Liv. 32.28.5; Plu. Flam. 3.1–2. 202. J. H. Thiel (Studies 216, 278 and 279 n. 358) believed that all three of these men, as well as M. Valerius Laevinus as pro pr. 201 and L. Oppius Salinator, pro pr. 192 (see 8.2.1 above), received their praetorian commands through delegation of imperium. This is highly unlikely in the case of L. Flamininus (cf. what appears to be a prorogation notice at Liv. 32.28.11—n. 194 above), and impossible in the case of L. Oppius Salinator (his imperium was secured for him by a praetor urbanus, who was not competent to delegate—see Additional Note I). Thiel never considers the possibility of a lex de imperio. 203. See J. H. Thiel, Studies 218 for this explanation; E. Gruen’s view on the senatorial establishment’s indifference to “eastern experts” (The Hellenistic World and the Coming of Rome [Berkeley 1984] I 204–231) is not convincing for all periods—especially this one. 204. Liv. 35.23.6–7, discussed in 8.2.1 above. 205. Mommsen (St.-R. III 861 n. 2) notes that the terminus ante quem for this development is 123; see the Gracchan Lex repetundarum (CIL I2 583) lines 16 and 22. 206. See 8.3.3 above, with especially Liv. 31.48.8 (indirect speech). 207. For Valerius’ provincia, see Liv. 23.32.16–17. 208. Liv. 23.33.4–5 and 34.1–9. The second is no doubt authentic (App. Mac. 1.3; cf. F. W. Walbank, Commentary II 42). The first, however, is suspect, especially in light of Liv. 23.34.5. 209. Mommsen, St.-R. II3 234 n. 3. 210. Liv. 23.38.1–12. 211. Liv. 23.48.3. 212. Liv. 24.11.3; Apulia was allotted in the sortition as a separate praetorian provincia. 213. Liv. 24.20.9–16 with E. Badian, Studies in Greek and Roman History (Oxford 1964) 32 n. 91. 214. For Laevinus’ activities in Greece 214–211 and then the consular commands that followed in this theater in the years 210–205, see J. W. Rich, PCPhS 30 (1984) 126–180 (full on detail but quite speculative on chronology), and esp. Additional Note XII. 215. See MRR I 235. 216. Cf. Liv. 42.37.2 (172); 42.48.8 (170). A legatus L. Coelius seems to have “succeeded” Cn. Sicinius (pr. 172) in this region after his departure in 171 (Liv. 43.21.1–3 with G. De Sanctis, Storia dei Romani IV 1 (Turin 1923) 296; F. W. Walbank, Commentary III 340). 217. Liv. 43.9.4–7, esp. 5–6: at this time, C. Furius, a legatus stationed at Issa, was charged by the Senate with containing any moves by Gentius at sea. Although Centho held in 169 “the supreme command in Illyria and Epirus” (G. De Sanctis, Storia IV 1 307), he was more likely an overactive legatus (Plb. 28.13.7–8) than a privatus cum imperio (as Broughton, MRR I 425, implies). If Centho did hold imperium, he may have received it at the conclusion of his visit to Rome in late 170 (Liv. 43.23.1–6).
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218. Liv. 43.9.7 (170); Plb. 28.13.7–8 and Liv. 44.20.5 (169). For a narrative of Centho’s activities, see P. Cabanes, Les illyriens de Bardylis à Genthios (IVe–IIe siècles avant J.-C.) (Paris 1988) 318–322. 219. Liv. 44.17.10; 21.4. 220. Liv. 44.23.1–6; cf. Plb. 28.9.1–8, Liv. 43.23.8 and 44.26.2. For a summary of what is known of Anicius’ campaign, see N. G. L. Hammond and F. W. Walbank, A History of Macedonia III (Oxford 1988) 537f; P. Cabanes, Les illyriens 322–325; J. Wilkes, The Illyrians (Oxford 1992) 173–175; cf. A. Ziólkowski, PBSR 54 (1986) 69–71, on Anicius in the year 167. 221. Liv. 37.58.3. A. Degrassi (Inscr. Ital. XIII 1 80–81 with 553–554) plausibly assigns triumphi navales to L. Aemilius Regillus, Q. Fabius Labeo and Cn. Octavius, though only in the case of Octavius is it positively attested on the stone (the Fasti entries of the others are lacunose). 222. Liv. 45.35.5. L. Anicius Gallus’ (tactless) triumphal games as pro pr. 167 (Plb. 30.22.1–12; ignored by Livy) should have been held right after his triumph (pace F. W. Walbank, Commentary III 445) as is clear from Polybius’ mention of one of Anicius’ lictors ordering the esteemed Greek musicians to start a “flute battle” (30.22.6). As was customary, L. Anicius had been allowed by a plebiscite to retain his imperium within the city on the day of his triumph (Liv. 45.35.4). 223. See Liv. 38.47.5–6 (a speech given to Cn. Manlius Vulso, fighting for his own triumph in 187). 224. 40.52.5–7. 225. For a parallel, see the titulus Mummianus (CIL I2 626) with H. Versnel, Triumphus: An Inquiry into the Origin, Development and Meaning of the Roman Triumph (Leiden 1970) 176–178; 360–371. 226. Regillus triumphed on 1 February, two months before L. Cornelius Scipio (cos. 190) celebrated his triumph (Liv. 37.58.4, cf. 6, showing that the two did not return together; 59.2; Fasti triumph.). It is interesting that of the four praetorian commanders who celebrated a triumph from the east in this period, Regillus is the only one who never reached the consulship: Q. Fabius Labeo was cos. 183; Cn. Octavius was cos. 165; L. Anicius Gallus, cos. 160. Granted, the 180s were an exceptionally difficult time to reach the office (see R. Develin, Patterns in Office-Holding 366–49 B.C. [Brussels 1979] 79, showing that patricians clearly had an easier time of it than plebeians). But one would have thought that a patrician triumphator would have turned up in the consulship at some point (as we have seen, he is said by Livy to have been alive in 179). Not even legateships are attested. L. Aemilius Regillus’ behavior—triumphing two months before the consular commander—may have come off as overassertive. But more likely (as Professor Badian has suggested to me) it was his connection with L. Scipio (disgraced after 187) that cost him a further career. 227. See, e.g., the conference at Samos in 191 (Liv. 37.14.4–15.9 with Polybius F 154) and Eudamus’ persuasion of L. Aemilius Regillus to face Polyxenidas (Liv. 37.26.12–13). 228. J. H. Thiel, Studies, provides a full discussion of the Roman and allied fleet numbers in this period (258–277 for the Syrian war; 375–384 for the Third Macedonian War). 229. See Liv. 36.3.4–6 with E. Badian, Foreign Clientelae 292; cf. G. G. Mason, Historia 41 (1992) 79f. 230. See J. H. Thiel, Studies 288, for A. Atilius Serranus’ dispatch of a small land force in 192; also note Liv. 37.8.7 for the expedition sent against Thyatira in 191 by C. Livius Salinator; and 44.46.3 for the action of the praetor Cn. Octavius against Meliboea (after the battle of Pydna). 231. See J. H. Thiel, Studies 377; 385. 232. Sources and discussion in J. H. Thiel, Studies 294–313; cf. L. Pietilä-Castrén, Arctos 16 (1982) 131. For other examples of praetors taking military initiatives, see Thiel,
338 Notes to Chapter Eight Studies 363–366, on (perhaps) Q. Fabius Labeo’s Cretan expedition of 189; 389–391 on C. Lucretius’ operations in Boeotia in 171; and 392 on L. Hortensius’ Thracian expedition in 170. 233. In 188, the pro cos. Cn. Manlius wrote to the pro pr. Q. Fabius Labeo, and ordered him to destroy Antiochus’ ships at Patara (Plb. 21.44.3; Liv. 38.39.2). 234. Liv. 44.2.1–3 with Münzer, RE s.v. Marcius 61 for the prosopography. 235. See J. H. Thiel, Studies 407–410. On Octavius’ eastern command, see the detailed discussion of L. Pietilä-Castrén, Arctos 16 (1982) 133–138; also Arctos 18 (1984) 82–90 and Magnificentia publica (Helsinki 1987) 118–123 (esp. for the monuments he set up on his return to Rome). For honors in Thessaly to Athenagoras, Octavius’ physician, see L. and K. Hallof and C. Habicht, Chiron 28 (1998) 105 (giving the praetor the filiation Cn.f. and the title stratag[ou`]. 236. Haliartus: Liv. 42.56.3–5 and 63.3–12. Thisbe and Coroneia: RDGE 2 and 3, the latter with R. M. Errington, RFIC 102 (1974) 79–86; see also Plb. 27.5.3 and Liv. 42.46.7, 63.3; and cf. the similar case of L. Hortensius in 170 at Abdera (Liv. 43.4.8–13). Gallus’ use of his booty: I. Shatzman, Senatorial Wealth and Roman Politics (Brussels 1975) 254 no. 27. On the prejudicial S.C., see Liv. 43.4.11; for Lucretius’ condemnation and exile, 43.4.6; 7.5–8.10. 237. Liv. 42.48.5–10; 56.3–5. The quotation in the text is 56.3, with Loeb tranlation by E. T. Sage and A. C. Schlesinger. For the status of P. Cornelius Lentulus, see B. Schleussner, Legaten 104 n. 17. 238. Liv. 43.6.1–3. 239. Liv. 43.17.2–3; cf. Plb. 28.13.11, 16.2. 240. In general on the restrictions on magistrates which emerged around this time, see A. W. Lintott, Imperium Romanum: Politics and Administration (London 1993) 98–99. Lintott (ibid. 98 with 212 n. 4) suggests also a contemporary restriction on the purchase of land or slaves by magistrates abroad, but produces little evidence to support it. 241. Plb. 28.13.7–14. 242. See 4.1.3 for a probable precedent from the year 241. 243. Liv. 39.27.10 “cum in ea regione fuisset”—an undated, retrospective notice from 185. For his absence from Thrace in 189, cf. 37.60.7. 244. Liv. 45.17–18 and 29–32, esp. 31.1 and 32.7 for the “formula” imposed on Macedonia (on which cf. A. W. Lintott, G&R 28 [1981] 59–60 and 63). For the praetor’s role in this settlement, cf. 45.29.3. 245. Liv. 45.16.2. 246. Liv. 45.17–18, esp. 17.4 and (quite probably) AE 1993, 1405 for the consilium (which included a cos. 172) and Liv. 26.11–15 on the praetor’s “formula” for Illyricum, part of which was now to be tribute-paying: see J. Wilkes, Dalmatia (Cambridge, Mass. 1969) 26–28. Note that a consilium of five was also appointed to investigate the praetor C. Lucretius’ conduct at Thisbe (RDGE 2 lines 11–12); for the principle in this instance, cf. 6.1.3 above. 247. See 4.3.3. Discussing the status of superseded praetors awaiting their successors, J. H. Thiel (Studies 279f) had the unusual idea that as soon as a praetor’s term of office expired in his naval command (and he had not been formally prorogued), he became the “substitute and mandatary” of the new praetor sent to succeed him. His evidence for this is slim: an “Atilius” active in the east in 191 (= A. Atilius Serranus, pr. 192?) is once called by Livy a legatus (36.12.9). Here, as occasionally elsewhere (e.g., p. 279 on C. Livius Salinator “imperator”), Thiel can be faulted for placing too much emphasis on Livy’s terminology. If Livy means A. Atilius Serranus, this is probably a slip on his part (cf. the pr. 192 M. Baebius Tamphilus, termed pro pr. at Liv. 36.8.6 while in an exactly analagous position in 191). However, Livy is known to call a prorogued individual holding imperium a “legatus” (see n.
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194, on Ti. Sempronius Longus, cos. 194 and pro cos. 193). Alternately, it is just possible that there was an “Atilius legatus” in the east at this time, that is, a completely different person from the Atilius Serranus who was pr. 192: perhaps M. Atilius Serranus, brother of the pr. 192, IIIvir coloniis deducendis 190, and later pr. 174. Livy sometimes identifies a hitherto unintroduced character by nomen only: cf. Liv. 32.16.4, (C.) Livius (Salinator) as Roman naval commander in 199. Of course it was perfectly common for the brother of a commander to serve as his legatus: see the list in W. Kunkel, Staatsordnung und Staatspraxis der römischen Republik: Die Magistratur (Munich 1995) 300 n. 25. 248. Discontent on the part of one or both consuls during the long eastern command of T. and L. Flamininus can be detected at Liv. 32.28.3–9 (197), 33.25.4–7 (196) and 34.43.3–6 (194). See also 38.42.8–13, where the consuls of 187 argue against the prorogation of the consuls of 189 into a third year of an eastern command. Of course, it would have been absurd to give in to their request that they both be sent to the east to settle affairs there, especially when a Ligurian war was expected. 249. See 9.1.2. 250. Liv. 29.25.5–13. 251. A. E. Astin, Scipio Aemilianus (Oxford 1967) 54–55. For a basic discussion (with ample bibliography) on the sources which give the background to this war, see D. W. Baronowski, CPh 90 (1995) 16–31. 252. F. W. Walbank, Commentary III 656. 253. Full sources in MRR I 458, on which see A. E. Astin, Scipio Aemilianus 54–55. On L. Marcius Censorinus, Appian tells a particularly grim story (Pun. 97.459–99.468). Zonaras (9.27.1), whose account is less full than Appian’s, at least credits him with a minor success when starting home (perhaps as early as September or October—U. Hackl, Hermes 107 [1979] 123–126). On Polybius’ panegyric of Scipio’s military tribunate, see Astin, Scipio Aemilianus 56 and 61f; F. W. Walbank, Commentary III 655–663 passim. 254. Per. 51; cf. App. Pun. 110.519 h|ken . . . su;n aujtwj/ [sc. the cos. 148 Calpurnius] Leuvkio~ Magki`no~ ejpi; th;n nauarcivan. 255. RE s.v. Hostilius 20 col. 2512. 256. App. Pun. 113.535–114.543; Zonar. 9.29.3–6. Per. 51 reflects a more favorable tradition to Mancinus. For a general discussion of Scipio Aemilianus’ election to the consulship, and his role in ending the war, see A. E. Astin, Scipio Aemilianus 61–79; U. Hackl, Senat und Magistratur in Rom 19–33. 257. See Plin. Nat. 35.23 with A. E. Astin, Scipio Aemilianus 70–71. 258. Pace MRR I 462 n. 3. 259. Esp. App. Pun. 123.585–586 and Plin. Nat. 5.9 = Plb. 34.15.7, on which see A. E. Astin, Scipio Aemilianus 340–341. 260. See T. C. Brennan, Athenaeum 67 (1989) 467–487. 261. A. E. Astin, Scipio Aemilianus 341. Note also that, as cos. 147, P. Scipio Aemilianus (doubtless consciously) revived memories of his adoptive grandfather by making his principal legatus C. Laelius (the future cos. 140, and son of Africanus’ praefectus) (MRR I 464). 262. There he had to use Pergamene—not Roman—ships for his naval operations: Zonar. 9.28.5; cf. Strabo 13.4.2 p. 624. 263. Sources (all depending on Eusebius) in Münzer, RE s.v. Oppius 2 col. 727 (esp. Jer. Chr. p. 143 H “Oppius Gallos capit”); cf. V. Max. 7.8.9 for the senator Oppius Gallus. 264. Ill. 10.30. For the probable nomen of Ti. Pandusa, see T. P. Wiseman, New Men in the Roman Senate, 139 B.C.–A.D. 14 (Oxford 1971) 237 no. 224. 265. A. Degrassi, Inscr. Ital. XIII 1 82–83 with 559 and XIII 3 no. 90; Plin. Nat 3.129; Per. 59. On these passages, see M. G. Morgan, Philologus 117 (1973) 29–48; also, for Appian’s notice about the Segestani (based near Siscia), 10.5.1 below.
340 Notes to Chapter Eight 266. See the list in E. Badian, Historia 42 (1993) 205 n. 6, collecting six other examples between 189 and the Social War. 267. See J. Wilkes, Dalmatia 32–33. But as Wilkes points out, C. Cassius Longinus (cos. 171) thought he could get to Macedonia from Italy—though the Senate had its doubts (5.4.4 and 9.1.3). See Liv. 43.1.4–12, 5.1–10, esp. 1.8 and 5.3. Cassius must have planned to move southeast along the Savus, forcing his way through the land of the Scordisci, who controlled the only major route from Macedonia to Italy, but were also friendly to the Macedonian kingdom at this time: see Liv. 40.57.7 and Just. 32.3.5 with A. Mócsy, AAHung 14 (1966) 96 and Pannonia and Upper Moesia (London 1974) 10 with 30 and 202. But how Longinus thought he might descend into Macedonia from there is a mystery. 268. At least as early as G. Zippel, Die römische Herrschaft in Illyrien bis auf Augustus (Leipzig 1877) 137. 269. See M. G. Morgan, Athenaeum 49 (1971) 298–299 and Philologus 117 (1973) 32; MRR III 117. 270. References in MRR I 419. For an analogous situation in the emergency year 216, see Liv. 23.16.13 with T. C. Brennan, Athenaeum 67 (1989) 469–470. 271. Praetors for Sardinia were sometimes used in this way: see 6.2.2. On Tubulus’ quaestio, and that of M. Popillius Laenas (pr. ca. 142?) which heard a charge of parricidium, see 9.2.1. 272. Aq. 1.7.1–2. On the problem of unauthorized private water lines, see Cato ORF3 FF 99–105, esp. 104; cf. Ulpian Dig. 43.20.1.38–44; Fron. Aq. 2.103.2. Private use of public water evidently had to be formally announced to a praetor: CIL I2 825 = ILLRP 340 (probably of the second half of the second century) records one such report, made by one Q. Fulvius Q.f. to a P. Atilius L.f., pr. urb. Mommsen (Hermes 16 [1881] 495–498), suggested that this praetor may be the son of the L. Atilius who was legatus 168 (Liv. 45.5.2), but this (and the identity of the Q. Fulvius) must remain pure speculation. 273. The quotation is from F. Coarelli, PBSR 45 (1977) 17. 274. Fron. Aq. 1.7.4 “seeing that his praetorship (spatium praeturae) was insufficient for completing his task, it was extended for a second year (in annum alterum est prorogatum).” On Marcius, see also Epit. Oxyr. 54; Plin. Nat. 31.41 and 36.121; and cf. Plu. Cor. 1.1. In the two Pliny passages, the references to Q. Marcius completing his assignment “in praetura” (Nat. 31.41) and “intra praeturae suae tempus” (36.121) need not mean that he did it the space of one year, as has been supposed (e.g., M. G. Morgan, Philologus 122 [1978] 45–46, reflecting earlier views). For praetura in the extended sense of praetorship with promagistracy, see T. C. Brennan, Chiron 22 (1992) 113–114. 275. Philologus 122 (1978) 25–58, at 48. 276. See H. B. Evans, AJA 97 (1993) 452. 277. Fron. Aq. 1.7.5 with Epit. Oxyr. 54 on the year 140; pace Mommsen, St.-R. I3 637 n. 1 and Münzer, RE s.v. Marcius 90 col. 1582, the objection of the Xviri can have had nothing to do with Marcius’ prorogation per se, since the same question came up three years later, when Marcius was long out of office (M. Hainzmann, GB 6 [1977] 33). 278. Later in 143, the consul Ap. Claudius Pulcher was able to enter the city in triumph without having obtained the customary popular vote allowing him to retain his military auspices in the city (D.C. 22 F 74.2; Suet. Tib. 2.5 “iniussu populi”). For the possibility that he received an augural decree to do so (exploiting the precedent of Marcius?) see T. C. Brennan in E. Harris and R. Wallace (eds.), Transitions to Empire: Essays in Greco-Roman History, 360–146 B.C., in Honor of E. Badian (Norman, Okla. 1996) 318–320. 279. Oros. 5.9.4; cf. Obseq. 27b. On this incident, see E. Badian, Studies 37; cf. ANRW I 1 (1972) 685 n. 46; also MRR III 39 (but with the date “ca. 133”) and 194 (with correct date). 280. Nonmagistrates very rarely receive commands pro cos. in the period before Sulla: only M. Claudius Marcellus in early 215 (probably to be considered a privatus—see 8.3.1); P.
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Cornelius Scipio (Africanus) for Spain in 210, followed by the privati sent to Iberia, from 205 or 204 down to 198 (7.1.3–6); and P. Sempronius Tuditanus, pro cos. in Greece in 205 (Additional Note XII). 281. 34/35.2.19. 282. For the possibility of an administrative crunch at this time, note M. Cosconius, pr. in Macedonia ca. 135, who retained his command for at least three years (9.1.3 with 9.4.3). 283. Sources for these events of 125 can be found in MRR I 510, to which add Macr. 3.9.13; also Münzer, RE s.v. Opimius 4 cols. 673–674 (guessing that Opimius was pr. urb.). On Fabrateria Nova, see Vell. 1.15.4 with E. T. Salmon, Roman Colonization under the Republic (Ithaca, N.Y. 1970) 117 with 189 n. 212; D. Stockton, The Gracchi (Oxford 1979) 96–97. See esp. Cic. Planc. 70, Pis. 95 and Asc. p. 17 C for perceptions of the danger in 125, and V. Max. 2.8.4 for Opimius’ triumph request; the technical requirement of five thousand killed for a triumph is attested already for 143 (Oros. 5.4.7). For the extent of Opimius’ destruction of the town, see Rhet. Her. 4.37 (cf. 4.13 and 22) with R. E. A. Palmer, Athenaeum 78 [68] (1990) 10 (citing other relevant passages); F. Coarelli, Fregelle: La storia e gli scavi (Rome 1981) 22–24 (archaeological evidence). E. Badian provides a good general discussion of the Fregellae episode and its background in Foreign Clientelae 178–180 and DArch 4–5 (1970–1971) 389–391 with 420. F. Wulff Alonso (Romanos e itálicos 223–233) is unpersuasive in his attempt to show that there was no true rebellion. The argument of P. Conole (Antichthon 15 [1981] 129–140) that a pr. P. Claudius suppressed a simultaneous revolt of Ameria (cf. V. Max. 6.5.1) is quite far-fetched (see Appendix B n. 498). 284. MRR I 510 lists sources on the consuls of 125. On the attitude of the other Latin states toward Fregellae in the 170s (the last point we have information on the town before the revolt), see Cic. Brut. 170 with E. Badian, CR 5 (1955) 22–23. There is little to be said for D. J. Piper’s view (Latomus 47 [1988] 59–68) that by 125 the Fregellans were influential “quasi leaders of the Latins” (68 n. 23) and clientes of C. Gracchus and M. Fulvius Flaccus (67), whose destruction was a direct result of Roman factional politics. 285. Münzer rightly supposes a sharp divide already at this time between Opimius and M. Fulvius Flaccus (RE s.v. Opimius 4 col. 674, collecting relevant passages). Notes to Chapter 9 1. See SEG IX 7 (dated to March 155), esp. lines 17–18 with P. Romanelli, La Cirenaica romana (96 a.C.—642 d.C.) (Verbania 1943) 13–21; cf. Plb. 33.11.1–3 (summer 154), and also Cato ORF3 FF 177–181, a vigorous attack on L. Minucius Thermus for corruption as a legatus, connected (plausibly) by most scholars with the territorial struggles of 154 between the brothers Physcon and Philometor. On this dispute see A. E. Astin, Cato the Censor (Oxford 1978) 270f; E. Gruen, The Hellenistic World and the Coming of Rome (Berkeley 1984) II 702–708. 2. SEG IX 7 lines 5–6. 3. Hellenistic World II 705. 4. SEG IX 7 lines 17–18 toi`~ d∆ aujtoi`~ parakatativqemai ta; pravgmata | sunthrei`n. 5. For Philip’s death, Plb. 36.10.2–7; cf. 17.12–15 and Zonar. 9.28.2. For Andriscus’ imprisonment, see D.S. 32.15.1; Zonar. 9.28.2. F. W. Walbank, A Historical Commentary on Polybius III (Oxford 1979) 668f, provides a succinct summary of the sources and order of events of Andriscus’ revolt; see also U. Wilcken, RE s.v. Andriskos 4; G. De Sanctis, Storia dei Romani IV 3 (Florence 1964) 122f. 6. Zonar. 9.28.4; Per. 50. That Scipio had not been sent alone seems a safe assumption from the reference to legati in the latter passage. Surely it was not P. Cornelius Scipio Nasica
342 Notes to Chapter Nine Serapio who was sent (endorsed by MRR III 72): as a future cos. 138, he would be too junior to head a legation. 7. Zonar. 9.28.4. 8. He is termed “praetor” in Per. 50, Eutrop. 4.13, Flor. 1.30.4–5; at Oros. 4.22.9 he is “praetor in Macedonia” (all presumably from Livy); Zonar. 9.28.4 calls him strathgov~. 9. On the sources for the outbreak of the war (full of confusions and epitomizing omissions) see D. Baronowski, CPh 90 (1995) 17–25. 10. Two consuls had not set out together for an overseas war since 189, and even then they were to fight in two widely separated theaters (Aetolia and Asia). We must go back to the time of the First and Second Illyrian Wars to find a close parallel to the situation of 149 (see 8.6.1). On the role of private compromise in this decision, see A. E. Astin (Scipio Aemilianus [Oxford 1967] 54). On the poor performance of these consuls, see 8.6.1. 11. Epit. Oxyr. 50. 12. See G. De Sanctis, Storia IV 3 124. 13. Text in P. Foucart, RPh 23 (1899) 263; see also SEG III 414 (from Hyampolis, in Phocis). 14. STRATHGOS UPATOS (Paris 1918) 11–12. 15. Flor. 1.30.5, though rhetorical and inaccurate, should point up a real contrast between the imperium of the Metellus (termed “consul”) and his predecessor in this war, P. Iuventius Thalna (termed “praetor”). For Q. Metellus’ proper title of “praetor,” see Vell. 1.11.2. 16. Zonar. 9.28.5 su;n dunavmei pollh`/ ; cf. G. De Sanctis, Storia IV 3 124 n. 124. Metellus himself had some experience in the east as a junior officer in the Third Macedonian War (Liv. 44.45.3; 45.1.1–5). 17. L. Calpurnius Piso Caesoninus had been allotted the war with Carthage; his consular colleague Sp. Postumius Albinus Magnus evidently had a command in Gaul (CIL I2 624 = ILLRP 452, CIL I2 2197 = ILLRP 487a), but conceivably “Italia” or even “Ligures.” There may have been real trouble in this area at this time. It is difficult to tell, since the Fasti triumph. are not extant from 155 down to the 120s. 18. Paus. 7.13.1 and 15.1–16.1. 19. Thus E. Gruen, Hellenistic World II 435 n. 205; see further 9.1.3 below. 20. For a full discussion, see M. G. Morgan, Historia 18 (1969) 422–446. Morgan, arguing for 146, however holds that continuous military activity in Macedonia and Greece makes the organization of Macedonia in 148 or 147 unthinkable, and instead attributes it to L. Mummius (cos. 146). But for the possibility of Q. Metellus’ wholesale adoption of the settlement of L. Aemilius Paullus, see F. Papazoglou, ANRW II 7.1 (1979) 304–307. 21. Sources in MRR I 467. On the granting of triumphal agnomina by the Senate, cf. J. Linderski, Roman Questions: Selected Papers (Stuttgart 1995) 437–440 (all the examples he collects are consuls or consulares). In general on this man’s importance, see E. Badian, OCD3 s.v. Caecilius Metellus Macedonicus, Q. 269. But still it took him three tries to reach the consulship, finally achieved for 143; on this, see V. Max. 7.5.4 and Vir. ill. 61.3 with T. R. S. Broughton, Candidates Defeated in Roman Elections: Some Ancient Roman “AlsoRans” (Philadelphia 1991) 8–9; A. E. Astin, Scipio Aemilianus 100. On Metellus’ temple building (the first marble-faced one in Rome, from his Macedonian spoils), see especially M. G. Morgan, Hermes 99 (1971) 505; L. Pietilä-Castrén, Magnificentia publica (Helsinki 1987) 128–134. 22. Plb. 39.5.1 with F. W. Walbank, Commentary III 734. On the composition of the embassy, see MRR I 467–468 with E. Badian in J. Bibauw (ed.), Hommages à M. Renard I (Brussels 1969) 54–65; the most senior member securely attested is A. Postumius Albinus (cos. 151) (Cic. Att. 13.32.3). P. Veyne (Historia 35 [1986] 112–113) would add his younger
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brother, Sp. Postumius Albinus Magnus (cos. 148), identifying him with the “Magnus” of IG II/III2 3780 (from Athens, probably second century). Veyne’s suggestion is possible (cf. Badian in Bibauw (ed.), Hommages à M. Renard I 63 for the haphazard way Cicero learned of the elder Albinus), but by no means necessary. 23. A full discussion of this arrangement (most uncertain) cannot be given here. See in general S. Accame, Il dominio romano in Grecia dalla guerra acaica ad Augusto (Rome 1946) 2–7, 16–27 (still useful); J.-L. Ferrary, Philhéllenisme et impérialisme: Aspects idéologiques de la conquête romaine du monde hellénistique, de la seconde guerre de Macédoine à la guerre contre Mithridate (Rome 1988) 199–209. 24. For a good summary of the background to this decision, see A. H. McDonald in B. F. Harris (ed.), Auckland Classical Essays Presented to E. M. Blaiklock (Auckland 1970) 113–131, esp. 127–128. 25. Paus. 7.16.10 is plainly mistaken in this important detail. 26. Cim. 2.1. 27. Collected in E. Gruen, Hellenistic World II 434 n. 202, to which add the Macedonian praetor L. Iulius Caesar, termed [ajnquvpa]to~ Makedoniva~ (IG XII 8 232), probably ca. 70 (14.1.3, 14.2.3 below). 28. Hellenistic World II 434f, esp. 434 n. 202. 29. Note the Polla elogium (CIL I2 638 = ILLRP 454) lines 9–10 “praetor in Sicilia”; also the elogium (Inscr. Ital. XIII 3 75a) of C. Iulius Caesar, father of the dictator (and praetor ca. 99) “praetor [ . . . pro] cos. in Asia” (another proper provincia); also (e.g.) Liv. 22.33.7 (“praetor in Gallia”), 26.1.7, 29.13.6 (“pro pr.” or “praetor in Sicilia”), 33.42.5, 35.1.1, 36.36.1, 41.27.2 (“praetor in Hispania”); cf. 27.36.13 (a special praetorian commander “in Etruria”). See in addition 8 n. 3. 30. CIL I2 2977. For the road, see Strab. 7.7.4 p. 323 with N. G. L. Hammond, A History of Macedonia I (Oxford 1972) 19–58; also N. G. L. Hammond and M. B. Hatzopoulos, AJAH 7 (1982) 128–149 and 8 (1983) 48–53. 31. RDGE 4 lines 16–17 (the first name in a consilium). H. B. Mattingly convincingly challenged Holleaux’s dating of RDGE 4 (175–160), downdating the inscription to the 140s (NC7 9 [1969] 103–104). The presiding magistrate, P. Cornelius P.f. Blasio, is a monetalis of the period 169–158 (Crawford, RRC I 239–241, no. 189). Despite Mattingly’s arguments and the subsequent discovery of the via Egnatia milestone (which R. Sherk dates to “about 146–143”), Sherk has not budged from Holleaux’s date of 175–160 for RDGE 4 (Rome and the Greek East to the Death of Augustus [Cambridge 1984] 37 no. 36 n. 2). On the origins and later history of the gens Egnatia, see O. Wikander, ORom 18 (1990) 207–211, esp. 211 on the praetor. 32. See R. Sherk, RDGE 43 (esp. line 3 for the title ajnquvpato~ ÔRwmaivwn = pro cos.) with his Rome and the Greek East no. 50 for a translation (which I use in the text below); R. Kallet-Marx, CQ 45 (1995) 129–153 for some new readings and full commentary; J.-L. Ferrary, Philhéllenisme et impérialisme 187–199, esp. 189 n. 228 for the unedited letter of Q. Maximus to Dyme, for which we still await publication by C. B. Kritzas (his initial announcement can be seen in AD 28 [1973] 126). 33. Philhéllenisme et impérialisme 189 n. 228. R. Kallet-Marx, CQ 45 (1995) 141–143, opts for the date “144 or 143” (but at 143 n. 66 disallows the year 145 on spurious grounds). There is still no absolute certainty on the starting point of the Achaean era, though most scholars since W. B. Dinsmoor identify “Year 1” of the Achaean era with 145/144 (The Archons of Athens in the Hellenistic Age [Cambridge, Mass. 1931] 235–237). See, e.g., S. Accame, Il dominio romano in Grecia 11–14; T. Schwertfeger, Der Achaiische Bund von 146 bis 27 v. Chr. (Munich 1974) 58 n. 124. Others are noncommittal: R. Bernhardt, Imperium und Eleutheria (Hamburg 1971) 109 n. 110; E. Gruen, Hellenistic World II 527 with n. 1. M. G. Morgan
344 Notes to Chapter Nine (Historia 18 [1969] 430) puts forward the principle that Roman provincial eras were not attached to the mundane dates of actual administrative organization (on the nonimportance of which cf. also W. V. Harris, War and Imperialism in Republican Rome, 327–70 B.C. (Oxford 1979) 133–154); Morgan points out that the era of (Roman) Macedonia starts in 148/147, and that of Asia in 133/132. Polybius (39.5.1 and 6.1) shows that the decem legati had completed their work for Achaea by early spring 145, and that Mummius stayed on for a grand tour of southern Greece (i.e., in spring and summer). In line with Morgan’s hypothesis, that latter event might provide a suitable anchor for the starting date of the new era: W.B. Dinsmoor (Archons of Athens 236, 416) holds that the actual Achaean era was reckoned as starting from 21 July 145 (accepted by S. Accame, Il dominio romano in Grecia 13). 34. And an attested friend of Polybius: see Plb. 31.23.5; cf. R. Sherk, RDGE pp. 201–202, who comments on the excellent Greek style of RDGE 43. 35. RDGE 43 lines 16–27. 36. Liv. 23.41.7 (215), 39.41.7 (184) and 45.42.4–5 (167); cf. Liv. 32.26.17–18 (198) and perhaps Plb. 31.23.5 (the year 167, though the provincia of this praetor is not specified). 37. We probably do not have enough evidence to make even a vague approximation as to when the “first day of the ninth month” (RDGE 43 line 25–26 ejf∆ [w|]i th`i noumhnivai tou` ejn|[avtou mhnov]~) of the Achaeans fell at this time: A. E. Samuel (Greek and Roman Chronology [Munich 1972] 97–98) has precisely one synchronism to offer for the Achaean calendar (with the Delphian calendar in 170/169). If the calendar used in Dyme ca. 144 were anchored to the new era (see n. 33 above), assuming a starting date of 21 July, the “ninth month” would put us in March/April. In any event, the phrase in RDGE 43 is most unlikely to be a Roman date, for these were reproduced literally, at least in official documents in Greek (R. Sherk, RDGE p. 14). 38. See Per. 53 with Var. R. 2.4.1–2 and Eutrop. 4.15; also RRC I 468 no. 454, dated by Crawford to the year 47 (a coin of the moneyer A. Licinius Nerva, commemorating this victory). On this imperatorial acclamation, see R. Combès, Imperator: Recherches sur l’emploi et la signification du titre d’imperator dans la Rome républicaine (Paris 1966) 83. MRR (I 472 with 473 n. 2) places Nerva tentatively in 143, admitting also the possibility of a two-year command (i.e., 143 and 142). 39. See Eutrop. 4.16.1–2 (Metellus had fared poorly against Viriathus in 143, the actual year of his consulship—see 7.3.3 above); Obseq. 22. One does wonder where Licinius Nerva was when pseudo-Philip rose in revolt. Now, Frontinus (Str. 2.5.28) tells of a pro cos. P. Licinius who had his rearguard cut to pieces by some Illyrian Iapydes who had made a pretence of surrender. Could this be the same man as our praetor Licinius Nerva? For one thing, the enemy does not fit (see J. Wilkes, The Illyrians [Oxford 1992] 197–198; also N. Vulic, RE s.v. Iapodes cols. 724–727): there is no reason why a Macedonian praetor should be found this far northeast of his provincia. At this time there was no feasible overland link between Italy and Macedonia (see 8.6.1), so he will not have encountered the Iapydes on his way to his provincia, nor once he took up his command: the only way to get to the Iapydes from Macedonia was to sail up the Adriatic coast. Münzer (RE s.v. Licinius 27 col. 221) was right to consider the identity of this P. Licinius utterly uncertain. 40. Cf. Per. 54 with Epit. Oxyr. 54 for a terminus ante quem (Macedonians came to Rome in 140 with their accusations against the governor). Besides these Livian Periochae, the story of the praetor D. Silanus is told by Cic. Fin. 1.24 and (more fully) V. Max. 5.8.3. For the suggestion that Silanus was pr. 142, see M. G. Morgan, Historia 23 (1974) 195–198, with text below in this section; MRR I 477 makes him pr. 141. 41. For the chronology, Epit. Oxyr. 54 (placing the story of Silanus before the departure of the cos. Q. Servilius Caepio for his provincia of Hispania Ulterior) with M. G. Morgan, Historia 23 (1974) 196. The quotation which follows in the text is from Per. 54.
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42. On this man’s expertise in civil and pontifical law (emphasized by V. Max. 5.8.3, cf. Per. 54), see W. Kunkel, Herkunft und soziale Stellung der römischen Juristen2 (Graz 1967) no. 11. F. Wieacker (Römische Rechtsgeschichte: Einleitung, Quellenkunde, Frühzeit und Republik [Munich 1988] I 539 n. 56) notes that neither Cicero nor the epitomator of Pomponius mentions Manlius among the jurists; but that may be only because he did not write books. 43. Thus W. Eder, Das vorsullanische Repetundenverfahren (Munich 1969) 78. 44. On the reputation of the Manlii for stern private justice, see esp. Livy’s story of the “Manliana imperia” at 8.7.13–22, where T. Manlius Torquatus (cos. III 340) puts his son to death for (successfully) engaging the enemy against orders; also Cic. Fin. 1.23–24, pairing it with the case of Silanus in 140 (other sources in MRR I 135–136). We do not know whether the cos. 165 had any strong connections with Macedonia. For a slender link, see Plb. 31.17 with F. W. Walbank, Commentary III 485. In any case, the Macedonian delgation seems to have trusted him (V. Max. 5.8.3 “summo . . . cum . . . qui questum venerant, consensu”). 45. On the consilium domesticum, see the passages (with secondary literature) collected by A. Ruggiero in L. Amirante et al. (eds.), Sodalitas: Scritti in onore di A. Guarino IV (Naples 1984) 1393–1600, to which add P. D. Lackie, “The Commander’s Consilium in Republican Rome” (diss. Bryn Mawr 1997). 46. Cic. Fin. 1.24 “in conspectum suum venire vetuit”; similarly V. Max. 5.8.3. For a list of associated cases, see G. Forsythe, The Historian L. Calpurnius Piso Frugi and the Roman Annalistic Tradition (Lanham, Md. 1994) 299–300. 47. Epit. Oxyr. 54 wrongly imports a judicial meaning into its summary of the case of 140: “T. Manlius Torquatus . . . filium suu[m d]e Macedonia damn[avit]”; also Per. 54 “condemnavit.” See further W. Eder, Das vorsullanische Repetundenverfahren 76–79, rightly noting that the sentence Manlius pronounced had only a moral—not criminal—import. 48. Münzer, RE s.v. Manlius 83 col. 1210. 49. Epit. Oxyr. 54. 50. For the areas covered by this people, see the sources collected in M. Fluss, RE s.v. Scordisci col. 832, esp. Just. 32.3.8 (their center); Strab. 7.5.12 p. 318 (their expansion—quoted in text above); also A. Mócsy, Pannonia and Upper Moesia (London 1974) 10–12 with sources listed in notes on 365. On their participation in the Dalmatian War, see Obseq. 16 (the year 156) with M. G. Morgan, Historia 23 (1974) 194–195 (rightly noting that only a body of the Scordisci need have been involved). When the Romans are campaigning against the Scordisci in the period 135–100 (on which see immediately below in text), they are invariably found in the area (roughly) between the Axius to the Hebrus, i.e., the northeastern frontier of the Roman provincia, and western Thrace: see Mócsy, AAHung 14 (1966) 97–98. That is probably where we should imagine also the campaigns of the late 140s to have been fought; unfortunately, greater precision is impossible. 51. In the extant portions of the Epit. Oxyr. (which is fond of reporting Roman military defeats) “clades” is found only here; the Periocha however uses the term a bit more loosely (see, e.g., Per. 59 with 8.6.1 above on the initial defeat of C. Sempronius Tuditanus, cos. 129). V. Rosenberger, Bella et expeditiones: Die antike Terminologie der Kriege Roms (Stuttgart 1992) 145–149, discusses the general sense of “clades.” 52. Per. 56 “M. Cosconius praetor”; on the cos. Ser. Fulvius Flaccus, see Per. ibid.; App. Ill. 10.29. M. Cosconius remained in the provincia at least until the time of the revolt of Aristonicus in Asia, which began in 133. For his aid to several communities in Asia during that conflict, see IGRP IV 134 lines 9–10 (Cyzicus) pro;~ Ma`rkon Koskwvnio[n to;]|n ejm Makedoniva/ tovte strathgovn; IGRP IV 1537 = F. Schachermeyr and R. Merkelbach (eds.), Die Inschriften von Erythrai und Klazomenai I (Bonn 1972) no. 48 (Erythrae), preserving his filiation (C.f.); cf. perhaps also IGRP IV 952 (Chios?) with MRR III 77. A recently published
346 Notes to Chapter Nine inscription shows that Epirote troops went to help M. Perperna, cos. 130, against Aristonicus (R. Merkelbach, ZPE 87 [1991] 132). 53. See MRR I 533 (the year 114); and for a general documented narration, A. Mócsy, Pannonia and Upper Moesia 12–30. For Ti. Latinius Pandusa, listed in MRR I 504 as governor of Macedonia in 129 (but with doubts at MRR III 117), see 8.6.1 above. A P. Cornelius P.f. Lentulus is often held to have been a praetorian commander in Macedonia ca. 128, where he intervened in the quarrels of the Dionysiac artists. See SIG3 704 B and C, and 705 (= RDGE 15) col. II line 21 with MRR I 506 and 507 n. 1; also Appendix B n. 155. 54. Historia 23 (1974) 183–216; Morgan’s main conclusions are accepted by F. W. Walbank, Commentary III 748. 55. App. Ill. 14.41. 56. The following reconstruction is presented in tabular form in Appendix A.6. 57. M. Cosconius (pr. ca. 135) gets only the title praetor or strathgov~ in our sources (see n. 52), and P. Cornelius Lentulus, (only) possibly pr. for Macedonia ca. 128, receives no title in the epigraphic text from which he is known (see Appendix B n. 155). The next incumbent in the provincia, Sex. Pompeius (pr. by 121), is known only as strathgov~ (AE 1993, 1385, lines 2–3; SIG3 700 line 13). But Cn. Cornelius Sisenna, pr. ca. 119, is attested in SIG3 705 = RDGE 15 (an Athenian inscription containing an S.C., which in turn contains indirect speeches of two embassies from competing guilds of Dionysiac artists) as both stra
gov~ ejm Make[doniva/] (line 32; cf. 33, 34–35, 37—all from the reported speech of the ambassadors from the Isthmian guild) and strathgo;~ h] ajnquvpato~ (lines 59–60, from the actual S.C.). This latter (unique) form of the title was explained by M. Holleaux (Hermes 49 [1914] 581–589, also summarized in MRR I 528 n. 2) as “strathgo;~ [to the Greeks] and proconsul to the Romans”: i.e., it “corrects” the less accurate term the Isthmian embassy used. Yet the recent emergence of I. Knidos I 31, which denotes the commander for Macedonia by this exact phrase (at Kn. IV lines 25–27) as well as by some even more elaborate alternatives (14 n. 21), suggests that it was simply a traditional administrative formula, by now not to be taken literally; cf. CIL I2 587 (= RS I 14, 81 b.c.) line 32 “magistratus prove mag(istratu)” with RS I p. 300 commentary. Sisenna in fact is ajnquvpato~ at SIG3 704 I col. IV line 4. (For a much more far-reaching, and I think unacceptable, interpretation of strathgo;~ h] ajnquvpato~ in RDGE 15, see R. Kallet-Marx, Hegemony to Empire: The Development of the Roman Imperium in the East from 148 to 62 B.C. (Berkeley 1995) 344, wrongly importing the dating formula of SIG3 683 lines 54–55, 63–65 into the discussion.) Also note perhaps L. Iulius Caesar, pr. in Macedonia ca. 70 (14.1.3, 14.2.3 below), who is termed [s]trathgo;n [aj]nq[uvp]aton [ÔR]wmaivwn (IG XII 8 241); cf. IG XII 8 232 [ajnquvpa]to~ Makedoniva~. 58. E.g., M. Minucius Rufus (cos. 110), termed strathgo;~ ajnquvpato~ in IG IX 2 1135; (cf. ILLRP 337, a bilingual inscription in which imperator is translated by strathgo;~ ajnquvpato~). F. Papazoglou, ANRW II 7.1 (1979) 310–311, provides a useful chart (but without references, which must be supplied from MRR) of attested titles of Macedonian commanders from 148 down to the end of the Republic. 59. On commands in Greece and Liguria, see Additional Notes IX and XII. 60. The fullest report of the arrangements for the provincia is App. Pun. 135.639–641; Cic. Agr. 2.51 confirms the detail of the decem legati, unfortunately none of whom are known. Plin. Nat. 5.22 and 25 provides information on the (small) extent of the provincia; cf. G. H. Stevenson, Roman Provincial Administration (Oxford 1939) 24. On the problem of the territory encompassed by “Africa,” see also the Lex Agraria of 111 (CIL I2 585 = RS I 2) lines 43–91, with the commentary of A. W. Lintott, Judicial Reform and Land Reform in the Roman Republic (Cambridge 1992) 245–278 (esp. 258, 266–268). 61. For the organization of Africa as a provincia, see P. Romanelli, Storia delle province romane dell’Africa (Rome 1959) 43–46; also J. Desanges in C. Nicolet (ed.), Rome et la con-
Notes to Chapter Nine 347 quête du monde méditerranéen II (Paris 1978) 627–629; W. V. Harris, War and Imperialism 134 with n. 3; G. I. Luzzatto, Storia di Roma XVII 1: Roma e le provincie: Organizzazione, economia, società (Bologna 1985) 87–93. 62. Sal. Jug. 104.1. 63. See Oros. 5.11.1–5, with a vivid description of the background to the epidemic (an infestation of locusts); Aug. C.D. 3.31; cf. Per. 60. For the estimate of military strength, see P. A. Brunt, Italian Manpower, 225 B.C.–A.D. 14 (Oxford 1971) 451, and F. Hinard, AntAfr 27 (1991) 33–38, esp. 36 . 64. AntAfr 27 (1991) 38. 65. Cf. Plu. Sert. 9.1–5 with E. Badian, Studies 100 n. 79. 66. Roman Foreign Policy in the East (Norman, Okla. 1984) 92. 67. See Cic. Man. 34, with G. Rickman, The Corn Supply of Ancient Rome (Oxford 1980) 67–71. 68. On the lex Rubria of C. Gracchus (the year 123, soon repealed) and subsequent agrarian legislation affecting Africa, see A. W. Lintott, Judicial Reform 41–58, and 245–278 passim; cf. J.-M. Lassère, ANRW II 10.2 (1982) 400–410 (areas of Roman colonization in the Republic), esp. 402 (linking the losses sustained in the epidemic of 125 to the push for colonization a few years later). 69. The first clear evidence for Utica as “capital” of Africa is for 83 or 82 (Cic. Ver. 2.1.70 with Ps.-Asc. 241 St.; D.S. 38/39.11; V. Max. 9.10.2; cf. Oros. 5.20.3); cf. Sal. Jug. 104.1 (the praetorian commander L. Bellienus has to be summoned from Utica). On its status, see in general E. Badian, Foreign Clientelae (264–70 B.C.) (Oxford 1958) 139. 70. See the comments of G. M. Paul, A Historical Commentary on Sallust’s Bellum Jugurthinum (Liverpool 1984) 249f. 71. Sal. Jug. 25.5, 63.1, 86.4, 104.1; cf. 64.5. 72. On the name, see E. Badian, Roman Imperialism in the Late Republic2 (Oxford 1968) 22–23. 73. TG 14.1–3 (translation adapted from that of B. Perrin, Loeb edition 1921); see MRR I 438 (in particular, Plb. 30.30.7–8) on the elder Ti. Gracchus’ visit to Pergamum in 165. E. Gruen (Hellenistic World II 599 n. 112), who doubts the clientela connection between the Gracchi and the royal house of Pergamum, underestimates the beneficium Gracchus performed for Eumenes II by supporting him before the Senate against some serious allegations launched by Prusias II of Bithynia (Plb. 30.30.2–5 with 7–8; Per. 46). 74. ANRW I 1 (1972) 713–714. 75. See IGRP IV 289, the citizenship decree passed by the Pergamenes immediately after the death of Attalus, which was meant to reduce the possibility of widespread revolt by disaffected noncitizens living in their territory (cf. lines 8–9, which justifies the measure “because of the common safety”). Attalus had left Pergamum free (lines 5–6), and, we may presume, all the other cities in his kingdom (cf. Per. 59)—subject to Rome’s confirmation (IGRP IV 289 line 8). 76. See particularly the discussion of E. Badian, Roman Imperialism2 21–23. 77. See A. E. Astin, Scipio Aemilianus 166–167. 78. Cf., e.g., Cic. Man. 14; and, in general, E. Badian, Publicans and Sinners: Private Enterprise in the Service of the Roman Republic (1972, rev. ed. Ithaca, N.Y. 1983) 63–64. 79. Roughly speaking, early Roman Asia comprised the western regions Mysia, Troas, Ionia, and Lydia, with perhaps wealthy southern Phrygia; the Senate granted central Phrygia and all of Lycaonia to the kingdoms of Pontus and Cappadocia respectively. On the area encompassed by the new provincia, see A. N. Sherwin-White, Roman Foreign Policy 88–92 (the quotation is from 88). But ca. 116, central Phrygia was reclaimed and added to the Roman provincia, as was Lycaonia before the end of the century: see (for Greater Phrygia)
348 Notes to Chapter Nine RDGE 13 (ca. 119 or 116 b.c.), cf. App. Mith. 15.51, 57.231–232 (speeches); and (for Lycaonia) I. Knidos I 31 Kn. III lines 22–27, D. B lines 1–4, cf. D. A line 6. On these annexations, see the discussion in Sherwin-White, Roman Foreign Policy 96–97. For a basic general discussion, see G. I. Luzzatto, Storia di Roma XVII 1 103–126. 80. See RDGE 11 lines 6–7 [toi`~ eij~ | ∆A]sivan poreuomevnoi~ strathgoi`~; 16–17 (it is difficult to see what else this phrase might mean, nor has a better alternative been offered). For the presiding magistrate at the session at which this S.C. was passed, see H. B. Mattingly, LCM 10.8 (1985) 119, proposing the reading [POP]LIOS POPILLIOS GAIOU UIOS (i.e., the cos. 132) in lines 3 and 11. This reading has been confirmed by Dr. H. Müller (personal correspondence). Mattingly (LCM 10.8 [1985] 119 with AJPh 93 [1972] 412–423) must also be right that RDGE 12, the S.C. de agro Pergameno, belongs to 101, as D. Magie had once argued (Roman Rule in Asia Minor [Princeton 1950] II 1055 n. 23; see also F. De Martino, PP 38 [1983] 161–190, esp. 163–166), against the generally accepted date of 129. E. Badian (LCM 11.1 [1986] 15–16) provides further support for 101, most importantly, the presence of C. Coelius C.f. (surely the novus homo and future cos. 94) in the senatorial consilium appended to the document (RDGE 12 line 27). See further Additional Note XIII. Yet the earlier date still has its adherents: see L. Perelli, RFIC 118 (1990) 247–252 (ignoring prosopographical considerations). 81. See Cic. Phil. 11.18 with A. E. Astin, Scipio Aemilianus 234; cf. H. B. Mattingly, LCM 10.8 (1985) 117. The basic discussion of this case is J. Bleicken, Hermes 85 (1957) 446–468, esp. 454–455; cf. 467. Full references for the consuls of 131 can be found in MRR I 500. 82. See 4.1.3 and 5.3. Per. 47 reports (for ca. 159) “Cn. Tremellio praetori multa dicta est, quod cum M. Aemilio Lepido, pontifice maximo, iniuriose contenderat, sacrorumque quam magistratuum ius potentius fuit.” (Tremelius’ assertiveness is documented elsewhere: see Liv. 45.15.9 on his tribunate of 168.) J. Bleicken (Hermes 85 [1957] 446–468, esp. 453–454) rightly infers from the Periocha notice that the praetor must have appealed this fine before a popular assembly, upon which he lost his case. Perhaps Tremelius was a priest of some sort, and this was a heated dispute over a vacatio from his religious responsibilities (“sacrorum . . . ius”) while holding the praetorship (cf. each of the six analogous disputes Bleicken adduces in this article), with the pontifex maximus fining the magistrate. The gens Tremelia was of praetorian status already in the third century, and so this Tremelius was perfectly suitable for one of the priesthoods for which plebeians were eligible. But it is just as possible (as Professor Badian has suggested to me) that it was a dispute over “Ehrenrechte” (of what sort, we cannot tell) and that Lepidus had taken it to the People (or to the tribunes) who had ruled in his favor and imposed a fine. 83. Cf. Per. 59 with Liv. 28.38.12 (the year 206); in general, see 4 n. 36. In late 133 or early 132, Crassus’ predecessor as pontifex maximus, P. Cornelius Scipio Nasica Serapio (cos. 138), had died in Pergamum while on an eastern legatio (see MRR I 499 with D. Magie, Roman Rule II 1033 n. 1 for the chronology). Serapio’s presence on this embassy plainly must be connected with his desire to escape repercussions in Rome for his role in the death of Ti. Gracchus (sources in MRR I 494). But all the same Crassus in 131 must have cited him as precedent for his own ability to hold a command overseas. 84. Cicero at Phil. 11.18 is too brief for us to tell whether Scipio Aemilianus openly offered himself for the command, or, in keeping with family tradition (see R. Develin, Latomus 37 [1978] 484–488) “allowed” someone to offer him. It is probable that Aemilianus had won his second consulship of 134 after putting up a show of (calculated) modesty: cf. Per. 56 and V. Max. 8.15.4. 85. Surely it is the future cos. 128, and not the cos. 87, who is the Cn. Octavius Cn.f. strathgo;~ ÔRwmaivwn honored at Delos (I. Délos IV 1 1782): see E. Badian, Chiron 20 (1990)
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405f n. 22, plausibly suggesting that as praetor he commanded a fleet in the war in Asia (as his father did as pr. 168 in the Third Macedonian War); cf. also E. Badian, Studies in Greek and Roman History (Oxford 1964) 104 n. 168. It is very hard to find room for Cn. Octavius the cos. 87 in the Asian praetorian Fasti of the 90s (cf. 14.5.8), and in any case, the expected titulature for a commander of that provincia—to judge from the practice in other Delian dedications of that general era—would be strathgo;~ ajnquvpato~ ÔRwmaivwn or similar (see, e.g., I. Délos IV 1 1679, 1845, and 1854). On the “Octavius Cn.f.” of RDGE 1, see Appendix B n. 503. 86. Sources for the fighting in Asia, and its eventual settlement, can be found in MRR I 500, 502–503, 504, and 509; see also (for bibliography) T. Pekáry, ANRW II 7.2 (1980) 600–601. A basic exposition of the evidence on the war against Aristonicus can be found in Z. W. Rubinsohn, RIL 107 (1973) 546–570; yet Rubinsohn overestimates the breadth of support for the pretender in the urban centers of the Pergamene kingdom (Phocaea seems to have been the only major city to join his cause without duress—see Just. 37.1.1 with D. Magie, Roman Rule I 148–149, 155, and corresponding notes). On the nature of M.’ Aquillius’ arrangements for the new provincia, see Strab. 14.1.38 p. 646 with the discussions of Magie, Roman Rule I 154–158 and II 1042–1049; E. W. Gray in E. Akurgal (ed.), The Proceedings of the Xth International Congress of Classical Archaeology II (Ankara 1978) 969–977. 87. For M.’ Aquillius’ return, see Inscr. Ital. XIII 1 82–82, 559 for 126 (a triumph on 11 November ex A[si]a). For his subsequent prosecution de repetundis, see n. 89 below, also 9.2.2. For temporary administration of Asia by a legatus, see especially P. Rutilius Rufus, who served under Q. Mucius Scaevola in the 90s (14.5.4 below). 88. Hellenistic World II 607–608. Gruen’s views on Rome’s “nonprovincialization” policies are echoed throughout R. Kallet-Marx, Hegemony to Empire. 89. On Aquillius, see M. C. Alexander, Trials in the Late Roman Republic (Toronto 1990) no. 23. Prosecution of unknown commander: C. F. Eilers (ZPE 89 [1991] 167–178) uses I. Iasos 612 = IGRP IV 968 (Samian honors to Cn. Domitius Cn.f., son of a pavtrwn whom the Senate gave them, i.e., as a prosecuting patronus causae) to show that Cn. Domitius Ahenobarbus (cos. 122, but previously a legatus of M.’ Aquillius—see n. 153 below) represented the Samians in an extortion trial exactly around this time (but under the preGracchan system). Eiler’s conclusion (ZPE 89 [1991] 177) is rightly cautious: “[T]he defendant was possibly Aquillius, or one of his subordinates, or even one of his immediate successors [in Asia]” (but no later than a pr. 125). Of these options, the notion that Domitius prosecuted his former superior Aquillius seems the least likely, for reasons that Eilers spells out in the article. Additional repetundae trials: see 12.5.1 below on Q. Mucius Scaevola in 119 or early 118, and on the conjectural case of Valerius Messalla (pr. “ca. 120,” according to R. Syme). 90. Brut. 106, discussed in 10.4.1. 91. For the praetors, see Per. 47. For L. Lentulus, see V. Max. 6.9.10, who calls him “consularis,” and asserts he was tried under a “lex Caecilia repetundarum.” T. Mommsen (Römisches Strafrecht [Leipzig 1899] 708 n. 3) considered this as a mistake for “lege Calpurnia,” but see P. Willems, Le Sénat de la république romaine: Sa operation et ses attributions II (Louvain 1883) 277 n. 5, who argued that the lex Caecilia was a plebiscite setting up a special quaestio; Willems is followed by C. Busacca, Iura 19 (1968) 83–93 (but who tries to identify L. Lentulus with one of the praetores of the Livian Periocha!); cf. also R. A. Bauman, Lawyers in Roman Republican Politics: A Study of the Roman Jurists in Their Political Setting, 316–82 B.C. (Munich 1983) 205 and n. 369. If accepted, this trial demands a date after 156 and before 149. On both these trials, see A. W. Lintott, ZRG 98 (1981) 170–171.
350 Notes to Chapter Nine 92. Sources on Galba’s attempted prosecution can be found in M. C. Alexander, Trials no. 1. For a statement of the standard view (with previous bibliography) see G. Forsythe, AncW 17 (1988) 109–119. J. S. Richardson (JRS 77 [1987] 1–12) disputes any link between the Galba case and the Calpurnian law, arguing that the law set up a court primarily to aid Roman citizens (and perhaps individual peregrini), and that until 123, peregrine communities still needed to ask specially for recuperatores (as in the procedure of 171). On the implausibility of this view, see C. F. Eilers, ZPE 89 (1991) 170. Yet the fundamental connection between the Galba case and the Calpurnian law must be the general difficulty of setting up special quaestiones, not the protection of people like the Lusitani per se. 93. I fully accept the equation of the Lex Bembina with the lex Acilia of Cic. Ver. 1.51 and thus part of the legislative program of C. Gracchus: see E. Badian, AJPh 75 (1954) 374–384 with AJPh 96 (1975) 67–75; A. W. Lintott, Judicial Reform 166–169. For the date of the document, see 9.2.2 with n. 110. 94. CIL I2 583 (= RS I 1) line 12; cf. 14–15; 17–18. Indeed, Mommsen (St.-R. II3 224) viewed the lex Calpurnia as a significant milestone in the development of the peregrine praetorship, for he thought it allowed this praetor for the first time to treat cases “inter cives et peregrinos” (5.6.4 above). For a completely different interpretation, see J. S. Richardson, JRS 77 (1987) 10, who, in line with his own view of the peregrine praetorship (see 5.6.4) and the intent of the lex Calpurnia (n. 92 above), suggests that up to 123 it was the praetor urbanus who took charge of the court, and that the praetor inter peregrinos in Gracchus’ law was an innovation. 95. See CIL I2 583 line 23, with J. S. Richardson, JRS 77 (1987) 4f. 96. C. F. Eilers, ZPE 89 (1991) 167–178, esp. 170 with nn. 22 and 23, for the Senate designating these patroni. The existence of IGRP IV 968, the subject of Eiler’s article, should refute J. S. Richardson’s notion (JRS 77 [1987] 9) that when the Macedonians approached the Senate in 140 to complain of the ex-praetor D. Iunius Silanus Manlianus (see 9.1.3 above), it can only have been to secure a special quaestio, for “under the lex Calpurnia, there is no reason why the Senate should have been involved at all.” 97. See M. I. Henderson, JRS 41 (1951) 81f. 98. The Legal Procedure of Cicero’s Time (Oxford 1901) 419; for the process, see also A. W. Lintott, ZPE 22 (1976) 207–214; J. S. Richardson, JRS 77 (1987) 4–9. 99. That they were senators seems certain; cf. D.S. 34/35.25.1 and Vell. 2.32.3. For an argument (slender) that they were termed “iudices,” see D. Mantovani, Athenaeum 82 [72] (1994) 13–29. 100. MRR I 475. This court is considered a quaestio perpetua by W. Kunkel, Untersuchungen zur Entwicklung des römischen Kriminalverfahrens in vorsullanscher Zeit (Munich 1962) 45; also P. A. Brunt, The Fall of the Roman Republic (Oxford 1988) 219–222 (esp. 221) and 226–227. 101. For parallels, see 6.2.2 on the Sardinian praetors of 184, 180 and 167; also 7.2.6 on the praetor for “Hispania” in 171. 102. See V. Max. 8.1 amb. 1, with 6.2.2 above; on the M. Popillius M.f. Laenas who shows up at Cos, see MRR III 168f. 103. See C. Mackay, “The Judicial Legislation of C. Sempronius Gracchus” (diss. Harvard 1994) 86ff. Mackay notes that the Silva Sila murders of 138 were investigated by the consuls of the year (MRR I 483); also a trial for parricidium in 104 took place before a comitium of the People (Oros. 5.16.8 with E. Badian, Klio 66 [1984] 307–308). After Sulla, parricidium came under the court inter sicarios (10 n. 74). 104. See E. Gruen, Roman Politics and the Criminal Courts, 149–78 B.C. (Cambridge, Mass. 1968) 87 with n. 44; C. Mackay, “Judicial Legislation” 85f; cf. also A. H. M. Jones,
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The Criminal Courts of the Roman Republic and Principate (Oxford 1972) 54–55. For a very different reading of Cic. Brut. 106 than that offered here, see P. A. Brunt, The Fall of the Roman Republic and Related Essays (Oxford 1988) 216–227, who argues (mostly on grounds of probability) that permanent courts inter sicarios and de veneficiis as well as de peculatu and de ambitu were all in existence alongside the quaestio repetundarum previous to 123. 105. Fin. 2.54 (translation adapted from that of H. A. Rackham in the Loeb edition, 1914); cf. also N.D. 1.63 = Lucil. 1312 M; N.D. 3.74; Fin. 4.77 and 5.62. The date of Tubulus’ praetorship is certain (Att. 12.5b). Tubulus’ prosecution “ob rem iudicandam” (Fin. 2.54) shows that he himself carried out the iudicatio (D. Cloud, CAH IX2 521; C. Mackay, “Judicial Legislation” 180 with 246 n. 59). 106. Asc. p. 23 C. Here Asconius gives the impression that he is severely summarizing a well-known story. 107. Surely too much to believe, as E. Gruen, Roman Politics 29f points out. 108. A Historical Commentary on Asconius (Columbia, Mo. 1985) 140. 109. As G. Kelly has suggested to me, and argues in Athenaeum 89 [79] (2001). 110. A good summary of the (probable) principal developments in the form of the extortion trial (with basic bibliography) is offered by A. W. Lintott, Judicial Reform 16–33; also Imperium Romanum: Politics and Administration (London 1993) 99–107. The standard treatment is C. Venturini, Studi sul “crimen repetundarum” (Milan 1979). For a discussion of the difficulty in reconstituting the text of the epigraphic Lex repetundarum (CIL I2 583 = RS I 1), see especially M. H. Crawford in RS I pp. 39–63; note also Lintott’s postscript in his own edition, at Judicial Reform 287–288, and C. Mackay’s review of this book in BMCRev 6 (1995) 212–218. For the date of this inscription, see App. BC 1.22.91–94, esp. 91 (dating Gracchus’ definitive judiciary reform to his second tribunate in 122, to be preferred to Per. 60, which represents all his legislation as falling in 123), with P. Fraccaro, Opuscula II 19–51, esp. 20–21 and 30; see also G. Tibiletti and E. Badian ap. MRR III 2. The Gracchan Lex repetundarum envisages the possibility that trials might still be in progress under both the lex Calpurnia (i.e., of 149) and a law that “M. Iunius D.f. tr. pl. rogavit” (line 74; see also line 23). The latter should be very recent indeed; A. H. M. Jones (PCPhS 6 [1960] 39–42) has made a good case for assigning this lex Iunia to Gracchus’ first tribunate, the year 123. Not all will agree: see, e.g., P. A. Brunt, The Fall of the Roman Republic 202–203. 111. BC 1.22.92, with C. Cichorius, Römische Studien (Leipzig 1922) 77–79. 112. As appears from CIL I2 583 lines 47–48. 113. On these trials see C. Mackay, “Judicial Legislation” 183ff; cf. J. S. Richardson, JRS 77 (1987) 12, and (identifying Cotta with the cos. 144 and thus offering a much more expansive chronology) E. Gabba, Appiani Bellorum Civilium Liber Primus: Introduzione, testo critico e commento (Florence 1958) 73–75; see also n. 89 above on the Samians. The Gracchan Lex repetundarum itself recognized the possibility that trials under previous extortion laws might still be in progress: see n. 110 above. 114. C. Gracchus ORF3 FF 26–28. 115. E. Badian, Publicans and Sinners 64; see Roman Imperialism2 47f with notes. 116. Though it is sometimes doubted (e.g., D. Daube, JRS 41 [1951] 68f; D. Arriat, Le préteur pérégrin [Paris 1955] 35), it is clear that a new praetorian jurisdiction is being set up at this time (thus Mommsen, St.-R. I3 200 n. 1; Römisches Strafrecht 205 n. 4). See CIL I2 583 lines 4 “eius . . . pr(aetoris) quaestio esto”; 6 “quaestio eius pr(aetoris) esto”; 8, 12 “pr., quei ex h.l. quaeret”; 26, 28, 31, etc., where the “future” praetor is placed in contrast to the praetor inter peregrinos, who is to administer the court in its first year (line 12; cf. 89). The praetor is
352 Notes to Chapter Nine also called “iudex” in this document: see lines 19–26, 59–63, 79, with the commentary of RS I 1 p. 100. 117. Inscr. Ital. XIII 3 70b; see Cic. Ver. 2.2.122 for the date of C. Pulcher’s praetorship. The titulature of the praetor in charge of the repetundae court is discussed in 10 n. 61. 118. I rely on C. Mackay, “Judicial Legislation” 210–212, for this observation, and the discussion of the technical content of the law below; see also A. N. Sherwin White, JRS 72 (1982) 23–28, and A. W. Lintott, Judicial Reform 19–24, for descriptions of the praetor’s duties and responsibilities. 119. Cf. CIL I2 583 line 75 (measures to prevent collusion of defendant and prosecutor). 120. Ibid. lines 9–12 (patroni); lines 30–35 (supervision of witnesses and evidence); line 57 (confiscation of the convicted’s property in the full procedure, before 1 September); lines 7–8 (simpler procedure after 1 September); lines 58–69 (awarding of damages). 121. Ibid. lines 12–19 (selection and publication of the album). 122. Ibid. This was an improvement, from the praetor’s perspective, over the short-lived lex Iunia of 123, in which the tribune C. Gracchus himself dictated what individuals (a mixture of senators and equites) were to be placed on the album of iudices: see Plu. CG 6.1 with C. Mackay, “Judicial Legislation” 190f. 123. CIL I2 583 lines 53–56, cf. 57–60. 124. C. Mackay, “Judicial Legislation” 55ff, 77ff, 188ff, refuting the view of W. Kunkel, Untersuchungen 79ff. Kunkel’s implausible view that the decision of a consilium had always been legally binding quickly drew criticism from P. A. Brunt, RHD 32 (1964) 446–447, and P. D. A. Garnsey, JRS 56 (1966) 177–180 (the latter conclusively). Mackay (“Judicial Legislation” 190) points out that the novelty of Gracchus’ procedure explains precisely why, in the Lex Acilia lines 49–56, there is a need for explicit description of how the magistrate was to be bound by a consilium of equestrian iudices. 125. Cf. C. Mackay, “Judicial Legislation” 238. 126. Cic. Ver. 1.21, 26, 30–31. 127. Pace A. H. M. Jones, Criminal Courts 58f. 128. On all this, see T. C. Brennan, Chiron 22 (1992) 138 n. 104. 129. See Vell. 2.16.3, which provides (the only) evidence for six praetors in the 80s, before the reforms of Sulla in 81. 130. On the admission of quaestorii to the Senate, see T. C. Brennan, Athenaeum 67 (1989) 480 n. 65. For the increase in quaestors ca. 267, see 4.2 with n. 75; the Lex Cornelia in question is CIL I2 587. 131. Gnomon 51 (1979) 792–794. 132. St.-R. II3 199–200 and 212 (discussed in 1.5.1). 133. See 8.6.1–2. On the arithmetic of the post-146 praetorian sortition, see in general T. C. Brennan, Chiron 22 (1992) 137–144, esp. 139 nn. 105 and 106. 134. Sources in MRR I 514. For an examination of the subsequent operation of this law, see N. J. Woodall, “A Study of the Lex Sempronia de Provinciis Consularibus with Reference to the Roman Constitution and Roman Politics from 123 to 48 b.c.” (diss. State University of New York at Albany, 1972). 135. Cic. Dom. 24. 136. See 6.2.2 and 7.2.6 with 9.4.3. 137. Liv. 36.2.6 (191) and 37.50.8 (189). In the latter of these years, 189, the plan was modified (not abandoned) on account of the unforeseen availability of an extra praetor in the city, the flamen Q. Fabius Pictor. See 5.3 above.
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138. After the death of the urban praetor C. Decimius Flavus (Liv. 39.39.1). See 5.1 with Additional Note IV. 139. 5.6.2 above. But see also 9.1.3 on the pr. per. of (apparently) 144. 140. CIL I2 583 lines 12 and 89. 141. C. Piso, pr. urb. 211 and pro pr. in Etruria from 210 into early 208; C. Tubulus, pr. urb. 209 and the successor of C. Piso in Etruria as pro pr. 208 (Tubulus later was prorogued pro pr. at Capua from 207 down through at least 204, and perhaps 203); M. Ralla, pr. urb. 204 and pro pr. 203 in charge of a fleet; C. Plautus, pr. urb. 200 and pro pr. 199 to assign land to veterans; and L. Flamininus, pr. urb. 199 and pro pr. starting in 198 in Greece. 142. Liv. 30.40.5; 31.8.9. See 5.3.2 and 6.1.4 above. 143. See T. C. Brennan, Chiron 22 (1992) 140, and text below. 144. M. Laevinus, pr. 215 and pro pr. in the east through 211 (five years); Q. Scaevola, pr. 215 and pro pr. in Sardinia through 212 (four); T. Crassus, pr. 214 and pro pr. in command of the Sicilian fleet through 211 (four); M. Silanus, pro pr. in Spain (a special command) with P. Scipio 210 through 207 (four); C. Tubulus, pr. 209 and pro pr. at Capua through 204 (six); L. Lentulus and L. Acidinus, commanders with a special grant of imperium in Spain, 206 through 201 (six); Sp. Lucretius, pr. 205 and pro pr. in Gaul perhaps through 202 (four); Cn. Octavius, pr. 205 and pro pr. perhaps through 201 (four or five); and T. Flamininus, pro pr. at Tarentum (a special command) from 206 or 205 down to perhaps 202 (four years minimum). The command of L. Flamininus (pr. 199), who was prorogued with his brother (cos. 198) in Greece 198–194 (six continuous years of imperium), is clearly exceptional, and resulted from the Senate’s decision to keep T. Flamininus in the east, and not from the praetor’s own individual merits (compare M. Silanus in Spain with Scipio 210–207). 145. C. Varro, cos. 216 and pro cos. in Picenum through 213 (four years); P. Galba Maximus, cos. 211, and pro cos. through 206 in the east (six); P. Scipio Africanus, pro cos. 210 through 207 in Spain (four) and cos. 205, then prorogued through 201 in Africa (five); T. Flamininus, cos. 198 and pro cos. through 194 in Greece (five). 146. See MRR I for the praetors for Hispania Ulterior 193 (originally planned to be relieved in 192—Liv. 35.20.8); Sicily 192; Ulterior, Sicily, and Bruttium 191; Etruria 190 (prorogued, but then transferred to Spain to serve as a substitute for the praetor for Ulterior, who died on the way to his provincia in 189); Hispania Citerior and Ulterior 188; Tarentum 185; Citerior and Ulterior 184; Citerior and Ulterior 182; Gaul 181; Apulia and Histria (one command) 181; Citerior and Ulterior 180 (prorogued under the Baebian law); Sardinia 175 (but this may be “automatic” prorogation); Citerior 174 (his successor, sent out in 173, died en route to the provincia); Hispania (one provincia) 171; Sardinia 169 (it was allotted anew in 167); and the fleet 168 (prorogued to help L. Aemilius Paullus with his settlement). 147. L. Oppius Salinator, pr. 191 Sardinia, was to be relieved in 189, but his successor, a flamen, was not allowed to set out for this provincia. M. Tuccius, pr. 190, was prorogued in his provincia of Apulia through 188, doubtless to control Bacchic cult activity. T. Aebutius Parrus (pr. Sardinia 178, and retained as adiutor to the consul Ti. Gracchus in 177), M. Titinius Curvus and T. Fonteius Capito (prr. Hispania Citerior and Ulterior 178, and prorogued into 177 under the Baebian law) were all held up in their provinciae for a third year when their three successors (prr. 176) excused themselves from their provincial duties. 148. The three-year command of Q. Minucius Thermus, cos. 193 and pro cos. in Liguria into 190, is an isolated example—that is, if we leave out the exceptional five-year tenure of T. Quinctius Flamininus (cos. 198) in Greece. There are a handful of consular commands of two years’ duration: M. Nobilior and Cn. Vulso, coss. 189 and pro coss. in Asia through 188 (they triumphed on 23 December 188 and 5 March 187 respectively); M. Marcellus, cos. 183 and pro cos. in Gaul into early 181; and Ti. Gracchus, cos. 177 and pro cos. in Sardinia into
354 Notes to Chapter Nine 175. Consular and praetorian commands alike thus were both directed by the same conservative senatorial policy in this period. 149. C. Flaminius (pr. 193), who no doubt expected to be relieved in Hispania Citerior after one year (Liv. 35.20.8) but was stranded in his provincia on account of the Senate’s need to declare special praetorian commands in 192–190 for the war with Antiochus III and (later) because of dissident activity in Italy. 150. JRS 71 (1981) 6. 151. Of the Macedonian praetors of the 140s, Q. Fabius Maximus Servilianus probably had a command of two years (pr. 145 and prorogued into 144); Licinius Nerva spent one or two years in the provincia (depending on whether he was pr. 143 or 142); but D. Iunius Silanus Manlianus (pr. 141) certainly spent only one. On these men, and M. Cosconius, see 9.1.3. 152. Eutrop. 4.20. 153. I. Iasos 612 = IGRP IV 968, on which see M. Holleaux, Études d’épigraphie et d’histoire grècques II (Paris 1938) 179–186; E. W. Gray in Proceedings of the Xth International Congress of Classical Archaeology II 969; C. F. Eilers, ZPE 89 (1991) 174–175. Domitius’ delegation is reported in Fragment A lines 13–18. See also n. 89 above.
The Praetorship in the Roman Republic Volume II
T. COREY BRENNAN
3 2000
10
General Developments in the Praetorship, 122–82
This chapter and the next attempt to trace further additions to the Roman administrative system in the period after C. Gracchus’ consequential reform of 122 B.C. that introduced a provincia repetundarum. Following the structure of chapter 9, in chapters 10 and 11 (the latter covering the years 81–50) discussion of the annexation of new territorial provinciae precedes permanent developments in the city. Then, in each of these two chapters comes an examination of special assignments in the spheres militiae and domi. Chapter 12 examines further select aspects of the city provinciae, while chapters 13–15 round off coverage of the various territorial provinces down to the year 50 b.c. At the end of chapter 15, I have summed up the principal ways in which the Senate staffed the various provinciae in the period 122–50 B.C. This is a sequel to the survey at 9.4.1–4 that treats this same question for the period down to 122 B.C. Commands in the permanent territorial provinciae discussed in chapters 10–11 and 13–15 are set out in tabular form in Appendices A.5, A.6, and A.7.
10.1 Roman Cilicia: Formation and Early Commands The annexation of Cilicia as a Roman provincia, self-contained as an administrative unit, has its origins in a special command of the late second century. A praetor of 102, M. Antonius, received a commission against the maritime pirates in that region, with the rank of pro consule from the start (Cicero is explicit on that point).1 We are well informed on the details of Antonius’ late winter transit from Greece to Cilicia, how he crossed first to Pamphylia and, when the weather permitted, had a legatus pro praetore bring the bulk of the fleet behind him.2 It is a useful episode to know about, for it is the first ironclad instance we have of a praetorian commander personally delegating his (enhanced) imperium to a subordinate (see 15.3.4). Antonius evidently then managed to clear the Cilician waters of pirates, but for that we have only a few bald statements by epitomators.3 His exploits earned him a triumph in later 100,4 and the consulship for 99. 357
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Soon after Antonius’ military success, the Senate decided to set up a new praetorian provincia, “Cilicia,” specifically to combat piracy. The institution of this new province is announced on an epigraphic document from Cnidus—a substantial fragment, published in 1974 and re-edited in 1992, of a previously known law. The date of this “Law on Praetorian Provinces” (Lex de provinciis praetoriis) is (probably) late 101. In the Cnidus inscription (as we have it), a consul of the following year is instructed to write a general letter to various peoples and states announcing that Cilicia has been made a “praetorian province” (ejparceiva strathgikhv), expressly so that Romans and Rome’s friends “might be able to sail the sea in safety.” Even after the publication of this document, some have doubted whether Cilicia was in fact organized at this time.5 Though this is the first instance of the adjective strathgikhv in a Roman document, later usage shows that the phrase we find here must indeed mean “provincia praetoria.”6 In other words, the Romans wanted to announce that Cilicia would have the same form of government as Asia—which, indeed, with the exception of Q. Mucius Scaevola in 94 (14.5.4), was a “praetorian province” down to the war with Mithridates, and then, after its “restoration” for 68 (14.6.5) down to the end of our period. Indeed, the broad outlines of praetorian fasti for Cilicia can be reconstructed for the 90s and 80s, which points toward a properly organized and administered praetorian provincia dating from the time of the Cnidus law. G. V. Sumner rightly noted that “the first praetor of Cilicia under the terms of our law would most likely be a praetor of 100 going out in that year or as promagistrate in 99.”7 However, the first named commander for the Roman province (probably the second or third regular “governor” in Cilicia) is L. Cornelius Sulla, pr. urb. 97, who received the provincia as a promagistrate—almost certainly pro consule, like governors for Macedonia and Asia8—in 96. Elsewhere, I have suggested for Sulla the possibility of an extended command in Cilicia (with duties ex S.C. in Cappadocia) spanning the years 96 into 93 or even through 93 into early 92.9 This long term in the east, I have argued, accounts at least in part for Sulla’s delay in reaching the consulship (only for 88). The precise length of Sulla’s command depends on whether L. Gellius (pr. per. 94) proceeded “pro consule ex praetura”10 to Cicilia or Asia for 93 (14.5.5). Even if we place Gellius in Cilicia, Sulla will have had a full three years in the provincia. A praetor Q. Oppius is attested in the provincia starting in 89. He was a supporting commander11 in the disastrous campaign of that year which saw the legatus M.’ Aquillius defeated in Cappadocia (14.5.9). In early 88, Oppius—who certainly had the title “pro consule”—found himself hemmed in at Laodiceia in Phrygia.12 The town eventually surrendered Oppius to Mithridates, who ostentatiously paraded the praetor as his prisoner until Sulla secured his release in 85.13 Afterward, Oppius still styled himself as a praetor with enhanced imperium.14 Perhaps it was on Sulla’s encouragement, as Badian15 has suggested; or he may have been entitled to it in any case. But I should think that the bronze coin issue Q. OPPIVS PR., which—if M. Crawford is correct—borrows from the iconography of the first-century coinage of Laodiceia, dates from the early part of Oppius’ command; it is hard to see why Oppius would want to commemorate the town once it had betrayed him. Badian, however, postulates that the types on Oppius’ coins
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strongly show Sullan influence; if so, the issue obviously belongs to the time after his release from captivity.16 One individual case remains to be discussed, which might shed light on Sulla’s arrangement for Cilicia in the latter half of the 80s. An L. Lentulus praetor presided (apparently) over a panel of jurors (“iudices”) in or after the praetorship of Q. Metellus Pius,17 that is, 89 or (more likely) 88 (10.5.5). He is likely to be identical with the pro consule L. Cornelius L.f. Lentulus of an inscription that lists a Rhodian’s embassies to Sulla and various known members of Sulla’s staff in the east.18 Broughton, citing these sources, suggests the Sullan L. Cornelius Lentulus was “proconsul . . . probably in Asia.”19 But it is hard to see when he could have held that rank there. We shall see (14.5.9) that Sulla left the provincia to L. Licinius Murena, and even when Murena unexpectedly went triumph hunting in Pontus, it is the pro quaestore L. Lucullus who is found holding Asia. It seems to make the most sense to regard L. Cornelius Lentulus as a praetor of 88 who received the provincia of Cilicia ex praetura as the intended successor of Q. Oppius, only taking up the assignment in 85 or later, perhaps after helping Sulla with his arrangements for Asia. If so, this Lentulus will have had to remain there for quite a long time, perhaps even down until the arrival of Cn. Cornelius Dolabella (pr. 81) for the year 80 (14.6.1). In brief, given the general quality of our sources for the early first century, the fact that we can posit three or four praetorian commanders (counting the putative praetor of the Cnidus law) in a distant eastern territory in the years 100–89 suggests a policy of regular succession, and an annual vote on what to do, and thus a regular praetorian provincia.20 This reconstruction is all the more compelling if L. Cornelius Lentulus indeed received Cilicia as pro consule (like Oppius) in the praetorian sortition for 87.
10.2 The Gauls in the Period before Sulla 10.2.1 Consular Commands in Gallia Cisalpina down through 95 We have seen that after 198, the Senate tried its hardest to keep praetorian commanders out of Cisapline Gaul and Liguria (8.3.5). In the last three quarters of the second century there is just one exception to this policy, the “Oppius” who fought against Gauls as praetor or pro praetore in 146 (8.6.1). The rest of the individuals known to be active in Gallia Cisalpina (i.e., as a special military provincia) in these years are consular in rank. We have two or three names, clustered together in the first half of the teens. Q. Marcius Rex (cos. 118) triumphed over the Ligurian Stoeni—a “people situated at the base of the Alps”—on 3 December 117, so after a command of almost two years. An “L. Caicilius Q.f. pro cos.” set a boundary by senatus consultum between the territory of Patavium and Ateste. The filiation allows either an identification with the cos. 142 L. Caecilius Calvus or the cos. 117 L. Caecilius Metellus Diadematus. Since Q. Marcius Rex was demonstrably in Cisalpina for most of 117, here L. Calvus—and thus a date of (probably) 141—seems marginally the more reasonable choice. Our notices of military activity in
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Cisalpina for this period end with M. Aemilius Scaurus (cos. 115), who subdued some Gallic and Ligurian tribesmen and managed to triumph “de Galleis Karneis” between 27 November and 31 December of his year of office.21 But there were doubtless other consuls active in this area whom we do not hear about because they did not triumph.22 Twenty years later, L. Licinius Crassus (cos. 95) tried to match Scaurus’ feat. After being hailed “imperator” in his consulship while fighting some undistinguished Alpine tribes, he returned to Rome and prevailed on the Senate to grant him a triumph. Nevertheless, his colleague and erstwhile political ally Q. Mucius Scaevola most surprisingly vetoed the senatus consultum.23 Scaevola had sought to establish himself as Crassus’ moral superior even during their consular campaign.24 But this veto of the triumph vote—a brutal use of his full consular power—does come as a surprise. Mommsen could find no parallel of a consul acting against his colleague in this way for the later Republic.25 If we take Valerius Maximus at his word, it would seem that Crassus headed back into the field for at least another year after his failed triumph bid. This author tells how Crassus included his hereditary enemy and potential prosecutor C. Papirius Carbo in his provincial judicial consilium, “when he held the provincia of Gaul ex consulatu.” This should be evidence for prorogation into 94, whether in Cisalpina as before or (as Badian suggests) Gallia Cisalpina with Transalpina.26 Of course, “Gallia” in Latin authors can stand for either province.27 As it happens, Valerius never uses the phrase “ex consulatu” (or “ex praetura,” “ex magistratu,” or the like) elsewhere, which suggests that here he is reflecting (at least ultimately) a good Republican source. Yet he might simply be in error. Imperial authors were personally familiar with only promagisterial military commissions, and might be liable to make the slip.28
10.2.2 Consular Commands in Gallia Transalpina down through 95 Before taking the story of Gallia Cisalpina any further, we should touch on developments concerning Transalpine Gaul, where also praetors played no discernible role. In the latter half of the 120s, the Romans did send a string of consular commanders to undertake some major campaigns in the area east of the Rhône. The series starts with the cos. 125 M. Fulvius Flaccus, who was followed in this theater by C. Sextius Calvinus (cos. 124), Cn. Domitius Ahenobarbus (cos. 122), and Q. Fabius Maximus (cos. 121, the future “Allobrogicus”). The cos. 125 M. Flaccus and the cos. 124 C. Calvinus had at least two full years of imperium in Gaul, each triumphing “de Ligurib(us) Vocontieis Salluveisq(ue)” in 123 and 122 respectively.29 In neither case is the precise month of the triumph preserved, so the exact length of their commands cannot be determined. But it does appear that for a good part of 124 there were two consular commanders in the same military provincia fighting exactly the same enemies (to judge from the triumphal lists).30 It is a mistake to think (as many have, and still do) that Cn. Domitius (cos. 122)—with or without Q. Fabius (cos. 121)—organized Gallia Transalpina as a prop-
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er provincia. More than thirty years ago, Badian showed that our sources offer no justification for that notion, and no new evidence has emerged to dent his arguments, which need not be repeated in full here.32 True, it does seem fairly certain that Cn. Domitius Ahenobarbus fortified a site at Narbo in a preliminary way before his departure from Gaul, in this case to protect his Via Domitia. Yet the triumphal Fasti cannot be taken as evidence that he lingered long after Fabius’ return to do so, much less organize a province. Of course, a full Roman colony was to follow at Narbo just a few years later.33 All the same, a brief overview of Domitius’ Gallic command might be useful, not least since it also shows the Senate’s tightening control on the triumph. Cn. Domitius Ahenobarbus as cos. 122 was continuing his predecessors’ campaign against the Salluvii, whose king soon brought the Allobroges and the Arverni into the war. It was quite likely in this year that Domitius won a victory at Vindalium— to be situated ten kilometers northeast of Avignon—against (probably) both the latter tribes. This battle must have earned Domitius his title “imperator,” attested on a milestone from a military road he built during this command to secure the link with Spain. At any rate, after Vindalium he staged an ostentatious triumph-like display, in which he paraded through his military provincia on an elephant, with his troops in procession behind.34 Yet Gaul was declared consular again for 121. One author calls its recipient, the cos. 121 Q. Fabius Maximus, the “successor” of Domitius Ahenobarbus. But Ahenobarbus managed to remain in Gaul all through that year and certainly into the next, alongside Fabius. It is Q. Fabius who is universally credited with a decisive victory on 8 August 121 against the Allobroges and Arverni at the confluence of the Isère and Rhône. Yet Domitius did his best to grab for himself as much of the gloria as accrued from that military success. He saw fit to capture Bituitus, leader of the Arverni, while the Gallic chieftain was en route to give satisfaction at Rome. Domitius was incensed that Bituitus had persuaded his tribe and the Allobroges to surrender to Fabius. The Senate is said to have disapproved of this act, yet hypocritically accepted Bituitus as a prisoner all the same.35 The Senate allowed both Cn. Domitius and Q. Fabius to triumph on their return to Rome. The triumphal Fasti preserve no year for either of these triumphs. But they show that Fabius—though as cos. 121 junior to Domitius—triumphed first as pro consule, over the Allobroges and (significantly) “Bituitus king of the Arverni,” and received the agnomen “Allobrogicus.” Domitius’ triumph was simply “de Galleis Arv[e]rneis.”36 And that despite the likelihood that he had won his own major victory against both Allobroges and Arverni, was hailed “imperator” first, and (technically) captured Bituitus. The order of triumphs is the opposite of what we would expect, since it violates the accepted practice of having the senior of two paired “imperatores” triumph first.37 Some even have taken it as proof that Domitius stayed on longer in Gaul than Fabius.38 Yet there is an alternative explanation: Domitius had more difficulty than Fabius winning a triumph from the Senate. The wording of their respective entries in the triumphal lists does suggest that the Senate here was trying to privilege Q. Fabius Maximus over the assertive Domitius. One notes in particular that the Senate granted a triumphal agnomen to Fabius alone. Domitius’ unofficial “tri-
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umph” no doubt irritated many, to judge from the reaction to a Roman commander who tried the same thing in Sardinia (though without the elephant) about a decade and a half later (13.1.1). We are also explicitly told that Domitius’ capture of Bituitus offended the Senate, though only to a certain extent. In the absence of any positive evidence to the contrary, we should assume that the two commanders returned at or nearly at the same time. Degrassi’s suggestion of the year 120 for these two triumphs seems entirely reasonable. That terminal date would still give Cn. Domitius Ahenobarbus (as cos. 122) one of the longest commands in Gaul for the last quarter of the second century. M. Fulvius Flaccus (cos. 125) and C. Sextius Calvinus (cos. 124) are the only other men for that period known to hold a military provincia in Gaul for a comparable span, in each case between two and three full years. After Domitius, there are no commands in this theater known to exceed even two years until the late 90s. To return to the main question under investigation: Badian’s strongest proof that Gallia Transalpina was not organized as a proper province in this era comes from the fact that there are no known commanders in the provincia between ca. 119 and the German invasion. The first Roman commander to meet the Cimbri and Teutones in the field was the cos. 113 Cn. Papirius Carbo, not in Gaul but in Noricum—a major disaster which led to Carbo’s prosecution on his return to Rome.39 After defeating Carbo, these tribes started to move west, joining the Helvetian Tigurini to their numbers. But “Gallia” comes up in neither the consular sortition for 111, when the provinciae were “Italia” and “Numidia,” nor 110, when the consuls were allotted “Numidia” and “Macedonia.”40 We know almost nothing of what the praetors were doing in those two years, but it seems unlikely that one of them had “Gallia” as his provincia. “No governor is recorded as receiving the first onslaught of the Germans,” observes Badian. Indeed, when the German tribes first entered Gaul proper, they fought against Gauls.41 The eventual Roman response, once the Germans seemed a real threat to Italy, was to dispatch against them a series of consuls in their year of office. Again, Badian: M. Junius Silanus as consul (109) and proconsul and L. Cassius Longinus as consul (107) fought against the Germans and their Gallic allies and were defeated. Q. Servilius Caepio as consul captured Tolosa and its famous treasure (106), and as proconsul was defeated at Arausio, together with the consul Cn. Mallius Maximus (105). Finally Marius took over (104) and remained in charge, as consul, until victory [fighting with Q. Lutatius Catulus, cos. 102 and pro consule 101].42
One might add (for the purposes of this study) that in this war legati—some quite senior—filled the most important subordinate roles. L. Calpurnius Piso Caesoninus (cos. 112) and C. Popillius Laenas (quite likely a praetorius) served as legates under L. Cassius Longinus in 107, as did M. Aurelius Scaurus (cos. suff. 108) under Cn. Mallius Maximus in 105.43 Marius as cos. III 103, when returning to Rome to hold the elections for 102, left M.’ Aquillius (the future cos. 101) in charge of his forces in Gaul. At this point, Aquillius surely had reached the praetorship, and was serving under Marius as a praetorian legatus.44 Aquillius even might have received delegated imperium. But we find no actual praetors, in office or pro-
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rogued, taking part in any of these campaigns. This must have been deliberate policy. 10.2.3 The Transformation of the Gauls into Regular Provinciae Only after the Cimbric Wars, when the threat posed by Gallic hordes from the north became fully apparent, does the Senate seem to have made Gallia Transalpina a regular provincia. We cannot specify a precise date, but it comes no later than the mid-90s.45 The first known possible commander is L. Licinius Crassus, cos. 95; that depends on how we interpret Valerius Maximus’ notice of his “ex consulatu” command in “Gallia” discussed above. However, C. Coelius Caldus (cos. 94) seems reasonably certain. Badian persuasively has identified him with the “C. Caelius” or “C. Coelius” of the Livian Periocha 73 found fighting the Salluvii in 90. That of course would mean he was prorogued three times even before the start of the Social War. Yet Badian further shows that the presence of a legatus P. Coelius at Placentia in 87 suggests the cos. 94 still had his command at that time, with charge of Cisalpina as well. So C. Caldus had to hold a joint provincia for upwards of eight years.46 Even allowing for the effects of the Social War, the Roman administrative system quite plainly was too overstretched at this point to accommodate properly Transalpine Gaul as a new territorial provincia—and possibly Cisalpina alongside it.47 As Badian demonstrated, there are good parallels for such extended commands in distant theaters precisely around this time. Most notably, C. Sentius (pr. 94) went to Macedonia ex praetura for 93, and remained there at least into 87 (14.1.3). And C. Valerius Flaccus (cos. 93) had a command in Spain which may have included both provinciae until his return to Rome to triumph in 81 or 80 (13.3.2). Indeed, by the mid-80s Flaccus had to take over responsibility for not just Spain, but also Transalpine Gaul. Though he is found at Contrebia in Celtiberia in 87, he may have been in Gaul as early as 85, and is positively attested there in 83.48 Flaccus clearly did some fighting against Gauls, since his triumph a few years later is said to have been “ex Celtiberia et Gal[lia].”49 So, down to Sulla, we can identify with fair certainty just two consular commanders who held Gallia Transalpina after its establishment, sometime by the mid90s, as a regular provincia. The first secure incumbent, the cos. 94 C. Coelius Caldus, received it (as far as we can tell) in combination with Cisalpine Gaul; eventually (and quite irregularly) C. Valerius Flaccus (cos. 93) succeeded Coelius in Transalpina, where he remained until after Sulla’s victory. Thanks to these extraordinarily long tenures, the creation of “Gallia Transalpina” probably had only a small indirect effect on the length of praetorian commands in overseas provinciae in the late 90s and 80s. There is no sign that Gallia Cisalpina had its own governor in the years 87–82.50 However, in the Bellum Sullanum we do find some Marians active in that area—P. Albinovanus, C. Coelius Antipater, Flavius Fimbria—who may be praetors or praetorii (discussed below in 10.5.6). Of these, P. Albinovanus was quite possibly a praetor. Yet even if so, it must be remembered he operated in Cisalpina
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during a civil war. His presence there of course tells us nothing about its routine administration.
10.3 Nonannexations in the Period before Sulla 10.3.1 The Roman Reaction to the Bequest of Cyrene, 96 B.C. In 96, the kingdom of Cyrene was bequeathed to the Roman people by king Ptolemy Apion. The Senate’s reaction to this gift was to decree that the cities of that kingdom should be “free.”51 The Roman administrative system, already overstretched, was far less able to accommodate the addition of this provincia than it had been when it was first offered, by the will of Ptolemy Euergetes II in 154 (9.1.1). It was not essential to place Cyrene under permanent administration: it was not a particularly rich land (except for its silphium, which could be “annexed” without any responsibility for administration), nor was it threatening to Roman interests. When Rome backed off the second time from any administrative responsibility for Apion’s kingdom, Cyrene soon slipped into anarchy. The organization of Cyrene as a proper provincia came only in the 60s, under Pompey (11.4). It has been thought that C. Claudius Pulcher (cos. 92) had Cyrene as a special consular or proconsular provincia. An inscription of Cyrene honors C. Pulcher as “euergetes and patron” and gives him the title (in Dorian dialect) stratago;~ u{pato~ ÔRwmaivwn.52 However, caution is necessary. C. Pulcher need not have been governor of Cyrene but merely may have performed a service of some sort to earn its patronage.53 And that service might have come even after the year 92. A Delian dedication to M. Antonius (cos. 99) from this general period also terms him strathgo;~ u{pato~, but in addition timhthv~ (he was censor in 97) as well as patron.54 So C. Claudius Pulcher was not necessarily a consul in office, but just of consular rank, when the Cyreneans honored him in this way. Again, the nature of his service is uncertain. What is clear is that not long after C. Pulcher’s consulship Cyrene was a mess. The pro quaestore L. Lucullus needed to restore order there during his Mediterranean circuit of 86, including suppressing a significant Jewish revolt. Lucullus even drew up laws on the request of the Cyreneans.55 10.3.2 Rome’s “Inheritance” of Egypt Egypt, a fantastically wealthy kingdom, was a different matter. In late 88 or early 87, Ptolemy X Alexander I (reigning since 107) conditionally bequeathed his kingdom to Rome, but only because he had been expelled from his throne. To regain his kingdom from his older brother (Ptolemy IX Soter II), he badly needed a loan from Roman financiers; the bequest was to serve as security.56 Ptolemy X died before he could achieve his aim. Thereupon the Senate—now under the Cinnan government—moved to send legati to enter upon the “inheritance” in some way, only to have its senatus consultum vetoed by a tribune.57 Even in these times, political considerations—that is, the question of what commander ultimately was to annex and organize this acquisition—will have played a large part in the tribunician veto of
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the senatorial decision to annex the land, as they did in the struggles over the “Egyptian question” in the 60s and 50s; military considerations, too, since Ptolemy IX was not going to give up his newly recovered kingdom without a fight. But it is not too much to suggest that in this case the tribune or tribunes who interceded against the senatus consultum to enter upon Egypt as an inheritance in fact acted much like the tribunes of the late third and early second centuries, as guardians of constitutional propriety. Egypt, if annexed and transformed into a praetorian provincia, would have required a regular governor. Long commands in the lucrative province of Egypt would be no more acceptable than continued prorogation in Asia (which we shall see in 14.5.8 was eschewed at this time). But the Roman administrative system, which still stood at six praetors, at this point simply could not stand another praetorian provincia which had to be placed regularly (if not annually) in the sortition. The addition in 88 or 87 of Egypt as a provincia would have been enough to bring down the entire system of provincial government—or even the Republic itself. In the face of the veto, the consuls (so it appears) decided on a more limited measure, sending legati to collect money the Egyptian king had deposited at Tyre, which he had been using as a base in the struggle to recover his kingdom.58
10.4 Quaestiones Perpetuae down to 81 10.4.1 Early Expansion of the Quaestio System A short passage in Cicero’s Brutus unfortunately is our sole explicit source for the early development of the quaestio perpetua in Rome.59 And here Cicero merely says that the institution of the permanent extortion court (dated to 149 B.C.), combined with the introduction in 137 of the secret ballot to popular trials (“iudicia populi”), gave rise to an increased number of individual trials (“plura fieri iudicia coeperunt”) during the oratorical career of C. Papirius Carbo (cos. 120, who died in 119). Cicero in this passage implies nothing about other quaestiones perpetuae coming into formation after the lex Calpurnia de repetundis and before the 120s, though many have taken him to do so. However, he does state clearly that starting in 137 iudicia populi grew more frequent. Paradoxically, the rise in the number of trials before the People and Plebs might have facilitated the expansion also of the quaestio system. The procedure in a popular trial had always been cumbersome, especially when it involved a capital charge before the comitia centuriata (see 5.6.1). And from the perspective of the senatorial establishment, popular trials in general—despite the fact that in capital cases a praetor was in charge of scheduling and voting—had a certain notoriety for capriciousness, lawlessness, and violence.60 Comparisons were inevitable with the quaestio perpetua, especially once it was reinvented by C. Gracchus (discussed in 9.2.2). The praetor who had the Gracchan extortion court as his provincia61 was obliged to supervise in a careful manner practically all aspects of each trial. But his power went only so far. In pronouncing the verdict the praetor was bound by the vote of his “consilium” of (equestrian) jurors. It was not tribes or centuries but a relatively small number of elite iudices who had the real power of decision. That in
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itself made possible the introduction of charges that rested on finer legal points. In sum, despite its complexity and its limitations, the Gracchan quaestio held out the prospect of a much more efficient, controlled, and orderly process than the trial apud populum. As far as we can tell, the Gracchan repetundae court in its early years did not yield a spectacular number of convictions.62 Yet it is clear that this quaestio before long inspired the establishment of other standing courts on the same basic model, each constituted by an individual law to punish a particular crime.63 The criminal quaestio which tried the crime of ambitus was established within seven years of Gracchus’ reform.64 There are three trials on that charge known in 116 alone, in connection with the praetorian and consular elections for 115,65 and three or four more in the years down to 81 B.C.66 By the end of the century, there was definitely also a third standing court. L. Appuleius Saturninus as tribunus plebis in 103 (but conceivably during his second tribunate in 100) invented the formal crime of maiestas—that is, “maiestas minuta populi Romani” (“diminution of the majesty of the Roman people”)—and set up a permanent quaestio to try cases under his own lex Appuleia. The court finds it first certain attestation in 96 B.C.67 Maiestas was a hazy charge, not easily distinguished from perduellio—or various other capital crimes.68 It is perfectly conceivable that commanders were accused of having infringed the “maiestas” of the state in perduellio trials long before Saturninus’ time.69 The charge of “dimunition” was certainly at work in other types of trials. One notes that the tr. pl. Cn. Domitius Ahenobarbus in 104 prosecuted the pontifex maximus M. Aemilius Scaurus on the grounds that through his agency “the rites of the Roman People were diminished” (“sacra populi Romani deminuta esse”).70 Yet the direct stimulus for Saturninus’ judicial measure must have been the shoddy record of the Roman nobiles in the Cimbric Wars, and the difficulty of calling them to account for their actions. In 107 or 106, the tribune C. Coelius Caldus managed to prosecute successfully before the People for perduellio a noble legatus, C. Popillius Laenas. After a major Roman defeat (10.2.2), C. Laenas had concluded a disgraceful peace with the Tigurini. But before bringing Laenas to trial, Coelius first had to push through a law extending the secret ballot to trials for perduellio.71 Subsequent prosecutions were no easier. In a popular trial of 104 the tribune Cn. Domitius spectacularly failed to convict M. Iunius Silanus for his inept fighting as cos. 109 against the Cimbri.72 Two difficult trials of 104 and 103 will have provided further impetus for Saturninus’ judicial measure, as E. S. Gruen rightly explains: The prosecution of [the cos. 106 Q. Servilius] Caepio and [the cos. 105 Cn.] Mallius before the people . . . had not been an easy matter. The convictions were secured only through seditio, a display of violence and illegal neglect of tribunician intercessio. Comitial trials were still a somewhat risky and troublesome business. It would be practical and efficient to set up more permanenent machinery dealing with acts that diminished Rome’s dignity and increased her peril. . . . [I]n a word, the lex Appuleia made permanent the temporary court of the lex
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73
A fourth standing court to deal with poisoning, “de veneficiis,” had come into existence shortly after the year 99 B.C. We do not have the details of the trials under that charge in the period before Sulla, but we do have the name of the individual who administered the quaestio in that year. Trials for murder (“inter sicarios”) were also heard in a permanent court by the year 85 B.C. But apparently that stopped operating effectively for a time in the last years of the 80s.74 Finally, a (noncapital) peculatus court—concerned with the embezzlement of public monies, including the diversion of sacred funds and (perhaps) misappropriation of booty—was definitely in operation previous to Sulla’s reforms, quite probably by 85, but certainly by 83.75 10.4.2 Praetors as Presidents of the Criminal Quaestiones Hard evidence on the praetors who administered the quaestiones in this period is not plentiful. (We are told, however, that all the regular courts in Rome were suspended at the start of the Social War; they stayed close for most if not all of 90 and perhaps into 89.)76 For only about one-sixth of the forty-odd quaestio trials attested for the period between C. Gracchus and Sulla do we find even mention of the president of the court. Our sources when describing the trials of this period (or the postSullan era) are much more likely to take note of the jurors.77 This is natural, since they are the ones making the legal decision. Lawyers showed the same emphasis in the actual trials. For instance, in Cicero’s defense of Sex. Roscius in the quaestio inter sicarios of 80 B.C.—our earliest surviving speech from a permanent court—he addresses the presiding praetor just twice (once together with the jurors) near the beginning of the speech, and appeals to him obliquely once near the end.78 The iudices, however, are addressed dozens of times.79 Cicero maintains that relative emphasis throughout his extant forensic speeches. Still, it is clear that the court president played an essential role80 and could exert a tremendous indirect influence on the verdict.81 The first individual to be named in the role of president of a post-Gracchan standing court is Q. Fabius Maximus (Eburnus, the future cos. 116). As praetor in 119 (surely), he presided over the quaestio in which the young L. Crassus successfully prosecuted the Gracchan IIIvir a.d.a. C. Papirius Carbo (cos. 120). Q. Fabius is said to have dismissed the court when Crassus found himself too nervous to speak—our earliest example of the praetor using his discretionary powers to affect the course of a trial. (Many more are to follow.)82 In regard to this trial, Valerius Maximus83 tells the story of how Crassus in preparing his prosecution refused to accept a letter-case (scrinium) of incriminating materials offered to him by a slave of “Cn.” Carbo. Alexander84 thinks this anecdote “suggests a crime in which records would be crucial, such as extortion.” Yet it is equally possible that the scrinium contained documents bearing on Carbo’s “role” in the death of Scipio Aemilianus, for which he was widely blamed, with even Cicero considering him
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complicit. As it happens, we know that Crassus raised this issue against Carbo in the actual trial.85 The exact technical charge (which would help determine Fabius’ city provincia) remains unknown. But the fact Carbo chose suicide after his condemnation shows it must have been capital in scope. We have to wait more than a decade and a half for another possible court president. There is an outside chance that L. Licinius Lucullus (pr. 104), who as a city praetor had to put down a slave revolt at Capua, and then was prorogued and dispatched to Sicily after the outbreak of its Second Slave War, had a standing quaestio in 104.86 Yet the peregrine praetorship is the obvious provincia, to gather from Lucullus’ mobility during his actual magistracy.87 Our first absolutely secure court president for whom we have a name, provincia, and a date is C. Claudius Pulcher (aed. cur. 99, pr. 95, and cos. 92), identified as “pr. repetundis” in his elogium. Cicero provides the date of his praetorship—and the additional information that the Senate charged this individual while praetor with drafting laws for Sicilian Halaesa. It should be noted that in the earliest instance where we have detailed information on the president of a permanent quaestio we see that praetor picking up additional tasks.88 10.4.3 Introduction of the Iudex Quaestionis Evidently not all standing quaestiones—even in this period—were regularly entrusted to praetors. The elogium of C. Claudius Pulcher reveals that between his aedileship and praetorship he served as iudex quaestionis of a standing criminal court—in this case, de veneficiis. So that expedient had been introduced by the start of the first century.89 P. Antistius, an aedilicius killed by the Marian government in 82, was the (openly partisan) president of the court that tried Cn. Pompeius, probably de peculatu, ca. 85 B.C. And M. Fannius (aed. pl. 86 and a future pr. 80) was iudex quaestionis over the court inter sicarios, probably in 85.90 The development of the iudex quaestionis was a natural and necessary one, now that the system of permanent quaestiones was expanding beyond state offences like repetundae, ambitus, and maiestas to embrace also private crimes such as poisoning and murder. It probably is no accident that the first iudex quaestionis known to us comes attached to the quaestio de veneficiis. The law that introduced this standing court might even have invented the position of iudex quaestionis to staff it. By the year 100 B.C., six praetors had to cover (in theory) the urban and peregrine jurisdictions, at least three standing quaestiones and all the overseas provinciae (now including Cilicia). The advantages of bringing the defendant on a murder charge before a quaestio as opposed to the comitia centuriata were obvious. Since the praetors had reached their practical limit a new quasi-magistracy was devised. The iudex quaestionis swore not in leges (like a magistrate) but in legem, to obey the law which had established the court in which he presided. He was given all the powers he needed to conduct a criminal trial, and magisterial attributes and insignia as well.91 But a firm boundary was placed around those powers. In the immediate post-Sullan period, we see that the iudex quaestionis came under the supervision of the urban praetor and—unlike an actual magistrate of the Roman People with imperium—
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could be removed from his position and even prosecuted during his term of presidency.92 How was an individual iudex quaestionis created? Mommsen93 speculated that either the praetor who had received a particular quaestio named him, or “more probably” that this position routinely followed the aedileship, on the analogy of the ex praetura and ex consulatu commands that appear in this general era. Greenidge thought that appointment by the praetor to whom the relevant quaestio had come was positively unlikely. “The functions of this iudex do not resemble those of subordinate jurisdiction,” he argued. “Besides conducting the trial from the sortitio of the iudices onward to the finding of the sentence, he seems . . . to have had the capacity of determining what cases were within the competence of the court.”94 That last point is hardy decisive: any quaesitor (see 10.4.4) seems to have had the power to accept or refuse prosecutions that came before him. Yet Greenidge seems to be correct on the praetor, at least for this era. The notion that before 81 B.C. praetors in their annual sortition ever drew lots for the courts “inter sicarios,” “de veneficiis,” and “peculatus”—in addition to other, more established provinciae—and then delegated the judicial responsibilities to subordinates seems most improbable. Since the urban praetor soon (by the mid-70s) appears to have had some vicarious responsibility for the performance of a iudex quaestionis, chances are that it was he who always saw to their election or (more likely) selection from the ex-aediles. We can suppose that at the beginning of each year the praetor urbanus allotted these iudices to the various minor standing courts, where they were to stay put.95 10.4.4 Some Unnamed Court Presidents Our sources for three trials of this period refer to the court president without offering a name. The most difficult case has to do with a story Cicero in the De Oratore tells of L. Marcius Philippus (cos. cand. 93, cos. 91). In a trial administered by a “quaesitor,” Philippus when allowed to cross-examine a witness tossed off a quip that inadvertently made one of the jurors look ridiculous.96 The term “quaesitor” can be used of a iudex quaestionis or special court president but also a praetor.97 Can we tell what type of trial this was? Alexander links the passage on the crossexamination with some other examples of Philippus’ humor in court, including a taunt at Q. Catulus (cos. 102) that also backfired. When Philippus asked Catulus (literally, “whelp”) during cross-examination, “What are you barking at?” he got the answer, “I see a thief.” On the basis of these passages, Alexander suggests (following a suggestion of Münzer) that Philippus was prosecuted de repetundis following a praetorian command. Alexander even tentatively ventures “Africa” as the provincia and 95 (without query) as the date of his trial.98 Service in a territorial provincia naturally might give rise to accusations of thievery.99 But one obviously need not be a praetorian governor to attract the charge.100 According to Florus,101 Philippus was prosecuted for ambitus (i.e., in connection with one of his bids for the consulship), which conceivably might have provided the context for the exchange with Catulus. Simple peculatus is another possibility. As for “Africa,” the young Q. Hortensius is known to have spoken in the Senate on behalf of the province (perhaps representing a legation) in the year 95.102
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True, this is the year after the date by which Philippus must have held the praetorship. But that is very different from knowing for certain Philippus was praetor then, or that the case of Africa (whatever the details) resulted in a quaestio procedure. So the “quaesitor” in this case must remain in obscurity. There are two additional unnamed presidents for the quaestiones in this era. Orosius mentions in passing that a praetor presided over the repetundae trial of P. Rutilius Rufus in 92 B.C., and controlled who spoke. And a praetor apparently was the magistrate in charge when Q. Sosius as a defendant—probably de peculatu— admitted setting fire to the Capitoline tabularium (to destroy the evidence of thefts from the res publica?) in 83 B.C.103 That latter item is a helpful piece of information; above, we have seen the possibility that peculatus might also fall to a iudex quaestionis (P. Antistius, ca. 85). In post-Sullan practice, certainly the more politically important courts (repetundae, maiestas, ambitus) are entrusted to praetors if at all possible.104 One reason was public order. It soon appeared that quaestio proceedings too could dissolve into lawlessness, as reports on the violence at the trial of Servilius Augur (late 90s) demonstrate.105 10.4.5 Decline of the Iudicia Populi By the 90s, the praetorship had been pushed quite deep into the business of administering Rome’s criminal law. How were the iudicia populi faring in comparison? For the period 137 down to 82, our record shows about two dozen individual trials before the People.106 For the same years, we have sixteen reported prosecutions (certain or probable) in the quaestio repetundarum alone.107 It does appear that after C. Gracchus the quaestiones quickly grew in importance, at the expense of the iudicia populi conducted (for all purposes) by tribunes and aediles. Indeed, one notes that fully one-quarter of the iudicia populi belong to the years 87 and 86. The Cinnan government immediately on coming to power used these iudicia as one of its principal instruments to purge the political opposition.108 Sometimes it omitted proper procedure altogether.109 The abuses of this era apparently went a long way toward discrediting those iudicia, at least in the eyes of Sulla (see further 11.1.3). Even before Sulla’s reforms, iudicia populi were probably well on their way toward taking a secondary role in the administration of Roman criminal law. A telltale sign of the ascendancy of permanent quaestiones is that in the first century some tribunes of the Plebs prefer to take defendants before a praetor than before the People. There is a possible instance in 97 or 96, when M. Duronius (either tribune or tribunicius) prosecuted the censor M. Antonius (cos. 99) on a charge of ambitus. Another comes (possibly) in 73, if that is the date when C. Licinius Macer accused C. Rabirius of various religious offenses. But there Sulla’s restrictions on the tribunate might have been a factor.110 We find a certain example of this phenomenon shortly after 70 B.C., when C. Carbo successfully prosecuted P. Oppius, who had served as quaestor of M. Cotta (cos. 74) in Bithynia. The charge was probably maiestas. Carbo received consular ornamenta as a reward for Oppius’ conviction, which no doubt helped his climb to curule office. Soon (by 61) Carbo himself was governing Bithynia as a praetorian commander.111 After the Oppius trial it is not uncommon for acting tribunes to
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prosecute in a permanent court—some perhaps prompted by the prospect of advancement in rank. There are instances attempted or realized in 66 (de peculatu), 59 (in the post-Sullan court de vi), possibly 58 (inter sicarios), then 57 (de vi), and 54 (two tribunician prosecutions de repetundis, possibly one de ambitu).112 And that was notwithstanding the fact that in the 60s and 50s the alternative of popular iudicia always existed.113 Yet there is not a single known example of a successful prosecution before the Plebs from these two decades.114 That dismal record in itself goes some way toward explaining the inexorable expansion of the quaestio system.
10.5 Special Praetorian Provinciae outside Rome 10.5.1 Special Praetorian Commands outside Italy We know only two possible instances of praetorian commands in special provinciae outside Italy in the period 122–82 B.C. The first concerns the cos. 117 L. Caecilius Metellus (Diadematus), so praetor by 120 under the leges annales, who might have had “Illyria” as his praetorian provincia. But the argument for it is highly conjectural. According to Appian,115 L. (Aurelius) Cotta (cos. 119) and a “Metellus” inflicted an illusory defeat on the Segestani of Illyria. Who is this “Metellus”? Broughton identifies him with the cos. 119 L. Metellus Delmaticus, and postulates that he had stopped by to help his consular colleague Cotta at the time of his own command against the Dalmatians.116 This is not impossible: the example of the pro consule C. Cosconius in the mid-70s shows the reverse scenario, that a commander for Illyria might be active in Dalmatia.117 However, M. G. Morgan argues that Delmaticus fought just Dalmatians; indeed, that is the only people who appear in his entry in the triumphal Fasti.118 On Morgan’s interpretation, L. Cotta campaigned against the Segestani with a different Metellus—L. Metellus Diademetus—in the capacity of a (praetorian) legatus. Now, this is precisely the relationship I have suggested (8.6.1) for the consul C. Sempronius Tuditanus and his subordinate Ti. Latinius Pandusa in this same theater in 129. But it would be odd for Diademetus, in the year his brother was consul, to serve as a legatus under that man’s consular colleague. If we really are to identify Appian’s “Metellus” with L. Metellus Diademetus, it seems preferable to assume he was already fighting in Illyria as, say, pr. 120, and continued to serve as pro praetore in 119 under the consul L. Cotta.119 No further praetorian commands for “Illyria” are attested for this period.120 The one other special provincia is “Cilicia,” allotted to the pr. 102 M. Antonius. As we have seen in 10.1, Antonius received enhanced imperium for the commission and triumphed from the provincia on his return to Italy in 100. 10.5.2 The Outbreak of the Social War, 91 B.C. The era of the Social and Civil Wars saw any number of special praetorian provinciae declared within Italy. The process perhaps started even before the death of the tribune of the Plebs M. Livius Drusus in midautumn of the year 91,121 which struck a severe blow to the hopes of the various Italian peoples for Roman citizenship. Not
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long afterward, in late 91, the people of Asculum set off the Social War by killing Q. Servilius, a “praetor” with enhanced imperium who evidently held a command for some time in the Picentine district. They also murdered his legatus Fonteius and all the Roman citizens in their town.122 There are plenty of precedents for granting consular imperium to a praetor during his year of office, but not for service in Italy. It is with good reason that Appian for instance found Servilius’ presence as pro consule around Asculum so confusing.123 One wonders whether the praetor had the Picentes as his formal provincia: that would have been enormously provocative to the Italians, especially since both consuls also remained in Italy that troubled year. And it seems unlikely that Servilius at the time was en route to a territorial province, though rough parallels for this type of “additional” negotium do exist.124 No one foresaw extreme danger early in the year. An easier alternative is that the political situation in Rome was so potentially explosive in 91—including not just the program of the tribune M. Drusus, but also actual fighting between adherents of Marius and Sulla125—that the consuls dared not stray far from the city, and the Senate created a special command pro consule for one or more of the praetors to watch events in Italy in their stead. Appian in fact implies this interpretation in his (admittedly confused) account; one notes also that Florus and Orosius each consider Q. Servilius a “legatus”—perhaps slight support that his was a special assignment.126 Yet whatever the exact nature of Q. Servilius’ provincia, the Senate’s primary motive naturally would have been for his twelve axes to intimidate dissident elements in this area. There may have been more Roman officials stationed in trouble spots in Italy in the year 91, as Appian positively suggests.127 For a start, the Periocha of Livy Book 72 summarizes the story of how in (apparently) late 91 a Ser. Galba (no title) became a prisoner of the Lucanians but managed to gain his freedom. Broughton observes that “Galba’s position in Lucania at the outbreak of the Social War . . . seems similar to that of Q. Servilius at Asculum,” that is, a commander with imperium.128 But since the epitomator does not even hint at what his position was, we have to allow for other possibilities, for example, that he was one of the “spies” Appian says were sent out to individual Italian localities129 in the year 91. Some have ventured to identify this man with the Roman officer who scored a victory in the next year over the Paeligni, but there are less adventurous options.130 His probable presence at Asculum in late 89 does suggest praetorian status (see 10.5.4). Other praetors that year may have been assigned special provinciae elsewhere in Italy in an effort to curb dissent: one remembers the situation of 190, when Etruria and Apulia were assigned as special praetorian provinciae (8.4.1). Consider L. Postumius, a “praetor” in command at Nola in early 90 who lost the town—and his life—to Samnites.131 Münzer suggests L. Postumius was an Albinus, and reasonably posits 91 as the date of his praetorship.132 If true, his position at Nola might have been genuinely analogous to that of Q. Servilius in the territory of Asculum. But the possibility always remains open that this Postumius was merely a legatus who had received a special grant of imperium in the emergency posed by the outbreak of the Social War.
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Two additional candidates for special commands in Italy in 91 are Cn. Pompeius Strabo and L. Porcius Cato, the consuls of 89. Orosius reports that at a very early stage in the Social War the Senate sent Cn. Pompeius “praetor” against the Picentes, at whose hands he suffered a defeat. Orosius implies that this rout came before the Samnites chose Papius Mutilus as their leader, or the Marsi selected Agamemnon.133 That detail makes it hard to square with Appian’s report of Pompeius’ initial defeat and then success in 90 near Mount Falernus in Picenum against three well-coordinated Italian armies.134 It is perhaps best to postulate two separate actions. The first (Orosius’ defeat) is best dated to late 91 or early 90, and indeed may have been the Senate’s immediate response to the murder of the pro consule Q. Servilius with his legate and the ensuing massacre of Roman citizens at Asculum. The second—from which Pompeius soon rebounded—dates to a point later in 90, when Pompeius was serving as legatus under the consul P. Rutilius Lupus, who (as we shall see) had the chief northern command that year.135 The title “praetor,” however, in Orosius is puzzling. As cos. 89, we would expect Cn. Strabo to have reached the praetorship by 92. But “praetor” of course often stands for “pro praetore,” in even the best sources. Since it is hard to see what a prorogued praetor would be doing in Italy in late 91 (even given the example of Q. Servilius above), we might assume that Pompeius was a praetorius who had received a special grant of imperium when news of the Asculum massacre reached Rome. Yet an alternative perhaps worth considering is that Cn. Pompeius Strabo was in fact praetor in 91, and that his cheering successes as legatus in 90—which the Livian tradition counts as a major turning point in the war136—prompted the Senate to grant him a waiver from the leges annales so that he could run for cos. 89. There is a possible parallel in the career of Cn. Strabo’s consular colleague of 89, L. Porcius Cato. Under the leges annales, this man should have reached the praetorship by 92. However, the Livian tradition reports that he as “praetor” defeated the Etruscans in battle in what must be the year 90.137 Again, the most natural conclusion is that L. Cato was a praetorius who had received a special grant of imperium for that year. But it is just possible that he was a pr. 91 who received a dispensation in the emergency to stand for cos. 89. 10.5.3 Praetorian Commands against the Italians in 90 Italian preparations moved swiftly in late 91.138 Diodorus gives the most detail on the united Italian war government. It was based in the territory of the Paeligni at Corfinium—now renamed “Italica”—and directed by a Senate of 500. In many ways, the Italian command system mirrored that of Rome—as Diodorus noticed.139 The Marsian Q. Poppedius Silo and the Samnite C. Papius Mutilus were the first “consuls.” “Dividing all Italy into two parts they [sc. the Italians] designated these as consular provinces and districts.” Poppedius received a northern command, and had six “praetors” (strathgoiv) under him. C. Mutilus had a large southern region, also with six “praetors.”140 The Italians had double the number of praetors in the Roman system, so as to represent the main constituent groups fighting. They were
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obviously much more concerned about winning the war and preserving unity than any untoward political effects! The Romans mirrored the disposition of the chief Italian commanders. In 90, the command in the northern portion of Italy was held by the consul P. Rutilius Lupus; his consular colleague L. Iulius Caesar directed operations in the south. In 89, the consuls Cn. Pompeius Strabo and L. Porcius Cato divided up the northern and southern regions of Italy. During these years, we can assume that few praetors—or recent ex-praetors—could be spared to take a command in the overseas provinciae. We are told that all iudicia were suspended at the outbreak of the Social War. That surely included the standing quaestiones administered by praetors, with the notable exception of the special Varian court (discussed in 10.6.2).141 (It is frustrating that we cannot tell whether a praetor was placed in charge of this quaestio.) One major reason for the declaration of this virtual iustitium was doubtless to free the city praetors (perhaps even the urban praetor) for potential military action. Praetors in their year of office had been employed before in this capacity (in 125), and were to be used in two similar emergencies in the post-Sullan period.142 In mid- or late 90, some of the courts (and standing quaestiones?) may have been reopened, probably after the successes of L. Iulius Caesar against the Samnites. At the latest, they resumed operation following the victory (late in the year 89) of Cn. Pompeius Strabo at Asculum, when the emergency was officially declared over.143 The background to the affair of A. Sempronius Asellio, the praetor urbanus of 89 who was killed (early in the year) for his stand on usury (12.1.1), implies that some normal legal procedure had resumed in the city.144 So what did the praetors of 90 and 89 do against the Italian rebels? It is difficult to ascertain the structure of the subordinate commands, especially since our sources are often unclear as to what individuals served as praetors, prorogued praetors, privati cum imperio, or simply legati in this conflict. What is apparent is that, once the war started in earnest, the consuls who held the chief command in 90 and 89 entrusted much of the serious fighting not to praetors but to experienced legati of consular or praetorian rank.145 Cicero offers an important summary list of some of the men the Senate sent into the field: C. Marius (cos. I 107, VI 100), Q. Lutatius Catulus (cos. 102), T. Didius (cos. 98), P. Licinius Crassus (cos. 97)—every one of them a triumphator—and the praetorii L. Cornelius Sulla (pr. 97), M. Caecilius Cornutus, and L. Cornelius Cinna.146 No praetors who definitely can be assigned to the year 90 are found in a major command. One possible member of that college, L. Calpurnius Piso Caesoninus, according to Cicero was “in charge of manufacturing arms” during the Social War.147 However, in 89, once the worst of the crisis had passed, the Senate seems to have allowed praetors more latitude in the field. Some of the subordinate officers of the year 90 apparently had imperium. First, the northern theater, and the legati of the consul P. Rutilius Lupus. Appian says those legati included C. Marius, Cn. Pompeius Strabo, C. “Perpenna,” Q. Servilius Caepio, and a Valerius Messalla. Marius was of course of consular rank, and the other four were probably praetorii.148 At least some of these men certainly had been given imperium. For Cn. Pompeius—who (we have seen) had an important semiindependent command in Picenum—and C. Perperna, we cannot tell. Appian
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simply tells us that Perperna had received a large force of ten thousand men. When he lost four thousand of these troops in battle at the hands of the Italic leader P. Praesentaeus (Praesentius?), Rutilius removed him from his command (strathgiva) and transferred what remained of his force to his senior legatus C. Marius.149 Yet Marius had consular imperium—surely enhanced from an original grant of praetorian imperium—by the time he took charge of Perperna’s army. This emerges from a notice pertaining to events later in 90, after P. Rutilius Lupus had been killed in action on 11 June.150 The Senate decided not to replace this fallen consul, since the state of the emergency did not allow his colleague L. Iulius Caesar to return to Rome. So the legatus Q. Caepio received command of part of the consular army by senatus consultum,151 and had his imperium, according to the report of the Periocha, “made equal to that of Marius.”152 The formulation of Livy’s epitomator most naturally suggests that Marius was a pro consule at that time in 90 and that Q. Caepio had preexisting praetorian imperium raised to the consular level. Whatever the level of Caepio’s power, it was shortlived: he soon fell into an ambush and was killed. This theater shows two further grants of imperium, each connected with special arrangements in late 90 for the siege of Asculum. The cos. 91 Sex. Iulius Caesar was sent with a special grant of consular imperium—a true privatus cum imperio— to take over the siege of Asculum from Cn. Pompeius Strabo after the death of the Picentine leader Vidacilius. (Our source for this, Appian, is understandably confused.) In transit, Sex. Caesar ran into an enemy force as it was changing camp, and scored a major victory. He then sat down for a siege of Asculum, only soon to die of disease (winter 90/89). But before his death this privatus managed to appoint a C. Baebius as pro praetore.153 Baebius will have held the command at Asculum until relieved by the cos. 89 Cn. Pompeius Strabo. The handover seems to come only well into the year, for Strabo on taking office first conducted some campaigns against the Marsi and other tribes of central Italy.154 To turn briefly to the south: The cos. 90 L. Iulius Caesar is said to have had as his legati a P. (Cornelius) Lentulus, T. Didius, P. Licinius Crassus, L. Cornelius Sulla, and (M. Claudius) Marcellus.155 That group includes two consulares; at least one—perhaps all three—of the others had reached the praetorship.156 The one certain praetorius is of course L. Cornelius Sulla, who assisted his enemy C. Marius in a victory over the Marsians that year.157 It is conceivable that Sulla had imperium at that time, just like Marius (and probably others). However, the direct evidence is quite slim. Eutropius (erroneously) says that the Social War was fought for a “quadrennium” (?92–89) with heavy loss. “Finally, in the fifth year, it met its resolution through L. Cornelius Sulla ‘consul,’ when earlier in this same war he strenuously had done a great deal, but as ‘praetor’.”158 At any rate, we shall see Sulla probably held imperium the next year. 10.5.4 Praetorian Commands against the Italians in 89 In 89, one or two praetors possibly remained in the city alongside the praetor urbanus A. Sempronius Asellio to look after civil affairs. But the crisis—and the murder of the urban praetor early in the year, soon after he issued his edict—sure-
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ly prevented any commanders from setting out to overseas provinciae. As noted above, in this year the northern command was held by Cn. Pompeius Strabo, now consul; the chief command in the south by his colleague L. Porcius Cato. We are exceptionally well informed on Cn. Strabo’s staff, thanks to a major inscription detailing the members of his military consilium at Asculum on 18 November 89, following the capture of the city, a little more than a month before his triumph de Asculaneis Picentibus.159 First place is held by L. Gellius, a pr. 94 who subsequently had served as pro consule in an eastern province (Asia or Cilicia). Second in the consilium is a Cn. Octavius Q.f.—probably also a praetorius. He is generally (and reasonably) identified with the Cn. Octavius Ruso who served as quaestor in 105 in the war against Jugurtha; but the cos. 87 is another real possibility.160 Third place is wholly lost: perhaps the praetorian M. Caecilius Cornutus (see 10.5.3) belongs here. Then in fourth place on Strabo’s staff is [——]cius C.f. Ani. Cichorius may be right in identifying him with the Ser. Sulpicius Galba taken captive and then released in Lucania at the start of the war. In 89, Ser. Galba is positively attested as a legatus of Strabo, active against the Marrucini, Vestini and (later) Marsi.161 Cichorius also plausibly suggested an identification with the legatus “Galba” who fought under Sulla at the battle of Chaeronea in 86 alongside the praetorius L. Hortensius162—and thus not unlikely to be a praetorius himself. Next in order in the consilium is a L. Iunius L.f. Gal.—probably Brutus Damasippus, the pr. 82—so there is no absolute guarantee that the individual in third place in this list was a praetor or praetorius already in 89.163 In the southern theater, the cos. L. Porcius Cato defeated the Marsi several times in battle. But it was still early in the year when he lost his life in a mutiny near Lacus Fucinus.164 No suffect was elected. It is just possible that, after the death of this consul, his legatus L. Cornelius Sulla received a special grant of consular imperium.165 We have seen that in the similar circumstances of the previous year, after the death of the consul P. Rutilius Lupus, the command in the north was divided between two of his legati, both probably now pro consulibus. There are a few bits of evidence which seem to point toward a special grant of consular imperium for Sulla in 89. We have seen (10.5.3) that Eutropius seems to think he had a praetorian command in the Social War. Note also that A. Postumius Albinus— probably to be identified with the cos. 99—is said to have served as his legatus in 89 in charge of a fleet.166 However, Valerius Maximus, in repeating a story told by Cicero of Sulla at Nola (in 89?), says that Sulla was “consul sociali bello.”167 Orosius also terms him “consul” in 89.168 Salmon169 dismisses the reports of Valerius Maximus and Orosius: “Sulla was a legatus in 89, apparently of the consul Porcius Cato. For that matter it would have indeed been surprising if he had held higher rank than the two consulars serving in the south, A. Postumius Albinus and T. Didius, of whom the latter at least had had important military experience.” But this argument of Salmon’s, not conclusive in itself, glosses over the fact that Sulla is specifically said to have had A. Postumius Albinus as a legatus under him in this year and that T. Didius was killed 11 June 89.170 Sulla was at least pro praetore. Indeed, it is just possible that Sulla may have started off the year endowed with a special grant of praetorian imperium, and was later elevated to the rank of pro consule in the crisis that followed the deaths of L.
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Porcius Cato and Didius in the field. Broughton suspected a special grant of imperium to Sulla: “[T]he independence and prominence of Sulla’s activities, with Legates in turn under his command [the reference is to A. Postumius Albinus], indicate that after the death of the consul he received a command similar to those of Marius and Caepio in 90.”171 But there seems to have been a tradition (from Livy?) that it was Sulla as consul (i.e., 88) who ended the Social War. Some of these reports (Orosius in particular) may go back to that. Yet Eutropius, who makes Sulla “praetor” (i.e., pro praetore), is the most credible in light of attested practise for this war. He should probably be accepted. The death of the consul L. Porcius Cato might also explain why we see a praetor in office, C. Cosconius, by the end of the year taking on major responsibilities in the southern theater. A successful commander, Cosconius is termed strathgov~ in late 89 or early 88172 when he reduced the territory of a series of towns in Apulia (including Venusia) and that of the Pediculi.173 Diodorus strongly implies Cosconius was an actual praetor of the year 89: notice of his dispatch against the Italians follows just after that of the consuls Cn. Strabo and L. Porcius Cato. And Appian has a pr. 88 succeed Cosconius in his strathgiva (10.5.5). The “Lucanus” who fought with Cosconius against Samnites will have been his legatus.174 C. Cosconius is almost certainly to be identified with the homonym who was pro consule in Illyricum in the first half of the 70s (11.8.1), thanks to an iterated praetorship.175 Cosconius was probably not the only praetor of 89 active against the Italians in the south. Florus reports the successes of a certain “Carbo” against the Lucanians; this man should be Cn. Papirius Carbo, the future cos. 85, III 82. Carbo was tribunus plebis in 92 and almost certainly praetor in 89, as Broughton suggests.176 Cn. Carbo perhaps fought in coordination with the legatus A. Gabinius. Quaestor in 102 under the praetor M. Antonius in his Cilician pirate command,177 Gabinius was quite possibly a praetorius by the late 90s. In the Social War, he apparently had an independent or semi-independent command against the Marsi; after successes in Lucania in (apparently) late 89, he fell while besieging an enemy camp.178 10.5.5 Praetorian Commands against the Italians in 88 and 87 As the war very much wound down in the year 88, the Senate seems to have allowed praetors an even wider role. Here the most important figure is Q. Caecilius Metellus Pius. Said by the Periocha to have won some important successes over the Marsi as a legatus in (apparently) late 89,179 he was colleague in the praetorship with Ap. Claudius Pulcher and P. Gabinius, (surely) also with a Brutus and a Servilius, and perhaps with L. Cornelius Lentulus as well.180 A word about their respective fortunes: As praetors, Metellus Pius, Ap. Pulcher, and Gabinius all registered over a sixty-day period the professiones of those Italians who were eligible for Roman citizenship under the lex Plautia Papiria.181 Scholars have offered a date of either 89 or (as Badian has argued) 88 for that collegium.182 Broughton favors 89, but the Periocha passage on Metellus Pius’ legateship certainly seems to support
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Badian’s arguments for the later date. In fact, those victories as legatus might have won Metellus the praetorship, perhaps even by special dispensation.183 Unfortunately, nothing further is known of the activities of Metellus’ colleague Gabinius as praetor or as prorogued praetor.184 L. Cornelius Lentulus might have received the provincia of Cilicia ex praetura, only taking up the assignment in 85 or later (10.1). Yet a chance reference reveals that Appius Pulcher still had imperium in Italy in 87 (see below). Metellus himself saw a good deal of fighting in what must be 88: he is said by Appian to have succeeded (the pr. 89) C. Cosconius in his command in Apulia.185 That need not count against service in the city early that same year. Indeed, perhaps one reason why the Plautian-Papirian law stipulated that registration of new citizens take place within a narrow “sixty-day” period was precisely to allow (at the least) Metellus and Appius to take the field. Appian goes on in the same passage to credit Q. Metellus with the final defeat of the Marsic leader Poppedius Silo in Apulia. Other sources differ somewhat from Appian in this.186 Yet whatever the precise nature of his achievements, there should be no doubt that Q. Metellus indeed had an independent command in the south in 88. The same might be true of Metellus’ colleague Ap. Claudius Pulcher. In 87, Sulla, before departing for the east, placed Appius in command of a legion that was besieging Nola, which the consul Cinna later was to corrupt and win over.187 Broughton188 suggests that Ap. Pulcher was “probably pro praetore” by Sulla’s delegation at the time. Rather, Appius probably had been prorogued from his praetorship. One notes that even after he lost his army he still held imperium, which took a popular vote to abrogate.189 It is perfectly possible he was fighting Italians in the south in 88. Metellus’ other two known colleagues simply came to a bad end. Plutarch reports that in 88 the Senate dispatched “two of the praetors”—a Brutus and a Servilius—to forbid the consul Sulla’s advance on Rome. Sulla’s troops came close to killing them, but ultimately just stripped these praetors of their magisterial insignia and sent them insulted and disgraced back to the city.190 Appian adds that Sulla, on entering Rome, outlawed a dozen of his enemies, including a “Iunius Brutus,” generally held to be identical with the praetor in office at the time.191 The interdicted Brutus fled to Spain, only to return the next year to rally around C. Marius at Telamon in Etruria.192 Broughton (following Münzer) identifies the praetor and the outlaw with the M. Brutus who served under the cos. III Cn. Carbo during his flight to Sicily in 82 (13.1.4).193 But caution is necessary. The fact that no “Servilius” shows up in any of our detailed sources on the Marian exilees of 88194 suggests the possibility that the victorious Sulla did not go so far as to declare those two praetors public enemies. (His maius imperium will have been enough to make what remained of their magistracy ineffectual.) In that case, the “Iunius Brutus” he interdicted will have been L. Iunius Brutus Damasippus, the legatus under Cn. Strabo in 89 (as noted above, of sufficient rank to be listed fifth in the epigraphic record of his consilium) who turns up as one of the chief Marians in the Civil War and indeed plays a particularly vicious role as pr. 82. (Whether the Brutus who was pr. 88 is to be identified with Carbo’s subordinate in 82 remains anyone’s guess.)
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At any rate, Q. Metellus Pius is found still fighting Samnites in 87 before a series of events during the Bellum Octavianum compelled him to withdraw from Italy to Africa.196 When Metellus reappears in Italy in 83, he is termed “pro consule.”197 Assuming that Q. Metellus Pius based his claim on an official enhancement of imperium, the grant can have come either during his praetorship in 88, or at the time of his prorogation into the following year—or perhaps even when the Senate so desperately was requesting his help against the Cinnans in mid-87.198 By the time Pius quit Italy, he also had probably been hailed as imperator.199 10.5.6 Praetorian Commands in the Civil War: The Marians To move now to the Civil War: Sulla’s open rebellion in 84 and the certain prospect of his return to Italy—which came in spring 83—and the fighting that followed down through 82 surely meant that most potential Marian commanders were detained in Italy for these years. At the start of 83, the praetorian provinces of Sicily (13.1.4) and Africa (14.3.3) were probably not administrative priorities for the Marian government, since reliable men already held them. The commander for Gallia Transalpina was not openly hostile (13.3.2); Macedonia and Asia were very much outside the government’s control. From this point, the only Marian praetors or expraetors positively known to set out for a provincia are Q. Sertorius (pr. by 83), who went to Hispania Citerior in late 83 (see below), and Q. Antonius Balbus, who took up Sardinia as pr. 82 (13.1.1). In the emergency, we can suppose that almost all other praetors (and quaestors) for 83 and 82 will have remained in Italy to resist Sulla.200 Yet once again, the actual campaigning was very much a consular affair—regardless of individual competence. The consuls L. Cornelius Scipio Asiaticus and C. Norbanus and (in Cisalpine Gaul) the pro consule Cn. Papirius Carbo (cos. II 84) conducted—or were expected to conduct—the main fighting in 83. In the next year, the chief command went to Cn. Papirius Carbo as cos. III 82 and to the young (twenty-six- or twenty-seven-year-old) C. Marius as cos. 82. Hard evidence that actual praetors and praetorian commanders took the field against Sulla is not all that plentiful, though demonstrably some did.201 Q. Sertorius appears in Italy in early 83 as a (temporary) subordinate of the cos. L. Scipio at Teanum Sidicinum. When Scipio sent Sertorius during an armistice as an envoy to his consular colleague C. Norbanus, the praetor made an entirely unexpected diversion and took Suessa in Campania. This was a serious infraction of the truce, which Sulla is said (by Appian) to have blamed not on Sertorius, but on his superior L. Scipio. Appian also tells us that by this time Sertorius had “long” been chosen to hold a praetorian command in Spain. Apparently, the government did not plan for him to linger so long in Italy. Sertorius finally set out for Hispania Citerior in late 83; Plutarch gives him the (expected) rank of pro consule.202 Sertorius almost certainly conducted all those activities in Italy in 83 with consular imperium. As it happens, he is the only certain Marian praetorian commander with imperium we find for that year. However, three men—C. Carrinas, a “Cloelius,” and (L. Iunius) Brutus Damasippus—are termed “enemy generals”
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(strathgoi; polevmioi) by Plutarch in early 83. Plutarch is describing the unsuccessful attempt of these Marians to crush the young Pompey while he was still gathering forces in Picenum to aid Sulla; Pompey ended up routing all three. Diodorus also mentions the incident, but offers only the name of “Iunius Brutus.”203 Given the plural strathgoiv (not to mention the adjective polevmioi), there is no reason to think that Plutarch is trying to be technically precise and all three were indeed “praetores.”204 In Plutarch, the plural strathgoiv can mean simply “military commanders,” with no implication of praetorian rank.205 Another argument against the notion that the government had dispatched actual “praetores” is that Diodorus emphasizes it did not yet see Pompey as a serious threat. Yet each of these Marian officers should be examined individually. On balance, Broughton is probably right to make C. Carrinas legatus for 83 and, following Orosius, a praetor of the Marian government at the time Sulla executed him in late 82 (“Carrinatem praetorem Sylla iugulavit”).206 For 82, Appian and some epitomators in the Livian tradition have a lot to say about Carrinas’ movements against the Sullan forces, apparently with one legion.207 Yet that Orosius passage is the most specific source on his status, with the evidence of Appian at least consistent with a praetorship in 82.208 As for Plutarch’s “Cloelius,” he is perhaps to be identified with T. Cloulius, a quaestor of 98 B.C. (by M. Crawford’s dating).209 Another solution makes him the C. (Coelius) Antipater—quite conceivably a son of the historian L. Coelius Antipater—who was murdered in 82 B.C. (see below).210 But whether he was an actual praetor in 83 is most uncertain. Finally, L. Iunius Brutus Damasippus: his status in 83 is no more certain than that of the other strathgoi; polevmioi, Carrinas and “Cloelius.” But in 82, when Damasippus, on the consul Marius’ written orders, perpetrated his notorious massacre at a Senate meeting—with his victims including Q. Mucius Scaevola, cos. 95 and at the time pontifex maximus—he definitely was a praetor. Appian even describes him as “being praetor of the city” (strathgw`n th`~ povlew~).211 Now, T. J. Luce212 is right to point out that in Appian’s terminology that does not inevitably mean he was an urban praetor.213 Yet in this instance the provincia urbana looks likely. To carry out his gruesome plan, the young Marius had to choose a magistrate who was able to convoke the Senate without suspicion. The fact that Damasippus later is found in the field with two legions214 has no bearing on his provincia. It only shows the extent of the military emergency for his faction. So L. Iunius Brutus Damasippus is a certain example of a praetor holding a command in 82. M. Marius Gratidianus completed two praetorships and was an expraetor—perhaps even praetor—at the time Sulla had him tortured and killed in 82 (10.5.8). But he does not appear in any accounts of the fighting.215 There are several possible praetors or praetorii from the Marian faction—P. Albinovanus, C. Coelius Antipater, Flavius Fimbria—who do show up in Cisalpine Gaul during the fighting of that year. P. Albinovanus was a hardcore supporter of the elder C. Marius who appears in Cisalpina commanding a legion of Lucanian auxilia for the government against Sullan forces. But he openly crossed to Sulla after hosting a dinner where he treacherously murdered two officers of C. Norbanus (cos. 83)— C. Antipater and Flavius Fimbria, both termed strathgoiv—as well as (unnamed) strathgoiv of the cos. III Cn. Papirius Carbo.216 In Appian, the term strathgov~ usu-
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ally denotes a holder of imperium. But (like Plutarch) this author also applies it to mere legati217 or, in the plural, to a miscellaneous ensemble of commanders and legati.218 So the precise status of Antipater and Fimbria must remain uncertain, as well as the identity and status of Carbo’s strathgoiv.219 Albinovanus, however, does seem likely to be a praetor or praetorius, to judge from his military command. Indeed, he must have had some standing to be able to assemble and ensnare all those high-ranking officers at once. And a Ciceronian scholiast identifies him as the individual who actually handed Ariminum to Sulla.220 Two last officers from this faction remain to be discussed. C. Marcius Censorinus (who had a number of important military responsibilities in the year 82) and an “Albinus” show up in a very mixed list of Marian strathgoiv who fought at the Colline Gate in 82.221 There is an A. (Postumius) Albinus monetalis who is dated provisionally to 96 by Crawford; Censorinus was monetalis (by Crawford’s dating) in 88 B.C.222 Praetorian status is entirely conceivable at least for Albinus, but must remain quite uncertain given the nature of the evidence. 10.5.7 Praetorian Commands in the Civil War: The Sullans For the war against the Marians, Sulla organized his force under legati, and allowed them the capability to fight independently.223 Yet the most prominent of these were by and large not his veteran commanders (he had left most of those to hold major positions in the east) but recent volunteers to Sulla’s cause. The pr. 88 Q. Metellus Pius (now back from Africa) presented himself to Sulla soon after the latter’s landing in Italy. Sulla recognized Metellus’ claim to hold consular imperium (i.e., from his Italian command of years previous) and made him his principal subordinate. About that time, the young Cn. Pompeius seems to have claimed the title pro praetore for himself. Plutarch implies as much.224 Pompey set up a tribunal, first in the town of Auximum and then elsewhere in Picenum, issued edicts, conducted a levy, appointed centurions—in short, he acted deliberately and conspicuously as a praetor. He even sent Sulla “dispatches.”225 If Pompey made an assertive claim to the title of “praetor,” this might provide the background to Sulla’s hailing him as “imperator” in that year.226 Sulla’s appellation probably had a touch of irony at the time it was delivered. But, just as Sulla recognized the claim of Q. Caecilius Metellus to consular imperium, it is conceivable he confirmed Cn. Pompeius as “praetor,” perhaps by giving Pompey a grant of delegated imperium to legitimize his status. Pompey along with Q. Metellus Pius, the young M. Licinius Crassus (who returned from Spain to meet Sulla), and a “Servilius” are all termed strathgoiv by Plutarch for 82.227 That particular passage probably is derived from Sulla’s autobiography. Yet again, the use here should be nontechnical, especially since it describes a group—two of whom are demonstrably not praetors! In later 82, after Sulla’s victory and the posting of the proscription list, Pompey was dispatched to Sicily against the Marian commander M. Perperna Veiento. For this task, he received a special grant of praetorian imperium. After Pompey had recovered Sicily, Sulla gave him a commission to dislodge a Marian commander from Africa. Pompey even triumphed pro praetore in (surely) 81 (13.1.4). Sulla really
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had no choice but to send out a privatus with a special grant of imperium to accomplish this task. We cannot recover the mechanism by which Pompey received his grant of praetorian imperium. The most probable method is the procedure we have suspected so many times in the Hannibalic period, a senatus consultum followed by a special lex de imperio: Pompey would not have been able to triumph if his imperium merely had come to him by delegation. The scope and importance of Pompey’s assignment might be taken to justify a consular command. But even in these chaotic times, a command pro consule was evidently out of the question for a privatus who was still only of equestrian status. Before sending Pompey to Sicily, L. Sulla tried to get the Marian governor M. Perperna Veiento to betray the provincia to him, but was refused (13.1.4). In this conflict, Sulla did manage to persuade some other praetors and ex-praetors to cross over to him from the Marian party. We have seen that was probably the status of the P. Albinovanus who betrayed Ariminum. Some he even put to work. One good candidate for this category is P. Cornelius Cethegus. A patrician noble, he was one of the “Mariani” forced to flee Rome in 88. At the time, Marius obviously held him in high trust,228 and it is virtually certain he later reached a praetorship under the Marian government. However, in 83 Cethegus went over to Sulla, and appears serving under him at Praeneste in 82.229 Q. Lucretius Afella—the man who actually took Praeneste for Sulla—is explicitly called a “praetor of the Marian faction” by Velleius. He evidently crossed too, and received a reasonably important military position.230 In this conflict, Sulla took his help from where he could get it.231 After the victory, in late 82 he still required capable subordinates. Pockets of resistance remained, most notably at Volaterrae, which had to be subjected to a siege (the town evidently fell only in 80). Furthermore, Appian says that Sulla’s strathgoiv visited various cities in Italy and established garrisons at suspected places. And Sulla conducted wideranging quaestiones in Italy in late 82 (doubtless beyond), also targeting individual communities for punishment.232 An example of the phenomenon of using ex-Marians even at this stage might be C. Papirius Carbo. A notice in Granius Licinianus reports Roman military action in (apparently) 79 against the people of Volaterrae for their earlier murder of the praetorius Carbo, “whom Sulla had placed in charge” of the town, that is, at some point after it was captured in (apparently) 80.233 This man is reasonably identified with the tr. pl. 89 C. Carbo, brother of the cos. 85, III 82.234 “As he supported Sulla he could hardly have attained the office [of praetor] before 81”: thus Broughton,235 tentatively assigning C. Carbo to a praetorship in that year. But C. Carbo is much more likely to have reached the praetorship under the government where his brother played so important a role than in 81 (where, as will be seen from 11.1.1, there is no room in the fasti) or 80 (which is a bit tight for the chronology, given the details Licinianus provides). 10.5.8 The Social and Civil Wars: Innovations and Exemptions The Social War was a time of real precedent-making. As we have seen (10.5.2), Appian mentions that Q. Servilius (pr. 91) had a command at Asculum pro consule,
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and others like him were stationed throughout Italy. That comes from the preliminaries of the war: Servilius (and perhaps the unnamed others) seem to have been acting literally “pro consule,” in place of a consul. At any rate, there is no previous example of a praetor in his year of office having consular imperium in Italy. It is unlikely that praetors who fought in the Social War were invested with consular imperium as a matter of course. Indeed, the actual record suggests that the Senate tried to keep praetors out of the central action until the real danger had passed. True, I have suggested that the Senate after the Asculum disaster sent praetors of 91 into the field: Cn. Pompeius Strabo to Picenum, probably L. Postumius to Nola, and perhaps L. Porcius Cato to Etruria. Yet the one possible pr. 90 known to have served in the war, L. Calpurnius Piso Caesoninus, is said to have manufactured arms. And Cn. Pompeius Strabo does not seem to have been prorogued into 90, but made a legatus (though probably holding praetorian imperium) of the consul P. Rutilius Lupus.236 Perhaps the same was true of L. Porcius Cato in Etruria, about whom we are less well informed. We do see praetors fighting in the south of Italy in 89 (C. Cosconius, Cn. Papirius Carbo) and 88 (Q. Metellus Pius, possibly Ap. Claudius Pulcher). However, to do the main fighting in this war the Senate used consuls, aided not by praetors but by consulars as well as praetorians serving as legates. The Senate (I would suggest) appointed C. Marius, Q. Servilius Caepio, Cn. Pompeius Strabo, L. Cornelius Sulla, and doubtless some others as legati pro praetore, with imperium officially conferred throughout their tenure.237 In some cases (Marius, Caepio, perhaps Sulla), the Senate saw fit to raise their rank to pro consule to compensate for consuls who had fallen in the war. In one instance, the Senate obtained an outright grant of consular imperium for a privatus to undertake a specific task, namely the cos. 91 Sex. Iulius Caesar, sent to Asculum in late 90. Infirmity in turn forced Sex. Caesar to delegate (praetorian) imperium to a subordinate. But there are plenty of precedents for that last type of appointment. There is good reason to believe that the outbreak of the Social War also occasioned the partial suspension of the leges annales. That was a traditional emergency measure seen in the Hannibalic War and (surely) as recently as the Cimbric Wars, when C. Marius (cos. 107) received five additional continual consulships in the years 104–100.238 I do think the evidence suggests that Cn. Pompeius Strabo and L. Porcius Cato were praetors of 91, who were elected to the consulship for 89, that is, within the minimum interval. A suspension of normal electoral rules would certainly help explain the attempt of C. Iulius Caesar Strabo—brother of the cos. 90, and curule aedile that same year—to win an exemption altogether from the praetorship so as to stand for the consulship of 88. Our sources imply that Caesar Strabo, who wanted the Mithridatic command, had a senatus consultum to back him and almost got his request. But two tribunes of 88, P. Antistius and P. Sulpicius Rufus, opposed the (popular) vote of exemption, first using legal methods, with Sulpicius later quashing it by turning to force, so as to be able to hand the Mithridatic war to the privatus C. Marius.239 Of course, more electoral irregularities soon followed. Cn. Pompeius Strabo (cos. 89) wanted a second consulship to fight Mithridates.240 C. Marius and L. Cornelius Cinna (cos. 87) had themselves elected coss. VII and II respectively for
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86—indeed, it is said, before the comitia were finished. There was a rumor current that Sulla had finished the war against Mithridates and was returning to Italy. That was the background to Marius’ election to his seventh consulship, according to Plutarch.241 We can presume an emergency suspension of electoral rules provided the formal justification for his colleague Cinna’s continuatio. And once passed in reponse to the Sullan emergency, the decree was not rescinded. That gave legal cover to the continuatio in the consular colleges of 85 and 84, and (despite protests) the election of the younger C. Marius to the consulship for 82.242 That there was a decree of some sort seems reasonably certain. Even in this era, the tribunes had not abandoned their traditional role as guardians of constitutional propriety,243 and so surely will have insisted on one. The suspension of rules in at least the regnum Cinnanum applied not just to consuls. M. Marius Gratidianus was apparently tr. pl. 87 but just possibly in 86, and then praetor twice by the time Sulla murdered him in 82.244 Sumner suggests on the basis of his tribunate that Gratidianus held the praetorship for the first time probably for 85.245 Sumner’s placement of Gratidianus’ second praetorship in 82 is convincing: “[H]e had hoped for the consulship of 82, but this was pre-empted by the illegal election of the younger Marius. So Gratidianus received his second praetorship . . . as a consolation prize,” surely by special arrangement.246 This era of exemptions came to a screeching halt upon Sulla’s victory in late 82. Q. Lucretius Afella took Praeneste for Sulla in that year, only to lose his life when he sought a consulship of 81 “against Sulla’s will.”247 Sumner may be right in his provisional suggestion that Afella (“born ca. 130–124”) had been literally a “Marianarum . . . partium praetor” who crossed sides (thus Velleius), against Appian’s assertion that he wanted “to be consul while still an equestrian, before he had been quaestor and praetor.”248 Appian here may be simply extrapolating from his own knowledge of Sulla’s measures on the cursus honorum.249 This author may be no more accurate on Afella than on those other constitutional points. Cicero certainly implies Afella reached a magistracy of some sort.250 And so we might accept Sumner’s tentative reconstruction, that Afella was praetor in 83 or 82; Sulla was objecting to his failure to comply with the biennium between praetorship and consulship (a regulation of the lex Annalis unknown to Appian).
10.6 Special Provinciae in the City of Rome 10.6.1 L. Cassius Ravilla and the Trial of the Vestals in 113 For most of the second half of the second century B.C., on the few occasions when extraordinary quaestiones were declared, they customarily fell to to one or both consuls of the year.251 That changed in 113, when L. Cassius Longinus Ravilla (cos. 127) received a special appointment by the People to inquire into the case of three Vestals tried on a charge of incestum in mid-December of the previous year. The pontifex maximus L. Caecilius Metellus Delmaticus and the college of pontifices— the traditional authorities for such cases—had condemned just one of the three
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priestesses. Cassius Ravilla’s appointment must be reconstructed from a number of different sources, with Asconius providing the fullest notice of the commission. There is a reasonable chance that it involved an extraordinary grant of praetorian imperium. A tribunus plebis of 113, Sex. Peducaeus, challenged (probably immediately) the decision of the pontifices.253 A plebiscite must have followed to move for a retrial: Cicero254 in fact speaks of a “rogatio Peducaea.” Allowing for the trinum nundinum (however computed), Peducaeus’ bill can have become law no sooner than mid-January 113. We can assume that this plebiscite provided for the removal of the pontifices from further involvement in the case and, in their stead, the establishment of a special prosecutor to retry the Vestals. Once the law established the position, an election was held by the People to fill it. Asconius explicitly states that “populus . . . Cassium creavit” to conduct a judicial investigation of Marcia and Licinia. Asconius then relates that Cassius was perceived to have employed excessive severity when “he condemned both these and in addition many other women.” Dio seems to confirm Asconius on the point that many individuals other than the Vestals Marcia and Licinia were punished. And Valerius Maximus tells us that M. Antonius (the future cos. 99)—though a quaestor about to sail to his provincia of Asia—waived the immunity he had under a lex Memmia and returned from Brundisium to defend himself in Cassius Ravilla’s quaestio. That last item helps establish the chronology. L. Cassius Ravilla must have had his appointment by early spring of 113 (as we would in any case expect), when magistrates would be on their way to overseas provinces. Valerius also mentions jurors (“iudices”) in connection with Antonius’ trial, which should be an accurate detail. If accepted, it shows precisely how much impact the form of the quaestio perpetua already had in Rome, just a decade after its reform by C. Gracchus. Some authorities have suggested that the court was staffed by equestrians: perhaps, but in that case Ravilla—who came out of this quaestio with a personal reputation for extreme severity—must have been allowed to pick them himself.255 These “Cassiani iudices” later became a byword for moral strictness.256 To carry out his sweeping judicial tasks, L. Cassius Ravilla must have been voted special powers, perhaps even (praetorian) imperium, at the time of his election. In fact, Valerius Maximus terms L. Cassius “praetor” in describing how Antonius was haled before his tribunal in 113. Münzer (without argument) dismissed the title as an error on Valerius’ part.257 But it is perfectly likely to be correct (i.e., if understood as “pro praetore”). Ravilla’s status as a senior consular, the circumstances of his appointment (plebiscite followed by popular “election” in a time of hysteria) and the far-reaching nature of his quaestio—which included the prosecution of at least one magistrate in office—all tend to support the (sole) title we are given for his position. To be sure, a special vote of imperium to an individual to act within the city has little in the way of precedent. Livy reports instances of such a grant during the acute emergency of 211 when Hannibal attacked Rome (5.2.1 with Additional Note V). Q. Marcius Rex (pr. urb. 144) needed some sort of arrangement to complete his famous aqueduct as pro praetore in 143 (8.6.2). After L. Cassius Ravilla in 113, there
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is no indication that any privatus in this period (i.e. down to 81) received imperium to see to judicial responsibilities in Rome. 10.6.2 Other Special Quaestiones In 111, the tribunus plebis C. Memmius tried to set up a process to prosecute M. Aemilius Scaurus (cos. 115) and other Romans who allegedly had taken bribes (“pecuniae captae”) from Jugurtha. First, Memmius passed a bill that dispatched a certain L. Cassius Longinus, while still pr. 111, to bring Jugurtha to the city. We are told the tribune had positively agitated for Cassius’ appointment. Was he the son of L. Cassius Ravilla? Modest support comes from Sallust’s notice that this praetor Cassius had an exceptionally high reputation at the time of his commission.258 Next, Memmius planned to make Jugurtha give public testimony against the individuals he was planning to indict. But a tribunician colleague put a stop to this scheme as soon as Jugurtha was brought before a contio. Gruen argues that “if judicial proceedings were to come to fruition . . . the formal charge contemplated was clearly perduellio.”259 Who is to say? It is just possible that C. Memmius had passed or was going to pass a rogatio appointing the pr. 111 L. Cassius Longinus to administer the trial with jurors, on the model of the Cassian quaestio of 113. The advantage of using a praetor of the year was that he already had imperium. Yet without Jugurtha’s testimony, Memmius must have known—whatever the precise form of prosecution he intended—that there was no point in continuing. However, the inept Roman leadership in the first years of the actual Jugurthine War paved the way for the successful establishment of such a quaestio. To try those suspected of making accommodations with Jugurtha, the tr. pl. 109 C. Mamilius Limetanus provided for the election of three quaesitores who would simultaneously run capital courts staffed by (probably) equestrian iudices. The identity of just one of the quaesitores is known—the cos. 115 M. Aemilius Scaurus, who despite his status appeared as an advocate in another one of the three courts.260 The structure of the Mamilian inquisition certainly does not seem far removed from Cassius Ravilla’s incestum court of 113. There is no indication, however, in our (admittedly skimpy) sources on the procedure that the quaesitores of the lex Mamilia had special grants of imperium. The fact that there were three of them makes it most unlikely. This quaestio—with its multiple courts, obviously aiming at fast results—certainly achieved its object. The juries in the constituent courts saw to the condemnation of four consulars—L. Opimius (cos. 121), C. Porcius Cato (cos. 114), (apparently) L. Calpurnius Bestia (cos. 111), and Sp. Postumius Albinus (cos. 110)— and the priest (sacerdos) C. Sulpicius Galba.261 Cicero adds that Galba was the first priest ever condemned in a iudicium publicum, and that he “fell in his cursus” (“cecidit in cursu”).262 Konrad interprets Cicero to suggest that “most likely, Galba had been aiming at the praetorship (or even the consulship?) of 108.”263 Or a consulship for the following year? G. Farney264 argues that it was precisely the unexpected and unprecedented condemnation of this priest that prompted C. Marius to think he had a chance among the consular candidates of 108 for 107. But if
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387
Cicero means the cursus that C. Galba failed to complete was his “cursus forensis,”265 we need not think he was a candidate for anything at the time of his trial under the Mamilian law. All the same, Galba seems not unlikely to have been of praetorian status at the time of his condemnation.266 We have notice of a handful of additional special quaestiones in the years down to Sulla, but in each case the administrative details are lacking. A quaestio was established at Rome to investigate the disappearance of the gold of Tolosa: Q. Servilius Caepio as cos. 106 had robbed the Volcae Tectosages of their sacred treasure, but failed to convey it safely to the city. The quaestio was evidently a major affair that saw a number of convictions. But no source mentions its structure.167 The Constantinian epitomator of Diodorus relates that in 101 B.C., L. Appuleius Saturninus was prosecuted in a great public trial on a capital charge, namely, that he had violated the immunity of Mithridates’ envoys to the Senate. Yet a large popular demonstration at his trial prompted senators (i.e., acting as iudices) to acquit him. Alexander regards this as a special quaestio, which may well be correct. But the excerptor of Diodorus gives no hint who presided.268 The consular lex Licinia Mucia of 95 B.C. provided that Italians who were illegally acting as Roman citizens should each be reduced to the legal status of their own towns, and set up a quaestio to enforce it. Cicero terms that quaestio “very severe” (“acerrima”). Yet neither he nor any other source mentions the mechanics.269 Finally, after the outbreak of the Social War—and the suspension of all regular iudicia—the tr. pl. 90 Q. Varius passed, over the opposition of his colleagues, a law establishing a special quaestio with equestrian jurors to try those nobles suspected of helping the allies “by their aid or advice” (“ope consiliove”). For a time, the court to hear this vague charge (as Cicero tells us) was the only one functioning in Rome. Yet in early 89, the optimates took over the Varian court as their own, reconstituting it (through a tribunician lex Plotia) now with senators, equites, and even some individuals (exceptionally) de plebe as the jurors. For the first (i.e., antiOptimate) phase of the Varian quaestio, we know of eight or nine individual trials threatened or realized, and after the reform of 89 B.C. two more. However, no source indicates who presided in any of these instances.270 It was probably not a praetor. Varius, when introducing his law, surely could not count on any praetor of 90 to be available continuously in Rome to run his ambitious court. In the military emergency, every city praetor was liable to be sent into the field: the Senate had suspended the regular iudicia for that very reason. At the time when the tribune Plotius passed his bill (very late 90 or early 89 B.C.), the regular courts may or may not have reopened but the military situation still remained quite dangerous. The quaestio had run effectively—indeed, all too effectively271—in 90 B.C. Plotius in his reform probably kept Varius’ basic structure in place, merely changing the composition of the iudices, so as to ensure the right type of verdicts. If a praetor was not presiding in 90 B.C. (as seems likely), the same probably goes for 89 B.C. as well.
11
General Developments in the Praetorship, 81–50
11.1 The Sullan Reforms On 29 and 30 January 81, L. Cornelius Sulla formally entered Rome in triumph. Or, rather, re-entered. Sulla had taken the city almost three full months previously, through his victory over the Marians and their Italian allies at the Colline Gate. Not long afterward, he had excused himself from Rome. The idea was to exacerbate the constitutional crisis; at this point both consuls of 82 were dead. On Sulla’s request, the Senate did the only thing it could do, which was to select an interrex, with the expectation that this magistrate would hold consular elections. In a letter, Sulla offered the Senate an alternative, to revive the dictatorship (last seen in 202 B.C.), and suggested that it choose him for the position. The interrex L. Valerius Flaccus obliged, passing a law that set in motion the appointment of Sulla as dictator, technically “rei publicae constituendae causa” and (against precedent) for an indeterminate time. The new dictator reciprocated by appointing Flaccus as his magister equitum, though in his case for a fixed term. It was as dictator that Sulla celebrated his late January triumph, not of course for the civil warfare of 83–82, but for his earlier victory over Mithridates. The twoday celebration was meant to underline that fact. Sulla surely wanted to evoke the three-day triumphs of T. Quinctius Flamininus in 194 and L. Aemilius Paullus in 167 for their grand eastern commands against respectively Philip V and Perseus of Macedon. After this splendid re-entry—the first triumph by a dictator since that of the great M. Valerius Corvus in 301 B.C.—Sulla set out on an ambitious legislative program to reform (among other things) Roman administrative practice. In the next year or two—to register only the Cornelian laws of close relevance to this study—Sulla increased the number of praetors, regulated anew the cursus honorum, restructured the quaestio system, provided that consuls and praetors could stay in Rome during their actual magistracy and take up territorial provinces ex magistratu, and introduced a comprehensive law regulating the activities of commanders outside Rome. There is no reason to think discussion of these meas388
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ures was encouraged. In the city, the dictator retained the twenty-four lictors that he had militiae (and thus on the days of his triumph) throughout his tenure of this formidable office—a frightening precedent that was long remembered.1
11.1.1 Sulla’s Increase in the Number of Praetors No direct source survives describing Sulla’s reorganization of the praetorship. We are left to our own devices regarding how he changed this magistracy, and must piece together what we can from later (sometimes very late) literary sources. Let us start with a point of chronology. Regular magistrates—including consuls—were elected by Sulla for 81 B.C., but we do not know precisely when.2 Cicero’s Pro Quinctio offers a terminus for the praetorian elections. He tells us that one Sex. Naevius decided to sue for a judgment debt eighteen months after last calling P. Quinctius into court at Rome (for 13 September 83), and approached the city praetor Cn. Cornelius Dolabella to do so.3 That means there were praetors in Rome in mid-March of 81. Why did Naevius wait those eighteen months? The civil warfare of 83 and 82 is of course a large part of it. As for 81, there is some reason to believe the praetors entered office late and when Naevius petitioned the praetor Dolabella in March it was at his first opportunity. In a Senate session of 27 March 81, we find that it is not a quaestor but (surprisingly) a pro quaestore who is ordered to give the customary diplomatic gifts to an embassy from Caria. On the face of it, the presence of a prorogued magistrate in the city suggests that there were not enough quaestors to go around.4 Indeed, under the Lex Cornelia de XX quaestoribus Sulla raised the number of quaestors, starting for the year 80.5 Yet, given the importance of the two quaestores urbani—who had the oldest and most demanding quaestorian province—a better explanation is that on 27 March 81, elections for minor magistrates had not yet taken place.6 It is entirely possible that before holding the elections for curule magistrates, Sulla—in February or even early March of 81—introduced his law to increase the number of praetors. A reasonable estimate gives us more than six for that year. C. Annius (13.4.2) and M. Minucius Thermus (14.6.1) went respectively to Spain and Asia as praetorian commanders in what must be 81. Sex. Nonius Sufenas (12.1.1) is said to have held the first Ludi Victoriae Sullanae, and so is nearly certain to have been praetor that same year. Cn. Cornelius Dolabella, later pro praetore for Cilicia in 80 (15.1.1), is definite, as is M. Aemilius Lepidus (cos. 78, and thus pr. by 81), who shows up as governor of Sicily for 80 (13.2.2). On the analogy of these last two men—not to mention Cn. Cornelius Dolabella (cos. 81, pro cos. Macedonia for 80, as we shall see in 14.2.1)—we can reasonably (though not definitely) assume C. Claudius Nero, found as pro consule in Asia succeeding M. Thermus by early 80, also received his command ex praetura from a praetorship in 81 (14.6.1). Nero brings the number of certain or probable praetors for the year to six. And two more individuals readily present themselves: Q. Lutatius Catulus (cos. 78) almost surely reached the praetorship in 81, while one must also account for Mam. Aemilius Lepidus Livianus, a consular candidate by 78.7
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The college of praetors had been expanded to six in 197, but never beyond that number. One does not have to look too hard to see why Sulla took his major step of lifting that numerical cap. By the late 90s, there were at least a dozen regular provinciae to be staffed. The territorial provinces were Sicily, Sardinia, Hispania Citerior and Ulterior, Macedonia, Asia, Africa, and Cilicia, along with Gallia Transalpina and Gallia Cisalpina (which already in the 90s appear to be two separate commands). Then there were the praetorian provinciae in the city, three or more of which—the urban and peregrine jurisdictions and the various criminal courts—ideally should have been allotted anew to praetors separately in the sortition each and every year. Badian was the first to demonstrate in detail how the steady accretion of new provinciae coupled with the emergency conditions of the Social and Civil Wars brought the administrative system to a virtual halt in the latter half of the 90s and 80s.8 I would add that one of the early victims was Sulla himself. After a successful urban praetorship of 97, he had to stay in his promagisterial provincia of Cilicia for perhaps four years (10.1). So the dictator had firsthand experience of what it was like to be stuck in a distant provincia for a long period of time. In chapters 10 and 13–14 passim, and in 15.3.1–3, I offer some subsidiary observations to Badian’s sketch. In short, the wretched state of the territorial provinces at the conclusion of civil warfare practically demanded an immediate increase in the number of commanders with imperium. At the time of Sulla’s late-January 81 triumph, a junior legatus had been holding Sicily for some months (13.1.4). Another Sullan legatus (an ex-consul of 91) was in charge of Sardinia—a Marian praetor lost his life there in 82 (13.1.4)—and the rebel Q. Sertorius (pr. by 83) had taken effective control of both the Spains (13.3.2). One of Sulla’s subordinates from his eastern command must have been in charge of Macedonia since early in 83 B.C. (14.1.4). Another of Sulla’s officers (probably the pr. 88 L. Cornelius Lentulus) had been in Cilicia even longer (10.1). The privatus cum imperio Pompey was in Africa, yet he was soon to leave the provincia, against Sulla’s orders (14.3.3). In Asia, the praetorian commander L. Licinius Murena had stirred up an unauthorized war with Mithridates, and needed to be recalled (14.5.9). The Roman commander in Transalpine Gaul was a consul of 93, now starting his thirteenth continuous year of imperium (10.2.3). So there were good practical reasons in early 81 why Sulla might introduce legislation to increase the number of praetors, delaying the curule elections until that law saw passage. Unfortunately, the suggestion of this date must remain a hypothesis. Just a few sources (all Imperial) mention this legislation, and then only indirectly. Speaking of the reforms of Augustus, Velleius Paterculus states, “he scaled the imperium of magistrates back to the old level, except that to the eight praetors two were added.” Since C. Iulius Caesar had raised the number to ten, and then successively up to sixteen, the “old level” (pristinus modus) should be the late Republican—that is, Sullan—total.9 Velleius should have known what he was talking about. He and his brother held the praetorship in A.D. 15, and he had some information about the history of the office (see immediately below). And Dio Cassius adds confirmation to Velleius’ statement when he reports that in 47 B.C., Julius Caesar decided, in order to reward more senators, to increase the number of praetors for the coming year beyond the legal number to ten.10 As it happens, the
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unreliable epitomator of Pomponius erroneously anticipates this Caesarian total by ascribing ten praetors to Sulla. We already have seen (3.1.2) how little stock one can place in this late source.11 Plainly, there were eight praetors elected for the year 57 B.C.,12 and thus for every other year between Sulla’s dictatorship and Caesar’s later reforms.13 An immediate effect of increasing the number of praetors was that it lessened the prestige of the office. Velleius implies as much. He boasts that the Roman people granted his great-grandfather Minatius Magius (of Aeclanum) citizenship for oustanding service in the Social War, and raised two of his sons to the praetorship, “when six were still being elected.”14 Eight praetors also meant that Sulla had to move the consular and praetorian elections in the centuriate assembly back from (so it seems) November to a point after 9 July. Apparently, the election of the two additional magistrates significantly prolonged the proceedings and thus required additional daylight!15 More serious was the issue of ambitus. Sulla surely knew that to introduce two new praetors at once for a total of eight would directly cause increased competition in the consular elections. That was the reason why the Senate let the number of praetors stand at six for so long, and precisely a century previous even tried reducing the number to four in alternate years (7.2.4). For Sulla suddenly to reduce the odds of a praetor eventually reaching the consulship from one in three to one in four was one of the high costs of his political settlement.16 The dictator did introduce new legislation to mitigate the effects of intensified electoral competition, specifically a lex Cornelia de ambitu that banned those convicted under the statute from seeking office for ten years.17 Sulla’s law is the first named legislation in our record for this crime since the lex Cornelia Baebia of 181, though the Livian Periocha reports a lex de ambitu in 159 B.C., and some statute must have set up the standing quaestio for this crime (10.4.1) by 116 B.C. Sulla’s particular measure on procuring election had no real deterrent effect. That can be inferred—with all due caution—from the great number of ambitus and related trials in the 60s and (especially) 50s. Numerically most of those known have to do with consular candidacy.18 Indeed, from Cicero one sometimes gets the impression that the only elections that attracted serious attention were the consular ones.19 Yet our record implies that heightened competition for the consulship apparently had a trickle-down effect on those for lower magistracies. References to prosecutions of praetorian candidates for ambitus are frequent enough, and spread fairly evenly throughout our period.20 A much sounder indication of the impact of Sulla’s legislation on the eight praetors is the series of additional anti-ambitus measures—including three consular laws, each with progressively stricter penalties and an ever-wider scope—that start in the early 60s and continue to the end of our period. In the latter half of the 50s, city praetors even found themselves staffing a permanent quaestio de sodaliciis—set up to counter associations that practiced electoral bribery and intimidation (11.7.7)—alongside the regular quaestio de ambitu.21 Yet perhaps the best indicator of all is the frequently delayed and disrupted consular elections of the last generation of the Republic.22 Again, praetorian comitia were fully part of the problem. For instance, abuses in the (delayed) elections for 55 B.C. were serious enough for some
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partisans of the praetorian candidate M. Porcius Cato to propose—on the late date of 11 February in that year—that the praetors designate should not enter office immediately but be required to wait 60 days, so as to allow time for prosecutors to come forward.23 11.1.2 Sulla’s Legislation on the Cursus Honorum Alongside Sulla’s change in the number of praetors and his new legislation on ambitus, we find reregulation of the cursus. Indeed, it is worth suggesting that his legislation on these matters fell precisely in that order. For this he had as a precedent the legislative program of the lex Cornelia Baebia of 181 followed by the lex Villia Annalis of 180 (see 7.2.5).24 Age requirements for the praetorship and consulship had been in force since the early second century, and had been codified into law as early as L. Villius’ tribunician law of 180 B.C. Sulla stipulated a minimum age of thirty for the quaestorship (which he made a compulsory first step), and restipulated those for the praetorship (thirty-nine) and consulship (forty-two). Other offices were outside the cursus, but the aedileship (curule or plebeian), if held, went before the praetorship. Sulla also maintained the two-year interval between the praetorship and the consulship, required since the early second century. The main innovation, so it seems, was the stipulation that those desiring a political career start with the quaestorship. Yet, even before Sulla, omission of this office was extremely rare.25 Appian says he also forbade iteration of the same office within ten years.26 The evidence is ambiguous whether that particular provision extended to the praetorship.27 So why this legislation? Sulla’s widening of the political pyramid—with twenty quaestors and eight praetors, but just two consuls at the top—in itself necessitated a reformulation of the rules. And the previous decade had seen the formation of some unwanted precedents. I have argued (10.5.8) that at the outbreak of the Social War there was a partial suspension of the leges annales by traditional emergency measures. Some unusual careers resulted, most prominently (I have suggested) those of the ex-praetors Cn. Pompeius Strabo and L. Porcius Cato, who appear to have reached the consulship of 89 B.C. within the expected biennium. That gave a sense of entitlement to those who followed, culminating in all sorts of exemptions under the Cinnan government. Sulla had broadcast his intentions already in 82 B.C., when he had his subordinate Q. Lucretius Afella—who had strong support among the People28—killed for seeking a consulship in contravention of leges annales then on the books. Afella had seen the past irregularities and assumed he would benefit under Sulla’s new government. There were surely many others like him: the strengthened cursus legislation was meant in part as a message to Sulla’s own supporters. In the event, dispensation was given to Pompey (cos. I 70) to allow him to hold the consulship without having been praetor or quaestor. But no others that we know of obtained this kind of waiver. How well did Sulla’s enforced cursus work? There is no sense discussing progress from the quaestorship to the praetorship in any period, since we have so few firm dates for the former office. We are a bit better informed on the tribunate. Yet that office was always outside the cursus—and under Sulla’s original settlement
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a political dead end, with tribunes debarred from holding higher magistracies. Once that provision was rescinded in the year 75, we find a fair number of the extribunes who reach the praetorship doing so in quick order. Almost half the individuals for whom we have secure dates of tribunate and praetorship show intervals between the two magistracies of just one or two years,29 a bit more if they also hold an aedileship.30 However, it turns out that at no point in these decades do we have an instance of an ex-tribune being elected praetor more than eight years after his tenure of the lower office.31 Those patterns suggest that politically ambitious men who held a tribunate tried to do so when they were not far under the qualifying age for praetorian candidacy. The idea must have been to make a bid for the praetorship while public memories of one’s tribunate were still fresh. Failure to win quick election to a praetorship surely made an ex-tribune’s career more difficult, and more than one or two repulsae were probably fatal, despite the availability of eight praetorian places each year. Though real comparative evidence for the pre-Sullan period is lacking, the impression one gets is that then ex-tribunes were not in quite such a hurry to reach the praetorship.32 As for ex-aediles who win the praetorship in the post-Sullan era, the overwhelming majority do so at short intervals, that is, after a biennium or sometimes even a single year.33 Let us postpone interpretation of that feature for a moment. Movement from the praetorship to consulship in the later Republic is frustratingly hard to quantify. There are just thirty-seven instances where we have a reasonably firm date for a praetor who went on to hold the consulship in the period 166 down to 79 B.C. (Remember there were notionally 176 consular places to be filled over those years.) And of those individuals, one man’s consulship (P. Cornelius Lentulus, pr. 165 and cos. 162) falls in an era that saw unrestricted consular iteration, another received his in the period of Marius’ ascendancy (Q. Lutatius Catulus, pr. by 109 and elected cos. 102 B.C. after three repulsae),34 and a half-dozen belong to either the Civil War (86–82) or the period when Sulla controlled elections (81–79). When examining post-Sullan conditions, these particular instances really cannot be used for comparison.35 However, matters dramatically improve for the consuls of the years 78–49 B.C., where we have the dates of praetorship for roughly half (thirty-four in all) of the consuls. Keeping those caveats in mind, in the period down to the Social War seventeen or eighteen of the twenty-nine consuls in our (tiny) sample are certain to have progressed from praetorship to consulship within three or four years.36 In other words, about two-thirds of the ex-praetors who were elected consul reached the higher office at or just above the minimum interval. The dozen remaining individuals show a range of up to nine years.37 In fact, L. Cornelius Sulla (pr. 97) had to wait precisely that long before winning his first consulship for 88, the longest known interval since (perhaps) L. Mummius, pr. 155 and cos. 146—longer even than the interval shown by the new man C. Marius (pr. 115, cos. I 107). I have suggested (7.2.5) that the experience of M. Baebius Tamphilus (pr. 192, cos. 181)—who, like his brother (pr. 199, cos. 182), had an exceptionally difficult time making it to the consulship—had something to do with his zeal for reforming the political system of his day. No doubt personal factors also partly motivated Sulla’s legislation on the cursus honorum.
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But back to the results of Sulla’s overhaul: of the consuls of the years 78 down to 50, the proportion of those reaching that office at or just over the minimum interval after praetorship (i.e. three or four years) is over two-thirds—twenty-five of the thirty-five men for whom we have the requisite dates. And fully twenty of those expraetors gained the consulship precisely after a biennium.38 It would seem that Sulla’s increase in the number of praetors had no real effect at all on the speed at which one might win the consulship—until we look at the other ten individuals in our sample. Let us exclude L. Gellius—pr. 94 and finally elected cos. for the year 72 after an amazing interval of twenty-two years—as a casualty of the unusual conditions of the Social and Civil Wars. We find that four of these men have to wait five or six years for a consulship.39 The rest show enormous intervals—waits of nine to fourteen years—between praetorship and consulship, a situation reminiscent of the decade before the passage of the lex Villia Annalis of 180 B.C. (7.2.5). Simply put, Sulla’s additions to the number of praetors and reform of the cursus evidently created a “winner takes all” atmosphere at the curule elections. Overall, our statistics for the last three decades of the Republic suggest that consular candidates who were defeated on their first try were unlikely to reach the office at all. The reappearance of consular iteration in the latter half of the 50s (Crassus and Pompey as coss. II 55 and Pompey as cos. III 52) will only have intensified the competition. Yet sometimes sheer persistence might pay off. The outstanding example in this era is Ser. Sulpicius Rufus, jurist and pr. 65. He was an unsuccessful candidate (at a minimum) for 62 and probably 58, but finally won the consulship for 51.40 One might add that the overheated atmosphere of the consular elections in this period seems to have raised the temperature also of the praetorian ones—for no good reason, since Sulla had expanded the college of praetors. All the same, an examination of known careers suggests that ex-tribunes and (especially) ex-aediles had to win one of the eight places quickly or run a real risk of being shut out forever. The large number of ambitus trials in the later Republic that stem from praetorian elections goes some way toward confirming this picture. 11.1.3 Institutionalization of Ex Magistratu Commands A major Sullan development was that it was henceforth understood that both consuls and all praetors should normally remain in Rome for the year of their actual magistracy. While in Rome, praetors were to staff the urban and peregrine jurisdictions (see 12.2.1) and the various criminal courts; the consuls had no set provinciae in the city. Then, following the year of office, these magistrates were to govern a territorial provincia. Our record suggests that Sulla on taking control of the state had already decided on this system: note Cn. Cornelius (Cn.f.) Dolabella, praetor in the city (probably urbanus) in 81 and then promagistrate in Cilicia in 80 (15.1.1), and also M. Aemilius Lepidus and C. Claudius Nero, who received Sicily (13.2.2) and Asia (14.6.1) respectively (probably) ex magistratu. But the dictator had to make allowances from the very start, thanks to the emergency posed by Sertorius in Spain and the necessity—apparently around this same time—of recalling L. Murena from Asia. Those situations caused the praetors C. Annius to be sent to Spain (13.4.2) and (probably) M. Thermus to go to Asia (14.6.1) in their magisterial year of
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81. In the next year, L. Fufidius and M. Domitius Calvinus also had to take up provinciae (the two Spains) during the term of their actual magistracy (13.4.2). Under the Sullan system, with (probably) ten regular territorial provinciae and two consuls and eight praetors to go around, it was theoretically possible that each of these provinciae be governed by a magistrate for one year only. What is more, the necessity of declaring the occasional special provincia would not place too great a strain on the administrative machinery. Yet oddly Sulla decided that the lex Sempronia of 123 (9.3.2) was still to fix the consular territorial provinciae. The Senate now had to decide eighteen or more months in advance (assuming July elections) where a given consular pair was needed.41 “It is indeed amazing that Sulla himself did not see the shortsightedness of forcing the lex Sempronia to operate under such altered conditions,” observed N. J. Woodhead in a full-length study of the workings of this law. “He apparently did not take into consideration the acquisition of new provinces nor the possibility that within a few years Rome would become the place to be, and, that therefore some potential promagistrates would refuse the opportunity to accept a provincia or govern a territorial province.”42 We shall take up this latter point below. Suffice it to say for now that one year after Sulla’s death the Bellum Lepidanum forced the Sempronian arrangements for the consuls of 78 (i.e., for 77) to be abandoned. But that was an accident, in response to a crisis. Various types of exceptions followed in 74 (a year in which both consuls contrived that they be sent to fight an eastern war), 68 (the cos. Q. Marcius Rex received Lucullus’ command in Cilicia), 67 (the lex Gabinia was passed, withdrawing Bithynia/Pontus from Lucullus), 59 (lex Vatinia), 58 (lex Clodia), and 55 (lex Trebonia). Sulla did not stipulate when a consul was to leave Rome to take up his province. Sometimes it was as early as November in one’s year of office. Others delayed their departure for some months into the next year. But only as consuls could they go through the full departure ceremonies; promagistrates were debarred from doing so.43 As for the praetors, the Sullan system featured a process of sortition whereby the designati—apparently soon after their election—were allotted the urban and peregrine praetorships and various criminal quaestiones.44 Sortition of the territorial provinces that ex-praetors would hold apparently came whenever the Senate got around to it. Sometimes we find sortition of promagisterial provinces during the year of the magistracy. At other times it falls early in the year in which the relevant promagistrates were to take up their command (up to mid-March). Evidently Sulla did not establish an administrative calendar to be followed.45 The practice of a city praetor proceeding in the year after his magistracy to hold a command in a regular territorial provincia was in itself not new. Even if we leave aside various wartime expedients of the late third and second centuries (discussed in 9.4.2), it receives certain attestation already in the last quarter of the second century. C. Marius served as a city praetor in 115, and after his praetorship held Hispania Ulterior as a provincia (13.3.1). Plutarch says Marius received that provincia by lot,46 which implies—unless the author is anachronistic in this detail—that he was not the only ex-praetor to take up an overseas command in this year. And it is certain that after Marius at least five city praetors down to the time of the Social War—including Sulla himself as pr. urb. 97—proceeded to overseas commands
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(mostly though not invariably in eastern provinces) ex praetura.47 In the 90s, we have some indication that the Romans had started using ex consulatu commands, too.48 What was consequential about Sulla’s reform is that by generalizing this practice to cover all consuls and praetors he completed a process that had begun a full century earlier with the introduction of the lex Baebia (7.2.4) and taken firm hold with the annexation of Macedonia and Africa in 146 (9.3.1)—the institutionalization of the promagistracy. But there is no trace of a lex Cornelia on this matter, and (as H. F. Pelham showed long ago) it is unlikely that there was one. Here Sullla merely had to validate the emerging mos maiorum through indirect means, namely, by increasing the number of praetors so that there were just as many holders of imperium as territorial provinciae.49 11.1.4 Implications of Keeping Eight Praetors in the City What were all those city praetors supposed to do during their magistracy? We have seen (10.4.1–4) that even previous to Sulla’s victory there were at least six quaestiones perpetuae functioning in Rome—repetundae, ambitus, maiestas, peculatus, de veneficiis, and inter sicarios. Sulla kept all these in place, merged the administration of the latter two, and introduced at least one additional court (de testamentis) (11.7.1–5). In theory, the increase in praetors from six to eight and institutional acceptance of the scheme by which all remained for a year in Rome ensured that there would be one praetor for each of the two “civil” jurisdictions and six for a corresponding number of permanent courts. But later practice soon shows that the system presupposed continued use of the iudex quaestionis (10.4.3) to cover the courts that praetors could not. So here, too, Sulla was institutionalizing what was previously an ad hoc provision. Sulla clearly meant for the system of permanent quaestiones—now to be staffed by senatorial juries—to take over most capital prosecutions.50 In his reforms, he might have positively stripped tribunes of their power to prosecute, at least for capital offenses.51 Iudicia populi of that sort were a prominent feature of the Cinnan regime (10.4.5), aimed at Sulla and his adherents. Yet no such trials are attested in the 70s. However, in the year 74 we do find the tribunus plebis L. Quinctius prosecuting two men in popular trials for pecuniary penalties.52 Either Sulla left that right intact, or it was restored, perhaps in 75, the year when a consular law permitted tribunes to hold higher magistracies. The former seems the more likely possibility: Quinctius may have been exploiting a loophole that previous (that is, pre-75) tribunes had been too cowed to try.53 So now there were notionally to be ten holders of imperium in the city for the duration of each and every year. Through this arangement, Sulla ran the risk of turning the consuls and praetors into a sort of glorified tribunate.54 Praetors would suffer the greatest relative loss in prestige, since henceforth at all normal times there was at least one holder of imperium maius in the city. This meant, for instance, that the urban praetor was now effectively debarred from serving as Senate president (12.4.1).55 Nor did any praetor stand much chance of getting legislation passed if either consuls or tribunes were unwilling (12.4.3). Of course, by putting so many magistrates in the city Sulla also heightened the danger of future
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conflict between consuls and praetors,56 between members of the same praetorian college,57 and between praetors and lower magistrates.58 On the most basic level, in such a crowded atmosphere, with newly circumscribed powers—and with the consulship now significantly harder to obtain—the temptation for an individual praetor to grandstand would be huge. The year 85 had featured a spectacular example of noncooperation between city magistrates in which a renegade praetor won popular adulation by representing a laboriously drafted joint praetorian and tribunician measure as his own.59 Granted, even after Sulla, collegiality among praetors still meant something.60 And we occasionally find examples of carefully concerted action by a praetorian college.61 Yet overall, Sulla’s reform set the stage for even more of that type of popularity hunting—or worse. For instance, we soon find praetors looking for political advancement by throwing themselves behind tribunician bills in a particularly ostentatious manner (the outstanding example is Cicero’s support of the lex Manilia in 66)—or even personally promulgating legislation that they knew was unlikely to pass, simply to make a political point (12.4.3). A common scenario is for two or more praetors to team up to push a particular political program.62 Sometimes praetors group up on a larger scale, such as when the praetorian college of 54 split in dispute over the triumph of C. Pomptinus (pr. 63) (12.4.3, 15.2.3). Others set out on their own path to exploit the negative power of their office. The praetors Ap. Claudius Pulcher in 57 and C. Claudius Pulcher in 56 apparently devoted the bulk of their terms to supporting their brother P. Clodius, resorting even to violence in the city.63 Violent agitation by city praetors was not an exclusively post-Sullan problem, as the example of C. Glaucia in 100 (see below) goes to show. However, by the end of our period it is safe to say the increase in number of praetors and their restriction to Rome made the city significantly less safe in general.64 When it comes to disruptive behavior in the city, the pr. II 63 P. Cornelius Lentulus Sura is in a class by himself. Praetor in 74 and consul for 71, Lentulus was expelled from the Senate in 70 B.C.65 He re-entered the Senate (surely) through the quaestorship and in 63 was praetor for a second time. His city provincia in 63 is unspecified, but he apparently was notorious for doing little of the requisite work.66 Many sources—including Cicero himself—identify him as the chief subordinate in Catiline’s conspiracy, responsible for the urban part of the uprising.67 When the consul Cicero and Lentulus’ own praetorian colleagues L. Flaccus and C. Pomptinus arrested the Allobrogian envoys on their way out of Rome on the night of 2/3 December, Lentulus was detected. In the days that followed, the precedent Cicero plainly was trying to avoid was that of 100 B.C. In that year, C. Marius saw the tribunus plebis Saturninus and the praetor C. Glaucia killed in the Curia while they were still wearing their magisterial insignia.68 In this case, the consul did not let Lentulus’ praetorian colleagues touch him. Rather, Cicero personally escorted this conspirator—“because he was a praetor” (thus Sallust)—by the hand to a Senate meeting at the temple of Concord to give testimony. The duty of L. Flaccus (who was pr. urb.) was merely to bring to the meeting the incriminating dossier of letters seized from the Allobroges.69 On hearing various testimony, the Senate voted that Lentulus abdicate his office and be placed under arrest.70 Plutarch says that Lentulus did so right
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there in the Senate, by renouncing his office on oath—Dio confirms that feature, expected in any case from the verb abdicare—and taking off his toga praetexta to put on clothes of mourning. This is a valuable notice on the mechanics of abdicating one’s office. Other instances suggest that Lentulus also will have sent away his lictors.71 (Perhaps the praetor calculated that cooperation would save his life.) Then Lentulus was handed over to an aedile, P. Cornelius Lentulus Spinther, for custody.72 In this year, we find the city praetors housing the other leading defendants in the Catilinarian conspiracy.74 Cicero and the Senate must have thought that charging one of the praetors of 63 with Lentulus’ incarceration was inappropriate because of their (now former) collegial status. Soon Cicero obtained the Senate’s vote that Lentulus and eight of his fellow conspirators should not face life imprisonment and confiscation of property,74 but a sentence of death.75 As Cicero paraphrases it, the senatus consultum specified that Lentulus—unlike the praetor Glaucia in 100 B.C.—was fully a privatus and his abdication indeed removed all religio from his punishment.76 Thus, the consul had Lentulus and the others put to death—without allowing them to exercise their traditional right of appeal to the People. Cicero himself handed over Lentulus to the executioners, and city praetors saw to the other conspirators.77 In various passages, Cicero shows clear relief that in the crisis Lentulus’ praetorian colleagues all came down on the appropriate side.78 The invidia for all the executions fell squarely on Cicero, not least because he had presided over the Senate meeting which voted for the death sentence.79 11.1.5 Generalization of Consular Imperium and New Restraints for Provincial Commanders No triumphs pro praetore are attested after the time of Sulla’s dictatorship. The last such triumphs are those of P. Servilius Vatia in 88 (13.1.1), and then Cn. Pompeius in (surely) 81 as a privatus of equestrian rank (14.3.3); L. Licinius Murena in 81 probably also triumphed from Asia pro praetore (14.1.4). The evidence of the triumphal fasti is just one indication that Sulla generalized grants of consular imperium (long seen in the Spains, and then Macedonia, Asia, and Cilicia) to all provincial commanders. Henceforth praetorian commanders for Sicily, Sardinia, Africa and the Gauls were to set out for those provinces—as well as the eastern ones—pro consule.80 Other than one exception, which I argue (15.1.1) we can ascribe to Sulla’s own personal pique, good counterexamples are lacking.81 There must have been a rationale for this generalization of consular imperium over and above a simple desire for symmetry. Now, at some point praetors—even privati—with enhanced (i.e., consular) imperium could start making men pro praetore. This was obviously a major development. Indeed, it may help explain the decision to institutionalize grants of consular imperium to praetorian commanders for distant provinces like the Spains, Macedonia, Asia, and Cilicia. There, regular succession of proper governors was difficult to maintain, and legati might find themselves holding down a large provincia for a long period of time. Delegation of imperium allowed magistrates to get home in a timely fashion without sending a message of neglect to the (often bellicose) provincials.
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The earliest evidence I can find for the practice of “praetorian delegation” has to do with the orator M. Antonius, attested as quaestor pro praetore in the provincia of Asia in (probably) 113/112 B.C. (14.5.2). A praetor pro consule—the standard rank at all times for governors of Asia—either had left him in charge of the province, or had delegated him imperium for some special task.82 Soon after Antonius, this type of delegation by praetors is reasonably well attested, both before and after Sulla took the step of generalizing consular imperium for promagistrates in all the territorial provinces (see 15.3). At the same time as he was extending consular imperium, Sulla was also quite concerned to regulate the behavior of Rome’s promagistrates as commanders. To do so, he introduced an elaborate law de maiestate—spelling out in detail what he meant by that fuzzy charge—which remained in effect down to the end of the free Republic, even alongside Caesar’s extraordinarily comprehensive lex de repetundis of 59 B.C.83 Cicero in the In Pisonem of 55 B.C. provides a good summary of the more gratuitous abuses that the Cornelian and Julian legislation attempted to stem. He is assailing A. Gabinius, cos. 58 and afterward commander in Syria, who had marched out of his provincia to reinstate Ptolemy Auletes in Egypt:84 I say nothing now of his leaving his provincia, of his leading his army out of it, of his waging war on his own account, of his entering a king’s realm without the orders of the Roman People or Senate, conduct expressly forbidden by numerous ancient laws, and in particular by the law of Cornelius against maiestas and that of Julius against extortion.
The mention of “numerous ancient laws” (“plurimae leges veteres”) shows what we would in any case suspect. There was a long tradition of legislation on provincial administration before Sulla’s maiestas law and the extortion law of Caesar. Our information is too deficient to trace the development of this tradition in real detail. Restrictions on the activities of commanders in their military provinciae are attested by ca. 170 (5.4.4, 8.5.3). By the year 100, we know for a fact that there existed a small forest of regulation concerning administration in the territorial provinces. We owe that knowledge to the epigraphic Lex de provinciis praetoriis from Knidos that dates to the year 101 or 100. Most relevant for our purposes here, it spells our some limitations under a lex Porcia—apparently new—on the movements of the commander and his staff outside the provincia (10.1, 14.1.2). However, the lex Cornelia de maiestate of 81 really marks a watershed in the history of this type of restrictive legislation. The time was ripe for a major law, especially after the rule bending of the Social War and near chaos of the 80s. No doubt a good part of Sulla’s achievement was to codify in one law the mishmash of senatus consulta and leges—some demonstrably containing rather minute regulations—that had cropped up over the previous century (or more). But he must have introduced some innovations, too. What details we can expressly assign to the law mostly have to do with ensuring orderly succession in the provinces, essential for the smooth working of his administrative system. For instance, Sulla’s law demanded that a promagistrate spend at least one full year in his territorial provincia. That must be new, since we know that one governor of Asia of the mid-90s left his
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province after a mere nine months, with no personal repercussions for his quick departure (14.5.4). And under Sulla’s law, a commander had to quit the provincia thirty days after succession. Before that law, some were presumably hanging on for more than a month.85 One of the most significant things about Sulla in general was the scale on which he sought to transform the restraints of mos maiorum into positive law.86 Those provisions on succession nicely illustrate the point. Yet in the decades after Sulla we find others who are even more pessimistic of a Roman magistrate’s capacity for self-restraint. Cicero’s letters to his brother Quintus as governor of Asia in 60 and 59 are a mine of information on the formal and informal rules that now restricted a magistrate in his provincia (14.6.7). The end result of the process was the hyperdetailed lex Iulia de repetundis of 59 B.C., so comprehensive (and so severe) that it remained in effect all the way to the days of Justinian.87 11.1.6 The Right to Refuse Territorial Provinciae As cos. II 80, L. Cornelius Sulla was allotted but never took up Cisalpine Gaul ex consulatu.88 Our sources note that a number of consuls in the later Republic followed Sulla’s lead and turned down the chance to take up a territorial provincia.89 For praetors, it seems over time to have grown quite common. By chance, we know that at least three of the eight members of the praetorian college of 66 declined an ex praetura command. One of these—C. Antonius (the future cos. 63)—after his praetorship refused a provincia of his own, (apparently) in order to serve as a legatus under Pompey in the east for the year 65 (12.1.3)!90 All of our instances of consuls waiving a province91 are subsequent to Sulla’s scheme of 81 under which he aimed to send out provincial commanders ex magistratu. For the praetors, there is but one (relevant?) case between the year 166 B.C. (when Livy breaks off) and the Sullan legislation: a second-century Cn. Cornelius Scipio whom the Senate formally pronounced (decrevit) as unfit for Spain, offering as its reason, “because he did not know how to act properly” (“quod recte facere nesciret”). Valerius Maximus says by incurring the Senate’s wrath he (paradoxically) was as good as condemned for repetundae. Indeed, it is reasonable to suppose that, before Sulla, a magistrate who wanted to decline the provincia that had come to him in the sortition needed to offer a specific and compelling excuse to the Senate, which might make him confirm the veracity of that excuse by oath. Livy attests that procedure for 176 B.C. In that year, three praetors begged off having to go to their allotted territorial provinciae. One made his case on purely administrative grounds, arguing that there were two commanders with imperium in his provincia and supersession of one of them would disrupt the ongoing campaign. The Senate accepted his rationale. The other two, however, alleged religious impediments, and the Senate made each of them swear an oath in a contio.92 The case of the Cn. Scipio, who could not go to Spain, suggests that the requirement of a formal excuse was still in effect in the latter half of the second century.93 Indeed, we do not hear of any individuals even in the postSullan period refusing their magisterial provinciae. If praetors were easily capable of refusing to take on, say, the quaestio repetundarum or the ambitus court, we
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might expect at least one such instance to show up in our detailed sources for the late Republic, which are always interested in disruptive behavior. So the requirement of a formal declaration very probably remained in place. Promagisterial provinciae were different. Once Sulla, by his validation of blanket ex magistratu commands, definitively dissociated the promagistracy from the magistracy, consuls and praetors seem to have taken the decision not to proceed to a territorial provincia quite lightly.94 All ex-consuls and ex-praetors must have had to participate in the promagisterial sortition.95 Yet a number of sources for this period describe the refusal of a provincia even as a positive attribute, reflecting one’s moral worth. The only oath known from this era in this context is one Velleius reports for Pompey as consul in 70, “when he quite laudably had sworn—and kept—an oath that he would not proceed to any provincia from that magistracy.” This statement implies that some magistrates who announced they would not take a territorial provincia apparently went back on their word.96 One motivation for this type of volte-face will have been the fact that to remain in Rome made one liable to prosecution.97 The year 63 offers us our closest look at the procedure of turning down a promagisterial provincia.98 Under the Sempronian law, the provinciae for the consuls of that year were to be Macedonia and Cisalpine Gaul. Immediately on entering office on 1 January 63, Cicero declared in the Senate that “if the res publica continues in its present state, and unless some danger arises which he cannot honorably avoid meeting, he will not proceed into a provincia.”99 As it happens, Cicero had exchanged his proper provincia of Macedonia with that of his consular colleague. He describes this act in various ways, including “exchanging his province” (“provinciam Galliam cum Antonio commutavi”), “neglecting it” (“provinciam ornatam . . . neglexi”) and “laying it down” (“instructam ornatamque a senatu provinciam deposui”).100 Later that year, Cicero called a contio to announce formally that he indeed was turning down his promagisterial province of Cisalpine Gaul, again describing this act as “deponere provinciam.”101 The fact that Cicero can describe both his exchange with Antonius and his eventual refusal of Cisalpine Gaul as “deponere provinciam” suggests that it was no more of a technical term than “neglegere provinciam,” “contemnere provinciam,” or the like. We can only guess at the actual procedure. In the late Republic, the magistrate who did not want a command ex praetura or ex consulatu must have made a public declaration, perhaps even sworn an oath. The purpose was not to ratify that he had a legitimate impediment, but simply that he would not take up the provincia. Velleius’ description of the oath of Pompey in 70 suggests as much. So does the case of Cicero. Cicero’s stated reason for turning down Cisalpine Gaul was merely that he wanted to preserve independence of action to deal with domestic threats, and not run the risk of being hobbled by tribunes who might seek to veto arrangements for his military provincia.102 Cicero counted those two speeches among the most important of his consulship. Since the habit of turning down promagisterial provinciae had grown so frequent, it is not too much to suppose that by this point the public speech of refusal had developed into a genre all its own. The praetor L. Lucceius in 67 may have struck a typical note, who Dio says “was unwilling to govern Sardinia after he had been allotted it, hating the enterprise on account of the
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many individuals who were acting in an unhealthy fashion among the (provincial) peoples.”103 One has to allow for the possibility that Lucceius simply did not like the unhealthy provincia he had drawn, and that his moral reservations might have evaporated had he received Sicily or Asia.
11.1.7 The Lex Pompeia de Provinciis of 52 In 53 B.C., the delay in curule elections caused an interregnum that was to stretch into July or August. In the resulting chaos, Dio Cassius104 tells us all the tribunes provocatively suggested that instead of the election of consuls there should be a reinstitution of the consular tribunes (not seen since 367 B.C.), “in order that there might be more magistrates.” No one paid any attention to this particular proposal, says Dio. So the tribunes instead trotted out an old and controversial suggestion, that Pompey be declared dictator.105 Pompey (then pro cos. outside Rome) deliberately had been keeping his distance from the city for some time, much as Sulla did at the end of 82.106 When he eventually showed up, he refused the dictatorship and took measures that the consular elections be held. The proposal to bring back the consular tribunes had its serious side. What the tribunes were trying to address was the bottleneck caused by Sulla’s system of eight praetors but only two consuls, and the ambitus and electoral violence that came with it. The consuls finally elected for 53—Cn. Domitius Calvinus and M. Valerius Messalla Rufus—tried another tack, namely, to scrap the lex Sempronia de provinciis consularibus and the Sullan system of ex magistratu commands. Frustrated with their inability to conduct elections for 52 (Calvinus was even wounded in a melee), “they passed a decree that no one, either as an ex-praetor or as an ex-consul, should take up an overseas command until five years had passed.” Dio (our only source for this senatus consultum) explicitly counts it as an anti-ambitus measure.107 The basic idea was to remove the protection from prosecution that a promagisterial command had always afforded. It also aimed to disabuse men of the expectation that they might immediately recoup their electoral expenses in a territorial province. There existed a stereotype (11.1.6) that individuals who refused a territorial provincia were more honest than those who took one up. That in part might have informed the consuls’ scheme.108 It was Pompey who, as sole cos. III in 52, actualized this reform, drawing at least broadly on the senatus consultum of 53. The fact this new system functioned properly only for 51/50 and then came completely crashing down in 49 B.C. makes discussion of its content and effects difficult.109 What is certain is that Pompey legally mandated an interval between magistracy and promagistracy for ex-consuls and expraetors, perhaps of five years.110 He also, for all practical purposes, got rid of the Sullan loophole that allowed the refusal of consular and praetorian provinciae.111 Recent patterns had been none too salutary. Just three of the consuls of the previous four years (56–53) are known to have accepted a territorial provincia—Cn. Pompeius and M. Licinius Crassus in 55 and Ap. Claudius Pulcher in 54. Four of the remaining five consuls are certain not to have taken one.112 As usual, we are
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less well informed on the praetors. But, after one possible instance of a pr. 56 declining a territorial province, we find two members of the praetorian college of 55 and one of 54 who definitely refused a provincia, followed by a possible case of 53.113 To rectify this problem, Pompey’s law had a retrospective effect. It appears that all able ex-praetors and ex-consuls who previously had turned down a province were to be eligible for service—whether they liked it or not. In the first year of the law’s operation (51 B.C.), a senatus consultum named ten men (so it appears) who were to draw lots for an equal number of provinciae that needed filling, two consular and eight praetorian.114 So we see M. Tullius Cicero (cos. 63) and M. Calpurnius Bibulus (cos. 59)—presumably the two most senior eligible and capable consulares—sent to Cilicia and Syria respectively. A Q. Voconius Naso, probably praetor before 60, apparently was expected to have a province under that law for 49.115 These three “Pompeian” commanders—the only ones for whom we have a date of magistracy, however approximate—are each quite senior. However, the law seems to have contained a provision that waived the minimum interval (whatever it was) between magistracy and promagistracy if the number of eligible commanders ever came up short.116 Two other features of the Pompeian law deserve mention. As we would expect, the People had to pass a special lex de imperio for the eligible ex-magistrates to take their provinces.117 For a possible precedent, note Ap. Claudius Pulcher (cos. 79), who fell ill at Tarentum in 78 on the way to Macedonia, returned to Rome until 78/77 (acting there as interrex), and only later took up his consular provincia (14.2.2). He, too, must have needed such a law. And Pompey’s measure stipulated that praetorian commanders were to have merely praetorian imperium, whatever the province; ex-consuls naturally had consular imperium.118 Significantly, we now find in the provinces for the first time in the history of the Republic men who are pro praetore delegating imperium at their own level.119 Pompey’s law clearly aimed at restoring one-year commands in the territorial provinces. Yet there is no good reason to think that a term of precisely one year was the statutory maximum for the exercise of official duties in one’s provincia.120 True, in Cicero’s letters from Cilicia he often interprets the senatus consultum that pressed him into service in that way—but represents it only as an absolute mandate as the end of his term approaches. It is absurd to think that Pompey and the Senate wanted commanders out of their provinces after precisely 365 days, whether they were in the midst of the campaigning season or not. Once back in Italy, Cicero grudgingly admits (once he sees the dark political clouds on the near horizon) that he was eligible to stay in his provincia until the Senate superseded him.121 Even under this new system the Senate positively had to expect to prorogue some commanders. The number of available ex-magistrates on average will have been less than ten, since ex-praetors were of course free to stand for the consulship during the statutory interval. Meanwhile, by 52 there were fourteen territorial provinciae to be staffed: the ten pre-Sullan ones and also the later additions of Bithynia/Pontus, Crete, Cyrene, and Syria. Let us now turn to the question of how each of these new provinces had been added.
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11.2 Bithynia/Pontus The kingdom of Bithynia came to Rome as an inheritance from king Nicomedes IV in either (late) 75 or 74. As we shall see in 14.6.2, the Senate charged a praetorian governor of Asia, M. Iunius Iuncus, to organize Bithynia into a Roman provincia sometime after early 74. That work was soon cut short. The threat of war from the Pontic king Mithridates VI Eupator seemed so pressing that both consuls of 74 were sent to the east, L. Licinius Lucullus to a joint provincia of Cilicia with Asia, M. Aurelius Cotta to protect Bithynia. Mithridates was to attack Nicomedes’ former kingdom in the spring of 73, sparking the wideranging Third Mithridatic War. M. Iuncus no doubt yielded Bithynia to Cotta as soon as he arrived, perhaps still within the year 74, and returned to Asia and then Rome. No praetorian commander is found in the Bithynian or Pontic theatre for the next dozen or so years.122 M. Aurelius Cotta fought in the east until (probably) late 71. On Cotta’s departure the entire eastern command devolved upon his consular colleague L. Lucullus. In 70, Lucullus had made enough headway to receive from the Senate “decem legati” to help him in the organization of some of Mithridates’ former possessions. But his hope of finishing the war proved illusory. Lucullus found himself superseded in Cilicia in 67 by Q. Marcius Rex (cos. 68) and then in Bithynia and Pontus by the cos. 67 M.’ Acilius Glabrio. Finally, in 66 the tribunus plebis C. Manilius handed over responsibility for the whole Mithridatic War to the privatus Cn. Pompeius (still with a grant of consular imperium from his pirate war). Pompey remained in the east down into late 62 B.C. Having expelled Mithridates from his kingdom, in late 65 and early 64 Pompey made first steps toward the disposition of Pontic territory before leaving Amisus for Syria in spring of 64.123 Pompey was still in Syria when he heard of Mithridates’ death, in early (i.e., spring) 62. He quickly rushed back to Amisus and finished his organization of (western) Pontus, attaching the territory of eleven individual cities to Bithynia to form a new Roman provincia.124 After issuing donatives to his troops at Amisus, in the spring or summer of that year Pompey proceeded to Ephesus. And not long afterward (following Pompey’s personal pilgrimages to Mytilene and Rhodes) his army embarked for the sea voyage home.125 So the organization of Bithynia/Pontus was the capstone of Pompey’s real business in the east. The first regular governor that we can place in this new provincia is C. Papirius Carbo. He was a tribunus plebis who was granted consular insignia ca. 70–67 for his successful prosecution of one P. Oppius, a quaestor for Bithynia under M. Cotta (cos. 74) during the Third Mithridatic War. Dio notes the irony that Carbo himself later became governor of Bithynia.126 We have here a good example of the sors opportuna! His tenure can be fixed with some precision. Carbo issued bronze coins in the new provincia which (when bearing dates) show the years 222–224 of the Bithynian era.127 That provincial era commences in 282/281, with each new year starting probably in September at the autumnal equinox, like the Macedonian calendar.128 So the year 222 can be provisionally identified as spanning late September 61 to late September 60; 223 corresponding to that same period in 60/59; and 224 correspon-
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ding to 59/58. His coins offer no title, but the formula EPI GAIOU PAPIRIOU | KARBWNOS129 and length of time C. Carbo had charge of the provincia make it certain (if there is any doubt) that he was a praetorian commander. The provincia of Syria—also newly created by Pompey—received a pr. 62, L. Marcius Philippus, to govern it ex praetura for 61 (11.5.2). We might expect that Bithynia/Pontus had a praetorian commander for 61, too. Was C. Carbo the first expraetor to receive it? Broughton implies as much: he lists Carbo as pr. 62, without query,130 though no activities in the city are attested for him in that year. Yet the fact that Carbo’s coins start in Bithynian year “222” allows for the possibility he was pr. 61 and arrived in his eastern command only in 60. The bulk of this governor’s minting belongs to “224” = 59/58, which suggests131 that he spent a good deal of 58 in the province. In the final analysis, Carbo’s specific background as prosecutor seems to have done him little good in his provincia: he himself was condemned on his return from Bithynia/Pontus.132 So it seems C. Papirius Carbo spent at least three years in his provincia, from 60 through 58. The arrangements for the crucial year 61 must remain a mystery. Perhaps the Senate gave Bithynia/Pontus less immediate attention than Syria, or sent a praetorian commander for 61 whose name has fallen out of our record. The alternative is that Carbo was in Bithynia/Pontus already in 61, but minted only a small number of coins showing “Year 221” of the Bithynian provincial era (hence their disappearance), or none at all. The direct successor of C. Carbo will have been the patron of Lucretius (and as tr. pl. 66, the enemy of the Luculli),133 C. Memmius. He was praetor in 58, perhaps even praetor urbanus (see 12.1.3). So he had Bithynia ex praetura for 57—as it happens, with the poets Catullus and Cinna in his cohors.134 In contrast to Carbo’s repeated prorogations, Memmius’ command lasted just a single year (see below). However, while in the provincia that short time he (apparently) earned an imperatorial acclamation.135 What enemy he found to fight we do not know; at any rate, there was to be no triumph. Memmius either was turned down by the Senate or waived his claim.136 C. Caecilius Cornutus must have succeeded C. Memmius for 56. Cornutus was pr. 57, in which capacity he aided in securing Cicero’s recall from exile.137 All we know of his provincial command is the bronze coin issue he minted at Amisus, EPI GAIOU KAIKILIOU | KORNOUTOU. Unfortunately it is undated, and there are no further facts known of Cornutus’ career, so we cannot guess the length of his tenure.138 The commands of his predecessors C. Papirius Carbo (three or perhaps four years in Bithynia/Pontus) and C. Memmius (supersession after just one year) show that there is no use guessing how long the Senate made him stay. There is silence until the arrival of P. Silius, attested as pro praetore in Bithynia in 51 and at least the early part of 50.139 Silius must have been a commander of the provincia under the lex Pompeia, as the rank suggests. (The date of his actual praetorship, however, is quite unknown.) How long he remained in the east is another question. Silius backed Cicero’s request to the Senate for a supplicatio later in 50,140 but it need not have been in person in Rome. We do have a possible candidate for Silius’ successor: A. Plautius (or Plotius), a curule aedile in 55 or 54.141 In 51, Cicero, soon after entering his promagisterial provincia of Cilicia, remarks to
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Atticus on the irony of his holding assizes at Laodiceia while Plotius pronounces on law (“ius . . . cum Romae . . . dicat”) at Rome.142 On the basis of this passage, Broughton reckoned that Plotius was urban praetor in this year.143 Broughton’s supposition regarding the city provincia finds support in Cicero’s own usage elsewhere,144 but some caution is necessary.145 However, a praetorship for Plautius in 51 seems certain. This man was apparently in charge of Bithynia around the time of Pharsalus in 48.146 So it is at least possible that he went there directly ex praetura, to succeed P. Silius after a single year’s command.
11.3 Crete 11.3.1 The Pirate Command of M. Antonius The story of Crete as a Roman provincia probably should begin with M. Antonius “Creticus.” Son of the M. Antonius who triumphed from a praetorian command in Cilicia (10.1), as pr. 74 he received his own special command to suppress piracy, one that extended over a large part of the Mediterranean.147 The consul M. Aurelius Cotta was the one who pushed through this commission. Pirates were an endemic problem, which Rome had done not all that much to address in the previous twenty-five years,148 except of course in the area of Cilicia. Those based in Spain had been helping Sertorius for a few years.149 And Mithridates in his first war with Rome had made effective use of pirates. With fresh hostilities imminent, he might be expected to do so again. “Once the new war had broken out,” explains A. M. Ward, “the Senate would have found it imperative to combat piracy in the Mediterranean with a major command that does not seem to have been foreseen in 75.”159 Precisely how the Senate defined the territorial bounds of M. Antonius’ command is uncertain. Almost all our information comes from Ciceronian scholiasts, who are under the impression that Antonius had the entire “ora maritima” under Roman control.151 Yet it appears certain that for this commission Antonius received enhanced imperium.152 That is what his father had in his special Cilician command as pr. 102 (10.1), and indeed what all post-Sullan praetorian commanders had who took up overseas provinciae. Cicero in the Verrines makes it seem as though M. Antonius received “infinitum imperium.”153 But in no way should we take Cicero literally on this. It is a jibe, aimed not at the quality of imperium Antonius received, but rather at the vague fines of his provincia (14.2.5). To operate in his massive province M. Antonius made wide use of independent legati and praefecti. Some were active for long stretches of time at great distances from their superior. An inscription from Gytheum records that six named subordinates passed through that town alone in the years (apparently) 74/73–73/72. Three of these subordinates (C. Iulius Caesar, P. Autronius Paetus, Fulvius) are explicitly termed legati; another one, Q. Ancharius, is elsewhere attested as pro quaestore. During this time M. Antonius was still operating in the west.154 But there is no indication that any of them had been delegated imperium. Antonius himself was to have more than three years of imperium, which culminated in an overconfident invasion of Crete.155 Cretan mercenaries had been
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serving under Mithridates, Appian tells us (and Memnon confirms). However, Appian says Antonius’ main point of contention with the people of this island was their noncooperation in his war against the pirates; in this, too, were the Cretans thought to be gratifying Mithridates.156 Antonius first made diplomatic efforts, but when his embassy failed he launched (almost certainly in 71) an invasion of the island with the forces he had available. The Cretans under Lasthenes of Cnossus and Panares promptly handed Antonius a humiliating defeat at sea.157 But the prospect of open war with the Romans apparently had an effect, since Diodorus says Antonius managed to get the Cretans to observe a “peace.”158 We are not told the terms; at a minimum, the Cretans must have agreed to drop their aid to Mithridates and the pirates in return for a cessation of hostilities. Though the praetor soon died of disease—tellingly, on the island itself159—the agreement he struck outlasted his death, which came probably in 71 and certainly before the autumn of 70. However. the Senate took no steps to ratify formally Antonius’ agreement with the people of Crete. That Antonius had been sent specifically against Crete seems to have been the contemporary perception in mainland Greece, to judge from the evidence of an inscription from Epidaurus.160 It was somewhat of a misperception. At first, Antonius operated in the west, along the coasts of Liguria, Spain, and Sicily. Cicero complains of his harsh exactions in Sicily during autumn 74.161 Meanwhile, Antonius also had his legati in Old Greece make equally severe requisitions for the projected campaign in eastern waters. No doubt Antonius had his eye on Crete from the start, out of a desire to equal the achievements that earned his father a triumph: after all, Crete was thought second only to Cilicia in number of pirates.162 His legates perhaps even made their exactions in the name of a “Cretan war”: when Antonius visited Epidaurus he certainly seems to have represented himself as “commander against the Cretans.” Yet he very likely did not turn his full attention toward that island until late 72, and his invasion in 71 (as we have seen) was by no means inevitable. Crete, long soft on piracy and an old source of mercenaries, was a nuisance, especially given Rome’s recent interest in exploiting Cyrene.163 At no point, however, can the Senate have charged Antonius to turn Crete into a provincia. 11.3.2 Q. Caecilius Metellus and the Annexation of Crete Yet perhaps as early as the year 70 the Senate did make the decision (at least in principle) to annex Crete. It declared the island a military provincia for one of the consuls of 69, apparently under the Sempronian law. When the cos. Q. Hortensius turned it down, it fell to his colleague Q. Caecilius Metellus.164 Q. Metellus probably set out for the war only ex consulatu, for 68.165 He obviously planned to fight a major campaign.166 Velleius and Eutropius say Metellus finished the war in three years’ time.167 It seems, however, that the subjugation of the island was already quite advanced in late 67.168 The Cretans sent a message to Pompey—who under the Gabinian law had imperium equal to that of any pro consule over the coasts of the Mediterranean and for fifty miles inland—and offered to surrender instead to him. Plutarch says
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when they made their appeal, the Cretans alleged their island was part of his command: “It everywhere fell within the territorial limit from the sea” granted to Pompey under the Gabinian law.169 Pompey went so far as to command (by letter) Metellus to withdraw from the island. He also wrote to cities in Crete to ignore the consular commander, and sent his legatus L. Octavius (though with no troops) to take them over until he himself could arrive. Metellus, however, refused to recognize Pompey’s right to intervene in this way, and wrote back to tell him so.170 The episode shows clearly that Pompey had no overriding “imperium maius” under the Gabinian law (as has sometimes been thought). At issue was not the respective quality of each man’s imperium, but the question whether the relevant cities of Crete fell within the territorial boundaries of Pompey’s special provincia. Technical questions aside, Pompey’s interference as a privatus cum imperio with a consul in his consular province does seem quite provocative. Metellus held firm, despite obstruction from Pompey’s legatus L. Octavius. Octavius, though called strathgov~ in Plutarch,171 apparently was not one of the legati pro praetore Pompey had received under the Gabinian law. Eventually Pompey sent one of those, namely L. Cornelius Sisenna (pr. 78), who brought across an armed force from his station in mainland Greece. But Sisenna soon fell ill and died, and Pompey lost interest now that he had received the Mithridatic command.172 So, in the end, it was Metellus who was responsible (in 66 and perhaps 65) for the annexation of Crete and its organization as a Roman provincia.173 We do not know when Metellus returned to Rome. In October 63, it appears from Sallust that he had been waiting long outside the city for a triumph. He finally got that honor (probably in 62) and with it the Senate’s vote of the agnomen “Creticus.” Yet, even at Metellus’ actual triumph, Pompey used a friendly tribune to press a claim on the most prominent Cretan captives.174 By 65 the annexation of Crete was an accomplished fact. From that point, however, we have no real clues how Rome administered its new possession, except that it was counted a distinct praetorian provincia, separate from Cyrene, for the year 51 and indeed for some time past the end of our period.175
11.4 Cyrene An item from the Fleury manuscript of Sallust Histories Book II, covering events from (surely) the year 75, describes how the Senate decided to send a “quaestor” to Cyrene: And P. [Cornelius] Lentulus Marcellinus on the motion of the same speaker (eodem auctore) was sent as quaestor to the new provincia of Cyrene, although this provincia—given to us by the will of the dead king Apion—needed to be controlled by an imperium more prudent that that of a young man (adulescens), and in a less greedy fashion than that one (ille) [sc. in particular]. Moreover of the different orders.176
Sallust in this passage mentions imperium, but in a nontechnical sense. If the quaestor P. Marcellinus had it (as is likely), it naturally will have been at the prae-
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torian level. There is no indication, however, that he was actually a “governor.” The severe grain shortage of the year 75 must form the background to this quaestor’s commission, as many have noted.177 Badian persuasively has argued that his primary task was to collect money, especially through the organization of the royal lands. Why a quaestor? “The reason was evidently the Senate’s unwillingness to appoint a senior man with a dangerous imperium for the task.”178 To leave such a person on his own in that still-unorganized Roman possession must have seemed too politically and militarily risky. A praetorian or consular commander was apt to go off triumph hunting. But above all it was dangerous for the public finances. A well-connected senior magistrate might feel bold enough to keep a substantial portion of the royal wealth for himself—for example, to cover (whether prospectively or retrospectively) his own electoral expenses—and not worry too much about the consequences of being haled into court on his return before a jury of his peers. P. Marcellinus appears to have remained in Cyrene down to late 74 or early 73, when he evidently returned to Rome with his money.179 No other Roman official is known to be active in the area until the year 67, when Cn. Lentulus Marcellinus (the future cos. 56) turns up in Cyrene. Presumably brother of the quaestor P. Marcellinus, he is epigraphically attested as a legatus pro praetore under Pompey in his pirate command. Indeed, a substantial series of inscriptions commemorates Cn. Marcellinus’ visit to Cyrene, including the record of his judgment in a dispute between two local cities. J. M. Reynolds has shown that this inscription and his other honors from the Cyrenaeans demonstrate that there was no Roman commander in their land at the time.180 All the same, Reynolds relies on the Sallust Histories fragment to argue for annexation in 75/74, and suggests that by 67, administration had “broken down.”181 Badian, however, must be right in his conclusion that Cyrene was not yet a provincia.182 Yet Pompey must soon have had it organized.183 We find M. Iuventius Laterensis (the future pr. 51) there as pro quaestore in 63. It is impossible to tell from Cicero’s brief notices of Laterensis’ position whether he was serving under a praetorian governor or himself had sole charge.184 There is a chance that L. Caecilius Rufus, pr. urb. 57, had to go to Cyrene as pro consule in 56, but that is by process of elimination, not positive evidence.185 However, Cyrene was definitely counted among the praetorian provinciae in October 51.186 We might even be able to supply the name of a contemporary governor, one Cn. Tremelius Scrofa. A member of an established praetorian family, Tremelius was a quaestor or pro quaestore in 71 and senator by 70.187 Though attested at Rome shortly before mid-May 51,188 he is commonly thought to be a (praetorian) commander in the east that year. In February 50, Tremelius Scrofa is listed among eastern governors and said to have an unpromising appointment. Cicero had written by mid-October 50 to ask Scrofa along with the commander for Bithynia to support his bid for a triumph.189 Broughton190 reasonably suggests that Scrofa held the praetorship before 57, and received an ex praetura command under the provisions of the lex Pompeia of 52. For his provincia, Broughton initially suggested “perhaps Macedonia,” later (following Shackleton Bailey) “probably Crete and Cyrene.” Since M. Nonius does seem the better candidate for Macedonia (14.2.6), we can place Scrofa with some confidence in Cyrene—the only regular commander in our fasti for the province.191
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11.5 Syria 11.5.1 Pompey’s Annexation of Syria In 83 B.C. (probably), Tigranes II of Armenia occupied Seleucid Syria—that is, Coele Syria and Phoenicia—which had been a divided kingdom for most of the previous three decades, owing to the rivalries of Antiochus VIII Grypus (125–113 then 111–96 B.C.), his cousin (and brother) Antiochus IX Cyzicenus (113–95 B.C.), and their own sons. After holding Syria for fourteen years (perhaps more), Tigranes had to abandon that territory in 69 B.C. to defend his own kingdom against the pro consule L. Licinius Lucullus. For the Syrian throne, Lucullus promptly recognized the claims of Antiochus XIII Asiaticus, a grandson of Antiochus Cyzicenus. (A few years earlier the Roman Senate had granted Asiaticus, while an exile, the title of “friend and ally.”) Yet Asiaticus had difficulty maintaining his position in a country now destabilized by Arab dynasts, and lost the throne after only about a year. Grypus’ grandson Philip II Barypous managed to establish himself in Antiochus’ place for a time (67/66–66/65), in part thanks to a large sum paid to the pro consule for Cilicia Q. Marcius Rex (cos. 68). Yet with Arab support Asiaticus was able once again to take up his rule in 66/65.192 Pompey, during his pirate command of 67, already had one of his legati pro praetore, Q. Metellus Nepos, take responsibility for a district that included the waters off Phoenicia. Before he moved against Mithridates in 66, he took care that part of his fleet continued to patrol that coast.193 In that same year, Pompey managed to defeat Mithridates and (by autumn) obtain the surrender of Tigranes. Not long afterward, his legates Q. Metellus Nepos and L. Lollius (another legatus pro praetore who had fought pirates in the eastern Aegean) were conducting land operations well into the interior of western Syria Phoenice. By late 66 or early 65 (surely), his legates moved against Damascus, which Tigranes had relinquished on his evacuation of Syria and (apparently) Arabs had seized in the interim. Immediately after its capture, Pompey’s quaestor M. Aemilius Scaurus arrived in the city. He promptly embroiled himself in the dynastic disputes of the brothers Aristobulus II and Hyrcanus II—the rival Hasamonean claimants for the throne of Judaea—aiming to turn a profit for himself. A. Gabinius (who as tr. pl. 67 gave Pompey his pirate command and was now a trusted legatus in the east) soon joined Scaurus in this enterprise. Other areas of Syria felt the Roman presence too. In early 64, the praetorian legate (and triumphator) L. Afranius, fresh from a successful semi-independent command in Gordyene, was sent to clear Arabs out of northwest Syria, in the region of Mt. Amanus.194 In spring 64, Pompey himself arrived in Syria. Our sources make out that Pompey’s goal was to launch an expedition against the Nabataean Arabs and their king Aretas III. His actions reveal a far more ambitious plan. Immediately upon setting foot in Syria, Pompey deposed Antiochus XIII Asiaticus. He then proceeded to annex and organize Seleucid Syria as a Roman provincia. No ancient source spells out the motive more fully than Justin, who reports that Pompey wanted to protect Seleucid Syria from the brigandage of Jews and Arabs. That might be enough to explain Pompey’s decision. The sorry state of the house of Seleucus and the obvi-
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ous helplessness of the current ruler Antiochus Asiaticus raised the prospect of even more chaotic local conditions. Control of piracy was also at issue. A new “Pompeian” era replaced the Seleucid, reckoned from autumn 66—the date of Tigranes’ surrender. That dating, combined with the military movements outlined above, point toward the conclusion (generally accepted) that Pompey had resolved on the annexation of Syria from the start of his campaign against Mithridates.195 After wintering at (probably) Antioch in 64/63, Pompey subjugated a series of dynasts in Lebanon and started his campaign against the Nabataeans.196 But resistance from Aristobulus triggered a series of events that culminated in a three-month siege of Jerusalem and a massacre on the Temple mount, followed by Pompey’s establishment of a large portion of Palestine as a taxpaying protectorate. News of the death of Mithridates brought Pompey hurriedly back to Pontus, in early 62 B.C. On his departure he placed the pro quaestore M. Aemilius Scaurus in command of Syria pro praetore with two legions, evidently with orders to complete the projected campaign against Aretas and the Nabataeans.197 Scaurus duly marched against Petra. But before causing any harm to the enemy he accepted a hefty bribe (300 talents) to call off the war, to Aretas’ great relief.198 We do not hear of Pompey’s reaction. Whether this is what he had in mind when he delegated imperium to Scaurus seems dubious. 11.5.2 Syria as a Praetorian Provincia, 61–58 B.C. Appian199 reports that Pompey’s quaestor Scaurus was superseded in Syria by (L.) Marcius Philippus, who in turn had as his successor (Cn.) Lentulus Marcellinus. Appian implies that Philippus and Marcellinus (later colleagues as coss. 56) went to Syria ex praetura (a[mfw strathgikou;~ kata; ajxivwsin) and states that each held the provincia for two whole years. Each of these commanders, says Appian, spent the whole of his tenure driving off the neighboring Arabs who harassed this new Roman possession. Because of the military situation, Syria subsequently was entrusted to ex-consuls. That brief notice unfortunately is our only source on the praetorian administration of Syria. The details Appian does provide seem solid. Two consecutive twoyear ex praetura commands (i.e., 61–60 and 59–58) should be accurate, for A. Gabinius (cos. 58) received the provincia for 57 and remained—despite some talk of superseding him with a praetor (14.2.5)—down through 55 B.C.200 And for the rest of our period Syria indeed remained consular, at least in theory. M. Licinius Crassus (cos. 55) succeeded Gabinius, and was supposed to have the province for five years under the lex Trebonia. Yet Crassus was killed not far into his second year of command at Carrhae (9 June 53) while campaigning against the Parthians. Crassus’ quaestor C. Cassius Longinus escaped this military disaster and returned to take charge of his superior’s province; whoever Crassus had left in charge of Roman Syria must have been junior indeed. Though only pro quaestore,201 Cassius then had to act as commander-in-chief in Syria all through 52 and far down into 51 B.C. After Crassus’ death it seems no one wanted the province because of the Parthian danger.202 In 51, M. Calpurnius Bibulus (cos. 59)—he was pro cos. for Syria under the lex Pompeia—arrived only sometime after 20 September, shortly
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after Cassius saved the province from a significant Parthian invasion. M. Bibulus departed from the province by early December 50. We hear that he left a certain Veiento in charge.203 If Bibulus made him pro praetore (as seems likely), Veiento will be the only subconsular known to hold imperium in Syria after the arrival of A. Gabinius in 57 B.C. Looking back past those ambitious consular commands, the presence of those two praetorian commanders in the early years of this armed and financially promising provincia204 seems an anomaly. How did Syria stay praetorian for four straight years? It is somewhat understandable why the Senate acted so quickly and ordained that one of the outgoing praetors of 62 should draw Syria in the sortition for 61 B.C. By the time L. Marcius Philippus arrived in Syria as its first regular governor, M. Aemilius Scaurus had marked at least one full year there as pro praetore.205 And during that time he had reduced the Nabataean threat to Syria (his one stated responsibility) not a whit. Appian speaks of the first two praetorian commanders having to defend Syria against Arabs over the next four years. The pro cos. Gabinius suffered a humiliating cavalry defeat—surely at the hands of Arabs—immediately upon his arrival in the province in 57 B.C. Further losses soon followed.206 A major campaign was delayed until 55 B.C.207 The precise motivation for declaring Syria praetorian in late 62 or early 61 escapes us. But the Senate’s decision was a consequential one, since it of course gave immediate de facto recognition to Pompey’s arrangements in this area before any official vote on his acta. We know that Cicero had to scotch plans to make that province consular (i.e., by suspension of the lex Sempronia) for 60. The cos. 61 M. Pupius Piso Frugi Calpurnianus had tried to make the Syrian command his own, perhaps starting already when he was designatus. In a letter to Atticus (June 61), Cicero claims the Senate almost granted Pupius his wish but that he “wrested” the province from the consul. In other words, Cicero successfully fought to have L. Philippus extended in his promagistracy for a second year.208 Personal politics will have played their role here. Cicero had a low opinion of Pupius Piso as consul;209 for instance, in that letter to Atticus he boasts that he has foiled Pupius in all his designs. Yet it may be that Cicero (and others) also had legitimate fears what Pupius might get up to if he had Syria as a military arena. Praetor by 71, Pupius’ ex praetura lot had been Hispania Ulterior. By energetically hunting for enemies in this now war-weary province, he scraped up enough for a triumph, awarded in 69 B.C.—but on return met criticism for his methods (13.4.6). Six years of service under Pompey in the east were to follow, starting with a position as a legatus pro praetore in the Propontis region against the pirates and continuing down through the siege of Jerusalem in 63 B.C. In the consular elections for 61, Pompey threw his full auctoritas behind this experienced legate, even asking for the comitia to be delayed so that he could canvass for Pupius in person.210 Given that background, if the Senate allowed Pupius to return to Syria ex consulatu, there was no telling (especially given Pompey’s backing) how long it might be before it could get him out. The consuls of 60 had to draw the Gallic provinciae in an emergency sortition already in March of their year of office (15.2.3). So that is how Syria remained praetorian for the year 59 B.C., falling to a new commander, the pr. 60 Cn. Cornelius Lentulus Marcellinus. He is attested as a legatus pro praetore under Pompey against
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the pirates in the year 67; perhaps he had just recently returned from the east.211 For political reasons alone there was no real question of making Syria consular for 58.212 Hence the prorogation of Marcellinus, who had earned a good reputation in his first year as governor in Syria.213 Cn. Marcellinus positively celebrated his good fortune at receiving this grand provincia with a splendid gold stater provincial issue. Crawford tentatively dates this coin to 59 B.C.214 Yet it is perhaps best placed in 58, that is, the same year the commander for Asia had received permission to mint in his provincia (14.6.8). 11.5.3 Syria under Its Consular Commanders For 57 B.C., the consular provinciae under the Sempronian law were Macedonia and Cilicia. Syria was supposed to remain praetorian. But the cos. 58 A. Gabinius managed to swap Cilicia for Syria (15.1.2). The tribune P. Clodius passed a law to grant the province to him extra ordinem with special powers—including what Cicero calls “infinitum imperium,” apparently the right to choose precisely the provincial boundaries (fines) he desired. Specifically, Clodius may have introduced into his law the formulation that occurs a few years later in the lex Trebonia of 55, when M. Crassus got as his provincia “Syria and the neighboring lands.”215 The Nabataean Arabs offered a suitable pretext for this proviso. Like Pupius Piso, Gabinius had seen long service under Pompey in the east. Indeed, Gabinius’ tribunician law of 67 on the pirates is what placed Pompey in a position in 66 B.C. to take over the Mithridatic command. In 65, we find Gabinius engaged in a semi-independent campaign that took him across the Euphrates and as far as the Tigris. In 64 and 63, he played a leading role in Pompey’s efforts to bring Judaea under Roman control—accruing (it is said) 300 talents for himself in the process.216 As consul, Gabinius was evidently anxious to get back to the east, but this time in a position of much greater power. Once in place, Gabinius immediately changed the system of tax collection in Syria and Judaea, to the relief of provincials and consternation of publicani. (Cicero argues it was all for his own benefit.) There was some fighting, apparently against Arabs (none too successful). And he had to face down a major Jewish revolt led by Alexander, the son of Aristobulus, and institute a political and administrative reorganization of Judaea. Gabinius’ troops must have hailed him as imperator. However, the Senate (on 15 May 56) refused this commander a supplicatio: Cicero says that no commander had suffered this indignity since the praetor T. Albucius’ tenure in Sardinia at the end of the second century B.C. (13.1.1).217 Apparently there had been an attempt to recall Gabinius and his consular colleague Piso in 57, that is, to hand Syria and Macedonia to other commanders for 56. That failed, as did efforts—led by the publicani and spearheaded by Cicero—to defeat Gabinius’ prorogation into 55 B.C.218 It was no easy task in this era to dislodge a well-connected consular commander from a distant provincia. The events of 57 show that Gabinius had plenty to keep him busy in his province of Syria. Yet what he really had his mind on—probably from the start— was a Parthian war. Dio suggests as much,219 and the concern during his consulship to get “infinitum imperium” confirms it. The rest of the story is well known.
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In 56 or 55 B.C., Gabinius even went so far as to cross the Euphrates.220 Then Ptolemy XII Auletes appeared on the scene, and bribed Gabinius (allegedly with 50,000 talents) to restore him to the throne in Alexandria. In spring 55, Gabinius actually marched into Egypt to do so, leaving his province proper to his stepson Cornelius Sisenna, a junior legatus, and unnamed others. These could not even protect Syria from pirates.221 Nor did Gabinius’ successor, the cos. II 55 M. Licinius Crassus, take much interest in this provincia except as a springboard for a full-scale (unauthorized) invasion of Parthia. Under a tribunician law passed ex S.C. the consular provinciae were to be “Syria and the neighboring lands” and the Spains, each for five years. Efforts to mitigate the open hostility toward their extraordinary commands fell flat. The tribunus plebis C. Ateius in particular resorted to a whole range of obstructive tactics—culminating in public imprecations—to obstruct Crassus in setting out from the city for his (ultimately disastrous) Parthian campaign in November 55 B.C.221 Whatever fears anyone might have harbored of M. Pupius Piso back in the year 61 will now have seemed quaint.
11.6 Resistance to the Annexation of Egypt Surely the most significant episode in the Egyptian dynastic struggles of 88/87 B.C., is the testament of Ptolemy X. While at a political disadvantage, this monarch agreed to bequeath Egypt to the Roman People as security for a large loan. He soon died, before he was able to win back the kingdom from his elder brother Ptolemy IX. Despite internal problems, Ptolemy IX remained on the throne down to his own death in late December 81; an external challenge from Rome came to nought when a tribunician veto blocked the Cinnan Senate’s resolution to move to accept Egypt as its “hereditas” (10.3.2). In 80, the Senate, now under Sullan control, had an excellent opportunity to take up the “hereditas” of Ptolemy X. Instead, Sulla established that man’s son, Ptolemy XI Alexander II, as joint ruler with his stepmother (and wife) Cleopatra Berenice. Within three weeks, the king murdered his queen, only to lose his own life for that act at the hands of the Alexandrians. So by June 80 Egypt had no rulers.223 “This surely must have shown anyone who would look,” observes Badian,224 “that the Ptolemies were no longer able to hold their kingdom and that annexation could hardly be escaped (not to mention the affront to Roman auctoritas that was implied in the murder of a king installed by Sulla).” Yet Sulla chose to overlook all that and allow a young illegitimate son of Ptolemy IX—Ptolemy XII “Auletes”—to rise to the throne. The Romans did stop short of granting Auletes official recognition. But they also gave the cold shoulder to rival claimants.225 There matters rested for a while, until the early months of the year 65 saw an open attempt to annex Egypt as a tributary province on the basis of the testament of Ptolemy X. The most visible proponent of this scheme was the censor M. Licinius Crassus, against the objections of his colleague Q. Lutatius Catulus. Apparently, a plebiscite was to create a special command (with imperium) to annex Egypt as a Roman province. The proposed plebiscite may have stipulated the selection of specifically a subpraetorian for the task, along the lines of what we have seen
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for Cyrene in 75 and later shall see for Cyprus in 58 (11.4, 11.8.4). For Suetonius tells us the curule aedile C. Iulius Caesar campaigned hard for the commission, with the backing of several tribunes—and we can assume with the support of the censor Crassus. The optimates stoutly opposed this legislation, which they ultimately defeated. However, the squabble over Egypt led the censors to abdicate before attending to any of the proper business of the magistracy, including the compilation of the senatorial album.226 Shockwaves from the affair still reverberated two years later in Rome. In January 63, Cicero evokes this dispute to attack a provision of the Rullan land bill that gave a board of Xviri the right to sell foreign dominions that had come into Roman possession since 88 B.C., including (it is claimed) Egypt. Cicero portrays Rullus’ bill (among other things) as a backdoor attempt to decide the question of the testament—against the Roman People and in favor of Ptolemy Auletes, Cicero predicts in a speech to the People. Evidently at this time the notion of annexation had strong popular support.227 Meanwhile, the Egyptians sought to avoid it, opposing efforts by their king to forge closer links with the Romans. In 63, when Auletes sent Pompey a large force of cavalry to aid his campaign in Judaea, the Alexandrians demonstrated their disapproval. Appian says that Auletes in turn invited Pompey into his kingdom to suppress sedition. Pompey declined, “whether fearing the greatness of a kingdom that was still prosperous, or guarding against the envy of his enemies, or at the bidding of oracles, or for other considerations.”228 Appian’s mention of “envy” comes closest to the mark. Given the dispute in Rome of 65 B.C., had Pompey marched into Egypt he would have thrown all his hard-won arrangements in the east into jeopardy, including his annexation of Syria as a Roman province. It was Julius Caesar as consul in 59 who resolved the question of the “hereditas”—after the payment of an enormous bribe (6,000 talents) by Auletes. Caesar passed a law to recognize this man as king, with the status of “friend and ally” of the Roman People.229 Yet in a year’s time the Alexandrians forced Auletes to leave his kingdom. The king had been squeezing his subjects hard for money. But what was particularly infuriating to the Egyptians, we are told, was the fact that Auletes meekly acquiesced in Rome’s grabbing Cyprus from his own brother in 58. Auletes was soon in Rome using money to find a commander to effect his restoration. We find various schemes proposed. In late 57, the Senate voted that the consul P. Cornelius Lentulus Spinther—who was about to take up Cilicia as promagistrate—have the restoration of the Egyptian king as part of his provincia. The measure was promptly vetoed. A religious objection also presented itself, when C. Cato (a new tribune of 56) illegally publicized a Sibylline oracle that prohibited the use of an army to help the king. When C. Cato fiercely and effectively opposed other proposals, Auletes eventually decided to dispense with the Senate and tribunes and approach directly A. Gabinius, the pro consule for Syria. Gabinius invaded Egypt in spring 55 B.C., reinstalled Auletes, and left behind a substantial garrison force to support him (11.5.3). Gabinius was condemned de repetundis on his return to Rome in 54 B.C. However, the Roman garrison remained, down to the death of Auletes in 51 and beyond, when his eldest surviving daughter, Cleopatra VI, took the throne.230 The
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Senate must have decided that it was far preferable to prop up the Ptolemaic regime than to allow this particular annexation debate to resurface in Rome. Nor did the Romans tamper with other wealthy kingdoms during the rest of this period.231
11.7 Standing Quaestiones in the Post-Sullan Period 11.7.1 Quaestio Repetundarum The repetundae court is easily the best attested of the permanent quaestiones in the post-Sullan era.232 We have the names of at least nine of the individuals who presided over this quaestio in the years 80–50 B.C. Our first information is for the second half of the 70s. A Ciceronian scholiast reports that a Terentius Varro on return from Asia was accused de repetundis before the praetor L. Furius and then brought to trial before P. Cornelius Lentulus Sura (pr. 74), only to be scandalously acquitted (see 14.6.1). Broughton places both L. Furius and P. Lentulus Sura in the provincia repetundarum, for the years 75 and 74 respectively. However, since provincial offenses might be prosecuted in more than one quaestio, it is possible that Furius was a colleague of Sura—whose provincia is nowhere explicitly said to be repetundarum—in 74. Q. Hortensius was pr. rep. 72.233 Three (perhaps four) praetors are attested in this court for the five-year period 70–66 B.C. The praetor M.’ Acilius Glabrio definitely had the provincia repetundarum in 70, followed by the praetor M. Caecilius Metellus in 69.234 Sometime not long after the passage of the lex Aurelia of 70—which placed alongside senators also equites and “tribuni aerarii” as jurors in the courts (12.4.3)—an unnamed “quaesitor” heard M. Tullius Cicero defend M. Fonteius, who had served as a praetorian commander in Transalpine Gaul in the mid-70s, on a charge of extortion. The term “quaesitor” can denote a range of statuses, praetor among them; the date is one of the years 69–67.235 Cicero himself as praetor had the provincia repetundarum in 66.236 Though that quaestio was his primary responsibility, it is instructive to note he spoke in a contio to sway the decision in an upcoming case de peculatu and argued a case in the quaestio de veneficiis in addition to backing the Manilian law on Pompey’s command in the east.237 In the year 59, we know of two major trials de repetundis—apparently with two different praetors in charge. Cn. Cornelius Lentulus Clodianus presumably was praetor when he presided in April over the trial of C. Antonius (cos. 63, then pro cos. in Macedonia).238 Yet, later that year, Cicero when defending L. Valerius Flaccus (pr. 63, then pro cos. in Asia) for extortion, addressed one T. Vettius Sabinus, implying he was shortly about to take up a praetorian command in Africa.239 Perhaps the quaestio repetundarum involved more than one praetor in this year. The alternative is that T. Vettius, though praetor, heard the Flaccus case as juror.240 Magistrates in office are attested to have had a vacatio from serving on juries as late as for the year 69, but they apparently lost that privilege, perhaps as early as 64.241 In 56, while praetor, Cn. Domitius Calvinus (who had the ambitus court) and his colleague Q. Ancharius sat as jurors in the trial of P. Sestius de vi.242
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We shall see that a couple of other possible instances of praetors sitting as jurors crop up in the 50s. Ap. Claudius Pulcher almost certainly was praetor repetundarum for 57. The provincia is a reasonable inference from a letter to Atticus where Cicero voices deep concern that his brother Quintus (pr. 62, then pro cos. in Asia) on return to Rome might face prosecution in a quaestio run by (the then praetor designate) Appius.243 But one ought to remember that Cicero, for all his worrying about Quintus’ possible prosecution for that Asian command,244 never spells out the precise charge he feared his brother might face. The next attested holder of the provincia reptundarum is M. Porcius Cato. An unsuccessful candidate for pr. 55, as pr. repetundis in 54 Cato presided over the prosecution of M. Aemilius Scaurus (pr. 56) for extortion in his Sardinian command as well as the calumnia trial or trials that followed Scaurus’ acquittal. And Cato was the magistrate who presided at the repetundae trial in which A. Gabinius (cos. 58) was condemned.245 Notwithstanding his provincia, Cato seems also to have had responsibilities in the area of civil law.246 It is possible that while praetor Cato also sat as a juror in the court that saw the acquittal of A. Gabinius (cos. 58) de maiestate by a thin margin of votes.247 Cicero in a letter of 24 October 54 remarks that among the jurors in that case there sat two “praetorii,” Cn. Domitius Calvinus (i.e., the pr. 56) and a “Cato” (“de iudicibus duo praetorii sederunt, Domitius Calvinus . . . et Cato”), the latter individual being the first to announce the result of the voting to Pompey (who energetically had backed Gabinius).248 Now, Linderski identifies this “Cato” with C. Porcius Cato (tr. pl. 56), making him pr. 55 and thus a praetorius in 54—a solution which Broughton deemed “very probable” despite the lack of interval between tribunate and praetorship, which finds no good parallel for this era.249 But if Cicero’s wording in this passage is merely a circumlocution for “iudices praetorii”—which seems at least a possibility—a solution presents itself. Cicero might mean only to say that there were two jurors in the trial of praetorian status— as it happens, one an ex-praetor and the other a praetor in office.250 We have seen that a sitting praetor might have to serve as a juror in this era. There is a different sort of practical problem. Linderski251 speaks of the “utmost improbability of Cato Uticensis having jubilantly informed Pompeius of Gabinius’ acquittal.” But Cicero says nothing of the spirit of this announcement, simply that when the jurors’ votes were counted Cato disengaged himself from the crowd and was the first to tell Pompey (“Pompeio primus nuntiavit”), who at the time as pro consule could not cross within the pomerium. It was precisely as praetor repetundis, I suggest, that Cato wanted to be the first to announce to Pompey news of the (narrow) vote that acquitted Gabinius of maiestas. His aim was not to cheer but to deflate the mood of Gabinius’ foremost adherent by also predicting that man’s imminent condemnation in his own extortion court, where the process had already started.252 Nuntiare is elsewhere used of this sort of prediction.253 Cicero himself, when he heard of Gabinius’ acquittal for maiestas, expressed almost as his first thought that he still risked condemnation especially for extortion, which of course is precisely what happened.254
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One other magistrate is known to have supervised the repetundae court in our period: M. Iuvenius Laterensis, praetor in 51.255 So in every instance where we can check for the years following Sulla’s dictatorship it is a praetor who presides in an extortion trial. We can assume with some confidence the same is true in the cases de repetundis for which there is no mention of the court president.256 11.7.2 The Ambitus Court There are about three dozen trials on the charge of ambitus attested for the postSullan period that are certain or at least seem probable.257 But information as to who presided in these cases is scrappy. In 66, the famous jurist C. Aquillius Gallus definitely had the ambitus court as his provincia. He was hearing a prosecution on this charge at the same time A. Cluentius Habitus was on trial for poisoning, as Cicero tells us.258 Despite this evidence, in none of the other ambitus cases known to have been prosecuted in the year 66259 is Aquillius positively attested as president. That probably just shows how little interest our sources have in the presiding magistrate in such trials. Additional hard information on Aquillius’ praetorship is lacking. Now, he is lauded by Cicero in the De Natura Deorum (dramatic date 77 or 76) and De Officiis for creating a useful formula on deliberate fraud (“de dolo malo”): but as jurist or praetor? Perhaps as praetor—despite his provincia—to judge from Cicero’s statements that he “produced” (“protulit,” “protulerat”) a process on this crime.260 Cicero elsewhere uses the verb proferre of a praetor introducing innovations in his edict.261 That interpretation, however, requires us to think Cicero is anachronistic in bringing up Aquillius’ formula de dolo in the De Natura Deorum, for a time that he himself remembered as an adult.262 The legal authority C. Aquillius, who, as iudex with a distinguished consilium, judged against a female plaintiff in a sordid civil case, must be the same individual as our praetor. Yet, against a suggestion by Alexander, that particular incident should be dissociated from his praetorship in 66.263 P. Clodius Pulcher is said to have defended a Cornelius Lentulus on a charge of ambitus before jurors and a praetor, despite the fact that this man had joined two other Lentuli in accusing Clodius of incestum in 61. But we have no date for the trial, nor details on the court president—except of course the important fact that it was a praetor.264 We do get a revealing notice on the management of this court for late in the year 59 B.C. Cicero says that C. Porcius Cato (a future tr. pl. 56) could not get access to the “praetors” to submit his postulatio for the prosecution of A. Gabinius (then cos. des. 58) on an ambitus charge. C. Cato finally gave up and in a contio denounced Pompey, apparently for intervening secretly on behalf of Gabinius. Cicero’s statement that the “praetors” refused to make themselves available to Cato would suggest that more than one had competence in cases de ambitu in that year.265 In 56, the praetor Cn. Domitius Calvinus had ambitus as his city provincia.266 As noted (11.7.1), while praetor he and his colleague Q. Ancharius sat as jurors in the trial of P. Sestius de vi. This praetor is also likely to be identical with the Cn. Domitius who (evidently) presided over the prosecution of Caelius de vi in this same year:267 no other individual by that name and of the requisite status is avail-
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able. If true, the combination of jurisdictions is noteworthy—especially since it is somewhat at odds with what we have observed regarding the praetores of 59 B.C. The ambitus court must have had a certain seasonality, with the busiest stretches corresponding to the time immediately before and after curule elections.268 Most of the ambitus cases we have down to 54 (when the electoral calendar becomes quite wayward) indeed suggest this pattern.269 But accusations for ambitus could come in at any time—even against individuals who had won an office and held it.270 That might have limited how far the Senate could reassign the praetor who had ambitus to other tasks. Alexander271 entertains the existence of a “Cn. Domitius” who presided as iudex quaestionis over Caelius’ vis trial of 56, and then as praetor when Caelius was prosecuted by Servius Pola in 54. But Cicero’s observation that “Domitius did not have the requisite number of jurors” (“Domitius ad numerum iudices non habuit”) is surely a witticism and not a factual statement on the legal procedure in this case.272 Here the “Domitius” in question is not a praetor or quaesitor (the two solutions offered by Broughton),273 but none other than the cos. 54 L. Domitius Ahenobarbus.274 That is clear from what immediately follows in this text, where Cicero reports that this consul had lambasted the equestrian order for their lax judicial verdicts. L. Domitius obviously had a keen interest in the outcome of various trials of the year—but especially, so it appears, that of Caelius. As it happens, in a letter to Cicero in the year 50, Caelius himself groups together L. Domitius and Servius Pola, counting both as expected legal adversaries.275 Additional hostile references to L. Ahenobarbus by Caelius are not hard to find.276 So the mysterious “Domitius” (= RE 11) who twice crops up in connection with Caelius’ legal troubles should be regarded as a phantom. In early spring 52, the senior praetorius A. Manlius Torquatus (pr. by 69) as “quaesitor” saw to the conviction (on 9 April) of T. Annius Milo under the lex Pompeia de ambitu. The cos. III Pompey had taken the vis and ambitus courts under his protection that year. Torquatus in this case was a special president, one of several attested for 52. Like the consularis L. Domitius Ahenobarbus (cos. 54), who at the time presided over the quaestio de vi, Torquatus probably owed his position to a popular vote (11.9.3).277 11.7.3 The Maiestas Court Prosecutions for maiestas seem to have been rare in this period. Just over half a dozen are attested, including those merely threatened. The bulk belong to the 70s and first half of the 60s, though in most of those cases we have no information as to who presided.278 It seems unlikely that the supervision of maiestas trials was a full-time occupation for any magistrate. Consider L. Cassius Longinus, the first named president of this court. As praetor in 66, Cassius was slated to preside over the trial of C. Cornelius (tr. pl. 67).279 Asconius in his report of this maiestas trial (never held as such) reveals that Cassius, in addition to his quaestio, had responsibilities—or at least could plead responsibilities—in public grain matters. This chance notice confirms what in any case we might expect: that a praetor attached to this court—indeed, any permanent quaestio—might have a range of duties.280
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C. Cornelius was tried again for maiestas in 65, with the praetor Q. Gallius presiding.281 When C. Manilius (tr. pl. 67) also was to be prosecuted on that charge in 65, it appears the praetor C. Attius Celsus urged Cicero “with his utmost influence” (“maxima contentione”) to defend the ex-tribune.282 Alexander (like many others) believes that Attius actually presided over that trial.283 But Cicero’s usage elsewhere of contentio shows that one can be said to “exert influence” in backing a defendant without having any formal connection to the trial.284 Cicero apparently supported Manilius in a contio, but whether he in fact obliged the praetor Attius by speaking at the ex-tribune’s actual trial is most uncertain.285 In any case, it appears from Asconius that Manilius’ violent behavior during the proceedings—which were presumably under the presidency of Q. Gallius—prompted the Senate to have the two consuls of 65 offer extra military security for the trial. Manilius fled and was condemned in his absence.286 After Manilius’ dramatic prosecution we have to wait more than a decade for the next attestation of a maiestas case. In 54, C. Alfius Flavus presided at the trial of Cn. Plancius under the new (55 B.C.) lex Licinia de sodaliciis. Later that year he also issued the edict that summoned A. Gabinius (cos. 58) to trial de maiestate, and presided at the quaestio itself. For both trials Cicero calls Alfius simply “quaesitor.”287 What was his precise status? C. Alfius Flavus was tr. pl. 59 and then, despite (apparently) Caesar’s support, unsuccessful candidate for the praetorship of 56.288 The term quaesitor can be used of a iudex quaestionis or praetor (10.4.4). The fact that Alfius was a plausible contender for the praetorship already in 56 certainly suggests that he had reached the office when he issued that edict in 54 for Gabinius to appear in the maiestas court. (We have seen above that the praetor M. Porcius Cato perhaps sat as juror at that trial.) Indeed, we can assume that the court de maiestate was Alfius’ formal praetorian provincia. His presidency in the case of Plancius shows only that praetors shared the responsibility for trials brought under the lex Licinia de sodaliciis, at least in this year. There is just one additional trial for maiestas known for this period—that of Ap. Claudius Pulcher (cos. 54, then pro cos. in Cilicia), who was acquitted of the charge in early 50 B.C.—but there the presiding magistrate is unknown.289 11.7.4 The Quaestio inter Sicarios et de Veneficiis Surely the busiest court of all was the one Sulla created to try cases “inter sicarios et de veneficiis.”290 This encompassed “open crimes and routine bloodshed,” and much else besides—including murder and armed robbery (even carrying a weapon with those intentions), poisoning, arson, offering false testimony in a capital case, and judicial bribery.291 The sheer range of possible charges (some mundane) and the fact that the victim’s rank was inconsequential must have made for a steady flow of cases. One also suspects that prosecutions were more readily launched on flimsy evidence in this court than in other permanent quaestiones.292 Ulpian quotes from the lex Cornelia that established this quaestio: “praetor iudexve quaestionis, cui sorte obvenerit quaestio de sicariis” (“the praetor or iudex quaestionis to whom the murder court shall have fallen by lot”). So, it appears from the start Sulla envisaged the possibility that a iudex quaestionis might take over this
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court—or more precisely, take part in the sortition of its constituent divisions.293 Indeed, that is what we find in actual practice. True, in 80 the trial of Cicero’s client Sex. Roscius in the quaestio inter sicarios took place under the presidency of a praetor, M. Fannius.294 Fannius had been iudex quaestionis over this same court, probably in 85—another nice example of a sors opportuna. Cicero alleges that the case of Sex. Roscius was the first murder trial in Rome for some time.295 That might explain why a praetor—indeed, this particular praetor—presided over the quaestio inter sicarios in this instance. In later practice, where we can check, it is always a iudex quaestionis who is in charge of trials inter sicarios or de veneficiis. In 74, the iudex quaestionis C. Iunius is known to have heard three trials de veneficiis. Each of those resulted in conviction. Iunius, however, found himself condemned and fined—still within the year 74—for violating certain technicalities of his court.296 The quaestio was split between three iudices in 66 B.C., the ex-aediles M. Plaetorius and C. Flaminius serving inter sicarios and Q. Voconius Naso de veneficiis. The arrangement—known to us completely by chance—gives some indication of the volume of activity in this quaestio, and may well be typical.297 And in 64 B.C., C. Iulius Caesar (aed. cur. 65) as iudex quaestionis heard a series of trials inter sicarios.298 It seems likely that the purpose of the Pompey’s law on parricides (probably in his consulship of 55 or 52 B.C.) was to subdivide the work of this court further.299
11.7.5 Sullan Courts for Peculatus and Additional Crimes Cicero has C. Aurelius Cotta (cos. 75) in the De Natura Deorum characterize the peculatus court as one the “quotidian” quaestiones like those inter sicarios, de veneficiis, and de testamentis. In the Pro Murena, Cicero portrays this noncapital quaestio as one of the grimmer lots that a praetor can receive.300 We have seen (10.4.2) that a praetor apparently was the magistrate in charge in our one definite peculatus case of the pre-Sullan era, that of the burning of the Capitoline tabularium in 83 B.C.301 And for the later period, the two presidents whom we can identify are both praetors, C. Orchivius in 66 and the famous jurisconsult Ser. Sulpicius Rufus in 65.302 Yet this is a very small sample, with the two post-Sullan presidents falling in consecutive years. There is too little evidence to support Kunkel’s suggestion that praetorian presidency was the rule.303 Only a handful of peculatus cases are attested for this era (none with president specified). Most precede these two praetors of the mid-60s. Indeed, there are no probable instances after the year 64 B.C., which makes generalization impossible.304 As for the quaestio established to hear trials under the lex Cornelia testamentaria nummaria on forgery, not a single secure trial—not to mention president of the court—is known for this period.305
11.7.6 Post-Sullan Quaestiones I: De Vi It was inevitable that additional criminal quaestiones would spring up in the decades after Sulla engineered his grand reform. The first might have been intro-
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duced in the very year of Sulla’s death. The cos. 78 Q. Lutatius Catulus passed a law to punish violence against the state (the lex Lutatia de vi), and, for all we know, set up a standing court to implement it. Before too long, Catulus’ provision was superseded by a (presumably tribunician) lex Plautia de vi. The date is uncertain, but it probably falls in 70 or afterward and must predate the year 63, when a capital quaestio de vi was demonstrably in operation. The lex Plautia remained in effect to the end of this period, even alongside the sharper law de vi Pompey passed as cos. III in 52 B.C.306 In the first two trials under the lex Plautia for which the court president is indicated (one of 62 and another of 59 B.C.), it is clearly a iudex quaestionis who is in charge.307 Our next real information is for the year 56.308 Notwithstanding Mommsen’s strong reservations, it is a common and reasonable inference that the praetor M. Aemilius Scaurus was president of the quaestio that tried P. Sestius de vi, in a process stretching from 10 February to 14 March of that year.309 But we also know that the praetors Cn. Domitius Calvinus (who had “ambitus” as his formal provincia) and Q. Ancharius were merely jurors in this case.310 This raises the possibility that Scaurus had merely the same status. Yet caution is necessary. The praetor Cn. Domitius Calvinus himself seems to have been the magistrate presiding over the famous prosecution of M. Caelius Rufus in early April 56. The notion that the “Cn. Domitius” Cicero addresses in his defense of Caelius was a different person than the pr. 56 seems hard to swallow.311 Three subsequent presidents for trials de vi are attested. Yet they all crop up in the exceptional year 52 B.C., and cannot be used toward reconstructing what was the previous regular practice. T. Annius Milo was prosecuted and convicted for the murder of Clodius first in a special quaestio under the new lex Pompeia de vi, with the People electing L. Domitius Ahenobarbus (cos. 54) from among the consulars as “quaesitor” for that case. Milo then (in absence) was tried before a “quaesitor” L. Fabius—surely under the lex Plautia—and simultaneously before the senior praetorius A. Manlius Torquatus for ambitus, and the aedilicius or aedile M. Favonius de sodaliciis (each is termed “quaesitor”). Milo was condemned on all counts. There was a double trial de vi also for Milo’s adherent M. Saufeius. However, here the result was double acquittals, first (ca. 12 April) under the Pompeian law, and then again under the Plautian law “before the quaesitor Considius” (“apud Considium quaesitorem”).312 L. Fabius and Considius apparently had split the cases that came into the quaestio of the lex Plautia. A good number of trials de vi are registered for the years 52 and 51 B.C., so subdivision of tasks—even to hear cases under just one of two concurrent laws de vi—should not surprise us.313 The arrangement of the quaestio inter sicarios et de veneficiis in 66 into three divisions (each under a iudex quaestionis) offers a good parallel. The precise status of Considius (not readily identifiable) and L. Fabius (otherwise unknown) has to remain uncertain. In the circumstances, either quaesitor can have been of praetorian rank, like the A. Torquatus who tried Milo for ambitus, or subpraetorian, as Favonius was when he heard Milo’s case de sodaliciis. It even is technically possible (though unlikely) that one or both of these mysterious court presidents held the praetorship in 52 B.C.314
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11.7.7 Post-Sullan Quaestiones II: The Lex Papia and Lex Licinia de Sodaliciis Two additional standing criminal courts appear in our record for the post-Sullan period, that of the lex Papia (65 B.C.) on claims to citizenship and another established by the lex Licinia (55 B.C.), a measure aimed primarily at the sodalitates, associations within the tribes that often bribed and intimidated voters for the benefit of individual candidates. First, the lex Papia: A tribunus plebis of 65, C. Papius, passed this law ex S.C. to penalize foreigners who illicitly claimed Roman citizen rights. The Papian law provided for a quaestio where individuals or even whole communities might lay charges. Details on the actual law are few, and not always consistent (especially on the penalty)—despite the existence of two Ciceronian speeches from this court, the Pro Archia and the Pro Balbo. Four trials are known: the prosecution of Archias in 62 B.C., that of a certain M. Cassius (by 56, prosecuted by the city of Messana), the trial of L. Cornelius Balbus in 56, and that of a freedman and accensus of A. Gabinius (cos. 58) who was condemned under the Papian law in late October 54. So it is clear that the lex Papia—unlike the lex Licinia Mucia of 95—remained in effect for some time.315 For only the first of the Papian trials do we have an indication of the court president: a praetor presided in the case of Archias, said by a scholiast to have been Q. Tullius Cicero (pr. 62).316 However, in his Pro Balbo of 56, Cicero in passing implies that a iudex quaestionis also might see to this court.317 We do not know how the Papian president was officially styled. It was M. Licinius Crassus, as cos. II in 55, who was ultimately responsible for the measure de sodaliciis. The immediate origins of this law go back in a way to 64, when a senatus consultum suppressed certain collegia (social clubs and religious guilds, with mostly freedmen and slaves as members) that were perceived to have been formed against the state. In 58, P. Clodius Pulcher as tribune restored those collegia and allowed new ones to be organized. The sodalitates were a different matter—and an awkward problem for any reformer, since they were so effective at securing votes by means fair or foul. As Linderski has demonstrated in detail, in his legislation the consul Crassus was largely following a senatus consultum moved by Q. Hortensius (cos. 69) in early 56. It was perhaps obstruction by Caesar, Pompey and Crassus that prevented this senatus consultum from being voted into law for the rest of 56. Yet violence seriously delayed the elections for 55: Pompey and Crassus were elected to the consulship only after the year had started, under the presidency of an interrex. On taking office Crassus himself decided to take the credit for curbing the electoral sodalitates by pushing through a law based on Hortensius’ senatus consultum, down to the detail of a jury to be named by the accuser (not appointed by lot). However, Crassus’ law differed from the senatus consultum (so it seems) in that it did not order the outright dispersal of the sodalitates. Instead, it made their members who practiced actual violence and bribery liable to prosecution. Candidates, too, could face trial on that charge. Exile (in its most extreme form, with aqua et igni interdictio) was to be the penalty.318
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Five trials de sodaliciis are known in the years that followed the tough lex Licinia of 55 B.C. The first three date to 54: C. Messius (a plebeian aedile of 55, tried after being acquitted twice on other charges), P. Vatinius (pr. 55), and Cn. Plancius (aed. cur. 55). Cicero defended each of these individuals, helping to secure an acquittal in certainly the latter two cases. Then T. Annius Milo (pr. 55 and consular candidate for 52) was tried and convicted in absentia on that charge in 52. And in 51, M. Valerius Messalla Rufus (cos. 53), after being acquitted in a trial under the Pompeian law de ambitu for offenses related to his election to the consulship two years previously, was condemned in the Licinian court and exiled.319 For three of the five trials de sodaliciis—C. Messius and Cn. Plancius in 54 and T. Milo in 52—there is some information on the supervision of the court. By his edict, the praetor P. Servilius Vatia Isauricus called back the ex-aedile C. Messius from a legateship under Caesar in Gaul to stand trial under the lex Licinia. Alexander is probably right to assume that Servilius then presided as praetor over the actual quaestio; naturally, a praetor might summon a defendant he intended personally to try.320 However, Servilius’ colleague C. Alfius Flavus certainly presided over the prosecution of Cn. Plancius de sodaliciis in the year 54, as well as conducting the maiestas trial of A. Gabinius (cos. 58).321 The appearance of M. Favonius (aedile 53 or 52) as “quaesitor” in the trial of T. Annius Milo in 52 gets us no further than the other “quaesitores” of that extraordinary year in disengaging previous practice.322 But the instances of 54, combined with the evidence of the years 52 and 51, should remove serious doubts that the lex Licinia established a new standing court. In the absence of any real conflicting evidence, we must also assume that the consul M. Licinius Crassus fully intended that his quaestio be staffed by praetors.323 The idea of a designated “praetor de sodaliciis” seems dubious. Rather, the involvement of both C. Alvius Flavus (who apparently had maiestas as his lot) and P. Servilius Vatia in the same quaestio in 54 shows that reponsibility for the Licinian court impinged on more than one city praetorian provincia. As for how the presidency of that quaestio was decided, we know too little to say.
11.8 Special Praetorian Provinciae outside Rome, 81–50 11.8.1 Praetorian Commands in Illyria It did not take long after Sulla’s settlement for the Senate to declare a special praetorian military provincia overseas, sending C. Cosconius to Illyricum, probably ex praetura for 78. (We have seen in 10.5.1 there are only two known examples of such provinciae outside Italy in the previous fifty years.) This man was surely identical with the C. Cosconius who fought successfully in the Social War as (apparently) pr. 89 (10.5.4). His Illyrian command culminated in his capture of Salonae in Dalmatia after two years of campaigning.324 Broughton reasonably suggests he was pr. II 79, and that his promagistracy “probably began in 78 and ended in 76.”325 All we can say for certain is that his subordinate M. Atilius Bulbus was back in Rome
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to serve as a juror in the notorious trial of Oppianicus in 74, only later to be condemned de maiestate for his previous conduct under Cosconius.326 A word about the second praetorship: If really pr. 89 and II 79 (as seems probable), the example of Cosconius prima facie would suggest that Sulla’s statutory “ten-year interval” for iterating the various magistracies (thus Appian)327 was based on inclusive reckoning. But Sulla was very much in personal control of the elections for 79, and so there is no telling from this particular example how the rules worked. Perhaps Sulla backed Cosconius for this unusual iteration of the office, as he is said to have “nominated” the consuls for 79.328 An alternative (and perhaps more plausible) explanation is that Appian is inaccurate, and Sulla never forbade iteration of the praetorship: note P. Varinius, a praetor of 73 who returns as pr. II in 66.329 In any case, by iterating the praetorship Cosconius obviously was trying to reposition himself for a consular bid under Sulla’s newly stabilized system. However, he never made it to the higher office. Illyria apparently comes up at least once more as a praetorian provincia in this period. Cicero pestered the pro cos. L. Culleolus to exert his official influence on the people of Byllis (southeast of Apollonia) to pay back a loan to L. Lucceius in which Pompey also had an interest.330 Culleolus is much more likely to have held Illyricum than the other possibilities that have been suggested, Macedonia (where there is really no room in the fasti for the relevant time span, i.e., the 60s and 50s) and Cisalpine Gaul (technically possible but very rarely praetorian). He probably served in Illyricum not long before the Senate saw fit to attach it to the consul Caesar’s massive promagisterial provincia, but by 59 at the latest. The fact that there were three legions at Aquileia in late 59 suggests something was afoot in Illyria precisely at this time.331 Shackleton Bailey dates Culleolus’ command to “ca. 61–60,” which seems about right.332 It must be emphasized that the command of L. Culleolus is known quite by chance. The Senate may well have allotted “Illyria” one or more times between the time of C. Cosconius and the praetorship of Culleolus in the late 60s.
11.8.2 Pompey’s Special Commands and His Legati Neither of the consuls of 77 were interested in taking command in Spain alongside the pro cos. Q. Metellus Pius in the difficult civil war against Sertorius. A debate followed on who should be sent instead. Finally on the motion of L. Philippus (cos. 91), the Senate gave the charge not to a praetor, but to a privatus—the equestrian Cn. Pompeius, who had served Sulla so successfully in Sicily and Africa a few years previously (13.1.4, 14.3.3), and had fought in early 77 as a legatus pro praetore in the Lepidan War (see 11.8.5). Once the Senate decided upon the privatus Pompey, it seems there was fresh debate on whether Pompey should serve as an adiutor to Pius or as his cocommander (i.e., what grade of imperium he should receive) and perhaps also whether he should have his own provincia. In the event, Pompey received Hispania Citerior as his own and consular imperium to hold it.333 (There was of course a distant precedent for this sort of command, namely the privati who in the
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period 210–198 [7.1.3–6] had proceeded to Spain with enhanced imperium.) The Senate must also have voted him a set number of quaestors and legati.334 In this decision, the real factor was Pompey’s proven military competence. In early 75, the Senate again chose not to use a praetor for an important overseas task, but for a negative reason. In a financial crisis it sent a quaestor with (probably) a special grant of praetorian imperium to exploit the former royal estates in Cyrene. The position was deliberately devised so as to involve the minimum status and power required for the job (11.4). After C. Cosconius, pr. II in Illyria (11.8.1), the next known special praetorian provincia outside Italy is the one assigned to the pr. 74 M. Antonius (discussed in 11.3.1). Antonius’ command, despite its ultimate failure, was a clear source for the pirate commission the privatus Pompey received in 67 under the tribunician lex Gabinia. Velleius in fact tells us as much.335 But the Gabinian law went much further. It guaranteed Pompey consular imperium for three years. In addition, it entitled Pompey not just to appoint a large number of legates, but also to delegate each of them praetorian imperium.336 Some of these subordinates were quite senior. Among the thirteen reliably transmitted names, we find two consulares and three or four known praetorii.337 Pompey set up those legates with both land and sea forces in independent quasi provinciae, where they were to stay put.338 Here one thinks of the consular and praetorian legati meant to serve under the consuls during the Social War, at least some of whom demonstrably had received imperium not for ad hoc tasks but officially conferred throughout their tenure (10.5.3). This aspect of the lex Gabinia evidently had tremendous popular appeal.339 And the legates of 67 were obviously effective, since they helped Pompey sweep the seas within just forty days. Plutarch even states that the pirates took pains to escape these legates so as to surrender to Pompey himself.340 Pompey retained at least some of these legati to play a military role beyond the pirate command.341 Hence we see Pompey (surely) ordering his legate L. Cornelius Sisenna to take his military force out of Greece to interfere with the command of Q. Caecilius Metellus in Crete (cf. 11.3.2), or the legati L. Lollius and Q. Caecilius Metellus Nepos to conduct land operations against Damascus in 66/65. The tenure of some of these legati may have lasted as long as that of Pompey himself.342 Interference by special commanders in overseas praetorian provinciae was quickly becoming a hallmark of the age. The trend starts with the special provincia of M. Antonius in 74 and continues through Pompey’s extraordinary commands of 67 and 66 under the Gabinian and Manilian laws. Possibly relevant is a case of 65, when the Senate dispatched Cn. Calpurnius Piso as a quaestor pro praetore to Hispania Citerior (13.4.7). In 57, when Pompey received a special grain command pro consule for five years, he was voted the right also to appoint (at least) fifteen senatorial legati to help him in his task, to be distributed throughout the Mediterranean. The name of only one of these legati—Q. Tullius Cicero (pr. 62)— has come down to us (see 13.2.8 for his service in Sardinia). Whether he or the others had imperium is unknown. Pompey himself sailed to the grain-producing provinces of Sicily, Sardinia, and Africa.343 Though each of the praetorian incumbents in those provinces had technically the same level of imperium as Pompey
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(i.e., pro consule), it seems unlikely that at this point any of them would try to stand up to him or his legati.344 11.8.3 The Rullan Xviri We can view the land bill promulgated by the tribunus plebis P. Servilius Rullus at the start of 63 as another example of the phenomenon of interference in praetorian provinciae. The consul Cicero’s three speeches De Lege Agraria (mostly extant) provide a wealth of detail on the measure—and much that is patently distorted and tendentious. Cicero is particularly eager to highlight the contradictions in the drafting of this complex law, no doubt because Rullus clearly took special precautions against technical objections to the implementation of its provisions.345 The bill came to nothing, thanks to the efforts of Cicero and one of Rullus’ tribunician colleagues (who threatened a veto).346 For his lex agraria, it does appear that Rullus had proposed to create a commission of Xviri who were to have the status of magistrates and with it auspicia and (praetorian) imperium—all confirmed by a lex curiata—for five years.347 Rullus wanted to give his Xviri the power to purchase, adjudicate, confiscate and assign ager publicus, and institute or supplement colonies in Italy and the provinces.348 That made for a considerable commission: Plutarch even alleges that Cicero’s consular colleague C. Antonius wanted to receive one of the positions. Plutarch also sees a link with the ex-Sullan tribunes—who had been banned from higher magistracies but were now seeking office—and the establishment of Rullus’ Xviri. Perhaps Rullus (who is said to have had his own Sullan connections) partly intended this as a magistracy to which they could aspire.349 The establishment of a board of ten with judicial powers to implement important agrarian legislation goes back at least as far as the legislation of tr. pl. II 100 L. Saturninus; the appointment of Xviri without judicial powers to make viritane assignments much further still.350 Yet the main model for Rullus, implies Cicero, was Ti. Gracchus and the far-ranging IIIviri agris iudicandis assignandis he instituted with auspicia for his agrarian program as tr. pl. 133.351 Whether the Gracchan IIIviri had imperium is unclear. For that aspect of Rullus’ law, however, one finds an old precedent in the two commissions of IIIviri granted imperium “for three years” in the years 193–191, ostensibly to found colonies in south Italy (8.4.1). We owe our knowledge of that colonial commission to a chance notice in Livy; there might have been others in the second century (and beyond). Cicero complains that despite selection by only part of the Plebs (seventeen of the thirty-five tribes), the passage of a lex curiata gave the Xviri full magisterial prerogatives. While in office, they had a magistrate’s freedom from prosecution; in addition, they could simultaneously hold other magistracies. Cicero says they also were to have all the trappings of a commander, including publicly funded lictors and 200 equestrian “finitores” (each with his own attendants), and the right to entertainment in foreign communities. Cicero says the Xviri also had the power to delegate their responsibilities (though apparently not their imperium, which was praetorian) to a quaestor. Indeed, Cicero (with considerable hyperbole) makes out
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that the power of the Rullan Xviri was “infinitum.”352 One eye-opening criticism of the bill is Cicero’s implication that Rullus’ Xviri would not lose their auspicia upon entering the city.353 Cicero only mentions that feature in passing, and it very likely is a distortion. It is hard to believe that Rullus hoped—or wanted—to give his agrarian commission imperium both domi and militiae for five years. So when Cicero says the Xviri could be “at Rome” (“Romae”) when they chose, we should take this as “ad urbem,” that is, near the city but outside the pomerium.354 Yet Rullus clearly did permit his Xviri cumulation with proper magistracies, so problems were in the making. 11.8.4 The Clodian Law on the Organization of Cyprus In 58 B.C., another plebeian tribune—P. Clodius Pulcher—hit upon a scheme to raise money for an extravagant grain law. Badian355 has fully elucidated the background and implementation of Clodius’ plan, which makes extensive discussion unnecessary here. The public treasury had been exhausted by Caesar’s ambitious consular legislation in the previous year. Clodius’ solution on how to fund his domestic program was to seize the kingdom of Cyprus from its ruler Ptolemy, perhaps on the pretext that the king had aided pirates. Faced with the prospect of public bankruptcy, the Senate really had no choice but to acquiesce in Clodius’ intrusion in the sphere of foreign policy.356 Clodius’ law annexing Cyprus was passed before April. The Senate must have decided by that time to try to annex Cyprus in an orderly fashion and to place it under the administration of the governor for Cilicia. Clodius for his part assigned by privilegium that provincia—now suddenly important—to the friendly cos. 58 A. Gabinius. Yet Clodius and his backers (Caesar, Pompey, Crassus) soon had second thoughts. The reason for annexing Cyprus, after all, was to get its wealth into the Roman treasury. So rather than use a consular commander (with consular-sized debts), Clodius instead revived the precedent seen in the exploitation of the Cyrenaean royal estates in 75. To collect Ptolemy’s wealth, a position was created extra ordinem involving the minimum status and power appropriate to the task. We are told that many were eager for the commission. The man Clodius had settled on to fill it was the upright tribunician M. Porcius Cato.357 In April 58, by a privilegium, Clodius had Cato appointed as pro quaestore pro praetore to annex (but not organize) Cyprus and to liquidate the royal property in the island. Cato was given a small staff of a quaestor and two scribes to assist him, and no doubt an armed force; Cicero says Cato had the power of making war to secure the royal money if need be.358 Under the terms of another one of Clodius’ laws—a further example of his interference with foreign affairs—Cato also was to restore some exiles to Byzantium. As for Gabinius, Clodius gave him the provincia of Syria (allegedly with enhanced boundaries) as a consolation prize. The suicide of king Ptolemy—soon after hearing Rome had decided on annexation of Cyprus—made fighting unnecessary.359 By personally auctioning the royal property, Cato netted the Roman treasury nearly seven thousand talents. He returned to Rome in 56 to an enthusiastic reception, says Valerius Maximus, by the consuls, magistrates, the Senate—indeed the whole Roman People. Cato capital-
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ized on the attention his commission attracted by having the Cypriot wealth carried in a triumph-like display through the Forum.360 But he declined all special honors. Here Valerius Maximus is the most precise. The Senate wanted to vote Cato a special dispensation, so that his candidacy might be accepted extra ordinem at the praetorian elections (ut praetoriis comitiis extra ordinem ratio eius haberetur). But he did not allow this to happen, maintaining that it was unjust that what was allowed no other [sc. of the candidates?] be decreed to himself, and lest any innovation be introduced in his own case, he considered it better to try electoral chance than to enjoy a gift of the Senate (ac ne quid in persona sua nouaretur, campestrem experiri temeritatem quam curiae beneficio uti satius esse duxit).
Our Greek sources tell a somewhat different story. Plutarch has Cato decline the Senate’s award of an “extraordinary praetorship” (strathgivan ejxaivreton) and with it the right of watching games in the toga praetexta. Dio reports that the the consuls moved that Cato be given a praetorship, “though it did not yet belong to him in accordance with the laws” (strathgivan . . . kaivper mhdevpw ejk tw`n novmwn proshvkousan). Cato himself defeated the measure by speaking against it, but later (says Dio) was suspected of having put the consuls up to making the motion in the first place.361 Mommsen preferred the account of Valerius Maximus and suggested that Cato—who was born in 95 B.C., and thus no doubt perfectly eligible in 56 to seek a praetorship for 55—arrived back from Cyprus so late that he missed the opportunity to make his professio in person for the upcoming elections (which in the event were delayed until February 55).362 However, H. E. Russell, in a 1950 specialized study of extraordinary advancement of rank in the Republic, dismissed the Valerius Maximus passage as a minority view. She followed L. Lange’s interpretation of the Greek sources, “that Cato received the ornamenta praetoria and the right of wearing the toga praetexta and that he refused the honor because he intended to seek the actual praetorship,” that is, in 55 for 54 (which he won).363 Yet the versions of Valerius Maximus, Plutarch, and Dio are not necessarily incompatible. It is perfectly possible in the atmosphere of the moment that the grateful Senate offered Cato first the dispensation from the professio and then, when it was refused, praetorian ornamenta. (It does not seem possible, pace Dio, that the Senate wanted to simply give Cato a praetorship.) The phrase “ac ne quid in persona sua nouaretur” in the Valerius Maximus passage does seem to introduce a new point. And Cato’s stated preference “campestrem experiri temeritatem quam curiae beneficio uti” is fully consonant with the refusal of insignia for the motive Lange and Russell suggest. Indeed, making that phrase refer to the professio dispensation seems to give less satisfactory sense. Strabo reports that Cyprus at this point became a “praetorian province,” as it was in his own time.364 That is not strictly accurate. Rather, the Senate after Cato’s return in 56 joined Cyprus to the provincia of Cilicia, as it had been planning to do for at least two years. P. Cornelius Lentulus Spinther (cos. 57)—the first pro consule
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for the enhanced “Cilicia”—organized Cyprus. However, for the rest of the decade the island was to be administered in a minimalist fashion. Two consular commanders followed Spinther’s tenure in his province of Cilicia, Ap. Claudius Pulcher (cos. 54, pro cos. 53–51) and M. Tullius Cicero (pro cos. 51/50). Neither of these men set foot on the island. That was no doubt fine by the Cypriots: for winter 51/50 the island was willing to pay Cicero a fabulous sum to avoid receiving a Roman camp. The only certain thing we know Appius did regarding Cyprus was to allow the negotiator M. Scaptius to have an appointment of prefect of cavalry to collect certain private debts from the town of Salamis. Cicero had to order Scaptius off the island, in response to a petition from the Cyprians. He tried also to restore order to Cyprus in other respects, delegating the litigation of Roman citizens there to a praefectus Q. Volusius. Yet the first actual quaestor to make it to Cyprus was probably for 49 B.C., after Cicero’s departure from Cilicia. In the end, Caesar decided that administering Cyprus was more trouble than it was worth, and promised to restore the island to Ptolemaic rule in 47 B.C., just a decade after annexation.365 11.8.5 The Bellum Lepidanum It remains to examine special praetorian provinciae declared within Italy in the post-Sullan period. The first ones probably belong to the year 77. That year opened without curule magistrates, thanks to the agitation of the cos. 78 M. Aemilius Lepidus, now pro cos. for the two Gauls. According to Sallust, L. Marcius Philippus (cos. 91) successfully urged passage of a senatus consultum ultimum against Lepidus, which specified that the interrex Ap. Claudius Pulcher and Q. Lutatius Catulus (cos. 78, and now pro cos.) and others who had imperium—probably the praetors of 78 who were now ex magistratu and waiting to go to their provinces— should come to the defense of the city and the state.366 Somehow at this time also the privatus Cn. Pompeius received an army to fight Lepidus and his supporters. He doubtless had a special grant of (praetorian) imperium to go with it; otherwise his elevation to pro consule to combat Sertorius later in 77 (13.4.3) is hard to explain.367 But where would this imperium come from? Pompey does not fall under any of the categories set out in the senatus consultum ultimum as reported by Sallust. N. Criniti’s explanation is the easiest, that the pro consule Q. Catulus gave Pompey imperium by delegation. Indeed, Florus thinks that in the first battle against Lepidus, near the Campus Martius, Pompey fought under Catulus. Yet that apparently is an error. At the time, Pompey probably was besieging Lepidus’ legatus M. Iunius Brutus at Mutina in Cisalpina, a lengthy operation in which Pompey finally forced Brutus to surrender—and then treacherously had him killed. But when Catulus at Cosa again defeated Lepidus (and thus drove him out of Italy to Sardinia), Pompey returned from Gaul to assist the pro consule. And there is no reason to doubt Plutarch’s report that when the bellum Lepidanum came to an end in Italy, it was Catulus who ordered Pompey to disband his army. Later tradition accused Pompey of trying to steal Catulus’ thunder. Pompey’s status at this point was doubtless Catulus’ legatus pro praetore.368 The fighting against Lepidus in Italy was soon over—we never learn what any of those individuals cum imperio did except for Catulus and Pompey—and our
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sources shift their attention to the special commission Pompey received pro consule to face Sertorius in Spain. 11.8.6 The War against Spartacus: Opening Stages A major slave war that broke out in Italy later in the 70s taxed Rome’s command structure to a far greater extent. Here (as elsewhere in this work) my main concern is with chronology, and the titulature and prosopography of the praetorian commanders involved. At Vesuvius, Spartacus and a small group of his fellow gladiators—still at a total strength of just seventy-four369—scored their first success in the field by tricking and defeating a “Clodius” or “Claudius” when he marched against them with a small force before autumn of 73.370 His name and title vary in our sources, even within the same basic tradition. The Livian Periocha calls him “Claudius Pulcher” and (apparently) makes him a legatus of a praetor “P. Varenus” (i.e., Varinius, on whom see below). For Florus, he is the dux “Clodius Glaber,” whereas Orosius makes him “Clodius praetor.” Frontinus has simply “Clodius” with no title, noting he had “a few cohorts.” Plutarch is the most detailed: he relates that a “Clodius strathgov~” was sent from Rome to fight the slaves with three thousand soldiers. Appian seems quite confused. In his narrative of the Slave War, a “Varinius Glaber” is first sent against Spartacus and then a “P. Valerius,” each having only tumultuary forces. Here Münzer must be right, that Appian has combined the names of two Roman commanders into the single name “Varinius Glaber” and substituted the name “P. Valerius” for “Varinius.”371 What can one conclude from all this? Broughton suggests that our “Clodius” is indeed pr. 73 and son or brother of the praetorius C. Claudius C.f. Arn. Glaber who is listed second in an epigraphically preserved senatorial consilium of midOctober 73.372 Since the pr. 75 C. Sacerdos has (surely) fourth rank in the consilium, that C. Glaber must have reached the praetorship by 75 or earlier. I tentatively accept Broughton’s view here. But the rarity of the name (no other Claudii Glabri are known to have reached a magistracy in the Republic) invites the suspicion that the title “legatus” in the Periocha is accurate, and that it was the praetorian C. Glaber who fought at Vesuvius with an advance force at some point before he sat in that October consilium.373 In the year 133, a significant slave uprising at Minturnae and Sinuessa had led to two senior ex-consuls receiving special grants of imperium to put it down (8.6.2), which would provide a precedent of sorts for the alternative suggested here. A praetor P. Varinius of 73—there is no doubt about his name, office, and date—was the next after Claudius Glaber to fight Spartacus and his forces (now significantly larger). Varinius apparently had enhanced imperium.374 Yet he suffered a series of losses against the gladiators, evidently in the area of Campania and Lucania. A relatively detailed story for this man emerges from our sources,375 with Plutarch’s Crassus providing a basic framework and Sallust’s Histories adding many welcome particulars. First, Varinius’ legatus Furius was routed with three thousand soldiers, and perhaps other subordinates too.376 Then a certain (L.) Cossinius lost his camp—and his life—to the slaves. Plutarch says he had been sent with a large force to help Varinius as “adviser and cocommander.”377 Cossinius very likely is no more than Varinius’ most favored legatus, not a praetor of the year.378 But that he
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had a grant of delegated imperium is quite conceivable, given that Plutarch describes him as sunavrcwn with Varinius (pro cos., according to Frontinus) and implies he had his own camp. Finally, Varinius found himself stymied in a series of encounters that spanned the late summer and autumn, in the end losing his camp, horse, and lictors to the gladiators.379 Despite the title pro consule that we find in Frontinus, there is no reason to accept Broughton’s suggestion that Varinius had been prorogued into 72.380 Several praetors seem to have received enhanced imperium to act in Italy at the start and then conclusion of the Social War (10.5.2 and 10.5.5). In the year 73, the Senate might have allowed such a grant to Varinius as praetor. 11.8.7 The War against Spartacus in 72 and 71 The war against Spartacus was declared consular for 72. Both L. Gellius and Cn. Cornelius Lentulus Clodianus had it as their provincia, and the cos. 73 C. Cassius Longinus (now pro cos. in Gallia Cisalpina) joined them in attempting to put down the slave revolt. The Senate made use of praetorian commanders, too. One praetor of 73, Q. Arrius, had been expected even late in that year to succeed C. Verres in Sicily for 72. Instead, he fought the gladiators as a prorogued praetor under the command of the cos. L. Gellius.381 According to the Livian Periocha, Arrius initially scored a great success in Apulia against the slave leader Crixus, whom he killed along with twenty thousand of his men. Other authors attribute Arrius’ victory to his superior alone; the same goes for a later defeat Arrius and Gellius suffered at the hands of Spartacus. These examples show how readily our sources can ignore even important praetorian commands.382 Indeed, it would be odd if in 72 Gellius’ consular colleague Cn. Lentulus Clodianus did not also have a subordinate in a position analogous to that of Arrius when fighting the slaves: one notes that the pro consule C. Cassius Longinus in Gallia Cisalpina evidently was fighting in close connection to a praetor (or prorogued praetor) Cn. Manlius.383 A series of disasters in central and north Italy soon showed up the shallowness of the Roman leadership and led to the appointment of a praetor or praetorius, M. Licinius Crassus, to the chief command.384 Here the Livian Periocha provides the chronological framework.385 First, Spartacus defeated the consul Cn. Lentulus Clodianus—and apparently his legati—in the Appennines. Spartacus then routed the consul L. Gellius and praetor Q. Arrius, or both consuls together.386 The real turning point, however, seems to have been the slaves’ victory over the pro consule C. Cassius Longinus at Mutina (not mentioned by Appian), which came at the same time (or slightly before) the renegades’ defeat of the praetor Cn. Manlius. Orosius even says that the pro consule was killed in battle.387 Appian alone has the slaves score an additional success in Picenum against the coss. 72,388 which leads (in his version) to the “election” of Crassus as praetor. More plausible are the Livian epitomator, Orosius and Plutarch, who consider the defeat of the pro consule Cassius Longinus to have triggered the appointment of Crassus to the principal command. It was at this point, Plutarch says, that the Senate ordered the consuls of the year not to fight any longer and chose Crassus to conduct the war (Kravsson . . . tou` polevmou strathgo;n ei{leto). The Senate author-
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ized an additional levy, gave Crassus the consuls’ legions (thus Orosius)—and surely (if it had not done so already) saw to the raising of his imperium to the consular level.389 This vote of enhanced imperium may be the basis for Appian’s story of a dramatic praetorian “election” of 72, which simply makes no sense. An alternative is that Appian is garbling an account of a special election granting imperium, such as that seen in 88 B.C., when Marius was chosen to replace Sulla for the Mithridatic command.390 In general, Appian’s account of fighting against Spartacus in 72 is quite outside the mainstream tradition. He has distorted the chronology of the war by giving the consuls of that year one defeat too many (i.e., Picenum), and furthermore will put all of Crassus’ campaigning into the year 71.391 Yet Crassus must have been in the field by November 72 with prorogation into 71.392 For the Senate to privilege a praetor or praetorius over a consul (rather, two consuls) in this way has few direct precedents. (The most recent one available is the dispatch of C. Laelius against Viriathus for 144 B.C.) Around the time the Senate was deciding on prorogations (i.e., late 72 or early 71), Crassus asked that it summon M. Lucullus (cos. 73) from Thrace and the pro cos. Pompey from Spain. But he soon regretted that, says Plutarch.393 Appian adds that “the Romans in the city” actually voted that Pompey conduct the war in addition to Crassus. Yet Crassus hurriedly finished the conflict (in spring 71) before either of those commanders could fully steal his thunder.394 Mopping-up operations, however, took some time. A year after Crassus’ decisive victory over Spartacus, the Senate called on C. Verres (pr. 74) as he returned from his Sicilian governorship to fight against a small slave band at Valentia and (apparently) Tempsa (13.2.3). The Senate surely utilized other commanders (including praetors and ex-praetors) in this way in the years 71 and 70, and indeed for some time beyond. By chance we know that the Senate gave C. Octavius (pr. 61) a task extra ordinem on his way to Macedonia as pro consule in early 60, namely to take action against some runaway slaves—leftovers from Spartacus’ revolt and adherents of Catiline—who had occupied an area around Thurii (14.2.4). For his successes against the slaves, M. Licinius Crassus was elected consul for the year 70. But the date of his praetorship and his status as commander against Spartacus in 72 and 71 pose a vexed problem. Badian and I. Shatzman take Appian at his word that he reached the consulship according to the leges annales, and so make him pr. 73.395 On this interpretation, after the defeat of both consuls in 72 he received as a privatus a special grant of consular396 imperium to take the chief command in their stead. A praetorship for Crassus in the year 73 is certainly the easiest solution, and it is the one I adopt here. But Crassus need not have been a privatus in the year 72. Surely it is more likely that, as in the case of Q. Arrius (pr. 73), the Senate had Crassus prorogued and assigned to special duties in Italy. (It is hard to believe that any praetor of 73 could decline an ex praetura command and then revert to the status of a privatus in the emergency.) Perhaps the reason that we do not hear of any special assignment for Crassus is that in early 72 he saw service in a theater less challenging than that of Arrius. That praetor, after all, managed to fight in major engagements against both Crixus (whom the Periocha says he killed in battle with twenty thousand of his men) and Spartacus—and still barely made it into our
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sources for 72. If Crassus had as his ex praetura assignment garrison duty or the like in Italy, his imperium is likely to have stayed at the praetorian level so as to avoid conflict with the three consular commanders (i.e., the prorogued cos. 73 and the two coss. 72) then active in the peninsula against the slaves. An alternative solution is that Crassus was a praetor of 72, who had his imperium raised later in that year, and then after prorogation into 71 stood for the consulship of 70 by special dispensation. Appian only vouches for the fact that Crassus was praetor before consul; it is not clear whether he knew that Sulla also stipulated an interval of a biennium between the two offices.397 The Senate obviously indulged in a great deal of rule bending in 71. That can be seen not just from its own dispensation to Pompey to stand for consul and also to triumph (for the second time) as an eques, but also the fact that it caved into Crassus’ request for a triumphator’s crown to grace his ovatio over the slaves.398
11.8.8 Protection of the Italian Coast against Pirates When piracy had started to threaten the actual shores of Italy in the late 70s or early 60s, it appears that the initial Roman response was to send out “fleets and strathgoiv” piecemeal. Quaestors and legati doubtless played a large role in these operations, but so did some holders of imperium.399 Cicero says that a praetor stationed at Caieta proved ineffective against the pirates who had raided that harbor, despite his large number of ships. Worse, pirates captured and sank a consul’s fleet at Ostia.400 Those Roman commanders who did manage to engage the pirates at sea regularly came off the worse for it, including a Sicilian praetor (unnamed) off the coast of that provincia.401 Eventually, the pirates were bold enough to launch raids on the interior of the Italian mainland. One low point for Rome was when they kidnapped, apparently at Misenum, the sister of the pirate-fighting pr. 74, M. Antonius “Creticus.”402 (The sources on that incident emphasize that the woman’s father—M. Antonius, cos. 99—ironically had once triumphed over the pirates of Cilicia.) But the indisputable nadir seems to have been the capture of two praetors, Sextilius and “Bellinus” (i.e., a Bellienus), with their full insignia of office—including lictors and attendants. Only Plutarch gives the praetors’ names (also implying that they were seized on land),403 but the incident was obviously a well-known one. Cicero clearly refers to it in his oration De Lege Manilia of 66, stating that “praetors” were captured and “twelve axes” came into the possession of pirates. Appian, in reporting pirate raids on Etruria and the coast of Brundisium, also notes the loss of two praetors with their insignia.404 It is perfectly possible that Sextilius and Bellienus had special provinciae in precisely these two areas: we need not assume they were captured together. But the sources do suggest they belong to the same year, one not long before the lex Gabinia of 67 that gave Pompey his sweeping command against the pirates. At any rate, Cicero’s reference to “twelve axes” shows that they were praetors in office, wielding praetorian (i.e., unenhanced) imperium. The creation of Pompey’s legati pro praetore in 67 and their effectiveness against the pirates probably eliminated the need for such special praetorian commands.
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11.8.9 Catilinarian Conspiracy and Aftermath The next special praetorian commands come up in the context of the Catilinarian conspiracy of 63. Under the senatus consultum ultimum of 21 October, the cos. 69 Q. Metellus Creticus and the cos. 68 Q. Marcius Rex—both still with imperium outside the walls of Rome, waiting for the Senate’s vote of a triumph—were dispatched respectively to Apulia and the area around Faesulae in Etruria. (Here the year 100 provided a good precedent, in that the S.C.U. charged the pr. 102 and would-be triumphator ex Cilicia M. Antonius with protecting the city from external attack by Saturninus’ supporters.)405 Meanwhile, the city praetor Q. Pompeius Rufus was sent to Capua and his colleague Q. Caecilius Metellus Celer to the ager Gallicus and ager Picenus. Each praetor had authority to levy troops to meet the emergency. For Metellus, Cicero saw to the passage of a senatus consultum that raised his imperium still during his year of office and allowed him to take up his promagisterial province of Gallia Cisalpina (and its three legions) early. Special judicial powers were to follow (15.2.5). In 62, the Senate again sent some city praetors into the field, this time to punish various allies who (it is alleged) quietly had supported Catiline but then “stirred themselves up out of fear of punishment.” M. Calpurnius Bibulus was sent among the Paeligni while Q. Tullius Cicero was dispatched to Bruttium.406 There is no reliable source on what Quintus’ city provincia was. He is said by a scholiast to have been the praetor who presided in the case of Archias, tried under the lex Papia.407 Even if true, there is no reason to believe Quintus was urban praetor; his colleague C. Iulius Caesar seems a better candidate for that position.408 As praetor, Bibulus evidently was also active politically in the city.409 We can presume that both received their special assignments early in their year of office, while the embers of revolt were still hot. They then will have returned to Rome to see to their civil obligations. The instances of P. Varinius in 73 and then Q. Caecilius Metellus Celer a decade later suggest that the Senate had grown used to the idea—first seen in the Social War—of enhancing the imperium of praetors in office to deal with major emergencies within Italy. However mopping-up operations like those of 62 probably required no such special measures. The pr. 61 C. Octavius did hold the rank of pro consule in early 60 when he rounded up some fugitive slaves in the area of Thurii (the last such action recorded in Italy for our period). But that of course is incidental. The Senate had assigned him the task extra ordinem on his way to his proper provincia of Macedonia.
11.9 Special Provinciae in the City 11.9.1 The Use of Quaestiones extra Ordinem in the Late Republic Special quaestiones were not a particularly important attribute of the stormy last generation of the Republic until near its very end. By 80 B.C., the number of stand-
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ing quaestiones (which crept only upward in the 60s and 50s) and the range of crimes they encompassed made proposals for the establishment of ad hoc courts harder to justify than in previous eras. To be sure, in this period we find extraordinary quaestiones set up in the years 73 (prosecution of the Vestals Licinia and Fabia for incestum) and 61 (trial of the quaestor P. Clodius Pulcher for violating the rites of the Bona Dea). Those procedures—to be discussed below—were to punish offenses against the public religion, for which the Roman criminal law never had any regular machinery. Proposals for special quaestiones on more terrestrial matters usually do not come to anything. In 74, indignation at the corrupt iudex quaestionis C. Iunius was so great that even after he was condemned to a fine in a iudicium populi, the Senate decided that there should be a consular bill establishing a quaestio extraordinaria to investigate his behavior. But the measure ground to a halt in 73, thanks especially to a tearful plea by the young son of Iunius in some public assembly.410 Late in 61 B.C., a senatus consultum ordained that a quaestio be established to investigate the jurors in the Bona Dea trial for corruption, but (apparently) the opposition of the equites ensured that the measure never came to a vote.411 Cicero claims that in 59 B.C., the tribunus plebis P. Vatinius promulgated a bill to establish a special quaestio to investigate some leading Romans on charges of conspiracy, with the informer L. Vettius and (it was hoped) others as witnesses— but when his proposal failed had Vettius killed in prison.412 Some other unsuccessful attempts to set up a special court to try political crimes may find the faintest echo in our sources.413 Yet we have to wait until the violent year 52 B.C. to see such special courts actualized, in the areas of vis and ambitus by Pompey as (sole) consul. And even then the extraordinary quaestio de vi was attacked as superfluous.414
11.9.2 Trials for Religious Offenses in 73 and 61 The small size of this sample makes generalization about the administration of quaestiones extra ordinem in this era difficult indeed. First, let us look at the religious trials. In the year 73 (the date is certain), the Vestal Virgins Fabia and Licinia each stood trial on a charge of incestum and were acquitted. The procedure is not attested. But when M. Licinius Crassus was found innocent of incestum with Licinia, it was (according to Plutarch) by a panel of jurors. It stands to reason that the Vestals had the same form of trial. Alexander assumes that these cases were all heard “apud pontifices,” as indeed had been traditional as late as 114 B.C. However, Plutarch’s reference to dikastaiv at the trial of Crassus suggests that the Romans here were following the precedent of the Peducaean law of 113—an extraordinary secular quaestio staffed by iudices and a president (I would argue) with imperium (10.6.1).415 There is no use speculating what type of magistrate (consul, praetor, or special quaesitor) presided in this series of trials. What does seem likely is that the president handpicked the jury himself, as I have suggested L. Cassius Ravilla did as quaesitor under the Peducaean law. But these were no “Cassiani iudices.” They seem to have acquitted all the defendants who came before them, including
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Crassus—who offered as a pretext for his overintimate relations with Licinia that he wanted to do her out of a piece of property she owned. Support for the hypothesis of handpicking comes from the heated debate over the form of the next major religious trial in Rome, the prosecution of the quaestor P. Clodius Pulcher in 61 B.C. for intruding (in early December 62) in the rites of the Bona Dea, a ceremony restricted to women. Clodius’ presence caused the Vestals to have to repeat the sacra; when consulted by the Senate, the Vestals and the college of pontifices decreed that indeed a religious violation had occurred.416 A senatus consultum followed (by 25 January 61), which stated that the consuls—M. Pupius Piso and M. Valerius Messalla—were to promulgate a bill setting up a special quaestio to investigate the matter. The senatus consultum also spelled out the form that trial was to take. Three details of this senatus consultum are of immediate interest to us here. It stipulated that the quaestio was to be run “no differently than that concerning incestum.” A praetor was to preside over the court. And this magistrate personally was to select the jurors he was to use as his judicial consilium in the trial. This method of selecting iudices finds no parallel in other known Republican quaestiones: surely the incestum trials of 113 and 73 B.C. suggested it, on which the Bona Dea quaestio was based.417 “The object in proposing this mode of selection,” observes Greenidge of the Clodius trial, “was clearly to ensure a conviction on the pretence of securing the purity of the court.”418 Not necessarily. While L. Cassius Ravilla’s quaestio of 113 did result in the condemnation of two Vestals and (we are told) many other women, that of 73 saw nothing but acquittals. There is no telling what the attitude of the presiding magistrate was toward Clodius in 61. But if allowed to choose the jury according to (what I argue to be) the “Peducaean” system, the praetor would have enormous power to shape the course of this trial in whatever direction he wanted it to go. It was precisely this technical point of jury selection that caused a furious row to erupt, thanks to the dogged efforts of a single tribune, Q. Fufius Calenus, who wanted the jurors to be chosen by the procedure (probably now long standard for quaestiones) of the lot. This tribunus plebis, backed discreetly by the consul Pupius Piso and openly by Q. Hortensius (cos. 69), eventually forced the consular bill to be dropped and his own voted into law instead. Fufius’ rogatio, says Cicero, contained exactly the same terms as that of the consuls, except on the central issue of how the jurors were to be picked.419 No one seems to have made any noises about a praetor presiding over this special quaestio. Both consuls were available, but apparently neither wanted the invidia that this trial of a powerful nobilis was bound to generate, whatever its outcome.420 So they let it devolve on a praetor (not necessarily the pr. urb.), who had to take the task. No source bothers to mention the praetor’s role in the actual trial, other than Cicero’s observation that he was unexpectedly favorable to the prosecution in the preliminary proceedings.421 Before proceeding to a vote, the jurors requested a bodyguard from the Senate, raising expectations that they would condemn Clodius422—but then acquitted him all the same. Bribery (of all sorts) was suspected, but later in the year when an investigation—by another special quaestio—was mooted, the opposition of the equites put paid to the notion.423
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11.9.3 Pompey’s Special Quaestiones of 52 Let us turn briefly to the leges Pompeiae of 52 B.C. Those aimed in the short term at remedying the grave public disorder stirred up during the consular elections for that year. But they were clearly intended to serve as a launching pad for more lasting improvements to the system of quaestiones. Pompey referred the question of legislation de vi and de ambitu to the Senate three days after entering office (on the 24th day of the intercalary month) as sole consul elected by an interrex. One of the two laws that Pompey later passed ex S.C.424 set up—over the wishes of some senior senators—a special quaestio de vi to try the consular candidate T. Annius Milo and others, especially for the murder of P. Clodius on 18 January and the acts of violence in the city that followed. The other measure was a new lex de ambitu. That, too, probably set up a quaestio extra ordinem to deal with the problems that arose from the comitia for 52 (see below). But it appears the law was retrospective beyond the most recent elections. Gruen makes a convincing case that henceforth the Pompeian law was to be the operative statute for that crime also in the regular ambitus court.425 Pompey provided that the courts constituted by these two laws run under some identical rules. In particular, he shortened the proceedings to (apparently) five days total, shifting the focus to the presentation of testimony, doing away with character witnesses, and placing a strict cap on the time allotted to the speeches of orators. Dio says these procedural reforms “and others” were applied to all the courts; there is no real evidence that gainsays him.426 Pompey, in order to stem bribery, not only devised a “just-in-time” scheme for the selection of jurors, but also dissociated one group of iudices from another within a single trial.427 The one aspect of these courts that almost all our sources comment on are the armed guards Pompey introduced in some cases to offer “protection” to the proceedings. This was not a formal provision of the leges Pompeiae. Rather, it arose out of the circumstances of the first major trial of the year 52, the prosecution of Milo in the extraordinary quaestio de vi, when the defendant requested a “praesidium” from the court president who in turn asked the consul Pompey.428 Pompey complied in a heavy-handed way, and extended this feature to other trials de vi and de ambitu that year.429 To be sure, by the late 50s violence was practically part and parcel of the various quaestiones perpetuae.430 And already in the mid-60s we have seen the placement of armed soldiers around a judicial court in Rome.431 Yet certainly in the Milo trial of 52 B.C., our sources are virtually unanimous that Pompey’s aim in ringing the court with a substantial military force was not so much to guard the process as to intimidate the jurors into voting for condemnation. To return to Pompey’s actual measure establishing an extraordinary quaestio de vi. Under this law, the People were to elect a president, selected from among the consulares. (We can assume that imperium went with the job, especially given the likely precedent of L. Cassius Ravilla in 113 B.C.) The comitia for this special post followed immediately upon the passage of Pompey’s law. Cicero implies that Pompey himself nominated the man who was the People’s choice, the ex-consul of 54 B.C., L. Domitius Ahenobarbus. The consul no doubt also held the relevant electoral assembly and got Domitius his imperium.432
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We next find Milo indicted in four different courts: in the special quaestio de vi and also de ambitu, de sodaliciis, and in the standard (i.e., Plautian) quaestio de vi. The first two of these procedures started on 4 April, and Milo was condemned de vi on 8 April and (in absence) de ambitu the next day; condemnations in absentia on the remaining two charges shortly followed. Thanks especially to Asconius, we can identify the presidents of all four of these quaestiones. The consularis L. Domitius Ahenobarbus of course had the extraordinary quaestio de vi. A senior praetorius, A. Manlius Torquatus (pr. by 69)—termed “quaesitor”—heard the ambitus charge. Another “quaesitor,” M. Favonius (aedile 53 or 52), presided over the trial de sodaliciis, and the “quaesitor” L. Fabius (rank unknown) had the Plautian quaestio de vi.433 Even before Milo was indicted on these various charges, the praetors for 52 should have entered office.434 Where were they now? Though the first trials under the recent law de sodaliciis (introduced in 55) had come before praetors, it was as an overload. And so the presence of an aedile or ex-aedile as president in this instance need not surprise. As for the court that heard charges under the Plautian lex de vi, in past practice either a iudex quaestionis or praetor might preside. A later Plautian trial de vi of 52—that of Milo’s adherent M. Saufeius “apud Considium quaesitorem”—shows that L. Fabius shared responsibility for this quaestio with at least one other individual (equally hard to identify). Whether Fabius and this Considius were subpraetorian (like Favonius), praetors, or ex-praetors is unknown. However, ambitus had always been a praetorian court—indeed, a city provincia. The presence of a senior praetorian rather than a praetor in office at Milo’s trial for this crime shows that Pompey had made some special arrangement to add extra auctoritas to the quaestio de ambitu, surely along the lines of the lex Pompeia de vi that set up a special court with an elected consular president. The lex Pompeia de ambitu must have stipulated that a “quaesitor” be chosen by the People from among the ex-praetors to hear the case of Milo and perhaps others in a quaestio extra ordinem under the new procedures outlined above. The same comitia will have elected L. Domitius Ahenobarbus and A. Torquatus, and both should have had imperium. We hear of additional trials in 52 B.C. before the special quaestio de vi (still running in late 52 or even early 51),435 the regular Plautian vis court,436 a court operating under the lex Pompeia de ambitu (also down to the end of the year),437 an unspecified quaestio under a lex Pompeia,438 and an unnamed capital court.439 In only one case—the mysterious Considius in the standard quaestio de vi—do we get a reference to the presiding magistrate. So much that we should like to know escapes us, other than one key detail: the extraordinary quaestio de vi continued at least down to the end of 52, presumably under L. Domitius Ahenobarbus, but did not supplant the ordinary quaestio de vi.440 Perhaps Pompey’s lex de ambitu ordained a similar parallel process for the year 52. The “quaesitor” A. Torquatus might have supervised a special quaestio that concentrated on abuses in the most recent consular elections (i.e., for 53 and 52) while one or more praetors in a regular court simultaneously heard other ambitus cases, conceivably under the same procedures. Yet that must remain a guess, since we cannot tell what (if anything) was happening in the standard quaestio de ambitu that year.
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One assumes that for the longer term Pompey meant only to improve the existing system of quaestiones, not replace praetors with special quaesitores.441 The trouble is that for the year 51 B.C., we have no information on who presided in the various trials known de ambitu (four), de sodaliciis (one) and de vi (two), nor in the one attested ambitus case of 50 B.C.442 Yet the fact that we find the praetor M. Iuventius Laterensis presiding in a series of trials de repetundis in 51 should show that Pompey left the basic structure of the other praetorian criminal courts unaltered.443
12
The City Praetorships, 122–50
12.1 The Provincia Urbana Fully three-quarters of the urban praetors of the years 122–82 B.C. are lost to us. There are just seven or so individuals who definitely or almost certainly can be placed in this provincia during these years, and another three or four for whom a case can be made. After Sulla, matters improve significantly. For that period, only about one-third of the urban praetors have gone missing. We are particularly well informed on the urban province in the 70s and reasonably so for the next decade as well. But then, starting in the 50s (somewhat surprisingly), the quality of our information becomes noticeably worse. I should note that direct attestation of this provincia—or any other city province—is not all that common for this entire period. Too often, an individual’s tenure of the urban jurisdiction has to be inferred from the nature of his activities. The holding of the Ludi Apollinares is of course a reliable indicator. The superintendency of unnamed “games” perhaps is not, since, starting in 81 B.C., a praetor (not the urban one) had responsibility for the Ludi Victoriae Sullanae.1 Even presidency of the Senate (really found only in the preSullan period) is somewhat slippery. But it seems positively poor methodology to infer that a praetor had the urban provincia merely from his reported activity in the sphere of the civil law. The range and volume of the legal matters that might come to a praetor’s attention in this period was stupefying, as Cicero explicitly tells us.2 It is surely preferable to leave preconceptions at the door when investigating how such responsibilities were handled, especially since the praetorship is such a spottily attested office. 12.1.1 Urban Praetors down through 81 It would be good to have a date for the pr. urb. C. Caninius who adjudged a property at Ostia to the Roman People. We can assume he visited the town in either the late second or early first century B.C., but greater precision is impossible.3 An “M. 441
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Marcius praetor” probably had the urban jurisdiction sometime in the period ca. 125–110 (5.6.1). C. Licinius Getha was possibly praetor urbanus ca. 120 B.C., as was probably C. Caecilius Metellus Caprarius ca. 116.4 M. Livius Drusus (the future cos. 112) was definitely urban praetor. As such, he granted an action on a consensual contract (mandatum) to which one of the parties had died—against the precedent another urban praetor had set eight years previously.5 The praetor urbanus for the year 105 was L. [——]onius L.f. He could be, for example, a Cosconius, Duronius, Pomponius, Scribonius, or Sempronius. The stone is long lost, and hence the size of lacuna to be filled is uncertain.6 And that is the sum of our knowledge of the urban praetorship for the last two decades of the second century. For five of the years 100 through 89 B.C., we can attach a name to the provincia urbana. After a defeat in the praetorian elections for 98, L. Cornelius Sulla won the office for the next year (through bribery, it was alleged at the time). He received the urban province, followed by an ex praetura command in Cilicia. In his praetorian games—that is, the Ludi Apollinares—Sulla had Mauretanian javelin throwers hunt down a hundred maned (African) lions, all provided by his friend king Bocchus. No one had ever staged a lion-hunting spectacle on this scale in Rome, as Pliny explicitly tells us. Seneca adds the item that Sulla was the first to let lions run unfettered in the Circus. Sulla’s games were emulated and (inevitably) topped in a later era by Pompey and Caesar. But Sulla’s Apolline Games must significantly have raised the standard for subsequent urban praetors.7 C. Valerius Flaccus was definitely urban praetor, and took up Asia when prorogued pro consule. The date of C. Flaccus’ praetorship is very likely 96, but conceivably 98 or a bit earlier (14.5.5). For the year 94, C. Sentius Saturninus is epigraphically attested as praetor urbanus. Like Sulla and C. Flaccus, Sentius was sent ex praetura to the East, in this case to Macedonia.8 No promagisterial province is attested for the praetor urbanus of the year 91, Q. Pompeius Rufus. The outbreak of the Social War surely kept all the city praetors of 91 from taking up an overseas ex praetura command. As it happens, Q. Pompeius is the first praetor urbanus of this period whom we can see actually at work in the domain of civil law. Cicero in the De Oratore records the particulars of a civil suit for repayment of debt that came before this praetor in late summer of 91. When the plaintiff claimed in the intentio of the procedural formula a bigger amount than was due to him, the advocate for the defendant did not plead that the plaintiff had overclaimed—which, if proven, would have banished the case forever. Rather, the lawyer ineptly asked Pompeius to insert an inappropriate saving clause (exceptio) in the formula, that the claim should be limited to the amount due at the time when it was pressed. The case is of considerable interest for the development of formulary procedure—at the time of the dramatic date of this dialogue (91 B.C.), the exceptio in question is said to be “old and familiar”—and also for the description of the praetor’s court. For Cicero has L. Licinius Crassus (cos. 95) say he was present at this stage of the trial, seated on the tribunal of Pompeius (termed Crassus’ “familiaris”) as a member of the praetor’s advisory consilium. The presence of expert jurists in the consilium is found already in the 120s B.C. By this time it was no doubt entirely common. However, what does come as a surprise, even given the stated
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personal connection between Crassus and the praetor, is that a consular saw fit to sit in Pompeius’ consilium. Consulars do not seem to have considered it appropriate to attend praetors as legati in a territorial province and serve in their consilium there. City and provincial practice must have differed. To sit on the tribunal of a praetor in Rome probably was thought not to matter all that much to a consular’s dignitas. It obviously required much less investment of time and energy than to pack off to an overseas provincia for a year or (often) more.9 Q. Pompeius’ other known action is deeply traditional in character. Valerius Maximus says that this praetor excluded the spendthrift son of Q. Fabius Maximus Allobrogicus (cos. 121) from the administration of his father’s property, though he had been instituted as heir. Though Valerius does not say so, Q. Pompeius probably followed this interdiction by appointing a relative as curator for the prodigal Fabius—a safeguard that finds inclusion in the XII Tables.10 The next known urban praetor lost his life for the demagogic way he revived an obsolete measure during the debt crisis caused by the Social War. On taking office, the pr. urb. 89 A. Sempronius Asellio attempted to persuade creditors at Rome to give relief to their debtors who could not meet their obligations because of war conditions. When this failed, Asellio (as best we can tell) decided to grant to debtors haled into his court a certain exceptio under an archaic law that forbade lending at interest, and allowed such cases to proceed to the stage apud iudicem to be decided. If this reconstruction is accurate, the praetor’s intention in granting this prejudicial exceptio (perhaps announced in his edict) was probably to compel the creditors to agree voluntarily to offer debt relief. Asellio’s program to allay debt misery lasted not quite a month—specifically, to 27 Jan., the foundation day of the temple of Castor and Pollux in Rome and the religious rite that attended it in the Forum. As urban praetor, Asellio evidently had responsibility for offering the requisite sacrifice to the Castores that day. Meanwhile, the tr. pl. L. Cassius had stirred up members of the crowd that attended the ceremony (many no doubt equites, who had the twins as their patrons). Someone pelted the praetor with a stone in the course of the ceremony. When the praetor fled, the mob chased him down—some even searching for him in the atrium of the Vestals—and ripped him apart. Despite the Senate’s efforts to punish the crime, no informers came forward.11 That a suffect was elected to replace Asellio (it certainly was early enough in the year) is conceivable but unfortunately irrecoverable. The praetors P. Burrenus, L. Iunius Brutus Damasippus, and Cn. Cornelius Dolabella have to be mentioned together, though they held office in 83, 82, and 81 B.C. respectively, with Dolabella reaching the magistracy under Sulla’s new system. When a Sex. Naevius wanted missio in possessionem against the property of his business partner P. Quinctius, he prevailed on the praetor P. Burrenus—with whom he had personal ties—for the grant. Burrenus gave him missio according to the terms of his edict, backing Naevius with his official powers. Burrenus’ political ascendancy apparently had shocked the nobiles—even in the political atmosphere of the day. Matters rapidly degenerated further. In the chaotic year 82 B.C., it is highly probable that L. Damasippus was urban praetor, and in that capacity convened a Senate meeting so as to have an opportunity to
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butcher some politically dangerous nobiles, including the pontifex maximus Q. Mucius Scaevola (cos. 95). But he also spent much of the year in the field, and met his death on 1 November in the battle against Sulla at the Colline Gate. After Sulla’s victory, Sex. Naevius decided to pursue further litigation. In March 81 (see 11.1.1), Naevius approached the praetor Cn. Cornelius Dolabella, again to make a claim against Quinctius. But instead of allowing the case to proceed to a proper iudicium, Dolabella unexpectedly compelled Quinctius to accept—on what Cicero describes as quite prejudicial terms—a sponsio with Naevius on the dispute. That is the occasion of the Pro Quinctio of 81 B.C. There Cicero, with as much tact as he can muster, characterizes Dolabella’s decision on the sponsio as a bad innovation, perhaps even implying that it went against his edict. (The praetor’s object evidently was to establish a powerful praeiudicium against Quinctius.) Cicero devotes the bulk of his speech to attacking Naevius’ conduct in the whole affair, and arguing that in 83, the edictal provisions on missio in possessionem were inappropriate to Quinctius’ situation in the first instance. But for all his detailed narrative, Cicero never mentions what jurisdictions the praetors Burrenus and Dolabella held.12 Broughton makes Burrenus praetor urbanus for 83, though he queries that provincia for Dolabella in 81.13 A stray reference to Dolabella’s praetorship elsewhere shows him making yet another contentious decision in a civil law case, which at least is consistent with an urban praetorship.14 Expected under the Sullan system to take up a territorial provincia after his magistracy, Dolabella drew Cilicia. However, there is good reason to think Sulla first tried to deprive him of the province, and then allowed him to hold it merely “pro praetore”—in contrast to all other praetorian governors, who were to have consular imperium (15.1.1). Fifteen years earlier, Sulla himself had followed up a year in the urban jurisdiction with a long promagistracy in Cilicia. Just possibly, it was Dolabella’s arbitrary general behavior as praetor that piqued Sulla enough to retaliate in this way early in 80 B.C. In a year’s time, Sulla would be less concerned about potentially bad precedents for his new system (11.1.6). 12.1.2 Urban Praetors after Sulla down to 67 Cn. Octavius (cos. 76) must have been praetor by 79. B. Frier speculated that he might have introduced the formula Octaviana and so was pr. urbanus previously in 79 B.C.15 Yet even if Frier’s guess is correct on the identity of the author, there is no reason to think he must have been in the provincia urbana.16 Move forward to the year 78 B.C. In mid-May of that year L. Cornelius Sisenna is epigraphically attested as praetor urbanus et inter peregrinos.17 It is of course striking to see these two provinciae combined when no major foreign wars other than that with Sertorius were in progress or even in the works, and just a few years after Sulla had introduced provisions for eight “city” praetors. The decision to give both the urban and peregrine provinciae to one man may well date to the time of the sortition for 78. If so, the best explanation would be that “Sulla’s new regime of quaestiones perpetuae brought a shortage of praetors in its wake.”18 In other words, the Senate had not yet realized that it was overly optimistic to expect praetors to superintend all the
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courts, including minor ones. But would it really collapse the two oldest praetorian provinciae to supply a praetor for, say, the quaestio inter sicarios et de veneficiis? Rather, perhaps Sisenna at first was only praetor urbanus for the year, though soon picking up a second provincia when an emergency demanded the presence of the peregrine praetor in the field. The attack of the Faesulani against Sullan veteran colonies might provide such a context: the Senate considered the incident serious enough eventually to send both consuls of 78 into Etruria during their year of office.19 A single episode from L. Sisenna’s city praetorship has come down to us. Cicero in a fragment of the Pro Cornelio alludes to a ruling in which Sisenna— characterized as “excessively unconstrained in making a present of his legal decisions” (“nimis in gratificando iure liber”)—went against his own edict and refused to grant possessio of the property of a certain Cn. Cornelius to the worthy and noble adulescens P. Scipio (later cos. 52). Though further details are lacking, it is likely that this was an inheritance case. A. Lintott offers a plausible reconstruction, that Cn. Cornelius “might well have been a freedman and client of the Scipionic family” and “P. Scipio could have been seeking the rights of a patron of his family, when one of their freedmen had died intestate.” As for Sisenna’s departure from his own edict, “a tempting speculation is that Sisenna had done this to gratify another powerful man who had been named in the freedman’s will.”20 Sisenna probably had Sicily as an ex praetura province (13.2.2). We can identify with reasonable certainty six of the next eight holders of the urban jurisdiction. Half these cases stem solely from a single section of Valerius Maximus, on testaments that were overturned (“de testamentis quae scissa sunt”). The other half we owe to Cicero’s Verrines. Cn. Aufidius Orestes (the future cos. 71) received the urban provincia for 77.21 Valerius Maximus reports that Orestes upheld a freedman’s will which instituted as heir Genucius, a castrated priest of the Magna Mater. When the freedman’s (excluded) patron appealed to the cos. Mam. Lepidus, the consul is said to have “abrogated” the praetor’s jurisdiction (“praetoriam iurisdictionem abrogavit”) with his own decretum. A senatus consultum followed that backed the consul’s decision and (apparently) barred the eunuch from asking other praetors for relief: “The Senate provided that the obscene presence of Genucius not pollute under the pretext of legal business the tribunals of magistrates” (“prouisum est ne obscena Genucii praesentia . . . tribunalia magistratuum sub specie petiti iuris polluerentur”). One suspects from Valerius’ report of this senatus consultum that the consul did not actually forbid the praetor Orestes to exercise his provincia, but merely overruled his ruling on Genucius. The verb abrogare is sometimes used in a loose rhetorical sense in Valerius. But if Valerius is to be taken at his word and the consul did use his full maius imperium to check all of the praetor’s legal activities, one wonders how Cn. Orestes managed to overcome the ignominy of such “abrogation” to win the consulship for 71 B.C.22 An urban praetorship for C. Licinius Sacerdos in 75 is never explicitly indicated in our sources. Yet the evidence on Sacerdos’ particular civil law activities (such as it is) implies that he preceded C. Verres (pr. 74) in the urban jurisdiction. Furthermore, Sacerdos and his praetorian colleague M. Caesius assisted the consuls of the year in the massive task of repairing temples in Rome, but apparently did
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not have enough time to inspect all those in need of maintenance; the next year the urban praetor Verres and his colleague P. Coelius took up the task. That provides some further support for the provincia.23 He was also Verres’ predecessor as pro consule in Sicily (13.2.2). C. Verres, as noted, is definite for 74.24 In the Verrines (esp. actio II.1), Cicero describes a fairly broad range of Verres’ activities in the urban province. For one thing, Cicero attacks the way Verres allegedly profited from improperly setting certain public contacts.25 He briefly alludes to the praetor’s failure to provide for badly needed road repair in Rome.26 Perhaps related is the passing charge that Verres swindled money from the public treasury.27 Just one detailed example is offered, but at great length—the praetor’s abuse of the maintenance contract for the temple of Castor and Pollux. This was not a regular duty that came with his provincia. As noted above, the consuls of the year 75 originally had responsibility for temple repairs in Rome. The task proved so big that it devolved upon the praetor C. Sacerdos and his colleague M. Caesius, and thence to Verres and his colleague P. Caelius. (Caelius’ role is mentioned just once, and then allowed to fade into the background.)28 One reason why Cicero singles out this episode must be the irony of the situation. As we have seen for 89 B.C., the urban praetor was the magistrate charged with celebrating the January ceremony for Castor and Pollux on the anniversary of their temple. Note that in the exordium of the Verrines, Cicero strives to add pathos to a long, dramatic prayer by invoking as a group Hercules, the Magna Mater, and the Dioscuri—deities whose cult came under the supervision of the praetor urbanus (see 5.5.2) and whose rites suffered through Verres’ negligence.29 But most of all Cicero here wants to foreshadow Verres’ even more heinous exploitation of the power of granting contracts when promagistrate in Sicily.30 Significantly, one aspect of Verres’ provincia about which Cicero has nothing to say is the performance of the Apolline Games. Verres’ ludi must have been a success. Some valuable items do emerge in the Verrines regarding this praetor’s supervision of criminal law in Rome—again paving the way for Sicilian charges to come. As praetor urbanus, Verres had ultimate responsibility for assigning iudices to particular cases in the standing quaestiones.31 What is surprising is that he also conducted his own criminal iudicia. For instance, Verres presided at the trial of the tr. pl. 75 Q. Opimius, who was prosecuted for exercising his veto in contravention of the Cornelian law. Cicero says Verres’ behavior in this case—Opimius was briskly condemned to a substantial fine in three hours—led to calls to abandon this type of public iudicium. But whether they led to anything is unclear.32 Cicero also says in passing that Verres while urban praetor administered corporal punishment to a member of the Plebs. Whatever the substance of that precise charge, the basic incident perhaps involved another criminal iudicium.33 Verres’ irregular edict and his crooked judicial decisions in civil law are perhaps Cicero’s major concern in his disquisition on the urban praetorship.34 Verres’ edict, it is said, undercut those of his predecessors, in particular by changing the customary (praetorian) order of succession and by settling for low standards of proof in inheritance cases. And the innovations Verres introduced were for his own personal profit.35 Four inheritance cases are singled out to illustrate these contentions,
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and to introduce proof of additional irregularities. Some general themes emerge from these cases. Verres’ knavery started even while praetor designatus, the time when he drafted his edict.37 There his “innovations” conflicted inappropriately both with statute and with the precedents set by previous praetors. When actually hearing cases at law in the city, Verres freely departed from his own edict to gratify certain individuals, especially when there was the prospect of his own personal gain. Later, Verres did not even bother to carry over some of those innovations to his provincial edict. Nor did subsequent urban praetors accept his modifications.38 Cicero implicitly raises the specter of the pr. urb. 89 A. Sempronius Asellio by pointing up instances where Verres himself narrowly escaped lynching for the way he administered the law.39 The main “safety valve” that year, suggests Cicero, was Verres’ praetorian colleague L. Calpurnius Piso. (Not so incidentally, Piso was a juror at the repetundae trial that occasioned the Verrines—hence the praise.) Cicero says that for litigants, Piso provided a much-needed safe haven (“perfugium”) from the corrupt and largely inaccessible pr. urb. Verres. Indeed, according to Cicero, Piso filled many codices with instances in which he “vetoed” decisions by Verres because they were in contravention of that praetor’s own edict (“multos codices implevit earum rerum in quibus ita intercessit, quod iste aliter atque ut edixerat decrevisset”).40 A scholiast on the Verrines passage seems puzzled yet takes this talk of veto literally. So have many modern scholars.41 But could “intercessit” here mean merely “intervene”42 and not actually “veto”? Note that Cicero in the relevant passage does not use the verb intercedere with the dative of the person or thing vetoed, but employs a construction that finds no exact parallel in our sources.43 As it happens, for the later Republic we have no instance of a praetor in the city using his imperium to veto his colleague’s actions in the realm of civil law. Litigants are known to have used a variety of informal avenues to work their will on a praetor.44 Those who did not like a praetor’s procedural decisions in the last resort customarily appealed to a tribune of the Plebs. That happened most notoriously in 89, but apparently on plenty of other occasions, too.45 In one case from the year 77 we do, however, find an appeal to a consul, who by virtue of his maius imperium overrode the decision of a praetor urbanus—Cn. Aufidius Orestes—in an inheritance case (discussed above). Of course, in the various territorial provinces it was not uncommon for a new governor to rescind his predecessor’s decisions. Cicero in the Verrines has much to say on how Verres flouted all sorts of weighty precedents in his provincial command (too many instances to list) and how his successor L. Metellus then spent the early part of his command in Sicily undoing Verres’ rulings and arrangements.46 Additional instances come readily to hand.47 All the same, when the successor to a province overturned the actions of the decessor it was viewed as a serious affront.48 For these reasons—to return to Verres and the year 74—it seems hard to believe that the praetor L. Calpurnius Piso was employing the full power of his imperium and actually vetoing multiple decisions that his (well-connected) colleague in the urban provincia handed out. What seems more likely is that Verres was refusing to grant some actions for circumstances that reasonably met the terms of his own edict. (A praetor’s decision to allow or not allow an action might legiti-
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mately be called a decretum.)49 But when the same plaintiffs petitioned his colleague Piso, that man did grant the requested iudicia to individuals “without trouble, without bother, without expense, even without legal representation” (“sine labore, sine molestia, sine impensa, etiam sine patrono”). Verres, it is implied, had put up all sorts of impediments for those who had not bribed him. It might have been somewhat common in this era for a petitioner who had been rebuffed at one praetor’s tribunal to try his luck at another’s. Valerius Maximus, in relating the episode of the pr. urb. 77 Cn. Aufidius Orestes, notes that a senatus consultum sought to prevent a disgruntled eunuch from attempting this very thing.50 But in general once a praetor—especially the urban praetor—had refused on technical grounds an application for an action, his colleagues surely would be reluctant to undercut his dignitas by granting that same action. To sum up: when the praetor Piso “intercessit” in Verres’ civil law cases, he probably did nothing more than to accept the petitions his colleague had refused. That was indeed a provocative intervention, though Cicero in his description is disingenuous in making it sound like an actual veto. Again, Cicero’s main aim in all these broadsides on Verres’ urban praetorship is to make the charges he levels against the promagistracy in Sicily appear more credible.51 In treating the city magistracy, Cicero quite transparently has chosen to probe specifically those areas where he thinks he can find continuity with Verres’ later behavior as pro consule. It should not be imagined that we have here a comprehensive sketch of the activities of a praetor urbanus. However, one criticism of Verres that Cicero fails to make is that he had cheated in the sortition for his city (or promagisterial) provincia.52 The omission is striking, considering the sheer number of accusations that Cicero flings at his target, including that he had bought that very praetorship53 and that the praetor’s mistress Chelidon was the one really in control during his magistracy, functioning as his main jurisconsult.54 Had he chosen to raise it, Cicero could have made the cheating charge stick. After all, Verres was (in all likelihood) the third urban praetor in five years to go to Sicily after his magistracy. No obvious explanation presents itself. It is possible, however, that aspersions on the integrity of one praetor’s sors were an aspersion on the sortes of his whole college, and so were avoided.55 Let us turn to Verres’ successors in the urban provincia. In either 73 or 72, Q. Caecilius Metellus (the future cos. 69) as urban praetor refused to grant possession to a pimp of property that he claimed under the terms of a will.56 Then it must be C. Calpurnius Piso (later cos. 67) who was the “praetor urbis” said by Valerius Maximus to void the terms of another will.57 As the story goes, Calpurnius as praetor allowed a Terentius to take possession of the property of a deceased natural son who had disinherited him; Calpurnius also prohibited the named heirs from taking further legal action. An M. Mummius most likely had the provincia urbana in 70.58 So the Calpurnius incident should date to 72 or 71—probably the latter year, as Broughton59 has it. A praetor “Metellus” granted the action “damnum vi hominibus armatis coactisve datum” in a dispute over possession of some land near Thurii, and presided in the case for which Cicero wrote his Pro Tullio.60 This particular action on “damnum” had been invented by M. Terentius Varro Lucullus while praetor inter
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61
peregrinos in 76. The “Metellus” in question may be Q. Caecilius Metellus, whom we have seen was urban praetor in 73 or 72. The alternative is that he is to be identified with the pr. 71 L. Metellus, Verres’ successor in Sicily and the future cos. 68. L. Metellus’ city provincia is uncertain, but in it he definitely posted an edict, which Cicero says incorporated the formula Octaviana, at that time a recent innovation.62 L. Metellus need not have been urban praetor: after all, the iudicium he granted on “damnum” was the creation of a peregrine praetor. The Pro Tullio probably can be squared with 71 B.C., the year of L. Metellus’ praetorship. If the date is correct, the trial surely took place later in the year.63 P. Cornelius Dolabella was the praetor who presided over the sponsio, known from Cicero’s Pro Caecina, of A. Caecina versus Sex. Aebutius in 69 or 68. Broughton argues that “he was praetor urbanus, since he granted the interdict de vi hominibus armatis to Caecina.”64 But Cicero never specifies his city provincia. Dolabella went ex praetura to Asia (14.6.5). Next, the case of M. Iunius: When a certain D. Matrinius, who had been disgraced by the censors of 70, later sought the position of scriba aedilicius, Cicero successfully pleaded his case before a sworn board consisting of the praetores M. Iunius and Q. Publicius and the curule aediles M. Plaetorius and C. Flaminius.65 Plaetorius and Flaminius are both found as iudices presiding over the quaestio de sicariis in 66.66 In this period, ex-aediles seem invariably to have held the position of iudex quaestionis, where we can check, in the year following their magistracy (10.4.3). So the year of that hearing (and thus the praetorship of Iunius and Publicius) should be 67, as Broughton and M. Crawford hold.67 If (as seems likely) Iunius is the same man as the “M. Iunius praetor” who ordered the restoration of a painting in the temple of Apollo by Aristides of Thebes in time for his Ludi Apollinares,68 he was praetor urbanus.69 It is revealing that Iunius and a praetorian colleague—as well as both curule aediles—had to make themselves available (and take an oath) to hear the case of D. Matrinius. It was not a disciplinary process, as Mommsen believed, and still less a trial, as Alexander has it. Rather, it was a “job interview,” to see whether Matrinius was worthy to buy a place in a high-ranking (though not the highest) scribal decuria.70 The process may have been a long one, since there will have been other wealthy applicants for this position in addition to Matrinius. We hear very little about the city praetors’ responsibilities for miscellaneous chores of this type, so it is a most welcome chance reference. We can safely assume that a board consisting of the praetor urbanus, another praetor, and the curule aediles also selected quaestorian scribae, who held the top position. It is an open question how much responsibility these higher magistrates had for filling vacancies in lesser scribal decuriae.
12.1.3 Urban Praetors after the Lex Cornelia In 67, the tribune C. Cornelius passed a law compelling praetors to follow their own edicts (“ut praetores ex edictis suis perpetuis ius dicerent”).71 Asconius says that many (i.e. in the senatorial establishment) opposed the lex Cornelia, but did not dare to speak openly against it. Indeed, Frier argues the law served a wide purpose,
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namely, to regulate “the whole standard for administering private law. . . . [I]t was surely a step in the process that led to the decline of the praetorian creativity and the fossilization of the Edict.”72 Other scholars have posited alternative motives that are similarly elaborate.73 Yet the law surely did not attempt to dictate the actual composition of the individual edicts. Its aim (probably) was only to prevent ad hoc (or better, ad hominem) deviations. Praetors make plenty of those in our record for the late 80s and 70s (12.1.2), prompted by both favoritism and spite. The persistence of that type of behavior—which as we have seen led to intervention by a consul on at least one occasion (in 77 B.C.)—is probably enough to explain the passage of this tribunician law. The real point at issue was a social one, namely, to stop praetors’ flagrant abuses for personal reasons—hence the opposition by the senatorial elite, who had the most to gain from the status quo. The main legal effect of the lex Cornelia was one of public law, in that it cut into the praetors’ exercise of their imperium. We are unusually well informed on the disposition of the various city provinciae for the year 66—thanks largely to one passing statement in the Pro Cluentio by the pr. repetundarum M. Tullius Cicero.74 However, neither Cicero nor any other source tells us who was urban praetor this year. Now, the praetorian provincia of C. Antonius—Cicero’s colleague in both the praetorship and consulship75—is not directly attested, though like Verres and his Chelidon, Antonius is said to have openly kept a mistress at home while praetor.76 Was Antonius also praetor urbanus? That is what Broughton suggests, reckoning that his famously expensive games— which impressed even Cicero—were the Ludi Apollinares.77 The sources on Antonius’ games offer no real specifics on whether they belonged to an (unattested) aedileship or his praetorship. However, there is hardly room for an aedileship in his cursus: Antonius found himself expelled from the Senate in 70, only to re-enter (surely) through a tribunate of the Plebs in 68, and then went on to be elected praetor for 66. And Cicero in the Pro Murena implies that he found Antonius’ games worrying precisely in the context of the consular elections for 63.78 Broughton must be correct that C. Antonius gave his games as praetor. In fact, Pliny implies that L. Licinius Murena—definitely pr. urb. 65—directly emulated Antonius’ games.79 They probably had the same provincia. After his praetorship, Antonius evidently took up a lucrative legatio, just possibly under Pompey in the east.80 It is a pity that we do not know more, for (assuming it is true) it shows something about contemporary attitudes toward provincial administration that a praetor would choose to be a legatus in another commander’s provincia than to receive one for his own. Antonius must have been looking simply for the best way to pay off his debts, especially from those games—in which he seems to have overcompensated for his less-than-resplendent past. A word about the pr. 65 L. Licinius Murena and the urban provincia: In November 63, Cicero defended L. Murena (who had an ex praetura command in Transalpine Gaul and was now cos. des. 62) against a charge of ambitus brought by Murena’s praetorian colleague and disappointed competitor for the consulship, Ser. Sulpicius Rufus. At one point in his speech, Cicero contrasts his client’s praetorian “sors iuris dicundi” to Rufus’ peculatus court. Cicero says that the friends of Ser. Sulpicius Rufus—a noted jurist—were hoping that he would draw the urban lot:81
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Here [i.e., the urban jurisdiction] the magnitude of the task brings glory, the bestowal of fair treatment (aequitas) wins influence. In this sors the wise praetor, such as Murena was, avoids offense by the impartiality of his decisions (aequabilitas decernendi), and adds goodwill by gentleness of hearing (lenitas audiendi [sc. cases]). It is an illustrious provincia and one suited for the consulship, in which the commendation that comes from fairness, integrity, and accessibility (aequitas, integritas, facilitas) finally is topped off by the pleasure of games.
Elsewhere, Cicero has occasion to remark on the overarching importance of this complex provincia.82 Yet in the Pro Flacco he also portrays the urban praetorship as a breeding ground for mistrust, suspicion and personal feuds.83 The administration of civil law strikes one as the tricky part. Here the personality of the praetor was crucial. In other contexts,84 Cicero highlights precisely the same qualities as in the above passage—fairness and impartiality,85 tactful judiciousness,86 mildness,87 integrity,88 and accessibility89—as essential characteristics in any praetor who administers civil law, whether in Rome or in the provinces.90 For Cicero, other positive attributes in a praetor in the civil sphere are a reputation for seriousness, conscientiousness, the observation of appropriate precedent, and the right sort of severity.91 Singled out as particular evils (besides plain turpitude) are open favoritism, arbitrariness, and harshness or cruelty.92 Praetors faced scrutiny for the quality of their administration of the law.93 So one would imagine technical knowledge of the law was surely a plus. But it comes up quite rarely in Cicero’s various descriptions of ideal praetorian attributes.94 In the Pro Murena, Cicero even denies that it was all that important.95 In truth, the system of sortition meant that even a civil law expert had (theoretically) a one in eight chance of landing the urban jurisdiction. In 66 B.C., the great jurist C. Aquillius Gallus had the ambitus court while the significantly less gifted C. Antonius apparently received the provincia urbana. For 65, the erudite Ser. Sulpicius Rufus drew the dire quaestio peculatus, while another expert, P. Orbius, had some other (nonurban) provincia.96 The standard of legal knowledge of their praetorian colleagues in 65 might have been quite low. Not quite a dozen years after Murena’s praetorship, Caesar was to claim that before the arrival of the jurist Trebatius Testa in Gaul (spring 54 B.C.), not a single man on his staff was capable of drawing up a contract promising court appearance (vadimonium).97 This is quite surprising, since there was at least one ex-praetor on Caesar’s staff at the time, T. Labienus (pr. by 59, on whom see 15.2.4). Labienus is not known to have been praetor urbanus. But he was a potential recipient of the sors. To return to our Pro Murena passage: Here, of course, Cicero is trying to show how the inherent advantages of the urban praetorship and his client’s personal attributes resulted in election to a consulship without need of unfair practices. Cicero’s statement in this speech cannot be considered an objective description of the nature of the provincia—any more than a passage in the Pro Flacco where, for a different rhetorical purpose, he expatiates on all the enemies an urban praetor stood to make. But the record does seem to support his claim that the urban jurisdiction is “one suited for the consulship.” Fully half the praetors who have come up so far in our survey of the urban provincia for this era eventually reached the
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higher office.98 Of those who did not progress to the consulship, almost half of those cases were affected by major external factors such as the regnum Cinnanum and the Civil Wars, death, or judicial condemnation.99 Following Murena, three of the four next known or probable urban praetors also reached the consulship. The elogium of M. Valerius Messalla Niger preserves the detail that he was urban praetor (and contains no indication that a promagistracy followed). Messalla was cos. 61 and later censor in 55; the date of the praetorship is not attested, but is almost certain to have been 64 B.C.100 L. Valerius Flaccus followed as praetor urbanus for the year 63. Pretty much all we know of Flaccus’ activities is that he aided in the arrest of the Allobrogian envoys on the night of 2–3 December, seized some incriminating materials, and held them overnight. Following his year in office, Flaccus went pro consule to Asia, where he made a mess of the province.101 He is the one urban praetor in this group who did not progress to higher office: his trial for repetundae in 59 B.C., though ending in acquittal, probably wrecked his chances for the consulship.102 There is no indication that subsequently he made much of an effort to reach it. In 57, he went off to Macedonia as a legatus of L. Calpurnius Piso (cos. 58) and returned only in summer 55.103 In 63 B.C., the rites of the Bona Dea were held in the consul Cicero’s house on 3 December. A year later, they took place in that of the praetor C. Iulius Caesar.104 Shackleton Bailey’s suggestion that Caesar was praetor urbanus for 62 must surely be right.105 In earlier (pre-Sullan) days, the home of the urban praetor is likely to have been the regular location for the rites in the (frequent) absence of the consuls from the city.106 In December 62, the location of the consuls is unknown, but they should have been in Rome. It is natural that they would have allowed the responsibility for the Bona Dea to devolve upon the praetor Caesar, especially since he was (after 63) pontifex maximus. In this year Caesar is said to ius dicere,107 but that in itself is inconclusive regarding his precise provincia. He of course reached the consulship for 59 after an ex praetura command in Further Spain. The praetor allotted the urban jurisdiction for 61 is unknown. But as praetor that year, C. Octavius—the father of Augustus—had haled to court certain ex-magistrates “who had decided unjustly” and as private citizens flouted their own decisions, and also Sullani who had stolen property forcibly (“per vim et metum”) but which he now made them return. The provincia cannot be ascertained, but Cicero’s general description certainly suggests activities in a civil law court rather than a permanent quaestio. Octavius received an ex praetura command in Macedonia (14.2.4).108 For 60, the urban praetor definitely was P. Cornelius Lentulus Spinther. Through the consul Caesar’s connivance in 59, he received Hispania Citerior as his promagisterial province, and returned to win election for the consulship of 57.109 There are just two firmly attested urban praetors for the 50s, who show up in our record of 57 and 50 B.C. However, we may be able to account for the provincia in two or three additional years of this decade. As praetor in 58, C. Memmius issued an edict that P. Vatinius appear to stand trial for an alleged violation while tr. pl. 59 of the lex Licinia Iunia. That was a recent law (of 62) which set down rules for the proper deposit of proposed legislation in the aerarium.110 We would assume the praetor also had formal responsibility for the trial, which most likely was not to take
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place in a quaestio perpetua. The scope of the law and the fact that the procedure of the trial itself soon came into dispute suggests rather a special iudicium publicum, which probably stipulated a fine as penalty. The prosecution of another extribune—Q. Opimius, before the urban praetor C. Verres in 74 (12.1.2)—offers a ready parallel for the case of Vatinius.111 We should at least allow for the possibility that Memmius, like Verres, was praetor urbanus. As praetor, Memmius (with his colleague L. Domitius Ahenobarbus) made one or more anti-Caesarian relationes in the Senate,112 but that is immaterial to his provincia. A promagistracy in Bithynia (for 57)—with the poets Catullus and Cinna in his cohors—is not disputed. No consulship followed. Though hailed “imperator” in Bithynia, Memmius’ tumultuous campaign for cos. 53 led to his condemnation de ambitu in 52 (11.2). The disposition of the provincia urbana for the rest of the decade requires only brief discussion. L. Caecilius Rufus was definitely urban praetor for 57, and as such refused access in court to those who had taken possession of the property of Cicero, now in exile. L. Rufus held an overseas provincia (precisely which one is unknown) for 56.113 Broughton reasonably regards a Fonteius as praetor urbanus for 54.114 The next two years are a blank for this provincia, but in the prolonged interregnum of 53 B.C.—there were no curule elections until July—Dio tells us the tribunes of the Plebs contrived that they hold the Ludi Apollinares.115 For 51 B.C., an A. Plautius or Plotius (aed. cur. probably in 55) might have had the title of urban praetor (11.2). Finally, C. Titius Rufus was urban praetor for 50 B.C.116 None of these four men— L. Caecilius Rufus, Fonteius, A. Plautius, C. Rufus—reached the consulship. The main explanation for that is surely not any qualitative change in the status of the urban jurisdiction among the praetorian provinciae during the 50s, but rather the disturbed electoral conditions of the years 53 and 52 and the civil war that erupted in 49 B.C.
12.2 Other City Provinciae, 122–50 12.2.1 Praetors Inter Peregrinos We can account for the provincia peregrina in just four years in this period, two before Sulla’s reforms and two in the decade that followed. In 105, the peregrine jurisdiction was independently allotted to an unknown praetor; all that remains of his name in the relevant document is his filiation (he was son of a certain “Publius”).117 It now appears that L. Gellius as peregrine praetor in 94 was charged by the Senate with roadbuilding in Apulia; so he was not in Rome hearing law cases that entire year. After his magistracy, Gellius took up Cilicia or Asia pro consule.118 And we have seen that L. Cornelius Sisenna as pr. 78 had both the urban and peregrine jurisdiction (12.1.2), probably from the beginning of the year but perhaps picking up the second provincia through the “mandatory” process. Finally, there is M. Terentius Varro Lucullus (the future cos. 73) in 76. His date and provincia are certain, for Asconius relates how a lawsuit involving C. Antonius (the future cos. 63) came in ius before the praetor M. Lucullus “qui ius inter peregrinos dicebat.” This suit—in which Greeks were calling Antonius to account for some previous preda-
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tions in Achaea—was partly responsible for Antonius’ expulsion from the Senate “six years” later, in 70.119 Cicero tells how M. Lucullus as praetor introduced an innovation into his edict regarding crimes by armed bands of slaves.120 Were it not for Asconius, one would be tempted to infer from Cicero’s long discussion of Lucullus and his measure that he was praetor urbanus, from the talk of this praetor’s skilled ability to ius dicere and the like.121 The example of M. Lucullus goes to show how little can be taken for granted in reading even our most detailed and reliable source for the late Republic. Cicero never identifies this praetor’s provincia—or in fact specifically mentions the peregrine jurisdiction anywhere else in his voluminous writings. 12.2.2 Some City Praetors in Unspecified Provinciae We find several praetors for this period engaged in civil law activities for whom no provincia is specified in our sources. First, P. Decius Subulo, who, after taking on the Optimates in various ways as tr. pl. 120 (and escaping condemnation the next year), held the praetorship for 115. The author of the De Viris Illustribus (our only source on this man’s praetorship) relates that when Decius refused the consul M. Aemilius Scaurus’ order to rise in his presence, the consul had the praetor’s magisterial robe torn and curule chair broken. The consul then by edict barred anyone from approaching Decius in civil law matters (“ne quis ad eum in ius iret, edixit”). Scaurus’ behavior in this instance probably reflects pent-up class hostility at Decius the person. But Decius might have been up to something as praetor that we do not know about. The important general point that emerges from this episode is that it presupposes another praetor could step in to exercise Decius’ jurisdiction.122 A related episode, again known only from the De Viris Illustribus, involves C. Servilius Glaucia during his tumultuous year as praetor in 100 B.C. The tr. pl. Saturninus, it is said, “to appear more ‘popular,’ smashed the curule chair of the praetor Glaucia, because in administering justice he had diverted part of the People” (sc. from some contio or assembly).123 On this passage, Broughton124 suggests “the order of notices [sc. in the sketch of Saturninus in the Vir. Ill.] implies that the incident occurred during [Saturninus’] first tribunate,” and so quite tentatively postulates that another Glaucia was a (city) praetor for 103 (though not excluding that the man in question is the pr. 100). The suggestion of a second “Glaucia” for 103 is unnecessary. A glance at the sketches of other lives in the De Viris Illustribus shows that this author does not always care about preserving the relative chronology of the events he mentions.125 Though the political background to this particular anecdote is murky, it should remain attached to the year 100—incidentally indicating that Glaucia’s provincia included responsibilities in the civil law. He certainly was meant to be in the city all year (cf. 14.1.1). An L. Sentius (Saturninus) while city praetor issued an edictal prohibition on the dumping of corpses and refuse apparently within 200 meters outside the Servian wall.126 The conditions of each of the years 90 through 87 are particularly consistent with such a regulation for Rome, but there is no real possibility of anything approaching certainty on the date. The year 82, however, does seem a firm terminus for the date of L. Sentius’ praetorship.127
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In 12.1.1–3 I have discussed the cases of P. Burrenus (pr. 83), Cn. Cornelius Dolabella (pr. 81), Cn. Octavius (pr. by 79), L. Calpurnius Piso Frugi (pr. 74), L. Caecilius Metellus (pr. 71), P. Cornelius Dolabella (pr. 69 or 68), and C. Octavius (pr. 61). Of these, L. Piso Frugi was definitely, and L. Metellus is likely, not to have been urban praetor. Add M. Curtius Peducaenus, praetor in 50 B.C. Though not praetor urbanus—C. Titius Rufus had this provincia that year—Peducaenus presided over a civil suit between two brothers, one trying to block the other from selling a jointly owned estate. And Cicero reveals that he had an edict. That Peducaenus was praetor inter peregrinos (as Shackleton Bailey suggests) is a good guess but no more.128 Another case from this general period requires more extended discussion. In Dio’s narrative of the year 67—a year for which the urban praetor was almost certainly M. Iunius (12.1.2)—we find two stories about a city praetor “L. Lucullus.”129 When the cos. M.’ Acilius Glabrio smashed “Lucullus’” curule chair for not rising in his presence, the praetor—and his praetorian colleagues—from then on gave their judgments standing. (The consul evidently did not go so far as to prohibit the praetor from acting in his provincia.) And “Lucullus” turned down an ex praetura command for Sardinia, alleging the general state of corruption in the provinces (see 11.1.6). Broughton rightly adopts M. Hölzl’s old correction of Dio’s text from “L. Lucullus” to “L. Lucceius,” that is, the unsuccessful consular candidate for the year 59.130 However, M. Dondin and J. M. David offer a transposition and reinterpretation of the Dio passage which seems extremely forced. They reject Hölzl’s emendation and place the chair-smashing incident in L. Lucullus’ praetorship of 78 B.C. so as to give M.’ Glabrio (cos. 67) a tribunate. Dondin elsewhere offers this as a fact.131 But Dio’s city praetor “L. Lucullus” cannot be the cos. 74 B.C., for Cicero132 explicitly tells us that Lucullus’ praetorship in 78 was followed directly by a command in Africa. The anecdote is best left in the year 67, as the conflict between a consul and praetor. The response of the praetor and his colleagues to Acilius’ violence—to give legal decisions while standing—does call out for comment. Dio’s ojrqostavdhn should correspond to the technical legal term “de plano.” If so, we should remember that “the magistrate could have done little de plano in the exercise of contentious jurisdiction.”133 And that, I suggest, was the point of the praetors’ coordinated demonstration: to effect a work “slowdown” in protest of Acilius’ inappropriate and insulting show of consular power. I do not see any basis for Broughton’s notion that Lucceius was peregrine praetor.134 12.2.3 The Workload of Praetors Allotted Criminal Quaestiones I have discussed the evidence for the allotment of the criminal courts in the preand post-Sullan periods in 10.4.1–4 and 11.7.1–7 respectively. It would be interesting to know (but seems hard to reckon) how busy the praetors were who had these courts as their provinciae. When it comes to the major courts—repetundae, ambitus, maiestas, where praetors seem regularly to have presided—there are only a few years for which we have notice of three or more trials in the same quaestio.135
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However, it must be emphasized that counting the number of trials attested for a given quaestio over the period of a year gets us only so far. For instance, there is just one trial inter sicarios et de veneficiis (namely, that of A. Cluentius) that comes up in our sources for 66 B.C., yet by chance we know from a passage in the Pro Cluentio that in this year three iudices quaestionis were needed to staff the combined murder and poisoning court.136 We do have lots of evidence showing that the Forum in the later Republic might host simultaneous criminal quaestiones, suggesting that the competent magistrates sometimes genuinely had their hands full.137 Most informative is that same passage in the Pro Cluentio, where the praetor Cicero indicates that at the same time as the present trial de veneficiis under a iudex quaestionis, there was a process de ambitu in session under presidency of a praetor—but showing that repetundarum (his own court) and peculatus were in recess. Elsewhere, Cicero indicates there were quieter times in the judicial calendar, namely, the months between September and January.138 Information on the actual length of trials run by praetors is particularly rare, except that we know a fair number of prosecutions in each of the quaestiones were broken off once started.139 Greenidge has set out in detail with admirable lucidity the evidence for the course of a trial in a permanent quaestio.140 There is no need here to recount all the responsibilities the presiding praetor had from the time he accepted an accusation to the point he found and implemented the sentence. There is, however, the basic fact that once a praetor decided to accept a prosecution he had to allow by law at least ten days before assembling the full court; when the charge was repetundae, longer intervals came into play.141 That gives us a baseline from which to calculate. Examples of fully completed trials for which we have actual dates amount to precisely three, all from the mid-50s. In the trial of P. Sestius de vi (apparently) before the praetor M. Aemilius Scaurus in 56, the whole process took a little less than five weeks, with the praetor accepting the request to prosecute (postulatio) on 10 February and verdict on 14 March. When M. Aemilius Scaurus himself was prosecuted de repetundis in 54, he was indicted on 6 July and acquitted sometime before 2 September. In this case, a process lasting anything up to seven weeks is possible, but the exact length is unknown. That was a very quick repetundae process: the prosecutors had received an interval of thirty days to gather evidence, but in the end decided not to travel to Sardinia, the province where Scaurus had his praetorian command. Asconius’ narrative of this case shows also that the interval between postulatio and trial in itself offered opportunities for further charges and countercharges, which naturally required the presiding praetor to remain vigilant throughout. Finally, the postulatio of A. Gabinius (cos. 58) for maiestas in 54 took place by 20 Sept., and the verdict of acquittal came in on 23 October.142 To hazard some conclusions: When trials before a praetor ran to completion, four or five weeks might have been the norm from postulatio to verdict in trials— except for repetundae. Extortion cases will have taken substantially longer to resolve, owing especially to the need for prosecutors to gather evidence abroad and the peculiar form of the trial, with the compulsory adjournment known as comperendinatio.143 The provision of the Lex Acilia repetundarum that stipulated 1 September as a deadline for initiating prosecution reflects this basic reality.144 An extortion trial spanning three months was evidently not unusual.145 So it stands to
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reason that the praetor repetundarum and (probably) the praetor who presided over the busy ambitus court had few extended respites from their taxing quaestiones. Yet, as it happens, when we have detailed information on individual praetors who had the quaestio repetundarum—M. Tullius Cicero (66), Ap. Claudius Pulcher (who almost certainly had this provincia in 57), M. Porcius Cato (54)—we find them involved in all sorts of activities outside their court (11.7.1). Indeed, Ap. Claudius Pulcher seems to have spent the bulk of his praetorship—even allowing for the strong negative bias of our main source, which is of course Cicero—away from his court and working on behalf of his brother Clodius, tribune in the previous year.146 (No repetundae trials are recorded for 57.) The praetors who drew peculatus and maiestas are unlikely in principle to have been as occupied, to judge not so much by the (low) number of attested trials as by the nature of the respective crimes. The court inter sicarios et de veneficiis and the later quaestio de vi saw the most activity in sheer number of cases—but there presidency by a praetor seems to have been the exception. Even in an individual court, the volume of trials surely varied year by year. And several quaestiones probably had a certain seasonality, ambitus for one (see 11.7.2). Occasionally we find a praetorian president of a criminal court engaged in legal activities (broadly defined) outside his individual quaestio. Whether C. Aquillius Gallus introduced his formula “de dolo malo” while praetor for ambitus in 66 is dubious. Yet M. Porcius Cato seems to have had responsibilities in the area of civil law. Asconius, while describing his controversial warm-weather garb as president of the quaestio repetundarum in 54, adds that Cato dressed that way “also” when he went to the forum to ius dicere.147 Fairly certain is presidency of more than one court, a phenomenon found by the 50s. More than one praetor evidently had competence in cases de ambitu in 59. Cn. Domitius Calvinus (pr. for ambitus in 56) apparently presided over the prosecution of Caelius de vi in this same year. A praetor for maiestas, C. Alfius Flavus, definitely presided in a trial under the lex Licinia de sodaliciis in 54. Another demand was jury service in a colleague’s quaestio. Cn. Domitius Calvinus (pr. for ambitus in 56) and perhaps M. Aemilius Scaurus (who as pr. heard a case de vi) were jurors in the trial of P. Sestius de vi in the latter part of February and the first weeks of March that year. And I have argued that, while praetor repetundarum, M. Porcius Cato sat as a juror in an important maiestas trial of 54. I might point out that the titulature of the magistrates who presided over the various quaestiones is vague and poorly attested. Only in the case of the extortion court does our evidence give us a notion of the official full name of the lot—in this case, apparently ut de pecuniis repetundis quaereret—and an indication that the quaestio gave rise to a title (“praetor repetundis” or “repetundarum”).148 It might not simply be chance that we hear nothing of a “praetor ambitus” or “praetor maiestatis” designated as such, even though the corresponding tasks came up consistently (so far as we can tell) in the praetorian sortition. It is always worth remembering that an individual lex created and governed each individual quaestio and also prescribed who might preside. In the Gracchan extortion law (9.2.2), we hear only of the “pr(aetor), quei ex h(ac) l(ege) quaeret” and the like; contrast the formulation of the Cornelian law (11.7.4): “praetor iudexve quaestionis, cui sorte
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obvenerit quaestio de sicariis.” If the Romans in the laws that instituted each of the post-Gracchan quaestiones left the matter of presidency noncommittal (as Sulla did in his law), it is little wonder that the praetors who received these courts did not themselves make a strong identification with the names on their sortes. To press the hypothesis further: perhaps it is this very feature that in time made possible shared praetorian presidency of a given court within the span of a single year—presumably ex S.C.—despite its allotment in the sortition. 12.2.4 Further Attributes of the Quaestio System Praetors might try to affect the outcome of a case tried before one of their praetorian colleagues. Cicero as praetor repetundarum 66 spoke in a contio about a case pending in the peculatus court. He also argued a case in the quaestio de veneficiis that year. Interference also took unofficial or even extralegal forms. Plutarch says that Cicero, when prosecuting Verres in 70 B.C., was worried about the “praetors” who favored the defendant—possibly those in the city as well as his successor Metellus in Sicily. As pr. 57, Ap. Claudius Pulcher used a variety of techniques (including slave gangs) to help stymie an attempted prosecution of his brother P. Clodius under the lex Plautia de vi, a case that potentially might have come before a praetor.149 Praetors might try to sway the course of popular trials, too. The outstanding example is Q. Caecilius Metellus Celer, who as pr. 63 managed to terminate the (now archaic) perduellio procedure of C. Rabirius for the murder of Saturninus thirty-seven years earlier by raising a (vastly more archaic) flag of military emergency on the Janiculum.150 There is nothing particularly remarkable about Cicero’s activities outside his court in 66. We have plenty of instances where acting magistrates appear as advocates in criminal trials, from censors and consuls down to tribunes.151 Advocacy was just one avenue for infuencing what went on in the permanent courts. The tribunes could not save a defendant from having to plead his case.152 But they intervened in a whole host of other ways.153 Consuls involved themselves more rarely. The consuls of 65 aided in the protection of the maiestas court during one particular trial (11.7.3). Building partly on that precedent as well as on that of the extraordinary Bona Dea trial of 61, Pompey as cos. III 52 carried through a massive intervention in the judicial process de ambitu and de vi, introducing armed guards (11.9.3). What does seem unusual is how the cos. Q. Caecilius Metellus Nepos used his maius imperium against the urban praetor (i.e., L. Caecilius Rufus) in December 57 B.C. Nepos’ object was to forestall a trial of his half-brother Clodius de vi. Dio says the primary responsibility for alloting iudices to that court lay in the hands of quaestors. However, those of 57 had gone out of office on the legal day (4 Dec.), and none yet had been elected to take their place. The question of what to do with the iudicia came up for discussion at a session of the Senate convened (sometime between 10 and 16 Dec.) by P. Rutilius Lupus, a new tribune of 56 and supporter of Pompey. In response to a relatio by another (pro-Optimate) tribune L. Racilius, the consul designatus Cn. Lentulus Marcellinus had suggested that the praetor see to the task of assigning a jury himself. But the consul Nepos positively forbade Rufus—a strong supporter of Cicero and enemy of Clodius—to do so.154 There are
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a number of times when we see a benign form of maius imperium at work in the city. Cicero himself is careful to detail the routine orders he gave as consul to various city praetors in the Catilinarian crisis of 63 (see 12.4.1). But this episode of 57 has no real parallel—except perhaps the confrontations of the consul M. Aemilius Scaurus and praetor P. Decius in 115, Mam. Lepidus and Cn. Orestes in 77, and M.’ Acilius Glabrio versus L. Lucceius in 67. A few sources, scattered throughout this period, indicate how praetorian activity in the sphere of criminal law might go beyond the standing quaestiones. Under the Lex de provinciis praetoriis of 101 B.C., it is a praetor who is to constitute the iudicium which hears infractions of that law.155 We have already noted (12.1.2) that Verres as praetor urbanus had responsibility for holding a iudicium publicum in which an ex-tribune was condemned to a fine, and perhaps other criminal trials as well. As praetor in 58, C. Memmius seems to have supervised another type of iudicium, in which violations of the lex Licinia Iunia were prosecuted. Consider also Memmius’ colleague L. Flavius, a staunch adherent of Pompey both as tr. pl. 60 and as praetor in 58.156 Flavius’ duties in the city in 58 apparently extended to summary criminal jurisdiction. Asconius157 reports how a dagger allegedly fell from the cloak of Clodius’ “slave” (also called “freedman”) Damio on 11 August, and was brought to the cos. A. Gabinius as evidence of a plot against the life of Pompey. The next substantive item Asconius reports is that a week later Damio was unsuccessful in his appeal to the tribunes against Flavius. But he does not describe what the praetor had ruled.158 In view of Damio’s low social status, the praetor (on instructions from the consul) simply may have taken cognizance of the case and decided to hand the man over to the IIIviri capitales for execution. That the praetor’s decision involved a severe penalty seems likely. Asconius’ account implies that Damio in his appeal to the tribunes went so far as to wound one member of the college who proved unsympathetic, and who promptly vetoed any further action by his tribunician collegues. That will have sealed Damio’s fate. There is another possible case of such praetorian activity in criminal law for 50 B.C. In that year, M. Livius Drusus Claudianus (ironically, as Caelius notes) presided over the court for violations of the lex Scantinia, a law penalizing acts of homosexuality involving freeborn males.159 Broughton supplies identification and name, listing him (following Münzer) as “Praetor or Iudex.” Alexander offers that “iudicium apud Drusum fieri” (“a trial is taking place before Drusus”) “could refer to either a praetor or juror, probably the former.”160 Yet, pace Alexander, Caelius’ wording surely excludes that Drusus was a juror.161 In any case, one notes (assuming the identification by Broughton is correct) that M. Livius Drusus Claudianus— adopted in infancy by the tr. pl. 91 and himself father of Livia Drusilla—by the year 50 was several years beyond the requisite minimum age for the praetorship.162
12.3 Interrelationship of the City Provinciae 12.3.1 The Source Problem It seems worthwhile to speculate on some of the ways praetors in Rome interacted with each other once there were more than two city provinciae. Yet, first, it is impor-
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tant to outline the source problem. For only a handful of years following the institution of the praetor repetundis in 122 down to 81 B.C. can we posit more than one praetor in Rome for the year: 115 (two praetors in unspecified provinciae, with possibly an urban praetor as well), 105 (urban and peregrine praetors), 104 (apparently at least two),163 100 (just one named praetor, but evidently more than two in the city in the run-up to the consular elections for 99),164 and 94 (urban and peregrine praetors, but the latter not for the entire year). In 88, Cicero implies that at least three praetors—Q. Metellus Pius, Ap. Pulcher, and P. Gabinius—were in the city at the time when Archias made his professio for citizenship under the lex Plautia Papiria. That same year, an L. Cornelius Lentulus praetor presided (apparently) over a panel of iudices; Q. Metellus Pius brought a suspicious item in the citizenship records to his notice.165 We do not know when Archias approached the praetor Metellus, but it probably was early in the year (10.5.5). In 85 (probably), the edict of the praetor M. Marius Gratidianus on the testing of coinage for forgery and debasement is said to have anticipated a joint declaration of the tribunes and his collegium praetorium on that matter.166 But we do not know what time of the year this was (it may have been early), or how many praetors were actually there. Our information does not improve all that substantially even for the period after Sulla set up a system in which each year all eight praetors could potentially remain in Rome. Despite the evidence of Cicero, for half the years 81–50 B.C. we can positively place no more than two members of a given praetorian college in the city.167 The years for which we have fuller information (three or more city praetors specified as such) are 74, 70, 67–65, 63–62, 59–56, and 54. Yet, even here, notices on the precise provinciae are in short supply. For instance, in 74, when C. Verres was praetor urbanus, though we have the names of three (perhaps four) of his colleagues, the only other provincia we can account for is repetundarum—and even the arrangement of that is problematic (11.7.1). In 70, we can identify three city praetors, and (probably) two of their provinciae (again, urbana and repetundarum); in 67, four or five city praetors but at most just one provincia (the urban one). We have references to seven, perhaps all eight, of the city praetors for the year 63, but the urban provincia is the only one to which we can attach a name (L. Valerius Flaccus). There are four attested city praetors for the year 58, but we know nothing about what provinciae they received. All eight of the city praetors are definitely known for 57—the only year in the whole post-Sullan period for which we have this information—but merely two of their provinciae, urban and repetundarum. And of the three known city praetors of 56, one is known to have had ambitus; another (M. Aemilius Scaurus) is found in the court de vi, but whether that had come to him in the sortition is most uncertain. There are merely three years in the period 81–50 B.C. for which we know the disposition of three or more of the city provinciae. For 66, we can account for five of the six known praetors of the year, in the urban provincia and then repetundarum, ambitus, maiestas and peculatus. The evidence for this year shows particularly well how a praetor attached to a permanent quaestio might have a range of duties (11.7.1, 12.2.4). Above, I have outlined some of the praetor Cicero’s activities that took him beyond his allotted repetundae court in that year. His colleague L. Cassius Longinus had maiestas as his city province, but in addition to this quaestio
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had responsibilities—or at least could plead responsibilities—in public grain matters (11.7.3). Four city praetors are attested for 65, and three provinciae—the urban jurisdiction, and then maiestas and peculatus. There we are less well informed on the interplay between provinciae, except that the praetor C. Attius Celsus took an active interest in the plight of a defendant being tried in his colleague Q. Gallius’ maiestas court (11.7.3). Finally, five city praetors crop up in our sources for the year 54, three of them having as provinces urbana, repetundarum, and maiestas. There it appears that the praetor for maiestas heard trials also under the lex Licinia de sodaliciis (11.7.7). And the praetor repetundarum—M. Porcius Cato—is found far beyond his quaestio. It seems he sat as a juror in the maiestas court (11.7.3) and also heard civil law cases in the Forum (12.2.4). What is more, he joined forces with the praetor P. Servilius Isauricus in opposing one of their colleagues, Ser. Sulpicius Galba, over the question of the long-delayed triumph of the pr. 63 C. Pomptinus (15.2.3). Cato even devised a scheme in which he became the holder of securities from the tribunician candidates for good conduct in the elections for 53—though, in that, he was perceived to be overstretching his authority.168 In short, even what little we do know of the various city provinciae shows that the system allowed for— and sometimes positively demanded—considerable fluidity of roles. Precisely how much fluidity is another question, to which we can now turn. 12.3.2 Interrelationship of the Urban and Peregrine Praetors Given the limitations of our evidence, we only have enough information for some broad hypotheses on how the city provinciae were supposed to relate to each other. Our consideration of the data for the period 218–166 B.C. (5.6.2) showed that when the city praetors acted together, if tasks were divided, this was done by consideration of location (ratione loci), not substance or subject matter (ratione materiae). The peregrine praetor traditionally seems to have had few formal responsibilities in the city and more de facto mobility than the urban praetor. This is why he occasionally received different sorts of tasks from the urban praetor. The same administrative principle must have been at work when it came to legal affairs. Now, the first epigraphic mention of the peregrine praetor, in the Gracchan Lex repetundarum, is not particularly informative on his competency. There the peregrine praetor only constitutes the first panel under the new law, which may seem a natural choice for a legal procedure which chiefly affected (so Cicero says) peregrini. All subsequent references, once the court is functioning, are to the praetor repetundis presiding over it.169 Virtually every later piece of evidence we have on the legal activities of the peregrine praetor, both before and after Sulla and then down into the reign of Augustus, shows him dealing with matters involving Roman citizens. The men offered the citizenship by the lex Plautia Papiria of 89 or 88 could profess before any praetor,170 and thus before the praetor inter peregrinos. M. Licinius Lucullus, peregrine praetor in 76, accepted a civil suit against the young C. Antonius, launched by Greeks; he also introduced a formula into his edict meant to curb the violence of gangs in (Roman) Italy. The Lex de Gallia Cisalpina (generally dated
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between 49 and 42) seems to have specified that the peregrine praetor have jurisdiction over the Roman citizens of that region.171 In the so-called “Lex Iulia municipalis,” individuals—evidently from Rome as well as Heraclea—were to make professiones to the consul, or, in his absence, respectively the urban praetor, the peregrine praetor, or a tribune of the Plebs, as available.172 We have two Augustan measures which gave the praetor inter cives et peregrinos jurisisdiction over water supply issues: one comes from the (citizen) colony of Venafrum in Campania, the other relates to Rome itself.173 We also know that under the Augustan lex Iulia de iudiciis privatis the peregrine praetor was to hear cases under the legis actio procedure.174 Watson175 lists most of the actual leges cited above (but not the lex Plautia Papiria), commenting (somewhat surprisingly), “no doubt they are all, to a greater or lesser extent, exceptional cases.” In Watson’s view, they tell us nothing about the ordinary jurisdiction of the two city praetors, “but they do show that the boundaries of jurisdiction were not absolutely fixed by the status of the parties.” Watson holds that the peregrine praetor indeed “had a separate primary area of responsibility,” based (so it seems) on subject matter: “the status of parties in the actions, whether citizens or not, is irrelevant.” Indeed, for Watson “this matter of the exact jurisdiction exercised by the two praetors is . . . not of great importance for the history of legal development once the scope of their respective edicts is established.” Watson argues that the edict of the peregrine praetor—its existence is confirmed for the late Republic176—contained “only the clauses which could not apply to citizens (and not those which could apply to peregrines and citizens alike).” There is an obvious snag, namely Lucullus’ “iudicium de hominibus armatis coactisve.” Here Watson suggests that this clause must have been issued in the urban praetor’s edict, with the initiative for its insertion coming from the peregrine praetor Lucullus. The same case is made for the edictum de dolo of C. Aquillius Gallus (11.7.2), which Watson (overconfidently) argues he must have introduced as praetor de ambitu in 66.177 “Though the urban edict was the responsibility of the urban praetor . . . he could in normal times expect the active co-operation of the other praetors. . . . [T]heir part in framing the edict would be open and recognized.” Watson’s general interpretation has had a certain amount of influence.178 It is also unlikely to be right. To make his hypothesis work, Watson has to explain away the best piece of evidence we have on the historical development of the edictum perpetuum, M. Lucullus’ iudicium of 76. I also do not see how the content of the praetors’ edicts can be irrelevant to their actual legal activities. A full examination of the problem of the individual praetorian edicts takes us beyond the scope of this work. In the next section I will simply sketch a provisional (and quite general) alternate interpretation.
12.3.3 How Many City Praetors Posted Annual Edicts? The peregrine praetor, like the urban praetor, was in origin primarily a military magistrate. During the last years of the First Punic War, the praetor inter peregrinos was responsible for the defense of Italy. Soon, he was sent as the chief Roman com-
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mander to the new provincia of Sicily; after 227, he used Rome as his base. The peregrine praetor was no different in conception than the urban praetor or the (later) provincial praetors. In sum, all praetors, including those in the overseas provinciae, could hear cases at law—evidently regardless of the citizen status of the litigants—using or (if necessary) adapting existing civil law procedures.179 The provision of the lex Plautia Papiria that a professio for citizenship could be made before any praetor shows that just a few years before Sulla’s reforms something of this “collegial” aspect of the praetorship remained. In the post-Sullan period, the case of the pr. urb. Cn. Aufidius Orestes in 77 implies that an individual might petition a series of city praetors in the hope of being granted such and such an action. In all instances where a suit actually came to trial, the judgment of a praetor’s court was final, unless another competent magistrate happened to use his intercessio to overturn a decision. For the later Republic, we do not have a single secure instance of a praetor in the city using his imperium in that way. When Cicero says the praetor Piso “intercessit” in Verres’ civil law cases, he probably did nothing more than to accept the petitions his colleague had refused (12.1.2). Litigants who did not like a praetor’s actual decision customarily appealed to a tribune of the Plebs, and sometimes to a consul. However, it always remained theoretically possible for an individual city praetor to have his legal actions vetoed by a praetorian colleague.180 We know the peregrine praetor had (at least at the end of the Republic) an edict separate from that of the urban praetor (it is explicitly mentioned in the Lex de Gallia Cisalpina); the edicts of provincial commanders are of course amply attested.181 Did the praetors in charge of the standing quaestiones also post their own edicts? A passage of Dio on the lex Cornelia of 67 B.C. might be taken to imply it.182 But if that were really the case, it would be most surprising if, in the atmosphere of the late Republic, praetors did not at times issue competitive edicta perpetua to make a political point or to further their own careers. (It surely follows that the praetor who issued an edict would hear cases under it.) Separate edicts are conceivable for two praetors, who could keep an eye (and if necessary, threaten a check) on each other’s actions in the administration of law. But if there were more than two full edicts, anarchy would almost certainly result. Now Watson, who advocates a model in which each of the praetors might contribute to a “collegial” edict issued by the praetor urbanus, argues that “when later praetors were allotted to particular quaestiones perpetuae, they would (apparently) have far less to do than either the urban praetor or peregrine praetor, and yet they too were of equal rank.”183 But on this point our sources are almost universally silent. We have seen how long a case repetundarum or ambitus could take. There were not many that could be squeezed into a year. The other praetors in charge of standing courts must be presumed to have been busy too, with cases we cannot expect to hear much about. We have seen that C. Aquillius Gallus (pr. de ambitu 66) probably devised his iudicium de dolo a decade before his praetorship, so that does not help. Our conclusion must be that if an individual allotted a quaestio perpetua invented (as praetor designatus or praetor) a formula which found its way into the edictum perpetuum, that was by and large incidental to his status as magistrate. He can just as well have composed a formula as a jurist (as Aquillius seems to have done).
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And so we are left with the two edicts of the urban and peregrine praetors. Naturally, each of these praetors would have to post an edictum perpetuum announcing the principles according to which he would exercise his jurisdiction, and our evidence suggests that the peregrine praetor as well as the praetor urbanus did just that. In 67, the tribune C. Cornelius passed a law compelling praetors to follow their own edicts (“ut praetores ex edictis suis perpetuis ius dicerent”) (12.1.3). The plurals are significant. The lex Cornelia must have applied to both relevant city praetors, perhaps as well as praetorian governors in the various provinciae. Note perhaps also Cicero’s statement in his Cilician edict, that in matters where he has not made specific provision, he would base his decisions on the “edicta urbana.”184 In the late Republic, each praetor had full power to introduce and adopt innovations as he saw fit: consider C. Verres, pr. urb. 74. Sometimes (unlike Verres) his edict might influence those of other magistrates. In 76, the peregrine praetor M. Licinius Lucullus picked up on the praetor Octavius’ actio on metus (ca. 80), and issued his own edict on robbery with violence. Lucullus’ measure was meant to apply to Roman citizens in Italy; like the formula Octaviana, it also carried a heavy fourfold penalty. Within seven years, Lucullus’ iudicium had passed into the edict of the praetor urbanus.185 For provincial governors, the edict which Q. Mucius Scaevola (cos. 95) used in Asia provided a standard for fairness (see 14.5.4). After his tenure, a senatus consultum set it as a model for governors who received that provincia. A Sicilian governor emulated it almost immediately in his provincia (13.1.4); some forty years later, Cicero drew many features from it in composing his own edict as pro consule for Cilicia in 51–50.186 We do not have enough information to understand the relationship of the different edicta to each other, but a few things seem reasonably certain. Gaius tells us that the fullest edicts were those of the “two praetors,” the praetor urbanus and the peregrine praetor,287 as we would expect. In the late Republic, these praetors must have been hearing the bulk—though apparently not all—of the cases in private law. The edict of the praetor urbanus—surely the most important, in view of his general primacy—may have served as a convenient model for that of the peregrine praetor. Their praetorian colleagues in the city presumably by custom used one of these edicts or the other in hearing civil law cases. However, one has to admit it is most difficult to see how any praetor could be forced to adopt a particular edict lock, stock, and barrel. Remember the resentment Asconius reports against the lex Cornelia of 67. And that law did not attempt to dictate the actual composition of the individual edicts (12.1.3). In order to coordinate the administration of justice, the Senate may have suggested guidelines for the relevant city and overseas provincia, as we know it did for the province of Asia after Scaevola. But the examples of M. Lucullus and C. Verres show that each praetor was free to innovate in the composition of his edict—though admittedly both these examples come before the lex Cornelia. Cross-fertilization naturally arose between the edicts of the two city praetors, as well as between edicta promulgated in different provinciae.188 We do not hear of the innovations of provincial governors making their way into the city edicts (though there is no reason to think that was impossible). In the Republic, the difficulty of imposing strong central controls meant that, at any given time, the edicts in each praetorian provin-
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cia may have looked quite dissimilar (the Empire would be a different matter). Given these circumstances, we perhaps should not find it entirely surprising that in the Augustan age, the jurist M. Antistius Labeo could write at least thirty books on the legal aspects of the peregrine praetor.189
12.4 Nonlegal Tasks of the Various City Praetors There are three basic areas that fall under this rubric where we have enough information for discussion: movements of praetors outside the city, and praetorian activity in the Senate and legislative assemblies. Our sources tell us almost nothing about what type of elections praetors presided over in this period,190 so on that particular point discussion is fruitless beyond what we have noted in 5.4.7. In 5.5.2 and 12.1.1–3, I have assembled the most important notices relevant to the city praetors in the spheres of religion (including games) and setting public contracts. Observations on the unofficial activities of city praetors during their term of office are scattered throughout chapters 10–11 and the present chapter—a rich subject that deserves closer attention than what I can provide here. 12.4.1 City Praetors in the Sphere Militiae We have just a few known instances where a city praetor is dispatched outside the city to undertake a certain administrative task, all apparently pre-Sullan: the pr. urb. C. Caninius Rebilus (date unknown, but probably before 81 B.C.), who went to Ostia to adjudge the status of a piece of land “de senatus sententia” (12.1.1); L. Cassius Longinus, pr. 111, sent by plebiscite to bring Jugurtha to Rome under safe conduct (10.6.2); and L. Gellius, charged “de senatus sententia” with roadbuilding in Apulia as peregrine praetor in 94 (12.2.1). Yet the basic capability of the praetor to function as a commander in the field can be seen throughout our period, largely irrespective of city provincia. As praetor in (surely) 104, L. Licinius Lucullus—father of the coss. 74 and 73— had to leave the city to put down a well-organized slave revolt at Capua. Suppressing slaves was a traditional praetorian responsibility (5.3.1), though in 133 major revolts at Minturnae and Sinuessa led to two consulars receiving special commands (8.6.2). Diodorus says Lucullus was “one of the praetors in the city” (tw`n ga;r kata; povlin strathgw`n . . . e{na). And so Broughton (following Münzer) makes him “pr. urbanus or peregrinus.” We know that there was both an urban and peregrine praetor in the city in 105 (12.1.1, 12.2.1), so it is a good guess. But praetor repetundis is also possible (see 10.4.2). Even before this revolt, there had been stirrings at Nuceria and a significant rising (two hundred slaves) at Capua. But the Romans evidently stopped short of stationing a praetor in the south: with a Cimbric invasion looming, flexibility was needed.191 Lucullus’ success in the special task so impressed the Senate that for the next year it had him take up Sicily—now beset by an even more dangerous slave revolt—as a promagisterial provincia. In 91, the Senate created a special command pro consule for one or more of the praetors to watch for dissident activity in Italy. The murder of one of these commanders at Asculum sparked Rome’s gravest military crisis since the Second Punic
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War. All regular iudicia were immediately suspended, and remained so for some time to come. Before the end of the year, several praetors or praetorian commanders were in place in various trouble spots in Italy: certainly Cn. Pompeius Strabo in Picenum, probably L. Postumius at Nola, and perhaps L. Porcius Cato in Etruria. Whether any of these men had a city provincia in 91 is irrecoverable, but entirely possible. But then, despite the iustitium, no praetor that we can confidently assign to the year 90 shows up in the field. For the principal fighting in this year—and also the next—the Senate used the two consuls. They in turn had experienced ex-consuls and ex-praetors serving under them as legates, at least some receiving special grants of imperium. Where were the praetors? Our one possible pr. 90—L. Calpurnius Piso Caesoninus—is said to have manufactured arms (10.5.2–3). In the absence of the consuls, praetors might also have looked to the defense of the city.192 The circumstances in which the pr. urb. 89 A. Sempronius Asellio met his death in the Forum (12.1.1) imply that some normal legal procedure had resumed by late January of that year. By then, the worst of the emergency had passed. Indeed, the contentious suits which Asellio allowed under his edict suggests that he meant to remain in the city for some time and was not expecting to see military action. Another sign of Rome’s growing confidence—somewhat paradoxically—is that soon the Senate allowed praetors something other than ancillary tasks. By year’s end, the praetors C. Cosconius and Cn. Papirius Carbo fought in the southern theater, in part to compensate for the death (not too far into 89) of the cos. L. Porcius Cato. In 88, that same area is where we find Q. Metellus Pius, and possibly Ap. Claudius Pulcher. Yet at least two of their colleagues (a Brutus and a Servilius) remained in or near the city somewhat into the year. When the Senate needed someone with sufficient auctoritas to forbid the consul Sulla from marching on Rome, those praetors were available for the commission (10.5.4–5). Five years later, Sulla posed a much greater threat. In the civil warfare of 83 and (esp.) 82, most of the Marian praetors will have remained in Italy to resist this outlawed commander. The fact that in 82, the putative urban praetor L. Iunius Brutus Damasippus is found taking such a prominent role in the field, suggests that other holders of city provinciae under the Government had their own military responsibilities (10.5.6). After Sulla increased the number of praetors to eight and provided the possibility that they all hold city provinciae, we might reasonably expect to see even more city praetors venturing outside Rome on special commissions. As it happens, the only instances attested all have to do with military commands, by and large prompted by acute emergencies. The year 78 may offer one such case (12.1.2). I have hypothesized that the peregrine praetor handed his jurisdiction to the praetor urbanus and then set out to restore order in Etruria. If so, the two consuls of 78 later superseded that (nameless) praetor in Etruria. Yet no actual praetors of 77 are known to have taken part in the fighting against Lepidus, or the mopping-up operations that followed (11.8.5). Nor did they come into the one other great military decision of that year. When each of the consuls of 77 refused to go to Spain to join the pro cos. Q. Metellus Pius in fighting Sertorius, the Senate turned not to a praetor, but to a privatus—the equestrian triumphator Cn. Pompeius. Just recently, a praetorian com-
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mander had suffered a major defeat when he tried to cross from his provincia of Transalpine Gaul into Spain (13.4.2). That may be one reason why the Senate turned first to the experienced Pompey before looking for a suitable individual in the praetorian college of 77. Two years later, we find the Senate positively skipping over the city praetors when it needed to send someone to exploit efficiently the former royal estates in Cyrene (11.4). In 58, the tr. pl. P. Clodius had M. Porcius Cato appointed as pro quaestore pro praetore for a roughly analogous task involving Cyprus (11.8.4, 15.1.2). But that is pushing us too far ahead in our story. Some way into the year 74 B.C., through the agency of the consul M. Aurelius Cotta, the praetor M. Antonius took up a special command to suppress piracy throughout the Mediterranean. Family background helps explain the choice of this particular praetor (11.3.1). One suspects that Cotta would have secured the pirate command for himself had he failed in his machinations to join his consular colleague L. Lucullus in fighting Mithridates. In 73 and 72, a number of praetors in their year of office had to be sent to quell the slave revolt of Spartacus in Italy (11.8.6–7). Yet when the rebellion first came to the Senate’s notice, it seems that it tried to spare the city praetors. The Claudius Glaber who first fought (and failed) against the slaves was perhaps a praetorius rather than a praetor in 73. The next Roman commander to take the field that year, P. Varinius, was definitely a praetor—indeed, he apparently received a grant of enhanced imperium for the commission. Varinius fought in coordination with a privatus, L. Cossinius, who himself quite likely had imperium. Despite Varinius’ protracted troubles against Spartacus, there is no indication that the Senate sent one of his praetorian colleagues to help him out. Troops certainly seem to have been in short supply. Both Claudius Glaber and—notwithstanding the grand title “pro consule”—Varinius are said to have fought Spartacus with nothing more than tumultuary forces.193 For the years 72 and 71, there is not a word in our sources on what the city praetors were up to in the emergency, but surely some must have had duties outside Rome. The Senate’s unusual decision of 72 to privilege M. Crassus over two consuls suggests that he already had done something in the field against the slaves—if not as praetor, then as prorogued praetor—to merit its attention. Details are sketchy, but it appears that in the early 60s, city praetors aided the consuls in protecting the shores of Italy against the pirates—none too successfully, as it turned out. Cicero tells how a (nameless) consul ineffectively manned a fleet at Ostia, while in the same or a different year a praetor (also anonymous) made poor use of his substantial naval force at Caieta. In an unknown year, but probably shortly before 67 B.C., the pirates managed to capture two praetors in office. So they had been freed (at least temporarily) of their routine duties in the city (11.8.8). Under the senatus consultum ultimum against Catiline of late October 63 B.C., two city praetors (but no more) were to take the field: Q. Pompeius Rufus went to Capua and (with enhanced imperium) his colleague Q. Caecilius Metellus Celer to the ager Gallicus and ager Picenus (15.2.5). To secure Apulia and the area around Faesulae in Etruria, the Senate used not praetors but Q. Metellus Creticus (cos. 69) and Q. Marcius Rex (cos. 68), at that time both long waiting with imperium outside
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the walls of Rome for the Senate’s vote of a triumph. The consul C. Antonius took up the chief command in Etruria, while his colleague Cicero took charge of the defense of Rome, where he is found issuing detailed orders to the remaining city praetors—except of course the conspirator P. Cornelius Lentulus Sura (on whom see 11.1.4)—to expedite resolution of the affair.194 In 62, the Senate again sent two city praetors into the field, this time to punish various allies—the Paeligni and Bruttii are named—who (it is alleged) discreetly had supported Catiline but had now come alive in revolt (11.8.9). Yet the next year, when the Senate saw the necessity for further police action (now in the area of Thurii), it decided to give the task extra ordinem to a pr. 61 who was in transit to his promagisterial province of Macedonia. This survey certainly suggests that throughout the period 122–50 B.C., the Senate exercised considerable restraint in sending city praetors outside Rome, whether for administrative or military purposes. Our sources are massively deficient when it comes to reporting the activities of all praetors, especially those based in Rome. But it does seem noteworthy that a maximum of two city praetors are found operating outside Rome in any given year, and that in a few instances we can see the Senate applying alternative solutions so as not to use more. The relatively wellattested year 63 B.C. is particularly illuminating in this respect. Within two decades, we learn from Cicero of a legal restriction that limited the absence of at least the urban praetor from Rome to ten days, though dispensation could be granted.195 The “laws” Cicero cites on that matter might have come into effect at the time of Sulla’s reform,196 or even earlier: the only known urban praetor to have been away that long in the period under discussion is L. Iunius Brutus Damasippus in the extraordinary year 82 B.C. Yet the way Cicero reports these “laws” leaves open the possibility that they (whatever their date of passage) applied to any city praetor. The main point of that legislation might have been to set limits on absences for personal reasons.197 As far as we can tell, in this period praetors or praetorian commanders only seldom are involved with a levy in Italy (earlier practice is explored in 5.5.1). In 72 B.C., M. Licinius Crassus was allowed to hold one after the Senate gave him the chief command against Spartacus. We know by chance that L. Licinius Murena, pr. urb. 65 and then pro cos. 64, conducted a levy in Umbria en route to his promagisterial province of Cisalpine Gaul. The prr. 63 Q. Pompeius Rufus and Q. Metellus Celer each had power to levy troops in the Catilinarian crisis.198 Furthermore, Dio relates that the cos. 63 Cicero ordered the praetors to administer a special sacramentum in the city right after the attempt to free the conspirator (and pr. II 63) P. Cornelius Lentulus Sura.199 If true, Cicero’s primary aim surely was not to meet some practical necessity but to whip up popular feeling against the Catilinarians before the Senate was to decide their fate. In this period, the responsibility for levies in Italy regularly falls to consuls (or the equivalent), with their legati or quaestors usually doing the actual work.200 Of course, notices of levies by praetorian commanders in the territorial provinciae are common. Sometimes these commanders are reported to have sent the troops they mustered elsewhere.201 In the provinces, we find even a well-connected privatus pulling off an unofficial levy.202
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12.4.2 Praetors as Senate President There is every reason to suppose that the urban praetor had plenty of opportunity to preside over the Senate in the period between the tribunates of C. Gracchus and the dictatorship of Sulla. For many years we know that both consuls had provinciae that took them far from Rome.203 In their absence, the praetor urbanus will have served as president of the Senate, just as he did in better attested earlier periods (5.4). Yet—as Mommsen noticed (1.5.1)—Sulla, by providing that the consuls remain in Rome during their actual magistracy, practically closed the door on praetorian presidency. True, in the years 81–50 B.C., sometimes both consuls had to proceed into the field to meet emergencies. That happened evidently in 78, and certainly in 72 (until the Senate chose to recall them). A few other consuls decided to leave early for their promagisterial provinciae, in November or (early) December of their year of office (possibly 74, and securely attested for 67, 63, 58, and 55). But the only year in which both consuls definitely are known to have taken that step is 58 B.C., when L. Calpurnius Piso and A. Gabinius departed respectively for Macedonia and Syria before 10 Dec..204 Neither Sulla nor anyone else in the Republic directly touched the praetor’s right to convene the Senate.205 All the same, it is clear that the Sullan system severely reduced the likelihood that an urban praetor—much less a praetor inter peregrinos—might find himself as head of the Senate, especially for an extended period. Over time this new state of affairs must have eroded some of the prestige of the praetorship in general. Note that the consuls, together with the holders of the urban and peregrine jurisdictions, date the headings of senatus consulta of 105, 94, and (shortly after Sulla’s dictatorship) 78 B.C. However, already by 73 B.C. the two senior praetors have dropped out of the dating formula, and do not reappear in that context in the Republic.206 Unfortunately, specific documentation of actual practice is egregiously lacking for this entire period. We do have three Senate meetings where neither a consul nor praetor presided. It seems that at some point in the year 123 B.C., perhaps one or both consuls, but certainly the urban praetor (followed by all other praetors then in the city), stepped aside to allow the tribune C. Gracchus to convene at least one session of the Senate. Plutarch says Gracchus introduced a relatio aimed at the prorogued praetor Q. Fabius Maximus (the future Allobrogicus) in Spain, who had exacted an excessive amount of grain from his province to send to Rome. Plutarch adds that the tribune’s proposal—to sell the grain and reimburse the provincials— had the full support of the Senate. Yet apparently no consul or praetor wanted to take responsibility for the senatus consultum that overturned an action by this highborn praetorian commander (7.3.3). There is a further example of tribunician presidency for 91 B.C., but in much different circumstances. On 13 September of that year, the tr. pl. M. Livius Drusus convened the Senate to introduce a relatio censuring the consul L. Marcius Philippus. The consul obviously was not going to chair such a session himself; it is just possible Drusus even had him in jail at that time. It is perfectly conceivable that Philippus might have taken the step of forbidding any praetor from calling the Senate and accepting this hostile relatio, or other proposals by Drusus.207 Finally, late in 57 B.C., a new tribunus plebis (i.e., of 56), P.
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Rutilius Lupus, convened the Senate and launched an attack on the agrarian legislation of Caesar’s consulship. At that session another new tribune, L. Racilius, brought up the question of Clodius’ trial de vi. We can suppose the consul Q. Caecilius Metellus Nepos (Clodius’ half-brother) was unwilling to preside at such a meeting. He might also have ordered the urban praetor L. Caecilius Rufus—who shared the political sympathies of these tribunes—not to act. For, immediately following this session, we find Nepos using his maius imperium against the praetor to save Clodius from coming to trial (12.2.4). Positive notices of praetorian presidency for the pre-Sullan era are skimpy. C. Licinius Getha (cos. 116) presided at a Senate meeting discussing arrangements for adding Phrygia to the Roman province of Asia, possibly as praetor ca. 120 B.C. A quite fragmentary letter with senatus consultum records that a P. Sextilius praetor gave a meeting of the Senate (apparently) to an embassy from Triccala in Thessaly; he may be either pre- or post-Gracchan.208 The one solid example we do have of a praetor convening the Senate in this period is L. Iunius Brutus Damasippus in 82 B.C. Acting on the orders of the consul C. Marius, Damasippus—who was almost certainly praetor urbanus—used the Senate meeting as a ruse to trap and slaughter some prominent senators thought to be at odds with his political faction (10.5.6). It is ironic that the savage L. Damasippus turns out to be the last praetor known to convene the Senate down to the end of our period. On occasion, praetors in office might speak during Senate sessions.209 And obviously, praetors might attempt to influence the Senate’s policies in other, more informal ways.210 However, our sources offer few instances of praetorian relationes under consular presidency in this or any period.211 Livy contains only a few explicit examples, and after his account breaks off for us there is nothing until the mid60s B.C. The pr. repetundarum M. Tullius Cicero, in his de lege Manilia of 66, expressed the hope that the consuls would bring before the Senate a measure allowing A. Gabinius—tr. pl. 67 and now under threat of prosecution—to serve as a legatus under Pompey in the east. “If they hesitate or are unwilling,” predicts Cicero, “I declare I shall introduce the proposal myself . . . nor shall I heed anything short of a veto (intercessio).” Whether Cicero had to make good on his promise is unknown.212 Starting early in 58, the praetors C. Memmius and L. Domitius Ahenobarbus made or threatened to make relationes calling into question the legality of Caesar’s acta as consul.213 In 54, the pr. repetundarum M. Porcius Cato persuaded the Senate to pass an (unpopular) senatus consultum that the magistrates elect should submit accounts of election before a sworn court—even if they had not been accused of ambitus.214 And that is all we have in our record. In contrast, for the years 67–50, we find about two dozen tribunician relationes.215 One notes that each of the attested praetorian relationes has to do with deeply contentious political issues—which is precisely why our sources mention them. Before Sulla placed the Senate under (in essence) year-round consular presidency, in the absence of the consuls the various city praetors surely brought up for discussion all sorts of consequential legislation. And for the post-Sullan period, there must have been many praetorian relationes on routine matters that have not come to our attention. Despite the doubts of Willems, from time to time praetors will have asked the Senate for advice regarding rules of private law or criminal procedure in
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216
particular. Yet it is not hard to see why in the later Republic consuls and tribunes proved to be more important than praetors for introducing political legislation in the Senate. A praetorian relatio came to a dead halt if one of the consuls chose to use his imperium or a tribune (with or without a consul’s encouragement) interposed a veto. The praetor Cicero allows for those possibilities when announcing his plan to push for Gabinius’ legateship. The ever present prospect of interference over time had a chilling effect on praetorian initiatives. According to Dio, at some point praetors lost their right to make a relatio under consular presidency, but pressured Augustus to restore that prerogative in 9 B.C.217 The fact that we have a praetorian relatio as late as 54 B.C. suggests that such a prohibition (if one really existed) came only after our period. 12.4.3 Praetorian Presidency of Legislative and Electoral Comitia When one looks at praetorian presidency of legislative comitia, some of the same general tendencies that impact praetorian relationes reemerge. Most significantly, consuls and tribunes at all times were more important than praetors for putting bills to a popular vote. Consuls had precedence over praetors as regards the ius agendi cum populo,218 and it is natural that they not let praetors take the credit for important or politically useful acts of legislation. For a praetor to try to treat with the People independently was in practical terms quite difficult, since there was always the possibility that consuls, fellow praetors, or tribunes might choose to interfere. A glance at the material collected in G. Rotondi’s Leges Publicae Populi Romanae will show that no ready distinctions can be drawn between the substance of “consular,” “praetorian,” or “tribunician” laws.219 However, consular laws—especially those proposed by both colleagues—had the most prestige. Sometimes, the Senate prompted the consuls to pass a law precisely to forestall more extreme tribunician legislation on the same matter.220 If the Senate used the urban praetor or any of his colleagues in this manner, we do not hear of it. It does seem that praetorian laws became somewhat more common after Sulla. That of course is partly due to the quantity of our sources for the late Republic, but is probably also a consequence of the dictator’s decision to allow the possibility of eight praetors in the city. And of course in both the pre- and post-Sullan eras there were doubtless a number of praetorian laws on routine matters that have not come to our attention. Our first positive evidence for a praetor of any period successfully having the People pass a rogatio under his presidency comes just at the cusp of the first century B.C. W. Blümel’s text of the Cnidus copy of the Lex de provinciis praetoriis shows that, as praetor, “on the (?)fifth day before the Feralia” (i.e., 17 Feb.), M. Porcius Cato passed a law that contained provisions circumscribing the conduct of a commander outside his provincia. The casual manner in which the Cnidus inscription gives the date of Cato’s measure suggests that it came in the same year as the law itself, which is very likely 101 B.C. At least one of the consuls should still have been in the city at that time of the year. M. Cato’s provincia is unknown. But the fact that this praetor is found in the city seeing to legislation in mid-February does not preclude the possibility that even within this same year he later set out to
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a territorial provincia.221 Another instance of praetorian legislation is found a few years later. In (probably) 96 B.C., the pr. urb. C. Valerius Flaccus brought a bill “de senatus sententia” before the People to give Roman citizenship to one Calliphana, a priestess of Ceres from (federated) Velia.222 And it may be that the L. Calpurnius Piso, who in 90 passed one law “ex senati consulto” to add two new tribes and another to grant citizenship to soldiers virtutis causa, did so as praetor.223 The evidence for the post-Sullan period is rather more plentiful. In the latter part of the year 70 B.C., the praetor L. Aurelius Cotta carried an important law on the status of iudices for both the standing quaestiones and civil cases. Henceforth, not just senators, as under Sulla’s reforms, but also two other “ordines”—the equites (sc. equo publico) and “tribuni aerarii” (individuals who met the equestrian property qualification)—were to constitute the album of jurors, in equal proportions, 300 from each class.224 The aim, as Cicero tells us, was to produce stricter criminal courts that were less liable to corruption.225 The system of the lex Aurelia was to remain in force, with minor modifications, down to the end of our period. Cotta—who was almost certainly not urban praetor that year (see 12.1.2)— promulgated his law after the first actio of the Verrines, though the People had not yet voted on it at the (fictional) time of actio II (i.e., October).226 The measure is said to have had strong popular support. However, in the Senate itself many understandably were less keen: throughout the Verrines Cicero plays on fears that Cotta’s law will be passed.227 At one point in the speech Cicero says that the praetor was “daily” auspicating (“qui cotidie templum tenet”). At that point there obviously was no senatus consultum. So Cicero most likely means that Cotta was holding auspicated contiones on his bill.228 It was not that he was trying to proceed to a legislative assembly without a senatus consultum and others were obnuntiating against him. As in the Senate, praetors needed the cooperation of both consuls and tribunes to get anything done. In time (says Plutarch), the consul Pompey “allowed” the measure to pass—he evidently did not want to attach his own name to it—and the tribunes declined to use their veto.229 A possible case from the early 60s involving L. Quinctius requires some discussion. A novus homo, he was tr. pl. in 74 and then cut a flamboyant figure in his praetorship.230 Sallust reports that L. Lucullus tried to hold on to his great eastern command against Mithridates and Tigranes by bribing this praetor. But all the same, according to Plutarch, it was Quinctius who especially persuaded the people to send “successors” to Lucullus’ provincia and also to relieve many of his troops from service. Plutarch does not say that Quinctius actually moved those bills: he simply may have spoken persuasively in their favor, as the praetor Cicero did for the lex Manilia on Pompey’s command in 66. (Lucullus’ bribe obviously was meant to make him do the opposite.) As for the date, Plutarch’s account suggests that Quinctius was praetor either during or after the time of Lucullus’ “failure of fortune” in fall 68.231 Indeed, it may be that the bill which L. Quinctius backed so persuasively was the (tribunician) lex Gabinia of 67, which handed Bithynia and Pontus to the cos. M.’ Acilius Glabrio. (Plutarch mentions neither that Gabinian law nor the consul Acilius in the Lucullus.) Broughton implies as much, but all the same wavers merely between making Quinctius pr. 69 or 68.232 Lucullus definitely
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received the order to dismiss his troops in 67, and so I cautiously date also Quinctius’ praetorship to that year—but give him no legislation.233 The tr. pl. 63 P. Servilius Rullus in his stillborn land bill had a provision that a praetor—the first (primus) or last (postremus) elected in that year’s college—carry a lex de imperio in the Curiate Assembly for the ten members of the agrarian commission.234 Instructions to the consul who was elected first—and thus would have priority of action on entering office—were standard.235 And election to first place in a praetorian college was obviously an honor, just as last place was to be avoided.236 Was Rullus’ provision a clumsy adaptation of consular procedure? Cicero certainly regards this part of Rullus’ law (like many others of the tribune’s planks) as a perverse innovation. But his paraphrase of it is brief and very likely tendentious. So there is really no telling what Rullus was up to. Cicero in passing reveals that consuls were normally responsible for passing curiate laws, though (perhaps significantly) he does not attack the lex agraria for flouting order of precedence in the Curiate Assembly.237 It is not out of the question that Rullus’ provision on the passage of the curiate law did mention the consuls, and the praetors merely as a default. But it is conceivable that since the Xviri were to have an extraordinary grant of imperium, the promulgator of the bill came up with an extraordinary procedure. The next actual example of a praetorian rogatio comes in 62 B.C. Immediately upon entering office, the praetor (probably urbanus) C. Iulius Caesar tried to transfer the honor of rededicating the temple of Jupiter Optimus Maximus from Q. Catulus (cos. 78) to Pompey by popular vote. Caesar soon abandoned that attempt when he saw that the Optimates were ready to use force against him. But then he sought to help the tr. pl. Q. Metellus Nepos push through two other (tribunician) bills that favored Pompey. One was to allow Pompey to stand for election to the consulship in absentia, another to give him the chief command against the Catilinarians. That second bill included the detail that the pro cos. Pompey would be allowed to retain his imperium within the pomerium—which the tr. pl. M. Porcius Cato vehemently opposed. The measures led to vetoes from Metellus’ tribunician colleagues and eventually a senatus consultum ultimum and (for a time) suspension of both tribune and praetor from office.238 After Caesar’s city activities in 62 B.C., we find praetorian laws (actual or contemplated) mentioned with some regularity, indeed for four of the next six years. At the very start of 61, relates Cicero, there was talk that Pompey was going to press (sc. in the Senate) for the succession of C. Antonius (cos. 63) in his promagisterial provincia of Macedonia. At the same time, it appeared a praetor might put a motion before the People for Antonius’ recall. Perhaps that bill was merely threatened (it certainly was never passed). The (anonymous) praetor’s object will have been to dissuade the Senate from proroguing Antonius. At the time Cicero heard those rumors, the Senate had not made arrangements for the various territorial provinciae—nor would it until mid-March.239 In 60, Q. Caecilius Metellus Nepos—now praetor—passed a law that abolished customs dues in Italian ports. Dio (our only detailed source) asserts that the measure was extremely popular, “but the senators were angry at the praetor who passed it . . . and wished to strike his name from the law to inscribe another in his place,” to no avail.240 Perhaps Metellus Nepos pro-
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posed the bill without a senatus consultum. Yet what seems more likely is that there was a senatus consultum, providing that a different magistrate (but surely a praetor) bring the law to a vote, and Nepos rushed to take the credit himself. One would think that the Senate’s natural choice was P. Cornelius Lentulus Spinther, urban praetor in that year—and soon to be Nepos’ colleague as cos. 57. In 59—a year in which we do not know who had the urban jurisdiction—it was a praetor who saw to the passage of a resolution that further refined the arrangements of the lex Aurelia iudiciaria. Q. Fufius Calenus passed a law aiming (surely) to stem judicial bribery, that each of the three classes who constituted the juries in the various quaestiones were to cast their votes separately.241 In 57, a measure to restore Cicero from exile was promulgated by the pr. urb. L. Caecilius Rufus. In this, he had the support of six colleagues from his college;242 Clodius’ brother Ap. Claudius Pulcher was the odd praetor out. Indeed, Appius busied himself by holding some anti-Cicero contiones.243 L. Rufus’ measure—like some analogous tribunician bills regarding Cicero’s return—never came to a formal vote. The seven praetors and eight tribunes who backed Cicero subsumed their proposals in a major consular resolution, which the cos. P. Cornelius Lentulus Spinther brought before the Centuriate Assembly on 4 August of that year.244 Our last recorded instance of praetorian legislation for this period comes in October of the year 54 B.C. The praetor Ser. Sulpicius Galba (almost certainly not urban praetor) secretly—and quite illegally—presided in a predawn vote that allowed his old commander C. Pomptinus (pr. 63 and then pro cos. in Transalpine Gaul) to have imperium in the city to triumph, after years of waiting outside the pomerium (15.2.3). Our survey has not yielded much that is surprising. The lex Porcia of (apparently) February 101 B.C. and then all the post-Sullan praetorian measures discussed above show that a praetor can propose a law while one or both consuls are in the city. That the urban praetor continued to have precedence among praetors in bringing a rogatio before the People throughout this entire period is suggested especially by the case of C. Valerius Flaccus in (probably) 96 and L. Caecilius Rufus in 57. The number of praetorian rogationes moved by individuals who were certainly or almost certainly not in the urban jurisdiction is small: L. Aurelius Cotta in 70, and then the irregular cases of Q. Caecilius Metellus Nepos in 60 (who is said to have stolen the honor of passing a popular law from someone else) and Ser. Galba in 54. But that a praetorian legislator might hold any of the provinciae is clear. The Rullan law of 63 B.C. even wanted to choose a praetorian rogator for the Curiate Assembly on the basis of electoral order. What is interesting is that at least a few of the praetorian bills come off not so much as serious legislation, but rather as statements of personal political attitude: C. Iulius Caesar’s proposal regarding the Capitoline temple in 62 B.C. and the anonymous praetor who threatened to strip C. Antonius of his command in 61. Both these praetors moved into action immediately upon entering office; Caesar appears to have held a contio on the matter, which was no doubt at all times a common form of political expression for the city praetors, regardless of provincia.245 One also notes that some praetors (L. Quinctius in presumably 67, M. Tullius Cicero in 66, C. Iulius Caesar in 62) chose to put their main energy behind pend-
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ing tribunician bills, probably because they had a greater chance of success. But by the year 57, it appears that a praetor was capable of obnuntiating against a tribune at a plebeian legislative assembly. Such a report, if the magistrate chose not just to “watch the sky” (as this one did) but to announce an adverse omen in person to the tribune who presided over the concilium plebis, will have been binding. So, by the late Republic, praetors apparently had acquired at least in theory some degree of negative power over the main source of the state’s legislation. Cicero describes this kind of obnuntiation as a major step; one wonders how often it was employed.246 It is useful to keep all this in mind when reading the Pro Milone. Cicero devotes a fair bit of this speech to a hypothetical scenario in which P. Clodius Pulcher survives to kill the consular candidate Milo and then himself wins the praetorship for 52, with his political allies gaining the consulship. Clodius’ main weapon, says Cicero, would have been an ambitious legislative program, which the Senate would be powerless to stop. Details are sparse, except for an alleged law (found among those “already engraved at his home”) by which Clodius “would have made us over to our slaves”—indeed “made our slaves his own freedmen”— and thus destroyed the res publica. Asconius rightly understands “slaves” as libertini and takes Cicero to mean that Clodius intended to revive the common proposal to distribute freedmen in all thirty-five of the tribes. Cicero’s implication, of course, is that once Clodius had in one stroke made himself the patronus of Rome’s freedmen and packed the comitia tributa with his new clients, he was in a position to pass the (unspecified) legislation he wished. That is all we get in the Pro Milone, except Cicero adds that Sex. Cloelius, freedman of the deceased praetorian candidate, had saved the portfolio of supposed bills and had aimed to hand them over to a compliant tribune for enactment.247 That last item shows what we have already observed, that there was nothing particularly distinctive about the content of praetorian laws in themselves. In truth, Cicero’s economy of detail and strained hyperbole in describing Clodius’ hypothetical praetorship in the Pro Milone demonstrates, if anything, how little real positive power praetors had in the area of legislation.248
13
Sicily, Sardinia, and the Spains, 122–50
13.1 Pre-Sullan Sicily and Sardinia 13.1.1 Sardinia down to the Time of Sulla The picture of Sardinia for these years is reasonably clear: prolonged fighting which was serious enough to prompt some consular commands, and little concern on the part of the Senate for regular succession in the province. We have seen (9.3.3) that the cos. 126 L. Aurelius Orestes enjoyed—if that is the word—almost five years of imperium in this pestilent provincia, celebrating a triumph on 8 December 122. The next known commander for Sardinia, M. Caecilius Metellus (cos. 115), stayed almost as long, for he triumphed on 15 July 111. His brother C. Metellus Caprarius (cos. 113 for Macedonia, and succeeded by a cos. 112) apparently spent a good part of 112 and the first half of 111 outside Rome, waiting for Marcus so that they could triumph together. In the event, that is what they did—both entering the city on 15 July—though Eutropius detracts something from the glory of the occasion by noting that the news of the Cimbric invasion of Italy also arrived that day.1 We cannot tell when the Epicurean T. Albucius, the next known holder of Sardinia, drew the provincia in the praetorian sortition or how long he stayed. But his command is certain to have lasted more than one year, for Cicero says Albucius as pro praetore successfully fought with the aid of one auxiliary cohort against “petty bandits clad in skins.”2 On this basis, relates Cicero, Albucius asked the Senate for a supplicatio. To make this request, Albucius must have been acclaimed as “imperator.” He surely hoped also for a triumph to follow, as it had for his predecessors the consuls L. Orestes and M. Metellus. Yet Albucius did not gain his request, and not just because his achievements were so slim. Cicero is explicit that Albucius had offended the Senate by staging—even before his petition for the supplicatio—his own triumphlike celebration in Sardinia.3 On his return, Albucius was brought to trial (probably in 105) and, despite having some support from Sardinian witnesses, was convicted, which led to an exile in 476
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Athens. A member of his own staff (the quaestor Cn. Pompeius Strabo) had even sought to prosecute him, but was rejected in the divinatio for that trial. In the event it was C. Iulius Caesar Vopiscus who spoke, we are told, “pro Sardis”: the charge was apparently repetundae. Perhaps Albucius plundered the Sardinians specifically to meet the cost of his celebrations.4 One wonders whether he would have faced trial and condemnation if he had just plundered and not so provocatively celebrated in his province. We would expect that later commanders for Sardinia—and other provinces— will have been careful in how they commemorated their victories as a result of Albucius’ experience. As it happens, though we hear plenty about camp celebrations and the like, no commander seems to have staged a comparable “provincial triumph” after this time.5 But Albucius may not have closed the door on praetorian triumphs from Sardinia. That emerges from the case of P. Servilius Vatia (the future cos. 79 “Isauricus”), who triumphed pro praetore from an unknown provincia on 21 October 88.6 Sardinia seems quite likely to have been his provincia, by process of elimination. Badian suggests as the date of Servilius’ praetorship a year perhaps as early as 92 or even 93, and so upwards of four years in Sardinia. That type of repeated prorogation would be not at all unusual for this low-ranking provincia, and might be positively expected in the pressured years of the Social War.7
13.1.2 Sicily 122–105 “From this province many have been condemned who were praetors there: two alone have been acquitted.” So Cicero claims of Sicily in his Verrines of 70 B.C.8 Unfortunately, from the pre-Sullan period there is not much evidence on those trials, nor on the commanders who held the provincia except for the period of the Second Slave War (ca. 104–99). We have precisely three possible items having to do with the praetors who governed Sicily in the years 122–105. C. Porcius Cato (the future cos. 114) as praetor had his baggage retained by the people of Messana. C. Cato must have harmed the town in some way; perhaps he stole something that the Mamertines hoped to find and recover. But we do not hear of prosecution in Rome for his acts in Sicily. M. Papirius Carbo—brother of the coss. 120 and 113—was less lucky. He was condemned for (apparently) repetundae or peculatus after service in Sicily. This Carbo was likely—but not certain—to have been praetor; if so, probably sometime ca. 114.9 And when Sicily served as a staging area for the war against Jugurtha in 111 and (no doubt) subsequent years, praetors for Sicily must have played a part. But firm details are virtually lacking.10
13.1.3 The Second Sicilian Slave War The Second Slave War—which was to involve freedmen as well as slaves—broke out in Sicily when the Romans had scarcely vanquished Jugurtha and were scrambling to meet the threat from the Cimbri in the north. As it happened, the Senate had no legions to send to Sicily—or elsewhere, save for the Gallic front.11 There was a shortage of capable generals, too: three separate praetorian commanders had
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to fight and fail against the slaves before the Senate could manage to declare Sicily a consular provincia for 101. The first of those praetorian commanders was P. Licinius Nerva, praetor or pro praetore for Sicily in what must be 104. Diodorus seems our best source on the background to the rebellion.12 According to this author, a general senatus consultum had charged governors in the provinces to investigate cases of wrongful enslavement of citizens from allied states. Nerva set up a tribunal at Syracuse to hear claims, but pressure from local elites made him abandon his project. (Dio tells a different story, in which Nerva initiated and then aborted an investigation into cruelty by masters against their slaves.) In Diodorus’ account, the slaves who approached or had hoped to approach the praetor at Syracuse gathered at the sanctuary of the Palici (near Menaeum in the interior, famous as a spot for oath-taking) and decided on revolt. Here one remembers the divine authority that Demeter of Henna provided for the rebel slaves of the 130s (6.3.1); the Palici were to fulfill a corresponding purpose for the slaves in the course of this later war.13 The Romans evidently had taken some standing precautions as a result of their experience in the First Slave War. By chance we hear that Henna had a garrison of six hundred troops at the start of the conflict; other potential trouble spots may have been similarly provisioned. At any rate, Nerva had enough wherewithal to score an initial success against the slaves. But before long he managed to lose “most of his soldiers,” even previous to a major defeat before Morgantina at the hands of the slave leader Salvius. When western Sicily saw a separate slave revolt under a certain Athenion, Diodorus relates that the urban population of Sicily found itself confined behind its city walls—themselves none too secure, thanks to dangers from slaves within—and the Roman system of justice in the province ground to a halt. Soon Salvius—who was now calling himself “Tryphon”—obtained the cooperation of Athenion and his forces. Salvius even started building (surely in winter 104/103) a palace with forum at Triocala (probably near Agrigentum), forging for himself an identity that combined the trappings of a Hellenistic king with those of a Roman holder of imperium—lictors included.14 The ineffective Nerva found himself superseded in 103. His successor was L. Licinius Lucullus, a city praetor of the previous year who had been effective in quashing a slave revolt at Capua (12.4.1). Lucullus arrived in Sicily with a force of (apparently) sixteen thousand men, mostly Roman and Italians, with a sprinkling of foreign auxilia. He scored a major success against the slaves before the town of Scirthaea, reportedly killing half of the rebel force of forty thousand (but not their two leaders) and deeply denting their morale. But Lucullus failed in his attempt to capture the palace complex at Triocala.15 We do not know precisely what prompted the Senate to create this ex praetura command for Sicily, since the arrangements for none of the other standing territorial provinciae for 103 are known. It does seem as if the Senate was unwilling to entrust the war to one of the new praetors of the year, and so it chose a modestly experienced commander to take up Sicily extra sortem16 instead. This was in essence a compromise that spared Marius’ consular colleague L. Aurelius Orestes from having to serve in this theater during the Cimbric emergency. (As it happens, Orestes was to die in office before the elections for 102.)17
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Lucullus’ command against the Sicilian slaves lasted only this single year. Lucullus’ failure to take Triocola apparently surprised the Senate: we are told that it gave rise to suspicions of incompetence or bribery. (Florus asserts he even had his camp captured by the slaves.) There was also a perception, says Diodorus, that Lucullus was trying to expand the war. What is certain is that Lucullus was hoping to be prorogued for 102 so as to get full credit for actually finishing the fighting. When he learned that a C. Servilius—evidently a mere praetor of 102—was crossing the strait to supersede him, Lucullus disbanded his army and burned his own camp and military equipment. The object was specifically to deprive Servilius of the resources needed for quashing the rebellion.18 The spiteful ploy had its effect. Though Salvius “Tryphon” died in the year 102, Athenion succeeded to his command and started storming cities in Sicily and inflicting actual defeats on the Romans. The slaves also captured the praetor Servilius’ camp. The upshot was that Servilius achieved nothing and the Senate—apparently buoyed by Marius’ victory over the Cimbri at Aquae Sextiae that year—finally took the step of declaring Sicily consular, for M.’ Aquillius in 101.19 Aquillius found the state of agriculture in this grain-producing provincia in such bad shape that he had to lend grain to the various Sicilian cities. But in his first year of fighting, Aquillius scored a major victory in which he killed Athenion. Like Perperna at Henna in 132 (6.3.1), he also used a food shortage to advantage by starving out what pockets of rebel slaves remained. There were still major battles in 100, but Sicily was calm enough for veteran settlements to be conceivable for the island. Aquillius returned to Rome in 99 to celebrate an ovatio (perhaps after being turned down for a full triumph).20 He would be the last consular commander to hold Sicily as a provincia in the period down to 49 B.C. The Second Slave War gave Rome a nasty scare at a time when it was trying to contain an even more dangerous enemy on Italy’s northern front. As it happens, the three commanders who followed P. Licinius Nerva in Sicily were all prosecuted, and the two praetors among them were found guilty. (Here at last is some light on Cicero’s assertion that by 70, “many” Sicilian praetors had been condemned.) Trials in which a series of commanders from one provincia faced prosecution were very much a phenomenon of this general era.21 But this series marks somewhat of a departure, since each of the Sicilian generals was tried in a permanent quaestio. This convenient way to attack military commanders evidently had come into its own. L. Lucullus, after his return, was successfully prosecuted for (apparently) repetundae by another Servilius, a relative of his successor who held an augurate. At that trial, even Lucullus’ brother-in-law Q. Caecilius Metellus Numidicus (cos. 109, ces. 102) refused to speak on his behalf. But Numidicus’ stated reason was not Lucullus’ conduct in the war or on supersession, but his avoidance of a iudicium at some previous time (10.4.2). Diodorus does, however, suggest that the failure at Triocala was what helped secure Lucullus’ condemnation and exile.22 There was clearly general dissatisfaction with the conduct of the war, for next the praetor C. Servilius himself was tried and condemned after his own supersession. One of his own quaestors even tried to prosecute him, but was rejected in the divinatio.23 The charge is unknown, but we may guess it was repetundae.24 And finally, in the year
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97, Aquillius—though he had ended the rebellion—only narrowly escaped condemnation and exile on a technical charge of repetundae. Cicero tells us that the prosecutor, L. Fufius, was careful in preparing his case, implying that he brought it on behalf of the Sicilian provincials; Aquillius owed his acquittal to an emotional defense and the jurors’ respect for his war record. Aquillius’ trial saw a grab bag of accusations, including many allegations of avaritia.25 One suspects that that particular charge—which quite likely arose at least partly from his loan of grain to the Sicilian cities—probably had some factual basis, to judge from his subsequent behavior as a legatus in Asia at the end of this decade. 13.1.4 Sicily between the Slave War and Sulla Conditions after the war remained outwardly stable for some time, thanks especially, so it appears, to the Sicilian praetors’ harsh enforcement of edictal provisions banning slaves from carrying weapons. That emerges especially from an anecdote widely told of the praetor L. Domitius Ahenobarbus (the future cos. 94), who crucified a shepherd merely for spearing a great boar.26 That praetor and his immediate successors may have been just as severe in their other dealings with the Sicilians. One notes that in 95, when the citizens of Halaesa sought to resolve a controversy on how to choose their senators, they turned not to the Sicilian commander who was on the spot—as we might expect—but directly to the Roman Senate. In the event, it was the pr. repetundis C. Claudius Pulcher with a consilium of members of the Claudii Marcelli (patrons of Sicily since the Second Punic War) who saw to the matter and gave them new regulations.27 By the mid-90s when the provincia fell to the praetor L. Sempronius Asellio, it is said by Diodorus to have been “ruined.”28 But Asellio ambitiously tried to do for Sicily what Q. Mucius Scaevola had done for the province of Asia (14.5.4), with some success. He chose as the chief members of his consilium his friend (and legatus) C. Longus as well as a Syracusan eques “Publius”—the latter man no doubt to serve as an expert on local conditions—and then ostentatiously arranged for these men to stay near him in neighboring houses as he worked out his provincial edict. Normal practice seems to have been for a governor to arrive in his provincia with his edict already prepared,29 perhaps because one relied on the urban edicts as a model.30 The really important innovation of Scaevola may have been that he was the first to draft his edict with the specific needs of provincia in mind. Asellio obviously was trying to do the same. Of his specific measures Diodorus tells us little, except that he “banished sycophancy from the forum” and, breaking with precedent, appointed himself the tutor of children and women who needed a guardian. (What were they supposed to do when he left?) He also conducted his own investigations, which Diodorus says was unusual. It may well have been: Cicero, when commander in Cilicia, could readily urge another governor to investigate various problems in person, but did not see the need to do it himself.31 Cn. Domitius Ahenobarbus and L. Sempronius Asellio are the only praetors of the 90s specifically attested for Sicily before the period of the Social War. Neither can be firmly dated, and we are in the dark how long each had to stay in the provincia before finding a successor. However, in the years of the Social and Civil Wars we
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can be reasonably sure that Sicily had no more than two or three commanders. Only two are known: C. Norbanus (the future cos. 83) and M. Perperna. Cicero says that C. Norbanus (who apparently held the quaestorship in 101) was praetor in Sicily “when all Italy was ablaze with the war of the allies,” and so certainly by 90 and perhaps even already a year or two earlier. One of his duties evidently was to feed and outfit the Roman armies that were fighting the Italians as well as to supply Rome itself with grain. Norbanus seems to have been effective in this chore, as well as in the crucial task of preventing another slave uprising on the island. (Cicero strongly implies that there was a danger.) There were other challenges too. In the year 88—interestingly enough, in view of his future career— Norbanus or at least his western quaestor took aggressive measures to keep Marius and Marians off the island. And in 87, Diodorus reports a detachment of Italian rebel forces invested Rhegium, with an eye toward crossing the strait and taking control of the rich island province; Norbanus had to cross to Italy to forestall the attempt and rescue the people of Rhegium. To judge from what was happening in other provinciae, it is conceivable Norbanus had to stay put in Sicily for a few years beyond 87. One possible opportunity for his return was when the coss. 85 Cinna and Carbo recalled ships from Sicily to guard the coast of Italy against Sulla’s impending invasion.32 But Norbanus’ own consulship of 83 provides the only secure terminus. M. Perperna Veiento is quite likely to have directly succeeded C. Norbanus in Sicily in, say, 85 or 84. The Marian government clearly had handpicked this commander, the grandson of a hero of the First Slave War. He receives positive attestation first for 82, when we are told Sulla tried to win him over from the Marian side; Perperna in turn threatened that he would cross out of his provincia to rescue the younger Marius at Praeneste.33 It is just possible, however, that a different man succeeded Norbanus and Perperna succeeded him, taking up the command only for 82. The example of Sardinia shows that even in the crisis of that year the Marian government might send praetors out to govern overseas provinciae: it was apparently as pr. 82 that Q. Antonius Balbus (the only commander attested for that provincia in this era) was driven from the island by Sulla’s legatus L. Marcius Philippus (the former cos. 91) and killed.34 Perperna apparently gave little thought to the routine administration of Sicily. His rule is described as harsh, though he seems to have treated Messana and Thermae well (both towns remained pro-Marian even after Perperna’s departure from the island). His chief concern was keeping a firm grip on Sicily for his faction and providing a safe haven there for Marians such as Cn. Papirius Carbo (cos. III 82) once they had fled Italy in defeat. Naturally, Sulla after his victory at the Colline Gate in late 82 made Perperna one of his principal targets. After posting his proscription list, he commissioned Pompey to fight him cum imperio “with a large force.” For all his previous bluster, Perperna quickly abandoned the provincia. (He would resurface again only in 77, as a Lepidan and then Sertorian [13.4.3].) So Pompey was able to take Sicily—and with it, Carbo and his fleet—without actual fighting.35 At this point, “Sicily had been without law courts for a long time.”36 Indeed, the nature of Pompey’s reported activities in the provincia make it clear that
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Perperna (perhaps also Norbanus) had culpably deferred a good deal of basic administration. The result was that the young Pompey had to act as de facto praetor for the island. Diodorus reports that the Sicilians gave high marks to Pompey for his settlement of public disputes and matters of private contract. Cicero cites Pompey in a list of Sicilian governors who fairly obtained a high price in the auction of grain tithes. Plutarch praises Pompey’s kind treatment of the Sicilian cities as well as the discipline of his soldiers and staff, whom he effectively kept from plundering on their journeys—but also reports how Pompey dispensed with legal fine points at the independent-minded federated city of Messana. Confirmation of Pompey’s high reputation in the provincia comes years later, in 71 B.C.: when the Sicilians wanted to complain in Rome of the governor Verres, they decided to send envoys to their old patrons the Claudii Marcelli then Pompey (at the time cos. des.), “and other necessarii of the province.” The punishment of the Marians and their supporters had to be Pompey’s principal concern. We hear of summary executions of Sulla’s Roman political enemies. But Pompey had the consul Carbo brought before his tribunal, and gave the order for his death in a quasi-legal setting.38 There were criminal trials of individual Sicilians, too. Plutarch tells us that Sthenius of Thermae managed to deflect Pompey from punishing his town by taking personal responsibility for its past political attitude. By chance, Cicero reports that Sthenius stood trial before Pompey on grounds of treason, but was acquitted.39 There must have been other trials of this sort that we do not hear about. It was while he was in the midst of such activities that Pompey received a letter from Sulla (now dictator) and a senatus consultum ordering him to proceed to Africa against the Marian refugee Cn. Domitius. Pompey left his sister’s husband (C.) Memmius as a[rcwn of Sicily—he will not have been able to delegate him imperium—and sailed at once to Utica.40 Now, Sardinia at this time (late 82 or early 81) will also have been held by a legate, albeit one of consular status (i.e., L. Marcius Philippus). These provinciae must have been genuinely settled so as not to need proper commanders. Yet the danger to Sicily from its slaves in this disturbed era remained very real, as can be seen from the attempts by fugitives to cross over from Italy to Sicily to raise revolt in 87 and then again in 72.41
13.2 Sicily and Sardinia in the Post-Sullan Period 13.2.1 Cicero’s Verrines as a Source The principal and in many cases sole source for the Sicilian praetors of the decade 80–70 is Cicero’s Verrines. This speech offers a satisfying amount of information on most individual governors of this era, and a mine of detail on C. Verres (pr. 74, promagistrate 73–71) and to a lesser extent L. Caecilius Metellus (pr. 71, promagistrate 70). Yet one must of course always be alert to Cicero’s rhetorical purpose in his depiction of each of these governors. Cicero’s object, simply put, was to secure Verres’ condemnation; he introduces other praetors of this period mainly to offer parallels and contrasts to Verres’ administration. Against Verres himself, Cicero’s arguments seem overwhelming in their cumulative effect.
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But there are some visible weaknesses. Much of the case is circumstantial, as Cicero admits both explicitly and implicitly. For instance, a tremendous amount hinges on Verres’ relationship to his subordinates. Verres, in his defense, evidently sought to establish that if there was any wrongdoing, it was the fault of his underlings, and that he could not be held responsible for their actions. Cicero clearly considers this a miserable defense for a praetor. In the Verrines, Cicero seeks to prove that Verres fully knew what his subordinates were up to—even minor functionaries connected with the collection of grain42—and had vicarious responsibility for all the staff under his command. It was a recognized principle (indeed, by 100 B.C., a law) that a commander was liable for the public actions of his comites.43 That must be one reason why in the Verrines Cicero is so eager to show that a wide assortment of knaves were members of Verres’ official entourage, and as such his judicial consilia.44 There is much more. Throughout the speech, Cicero tries to prove that any rascals found in the field during Verres’ government were working as the praetor’s “go-betweens.” And any legal proceedings those underlings faced are prejudicial, Cicero argues, to Verres’ own case. Moreover, Verres’ innovations, whether in the provincial edict or in general administration, are deemed suspicious in themselves. So are judicial reversals, whether of a predecessor or subordinate. The composition of his judicial consilia offers another glimpse into his character. His (or his underlings’) failure to keep or preserve records is a sign of corruption. That Verres created personal enemies in the province is still another indication of criminality. The result of all this is that at many points Cicero’s portrait of the praetor appoaches caricature. There is just one grudging positive admission that not all of Sicily’s grievances in this period were a result of Verres’ presence.45 13.2.2 Commanders in Sicily down to Verres The first praetorian commander for Sicily under Sulla’s new government was M. Aemilius Lepidus, the future cos. 78 (who caused so much trouble for Rome in that year and in 77). Lepidus had his own old family ties to the provincia: two M. Aemilii Lepidi—father and son—were praetors for Sicily in 218 and 191 respectively. As cos. 78, this M. Aemilius Lepidus must have been praetor by 81. There is no record of activities in a city praetorian provincia for this man. But the fact that his command is Sicily is said to have lasted only one year before C. Marcellus (surely pr. 80) came to succeed him46 suggests that Lepidus was pr. 81 and held Sicily ex praetura in 80, as we would expect under the Sullan system. That meant Pompey’s delegatee Memmius spent all of 81 (and probably a bit of 80) in the provincia. Lepidus is said by Cicero to have been a harsh governor, though he did not exploit the province as much as he might have.47 On his return (i.e., in 79) he was brought to trial by two Caecilii Metelli, Nepos and Celer (future coss. 60 and 57), but the case was dropped after some initial proceedings: the personal standing (gratia) of Aemilius among the People is said to have been too strong.48 By the time of the Verrines, Lepidus’ status as a villain—and a dead one at that—allowed Cicero to sketch as dark a picture as he wanted about his tenure as praetor in Sicily. Despite his “ruinous” command, we see that M. Lepidus had enough popular sup-
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port to escape prosecution, and he was elected consul for 78. At the least, as a praetorian governor he must have been effective in getting grain to Rome. Cicero specifically says C. Marcellus was pro consule in Sicily, succeeding ex praetura M. Aemilius Lepidus for 79 (and very probably 78).49 It is a wonderful instance of the “sors opportuna” that a member of the Claudii Marcelli—the most established Roman patrons of Sicily—gets the provincia precisely for this year, since the province is said to have needed “reviving” after Lepidus’ tenure, short as it was.50 At this point Sulla was still very much in charge of consular elections,51 and presumably could influence lower elections and arrangements for provinciae as well. So we can legitimately suspect some manipulation of the lot in this case. The title “pro consule” deserves comment. After Sulla, it was the expected (11.1.5) rank for governors of each of the territorial provinces. Yet Cicero never uses it of C. Verres.52 There is no apparent reason why all the post-Sullan governors of Sicily should not have had the same rank. The explanation is not constitutional, but rhetorical: C. Claudius Marcellus was a member of the senatorial jury in Verres’ trial, and, as such, needed flattery.53 This status as juror may at least partly inform also Cicero’s depiction of Claudius Marcellus as a good governor. For all his “reviving” of the province, this man as praetor also had to exact an emergency tithe—perhaps for the war against Sertorius in Spain. But he did so fairly, we are told.54 Marcellus probably had to stay in the province for two years: no one is known to have been sent ex praetura to Sicily for 78. L. Cornelius Sisenna (the historian and pr. urb. et per. 78) quite probably drew Sicily as his promagisterial province for 77. An inscription (now long lost) recorded honors from Halaesa to a man who may be L. Sisenna.55 Good circumstantial support for a Sicilian governorship comes from Cicero’s statement that Sthenius of Thermae played host to the series Cn. Pompeius (pro pr. 82), C. Marcellus (pr. 80), L. Sisenna, and C. Verres (pr. 74). And Sisenna is said to have been a friend of the eques Cn. Calidius, who in his home in Sicily entertained “many holders of potestas and imperium.”56 Sisenna seems to have been one of Verres’ supporters,57 which may explain why Cicero chooses to say nothing about his actual command. Sisenna can have spent no more than one year in the provincia. Sex. Peducaeus (pr. 77) is attested there for 76 and 75, with Cicero joining him as quaestor in the second of these years. This man, says Cicero, had the reputation as the most honest Sicilian praetor up to that time (“innocentissimam . . . praeturam”).58 Now, in assessing this statement one must allow for the fact he was Cicero’s commanding officer59—but also for the possibility that he positively required some defending. Cicero tells how Verres had prohibited the Syracusan Senate from passing a decree of support for Peducaeus when they heard “some trouble (negotium) had been stirred up for him.” The decree was ratified only after Verres’ departure in the year 70, when Cicero says Peducaeus no longer needed it.60 The mention of a “negotium” (a word which Cicero quite often uses of a legal case),61 as well as Cicero’s emphasis on Peducaeus and his praetorship as “innocentissimus” (in the superlative, regularly found in sympathetic descriptions of defendants),62 suggests that at some point in the period 73–71 Peducaeus faced possible or actual prosecution. One principal complaint will have been in connection with grain matters. Peducaeus held Sicily for a biennium: in 76 we are told that
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grain was cheap, in 75 it was extremely expensive (“in summa caritate”). The grain shortage of the year 75 featured prominently in Sallust’s Histories.63 Concern extended also to other agricultural products. Peducaeus, however, used the grain shortage to his personal financial advantage: Cicero clearly admits it, and then takes pains to demonstrate that there might be a respectable precedent for this type of profiteering.64 Precedent or not, Peducaeus’ successor C. Licinius Sacerdos (pr. 75, promagistrate in Sicily for 74) eschewed this particular path to self-enrichment. Though the first thing Sacerdos did on arrival in his province was to order grain for his cella, the manner of his requisitions for maintenance is said to have been scrupulously fair. When the Sicilian communities asked to pay Sacerdos money instead of grain—the harvest for the year 74 had not yet been reaped—he “commuted” their payments at a rate well under the market price. Yet the good fortune of the province was to prove shortlived. Later that year, M. Antonius (pr. 74 and the future Creticus) spent one month in Sicily as part of his special pirate command. Antonius grossly distorted Sacerdos’ precedent, says Cicero, by assessing Sicilian communities for cash at the governor’s rate in the post-harvest season, “when they would have given him grain for nothing.” And Verres (who succeeded Sacerdos in 73) would in turn cite Antonius as a precedent, we are told, when seeking to justify his own still more open abuses.65 Henceforth, the real danger, explains Cicero in 70, was that Verres might serve as a precedent for others.66 Cicero terms Sacerdos (like Peducaeus) “innocentissimus,”67 but does not give us too many details of other aspects of his administration. The most substantial thing we find is a legal decision by Sacerdos in a capital case that Verres overturned, despite the fact that the two governors had continuity in the local members of their judicial consilia.68 Verres also apparently reversed a ruling in a trial for iniuria from Sacerdos’ year involving one P. Naevius Turpio as defendant. But that was not as consequential as that capital case, especially since the decision was probably made by a subordinate of Sacerdos’, not the praetor himself.69 If Cicero is accurate on Sacerdos’ method of requisitioning grain (see above) and his general noninterference in civil matters,70 it does suggest that he cared how he was viewed in his provincia. Yet that is about as far as one can go with the facts given. Verres, on the other hand, in his promagistracy clearly looked toward Rome. It seems to have been a special point of pride for Verres that he sold the grain tithes at a higher price than his predecessor, and was effective in getting cash profits as well as actual grain to the city of Rome in all three years of his promagistracy, while a slave war was raging for most of that time in Italy, and major campaigns were under way in both west (against Sertorius) and east (versus Mithridates). Verres’ aim, we are told, was to win the esteem of the urban Plebs—and its support for a consular bid.71 Cicero has much to say on the irresponsibility of this mode of popularity seeking. He also claims that in one district alone Verres stole as much money and twice as much grain as he sent on to Rome.72 Cicero’s audience in the Verrines may have needed some convincing—since Verres evidently had delivered the goods. There was obviously deep anxiety at Rome about the grain supply down into 73, when the consuls M. Terentius Varro Lucullus and C. Cassius Longinus passed their lex frumentaria. (Sulla had ended
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such distributions.)73 By chance, we hear that in the year 70, Sosippus of Agrigentum had a large audience (including the consul Pompey) when he gave a speech in Rome on the seemingly unpromising subject of the aestimatio of Sicilian grain.74 Given this charged atmosphere, it is conceivable that Verres, if he had been even moderately successful in denting the grain supply problem, might have been elected consul on his return from Sicily. Cicero says the pr. 81 M. Aemilius Lepidus “ruined” his provincia; but he knew perfectly well that Lepidus still went on to win the consulship in the minimum possible interval. So the Verrines had to portray Verres as substantially worse than Lepidus for Rome’s food supply.75 Had Verres escaped condemnation, his prospects would seem excellent for 68, thanks in particular to the support of Hortensius, who defended Verres in his repetundae trial as cos. des. 69. We do not know precisely when Sacerdos left the provincia, but he was back in Rome certainly by mid-October 73, having spent just one year in Sicily.76 It is likely that Sacerdos left before the pr urb. 74 C. Verres’ arrival, just as Verres (as we shall see below) left before his own successor’s arrival. It was planned that Verres have a similar term as that of Sacerdos, with supersession after one year, in early 72.77 But his expected successor Q. Arrius (pr. 73) was reassigned—evidently quite soon before he was due to depart for Sicily—to the war against Spartacus. Arrius never made it to the island (11.8.7); Verres was to spend not just 72 but also 71 in Sicily, a total of three years in the provincia.78
13.2.3 The Chronology of Verres’ Command Cicero boasts that he can offer a detailed chronology of Verres’ whole career.79 Yet from the Verrines themselves it is difficult to get even a basic sense of the timeline of Verres’ Sicilian command, and the most comprehensive study of that problem to date is unsatisfactory in some major respects.80 The general effect Cicero seeks to create is one of utter consistency in Verres’ character. Unlike other governors, Cicero asserts, Verres was not corrupted by his province—he came to Sicily that way.81 It is not quite possible for us to trace development in Verres’ extended promagistracy, since most of the material Cicero adduces in his attack is shorn of chronological indicators. But we do get just enough to be able to piece together some counterarguments to Cicero’s polemical tour de force. For Cicero, the story starts in 74, right after Verres drew Sicily as his ex praetura province. It was then, says Cicero, that Verres started developing his designs on the provincia. That included earmarking the legal cases he would take up, since he had the expectation of just a one-year command.82 Elsewhere Cicero remarks that he had “budgeted the three years of his praetorship”—the first year for his own gain, the second for his (inevitably necessary) legal defense team, and the third (“the richest year”) for the jurors who would hear his case83—but that is blatantly tendentious, and no doubt meant to be at least partly humorous. Verres’ departure for Sicily must have been early in 73,84 though we get no particulars of the chronology. What Cicero is eager to emphasize is that Verres, after his departure, vitiated his military auspicia by returning—repeatedly—back across
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the pomerium to make nocturnal visits to his mistress Chelidon. The allegation in itself implies that Verres, in making his defense, set great store by his military exploits in his provincia and on his return home.86 Cicero elsewhere confirms it.87 To 73 belongs first of all Verres’ alleged interference in the estate of Dio of Halaesa, whose will he had heard about when he was still “ad urbem” (that is, when he was just departing from Rome).88 Another event to be placed in early 73 is Verres’ attempt to steal a famous statue of Diana at Segesta.89 So it appears he did get to the western portion of the island quite early in his command. At some point that same year, Verres is said to have allowed his first in absentia capital case to be tried. The victim was one Diodorus of the island of Melita; Verres coveted some cups that man owned.90 The case is of symbolic importance, since Melita does represent very much the furthest reach of the province. Cicero also says that the farmers of Sicily were already hurting in Verres’ first year.91 Later in 73 is the matter of Heraclius, an elderly native of Syracuse with “no patrons other than the Marcelli,” who came into a large inheritance that fell into dispute. It is said to have been the only Syracusan case personally tried by Verres.92 The allegation that he delegated the rest of his legal work there to a quaestor is in itself meant to be damning, since it was obviously a perverse distortion of normal practice: Syracuse, after all, was the most important city in the provincia. “Soon after” the affair of Heraclius—and so in late 73 or early 72—came that of Epicrates of Bidis (near Syracuse), which involved another inheritance claim.93 When Verres’ first year came to its end, Cicero says that all of his staff decamped except for the legatus P. Tadius.94 We do not know who replaced them, since no other ranking subordinate is attested for the next year.95 In fact, for 72 we get little in the way of dated items except for a few court cases. Cicero says that in that year, Verres himself heard an inheritance dispute (we are not told where) involving two brothers of Agyrium.96 By midway in that year, he certainly had visited Panhormus, on the northern coast of the western portion of the island. There he jailed one Apollonius for allegedly having allowed a slave conspiracy; the man was to spend eighteen months in prison. Verres never paid any heed to public entreaties on behalf of this prisoner, though he is said to have visited the town several times in the period.97 The statement that Verres made multiple trips to Panhormus in 72 and 71 is in fact an interesting slip on Cicero’s part, since elsewhere he portrays Verres as quite idle in general.98 Verres spent his winters at Hiero’s regia in Syracuse; in spring, he traveled the provincia, but in a litter “like the kings of Bithynia”; during the summer, he set up camp at Syracuse and focused on adulterous liasons when he should have been touring the provincia, administering law and keeping Sicily’s shores free of pirates. In the Verrines, Cicero provides just enough details of Verres’ movements in the provincia to make his specific charges of criminality credible without undercutting this (obviously exaggerated) portrayal of sloth (see Additional Note XIV). The only other case definitely to be assigned to the year 72 was the prosecution of the wealthy and well-connected Sthenius of Thermae by one of his fellow citizens: Cicero implies that affair marked a real turning point in Verres’ (material) fortunes.99 Under the lex Rupilia, Sthenius was entitled to a trial under the laws of Thermae. Yet, contrary to the provisions of his own edict, Verres pronounced that
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he personally would investigate the charge. So Sthenius fled to Rome, running the risk of sailing in “winter”—to be precise, October of 72. Sthenius was adjudged guilty of the forgery charge, and on 1 December, Verres pronounced Sthenius guilty in absentia of a capital crime as well.100 Cicero says that the Senate applied substantial pressure on Verres to let up in this case,101 but apparently there was not enough to generate a specific senatus consultum on Sthenius or still less Verres’ supersession (for which he was now quite due). Besides some grain issues,102 there are no additional items that one can firmly place in this year. Though we have seen that Cicero explains the factors behind Verres’ first prorogation (in 73 for 72), he conspicuously omits to mention how the Senate came to its decision to extend his command also for 71. (Given Spartacus’ war it probably had no choice.) However, it is this final year in the provincia that receives the bulk of datable material. Here there is just one (possible) legal case, that of a certain P. Gavius of Consa, who escaped from imprisonment in the quarries of Syracuse only to divulge foolishly at Messana—which was friendly to Verres—his plan to proceed to Rome to anticipate the governor’s return. But for this, the date of 71, though likely, is not positively required.103 For that year, however, it is secure that his subordinates P. Caesetius and P. Tadius captured a pirate ship, when Verres himself was in his so-called summer headquarters at Syracuse.104 In 71, Verres also suspended the traditional quinquennial elections in each of the sixty-five recognized Sicilian civitates for two local censores. The praetor had introduced a system of direct appointment by himself in its stead, which led (we are told) to unsatisfactory censors and a census to match.105 It is part of a series of Verres’ administrative “reforms”—at least one other of which also dates to this final year106—that Cicero attacks. Now, each of Verres’ new 130 censors allegedly was asked to contribute—as an ordo—toward a statue of the praetor costing 156,000 sesterces. This same year, the farmers of Sicily also had to contribute to the cost of some gilded equestrian statues of Verres to be placed in Rome. The praetor was evidently on a drive to collect honorific statues in this year; Cicero asserts that Verres thought they would help shield him against prosecution on his return.107 The interpretation Cicero offers may be true, but it is not inevitable:108 Verres may also have thought those statues, as well as other related measures109 useful for a future consular bid. The emergency grain edicts he is said to have issued in 71 (aiming for shipment by 1 August) certainly seem to have had that purpose in mind, though again Cicero puts them in the worst possible light.110 Cicero alleges that in 71, Verres did not care in what state he left agriculture on the island.111 A series of detailed (but sometimes contradictory) arguments with examples cited from throughout the provincia for this year are offered to lend substance to this charge.112 And in this year, Cicero emphasizes that Verres gave his low-level subordinates particularly free rein.113 The various ways Verres is said to have profited from Sicilian grain—both tithed and requisitioned—are too complex for exposition here.114 One crucial aspect for Verres’ exploitation of the tithe was his collusion with the decumani, which Cicero says was “an open secret” that led to two sponsiones on the topic.115 In general, the activities of Verres’ alleged satellites and cronies in grain matters constitute a good portion of Cicero’s case against the praetor.116
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It was the resulting agricultural crisis, Cicero asserts, that drove Sicilian communities and negotiatores alike to send deputations of complaint—despite possible retaliation by Verres—to Sicily’s foremost patrons in Rome as well as the consuls of 71. One demand evidently was that L. Metellus (pr. 71) succeed to the Sicilian command as soon as possible.117 Cicero says that Metellus was the first governor ever, while still in Rome, to write a letter to the Sicilian communities to plough and sow their land; in the same letter (apparently), he promised he would comply with the lex Hieronica.118 Verres evidently had claimed to have prevented slaves from attacking Sicily, and to have quashed any incipient revolt in the provincia. Cicero himself implies that there was a very real fear of a slave war in Sicily during the crisis years 73–71. Yet one notes that Cicero has very little to say about the most serious event in this theater, the fierce fighting around Rhegium that spilled onto eastern Sicily in 71. Cicero does mention that Crassus (no date given, but surely in early 71) had to break down a pontoon bridge by which the slaves had aimed to cross to Messana, and faults Verres for taking inadequate precautions on the Sicilian side.119 Yet a fragment from Sallust’s Histories shows that Verres was not totally negligent in his defense of the island.120 Furthermore, Plutarch for 71 tells also how Spartacus in making an attempt to cross to Sicily came close to landing two thousand men—not a small force—on the island, in a deliberate attempt to resuscitate the embers that still glowed from the second Slave War. The plan might have been realized, Plutarch implies, had not the pirates who had agreed to transport the slaves across the strait cheated Spartacus and sailed off.121 Cicero is silent on this incident. In truth, the Roman Senate must have been aware of the danger to Sicily when the slave war in Italy moved to the south in late 72. It stands to reason that Verres had some military competence in order to be prorogued for the year 71. Cicero instead wants to make out that Verres exacerbated the slave crisis. For instance, at Lilybaeum, Verres is said to have investigated with a consilium—a rare instance of its proper use in the Verrines—a conspiracy among slaves belonging to one Leonides of Triocala. Verres, on the advice of his consilium, personally pronounced the slaves guilty, and condemned them to crucifixion—only later to be bribed to release them from the cross.122 Cicero says he showed the same susceptibility to bribery when he learned of slave conspiracies elsewhere. But alternately, Verres would frame slaves so as to squeeze their masters for money.123 The charge that a praetor was open to bribery by slave masters is paralleled earlier in this period, in Diodorus’ description of the buildup to the second Sicilian Slave War.124 Cicero’s description of how Verres handled the affair of Triocala—which, of course, was the site of Athenion’s palace in that rebellion (13.1.3)—is a not-so-subtle attempt to evoke the terror of those times. Verres must also have personally taken some military action against pirates during his three years in Sicily, though Cicero utterly denies it.125 The one military encounter of this type that Cicero does mention is how pirates (very likely in the year 71) defeated a ragtag Sicilian allied fleet and then sailed with four ships into the harbor of Syracuse and back out again. More must have happened, since Cicero reports—in a quite different portion of the Verrines—that Verres gave out military decorations to three Romans and several Sicilians for action against pirates in the harbor. The epilogue was that Verres, after
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sham legal proceedings, took savage reprisals on the Sicilian naval commanders he held responsible.126 There may have been a factual stratum to the story of the trial: Cicero says that two captains survived and were present in Rome to testify against Verres. But Cicero’s tale of the raid on Syracuse certainly seems to suppress some key facts. Orosius also alludes to this incident, yet he speaks of the defeat of an actual Roman fleet, which enabled the archpirate Pyrganio (the name is not found in the Verrines) to take the harbor of Syracuse. Pyrganio, says Orosius, then terrorized the island at large, and remained active after Verres’ departure in 70 (providing additional confirmation for 71 as the date of the pirate raid on Syracuse).127 A comparison of these two accounts, combined with Cicero’s offhand notice that some individuals were decorated for fighting in the harbor raid, certainly suggests that Cicero in general sought to downplay the seriousness of this incident and the extent of Roman (as opposed to Sicilian) involvement. If it was Verres who commanded the fleet that met the pirates in that raid (as certainly seems possible), that would run counter to Cicero’s frequent assertion that the praetor had completely abdicated all naval responsibilities. By Cicero’s account, Verres “fled” Syracuse before leaving the provincia for good (i.e., in early 70), without meeting his successor.128 His two quaestors remained—we are not told whether with or without imperium—to manage the provincia in the transition between commanders.129 Staff members such as his accensus Timarchides also lingered, but for purely sinister purposes, it is alleged. Verres’ transit back through Italy was marred, says Cicero, by two particularly damning incidents: Verres’ refusal to fight against a small slave band at Valentia, and the Senate’s reluctance to have him fight against some fugitives at Tempsa. What finally happened in that latter instance is not clear: Verres in fact may have taken some military action. Cicero intimates that Verres hoped for a triumph on his return for fighting against the pirates, but that is probably a joke. (Crassus in 71 got only an ovatio for his efforts against Spartacus in a full-blown slave war.) One traditional honor did come his way. It is true, Cicero argues, that a company of publicani publicly met and thanked Verres en route to Rome. But Verres in turn asked the societas to expunge records that might later prove harmful to him, and it complied. The manner in which Verres deposited his accounts was also suspicious, despite the availability of a recent precedent.130 Cicero indicted him for repetundae directly after his return. 13.2.4 Cicero’s Prosecution of Verres The immediate factors motivating Cicero in this prosecution must have been his previous service as quaestor in Sicily and his oratorical rivalry with (the significantly senior) Q. Hortensius, and—not unconnected—his desire to acquire Verres’ praetorian speaking place in the Senate (a reward, as L. R. Taylor has shown, of the post-Sullan extortion court). In the Verrines Cicero is keen to represent himself as an established patronus of the island, though it appears there was a counterclaim that Cicero in fact had not been asked for his advocacy. For his part, Cicero (somewhat disingenuously) claims that his links with Sthenius of Thermae—a hospes of
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Verres whom the praetor had violated—would in themselves offer enough motive for his prosecution.131 Now, Cicero was aedile designate for 69 at the time of this trial. Surely the overarching factor in Cicero’s elaborate attack on Verres was to pave the way for his own praetorship. Cicero’s first challenge was to secure the right to prosecute Verres. His competition in the divinatio was Verres’ ex-quaestor (from 73) Q. Caecilius Niger, a native of Sicily. Caecilius, Cicero argued in the speech from the divinatio, had no business prosecuting his former superior. What is more, Caecilius was in fact on friendly terms with Verres, and was complicit in his thefts: his prosecution would be a sham for which the Sicilians would refuse to appear to testify. Plus, Cicero was generally more able than Caecilius.132 Cicero won his bid to prosecute, and applied amazing energy to the task. Cicero was determined to have Verres brought to trial in the year 70, before his advocate Hortensius entered the consulship and the brother of the current Sicilian praetor took charge of the repetundae court as praetor.133 Granted 110 days to collect evidence, Cicero set off for Sicily while it was still winter, and there managed to collect what he required in a mere 50 days on the island.134 Verres for his part, says Cicero, immediately promised a bribery agent a large sum of money to corrupt the jury in his forthcoming trial. He even, it is alleged, started plotting against Cicero’s life (a traditional charge). Cicero makes out that the shameless behavior Verres exhibited in Sicily continued in the city. Verres allegedly even kept some Sicilian pirates at home, until Cicero, under the authority of the pr. repetundis M.’ Acilius Glabrio, confiscated them, apparently in summer 70.135 Roman extortion trials in general allowed a tremendously wide range of charges,136 yet Cicero’s prosecution of Verres is an extreme example of the genre. Blanket accusations abound in the Verrines.137 But there is a reasonably comprehensive list of detailed charges at the beginning of actio I.138 Verres manipulated law (most importantly, the lex Rupilia) by his imperium, and extorted countless sums of money from Sicily’s farmers by a series of perversely novel regulations that broke with Hieronic law. He treated Rome’s allies like enemies, and allowed Roman citizens to suffer capital punishment. Under Verres, the guiltiest criminals bribed their way to acquittal, whereas the honest found themselves prosecuted in absence and exiled. Military affairs were a disaster: pirates and brigands were able to attack fortified ports and cities, Sicilian soldiers and sailors starved to death, and fleets were ruined. Verres robbed the public artwork that kings and Rome’s own generals gave or restored to Sicily’s cities. He also looted the sanctuaries of the island’s gods of every notable image. Finally, he corrupted the wives and children of the island. Cicero in the course of the Verrines offers detailed support for each of these charges—a summary is impossible here—with the exception of the corruption of children. (He seems to have brought up this allegation at the start of his speech purely for shock value.) And we, of course, get some items that Cicero does not list here, many clustered in the second half of actio II.2 (which may indicate that section indeed belongs to a later stratum of composition). Cumulatively, Verres’ predations netted him a tidy sum: in all, Verres is said to have stolen 4 million sesterces
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from the provincia.139 The trial resolved itself probably early in October 70, with Verres’ condemnation when he failed to appear at the second actio.140 13.2.5 Cicero and the Sicilian Commander L. Caecilius Metellus Cicero in the Verrines offers a transparently partisan account also of the activities of Verres’ successor L. Caecilius Metellus (pr. 71) in the province. The first month or so of Metellus’ government, explains Cicero, was devoted largely to damage control.141 The general impression Cicero seeks to establish in his narrative is one of (necessarily) wideranging activism. Metellus travelled to Sicily with two of Verres’ eminent victims in tow, who had fled to Rome as suppliants two years previously. The new governor immediately set himself to reinstating them at, respectively, Syracuse and nearby Bidis. He secured reparations for another victim at Drepanum, and overturned judicial measures Verres had taken at Agrigentum, Panhormus, and Lilybaeum in the west. He even annulled Verres’ census of 71— no easy thing to do—and returned to a system of elections for local Sicilian censores.142 Then there was the problem of the statues. At least one representation of Verres had been knocked down (at Tyndaris) directly upon Metellus’ arrival in the province; Cicero says he had to issue an emergency edict to prevent other cities from following suit. The Senate of Centuripa, we are told, defied him all the same.143 The most pressing concern, however, was the agriculture of Sicily. The new commander is said to have made a provincewide effort to remedy the harm Verres and his satellite, the decumanus Apronius, had inflicted on farming. One of Metellus’ first actions was to requisition grain from Messana, which Verres improperly had exempted from that obligation. Metellus also wrote a policy letter at some point in 70 to the consuls, the praetor (apparently urbanus) M. Mummius, and the urban quaestors, which Cicero cites and (somewhat tendentiously) explicates as implictly critical of Verres. Yet not all of Metellus’ early actions in the provincia square with this picture of highminded concern. He refused to entertain charges against Apronius under the “formula Octaviana”—a provision he had both in his city and provincial edict—on the grounds that it would constitute a praeiudicium in Verres’ upcoming case.144 Two days after Cicero arrived in Sicily to conduct investigations for his prosecution of Verres, we are told Metellus’ zeal for reform came to a dead stop. It was Verres, says Cicero, who corrupted his successor through a go-between; at this point Metellus had not been in his provincia a month.145 Metellus set up all sorts of impediments to Cicero’s work as prosecutor.146 So did his quaestors—as well as those of Verres, who were still tarrying on the island.147 Cicero tried, all the same, to avail himself of the power of the praetor by calling several of Verres’ confederates—including Apronius—into Metellus’ court to give evidence.148 Yet, here and elsewhere, Cicero faced stiff resistance. For instance, it was only through Cicero’s perseverance and a forceful appeal to the authority granted to him by the praetor repetundis that Metellus allowed him a document of the Syracusan senate pertinent to Verres’ case.149 Cicero gained access to evidence through some unofficial
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channels, too. Metellus, however, was highly effective, says Cicero, in retaining some witnesses important for the prosecution—including the two prominent victims of Verres who had spent the years 72 and 71 as suppliants in Rome.151 What Cicero does not mention is any military activity by Metellus against the pirates. But that is primarily what the Livian tradition knew about Metellus’ service in Sicily, and it seems to place his successful fighting against them firmly in the year 70. As we have seen above, Orosius is explicit that when Metellus arrived in the provincia, the archpirate Pyrganio, who had already defeated a Roman fleet and raided the harbor of Syracuse, was now plundering the island. However, Metellus, says Orosius, defeated him on land and sea and “soon” forced him to withdraw from Sicily.152 So evidently not all of Metellus’ energies after his first month in the provincia were devoted to foiling Cicero’s prosecution of Verres. Appian speaks of the pirates defeating an unnamed praetor for Sicily off the coast of the island, some time in the period before the lex Gabinia of 67. Florus reports (in this case plausibly) that pirates in this general period also raided Sicilian shores.153 One wonders whether these passages refer to Verres in 71, or Metellus at some point after his initial victory of 70 (but before he returned to Rome, probably after just one year in the provincia, to win the consulship for 68), or an unknown praetorian commander of the period 69–67. It is impossible to say, since so little is known of the arrangements for Sicily for some years after Metellus’ tenure. 13.2.6 Praetorian Commands in Sicily after 70 In (probably) the early 60s, C. Vergilius Balbus (a future pr. 62) served in Sicily as “pro quaestore,” so in all likelihood for at least two years.154 We can infer that Balbus’ superior commander also found himself prorogued in the provincia. The pirates were no doubt still harassing the island during this time. When Pompey received his pirate command under the Gabinian law of 67, he charged two of his legati pro praetore with responsibility for Sicilian waters. But each took that task up as part of a very large territory, which extended quite far east.155 It is yet another good instance of the sors opportuna that later C. Vergilius Balbus as praetor in 62 drew Sicily as his ex praetura province; he is the first praetor for Sicily after L. Metellus who is known by name. P. Clodius Pulcher was Balbus’ quaestor for 61, returning to Rome well before June 60.156 C. Balbus himself had to remain for three, perhaps four full years: he was still in the provincia when Cicero went into exile in early 58 (he prohibited him from setting foot on the island).157 The long command is not atypical of this period. We shall see that Q. Pompeius Rufus (pr. 63) had Africa as his province from 62 to perhaps 59; his praetorian colleague C. Pomptinus received Gallia Transalpina through the year 60; Q. Tullius Cicero was (like Balbus) pr. 62 and, after receiving Asia, was prorogued through 59; the praetor C. Papirius Carbo was in Bithynia/Pontus by 61 or 60 and certainly seems to have stayed through 58; and Cn. Cornelius Lentulus Marcellinus had Syria for both 59 and 58. The necessity of staffing the new provinces of Bithynia and Syria explains this phenomenon in part. And Illyricum had to be declared a special provincia around this time and entrusted to the prae-
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tor L. Culleolus (11.8.1). But a significant proportion of consuls and perhaps also some praetors must have been declining promagisterial provinciae (see 11.1.6). We positively know this to be true of Cicero as cos. 63 and Bibulus as cos. 59; indeed, none of the consuls of the years 62 through 60 can be shown to have reached a territorial provincia. Praetors had more reason to take up a province, and where we can check (e.g., the well-attested colleges of 63 and 57), most seem to have done so in these years. But the pr. ca. 61 Q. Voconius Naso almost certainly did not (see Additional Note XV); if we had better evidence, we would surely find other examples. That combination of factors—the newly created provinces, the necessity of special praetorian provinciae, and the refusal of promagisterial commands—will have forced the Senate to keep the commanders of even rich (and thus corrupting) provinces such as Sicily and Asia in their assignments for such long spans. And as it happens, in the years 61–59—after the return of Pompey from the east and before Caesar’s great Gallic command—there were no “big” multiprovince commands in process that might take pressure off the larger administrative system (see further 15.3). However, we cannot tell whether the praetors for Sicily subsequent to C. Vergilius Balbus had a similar experience of repeated prorogation, since no real details of the arrangements for the rest of the 50s are known.158 13.2.7 Praetorian Commands in Sardinia of the 70s and 60s The only informative source on Sardinia in this general period is the Pro Scauro, Cicero’s defense for the pr. 56 M. Aemilius Scaurus, who was tried for repetundae on his return from this province in late June of the year 54. The speech, however, is one of Cicero’s most “lawyerly,” and the portions that have come down to us (it is not entirely extant) are quite sparing of historical and administrative detail. The tactic was deliberate: the ancient sources on the trial are quite clear that Scaurus’ command needed all the defending it could get. One result is that for Sardinia in the period after Sulla down to 50, we can posit precisely four commanders with praetorian imperium—only two of whom appear to have been actual praetors. First, the problem of Valerius Triarius in 77: Asconius tells us that the father of P. Valerius Triarius, prosecutor in the Pro Scauro case, fought M. Aemilius Lepidus (cos. 78) when he fled in defeat from Italy to Sardinia in 77, and adds that he later served as a legatus in the Third Mithridatic War. A late source—but one that seems reliable on the “bellum Lepidanum”—gives this Triarius the rank of “pro praetore” in Sardinia, and states that he fought repeated battles against Lepidus by which he effectively countered his designs on the island. Neither source offers a praenomen for the Sardinian commander, but if he is to be identified with the later legatus in the east, it is “Gaius.”159 Broughton may well be right to consider Triarius not a praetor of 78 (as he once tentatively suggested), but to identify him with the (Valerius) Triarius who was quaestor urbanus in 81 and to place him in Sardinia in 77, “preferably as a legatus pro praetore.”160 If C. Triarius was indeed a mere legatus holding the provincia with delegated imperium in an interval between proper praetorian commanders, it would help explain why M. Lepidus, after his setbacks in Italy in 77, thought
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Sardinia a reasonable place to regroup and replenish his forces and to make life difficult for Rome.161 Now, we happen to know that through Triarius’ agency a Sardinian was granted Roman citizenship and became a “Valerius.” This need not imply that C. Triarius was praetor for Sardinia. Cicero’s wording allows the possibility that a superior made the actual grant to gratify Triarius.162 The next known commander with imperium active in the provincia of Sardinia is not a problem, but neither is he a praetor. In 67, a P. Atilius served as a legatus pro praetore under Pompey in his pirate command, and had responsibility for the waters around Sardinia and Corsica, evidently as part of a much larger territory (extending as far south as “Libya,” according to Appian).163 Nothing is known of his activities. And Dio, in his narrative of the year 67,164 says that a city praetor “L. Lucullus” (as seen in 11.1.6, surely an L. Lucceius) turned down an ex praetura command for Sardinia (i.e., for 66), alleging the general state of corruption in Rome’s provinces. His refusal to serve will have meant the prorogation of whatever commander was in Sardinia, or governance by a legatus in default. 13.2.8 Praetorian Commands in Sardinia of the 50s It is only a decade later that we start to get any solid information on the Roman administration of this province. Beginning in the fall of 57, Q. Tullius Cicero (pr. 62) served on Sardinia as a legatus under Pompey in his role as grain commissioner. Pompey joined him there briefly after the conference at Luca in April 56, and Quintus himself returned to Italy in June. Though several of Quintus’ letters to his brother are extant, there is very little in them on the details of his work on the island, and nothing implying the simultaneous presence of a praetor in the provincia.165 There should have been one, since we know that it came up in the ex praetura sortition for 56, when it fell to the pr. 57 Ap. Claudius Pulcher. His tenure will have been a short one. Ap. Pulcher is attested at Luca in 56, and had M. Aemilius Scaurus (pr. 56) as a successor for 55; in that year, Appius managed to win a consulship for 54.166 We hear nothing of what Ap. Pulcher actually did in Sardinia. As it happens, Appius’ command is never mentioned in the Pro Scauro, though there is extensive discussion in this speech of this man as cos. 54. Scaurus was the son of the famous cos. 115 M. Aemilius Scaurus and Caecilia Metella, the future wife of Sulla. In the year 58, he had an expensive curule aedileship that apparently led to his near-bankruptcy.167 But Scaurus’ splendid aedicilican games evidently made the right impression: he was elected to the praetorship in the minimum interval, for the year 56. Little is known of Scaurus’ activities in his city provincia (it was probably not the quaestio de vi, as is commonly supposed)168 or— more surprisingly—of his one year ex praetura command in Sardinia, even though Cicero wrote a speech to defend it. A few items emerge from other sources. It does appear from Asconius that Scaurus either personally or through subordinates functioned in Corsica as well as the island of Sardinia. Asconius also says that Scaurus was thought to have acted in his province with little self-restraint and a lot of arrogance—though in other respects he behaved quite unlike his father!169 Valerius Maximus170 tells a tale that implies there were not 120 people there that Scaurus did not rob. The basic charge of rapacity rings true. Scaurus had to recoup the
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expenses of that aedileship, and that was just for a start. We are told that when Scaurus returned to Rome on 29 June 54, he did so as a declared candidate for the consulship of 53.171 M. Scaurus opened his consular campaign by immediately (and successfully) defending C. Porcius Cato, who had found himself on trial for his activities as tr. pl. 56.172 But only about a week after his return from Sardinia, Scaurus too was indicted, on 6 July, for repetundae before the praetor M. Porcius Cato.173 Scaurus’ principal prosecutor was the young P. Valerius Triarius, son of the pro pr. who (as we have seen) held Sardinia during the bellum Lepidanum. Triarius and his subscriptores were granted thirty days to investigate in Sardinia and Corsica. But Asconius says that they did not dare budge from Rome. According to Asconius, what they feared was that “Scaurus with the money he had stolen from allies would buy the consulship and—just as his father had done174—would enter into a magistracy before he could be tried, and plunder once again other provinces before rendering an account for his earlier governance.”175 The prosecutors no doubt said that openly at Scaurus’ trial: the argument (which may have been literally true) brings up a major contemporary concern. The protection afforded by a consulship and a subsequent command is precisely what the senatus consultum of 53 and the lex Pompeia of 52 (11.1.7) sought to eliminate by stipulating an interval between magistracy and promagistracy. Scaurus for his part, it is said, particularly feared the close personal connection of the prosecutor and pr. repetundis M. Cato. And he found Cato resistant to actual bribery.176 What Scaurus did count on to secure acquittal, says Asconius, was his own father’s name and—unrealistically—a marriage connection with Pompey, cos. II 55, and in 54 pro cos. outside the pomerium. (Scaurus had married Mucia Tertia after Pompey in 61 had taken the serious step of dismissing her for unchastity.) Cicero, in the run-up to the trial, reckoned Scaurus’ chief assets would be the fame of his aedileship and the weight of his father’s memory among the rural folk,177 who evidently were expected to show up in some numbers to take in the proceedings. But Cicero thought it especially important for Scaurus to have the status of consul designatus when put on trial.178 That was not to be. Scaurus’ trial did not start until late August, and was over quickly, by 2 September.179 Scaurus did have six defenders (including three consulares), which Asconius considered a high number. There were also nine consular character witnesses, but most in absence, including Pompey. Scaurus’ half-brother Faustus Sulla, a quaestor in that year (Asconius still terms him “adulescens”), was considered particularly effective in his eulogy.180 Earlier Faustus no doubt had tried to influence the trial in other ways.181 Cicero’s speech Pro Scauro does allow us to reconstruct a few of the accusations. Grain abuses were alleged, which Cicero belittles.182 Cicero also takes up and dismisses the charges brought by some individual (pointedly obscure) Sardinians: the family of Bostar of Nora, whose estate Scaurus was said to have confiscated, and a certain Aris, whose wife reportedly had commited suicide because of the praetor’s unwanted attention. Cicero makes out that these folk are Carthaginian liars.183 Indeed, a large portion of the extant speech is taken up with attacks on the ethnicity and consequent lack of integrity of the Sardinian wit-
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nesses. Cicero adduces the cases of the praetors for Sardinia, T. Albucius (pr. ca. 107) and Megabocchus (otherwise unknown), who were condemned, despite eulogies, by impartial witnesses and untampered documents: the witnesses in the present trial, he alleges, have been bribed.185 We also get a disquisition on the history of Phoenician treachery. Cicero asks the pardon of his Sardinian friends for that, but throws in some even more hostile material by the end of the speech.186 All the same, it is emphasized that the great mass of the people in the province had no complaint against Scaurus.187 Another theme is that the consul Ap. Claudius Pulcher was hostile to Scaurus for his own personal reasons. As direct predecessor of Scaurus in that provincia, he wanted to see him disgraced. Cicero does not elaborate, perhaps because his audience will have taken such rivalry for granted. Comparisons between successive commanders in the same province were inevitable.188 Sometimes, the departing commander would even take practical measures to bring about his successor’s failure.189 But Cicero implies the central issue for Appius was that Scaurus would be an effective competitor for the consulship against his brother C. Claudius (pr. 56, and at the time still pro cos. in Asia). And so Appius, Cicero hints darkly, had made some sort of promises to Sardinian “barbarians.”190 Scaurus’ own speech—delivered in the traditional rags, with many tears and talk of his father and that curule aedileship—is said by Asconius to have greatly moved the jurors. He was easily acquitted by each of the three “Aurelian” judicial ordines.191 Scaurus’ defense was evidently highly effective also with the audience at that trial. Cicero, backed by a popular uprising, succeeded in getting the pr. repetundis M. Cato to admit a calumnia charge against Scaurus’ accusers. Yet all were acquitted when tried, which is a bit surprising, since the jury was apparently the same.192 P. Valerius Triarius prosecuted Scaurus again in 54, but for ambitus in connection with his consular bid. He somehow escaped, only to meet conviction and exile on an ambitus charge in (so it seems) the second half of 53.193 Scaurus is the last praetor attested for Sardinia in our period. Now, Broughton194 tentatively identifies M. Aurelius Cotta provisionally as praetor in 55 or 54, and suggests he governed Sardinia in 50 (evidently ex praetura, after an interval as under the lex Pompeia of 52) as well as part of 49. The evidence for a praetorship is limited to two items. First, in spring 49 Caesar sent Q. Valerius Orca (pr. 57) as legatus with one legion and C. Scribonius Curio (tr. pl. 50) pro praetore with two legions to take Sardinia (with its grain) and Sicily respectively.195 We are told M. Cotta fled from his post in Sardinia even before Caesar’s legatus arrived in the provincia, as did M. Cato (pr. 54), whom the Senate had sent earlier that year to Sicily: Caesar’s men took control of Sicily and Sardinia “vacant of their imperia.”196 Now, all three of the other instances in the Bellum Civile of “imperia” (in the plural) are derisive.197 These passages, coupled with the fact that Caesar sent a legatus (evidently without imperium) against M. Cotta, suggest that Cotta’s command was likely to have been an ad hoc appointment rather than a proper praetorian governorship. The second item is even less substantial. Cicero198 mentions that in late 54, Pompey was encouraging a certain “Gutta” in his candidacy for the consulship of 52, with talk of bringing in Caesar as a backer as well. Long ago, J. Hoffa conjec-
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tured that “Cotta” should be read for the name.199 But the probability of the emendation is greatly diminished if the Sardinian commander of 49 was no more than a legatus—as Caesar indeed implies.
13.3 Pre-Sullan Spain 13.3.1 Praetorian Commands in the Spains, 122–100 Our first datable item for Spain in this period is an important one for the general history of Roman administration. Plutarch says that C. Marius, after his praetorship in the city (in 115), received by lot Hispania Ulterior. This is the first certain attestation of a city praetor proceeding in the year after his magistracy to hold a command in a regular territorial provincia.200 Now, one must keep in mind that this is a chance reference, concerning a well-known Roman commander; Plutarch offers no special comment on the procedure. The Senate may have sent other praetors in this fashion to provinces before Marius.201 One good possibility is C. Laelius, pr. 145, who apparently (see 7.3.1) took up an ex praetura command for Citerior for 144. In Laelius’ case, however, there is no telling whether he had spent the year of his praetorship in the city or in some (non-Spanish) territorial provincia. When it comes to Marius’ commission for 114, we know too little of what was happening in the other provinciae that year to see why this type of arrangement was needed.202 Of course, soon after Marius, the practice of ex praetura commands grew common (15.3.2), and was de facto institutionalized for all praetors by L. Cornelius Sulla as dictator in his reforms of 81. Once in Ulterior, Marius is said to have relieved the provincia of brigandage, “although the province was still wild and banditry was considered an honorable profession.”203 The only other detail of his command is that he requisitioned grain for his cella.204 Exactly how long he had to stay is uncertain. The next known holder of the provincia is the praetor L. Calpurnius Piso Frugi, who can have arrived in either 113 or 112.205 He is said by Appian, in a severe summary portion of his Iberica—unfortunately, our only continuous source on Spanish affairs in this era— to have been succeeded by Ser. Sulpicius Galba.206 Galba was later cos. 108, and so must have been praetor by 111, which provides a terminus. Appian207 says that Piso Frugi was sent in response to revolts. He certainly had to do some fighting: for a start, Cicero describes how this praetor had to order a replacement for his (senatorial) ring, which he had damaged in battle. What happened is that Piso had a craftsman weigh out the gold and manufacture the ring in the forum at Corduba, while he himself watched from his curule chair. One factor behind Piso’s ostentatious demonstration of self-restraint is surely that he wanted to show himself a true son of his father Piso “Frugi.”208 But there obviously had been complaints—after all, at least part of the province was in arms—perhaps even regarding his predecessor C. Marius. In the event, fighting in Ulterior was serious enough for Piso (as Cicero reports) to be killed in the province. Nothing is known of the activities of the praetor Ser. Galba, who arrived following upon this disaster, reaching Spain in either
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112 or 111. It is, however, still another excellent example of the sors opportuna: he was son of the Ser. Galba who was pr. 151 for Hispania Ulterior (see 7.3.1) and then cos. 144. The dispatch of the son of the most notorious commander in Ulterior’s history precisely at this time—following upon the death of a praetor in the province, and with Citerior perhaps also in danger, thanks to migrating Germanic tribes209— will have been a deliberate gesture on the part of the Senate, meant to send the province a forceful message. From the Senate’s perspective, it will have been nicely ironical that he was succeeding the son of the Calpurnius Piso who had established the permanent quaestio repetundarum in response to the senior Galba’s murderous command (9.2.1). A special arrangement would be particularly understandable if the younger Ser. Galba had to go to Spain for 111, the first year of the war with Jugurtha in not-so-distant Numidia. Perhaps he was praetor in a different provincia (city or otherwise), and received Ulterior ex praetura, like Marius a few years previously. In short, the fact that a Ser. Galba was available for this command at this time does seem quite unlikely to be a pure accident of the lot. Galba was back in Rome in time to win the consulship for 108; he must have been at least moderately successful in his fighting in Spain to be elected to the office at this time, with the Jugurthine War of course still raging and the Mamilian quaestio setting a harsh political tone at Rome. Galba’s successor in Hispania Ulterior was another praetor, Q. Servilius Caepio, the future cos. 106. Eutropius implies he was in the provincia in the year 109, as we would expect (the absolute upper date is 110). Caepio returned to Rome to triumph over the Lusitani on 28 October 107, and walked right into the consulship.210 It was the first triumph from Spain since Metellus “Balearicus” in 121, and the first from one of the Spanish provinciae proper since Scipio Aemilianus in 132. Yet the province was not fully pacified. By chance, we hear of a major setback in Ulterior just two years (at most) after Caepio’s triumph.211 Appian212 provides an odd notice for the period immediately to follow: “When the Cimbri invaded Italy, and Sicily was torn by the second servile war, the Romans were too much preoccupied to send soldiers to Spain, and so sent legati to settle the war as well as they could.” But a praetorian commander is definitely attested for Hispania Ulterior for 104: a certain L. Caesius did enough fighting to be hailed as “imperator” in or by that year. A recently found inscription from Alcántara—dated by the coss. 104 as well as by the title “L. Caesio C.f. imperatore” itself—shows how he granted a deditio to a tribe of the province after consultation with his consilium on precisely what to exact from them as security.213 He may have asked for a triumph on his return to Rome, but (if so) was turned down.214 Another praetorian commander was soon to follow. Appian says that M. Marius—presumably brother of the seven-time consul—subdued some Lusitanians with the aid of various Celtiberian tribes. The Senate then authorized him to settle those Celtiberian auxilia near Colenda (not readily identifiable). There is good reason to date that victory to the year 101, though any time in the period 103–100 is possible.215 One notes that C. Marius was consul in each of those years. It is hard not to suspect that his influence somehow secured his old provincia of Hispania Ulterior for his (putative) brother. If—as is likely—M. Marius received that command while the Cimbri still were threatening north Italy (i.e., in one of
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the years 103–101), few in the Senate might care to notice the coincidence of two Marii having drawn Ulterior within a dozen or so years. Almost nothing is known of the arrangements for Hispania Citerior for the last two decades of the second century. We have the milestones of two praetors from this general era, only one of which allows a guess at even an approximate date.216 For the period 105–101, it is just conceivable (following that odd item in Appian) that a legatus held the province in some or even all of these years. A chance notice does hint at administrative neglect. When the Cimbri, Teutones, and their allies crossed the Pyrenees into Spain in 104, the Livian Periocha tells us they were routed not by Romans but by Celtiberians.217 Either there was no proper Roman commander in the province, or there was one and he deliberately (perhaps even on orders from Rome) stayed out of the path of these terrifying tribes. 13.3.2 The Spanish Provinciae in the 90s and 80s Both Spanish provinces seem to have had praetorian commanders by around the year 100. C. Coelius Caldus, the future cos. 94, apparently recieved Hispania Citerior for 100 or 99.218 An L. Cornelius Dolabella must have been in Ulterior in 99, and perhaps already in 100, though probably not any earlier (remember M. Marius). He triumphed from Hispania Ulterior on 26 January 98,219 the second triumph from that provincia within a decade. It is strange that Dolabella never made it to the consulship, the first praetorian triumphator in the post-Gracchan period not to have done so.220 One explanation may be the fact that both Spanish provinciae soon once again erupted. The year 98 saw some hard fighting in Spain: Obsequens reports that the Hispani were defeated in “many” battles (but with no indication of province). Other sources attest that one of the consuls of that year, T. Didius, was dispatched to Citerior. Whether Obsequens’ notice refers to the consul Didius, or the praetor Coelius Caldus, or the (unknown) successor to L. Dolabella in Ulterior—or some combination of the above—is impossible to tell. For 97, the Senate prorogued T. Didius in Hispania Citerior and declared Ulterior consular as well; it fell to the cos. P. Licinius Crassus. Didius and Crassus triumphed over the Celtiberians and Lusitani respectively on 10 and 12 June 93.221 The years 96–94 are the only years in the period 132–81 in which we can be sure two holders of imperium were simultaneously in the Iberian peninsula. The length of these consular commands begs comment. The fact that T. Didius (cos. 98) spent four or (more probably) five years in the provincia may in part be due to his military abilities: Citerior seems very much to have needed a capable general, at least at the time of his arrival. Now, the chronology of Didius’ command is nearly impossible to work out, since the main account of his campaigning comes from that summary portion of Appian’s Iberica. Apparently, he scored some early successes (97 and perhaps 96) against the Celtiberians.222 We also hear of some episodes where his Roman forces were quite at risk of destruction, showing the extent of the military emergency.223 Appian224 himself mentions some achievements of T. Didius’ long stay in his province: a battle in which he reportedly slew twenty thousand of the Aravaci, his transplantation of the population of Termes
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from its naturally fortified site, and a successful eight-month siege of Colenda. But he also describes in relative detail an episode which suggests that Didius had finished the real work of his province after just a couple of years or so. The tale concerns the unnamed town near Colenda which the praetor M. Marius by senatus consultum “five years previously” had settled with Celtiberian auxilia. Appian says after its establishment it had fallen into poverty and so resorted to banditry. After taking Colenda, Didius had resolved to destroy also this neighboring town, and so “with the concurrence of the ten legati who were still present” treacherously slaughtered its entire population. If Appian is correct on the “five years,” the date of this massacre is quite possibly 96, and can hardly be later than 95 (see above on the date of M. Marius). The mention of the “ten legati,” however, gives pause. Appian seems to equate them with the legati he says were sent to administer Spain in the period of the Cimbric War and Sicilian slave revolt. That seems hard to imagine. For a start, Rome sent decem legati to serve as a consilium to a magistrate in the field (not as a self-standing entity), and in any case a tenure of five or more years for that type of commission is wholly unparalleled. The inclusion of that detail certainly raises a question regarding Appian’s general reliability in this passage. It is not impossible, however, that in 96 or 95 the Senate sent decem legati to aid T. Didius in making permanent arrangements for a newly pacified Hispania Citerior. In that case, Appian’s mistake would be to imagine that his earlier legati for Iberia were identical with this later group. The presence of decem legati might also help explain Didius’ prorogation through 94. At first glance Didius’ action against M. Marius’ foundation comes off as an extreme example of triumph hunting.225 Indeed, the triumph Didius received in 93, Appian alleges, was for this gruesome act. But systematic massacres like this by highranking magistrates are not too often found after the Lusitanian command of the pr. Ser. Galba in 151/150.226 And Didius surely had done enough by this time to earn a triumph.227 Killing brigands, even en masse, would add little to his military glory.228 So there may also be a political dimension to his destruction of this town, which after all was populated by recently created clientes of the gens Maria. By the 90s, there had developed quite a gap between the number of provinciae and the pool of suitable magistrates to staff them (see 11.1.1). That must be another factor behind the cos. 98 T. Didius’ repeated prorogations in Hispania Citerior. The fact that the cos. 97 P. Licinius Crassus (not a famous military man) also had a long tenure in Ulterior confirms it. P. Crassus did enough fighting in his provincia to be hailed imperator and to triumph on his return de Lusitaneis in June 93 (observing propriety, two days after Didius, his senior as cos. 98). But Crassus also had enough time to make a purely scientific trip to the not-so-near Cassiterides island group, where he observed some golden-age attributes among its peacable population.229 He surely did not need three or four years to earn his triumph: Crassus’ multiple prorogations reflect the exigencies, not of his province, but of the wider administrative system. To be sure, the Spanish provinciae always offered unexpected dangers. Obsequens says a “Nasica” in the year 94 punished rebel leaders and destroyed their towns.230 That man is quite likely to be the P. Cornelius Scipio Nasica who
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was (or was soon to be) son-in-law of L. Licinius Crassus (cos. 95).231 The date, however, raises a problem. In the year 94, T. Didius was still in Hispania Citerior and P. Licinius Crassus in Ulterior. The best explanation is that Nasica saw his service in Spain as a legatus232 under one of those two consular commanders. His marriage tie with L. Crassus lends slight support to the idea that he served under the pro cos. P. Crassus (a distant cousin of the cos. 95). Praetorian rank might be inferred from the status of his superior (whichever consular it was) and the semi-independence of his attested actions. But his family background and connections make it entirely conceivable that he obtained his (putative) legateship as a subpraetorian.233 We do not know exactly how T. Didius and P. Crassus were succeeded when they left for Rome. The next known commander for Spain is C. Valerius Flaccus, the consul of 93, who arrived either in or soon after his year of office. It is difficult to tell, since Appian in that summary portion of his Iberica is our only source on Flaccus’ appointment and the initial stage of what was to prove a very long command. Appian says that Flaccus was dispatched in response to another Celtiberian revolt. (That in itself may imply a date later in 93 or in 92.) He quelled the rebellion, we are told, by killing (once again) twenty thousand, and followed that success by taking police action in Celtiberian Belgida.234 Who was in Ulterior at the time? As it happens, after P. Crassus’ departure in 93 there is no firm proof of a separate commander for the provincia—indeed, until the early 70s. C. Flaccus may have been expected to exercise imperium in both Spanish provinces and (at least later) in Gaul as well, though not necessarily all at the same time: he is attested as imperator at Contrebia (i.e., Celtiberia) in 87 and in Gaul in 83.235 Flaccus triumphed from Celtiberia and Gaul in 81 or 80, after a dozen or so years of continuous command.236 During that span of time, Roman outlaws found the largely neglected Iberian peninsula a convenient refuge. In 88 or 87, some prominent Marian exiles made their way into Spain and then (when C. Marius secured his own return to Italy) back out again. Members of the antiMarian faction found Spain hospitable, too. M. Licinius Crassus—son of the cos. 97 P. Crassus, and a member of his staff in Spain—spent eight months of the year 85 in the peninsula, apparently in his father’s old provincia of Ulterior. There he managed to raise a select private army (2,500 men) by making the rounds of the cities. Crassus allegedly even stormed Malaca before crossing to Africa and thence to Italy.237 We do not know what the reaction was of the Marian government in Italy to such escapades. It may have been too preoccupied with the threat of Sulla’s inevitable invasion from the east to care all that much. Or there may have been arrangements unknown to us. Cicero says that M. Fonteius (a future praetor of the mid-70s) was in the province of Hispania Ulterior as a legatus at the time of Sulla’s arrival in Italy (i.e., in early 83).238 Fonteius presumably served under someone’s command; he was too junior to hold the provincia by himself. One notes that even after Sulla’s landing the Marians managed to dispatch a new commander to Spain, namely Q. Sertorius (on whom see 10.5.6). Sertorius’ Spanish provincia was apparently Hispania Citerior,239 which he set out for (after exploits in Italy) in late 83.240 But he may have been intended to hold both Citerior and Ulterior as a combined provincia.241
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Sertorius was a failed candidate for the tribunate of (probably) 88. The precise date of his praetorship seems impossible to ascertain, except (as C. F. Konrad has shown) it is unlikely to be as late as the accepted date of 83. Given the irregularities of the mid-80s, there are clearly a range of possibilities; Konrad has made a reasonable case for a city praetorship in 85 (or perhaps 84), with Citerior as Sertorius’ ex praetura province.242 However, it may be relevant for the general chronology that Appian mentions “praetors” who failed to welcome Sertorius in Spain and refused to be superseded, out of partisanship to Sulla, only to find themselves ejected from Iberia.243 This is puzzling, since Appian also offers an allusion to proMarian “praetors” in Spain in 82, who dispatched Celtiberian horse to the consuls of the year.244 If these notices refer to the same individuals—and it was not Sertorius himself who sent that cavalry—we must assume the “praetors” switched allegiance from the Marians to Sulla during the course of the year 82 (there are plenty of parallels for that). It indeed would be surprising if Q. Sertorius was the first commander the Marians thought of sending to Spain. For what it is worth, Plutarch implies that Sertorius found Spain not in a state of anarchy, but suffering from the rapacity of Roman commanders (strathgoiv): he is said to have won native support by remitting taxes and ridding the cities of the burden of billeting.245 In sum, the picture one gets from our available sources is that Sertorius had praetorian precedessors in Iberia. If true, that would seem to exclude a very early date (i.e., the year 86 and perhaps 85) for his praetorship.
13.4 Spain in the Period after Sulla Sulla formally outlawed Q. Sertorius on taking power late in the year 82.246 Other senators proscribed by Sulla were to make their way to Sertorius, including some highranking senators.247 In time, Sertorius also named his own “senators” and established a “Senate” of 300.248 Plutarch says that Sertorius, once established, appointed “quaestors” and “praetors,” and in general “kept Roman customs.” That evidently included the traditional magistrates’ insignia, and much else beside.249 One M. Marius came to Sertorius as a proper Roman senator, served as a “quaestor” in (apparently) early 76, and soon reached the “praetorship” in the renegade government.250 Sertorius presided over his “Senate” of proscripti, which (like its archetype in Rome) served as a consilium to his magistrates and as such issued nonbinding sententiae.251 In other respects, Sertorius apparently took care to appear as a normal Roman provincial governor, as an extended fragment of Livy from a Vatican manuscript goes to show.252 But the quality of Sertorius’ administration is said to have deteriorated over time.253 13.4.1 The Sertorian War: General Chronological Considerations Eventually Sertorius was killed by his own officers, an event which our sources variously date to the eighth or tenth year of his rebellion.254 The chronological con-
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fusion on even the major detail of the date of Sertorius’ assassination is sadly typical of our sources on this war.255 Appian purports to give an “annalistic” account, yet what we get is so sketchy that it is impossible to pin down key events such as in what year Pompey arrived to fight the war (77 or 76?), only to be soon routed at the town of Lauro (itself infuriatingly hard to place). Plutarch in the Sertorius offers a fair amount of detail, but much of it in generalizing “for instance” passages that cannot be dated. In particular, he reduces Sertorius’ early battles to a montage: the result is that the first event that we can truly synchronize with Appian’s account is the fighting at Sucro and Segontia some four or five years into the war. Yet Plutarch soon skips to the end of the story, with Sertorius’ assassination. In the Pompey, he is even more severe in his presentation of datable events. In this Life, Plutarch decribes Lauro, Sucro, the threatening letter Pompey wrote to the Senate in winter 75/74—and then the fatal conspiracy. Of Latin sources, that fragment of Livy does provide an invaluable account of Spanish affairs between two (undated) campaigning seasons. And the Livian Periocha provides a relative chronology of the war full enough to be coordinated with Appian’s annalistic narrative. But it is frustrating that overall the Periocha mentions just two engagements in this conflict by name (the sieges of Clunia and Calagurris, some years into the war). Even in the tale of Sertorius’ death, the epitomator omits the gentilician name of the key conspirator (offering in Per. 96 only “Marcus” for M. Perperna, last mentioned—as “Perperna”—at Per. 92). Florus and Orosius mostly corroborate what we find in the Periocha, yet not without a twist or two. The remains of Sallust’s Histories are really only helpful for the initial stages of the war. Fortunately, the careful recent work of Konrad on the chronology—and indeed all other aspects—of the Sertorian War has made extended discussion of many previously thorny problems unnecessary.256 Konrad points out that for the later part of the war, the ancient sources tell a relatively coherent story of five years of fighting from the arrival of Pompey to the death of Sertorius, a framework which most scholars have recognized as reliable.257 Year 1 is marked by Pompeius’ defeat at Lauro. Year 2 has three large battles (Valentia, the Sucro, and Segontia) and also the attempted blockade of Sertorius at Clunia. Year 3 sees dissension in Sertorius’ ranks (with countermeasures) and unsuccessful sieges of Pallantia and Calagurris by Q. Metellus Pius and Pompey. Year 4 contains no great battles, and in Year 5 a conspiracy led by Perperna results in the assassination of Sertorius. The trouble is deciding to which five consular years those events belong. Konrad argues in admirable detail for the years 77 through 73, against a traditional view that correlates the five years with 76 through 72. There are, however, a few points in his reconstruction that admit further investigation. For example, it is clear that Metellus Pius and Pompey both returned from Spain to triumph only in late 71.258 Would the Senate really prorogue each of them twice after Sertorius’ death? Sertorius was killed when the campaigning season was still under way. M. Perperna—who had organized the assassination and then taken over his command—saw many Iberians desert to Metellus and Pompey and had trouble instilling loyalty among the Sertorian troops. Metellus, in fact, departed for “other [i.e., western] parts of Spain” in the belief that Pompey by himself could handle Perperna. Pompey defeated, captured, and killed Perperna in one battle, thus effec-
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tively ending the war, says the Livian Periocha, “almost in the tenth year since it began.” That same source says that Sertorius was killed in the eighth year of his generalship, suggesting that it took Pompey less than two years to extinguish these last flames of revolt.259 The rebel cities mostly surrendered to Pompey (and no doubt also Metellus), with the notable exceptions of Uxama and Calagurris. Pompey destroyed the first of those. He then only started the siege of the second before leaving for Italy.260 These facts suggest that Pompey and Metellus remained in Iberia for about one and a half years (not two and a half years) after Sertorius’ death. 13.4.2 Roman Efforts against Sertorius down to 77 But let us start near the beginning, in late 82 B.C. Plutarch says that Sertorius, on hearing of Sulla’s victory, knew that a new commander from Rome for his provincia was inevitable. Accordingly, he sent a deputy with a legion-sized force to hold the Pyrenees against attack. The Sullan general, one C. Annius, should be a praetor of 81. His coinage shows he had two quaestors, which M. Crawford (following Badian) rightly considers to be an indication he was in charge of both Spanish provinces.261 As it happened, Annius easily crossed into the peninsula and managed to drive Sertorius out of Spain. Sertorius crossed to North Africa (suggesting that the pro pr. Pompey had already left by that time to claim his triumph), but the Maurusii there forced him right back to Iberia. Yet Annius effectively secured the Spanish shores against Sertorius. So once again the Marian general ended up in Mauretania. This time, however, Sertorius had a kindlier welcome, since he showed a willingness to involve himself in Mauretanian dynastic disputes. Among his exploits was a decisive victory over a certain “Paccianus,” whom Sulla had sent “with a military force” (probably from Spain) to intervene in Mauretania.262 It was at this point (probably in early 80) that the Lusitanians invited Sertorius back to Spain to be their leader. As such, Plutarch says he subdued th;n ejggu;~ ∆Ibhrivan. That is probably not “Hispania Citerior,” as Konrad takes it (“Plutarch is anticipating”), but “neighboring Spain” (sc. to Africa).263 Indeed, it is southern Spain that will see all of the heavy fighting attested for the next two or so years. In those struggles, we are told that Sertorius had to fight “four Roman strategoi” and face a massive show of Roman military might—by Plutarch’s count, 120,000 infantry, 6,000 horse, and 2,000 archers and slingers. These huge numbers “derive from a summary of the total of Roman forces engaged in the Sertorian War between 80 and 72,” according to Konrad.264 That seems reasonable. But who are the “four strategoi”? Plutarch combined with some bits of Sallust’s Histories (especially the Vienna fragment first published in 1979)265 and a few other sources show a series of battles between Sertorius and Roman forces for what must be the years 80 and 79. First, Sertorius successfully fought a Cotta near Mellaria in the straits. No title is offered, except that he was one of the “antistrategoi” (here, “opposing generals”).266 Next was Fufidius, the governor of Baetica,” whom he defeated on the river Baetis. In the battle, Fufidius lost two thousand men (from a force of at least two legions) Fufidius called for help from M. Domitius Calvinus, then evidently pro consule in Hispania Citerior. But Domitius was having his own problems with Hirtuleius, a
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Sertorian officer who had fortified Consabura.267 Eventually, Hirtuleius was to defeat Domitius on the Anas river (in Hispania Ulterior), evidently as he was making his way to Fufidius; the Roman commander lost his life in the battle. Around this time—the exact chronology of Domitius’ disaster is uncertain—Ulterior was declared consular and allotted to the cos. 80 Q. Metellus Pius. For Metellus, things immediately went awry. He sent a “hegemon” Thoranius (or Thorius) with an army, perhaps as an advance force to bail out Domitius. But Sertorius vanquished and killed that man, and then defeated Metellus himself “many times.”268 This series of events has received expert discussion by Konrad, whose reconstruction I mostly accept—including that Plutarch’s “four strategoi” are Cotta, Fufidius, Domitius, and Thorius.269 Cotta (not closely identifiable, but perhaps L. Aurelius Cotta, the future pr. 70) must be a legatus of L. Fufidius, an intimate of Sulla’s270 who was definitely a praetorian commander in Hispania Ulterior in 80.271 For M. Domitius Calvinus, the provincia of Citerior and rank of pro consule are certain.272 He must be a praetor of 80, losing his life that year or in 79.273 (We do not hear of any special arrangements for Citerior for 79, suggesting that it had been planned for M. Calvinus to hold the provincia for that year.) The only sticking point is the date of L. Fufidius’ praetorship. According to Orosius, Fufidius had been merely of centurion status. Even if that last item is an exaggeration,274 Konrad’s idea that he won immediate election as a praetor for 81 seems unlikely.275 It is very difficult to find room for Fufidius among the praetors for that year, even assuming a college of eight (see 11.1.3). I suggest Sulla adlected Fufidius into the Senate inter quaestorios in 81, and saw to his election276 as praetor for 80. (If really an ex-primipilaris, as Orosius says he was, Fufidius likely will have met the age requirement for the praetorship.) On this interpretation, Fufidius and M. Domitius Calvinus (who must be pr. 80) took up armed provinciae as pro consulibus during the year of their actual magistracy. That is what the praetor C. Annius had done for Spain in 81—and, as we shall see (14.6.1), probably also M. Minucius Thermus for Asia that same year. Our record shows that Sulla, on taking control of the state, had already decided on a system in which commanders normally receive territorial provinces ex magistratu. But the emergency posed by Sertorius in Spain from 82 and the necessity—apparently around this same time—of recalling L. Licinius Murena from Asia (14.5.9) forced the dictator to make exceptions from the very start. As I have noted, for 79 Ulterior was consular while Citerior was supposed to remain as praetorian. Yet the death of M. Calvinus left the latter province without imperium for a time, so far as we know. Calvinus’ replacement evidently was the pr. 79 Q. Calidius. Whether Calidius arrived in his year as praetor or only as a promagistrate in 78, we cannot tell. He probably did not meet with much military success, since he was condemned in a trial before iudices on his return.277 Before long, the Sertorian War was severe enough to draw in a praetorian commander even from outside Iberia. L. Manlius was a pro consule in Gallia Transalpina, who is known to have fled from Aquitania after first losing his army’s baggage.278 He also is said to have crossed into Spain to aid Q. Metellus against Sertorius, but apparently made it not much further than Ilerda in northeast Iberia, having lost all three of his legions in battle with the rebel commander Hirtuleius.
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Plutarch tells us that this defeat resulted in the quick (kata; tavco~) dispatch to Spain of Cn. Pompeius, that is, as a privatus cum imperio.279 Konrad regards L. Manlius as “presumably praetor in 79, pro consule Gallia Transalpina in 78. He intervened in Spain . . . probably in 78.”280 It does seem reasonable to assume that Manlius was in command of Gallia Transalpina at least in 78, and was defeated while trying to enter Iberia in late 78 or early 77. The Senate must have ordered that move: Manlius can hardly have withdrawn a large army from Transalpine Gaul simply on his own initiative or on Metellus’ request. The logical time for the Senate to take such a decision would be later in 78. At that point, M. Aemilius Lepidus (cos. 78) had set out for the command of his provincia of the two Gauls281 but had not yet risen against the res publica, and Q. Calidius in Hispania Citerior was soon eligible to be superseded. The decision to send Pompey to Spain of course belongs to 77, probably the spring or early summer (11.8.5, 15.2.1). When he moved from Italy against Sertorius, no one seems to have been in Gallia Transalpina.282 13.4.3 Background to the Dispatch of Pompey to Spain The year 77 opened without consuls, and thus without praetors (see 11.8.5, 15.2.1). While M. Aemilius Lepidus (cos. 78, and now pro cos. for the two Gauls) was making threatening gestures in Italy, only so much could be done for the standing provinciae. For 77, the Senate prorogued Metellus Pius in Ulterior and no doubt intended for L. Manlius to move permanently out of Transalpina to hold Hispania Citerior. But Manlius’ inability to get past Ilerda quashed that plan, and left the provincia wholly exposed. Meanwhile, Metellus in Ulterior continued to suffer reverses at the hands of the rebels. Appian even reports contemporary (so it seems) fears that Sertorius would march on Italy.283 Those fears would be particularly acute after the defeat and death of Lepidus, once his strathgov~ M. Perperna had found his way to Spain.284 Perperna, as we have seen (13.1.4), had been a praetor for Sicily under the Marian government. Though Sulla had him proscribed, Perperna apparently retained his praetorian insignia even after abandoning Sicily to Pompey in 82. Perperna is said subsequently to have spent time in Liguria. He shows up in the last phase of Lepidus’ revolt, the effort to control Sardinia and starve Rome into submission (11.8.5). On Lepidus’ death, Perperna shifted some quite considerable resources (both men and money) to Spain.285 Perperna’s idea on arrival in Iberia, we are told, was to wage war independently against Metellus Pius. This of course falls into a long tradition of Roman triumph hunting—though no triumph can have been expected in this instance. Perperna may have thought that his birth (he had a consular father and grandfather), wealth, and praetorian status entitled him to his own provincia.285 It was a patently unrealistic plan. There of course was no good reason why Perperna should not acknowledge Sertorius as his superior. At this point, Plutarch says Sertorius “was backed by all the people within the Ebro.” In any case, Perperna, as a proscribed ex-praetor of Sicily, was technically inferior to Sertorius, the outlaw pro consule for Spain! All the same, Perperna seems to have tried for some time to make his design work.
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Plutarch says that Perperna’s soldiers forced him to join forces with Sertorius (only) when it was announced that Pompey had crossed the Pyrenees.287 It would be good to know for certain the date when Pompey advanced into Spain. Indeed, the chronology of the rest of the Sertorian War wholly depends on it. Konrad summarizes the modern views: “Pompey’s arrival in Spain has been variously dated to 77 or 76, but with few exceptions, scholars place in 76 his first clash with Sertorius, at Lauro.” For the rest of the war, the traditional chronology has posited “the battles of Valentia, the Sucro, and Segontia in 75, the sieges of Pallantia and Calagurris, and Metellus’ return to the interior, in 74,” and the death of Sertorius in 72.288 Konrad himself offers a powerful argument for placing both Pompey’s arrival and the battle of Lauro in fall of 77.289 Lepidus’ revolt was short-lived. . . .[There is] no reason to date any of the fighting in Italy later than March. The Senate turned its attention to Spain, and appointed Pompeius, immediately after Lepidus had left Italy—they did not wait until after his death. . . . Pompey’s Spanish expeditionary force was ready in forty days or so, perhaps much sooner. . . . Four or five months seems a reasonable estimate for his march from Rome to Spain. To reach Lauro by September he would have to set out in April or May; but there is reason to believe that 77 was intercalary, in which case . . . Pompey’s departure may be moved up to as early as March.
Konrad also offers a case for dating the assassination of Sertorius to 72, though one that is much less muscular and which ultimately fails to convince.290 This is not the place to take up the vexed question of the chronology of the whole Sertorian War, especially since it was an entirely “consular” affair after the year 77, and as such lies outside the strict scope of this study. Yet it does matter for our study of the praetorship whether Pompey simply passed through Gallia Transalpina in 77 or stayed there through the winter, and whether he was the sole commander in that Gallic provincia when he did whatever he did. Appian offers the first obstacle to Konrad’s reconstruction of arrival in Spain already in 77. He says that it was the fear of Sertorius and Perperna joining forces and marching on Italy that prompted the Senate to send “another general [i.e., Pompey] and army” to Spain.291 Now, we have seen that Plutarch has the two rebels join forces only when Pompey was at the Pyrenees. But the two accounts are not necessarily contradictory. It is safe to assume that the Senate foresaw the possibility of a juncture as soon as Perperna set sail from Sardinia to Spain. It would not know (or perhaps even care) about Perperna’s desire for an “independent” command. Then there is the matter of Pompey’s appointment and march to Spain. The process of appointment will not have taken that long (see 11.8.1), but it was hardly instantaneous. True, Pompey, once he was granted this command as pro consule, is said to have quickly prepared his army—though within a timespan surely not too much short of the “forty days” Sallust’s Pompey claims in the letter (from winter 75/74) in the Histories.292 That letter (unfortunately) is the fullest source on the initial stages of Pompey’s Spanish campaign. Sallust has Pompey make four main
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assertions regarding the early part of his command. He opened up a new Alpine route, which meant driving an enemy that was allegedly poised to attack Italy all the way from the Alps into Spain. (Appian confirms that Pompey created a new pass.)294 He “took back” Gaul, the Pyrenees, Lacetania (in northeast Iberia), and the Indigetes, and withstood the first attack of Sertorius (who had numerically superior forces). He had his winter camp (we are not told which year or years) in hostile territory. Pompey also conducted winter campaigns. Broughton295 observed of Pompey’s letter that it “admits no interruption in activities from the raising of his army to his settlement in winter quarters (inter saevissimos hostes) after his first battle with Sertorius.” In truth, the letter seems very tendentious. For instance, in it Sallust’s Pompey says nothing explicitly of Lauro— just “I weathered the first attack of the victorious Sertorius,” which is an artful allusion to that defeat, and his subsequent success in not being totally destroyed by Sertorius. That said, Pompey’s opening of the Alps and the march through Gaul will have taken some time. We must remember that when Pompey received his Spanish commission, Transalpina was effectively without a commander. That was on account of the disaster of L. Manlius in late 78 or early 77 (who had taken three legions out of Gaul and then lost them) and the revolt of the cos. 78 M. Aemilius Lepidus (who was ostensibly pro cos. 77 for the two Gauls). So when Pompey is made to say that he “recovered Gaul,” perhaps his statement is not pure rhetorical exaggeration. The trophy Pompey set up at the end of the Sertorian War in the Pyrenees (as reported by Pliny) recorded the capture of towns in Gaul, perhaps a large number. And Cicero several times speaks of Pompey’s “bellum Transalpinum.”296 13.4.4 The Praetorian Command of M. Fonteius in Transalpine Gaul Another possible obstacle to Konrad’s reconstruction is the evidence of Cicero’s Pro Fonteio. That oration does not figure much in Konrad’s chronological studies.297 Yet the material of this speech seems quite germane to the present investigation. Quaestor in 85 or 84 and afterward a legatus in Hispania Ulterior ca. 83 and then Macedonia,298 M. Fonteius later held a praetorian command in Gallia Transalpina, and was defended by Cicero when he faced repetundae charges sometime after 70 B.C. The date of his praetorship is irritatingly problematic, since Cicero offers only a few hazy chronological pointers in his defense speech. He says Fonteius spent a triennium in Gallia Transalpina, and was in that provincia while Q. Metellus Pius and Pompey were fighting Sertorius. When Fonteius was governor, Pompey’s army wintered in Gaul, evidently at its full strength. At some point, Pompey also issued a decretum by which hostile parties in Gaul “were forced to withdraw from the lands” (“ex agris . . . decedere sunt coacti”). And Fonteius is said to have been very successful at repeatedly drumming up grain and money for the armies in Spain, as well as supplying cavalry for Rome’s wars which at that time were being waged “over the whole world.”299 That last item is especially vague, since Rome had far-flung military commitments in the 70s even before the outbreak of the Third Mithridatic War in 73.300
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Broughton301 suggests a praetorship for Fonteius in 76 or 75, with the Gallic “triennium” falling in 75–73 or 74–72. Konrad apparently favors the earlier of these two timespans.302 There is, however, one small piece of evidence that Broughton (and Konrad) have missed, which may turn out to be relevant to this question of chronology. A Titurius helped Fonteius implement his first scheme for raising revenue, one the praetor is said to have thought of while still in Rome: the collection of a transit tax on wine within the Gallic province.303 Since the name is so rare, he is plausibly to be identified with the moneyer L. Titurius L.f. Sabinus304 and the legatus Titurius whom Pompey placed in charge of a winter camp in Celtiberia in what must be 75/74.305 Indeed, Titurius is very likely to have been from the start a legatus of Pompey. His tax-collecting operations at Tolosa must belong to the period soon after Fonteius arrived in Gaul, and (if the identification with Pompey’s legatus is accepted) most naturally is placed in the winter in which Fonteius hosted Pompeius’ full army. But when can that have been? Only 75/74 is positively excluded as Pompey’s “Fonteian” winter, since that was the occasion (as we know from Sallust’s letter) Pompey needed grain so badly that he threatened to march on Rome. But it does seem that Pompey’s army is best described as “maximus atque ornatissimus” previous to its hard fighting (and heavy losses) against Sertorius, that is, in 77/76 before that commander entered Spain. Elsewhere in Cicero, the phrase “ornare exercitum” suggests—as we would expect—a newly equipped army.306 However, Pompey did of course receive substantial reinforcements for 74,307 so the point is not quite decisive. Notwithstanding that caveat, I suggest Fonteius was pr. 77,308 and that his “triennium” was in fact a bit of 77, and all 76 and 75, that is, three campaigning seasons.309 On this interpretation, the Senate sent Fonteius in his year of office to fill in for the unexpected loss of M. Aemilius Lepidus (cos. 78), and perhaps to relieve the hapless L. Manlius, who had been defeated in both Aquitania and northeast Spain by early 77.310 The context of Pompey’s decretum ordering individuals “to stand out of the way” should be his difficult initial march to his command against the Sertorians, also in 77.311 I also suggest—as many scholars have postulated312— that Pompey wintered in Gaul and only entered Spain in spring 76. We have seen that Sallust, in the letter he ascribes to Pompey implies he had a hard time getting his army through the Alps and had to “retake” Gaul. There is no telling whether Fonteius was already there when Pompeius first arrived: perhaps not, since it does seem as though Pompey found the whole southern part of the province in chaos. The fact that Fonteius is said to have fought a war against the Vocontii—just about the first tribe one encountered upon entering the provincia— suggests that he too worked on safeguarding the passage between Italy and Gaul. That task probably came early in his command, for Cicero claims that Fonteius caused these and other inhabitants of his provincia to send grain and money to Iberia “semel atque iterum ac saepius.” (Incidentally, Cicero’s formulation here is entirely consistent with the “triennium” of 77–75 I have suggested above.) The year 77 is a reasonable date for the collection of the potentially lucrative wine tax by the legatus Titurius and others.313 And Sallust’s letter of Pompey relates that Gaul was supplying Metellus with money and food in 76; the year 75, however, saw agricul-
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tural disaster in the province, and by year’s end Pompey had exhausted both his personal resources and his credit. Plutarch confirms this grim picture when he explicitly states that it was an acute food shortage that caused the Roman armies to separate for winter 75/74.314 In short, the possibilities for Fonteius’ “triennium” as a praetorian commander in Transalpine Gaul seem limited to either the years 77–75 or 74–72, but the cumulative weight of circumstantial detail favors the earlier of these two periods. I suggest that winter 77/76 saw Metellus in Hispania Ulterior, and Pompey in Gaul near the Pyrenees where (as Sallust’s letter attests) he had to do some campaigning. The memory of L. Manlius’ disaster in northeast Spain was still fresh. One can understand if Pompey took care in his preparations before descending into Iberia for spring 76. 13.4.5 Pompey’s Arrival in Spain On the above interpretation, that Vatican fragment from Livy Book 91 belongs to late 77 and early 76. It corresponds to the summary statement in Periocha 91, that “Sertorius stormed some cities and took numerous states under his control” (“Sertorius aliquot urbes expugnavit plurimasque civitates in potestatem suam redegit”). However, against Konrad, it offers not the epilogue to battle at Lauro (which the Periocha does not mention), but the dramatic preliminaries to Pompey’s arrival, before he has crossed the Pyrenees. In the actual fragment,315 we get first the siege (forty-four days) and capture of Contrebia by Sertorius. Next, there is a description of his winter camp at Castra Aelia (location unknown), from which Sertorius orders the manufacture of arms throughout the “provincia,” and where he hosts a conventus of the friendly Spanish peoples. The rebel arrangements for the spring (i.e., 76) follow. Perperna—now fighting in union with Sertorius—is to protect the eastern coastal regions against Pompey: Sertorius is said to have instructed Perperna on what routes to use against Pompey “to defend the allied cities which Pompey would attack (quas Pompeius oppugnaret). Meanwhile, Hirtuleius is to guard against Metellus in the “other province” (i.e., Ulterior). Pompey, it is said, was heading toward Ilercaonia and Contestania, the northeast coastal areas of Citerior allied with Sertorius. There is nothing in this passage so far to exclude the interpretation that Pompey was newly arrived in Spain. Sertorius’ own strategy, we are told by Livy, was to avoid Pompey, whom Sertorius in any case “did not believe would enter into battle” (“neque in aciem descensurum eum credebat”). Konrad, following Maurenbrecher, believes “Sertorius had no basis for such an assumption until after Pompey’s disaster at Lauro.’316 Yet the disaster dealt to the last Roman commander to cross into Spain— the praetor for Transalpina, L. Manlius, who had three legions—can just as easily explain Sertorius’ confidence at this moment. Sertorius’ first targets were the Berones and Autricones, tribes in northern Spain who had hampered his siege of Contrebia. Over the winter, they had summoned Pompey, “sending guides to show the road to the Roman army.” Konrad is right that the road in question is “to the Highlands and the upper Ebro Valley,” not the passage across the Pyrenees. But it
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does not necessarily follow that “by implication, Pompeius was already in Spain.”317 These tribes simply wanted Pompey on his arrival in Spain to make them his first priority. One thinks of Plutarch’s statement here, that (even) many of Sertorius’ cities looked toward Pompey, but changed minds about shifting their allegiance after the disaster at Lauro.318 Next, Livy states that Sertorius, not knowing which army to turn against, advanced up the river Ebro. There he devastated the territory of several towns, finally encamping at friendly Calagurris. When the Berones learn of Sertorius’ arrival, the fragment breaks off.319 It was in this campaigning season that Pompey and Sertorius will have had their first military encounter. The catalyst was Sertorius’ attack on the town named Lauro. Pompey was unsuccessful in his attempt to protect the place. After twice defeating Pompey, Sertorius, evidently with the aid of Hirtuleius, went on to sack and destroy Lauro, deporting its population to Lusitania.320 The Sertorian Lauro was evidently a place of some consequence, to judge from the ferocity of fighting for its control. Yet topographical clues to its location are few—precisely two, in fact. Plutarch mentions a prominent hill overlooking the town, which is too vague to be of any real use. Orosius however says that Pompey gathered his army “apud Pallantiam” after his defeat before the town.321 Most of the various identifications for Lauro which have been offered lie on or near the east coast of Spain.322 A plausible candidate for the identification is the area near Llerona del Vallès, about thirty kilometers northeast of Barcelona (and so quite close to the Pyrenees), which in this general period had a town that issued numerous coins with the legend “Lauro.” Yet Konrad deems “the most attractive candidate” Schulten’s solution, that Lauro is identical with La Pedrera, near Puig, about ten kilometers south of Sagunto. As it happens, the geographer Ptolemy mentions a river Pallantia on the east coast, and Palancia is the modern name for the river of Sagunto. Orosius’ “apud Palantiam” is odd Latin if Palantia is a river. But he may well have thought that “Palantia” was a town. It is not unlikely that Orosius here was using Livy through an epitome, and was simply relating what he was given.323 If Lauro was indeed so far south down the east coast of Citerior, it would offer further (slight) support for the year 76 as the date of the battle. The Vatican fragment of Livy places Metellus Pius in Hispania Ulterior at the beginning of 76. How does he fit into this reconstruction? Orosius gives the only relative chronology of Metellus’ movements in this stage of the war. He has Metellus, having been “exhausted by many battles,” making a purposely circuitous path to wear out the enemy “until he could join camp with Pompey” (“donec Pompei castris consociaretur”), who meanwhile has been defeated at Lauro. Orosius then mentions a victory of Metellus over Hirtuleius at Italica, which caused Hirtuleius to have to flee into Lusitania. The death of the “Hirtuleii” (there was evidently a brother) comes still later, at an encounter that must be Segontia (one of the “Three Battles” of the year following Lauro). Frontinus confirms Orosius on this last point by placing the death of Hirtuleius at a time when Sertorius was also fighting a battle. Other sources tell of fighting between Q. Metellus Pius and the Sertorian “quaestor” Hirtuleius. Unfortunately, none of these accounts quite match up. In the Periocha, Q. Metellus Pius kills Hirtuleius and defeats his army already in Book
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91 (which covers 77 and part of 76). Florus notes a crushing defeat of the Hirtuleii at “Segovia” before he mentions in his narrative the battles at Lauro and the Sucro. Frontinus speaks of preparations for a decisive battle between Metellus and Hirtuleius, and also a conflict between the two (no place named) in “the hottest time of the year.” And a fragment of Sallust speaks of a battle in which Hirtuleius was wounded, Metellus almost so.324 The narrative of Orosius (supplemented by Frontinus) seems preferable to the implication of the Periocha and Florus that Hirtuleius was killed before the year of the “Three Battles.” One suspects that in the Periocha the epitomator may be collapsing several items. And Konrad persuasively has argued that Florus’ “Segovia” is really part of the final conflict between Metellus and Hirtuleius at Segontia. Konrad continues: “[T]hat leaves Italica as the only distinct engagement between Hirtuleius and Metellus; since his victory enabled Metellus to leave his province, Ulterior, and join forces with Pompeius along the East Coast, Italica should be dated to the same year as the ‘Three Battles,’ that is, Valentia, the Sucro, and Segontia.” The remaining passages—Frontinus on the battle preparations and the heat, Sallust on the wounding—should be assigned to Italica as well.325 Here Konrad seems right on the attribution of passages and the (relative) chronology of Italica, which must belong to Year 2 of Pompey’s command in Spain. Yet Konrad also believes that the first meeting of Metellus and Pompey is “securely dated” to Year 2, after the battle of the Sucro. That, he argues, is what Orosius is alluding to in his notice that Metellus took various byways “donec Pompei castris consociaretur,” despite the fact that it is placed immediately before the Lauro incident.326 Now, Plutarch does describe how Metellus Pius arrived the day after Pompey won a partial victory in the battle at Sucro over Sertorius. Pompey ordered his lictors to lower their fasces before Metellus. Yet Metellus, though technically superior, forbade it. Plutarch then describes how the two commanders conducted their joint operations. He is obviously sketching a very general picture here, since the next item mentioned is Pompey’s notorious letter of winter 75/74.327 What Plutarch does not say is that the incident of the fasces was the first occasion Pompey and Metellus had met in Spain. Indeed, the anecdote just as likely describes a change in the relationship between the two men. On this interpretation, Pompey’s achievements at Valentia and the Sucro had won Metellus’ respect; up to that time, Metellus let Pompey dip his fasces. Orosius, we have seen, prima facie implies a meeting between the two around the time of Lauro. Metellus, he says, took all sorts of byways to effect a juncture. As it happens, a good source may be taken to confirm the hypothesis that the two Roman generals had managed to meet during Pompey’s first year fighting Sertorius, and not just after the Sucro in Year 2. Cicero strongly implies that when Pompey arrived in Spain, he had received a quaestor (his own brother-in-law, C. Memmius) from Metellus and used him as his own—including in the difficult battle at the Sucro.328 To sum up the reconstruction here offered: In the year 77, Pompey received his commission against Sertorius and did some hard fighting in Transalpine Gaul, wintering with the new commander for the provincia, the pr. 77 M. Fonteius. One of Pompeius’ legati even helped Fonteius with tax collecting at Tolosa. In 76
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(Year 1), Pompey crossed the Pyrenees into Spain. His first moves may have been against Lacetania and the Indigetes in the northeast. Yet before too long Sertorius handed him a humiliating defeat at Lauro. Metellus, who had trouble moving out of Ulterior, managed to make contact with Pompey only after the battle; it was then that Metellus’ quaestor (or rather pro quaestore) C. Memmius was transferred to the army of his brother-in-law Pompey. What Metellus and Pompey did for the remainder of this campaigning season is uncertain. But the fact that our sources have no major battles to relate329 does not mean that either was idle. We legitimately can doubt Appian’s report that, during the winter following Pompey’s defeat at Lauro (Year 1) Metellus and Pompey each headed to the Pyrenees, and Sertorius and Perperna to Lusitania.330 In the next year (Year 2, or 75 on my reckoning), Orosius suggests that Metellus had to fight his way out of Hispania Ulterior by defeating Hirtuleius at Italica. There followed the battles of Valentia (where Pompey scored a victory over Herennius and Perperna), the Sucro (a partial victory for both Pompey and Sertorius, with Metellus arriving a day late), and Segontia (where Metellus killed the two Hirtuleii). The chronology of the rest of the war presents no really significant problems for this particular study. Winter 75/74 had Metellus in Gaul, Pompey in Ulterior; in 74/73 Pompey wintered in Gaul, Metellus in Ulterior. The two subsequent winters apparently saw both commanders in Iberia.331 Sertorius was assassinated in 72 (see above), and both Metellus and Pompey were to return to Italy to triumph in late 71. 13.4.6 The Successors of Pompey and Metellus Pius It was surely the praetorian commander M. Pupius Piso Calpurnianus who succeeded Q. Metellus Pius in Hispania Ulterior. Pupius’ flagrant triumph hunting later was to be criticized by (his relative) L. Piso Caesoninus (cos. 58): evidently (and unsurprisingly) there was not all that much fighting to be had in this provincia at this point. Yet Pupius Piso got his triumph, in the year 69.332 So at the least he was in Spain for 70 and (surely) part of 69. We soon find another praetor in Ulterior, one C.(?) Antistius Vetus. By his time, the province was demonstrably boring. The date of Antistius’ praetorship (for which his city activities are unknown) and promagistracy in Hispania Ulterior depends on that of his subordinate C. Caesar’s quaestorship, which Broughton assigns with confidence to 69.333 In truth, the year 68 looks more plausible for that quaestorship. We hear that Antistius delegated some routine legal responsibilities to Caesar in the province. But Caesar, right after what was evidently his first visit to Gades, asked his commander to let him quit Ulterior “as soon as possible” to take part in political events in Rome and left the province before he had a successor. Despite a diversion in Cisalpine Gaul, Caesar made it to Rome in time to support the Gabinian law of early 67.334 So it seems reasonable to suppose that Antistius at any rate was pr. 69, and had Caesar—surely a quaestor of 68—in his provincia only for the year 68. Unless there was a pr. 70 who had Ulterior ex praetura for just one year, Antistius on his arrival in Spain in 68 will have found Pupius Piso’s quaestor or legatus holding the province (perhaps for an extended timespan by that point). We can-
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not tell how long Antistius himself had to stay in the provincia. It must have been for more than one year. Pupius’ counterpart in Hispania Citerior apparently had been L. Afranius, the future cos. 60. Afranius had fought alongside Pompey in command of one of the wings at the Sucro, a battle that I assign (see above) to the year 75 (Konrad places it in summer 76). Afranius is then not attested again until ca. 71, when he (evidently) picks up the siege of Calagurris on the upper Ebro from Pompey. He later triumphed, apparently from this command.335 That Afranius held the praetorship is of course assured by the fact he reached the consulship in 60. And he must have triumphed ex praetura. Even with his friend Pompey’s support, Afranius could hardly have received the honor as a privatus. But a date for these items is hard to find. In Broughton’s view, Afranius first came to Spain as a legatus, and then sought and won the praetorship not long before the war’s end, which brought him back to Hispania Citerior (the provincia implied by his presence at Calagurris). For his praetorship Broughton tentatively suggests 71, followed in 70–69 by a provincial command and the triumph. Konrad quite provisionally makes Afranius a legate under Pompey in Spain 77–73, pr. 72, pro cos. in Hispania Citerior 71–67, with a triumph in 67.336 If Afranius went to Spain first as a legatus, a good opportunity for his return to Italy for election would be the “quiet year” of the war,337 Year 3 of Pompey’s presence in Spain—on Konrad’s reckoning 74, on mine 73. However, any reconstruction involving a return for praetorian elections raises its own problems. Would Afranius have received the province immediately, or after first serving a year in Italy? Through a “lucky” draw of the lot or extra sortem? (The assignment obviously cannot be pure coincidence.) One also has to factor in the situation with Spartacus. Alternately, it is at least possible that Afranius was pr. 77 or 76, sent by the Senate to rationalize the command of the privatus Pompey as pro consule (or rather “pro consulibus,” according to the quip) For that, the combination of M. Iunius Silanus and P. Africanus in 210 (7.1.3) provides a distant precedent. But one hesitates to posit such a long command in this period. In any case, Afranius will have triumphed from Spain sometime after Pompey (31 December 71) and before he served as legate in the war in the east against Mithridates (where he is attested starting in 66).338 13.4.7 Praetorian Commands in the Spains, 67–60 For 67, Iberia received two of Pompey’s antipirate legati pro praetore, one off the coast of each provincia.339 Antistius Vetus probably will have been in Hispania Ulterior at the time (13.4.6). The status of Citerior, however, is uncertain. Indeed, after L. Afranius, no proper praetorian commanders are known for that provincia until the early 50s. We do hear of an odd arrangement for the year 65. A number of sources (including one epigraphic text, now lost) report that the Senate dispatched Cn. Calpurnius Piso as a quaestor pro praetore to Hispania Citerior. This Cn. Piso is perfectly well known. He was an adherent of Catiline and is widely charged with complicity in the first Catilinarian conspiracy. The Senate, we are told by Sallust, was eager to get this young man out of the way, though some right-thinking indi-
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viduals thought he might serve as a useful counterbalance to Pompey in the east. Indeed, Crassus is said to have influenced Piso’s appointment, out of hostility to Pompey. Once in the provincia, Piso was killed by some of his own Spanish cavalry—either because of his cruel behavior in the province, says Sallust, or because they were clients of Pompey’s. Whatever the cause, his death (by mid-64) surely will have facilitated those accusations of earlier involvement in a conspiracy (including a plan “to kill the Senate”) and of a later scheme to seize both Spanish provinces for Catiline.340 It has been suggested that the praetorian commander for Hispania Citerior had died, and Cn. Piso was sent as a replacement.341 But if so, we might positively expect our (uniformly hostile) sources to blame Piso for such a death. A more recent hypothesis makes Cn. Piso the proper governor of Citerior. “Sometimes a quaestor or ex-quaestor would be sent with praetorian imperium to govern a province,” states C. Eilers. He adduces the example of Cn. Piso—“who went to govern Nearer Spain as quaestor pro praetore”—as one of “the most famous cases.” Eilers then seeks to build on it, arguing that this is one way the Romans compensated for the shortage of praetors in their administrative system.342 That lost inscription did evidently say Piso “quaestor pro pr(aetore) ex S.C. provinciam citeriorem obtinuit.” Yet quaestorian provinciae are amply attested.343 And even a quaestor under someone else’s command or a legatus can be said “obtinere provinciam.”344 Cumulatively, the evidence suggests that Piso’s commission in Spain was anything but a routine administrative expedient. Sallust says that Crassus’ special influence was needed to push through the appointment, though “the Senate had not given him the province unwillingly.” Asconius thinks that Piso went to Spain “per honorem legationis.” Suetonius reports that the “provincia Hispania” was given to Piso “ultro extra ordinem.”345 Cn. Piso will have been quaestor for 65, and the evidence strongly suggests he received the (quaestorian) province of Citerior extra sortem. The Senate must have intended him to fulfil some special task, perhaps in addition to normal quaestorian responsibilities.346 That would explain the special grant of imperium. The case of P. Cornelius Lentulus Marcellinus in 75 (11.4), another “extra ordinem” grant of praetorian imperium, is a more elaborate instance of the same type of commission. But, specifically what the Senate had charged Piso to do is quite unclear. We hear of disturbances of Spain in 64, though it is evident that Piso himself (at least later) was blamed for causing them.347 Perhaps Cn. Piso was meant to hold Hispania Citerior in lieu of a pr. 66 who had drawn the province but (for whatever reason) could not take it up immediately. Or perhaps Piso proposed his own project for the provincia and requested a significant military force to see to it. The Calpurnii Pisones, after all, had considerable links with Spain.348 That might explain why Asconius considered Cn. Piso’s appointment “per honorem legationis.” There is some contemporary evidence to suggest the Senate might acquiesce in such a personal mission. In the year 64, a Campanian eques P. Sittius—who will have had a lot less potentia than a Calpurnius Piso—set out from Italy and had been able to collect a small army, evidently from Hispania Ulterior, in his effort to reclaim a large debt from the king of Mauretania. As it happens, Sittius too came under suspicion of supporting
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Catiline. It is particularly frustrating not to know what praetorian commanders were in charge of Citerior and Ulterior at this time. It does seem reasonable to assume that throughout the 60s and first half of the 50s both the Spanish provinciae came up separately in the praetorian sortition. The evidence of these years even hints at a policy of regular succession. C. Cosconius (pr. 63) received Hispania Ulterior for 62, and stayed one year in the provincia. He had as his successor C. Iulius Caesar, a former pro quaestore (as we have seen) for Ulterior in 68 and a praetor of 62. Caesar’s praetorian command provides another striking instance of the sors opportuna.350 Caesar’s actual departure from Rome was not so fortunate. His creditors went so far as to seize his baggage to get him to pay his private debts. One is reminded of the Mamertines, who obstructed the praetor C. Cato in this way (but for a different purpose) almost sixty years earlier (13.1.2). But here we have private citizens hobbling a Roman commander in a domestic setting. It is amazing that neither the Senate nor tribunes seem to have cared. Caesar got back his baggage only when another privatus—M. Licinius Crassus—stumped up enough of the money to satisfy the most aggressive creditors.351 Suetonius says that Caesar then departed for Spain even before the Senate voted him the requisite funds and equipment, either in fear of being brought to trial as a privatus (which seems technically impossible), or “to help the allies more quickly who were begging his aid” (which sounds like a pretext).352 Surely, one of Caesar’s main aims will have been to escape further harassment by his creditors. Another was to smuggle a client prince of Numidia out of Rome.353 Military operations began immediately after arrival in the province, says Plutarch. Caesar held a supplementary levy and marched on the tribes of the west and (later) extreme northwest of Hispania Ulterior. Apparently, none of these were in open revolt. Caesar could have occupied himself, it is implied, just controlling the regular brigandage in the province. Instead, he embarked on a systematic conquest of all of its independent tribes.354 It is clear that Caesar above all was looking to make money and to win an imperatorial acclamation, all in preparation for a consular bid.355 Plutarch reports that he managed to enrich himself and his army, and (in the same breath) notes that those soldiers hailed him as imperator.356 (It would not be surprising if in general there was a material component to the imperatorial acclamation.) Appian reports that Caesar also sent considerable money to the public treasury. That no doubt was to facilitate the Senate’s vote of a triumph. Appian also says Caesar had little use for the routine duties of provincial administration.357 Plutarch, however, gives a different story, with some very specific details on how Caesar attempted by his edict to reconcile the competing claims of creditors and debtors in his provincia. Cicero also tells against Appian in his description of Caesar’s lawgiving at Gades.358 But those civil activities probably belong to winter 61/60. Caesar calculated, says Dio, that after a campaign in Callaecia in early 60 he had done enough for a triumph.359 He was in a hurry to get back to Italy in time for the consular elections; both Suetonius and Dio explicitly remark that he left the provincia without waiting for a successor.360 Now, it seems to have been unexceptionable for a commander with imperium to depart from his provincia before his
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successor was in place.361 The fact that our sources bother to comment on it in Caesar’s case may suggest that no successor was imminent—in other words, Ulterior had not been allotted to a new commander for 60. Cicero shows that Caesar was expected in Rome by June 60,362 so he must have left quite early in the year, after just a bit of campaigning in Callaecia. There were precedents of wellconnected commanders boldly abandoning their province in the hope of a triumph or consulship, without serious repercussions.363 If no pr. 61 had received Ulterior ex praetura—see 13.2.6 on the shortage of available commanders precisely at this time—a delegatee of Caesar will have had to hold it for the better part of a year, perhaps even longer. The epilogue to this story is well known. Seeking to retain his right to triumph, Caesar attempted to get dispensation from a (relatively recent) law that one had to make a professio for the consulship in person. Many in the Senate opposed the exemption, in particular Cato, who obstructed Caesar’s request up through the last day for declaring one’s candidacy. (It is worth suggesting that his early return lost him some potential support.) So Caesar had to enter the city and lose his military auspicia. Yet he did, of course, get his consulship.364 13.4.8 The Spanish Provinciae in the 50s The arrangements for Hispania Ulterior for the next few years are unknown. But we do find P. Cornelius Lentulus Spinther (pr. 60) getting Citerior “through Caesar’s help” (presumably through cheating in the sortition) for 59. His command should have extended into 58. It was in this year that Spinther definitely returned to Italy and—again, we are told, thanks to Caesar’s support—was elected consul for 57.365 We do not know what happened immediately next. Lentulus Spinther may have had a successor in Citerior for 58. The alternative—as I have suggested for Caesar as commander for Ulterior—is that he left a quaestor or legatus holding the provincia for the remainder of 58, and perhaps beyond (the arrangements for 57 are wholly unknown). Soon, trouble is attested for both the Spains. Sex. Quinctilius Varus (pr. 57) had Ulterior for 56; during his tenure, rebels at Gades expelled and then slaughtered members of the local senate.366 That same year, Q. Caecilius Metellus Nepos (cos. 57) set out for Citerior, albeit slowly (he stopped at the April conference at Luca on his way to the province). It is unclear whether Nepos was prorogued through 55; but in that year we are told he had to deal with a rising of the Vaccaei, in the west of his province.367 His command was the first occasion (to our knowledge) that either Spanish provincia had been declared consular since the time of the Sertorian War, which shows that the situation in Iberia had become quite serious. Even before the Vaccaei rose up, a tribunician bill (the lex Trebonia) had handed the two provinciae to the cos. II Cn. Pompeius for five years.368 There was enough precedent for this type of multiyear command. In this decade, Caesar as cos. 59 had taken up as his promagisterial provincia the two Gauls and Illyricum for five years (renewed for another five in 55) (15.2.4), and Pompey himself had a five-year grain commission voted to him in 57 (11.8.2). In 55, Pompey’s consular colleague Crassus got five years of imperium for Syria (11.5.3).
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What was unusual about this Spanish command was that Pompey did not like the notion of actually going to Iberia. “His plan was to let legati subdue Spain while he took in own hands affairs of Rome and Italy.” Thus Dio, adding that the plebeian tribunes tried to obstruct Pompey and Crassus, especially by interfering with their legates and their levies. Pompey is said to have avoided serious interference by sending his two legati out early; they arrived in Spain certainly before the end of 55.369 One of these legates was L. Afranius—as we have seen, a praetorian triumphator from Citerior and later cos. 60. Perhaps Afranius returned to his (putative) former provincia; however, we are never told the precise arrangements for these legati, or what they did in Iberia. The other was M. Petreius, a pr. 63 and certifiable vir militaris who was widely said to have earned C. Antonius (cos. 63) his imperatorial acclamation against the Catilinarians in 62. Pompey evidently also had quaestors go to Spain as his subordinates. In 51, we hear of Pompey mooting some alternate arrangements (government by five praefecti, apparently a set for each province). Later in that year, there were reports that he would go to Iberia and take up his joint provincia in person. Yet those rumors of course proved empty. Afranius and Petreius remained (it seems) in Spain down through 49 B.C.370 It was no doubt a bit disorienting for many to see a full consular commander in Citerior for 56 and then a legatus (albeit a senior one) replace him in that same province for 55. Caesar in the Bellum Civile sums up his own perceptions in the context of 49. Pompey, he claims, had devised against him commands (imperia)371 of an unprecedented type. He wanted simultaneously to have control of domestic affairs and hold two of the most warlike provinces in absence for a prolonged period. The rights of magistrates had been perverted, to the disadvantage of Caesar; “Men were being sent to provinces not in the regular fashion, namely ex praetura and ex consulatu, but having been approved and selected by just a few individuals”.372 One notes, however, that those legati helped Caesar when he needed it.373 In truth, the idea of a commander holding a province in absentia was not quite new. C. Calpurnius Piso exercised control over Transalpine Gaul even as cos. 67 in Rome. One century earlier, a praetor of 168 may have done the same thing for Sardinia.374 There were other factors too. Pompey had a long history of letting legati do a good part of the work of his ambitious commands. The commission in 67 B.C. against the pirates is just the most outstanding example. There, he secured imperium for each of a large number of legati (some quite senior in status) and then set them up in independent quasi-provinciae. The campaign against Mithridates that followed provides more instances of Pompey’s subordinates seeing to some unusually substantial chores. Pompey revived the basic structure of his pirate command for the grain commission of 57, but there we are less well informed on the particulars.375 Iberia by now had its own tradition of government for longish spells by legati. Appian believed that legates held Spain in the years ca. 105–100; as we have seen (13.3.1), the evidence at least for Ulterior positively contradicts him on this point. But C. Valerius Flaccus (cos. 93) must have allowed his subordinates a good deal of independence during his long tenure (a dozen or more years) in the two Spains and Gaul. The same must be true of Q. Metellus Pius, cos. 80 and then pro cos. in
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Ulterior, who de facto was responsible for Citerior after the disaster of L. Manlius (late 78 or early 77) down to Pompey’s arrival in early 76. After the Sertorian War, even our patchy evidence suggests that a legatus may have held Ulterior for a significant interval between the departure of M. Pupius Piso in 69 and the arrival of Antistius Vetus in 68, and again after the departure of C. Iulius Caesar in early 60; Lentulus Spinther just possibly left Citerior to a subordinate for most of 58. If one looks outside Iberia, many more examples (both possible and certain) of this type of interim arrangement present themselves. In sum, Pompey’s notion to govern the Spanish provinciae through two senior legati strikes one as an exploitation of a variety of preexisiting administrative precedents, some none too salutary, but precedents all the same.
14
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14.1 Macedonia in the Pre-Sullan Period When the commander L. Calpurnius Piso (cos. 58) returned from Macedonia to Rome in 55, Cicero tried to convince the Senate that Piso’s failure to ask for a triumph was suspicious in itself. “There were some (aliquot) with praetorian imperium, but no one with consular imperium who returned unharmed (incolumis) from this province, who did not triumph.”1 Here we can check for accuracy. The provincial fasti for Macedonia in the period 122–81 are quite full, and then down to the year 50 almost wholly complete. If we take incolumis both literally (“safe and sound”) and metaphorically (“unimpaired by prosecution”),2 Cicero cannot be shown wrong on the consular commanders.3 For the praetors, however, he badly distorts the picture. After Q. Caecilius Metellus “Macedonicus” in 146, T. Didius is the only praetor known to have triumphed from the provincia (probably in the year 100). Even imperatorial acclamations are rarely attested for praetorian commanders in Macedonia.4 In short, the record suggests that praetors might have long commands in the province, yet when possible the Senate had men of consular rank take on severe fighting. That tendency grows particularly marked in the decades after Sulla. 14.1.1 Praetorian and Consular Commands in Macedonia down to 101 The first commander attested for Macedonia in the post-Gracchan period is the praetor Sex. Pompeius, now known to have been in the provincia by the twenty-seventh year of its provincial era (121/120).5 Pompeius was prorogued at least once in Macedonia, since he met his death there apparently a year or two later against the Scordisci. An inscription of Lete in Macedonia (from the month Panemos in Year 29, i.e., July 119) honors Pompeius’ quaestor M. Annius P.f., who was still in the provincia at that time.6 This text recounts in detail how Annius took command of 521
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the Roman army after Sex. Pompeius had fallen at Argos, near the Epirote border. Annius routed the enemy and recovered the fallen dead (including the praetor). Then, in a second engagement he beat back a combined force of Scordisci and Maedi, without bothering (we are told) the locals of Lete for money or manpower. In return, Lete decided to include an equestrian competition commemorating Annius in the annual games which honored the town’s benefactors. The inscription notes also that Annius “has tried to hand over the provincia to those who have succeeded him after keeping safe all those in the territory, at peace and in the most settled condition.” The reference to individuals “who have succeeded” (in the plural) by the time of this inscription should be to a praetor and quaestor of 119. The death of a praetor in his provincia was a serious matter. But the fact that the cos. L. Aurelius Cotta had Illyricum for 119 (10.5.4) must have precluded the possibility of declaring also Macedonia consular. Pompeius’ replacement may have been the praetor Cn. Cornelius Sisenna. In any case, Sisenna is known to have adjudicated an ongoing dispute between the managers of the Isthmian games and the Athenian guild of Dionysiac artists in the month Hyperberetaeus of Year 30 of the Macedonian era (August–September 118). The two groups met with the commander at Pella (the head city of the Macedonian district of Bottiaia); on Sisenna’s judgement, the Isthmian representatives who were present agreed to pay a fine of ten talents. (The guild, however, later was to rescind that decision, which led to fresh conflict.)7 How long Sisenna stayed in the provincia is unknown. The next certain incumbent in the province is the cos. 114 C. Porcius Cato, a grandson of both the famous censor and L. Aemilius Paullus (and nephew of Scipio Aemilianus).8 Trouble with the Scordisci had caused Macedonia to be declared consular for that year. Cato suffered a major defeat in Thrace, allegedly losing his entire army to the Scordisci. He was relieved after a single year, and prosecuted repetundarum on his return. Yet this Cato escaped with just a minor fine, an outcome that confirms Cicero’s description of him as “potentissimus.”9 Three more consuls would follow in uninterrupted succession into the year 106. C. Caecilius Metellus Caprarius (cos. 113) was in the provincia for probably just one year. Since he triumphed from Thrace on 15 July 111—on the same day as his brother, a cos. 115 for Sardinia (see 13.1.1)—he seems to have spent more time waiting outside Rome to coordinate that impressive display of family power than he did in his military provincia. M. Livius Drusus (cos. 112) was at least expected to be in Macedonia by mid-June 112. In that year, the prolonged dispute between the Isthmian and Athenian guilds of Dionysiac artists had prompted the city of Athens itself to make a petition to the Roman Senate. As part of its settlement the Senate instructed Drusus to hold a hearing in his provincia on the public funds belonging to these groups. And that was despite major problems with Scordisci!10 Dio tells us that M. Drusus—as a reaction to Cato’s disaster, and in his desire for glory—instituted a regime of lighter discipline for his troops. (Perhaps he was trying to pave the way for an imperatorial acclamation.) But he evidently campaigned successfully in Thrace against the Scordisci, eventually (1 May 110) earning a triumph over that people (the name is a reasonable supplement for his entry in the Fasti). Ammianus and Rufius Festus report that Drusus “kept the Scordisci
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from leaving their borders.” Florus says Drusus “forbade them to cross the Danube.”11 So one wonders whether M. Drusus—and not (as is often supposed) his successor M. Minucius Rufus (cos. 110)—is the commander honored in an epigram from Demetrias: “Having looked at the boundaries of the Ister, you expelled (the) Gaul.”12 Finally, the consul M. Rufus received Macedonia as his provincia for 110. Though Rufus seems to have scored a major victory over “Thracians” by the year 108, he only returned to Italy into the year 106. It was to be the longest proper command in this provincia in the period of the free Republic. The background to Rufus’ repeated prorogation (four times in all) must be the fact that Rome was simultaneously waging major (i.e., consular) wars in Numidia and against Germanic tribes in Gaul. The first two extensions are not so surprising, especially if Rufus’ big victory came only in 108. The Senate certainly had no consuls to spare for Macedonia in 107,13 and apparently did not want to send any praetors while a substantial military risk remained. M. Minucius Rufus finally triumphed shortly before or on 1 August 106 for his fighting in Thrace against the Scordisci.14 M. Minucius Rufus will have been succeeded by a praetor, but precise details are lacking. C. Billienus or C. Cluvius—each attested as pro cos. at Delos, Billienus quite probably at this precise time—may have been commanders in Macedonia (the alternative is Asia). However, the first certain incumbent after that string of consuls is C. Memmius (the former tr. pl. 111), at an unknown date, but certainly after 107 and before 101 B.C. An inscription from Messenia shows the ajnquvpato~ Memmius—accompanied by the strathgov~ Vibius—honoring in person a secretary of the local synhedrion. In this inscription, the two Romans consistently receive those (different) titles. All the same, Broughton suggests that Vibius may have been “a governor of the Macedonian province,” succeeding Memmius. Yet it is clear from this epigraphic text that Vibius was just the person most closely working in Messenia, where he supervised the collection of money from the community. He might be simply a quaestor or legate at the head of some troops, holding delegated imperium at the most.15 One can readily imagine how even a minor functionary might make an extraordinary impact in an area like Messenia.16 Memmius on his return from the province was tried and acquitted on a charge de repetundis. He later offered himself as a consular candidate for 99, but was murdered by his rival Glaucia.17 14.1.2 The Command of T. Didius and the Lex de Provinciis Praetoriis One of the consuls of the year 98 was T. Didius, a recent praetorian triumphator from Macedonia. He had defeated the Scordisci in Thrace; Cicero counts him as one of the great generals who triumphed from Macedonia. (As mentioned above, no praetor since Q. Metellus Macedonicus had done it before, and no praetor would achieve this feat again.) The Livian Periocha does not mention Didius’ campaign, and the triumphal Fasti are lacunose at the relevant point, so the chronology of his command has been hard to pin down.18 Yet thanks to the discovery of a major inscription from Cnidus (10.1), we are now exceedingly well informed on
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some of the Senate’s arrangements for Macedonia when Didius departed from his provincia, in either 101 or 100. The new commander for Macedonia, we are told, is to send to the cities and states in his jurisdiction a copy of the present law—which announces especially the formation of a new praetorian provincia, “Cilicia.” He is also to proceed to Chersonesus and Kainike (a district of Thrace on the Euxine)— both of which T. Didius has just conquered—and to govern that for a period of at least sixty days. So should subsequent commanders. The primary stated concern is the collection of public revenues, and the protection of “friends and allies” from being driven out of the territory. (The law does not specify by whom.) The commander should also “as soon as possible” set the boundaries of the taxable part of the Chersonesus “just as it seems to him best.” In addition, the law provides (evidently) for the discharge of certain veterans in Macedonia, delineates the provisions in case of the commander’s or the quaestor’s resignation (the powers of each are to remain in force in transit), and spells out some limitations under a praetorian lex Porcia—apparently new—on the movements of the commander for Macedonia (or Asia) outside the provincia. We also get some elaborate provisions against the nonobservance of this law.19 Some provisions, when taken in combination with others in the law, do not quite make logical or practical sense. Chersonesus and Kainike are described as an ejparceiva (provincia) that is to be annexed to another ejparceiva, namely, Macedonia.20 The new commander is ordered by senatus consultum to set the administrative boundaries of Kainike as he sees fit: obviously a major responsibility for an individual magistrate, and one that potentially imparts great power. However, the law requires that commander (and the commanders to follow) to remain in the newly annexed districts for two months of each year. (The stipulation seems burdensome, considering the size of “Macedonia,” its complex political geography, and the length of its dangerous northern frontier.) Without a senatus consultum, the commander is not to lead a military expedition outside his provincia (the bounds of which this new magistrate will partly determine). He must prevent members of his staff from doing so, too. Yet even in case of abdication, the commander is empowered, until his return to Rome (and thus outside the provincia), “to investigate, to punish, to administer justice, to make (legal) decisions, to assign arbitrators or foreign judges,” and to handle sureties, restitution of properties, and manumissions in the same way “just as in his magistracy it was permitted.” Apart from the surprising—indeed, paradoxical—point about abdication, this last bit offers a good summary of some of the attributes of imperium, and the activities a commander might be expected to perform in his provincia and (again, surprisingly) in transit. It seems hopeless to try to resolve these various contradictions, which we should probably ascribe to the fact that the law contains tralatician elements in addition to some new (or at least partly new) provisions. For example, in this law, the future commander for Macedonia (or Asia) is described as “praetor, pro praetore, or pro consule,” alternately “praetor or pro consule,” alternately “magistrate or pro magistratu.”21 There is no serious doubt that whoever received either of these provinciae will have had consular imperium. So we are justified in treating the wording here as traditional, taken over from earlier laws on the staffing of territorial
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provinces. The subelements in the pirate law might contain different strata, too. Consider the praetor M. Porcius Cato and his legislation restricting a commander’s movements, probably passed earlier in the same year as our epigraphic law (12.4.3). Quite possibly, he had taken over an old prohibition on a commander marching beyond his provincia—the issue had been a burning one already about seventy years earlier, thanks to the aspirations of C. Cassius Longinus (cos. 171) to fight a Macedonian war—and simply added a new proviso (e.g. extension of the prohibition to a general’s staff) to make his lex Porcia. 14.1.3 The Promagistracy of C. Sentius in Macedonia We have no commanders we can posit in the province for the seven or so years after T. Didius, until the arrival of C. Sentius, a pr. urb. 94, who was then ex praetura in Macedonia from 93 down into 87. Now, it has long been thought that L. Iulius Caesar (the future cos. 90) held a praetorian command in Macedonia. An L. Caesar is honored at Samothrace as pro consule.22 And a tetradrachm issue minted by a SVVRA LEG PRO Q.—most naturally taken as Q. Braetius Sura, attested as a legatus of Sentius in 88 and 87—continues that of a quaestor AESILLAS of a CAE(sar) PR(aetor).23 This evidence would seem to suggest that the two commanders were contiguous in this province, with Caesar obviously preceding Sentius. But H. B. Mattingly adduces a powerful numismatic argument for reassigning these sources to the praetorship of this man’s son, the L. Caesar who was cos. 64. Mattingly persuasively defends D. M. Lewis’s identification of SVVRA LEG PRO Q. as L. Caesar’s brother-in-law P. Cornelius Lentulus Sura (cos. 71, pr. II 63), that is, after his expulsion from the Senate by the censors of 70.24 To return to the pr. 94 C. Sentius: At some point in his long ex praetura command Sentius saw a certain Euphenes proclaim himself “king of the Macedonians” and try to stir up the people who inhabited the old Macedonian royal territory to revolt from Rome. The intervention of a friendly Thracian king made Euphenes abandon his project without fighting. That was fortunate for Sentius, who throughout his command seems to have had his hands full on the province’s northern frontier. In 92, “Thracians” dealt Sentius a major defeat. Three or so years later they were still largely unchecked.25 In 88, Mithridates added considerably to Sentius’ woes when he instigated the Thracians to launch a major invasion of Roman Macedonia. Dio says they “overran Epirus and other parts [sc. of the province] as far as Dodona, going even to the point of plundering the temple of Zeus.” Cicero speaks of a provincewide revolt against Sentius except for (most notably) the Denseleti. Yet Sentius rose to the occasion. Orosius relates how Sentius kept the Thracian king Sothimus out of Macedonia. There is reason to believe that he also beat back Mithridates’ son Ariarathes, at least temporarily.26 And in the south, Sentius’ legatus Q. Braetius Sura scored some significant successes on both sea and land against some powerful Mithridatic generals. The activities of this individual offer a remarkable illustration of how independently a legatus might conduct himself in the field. Braetius defeated the navy of Metrophanes, stormed the enemy treasury on Sciathos (on his own initiative taking some severe punitive measures), and then
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advanced into Boeotia, where, in a prolonged battle at Chaeronea, he fought to a stalemate with Mithridates’ general Archelaus and the Athenian quisling Aristion. After a success against Archelaus in Attica, Braetius eventually headed back to Boeotia, evidently looking for further action. And this despite the fact that the cos. 88 L. Cornelius Sulla—now pro consule, with the Mithridatic War as his provincia—was on his way to Greece. In the event, Sulla’s quaestor L. Lucullus had to order the legatus to leave Boeotia and return to his superior officer, Sentius. This Braetius immediately did, though (as Plutarch has it) he singlehandedly was on the verge of winning back Greece for the Romans. No source indicates that he held delegated imperium, though we cannot exclude that possibility.27 We do not know precisely when Sentius returned to Italy, but it was after at least six and a half years of hard fighting in Macedonia, in an ex praetura command at that. His example highlights the deep problems that beset Rome’s administrative system even before the outbreak of the Social War. It is particularly revealing that in 91 Sentius did not receive a replacement, even after a serious defeat the previous year, in his third year of imperium. It is certainly possible that “it was Sentius himself who wished to stay on and avenge the defeat he had suffered.”28 But the important thing is that the Senate now allowed an unsuccessful commander to stay in his provincia—other options might not have been available. Sentius managed as best he could. By the time of his departure he even managed to make an enormous profit from a food shortage in the province, apparently by selling his surplus rations at a high price.29 14.1.4 Praetorian Commands in Macedonia during the First Mithridatic War In early 87, the pro cos. Sulla arrived in western Greece with five legions. His first step was to requisition money and men from Aetolia and Thessaly: no help would be forthcoming from Rome, which by now had outlawed him. Once properly organized, he marched into Boeotia—which crossed back to the Romans, including Thebes—and then into Attica. There he divided his army. Sulla’s own troops moved against the Peiraeus, while another part was to lay siege to Athens. The city finally fell on 1 March 86. Both Plutarch and Appian stress that Sulla from the start was in a hurry to get back to Rome. However, Sulla was to campaign a total of more than three years in the east, returning to Italy in spring 83.30 There is no need for the purposes of this study to recount the course of Sulla’s campaigning in Greece, or the arrangements he made there. Nor do we need to discuss the countermeasures of the Cinnan government: how L. Valerius Flaccus, cos. 86, crossed to Asia with Fimbria to fight Mithridates (only to see, while still in transit, some of his troops desert to Sulla), or the massively unsuccessful attempt of the coss. 84 Cinna and Carbo to cross to Liburnia on the north coast of Illyria, which led only to a mutiny and Cinna’s death. The only particulars that concern us here have to do with three possible praetors or praetorii on Sulla’s staff, L. Licinius Murena, L. Hortensius, and a Galba. Their stories are interconnected. Murena appears at the siege of the Peiraeus in 87, where he helps Sulla in an early battle against Archelaus.31 After Sulla had taken
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Athens and burned the Peiraeus in spring 86, Plutarch says his goal was to meet up with L. Hortensius, a strathgiko;~ ajnhvr (and apparently elder brother of the orator, Q. Hortensius L.f. Hortalus) who was leading a force southward from Thessaly. This episode of the war had a local interest for Plutarch, for he then proudly relates how a man from his home town of Chaeronea guided Hortensius around hostile forces at Thermopylae.32 It was near Chaeronea itself that Sulla soon forced a battle with Archelaus. Sulla commanded on the right wing, put Murena in charge of the left, and had Hortensius and a Galba—both termed legates by Plutarch—guard against attacks on the flanks.33 Quite later, when Sulla in 85 had started campaigning in the Thraceward region while waiting to see if Mithridates would come to terms, Hortensius shows up fighting against Maedi and Dardani. Galba is not heard from again in this war. Cichorius may be right that Galba is to be identified with the Ser. Sulpicius Galba who was active as a legatus (perhaps even as a praetor) in the Social War (10.5.4). Since Hortensius is said to be a “praetorius” (Plutarch seems well informed on this man), Galba—who had similar duties as Hortensius’ at Chaeronea—perhaps was one, too. Murena for his part had an important independent command in Asia in the years after 84, with the celebration of his triumph in (probably) 81, after his recall by Sulla. Cicero attests to his praetorship; in any case he cannot have triumphed with merely delegated imperium. The date of Murena’s actual magistracy must be 88 or 87. So he was a prorogued praetor (or rather considered himself such) during his service in the east.34 We may ask whether L. Licinius Murena at the time of his appointment was meant simply to function as an adiutor to the pro cos. Sulla. After all, Sulla had two senior legati on his staff, perhaps both praetorian in status. Is it possible that Murena had received “Macedonia” as his formal provincia but never managed to take it up? Now, Badian has suggested that the praetor P. Gabinius (pr. 89 or, more probably, 88) relieved C. Sentius in his long Macedonian command.35 But the hypothesis that Gabinius had an ex praetura command in this province has its difficulties. Two events after his praetorship are known from this man’s career. First, in the year 76, P. Gabinius was able to head a legation of three XVviri s.f. (the other two were an M. Otacilius and an L. Valerius) which transcribed and brought back to Rome about one thousand verses of the Erythrean Sibyl. Second, Verres’ exquaestor Q. Caecilius Niger tried to prosecute Gabinius (apparently) for repetundae, but lost out in the divinatio to an L. Piso, whom “Achaeans”—evidently the injured party—had chosen as their patronus. A trial followed, which led to P. Gabinius’ condemnation and exile.36 That in itself might imply Gabinius once had a command in Macedonia. One problem is that there is no trace of a praetorian commander in Macedonia in early 86. Mithridates’ son Arcathias is said to have invaded and successfully conquered the whole provincia, which a “small” Roman force was trying to guard; the general Taxiles may have helped in this. Appian reports Arcathias even appointed satraps to govern Macedonia, but soon died, while marching against Sulla. By all accounts, Taxiles certainly had no trouble marching through the provincia to meet Archelaus in spring 86.37 Moreover, the Cinnan commander L. Cornelius Scipio Asiaticus is found in the provincia of Macedonia perhaps later
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in 86, but certainly by 85. Scipio fought and destroyed a large group of Scordisci, and came to an agreement with the Maedi (who by that point had robbed the sanctuary of Delphi) and Dardani. He may also have captured Philippi as well. It is clear that it was he who recovered the provincia of Macedonia for the Romans. But Scipio probably left when Sulla marched with Archelaus toward the Hellespont in 85. There is certainly no sign of him when Sulla initiated his own campaign against the Thracians late that year. At any rate, Scipio returned to Italy by 84, since he fought against Sulla as cos. 83.38 There is one further argument against the praetor P. Gabinius as a commander for Macedonia, especially as the successor to C. Sentius. It is hard to see how the Achaeans—who had sided with Mithridates before Sulla’s arrival in Greece39— could get a Roman praetor convicted for his conduct around 87 toward them. Though prosecution on such grounds is not inconceivable,40 the legation to Asia of the year 76 offers a plausible enough context for offences against Achaeans, that is, while P. Gabinius was in transit to or from Erythrae.41 In modest support of this reconstruction, one notes that we also never hear again of Gabinius’ fellow XVviri s.f. on that legation, though both nobiles: all three legati may have been disgraced.42 Sulla sailed west to fight for control of Italy in spring 83. But we have no indication what administrative arrangements he made for Macedonia and Greece for the period after his departure. Indeed, each of the years from 83 down through 81 is a blank. This may be where an amazing statement by Cicero in the De Provinciis Consularibus (56 B.C.) comes in handy. Cicero remarks that when the province of Macedonia was free of fear from its neighboring tribes, the Romans used to maintain it in peace with only a small garrison force, “through legates without imperium” (“sine imperio per legatos”). There is no other period in our (admittedly defective) record that allows this statement so well as the years 83–81. The independent efforts of Scipio Asiaticus and then Sulla had brought peace to the province’s northern frontier. And once Sulla had placed Murena in charge of Asia in 84, he had nothing other than legati at his disposal for Macedonia. (The government in Rome, of course, could not try to send any praetor to the east in 83 or 82.) To end with two speculative points. Either the legatus L. Hortensius (a certifiable praetorius, who now had some experience against Thracians), or the legatus Ser. Galba, or both, held Macedonia: one notes that neither of these men show up in the civil warfare that followed Sulla’s return to Italy. Further, the interim arrangement I suggest here might be the background to the notorious case of C. Antonius (the future cos. 63), who at some point had used cavalry “de exercitu Sullano” to rob Achaeans, for which he was prosecuted in 76.43
14.2 Macedonia in the Post-Sullan Period 14.2.1 The Command of Cn. Dolabella in Macedonia It was perhaps natural that the new Sullan government in 81 should declare Macedonia a consular provincia. M. Minucius Rufus, the cos. 110 who triumphed over the Scordisci in 106, had been the last consular commander to receive the
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province for its own sake. The Roman administration of Macedonia in the late 90s and all through the 80s was particularly catch-as-catch-can. And during those same years, the province had seen any number of raids from the various tribes to the north as well as a fullscale invasion (and briefly successful takeover) by Mithridatic forces. The new commander was to be the cos. 81 Cn. Cornelius Dolabella, attested in the provincia for 80. We have no record of what this man was up to during his magistracy in the city, other than that he and his consular colleague are said to have looked insignificant compared to Sulla when the dictator paraded with his twenty-four lictors.44 It is possible that Dolabella, despite Sulla’s apparent ideal of ex magistratu provincial commands (11.1.3), set out for Macedonia during his actual consulship. For that, there are good parallels for Spain (13.4.2) and Asia (14.6.1) in the year 81 B.C. Macedonia badly needed a proper commander, especially if (as I have argued) one or more legati had been in sole control of it since early 83. What few can have foreseen is that Macedonia would remain a consular provincia almost all through the 70s (and for about a third of the two decades to follow). Cn. Dolabella is attested in Thessalonica in the year 80, meeting with envoys from Thasos, which had remained loyal to Rome in the Mithridatic War. Following this embassy, Dolabella took steps to implement a senatus consultum confirming certain rights and privileges Sulla previously had conceded to Thasos, including an expansion of its subject territory.45 That is all the detailed information we have on what Dolabella did in his provincia. But we can assume that quite a bit of Dolabella’s time—and perhaps that also of his immediate successors—was spent precisely in this way, seeing to the practical application of the privileges and punishments Sulla had meted out during his command in Greece and Macedonia.46 Cicero tells us that M. Fonteius (as we have seen in 13.4.4, a quaestor of 85 or 84, legate ca. 83 in Hispania Ulterior, and a praetor for Transalpine Gaul in the mid-70s) was a legatus in Macedonia at a point when the Thracians had entered the province and were threatening its cities. Fonteius, says Cicero (in a quite rhetorical passage), had to save Macedonia “not just by planning but also by might.” Broughton dates that legateship to the year 77, under the later Macedonian commander Ap. Claudius Pulcher (cos. 79, and arriving in his provincia only some time into 77). Münzer took Cicero quite literally, and thought Fonteius had an independent command after Appius’ death in 76. But it may be that Fonteius served under Cn. Dolabella. In that case, any time from the year 81 seems possible: perhaps even precisely the year 81, preceding Dolabella in the provincia and holding it until his superior’s arrival. Dolabella must have done some fighting, too: his triumph on his return, according to Cicero, was “iustitissimus.”47 The one thing that our sources are interested in telling us about Dolabella is that the young C. Iulius Caesar unsuccessfully prosecuted him for repetundae following his Macedonian triumph. Caesar had served under P. Servilius Isauricus (cos. 79) in Cilicia in 78. He returned to Rome, as Suetonius has it, following the news of Sulla’s death, bringing Dolabella to trial after the revolt of M. Lepidus (cos. 78, pro cos. 77) had been quelled. The case established Caesar’s oratorical reputation, but also generated its share of invidia. The specific accusations against Dolabella are not recorded, but Plutarch tells us that many cities of Greece wit-
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nessed against him. But it was not easy to bring down a noble who was a consular triumphator.48 14.2.2 Consular Commands of the 70s Cn. Dolabella may have remained in Macedonia from 81 or (certainly) 80 down into 77. Ap. Claudius Pulcher was supposed to go to the province ex consulatu for 78, but fell ill at Tarentum. Pulcher returned to Rome and stayed there that whole year. One would like to know whether he took care to preserve his military auspices by not crossing the pomerium. It seems unlikely: as it happens, in the crisis of early 77, Pulcher found himself named interrex; he was in that office precisely at the time L. Philippus pushed through the senatus consultum ultimum against M. Lepidus. Under the terms of Philippus’ motion, Pulcher was to join other holders of imperium in taking up the defense of the city.49 The cumulation of offices—pro consule and interrex—is noteworthy, and indeed more than a bit confusing. To be elected interrex by his fellow patrician senators and then to function in the magistracy, Ap. Pulcher presumably did enter the city. Once he crossed the pomerium, he (again, presumably) will have lost his consular military auspicia. When Pulcher was ready to set out for Macedonia later in 77, he quite likely needed a fresh grant. The Senate hardly would have refused him, especially since at this very time it had seen fit to give the equestrian Cn. Pompeius consular imperium for Spain. The question of Pulcher’s technical status in Macedonia, though unanswerable on our evidence, does seem an important one. The possibility that he took up his province a year after his magistracy as (formally) a privatus with consular imperium would provide a precedent for the measures of 53 and 52 (11.1.7) that institutionalized such an arrangement. Ap. Pulcher campaigned successfully as pro consule in 77 against the Scordisci and in the area of Mt. Rhodope. Our sources (virtually all epitomators) suggest there were a number of battles; Florus says he reached as far as the Sarmatae. Pulcher surely was prorogued in Macedonia for a second year. But he died from illness sometime in 76 in his provincia.50 The next commander in Macedonia was the cos. 76 C. Scribonius Curio, who no doubt had expected to go there only ex consulatu. He was active in the city during his magistracy, certainly into the spring or summer. Broughton says that he “proceeded before the end of the year to Macedonia.” That may be so, but Broughton’s claim rests only on an inference from Frontinus, who describes how “C. Curio consul” quelled a mutiny at Dyrrachium. We need not suppose that Frontinus is trying to be technically accurate here: this author can be spectacularly careless in his substitution of “consul” for “pro consule.” For what it is worth, Eutropius has C. Curio go to Macedonia only “post consulatum.” But Curio was definitely in place in the provincia by the beginning of spring 75. Until his arrival (whether in late 76 or early 75), the Roman province—now said to be in grave danger—must once again have been held for some length of time by a legate or quaestor.51 Eutropius lists the highlights of Curio’s command, which are enough for our purposes here. He proceeded to Macedonia after his consulship, subjugated the
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Dardanians, reached the Danube, and earned a triumph, putting an end to the war after less than three years of campaigning (“intra triennium”). No other source specifies the length of his command. (Though Cicero also mentions Curio’s triumph, we cannot assign it to any precise year.)52 The terminus must be the arrival of the cos. 73 M. Terentius Varro Lucullus in Macedonia. Under the Sullan system, one expects that M. Lucullus would take up Macedonia ex consulatu, that is, for 72. But Broughton thinks Lucullus may have gone to the province during his term as consul.53 His evidence is Cicero’s statement that when Dio of Halaesa—whom Verres victimized immediately after his arrival in Sicily as governor in 73 (13.2.3)—appealed to Q. Hortensius in Rome, M. Lucullus, “who was at that time in Macedonia,” had a better understanding of Dio’s plight than Hortensius did. One should remember, however, that Hortensius was praetor repetundis for 72, and it was surely in that capacity that Dio sought him out. So the relative chronology Eutropius provides for Curio’s command may be perfectly good; taken by himself, this author implies the pro consule fought into late 73. The Livian Periocha certainly allows it. Livy apparently narrated Curio’s exploits in Books 92 (surely concerned with the year 75) and 95 (apparently later 73). The successes of the “pro consule” M. Lucullus were related in Book 97, which apparently spanned from late 72 through mid-70.54 C. Curio will have returned to Rome in 72, when M. Lucullus was set to arrive or had already arrived in Macedonia. Lucullus was to conduct a vigorous campaign that started with a major victory over the Bessi and then continued with further conquests on the shores of the Euxine and as far as the Danube. He even conducted a naval operation against Apollonia in the Euxine itself, though one suspects it was merely to get hold of its colossal statue of Apollo that he hauled away and later dedicated on the Capitol. Some late sources imply that he extended the bounds of the Roman provincia to include some Thracian districts. However, the Senate recalled Lucullus—already hailed imperator—all the way from Thrace to help put down the slave revolt in Italy. Lucullus reached Brundisium relatively early in 71, while Spartacus was still active. He no doubt had to wait to triumph until after the conclusion of that revolt. The date of his predecessor Curio’s triumph cannot be pinned down. It is perfectly conceivable that on arrival in Italy in 72, he first received some military duties in the slave war, then at its height. Whatever the date of his triumph, it should precede that of M. Lucullus over the Thracian Bessi.55 14.2.3 Praetorian Commanders in Macedonia, ca. 71–63 Once the Senate recalled M. Lucullus, Macedonia became a praetorian provincia for a time, perhaps already for 71. Now, Cicero in the Verrines alleges that Verres in early 70 tried to arrange the prosecution of a senator who had been active in Achaea in order to postpone his own extortion trial. According to the Scholia Gronoviana on the Verrines, Verres’ target was a certain Oppius, a “praetor” for “Achaea.” But another passage, in the pseudo-Asconian Scholia Sangallensia, suggests that Oppius was the prosecutor Verres had suborned, not a former governor being prosecuted in 70. Even in antiquity this was evidently a much-discussed
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Ciceronian problem, and one can only guess at the solution.56 If it was an Oppius who was being investigated (rather than doing the investigation), it is just possible that the man in question is P. Oppius, the quaestor of M. Cotta (cos. 74) in Bithynia, whom Cicero defended in his Pro Oppio sometime after late 70. The charge would have to do with offences committed in Achaea while in transit to or from Bithynia.57 Yet that is merely a stab in the dark. After M. Lucullus’ departure from Macedonia in 71, the first or one of the first praetorian commanders in the provincia may have been L. Iulius Caesar. L. Caesar had served as quaestor (or pro quaestore) in Asia probably in 77 and was later cos. 64. Mattingly has suggested that this individual “could well have been praetor as early as 70 B.C.” and held an ex praetura command in Macedonia sometime in the period 69–67 B.C. (but no later, on numismatic grounds) (see 14.1.3). During that time, argues Mattingly, his quaestor Aesillas minted a large number of Roman tetradrachms at Pella and Thessalonica. Caesar’s brother-in-law P. Cornelius Lentulus Sura (cos. 71, but now freshly expelled from the Senate by the censors of 70) continued that issue at Thessalonica as legatus pro quaestore, presumably since Aesillas had died. Mattingly’s basic identification of the Macedonian governor L. Caesar as the future cos. 64 (against the general view that it was his father, the cos. 90), and his explanation of the puzzling tetradrachm seems not just plausible but practically necessary.58 The only real problem with Mattingly’s reconstruction has to do with the precise dates of Caesar’s provincial command. He must have been in Macedonia by 70, with P. Cornelius Sura joining him after receiving his nota from the censors of that year.59 That is because there is really no room in the fasti for the years 69–67. Broughton’s suggestion, that L. Aurelius Cotta (pr. 70, who passed a lex iudiciaria late in that year) is to be identified with the “L. Aurelius” who as pro consule met a Rhodian embassy at Amphipolis is an excellent guess. If correct, he will have proceeded as pro consule to Macedonia in 69.60 We must also fit in the praetor “Rubrius” under whom the younger (M. Porcius) Cato served as military tribune. Plutarch (our only source on Rubrius and his command) implies that he was already in the provincia of Macedonia when he received Cato, apparently in the year 67.61 If correct, Rubrius’ actual praetorship should belong to the year 69 rather than 68, with at least 68 and 67 as the period of his tenure of Macedonia. There is reason to think that he remained in the provincia all through 67. Before that year was up, L. Cornelius Sisenna (pr. 78)—one of Pompey’s legati pro praetore, and responsible for ridding the coast of Macedonia and Greece of pirates—could sail off to interfere with the command of Q. Metellus (cos. 69) in Crete. Sisenna took his own soldiers with him, never to return.62 Before long, Macedonia became once again a consular provincia. L. Manlius Torquatus (cos. 65) had the province for 64 and at least part of 63. He was back in Rome, in ill health, by autumn of that latter year, having been hailed as imperator and perhaps even granted a supplicatio. But for whatever reason, he was not able to triumph.63 C. Antonius Hibrida (cos. 63) also received Macedonia ex consulatu, as we shall see (14.2.4). Between the commands of these two men, Broughton places as a praetorian governor of Macedonia the strathgov~ Plaetorius, who is epigraphically attested at Delphi “in the archonship of Habromachus.”64 Broughton
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accepts the common identification of this man with M. Plaetorius Cestianus, a monetalis who also issued coins as aedilis curulis in (probably) 67, and in 66 held the office of iudex quaestionis. Broughton suggests it was probable he was pr. 64 and governor of Macedonia in the year after his praetorship. This is a good guess. M. Plaetorius was eligible to hold a praetorship in 64, and, as an ex-curule aedile, it is reasonable to suppose he might have reached the office at the minimum interval. The promagistracy in Macedonia would be a very short command—sandwiched between that of two consulars—but seems conceivable. Yet Broughton’s suggestion must remain a hypothesis. For a start, one misses Plaetorius’ praenomen in the Delphi inscription, which precludes confident identification. Then, there is the fact that one cannot be absolutely sure whether the simple title Plaetorius receives in the inscription really means “praetor.”65 For this whole question, it would obviously be useful to know when Habromachus was archon.66 In sum, if the Plaetorius who visited Delphi is the same man as M. Cestianus, we cannot disallow the possibility that the inscription refers to a position he held in Greece during the earlier part of his career, at some point in the mid- to late 70s. Or it might be a different Plaetorius altogether. 14.2.4 C. Antonius and Two Praetorian Successors in Macedonia In 63 B.C., the consul C. Antonius obtained Macedonia, apparently extra sortem. Before taking up that provincia, Antonius—or rather his praetorian legate M. Petreius—first had to quash Catiline and his forces near Faesulae early in 62. For that action, Antonius received the imperatorial acclamation and also the Senate’s vote of a supplicatio.67 These honors come as a bit of a surprise. After all, it was a victory over a civil enemy, and Dio reports that there was some doubt whether he had met even the basic technical requirement for number of enemy killed. Antonius’ personal influence must have made the difference here. He was obviously eager to preinsure a triumph on his return from Macedonia. It is easy to see why Antonius—or any commander—might quickly try to to get himself named as imperator, since no one knew for certain whether there would be any further successful fighting before supersession.68 But for Antonius to proceed into his territorial province already possessing that title must have irritated many.69 Once in the province, C. Antonius was badly defeated by the Dardani and (particularly) the Bastarnae. Those setbacks came perhaps already in 62, for there was talk of supersession, indeed even recall by praetorian law, for 61. In the event, Antonius did get his prorogation for that year, and there was no successor until the novus homo C. Octavius (pr. 61, and father of the future Augustus) set out for Macedonia in 60. Yet even then, Antonius tarried in the province until late 60 or even early 59, infuriating those in Rome who had made preparations for his immediate prosecution (apparently) de repetundis.70 That trial was to come only in mid-April 59. Cicero spoke in his former consular collegue’s defense, while M. Caelius Rufus took the role of chief prosecutor. Caelius evidently spent much time on Antonius’ alleged links with the Catilinarians. But Antonius’ incompetence as a general and rapacity as a governor also came under attack. The jury condemned Antonius, who
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left Rome for western Greece. His life there as exile in some ways turned out to be no less grandiose than his arrival in Macedonia as imperator.71 The man sent to succeed Antonius in Macedonia cut a much different figure. C. Octavius’ city provincia as pr. 61 cannot be ascertained, but Cicero says he enjoyed great popularity in Rome for his accessibility and his well-ordered court. But he sometimes exhibited severity, too. Octavius had haled to justice certain exmagistrates who as private citizens had flouted their own decisions. He also forced certain Sullani to return the property which they had stolen “per vim et metum.” So when Octavius drew Macedonia as his ex praetura province, perhaps some noted the irony that C. Antonius fifteen years previously had stood trial before the peregrine praetor for just this thing, using the might of Sullan horse to prey on provincials in Achaea.72 As Suetonius tells us, the Senate also gave C. Octavius a task extra ordinem. On the way to his province he was to take police action against some runaway slaves— leftovers from the revolts of Spartacus and Catiline—who had occupied an area around Thurii. The mission cannot have been an easy one, meant to take only a few days. If the slaves really included ex-Spartacans, they obviously were tough or clever enough to have eluded capture the entire previous decade. Octavius, however, crushed these fugitives, and evidently made it to Macedonia by June 60.73 Antonius for his part might have continued campaigning right up to and indeed after Octavius’s arrival. Under Sulla’s maiestas law, a commander had a full thirty days to leave the provincia after succession (11.1.5). Antonius was free, however, to set the pace of his own return to Italy. He may have devised, for instance, a circuitous cultural tour so as to drag his impending trial into the year 59.74 Octavius (quite properly) did not get an imperatorial acclamation at Thurii for his operation against the slaves. That came only later, in Thrace in a great battle against the Bessi sometime in 60 or 59.75 Octavius himself left Macedonia (surely) in early 58. Velleius and Suetonius both say when he departed from the province he aimed “to seek the consulship” (i.e., for 57), but suddenly died before he could formally declare his candidacy. Much later, after the startling rise of this praetor’s son—now “Octavianus”—Cicero opines that the Macedonian commander “would have been elected consul, if he had lived.”76 It is interesting that no source says anything about Octavius failing (or even wishing) to triumph. As a praetorian imperator, Octavius found himself in the same situation as Caesar did in 60. It is highly likely that he would have to forgo a triumph to make his professio on time for 57. The choice might not have been too difficult a one for Octavius, since in his day triumphs were getting very troublesome to obtain. To be sure, the list of known imperatores of the later Republic who do not triumph (or do not seem to triumph) before the Social War is a short one.77 And as it happens, in our (admittedly defective) record there is no imperator who returned to Rome from the time of Sulla’s dictatorship down into the mid-60s known to have entered the city without an ovatio or triumph. But when Octavius was leaving his provincia in 58, he surely noticed that the only commander to have triumphed without obstruction in the previous eight or nine years had been Pompey from his great eastern command, in 61. Several recent imperatores were forced to spend years outside the city waiting to be voted a triumph: L. Licinius Lucullus (cos. 74, returned ca. 66, triumphed 63),
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Q. Marcius Rex (cos. 68, who died waiting outside Rome in late 63 or 62), and Q. Caecilius Metellus (cos. 69, returned ca. 66, triumphed 62). C. Iulius Caesar, on his return from Spain in 60, just gave up, as did C. Antonius in late 60 or 59 (but for very different reasons).78 After Octavius’ death in 58, no one was to triumph at all for almost another five years. And those that later managed to do so mostly had to wait, namely C. Pomptinus, a pr. 63 who returned from Gaul by 58 and triumphed only in 54, and P. Cornelius Lentulus Spinther (cos. 57), who returned from his provincia of Cilicia in 53 and triumphed in 51. In the meanwhile, there was no shortage of unfulfilled imperatores, most of a much higher social status than C. Octavius.79 All this further undermines Cicero’s tendentious observation (14.1.1) on the “ease” of triumphing from Macedonia.80 Indeed, only one triumph from the 50s seems hassle-free. Interestingly, it is a praetorian one: Q. Caecilius Metellus Pius Scipio (pr. 56 or 55, later cos. 52) triumphed from a command in an unspecified provincia by June 53.81 Octavius’ direct successor in Macedonia was another non-noble: L. Appuleius, a praetor of 59 said to be the first in his family to reach curule office (though not necessarily the Senate). When Cicero was thrown into exile in 58, he eventually headed to this man’s provincia. There Appuleius’ quaestor (and relative) Cn. Plancius harbored Cicero in his official residence at Thessalonica from at least July through late November 58. When Cicero in 54 defended Plancius on a charge de sodaliciis he is tacit about Appuleius’ role in all this, except to say that the governor “harbored the same fears as the others” who refused their aid. One automatically thinks here of the praetor C. Vergilius Balbus, who refused Cicero access to his provincia of Sicily (13.2.6). Cicero, however, soon had to face a positive danger which forced him to leave Thessalonica for a remote part of Epirus. His enemy, the cos. 58 L. Calpurnius Piso, had received Macedonia under a special law of Clodius; Piso was said to have dispatched soldiers to the province as early as November of 58, in anticipation of his own winter crossing.82
14.2.5 C. Calpurnius Piso and His Macedonian Command Piso had received Macedonia under what Cicero terms a “pactio provinciarum.”83 Some background might help. Under the lex Sempronia of 123 or 122, the Senate each year, before the consular elections, chose the two provinciae that the new consul designates were to receive. These “Sempronian” provinces—unlike praetorian ones—were not liable to tribunician veto (9.3.2). A hallmark of the system was the sortition of the two fixed provinciae. In 58, however, the tr. pl. Clodius passed a law which rescinded previous arrangements and gave out the consular provinces to be taken up for 57 individually to the two consuls without the lot (“extra ordinem, sine sorte, nominatim”). The cos. A. Gabinius was first assigned Cilicia. Yet that was soon made praetorian, and Gabinius received Syria in its stead. Piso’s ex consulatu province was to be Macedonia. To underline the purely political motivation of the participants in the “pactio,” Cicero argues that Macedonia—indeed, all provinces except Gaul—were at peace when Piso arrived there in early 57, and remained so
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down into 56. (This is the context where Cicero even claims Macedonia was at times held “without imperium” by legati.)84 But that was not all. Clodius, says Cicero in the De Domo Sua, granted to these men “infinitum imperium” for their respective provinces. At another point in the speech, he charges Clodius with giving Gabinius the rich province of Syria and “imperium infinitum” to go with it. Broughton takes Cicero’s words literally. Now, Cicero refers to “infinitum imperium” elsewhere only in the Verrines, in connection with the pirate command of the pr. 74 M. Antonius. Long ago, J. Béranger, in a masterly philological and historical study, demonstrated that “pour les romains, un “imperium infinitum” est un non-sens.” It was not a technical term, and has nothing to do with the actual quality of the commander’s imperium or the length of his command. Each of the four times Cicero uses the phrase, it is in a hostile context, flinging it as a barb at political enemies. Béranger, however, might be too hasty in lumping together M. Antonius and the coss. 58. When it comes to Gabinius and Piso, Cicero seems to be thinking of something quite definite each of the times he speaks of their “infinitum imperium.” One notes that Cicero’s comments in the Verrines on Antonius’ command are quite general and highly acidic: “infinitum illud imperium” and “in isto infinito imperio.” The corresponding notices for Gabinius and Piso, though hostile, lack the derisive modifiers. They are also embedded in a diatribe based on details.85 The key to the “infinitum imperium” of 58 B.C. must be “boundaries” (fines). Cicero in some related passages emphasizes that Clodius’ law granted each of the consuls precisely the provincial boundaries he desired. Though the consuls’ provinciae were not literally boundless, Cicero is determined to show that Clodius had no business letting a magistrate set the fines of his own provincia.86 Hence Cicero’s decision to recycle here the phrase “infinitum imperium,” which he had coined in the Verrines to describe a wholly different category of command. Let us speculate just a bit further. For Gabinius, Clodius may have introduced into his law the formulation, “Syria and the neighboring lands” (see 11.5.3). It is much harder to guess what Clodius did for Piso that could be characterized as “infinitum imperium,” since the boundaries of “Macedonia” traditionally had been quite fluid. One possible solution is that Clodius gave Piso special power to conduct some extraterritorial jurisdiction.87 Whatever the case, the important thing is that L. Calpurnius Piso for his part does not seem to have claimed that he was anything more than “pro consule.”88 Cicero characterizes Piso’s command as a “triennium.” But it really consisted of only two campaigning seasons and part of a third, with Piso back in Rome by June 55. Cicero openly attacked him in the Senate in (probably) August of that year, the occasion of the In Pisonem.89 In that speech, Cicero—obviously chagrined that no one had yet prosecuted Piso90—is at pains to emphasize the disparity between the commander’s reckless ambitions and his limited personal capabilities. He maintains that Piso, despite the substantial resources at his disposal and the rich military possibilities that Macedonia offered, utterly failed to achieve anything creditable, though he had “three years” to do so. Indeed, Piso “lost his army” through defeat and illegal discharge.91 His most notable campaign was a misguided expedition against the peaceful Denseleti. When the tribe (and
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apparently others) counterattacked, Piso lost control of the towns in the provincia, the Via Egnatia, and indeed had to fortify Thessalonica itself.92 True, Piso was hailed “imperator” (probably already in 57).93 But Cicero alleges that was through the efforts of his legati L. Valerius Flaccus (pr. 63) and Q. Marcius Crispus.94 Despite some inappropriate celebrations in his provincia,95 Piso never had any of the customary dispatches reach the Senate.96 When he returned to Rome, he snuck into the city,97 pretending—for all his earlier triumph hunting—that he disdained a triumph.98 The one thing Piso did have to show for his “triennium,” says Cicero, was the hatred of every constituent element of the province. (Cicero’s litany of the commander’s victims incidentally constitutes an excellent survey of the scope of Roman Macedonia at that time.)99 Elsewhere, Cicero claims that Piso was lucky to have had Macedonia for as long as he did. In 57, the Senate, he says, wanted to “recall” (deducere, revocare) both Piso and Gabinius from their provinces, but Clodius and his powerful backers quashed that notion. Cicero is surely dramatizing the procedure. What he means is that there was debate on whether to reallot Syria and Macedonia to new promagistrates in the sortition for 56100—the same kind of discussion that a year later prompts Cicero’s De Provinciis Consularibus, a Senate speech of late spring or early summer 56 on the arrangements for the year 55. In the deliberations of 56, we learn that four provinciae were in serious consideration for the two “consular” slots stipulated by the lex Sempronia: the cos. 59 Caesar’s proconsular provinces of Gallia Cisalpina and Transalpina, and then Macedonia and Syria. At the time, Cicero says the only major fighting to be had was in Gaul.101 Three main proposals emerged in that debate; I offer here only the baldest of summaries. The first proposal was that Syria and Macedonia should be declared praetorian for 55, so that (barring a veto) Piso and Gabinius be succeeded immediately; the coss. 55 should take up the two Gauls.102 The second was that the coss. 55 should receive (respectively) one of the two Gauls, and either Syria or Macedonia. This plan, of course, permits several permutations, and Cicero discusses two of these—each involving Syria—in depth. There was evidently no deep interest in making Macedonia consular; conversely, no one seems to have allowed the possibility that Gallia Cisaplina might be declared praetorian for 55.103 The third scheme, proposed by P. Servilius (cos. 79) and backed by Cicero himself, was that Syria and Macedonia should be declared praetorian for 55, and then consular for 54.104 In the event, the actual record shows—we do not know the precise outcome of the debate—that Macedonia became praetorian for 55, and Syria consular for 54. So Gabinius continued as pro consule for 55 in Syria, unlike Piso in Macedonia, who was superseded—by a praetor. 14.2.6 Praetorian Commands in Macedonia, 55–50 The man who was to succeed L. Calpurnius Piso in Macedonia was Q. Ancharius, who opposed Caesar as tribunus plebis in 59 and reached the praetorship for 56.105 He is attested as pro consule in the province, but we know almost nothing of his activities, or whether he stayed for one or two years.106 Piso for his part took the news of supersession (and Gabinius’ prorogation) hard indeed, according to
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Cicero, especially since it was a praetor that would replace him. Cicero then depicts Piso’s departure in the same lurid tones as the rest of his command, and stresses that it is meant to characterize the whole. Among other things, he criticizes the fact that Piso delegated charge of the provincia to an ex-quaestor, defying protocol by passing over the aedilicians. We have seen that there was at least one praetorian legatus on Piso’s staff; he apparently was not interested in staying behind, and probably had left already. (Five years later, when Cicero’s term in Cilicia was coming to an end, his praetorian legati would act just the same.) Of course, the main thing this talk of delegation shows is that Piso must have left Macedonia before Ancharius’ arrival.107 It is possible that we might have two more praetorian commanders in Macedonia after the pr. 56 Q. Ancharius and before the start of civil warfare in 49. First, an Athenian inscription records honors from the Areopagus, the Boule, and the People to Gaivo[n——]|kwvnion Gaivou uJon; ajnquvpaton. Broughton convincingly identifies this pro consule with the C. Cosconius who was aed. pl. 57 and also the praetorius Cosconius who was killed by Caesar’s troops in 47. The Cosconii were an established praetorian family; that fact, combined with this man’s cursus and the Fasti for Macedonia, fully allow us to postulate a praetorship in 54 with a promagistracy for 53.108 The evidence for our second commander is quite a bit murkier. An M. Nonius was evidently (praetorian) commander somewhere in the east in 51; Cicero, writing in February 50, commends his administration, as well as that of Q. Minucius Thermus, who was definitely in Asia in 51. For Nonius’ provincia, Broughton initially suggested “probably Crete and Cyrene or Macedonia,” but later (following Shackleton Bailey) narrowed it to “probably Macedonia.”109 Certainty is impossible on the basis of Cicero’s brief notice, but it does seem more probable in any case that someone else had Cyrene and Crete in 51.110 Nonius’ identity and date of praetorship are also a much-discussed problem. It is hard to come up with a single career that would account for the Sufenas whose coin issue commemorated the pr. 81 Sex. Nonius’ celebration of the first Ludi Victoriae Sullanae; the “Struma Nonius” abhorred by Catullus, whose son reached the Senate by 43, when he was proscribed under Antony; the Sufenas acquitted in July 54 of charges (apparently) related to the tr. pl. C. Cato’s electoral disturbances of 56; the eastern governor M. Nonius of 51–50 who earned the praise of Cicero; and the Sufenas found cum imperio in Italy in March 49.111 At any rate, the last two seem identical. One can readily explain how a provincial commander of 51 could be cum imperio in Italy in March 49: he had been hailed as an “imperator” in his provincia and on his return was hoping to be voted a triumph. Cicero (pro cos. for Cilicia for 51/50) of course had precisely this status at the time. Indeed, even before the start of civil war, Cicero realized that so long as he was cum imperio outside the city, he was eligible for another overseas assignment.112 If this reconstruction is correct, the likelihood that Nonius held a command in Macedonia rises significantly. That is the province that Cicero in his attack on Piso is so eager to paint as the triumphal province par excellence.113 Earlier in the 50s, the praetorian commander C. Octavius had departed from there as “imperator,” followed by Piso himself in 55. As it happens, the sad story Cicero tells of the
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quaestor T. Antistius—who was stranded in Macedonia at the start of the Civil War114—shows that whoever had governed Macedonia in 50 had left already for Italy by early 49.
14.3 Africa in the Pre-Sullan Period 14.3.1 Commanders for Roman Africa down through the War with Jugurtha After the establishment of Roman Africa in 146 B.C., we have to wait almost thirty years before we can name with certainty a single commander for this provincia. And that turns out to be a consul. A chance notice in Gellius tells us the cos. 118 M. Porcius Cato (grandson of the censor) went to the province during his consulship, and there met his death. Circumstantial evidence strongly suggests that this command should be related to the troubles within Numidia which later led to the Jugurthine War.115 It is generally agreed that king Micipsa died in that year, after a thirty-year reign, and this led to violence between Jugurtha and his adoptive brothers Hiempsal (whom he soon killed) and Adherbal (whom he dispossessed).116 Gellius’ brief statement on this man need only mean that M. Porcius Cato set out in consular 118. The consul most likely was sent after the news of the violence had reached Rome to keep an eye on the kingdom during its period of transition. There is no indication how long M. Porcius Cato was in the provincia before he died. He may have been prorogued—any number of times (see 9.4.3 for some parallels from distant provinciae in this period). Sallust describes how, not long after Micipsa’s death and Hiempsal’s murder— and so the year 117 or (perhaps) 116—Adherbal and envoys from Jugurtha brought their respective territorial claims to Rome. The Senate sent decem legati, headed by L. Opimius (cos. 121), to restore Adherbal and divide the Numidian kingdom between its two feuding heirs. Sallust implies that this was an autonomous legatio. Indeed, it is its senior member L. Opimius who later received the blame for wrongly favoring Jugurtha.117 Yet there are very few examples of sending out a commission of ten in this way down to this time.118 If M. Porcius Cato was still alive (as cos. or pro cos.) in “Africa,” surely he would be the person to restore Adherbal and settle this contentious frontier, with the decem legati serving as his consilium (cf. 8.5.3). Most probably Cato was dead, or had died before the legatio could complete its work. But it is just possible that it was M. Porcius Cato who in fact brought back Adherbal and then divided the kingdom with the aid of the legati, with Sallust ignoring his role (as he does his consulship), since he never made it back to Rome—and so escaped the political prosecutions which came at the beginning of the next decade.119 There is no use speculating what arrangements the Senate made for Africa following M. Cato’s death, except to say that the volatility of the region doubtless required the presence of a commander in the provincia for each of the years down to the start of the Jugurthine War. We have a few hints that the province remained stable. For instance, in 113, one of the consuls in Rome leased tax contracts for Africa, evidently regarded as collectable at that time. In 112, M. Aemilius Scaurus
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(cos. 115), heading a distinguished legatio from the Roman Senate, arrived at Utica and urged Jugurtha—who was then besieging Adherbal in Cirta—to come ad provinciam (i.e., Roman Africa) for a conference.120 But the Roman embassy accomplished nothing. Jugurtha forced Adherbal to surrender, and then killed him as well as the Italian traders at Cirta. The Senate decided that the consular provinciae for 111 should be “Italia” and a special military provincia, “Numidia.” The designation “Numidia”—as opposed to “Africa”—made it clear that the conflict with Jugurtha was to be a consular war. And throughout the actual years of fighting (111–105), we continue to find only consuls or prorogued consuls in this special provincia. The consular commanders allotted “Numidia” clearly had full powers also in the provincia of Africa, which served as the Roman base of operations for this conflict.121 Several times we hear of the consular commanders who had “Numidia” delegating their powers to a subordinate. In late 111, Sallust says that the cos. L. Calpurnius Bestia left men (no numbers are given) in charge of his army when he returned to Italy to hold the elections. From Sallust’s description of the independent conduct of these individuals—which included some military action—it is not impossible that at least one of them had been given imperium.122 That was certainly the case when Bestia’s successor, the cos. Sp. Postumius Albinus, had to go to Rome to conduct the elections in late 110. He made his brother, the legatus Aulus Albinus, pro praetore in charge of the Roman camp in Numidia. The appointment implies nothing about the presence of a praetor in Africa in the time. On the face of things, the delegation was perfectly appropriate. Sumner is probably right that A. Albinus was already of praetorian rank when he served as legatus under his brother.123 The activity of some tribunes delayed the elections for 109, which detained Sp. Albinus in Italy longer than expected. Aulus in turn launched an ambitious expedition against Jugurtha’s treasury at Suthul—and ended up leading the Roman army to a thorough defeat. Jugurtha forced the Roman legatus into a disgraceful treaty (soon repudiated by the Senate); after making the Roman army pass under the yoke, he had it quit Numidia for the province of Africa. And there the army remained, even after the return of Sp. Albinus, until the cos. 109 Q. Metellus came to supersede him. Orosius125 makes out that at this time, Jugurtha joined to his kingdom “almost the entire” Roman province, which was in revolt. This source is surely exaggerating, since Sallust has Metellus arrive in Africa with no stated difficulty, and then proceed to ravage Numidia. But it is perfectly conceivable that there was trouble in Africa, which would be another reason why it was advisable for the brothers Albinus to stay put. The defeat prompted the tr. pl. 109 C. Mamilius Limetanus to establish his wideranging special quaestio in Rome to try those suspected of making accommodations with Jugurtha (10.6.2), in which Sp. Albinus—but not his brother, the legate—was condemned. A. Albinus even reached the consulship, albeit after a bit of a delay, holding the office for 99.125 The case illustrates vividly the principle— which we have seen in effect almost a century previous (6.1.3), in the episode of Q. Pleminius—that a superior magistrate might be held responsible for the actions of a man to whom he had delegated imperium, especially if the delegatee can be shown to have acted according to the superior’s “order or consent.” Since, in this
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case, Sp. Albinus had delegated his own brother imperium, he may not even have wanted to defend himself by claiming that his subordinate was a renegade. Even if he chose to shift the blame, it might be a hard thing to show that his brother the legatus acted without his “order or consent.” We have one further instance of delegation of imperium for the Jugurthine War. In late 106, C. Marius (cos. 107), when setting off for a minor expedition in Numidia, left his quaestor (or rather pro quaestore) L. Cornelius Sulla in charge of the winter camp pro praetore. This is very much a chance notice; there must have been any number of similar delegations in the field wherever there were commanders holding consular imperium throughout the middle and late Republic. Quaestors like Sulla were a natural choice to receive delegated imperium: as magistrates of the Roman People they were fully responsible for their own actions.126 In the last stages of the war against Jugurtha, early in the year 105, the pro cos. C. Marius summoned to his base at Cirta all Roman senators in North Africa as well as the praetor L. Bellienus, then at Utica. Five legates of king Bocchus of Mauretania had come to Cirta to offer Marius a truce and also get his permission to approach the Senate in Rome for an alliance; Marius wanted to decide on these requests with the most authoritative consilium possible. When convened, most members of the consilium (including Marius’ quaestor Sulla) were in favor of granting the Mauretanians what they wanted. Marius went along with the majority, over the objections of a few fierce dissenters.127 And that is all we know of the activities of L. Bellienus—the only individual securely attested as praetor for Africa from the establishment of the provincia in 146 B.C. down to the Social War. The presence of the praetor Bellienus at Utica in 105 does not necessarily indicate that both “Africa” and “Numidia” were allotted in each of the years of the conflict. However, it is reasonable to think that the Roman province faced internal and external threats throughout the war. We have seen that Orosius speaks of a largescale revolt (and actual territorial losses) in Africa for 109. In 107, Jugurtha offered Bocchus a third of Numidia if he could help drive the Romans from Africa, or at least confine them to that provincia.128 On balance, we might suppose that a praetorian commander held the provincia, at least in the latter portion (109–105) of the war.
14.3.2 The Praetorship of M. Aemilius Scaurus There is only one slight possibility of salvaging an additional commander for Africa from the wreck of this general era, for the period just before the real ascendancy of Jugurtha. M. Aemilius Scaurus (cos. 115) was an unsuccessful consular candidate for 116, and so praetor by 119. The entry in the De Viris Illustribus on Scaurus—a relatively detailed and apparently chronologically sequential sketch—says, between notices of his aedileship and consulship, that he was “praetor against Jugurtha (praetor adversus Iugurtham), yet was conquered by his money.” Broughton, noting that the succession crisis caused by the death of the Numidian king Micipsa came only in 118, considers this statement a mistaken allusion to Scaurus’ service as a legatus in 112 and 111. Taking the De Viris Illustribus at its word is indeed difficult.129
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It is technically possible that Scaurus was in fact a commander in Africa as praetor in 119, and perhaps into 118, and so was there during the transition in neighboring Numidia. “Praetor” for a prorogued praetor is, of course, common in many authors of all periods. And Scaurus is found in 117 or 116 as the Senate’s principal champion of Adherbal, which shows his early interest in Numidian affairs; in 112, Scaurus as legate is said to have been particularly feared by Jugurtha.130 However, one problem is that “adversus” in the De Viris Illustribus elsewhere has a military sense,131 and a Roman command “against Jugurtha” of course makes little sense in the context of 119 or even 118, when (as we have seen) the provincia of Africa was made consular. That makes even Sumner’s solution132 uncertain, namely that the De Viris Illustribus item is a compression of Scaurus’ attainment of the praetorship and subsequent resistance to Jugurtha as a senator in Rome. We do have another possible source for Scaurus’ praetorship, but only slightly less vexing. Asconius133 implies that M. Scaurus held a (praetorian) provincial command in which he extorted enough money from allies to buy himself the consulship, which gave him more provinciae to plunder before having to face prosecution. This notice is puzzling, especially since we know that Scaurus was initially defeated for cos. 116, and so was exposed to prosecution for abuses committed during a praetorship—even if we suppose a lengthy provincial command—for at least one full year before his successful election as consul. Here it seems worth suggesting that Scaurus was indeed praetor in a territorial provincia—perhaps even Africa—but did not face serious danger of prosecution for repetundae on his return. Rather, this charge of “buying the consulship” with money stolen from allies dates precisely to late 116, when P. Rutilius Rufus prosecuted Scaurus (now cos. designatus) for ambitus.134 Rutilius—whom Scaurus was to counterprosecute—will have raised the charge of cupidity not just at the trial but also in his political autobiography, which I suggest is how it found its way from this not particularly consequential trial into later tradition. Whether Rutilius as early as 116 can have alleged in addition that Scaurus was “bribed by Jugurtha” (as in the De Viris Illustribus notice) is of course entirely uncertain.135 14.3.3 Commanders for Africa of the 90s and 80s We can place only two additional regular governors in the provincia for the entire pre-Sullan period: P. Sextilius Rufus and C. Fabius Hadrianus, each attested in the context of the Civil War of the 80s, with Q. Metellus Pius (pr. 88) appearing as an interloper between these two individuals. First, Sextilius Rufus (through a subordinate) in 88 forbade the exile C. Marius to set foot in his provincia. Rufus was perhaps praetor as early as 92, with prorogation down through and beyond the period of the Social War. At any rate, he was in the provincia long enough to be a dedicatee of a twenty-volume translation of Mago’s agricultural work, which one Cassius Dionysius of Utica had turned from the original Punic into Greek.136 How long he stayed is anyone’s guess. It would be surprising, in view of his treatment of Marius, if he dared to return to Rome once Marius’ faction seized total power in 87. Next, Q. Caecilius Metellus Pius, a praetor (surely) of 88 B.C., who, during the Bellum Octavianum of 87, withdrew from Italy to Africa, holding the rank of pro
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consule (10.5.5). Africa was a natural place for Metellus Pius to seek to establish himself, in view of the command his father Q. Metellus Numidicus (cos. 109) held there during the Jugurthine War. And perhaps by late 87 P. Sextilius Rufus had simply abandoned the provincia. Even if not, Pius had reason to believe that Rufus might allow an opponent of Marius to enter Africa. Whatever the case, there Pius remained, down into the year 84, for most of that time apparently in total control of Africa. That appears from the fact that another refugee, M. Licinius Crassus, even joined Pius there for a time (probably in 85), bringing from Spain a private army of 2,500.137 The two had a falling out, and Crassus left of his own accord. Not much later—certainly by 84—the Marian praetor C. Fabius Hadrianus had arrived in the province, and successfully drove Metellus Pius himself out of Africa. By the time Pius quit Italy in 87, he probably had been hailed as imperator.138 Perhaps that status explains why the Cinnans do not appear to have outlawed him as they had Sulla and others in late 87.139 Even when Pius had been fighting against the government’s praetor for Africa in 84, the Senate’s response—so the Livian Periocha 84 implies—was a senatus consultum stipulating “that all armies everywhere be dismissed,” passed “through the agency of Carbo and the Marian faction.” It is only after the Sullan army started scoring successes in Italy in 83 that the consul Cn. Papirius Carbo managed to push through a vote making Pius a public enemy.140 Carbo seems not to have had the Senate’s support for this measure until then. The praetor C. Fabius Hadrianus met a grisly end a year or two after his victory over Metellus Pius. He was burned to death in his official residence at Utica in either late 83 (thus Badian) or 82 (Broughton).141 There was an uprising of some sort at Utica. Accounts vary. Cicero (followed by Valerius Maximus) says that “Roman citizens” who could not stand his avaritia took the lead. Diodorus attributes the deed to “Uticans.” A Ciceronian scholiast (Ps.-Asconius) speaks of a “slave uprising,” that aimed to murder the “principes”—perhaps reflecting an official excuse for the incident. Orosius is the fullest: Hadrianus had a band of slaves that he used for his “regnum,” and it was their masters that killed him and his whole familia. Whatever the precise cause and whoever the agents, almost all our sources are eager to stress that the Romans took no measures to avenge his death. With the Sullan forces now in Italy, one can fully understand why the Marian government might be too distracted to institute a quaestio on the matter. Once Sulla took control of the res publica, he hardly will have cared. Hadrianus’ fiery end soon became a moral example of justifiable homicide of a provincial governor. But Valerius Maximus’ statement that the Senate positively approved of the killing seems to be a dubious extrapolation, perhaps from Cicero’s basic account.142 The Marians kept their grip on Africa after the murder of Hadrianus and despite their own defeats in Italy. The cos. III Cn. Papirius Carbo landed there briefly in 82 before heading to Sicily, where he was to meet his own end at the hands of the pro pr. Pompey (13.1.4). And that same year Cinna’s son-in-law Cn. Domitius Ahenobarbus—though not known to have held any office at the time— managed to establish himself in the provincia, turning it into a haven for the men Sulla was to proscribe. Domitius soon teamed up with Hiertas of Numidia (who had driven off king Hiempsal) and Iarbas of Mauretania, and started planning open
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war. However, Sulla, by that time firmly in power, cut his scheme short. Sulla transferred Pompey from Sicily to Africa, even taking the step of getting a senatus consultum to ratify this addition to his military provincia. Pompey “with amazing speed”—in the space of forty days—defeated Domitius, his Marians, and his North African allies, and quashed all movements in Numidia (where he restored Hiempsal) and Mauretania.143 The outlines of the rest of the story are perfectly familiar. Sulla’s idea was to make Pompey discharge all but one of his (six) legions and wait at Utica for “the strathgov~ who would succeed him.” Pompey, however, had his eyes fixed on a triumph. Though only a privatus, his troops had acclaimed him imperator during the final battle with Domitius, even before his adversary’s death. According to Plutarch’s uncritical account, they allegedly threatened to mutiny if Pompey obeyed Sulla’s order. (Pompey cannot have expected that promised successor anytime soon.) In the end, Pompey forced through what was really his wish, triumphing in all likelihood (as Badian has argued) on 12 March 81, as opposed to that same date in 80 (just possible) or 79 (untenable).144 The presence of Sertorius in North Africa after his defeat in 81 by the Spanish commander C. Annius (13.4.2) seems to me to provide additional support for Badian’s view of an early triumph for Pompey. When a local dynast of Mauretania, hard pressed by Sertorius, sought Sulla’s aid in late 81 or early 80, the best the dictator could do was to dispatch the privatus “Paccianus” with a small force, probably crossing from Spain.145 Had Pompey not defied Sulla’s order, we can presume he would have had to hold the provincia of Africa with one legion for a full year, down into 80. So one of his subordinates must have done it for him.
14.4 Commanders for Africa in the Late Republic Seven praetorian (and no consular) commanders are attested for Africa in the period following Sulla’s dictatorship down to 50 B.C. The evidence for what these individuals did in the provincia ranges from slight to nonexistent. However, there is one (slender) common strand: it does seem that in each instance we at least have to allow for the possibility of prorogation in the province. And in no case is the interval between two known commanders so tight as to demand a tenure of just one year by an unknown promagistrate. Cumulatively, the evidence suggests that the Senate did not place a premium on regular succession in the provincia of Africa during this era. The first attested command is that of L. Licinius Lucullus, the future cos. 74. Cicero reports that Lucullus was elected, in absence, curule aedile for 79, and then advanced immediately by legal dispensation to the praetorship for 78 (“licebat . . . celerius legis praemio”), followed by a promagistracy in Africa (“praetor . . . post in Africam”).146 Cicero does not say what he did there, but in his summary he places no activities between this promagistracy and his election to the consulship (“inde ad consulatum”), which at least permits us to suppose prorogation in Africa. To return to Lucullus’ election to the praetorship: it seems worth suggesting that Lucullus might have owed his acceleration not to his standing as one of the “Sullani,”147 but to a successful prosecution in the late 90s or early 80s. When
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Cicero speaks of “praemia legis,” it is invariably in connection with rewards to prosecutors;148 other Republican sources offer no counterexamples. But there is a snag. The one criminal prosecution reliably attested for L. Lucullus—the famous attack he and his brother made on “Servilius augur”—is said to have ended in an acquittal amidst rioting, and Cicero implies L. Lucullus’ prosecutorial career extended no further.149 So uncertainty remains what lex gave Lucullus that praemium to hold the aedileship and praetorship back-to-back. The next known commander for the provincia is A. Manlius Torquatus. Under Sulla’s dictatorship, there is a quaestor A. Manlius A.f., but the identification of the two cannot be automatically presumed. Manlius proceeded as a praetorian commander to Africa in some year before 68, with the young Cn. Plancius (Cicero’s future client) on his staff. Manlius Torquatus himself probably served as a legatus pro praetore under Pompey in his pirate command of 67, with special charge of the east coast of Spain and the area of the Balearic islands.150 Somewhat better attested is the tenure of L. Sergius Catilina in Africa. Catiline was the nephew of the L. Bellienus who killed Q. Lucretius Afella during his consular bid in 82 (10.5.8) and was condemned for this inter sicarios in 64. Alexander identifies this Bellienus (without query) as the praetorian commander found in Africa in 105 (14.3.1). That seems most unlikely: if the praetor were identical with this defendant he would be more than eighty years old when tried!151 (None of our sources on the trial comment on the defendant’s status or age.) However, the praetor and the defendant were doubtless related, perhaps father and son; and so it is apparent that Catiline, through the Bellieni, had a preexisting link with his promagisterial provincia. Catiline had reached the praetorship by 68, since he departed from his province of Africa, probably late in 66, to present himself as a consular candidate in (surely) the supplementary elections for 65, to replace a pair of consul designates both spectacularly condemned for ambitus. (So he had been prorogued at least once.) Asconius says that Catiline had left Africa specifically to seek the consulship Instead, he found his professio refused by the presiding consul—and himself immediately indicted for repetundae, with P. Clodius Pulcher as the prosecutor. That cannot have come as a complete surprise. Even before his return, Catiline’s conduct had prompted embassies to travel from his provincia to protest his exactions. Asconius says many members of the Senate in turn had voiced some prejudicial sententiae against the commander.152 But it is very unlikely Catiline’s conduct resulted in an actual senatus consultum condemning his actions.153 Catiline must have been particularly eager to win the consulship, to shield himself from that prosecution. Yet, as is well known, the cos. 66 L. Volcacius Tullus, on the advice of a senatorial consilium, refused to accept Catiline’s candidacy. The extortion trial came sometime after mid-July of the next year. Senators voted condemnation, but the equites and tribuni aerarii voted for acquittal, and their verdict set Catiline free to try for the consulship again for 63.154 Q. Pompeius Rufus was a pr. 63 who is firmly attested as pro consule for Africa. The young M. Caelius Rufus was on his staff, and set out with him to the provincia. Caelius left from there, says Cicero, to undertake the prosecution of the Macedonian commander C. Antonius (cos. 63), who was expected to come to trial
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in late 60 and was finally prosecuted only in spring 59.155 So Rufus—who must have been prorogued two or (more probably) three times in Africa—had quite a long command, like several other praetors particularly of the late 60s and early 50s (13.2.6). Q. Rufus’ likely successor was T. Vettius Sabinus. In 59, this man either presided over the extortion trial of L. Valerius Flaccus (pr. 63, then pro cos. in Asia) or heard it as juror shortly before taking up (so it appears) a promagistracy in Africa. And that is all we can say.156 The next known governor for Africa arrives in 56: Q. Valerius Orca, a pr. 57 who aided in securing Cicero’s recall from exile (no city provincia is specified in our one source). On behalf of a business associate, Cicero lobbied Orca outside Rome as he left as pro cos. for Africa. He addressed further recommendations to him once in the provincia.157 The last two known praetorian commanders for Africa down to 50 are P. Attius Varus and C. Considius Longus. The two cases interrelate. All we know of the tenure of P. Attius Varus is that when he fled from Italy to Africa during the civil warfare of 49 B.C., Caesar notes “a few years previously he had held this province ex praetura.”158 C. Considius came to Africa after P. Attius Varus and before the outbreak of the Civil War. He must have been praetor by 52, since he was a consular candidate for (apparently) the year 49, leaving Africa to his legatus Q. Ligarius in order to seek election.159 In determining the date of Considius’ praetorship, one should take into account also the effects of the lex Pompeia of 52 that stipulated an interval (allegedly five years) between magistracy and promagistracy. It would help to know when Considius took up Africa. Cicero just possibly can be taken to imply a command of more than one year: the legate Q. Ligarius is said by Cicero to have set out for Africa not with Considius the governor (as a Ciceronian scholiast has it) but while he was governor.160 At any rate, if Considius was canvassing in 50 for the consulship of 49, he must have had the province at least for both 51 and 50.161 The command of P. Attius Varus can fall in any of the years 55 through 52. But if Sumner is right that he is to be identified with the juror P. Varus at Milo’s trial of 52,162 that year is excluded. Eventually, Broughton163 preferred to make Considius pr. 54 and suggested that “he governed Africa from 53 to 50 in succession to P. Attius Varus, and returned in 50 in time to be a candidate for the consulship of 49.” That, of course, would insulate C. Considius from those measures of 53 and 52. There is a slight snag. The trial of the Milonian M. Saufeius in 52 took place “apud Considium quaesitorem” under the Plautian law de vi.164 The term quaesitor can very well refer to a praetor in office.165 Despite the doubts of Broughton and others, it is just conceivable— notwithstanding those measures on intervals and the paucity of parallels for a praetor supervising a vis trial (11.7.6)—that this is the African commander. The year 52 saw Pompey introduce all sorts of innovations to the conduct of the courts, and it was a consularis who presided over Milo’s own highly charged trial under the lex Pompeia de vi. But two other contemporary Considii seem available.166
14.5 Asia in the Pre-Sullan Period For Roman Asia in the Republic, the praetorian Fasti remain very much in disarray, especially for the early decades of the province. This section and the next (14.6)
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are concerned solely with the basic and essential problem of the order of commanders and the chronology of their service. 14.5.1 Three Commanders Attested at Priene G. Stumpf has identified our earliest known praetor for Asia: C. Atinius C.f. Labeo Macerio, the tr. pl. ca. 130, who (as a praetorian commander) issued a cistophoric coin at Ephesus dated “Year 13” of the provincial era of Roman Asia (24 September 122 to 23 September 121). D. French has brought to light an (undated) gold stater of Ephesus issued by this same praetor.168 C. Atinius Labeo appears also in an inscription from Priene, where he is first in a series of three strathgoiv, followed by an L. Piso and M. Hypsaeus, and then a tamiva~ M. (Iunius) Silanus Murena.168 Sumner169 (who did not connect the inscription to Atinius’ coin) had conjectured that the three strathgoiv were consecutive governors of Asia in either 101–98 or 98–95. However, Stumpf plausibly has suggested that “L. Piso” is L. Calpurnius Piso Caesoninus, the future cos. 112 (and thus pr. by 115), and that “M. Hypsaeus” is an otherwise unknown son of M. Plautius Hypsaeus, cos. 125, and thus praetor ca. 100.170 It is reasonable to suppose that C. Atinius Labeo was pr. in 122 or 121. His successor may have been Q. Mucius Scaevola, an augur and future cos. of 117, who was a governor of Asia probably soon after C. Gracchus’ death in 121. He was unsuccessfully prosecuted on his return (119 or early 118) de repetundis—the earliest securely attested trial under Gracchus’ new-style quaestio. It is just possible that a “Valerius Messalla” governed the Asian provincia around this general time, and faced trial on the same or a similar charge.171 Note also Cn. Papirius Carbo, who was honored at Delos (apparently) as pro consule. The fact that the dedicator is the Seleucid king Antiochus VIII Grypus (125–96 B.C.) shows that Carbo’s provincia was almost certainly Asia (as opposed to Macedonia). This man, as consul in 113, fought disastrously against the Cimbri. So the Delos inscription must belong to a praetorian command ca. 116.172 And we have seen that L. Calpurnius Piso was in Asia as praetor ca. 115 before reaching the consulship for 112. So even on our chance evidence we can place four or five commanders in the provincia in the space of a decade. Even if we exclude Messalla, the series of names we have—C. Labeo followed closely by Q. Scaevola, and then Cn. Carbo followed by L. Piso—does seem to hint at a policy of regular succession. And the fact that the praetor Cn. Carbo is attested as “pro consule” suggests that this was the standard rank for governors of Asia from the start. Unfortunately, we cannot trace the story further for this provincia for some time. The next Asian commander for whom we can assign even an approximate date is the third of the three strathgoiv attested at Priene, M. Plautius Hypsaeus, pr. ca. 100. 14.5.2 Three Commanders Attested at Delos There are a few more names that one should consider for the early fasti of Roman Asia. Three late second-century inscriptions from Delos apply the term strathgov~ ajnquvpato~ to three individuals—doubtless of praetorian rank—whose provinciae are unknown. Each of these men could be a governor of either Macedonia or Asia
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(or Cilicia, after the year 100). One, a certain C. Cluvius L.f., seems quite undatable and hence unassignable.173 Next is Ser. Cornelius Ser.f. Lentulus, honored by Dionysius son of Nikon, known to be epimeletes at Delos in 110/109.174 This Roman commander is perhaps identical with the “Servius [——] son of Servius” who is second in a senatorial consilium from May 112 of at least four, following the cos. 115 M. Aemilius Scaurus.175 If true, he may well have been praetor before 112. F. Papazoglou176 entertains the possibility Ser. Lentulus had a command in Macedonia. This is certainly conceivable, but one notes the fasti for the province are full from 121 through at least 118, and then 114 into 106. Finally, C. Billienus. Here again it is hard to decide whether he was a praetorian commander of Asia or Macedonia.177 Cicero implies novitas and strongly suggests consular candidacy, perhaps more than once, in the period 104–100.178 If Billienus’ provincia was Macedonia, he will have been praetor in 106 or later. If Asia, any of the years from, say, 112 on seem possible and are open. It may be that the C. Rabirius C.f. who is attested pro consule at Delos might also belong to this general era.179 A. Degrassi, in his commentary on this inscription, offers the usual identification of this man with C. Rabirius Postumus, a probable praetor of 48,180 and assumes a governorship of Asia in 45. However, Syme has argued forcefully against this date and identification.181 Syme adduces Josephus’ notice of a C. Rabirius pro consule in Asia during the reign of “Hyrcanus” of Judaea182 to make a case for assigning this inscription to the period of Hyrcanus I (i.e., 135–104; Hyrcanus II ruled 63–40). Syme continues: “[I]f that were so, the proconsul C. Rabirius might be the maternal grandfather of Rabirius Postumus”—and thus father of the C. Rabirius, tr. mil. 89, who took a stand against Saturninus in 100.183 If we accept Syme’s arguments, a date between ca. 120 (but not before) and 110 seems to fit the evidence best. There are also a few names to be excluded from the fasti for Asia of the late second century. An inscription at Delos shows that the Pisidian town of Prostaenna honored M. Antonius M.f. (cos. 99) as quaestor pro praetore.184 The date and provincia of M. Antonius’ quaestorship are known: he set out to Asia in 113.185 Asia was not declared a consular provincia in this year, or in any year (to the best of our knowledge) in the second century after the departure of M.’ Aquillius in 126. What we must surmise from this inscription is that a praetor either had left Antonius in charge of the province, or had delegated him imperium for some special task. There is no reason to suspect in the case of Antonius that he got his imperium through a special lex, or still less (as C. Eilers has suggested)186 that he was the proper commander for Asia, a relatively new (and quite major) province. Before long, another inscription appears that points unequivocally toward delegation of praetorian imperium, by a praetor pro consule in the east, to his subordinate.187 The Asian praetor who was Antonius’ superior must also have held the province pro consule. 14.5.3 Other Commanders for Asia of the Late Second Century With this in mind, let us turn to two inscriptions of the late second or early first century that report a Cn. Aufidius Cn.f. ajntistravthgo~.188 Broughton considered him
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a governor of Asia, and offered 107 B.C. as a conjectural date for his praetorship.189 Yet his reported activity—according to one inscription, he adjudicated disputes in Adramyttium—is perfectly proper for a delegatee.190 This may in fact be the blind praetorius whom Cicero saw in his youth, and who adopted the future consul of 71.191 This inscription would commemorate a position Aufidius held in Asia before his praetorship (quaestor or legatus, with delegated imperium)—and before his loss of sight. Since Asia was so rarely declared a consular provincia before the Civil War of the 80s (just once at most), we confidently can take this as another instance of delegation of imperium by a subconsular. The same is true of an unpublished inscription of (perhaps) the late second or early first century, in which a M. Popillius M.f. Laenas was honored as legatus pro praetore at Cos.192 The Cnidus fragment of the Lex de provinciis praetoriis throws some light on the expected activities of the (unnamed) commander for Asia for 100. He is to write letters to a list of allied communities and kings explaining Roman plans for checking piracy, including the creation of Cilicia as a new praetorian provincia. The law announces also the further eastward expansion of Roman Asia, with a bald statement that Lycaonia is to be part of that provincia (see 9.1.5). In the law the Asian governor is described as a “praetor or pro consule.”193 Parallel passages that have to do with the commander for Macedonia (14.1.2) show that the wording here must be traditional, taken over from earlier laws on the staffing of territorial provinces. The evidence so far—notwithstanding the mention of strathgoiv at Priene and in other contexts194—strongly suggests that the praetors who received Asia, like those of Macedonia, were sent out pro consulibus. That impression is amply confirmed once we get into the evidence for Asia in the 90s, where we find four or five Asian commanders with the title “pro consule.”195 Let us take our four most closely datable instances first: Q. Mucius Scaevola, C. Valerius Flaccus, L. Gellius, and C. Cassius. 14.5.4 The Asian Command of Q. Mucius Scaevola Scaevola is the first and just about the only governor in this province down to the time of the Mithridatic War for whom we have a detailed report of activities. The date of his command is an extremely difficult problem, and some background is necessary before we can proceed to the central issues. Scaevola was praetor (possibly 101, but more likely 99 or 98) and then consul in 95. In each of those offices he was a colleague of the orator L. Licinius Crassus.196 The consulship of Q. Scaevola and L. Crassus fell in a year in which Obsequens says there were no major wars.197 Their best-known action was the law they carried to reduce Italians who were acting as Roman citizens to the legal status of their own towns. That included the establishment of a quaestio to enforce the measure.198 It would be good to know what provinciae they had received under the Sempronian law. One seems to have been Gallia Cisalpina. Crassus managed to campaign there, apparently still as consul, against some undistinguished Alpine tribes.199 But when he returned to Rome and asked the Senate for a triumph for his achievements, his colleague Scaevola (who evidently had been in or near Rome the entire year) brutally blocked the requisite senatus consultum (10.2.1).
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Scaevola also was the most famous Republican governor of Asia, and as such is termed ajnquvpato~ ÔRwmaivwn, [strath]go;n ajnquvpaton ÔRwmaivwn, and [—— ajnquv-] pavtou.200 He stayed in Asia (by his own decision) only nine months, his legatus P. Rutilius Rufus (pr. by 118 and cos. 105) administering the provincia for the rest of the year (and perhaps a bit beyond).201 Let us put aside chronological considerations for the moment, and take a brief look at Scaevola’s reported administration of the province. Diodorus says that before Scaevola arrived in Asia, his predecessors, “being in partnership with the publicani, the very men who sat in judgment on public cases in Rome, had filled the provincia with acts of lawlessness.” The whole aim of Scaevola’s command evidently was to curb these abuses and to set the province aright for the long term. For a start, Scaevola had spent extra care on his edict, which was notable for its brevity and its fairness. Cicero singles out the provision that Greek cases were to be settled according to Greek law as particularly important.202 Earlier governors of Asia had been in the habit of exercising their jurisdiction even in extraterritorial parts of the province. That is positively attested in the case of Colophon, in theory a free city, which in the earliest years of the Roman provincia at least twice had to defend its autonomy in Rome itself.203 We also may presume that earlier provincial edicts—in all the provinciae—were uncompromisingly Roman in outlook and organization.204 Perhaps Scaevola—no doubt aided by Rutilius—was the first to draft the bulk of his provincial edict not in Rome (as seems to have been common practice) but on the spot, with the specific needs of the provincia in mind. That at any rate is how Scaevola’s first known emulator, the praetor L. Sempronius Asellio, composed his edict in Sicily later in the 90s, also with the aid of a senior legatus (13.1.4). As we have noted, the Senate was to make Scaevola’s edict an official model for governors for Asia. Cicero used it too during his Cilician command of 51/50.205 Scaevola, in his own conduct in the provincia, self-consciously tried to set an example for those commanders who would follow. He personally paid the expenses for himself and his entourage.206 And his practical administration of justice put a premium on redressing the financial abuses of the publicans. He also made them stand trial for past criminal conduct.207 Diodorus says that Scaevola’s actions helped change attitudes in Asia toward Rome.208 The statement finds ample confirmation. We have a letter in which Scaevola, still pro consule, thanked Ephesus for establishing quadrennial games in his honor, elsewhere identified as the Swthvria kai; Moukiveia. The provincials obviously had tacked a celebration for Mucius Scaevola onto a preexisting festival, the Soteria.209 All the same, these Mucieia were “unprecedented, so far as we know, as a provincial honor for a governor.”210 Cicero—who excoriates the Sicilian commander C. Verres for abolishing the Marcellia to make way for his own “Verria”— claims that even Mithridates did not disturb Scaevola’s games, “though he had occupied this entire province.”211 Within a generation, Scaevola had become a byword for excellence as a provincial governor.212 But that did not stop the publicani from effectively retaliating against this commander: they secured the condemnation of his legatus P. Rutilius Rufus for repetundae in (surely) the year 92.213 The problem is that we cannot ascertain with absolute confidence whether this Asian command should be attached to Scaevola’s praetorship or his consulship.
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If the latter, it would have to be ex consulatu, since (as we have seen) he seems to have spent his year as consul in Italy.214 The argument for the earlier date rests entirely on a (corrupt) passage in Asconius, the same one that reports how he quashed Crassus’ hope of a triumph. Scaevola, at some point prior to vetoing that vote of a triumph to his consular colleague, for some reason apparently having to do with finances, “had set aside a province in the desire for which many men—even good ones—had committed wrong” (“provinciam, cuius cupiditate plerique etiam boni viri deliquerant, deposuerat ne sumptui esset †oratio†”).215 There are really three possibilities: Scaevola had refused his praetorian provincia, or an ex praetura command, or his consular provincia. It would be surprising if the provincia that Q. Mucius Scaevola had “set aside” was his actual praetorian one. Everything we have seen shows that the refusal of the provincia that came to one in the praetorian sortition was a serious business, down to the end of the Republic. It would have been politically risky, even for a well-connected nobilis. (The fact that Scaevola held both the praetorship and consulship with L. Licinius Crassus implies that there were no unusual delays in his career.) A much easier solution is that Scaevola was a city praetor who refused an ex praetura command that the Senate gave him. The post-Sullan evidence shows that a city magistrate could extricate himself from a promagisterial provincia without too much bother—indeed, simply on general moral grounds. In 67, the praetor L. Lucceius refused to take up a promagisterial command in Sardinia, pointing to the harm that “many individuals” had done to provincials (11.1.6). The notice of Scaevola’s refusal of a province in Asconius is not too different (“plerique etiam boni viri”). B. Marshall does make a fair point when he observes, “if Scaevola had declined a province in his consular year, it is easier to understand why he would want to block Crassus’ request for a triumph.”216 It is odd that Scaevola was still in Rome at the end of the campaigning season. If he had argued to the Senate that it was a waste of resources (sumptus) for him to lead a Roman army to some distant provincia (i.e., since there was no real fighting to be had), one can readily understand his annoyance at his colleague’s attempt to triumph over some Alpine bandits.217 Yet if the consular provinciae for 95 were Gallia Cisalpina and Italia (cf. 10.6.2 on the consular law and its quaestio to investigate Italians illegally acting as Roman citizens), the oddity of Scaevola’s presence in the city disappears. The fact Crassus tried to triumph in his actual year of office—always a rare distinction218— must have been particularly grating, and is probably enough to explain the fierce reaction of his colleague and (in normal circumstances) political ally Scaevola. In short, Asconius’ implication that by late 95, Q. Mucius Scaevola had turned down a provincia on general moral and administrative grounds—not for reasons of religio or on oath—suggests that he probably did not hold his command in Asia as praetor or ex praetura in the early 90s. On this interpretation, he refused the latter type of commission, with the “moral excuse” he offered on that occasion probably positively enhancing his reputation for probity. The presence of P. Rutilius Rufus as a senior consular legatus on Scaevola’s staff during his Asian command strongly implies that by that time Scaevola himself had reached the consulship. (No con-
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sularis is definitely known to have served as the provincial legate of a subconsular in the entire Republican period.)219 Rutilius’ trial of 92 also suggests that he had served under Scaevola in 94, as opposed to some date in the early 90s.
14.5.5 The Asian Commands of C. Valerius Flaccus, L. Gellius, and C. Cassius We can now proceed to the other three commanders who allow at least an approximate date. C. Valerius Flaccus—definitely a praetor urbanus, and later cos. 93 in Spain—is attested as strathgo;~ ajnquvpato~ ÔRwmaivwn in an inscription from Claros. He will have held Asia ex praetura after his urban praetorship.220 Since Sulla is virtually certain to have been pr. urb. 97 (10.1), the date of C. Flaccus’ praetorship is very likely 96, but conceivably 98 or earlier.221 At any rate, Flaccus was a commander in the provincia before 95. Secondly, L. Gellius (the future cos. 72) was a praetor inter peregrinos in 94, and then proceeded to an eastern provincia which he held “pro consule ex praetura” (the formulation is Cicero’s). The trouble is that his province is just as likely to have been Cilicia as Asia. (The pr. urb. 94 C. Sentius took up Macedonia for 93.) Nor do we know how long Gellius stayed in the east, though he certainly was back in Italy by (late) 89.222 Finally, there is C. Cassius, termed ajnquvpato~ by Appian. Elsewhere I have discussed in detail this praetor’s role in the restoration of Nicomedes of Bithynia and Ariobarzanes of Cappadocia to their respective kingdoms, when he gave military support to the legati M.’ Aquillius (cos. 101) and (apparently) T. Manlius Mancinus (tr. pl. 107, and now perhaps a senior praetorian). The Livian Periocha lists that action as a foreign affair, clearly of the year 90. Cassius should have been in the provincia by that date.223 When Mithridates drove Ariobarzanes back out, M.’ Aquillius, C. Cassius, and now Q. Oppius (pr. for Cilicia), without consulting the Senate, tried to restore the Cappadocian king by force. They were soundly defeated, probably in 89. Cassius was forced to flee, eventually (by 88) ending up in Rhodes. He played no discernible part in defending the island when Mithridates tried (unsuccessfully) to besiege it; no doubt the Roman commander had lost most of his troops by that point. Cassius might even have been captured, like the legatus Aquillius (whom Mithridates put to death) and Q. Oppius. Though the Senate designated “Asia and the Mithridatic War” as one of the consular provinciae for 88, Asia was lost to Rome for some years to come.224 There is no real need for the purposes of our study to recount what happened next: the Marian government’s dispatch of L. Valerius Flaccus (as cos. suff.) to Asia in 86, Flaccus’ murder at the hands of Flavius Fimbria, the Peace of Dardanus between Sulla and Mithridates, the details of Fimbria’s illegal command and death in 85, Sulla’s arrangements in Asia in 85 and 84 (which included the imposition of stiff punitive taxes, amounting to 20,000 talents),225 his appointment in 84 of L. Licinius Murena to administer the province with Fimbria’s two legions, or the events of L. Murena’s command in Asia. Some technical questions do present themselves regarding the status of C. Flavius Fimbria and L. Murena, but they are best put off for the moment.
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14.5.6 The Asian Commands of C. Iulius Caesar and L. Lucilius Previous to C. Cassius we have to place a pair of sorts, C. Iulius C.f. Caesar (brother-in-law to Marius and father of the dictator) and L. Lucilius, neither of whom permits close dating. Caesar, termed pro consule in several inscriptions, was definitely a praetorian commander in Asia in this general era, necessarily before the year 90.226 But the precise date of this appointment is quite uncertain. The series of events related by the most detailed source for his command, I. Priene 111 (unfortunately quite fragmentary),227 moves from specific embassies to the strathgov~ C. Caesar (lines 14 and 22); to the description of local appeals to an unnamed pro consule, perhaps Caesar, against predatory salt-tax collectors (salinatores) and publicani (lines 112–120); to mention of the relationship of the publicani with the province’s Roman governors (tou;[~] eij~ ∆Asivan ej[st]a[lmevnou~ st]ra[t]hgouv~, line 135), over (apparently) the span of three different individuals holding the stephanephorate of Priene. (The stone is quite mutilated here.) The inscription also mentions a continuation of the dispute on salt revenues under the strathgov~ L. Lucilius, and then to other actions by Lucilius. This individual—possibly to be identified with the jurist L. Lucilius Balbus—is likely to be another praetorian commander in Asia.228 The fact that Lucilius is said to have written a letter to the Senate reporting the third-party adjudication of a dispute between Priene and Miletus “in the stephanophorate of Akrisios” (unfortunately, not independently dated) strengthens this supposition.229 The impression one gets is that Caesar was in the provincia before Lucilius, and also that one or more praetors possibly held Asia between the commands of these two men.230 At any rate, both C. Caesar and L. Lucilius are certainly anterior to C. Cassius, who was in the provincia by 90 (see above).231 Sumner placed Caesar in 92 through (at least) early 90 on the basis of I. Priene 111. Sumner took that inscription to refer to the terms of three stephanephoroi and to two contemporaneous embassies to Caesar, the last in Lenaion (i.e., January/February) of the year in which the third stephanephoros was eponymous magistrate. At Priene, tenure of the stephanephorate commenced (as Sumner notes) on the first of the month Boedromion, that is, notionally around the autumnal equinox. So, even if we accept the number of three we really need only suppose that C. Caesar was in his provincia for the span of two consular years. Most importantly, a date earlier than the very end of the 90s seems positively required. For Lucilius, we cannot accept the precise year Sumner offers, namely 90 and into 89.232 14.5.7 The Asian Command of L. Valerius Flaccus At least one more commander has to be squeezed into our record for the 90s: L. Valerius Flaccus, the future cos. suff. 86, who replaced C. Marius after his death early that year while cos. VII. Broughton233 summarizes Flaccus’ earlier career: “[A]edile in 98 (or 99), he may have become praetor in 95 (or 96?) and then proceeded to his proconsulate in Asia in 94 or 95.” The principal evidence for his praetorship—a longish section of the Pro Flacco, a speech in which Cicero defends this
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man’s son against an extortion charge from Asia in 59 B.C.—is actually quite sketchy. We hear nothing of an appointment in the city, only of contributions from “the whole of Asia” at some point before the Mithridatic War for a multiday festival in his honor. Once collected, the money was deposited at Tralles, but Cicero says the town lent it out at interest for its own profit, which probably meant that the festival was never performed.234 It took Flaccus’ son (pr. 63) during his ex praetura command in Asia to recover those sums. From the fact that “the whole of Asia” was financing L. Flaccus pater’s commemorative games, we legitimately can infer that he held a praetorian command in that provincia, presumably following that of his (elder) brother C. Flaccus, who (as we have seen) must have been pro consule in Asia by 95. Indeed, K. J. Rigsby has hypothesized that Flaccus’ games, as well as the “Euergesia” epigraphically attested at Pergamum (in their “fifth celebration”), are just a later incarnation of the quadrennial Mucieia established to honor Scaevola.235 “It may be that these testimonies all concern one festival, not three,” argues Rigsby. At some point, the celebration was “stripped of its potentially invidious association with one governor and given the generic name Euergesia.” This appears at least possible. One notes that when the provincials established the Mucieia, they evidently combined it with a preexisting Soteria. And when Verres in Sicily tried to set up his own festival, Cicero says he abolished the Marcellia and put the Verria in their place.236 In neither case does it seem there was an attempt to make the relevant provincia sustain two separate recurring festivals. If true, Rigsby’s conjecture might help with the chronology of Asian commanders in the 90s. As Rigsby fairly points out, “[O]ne implication of this thesis is that a four-year interval separates Scaevola and Flaccus.” We might also remember that Cicero says Scaevola’s games were celebrated at a time when Mithridates “had occupied this entire province.” On a reasonable interpretation, that can refer only to one of the years 88 through 86, before the Peace of Dardanus in 85. If the results of our investigation of Q. Mucius Scaevola’s date are accepted, the only sequence possible is that L. Valerius Flaccus had deposited money at Tralles for a festival to be celebrated in 90 B.C., and Asia held a festival (on whatever scale) again in 86, the year when L. Flaccus was to return to the provincia as a consular commander against Mithridates. In any case, a date for L. Flaccus’ praetorship in the late 90s, not long before the disorders of the Mithridatic War237 and the hard financial times that followed for the next decade and a half,238 makes the most sense. In normal conditions, it is difficult to see how the diversion of funds for a praetor’s games would escape the notice of subsequent governors. Of course, once the Sullan government did gain control, it will not have taken any pains to see that this individual received his due, which helps explain why that fund for the Flaccus festival was eventually all but forgotten. Or, L. Flaccus pater perhaps pocketed some of the money himself. It appears he too was prosecuted on his return;239 the question of those missing funds may have come into it, with Flaccus bringing up the cupidity of Tralles as his defense. But we know too little about the incident—our only source is Cicero’s defense speech for this man’s son when accused repetundarum from Asia three decades later—to offer a reconstruction.
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14.5.8 The Praetorian Fasti of Asia down to 90: An Overview So where do we stand? The fact that we can provide the names of six or seven commanders for the Asian fasti of the 90s certainly suggests that the Senate aimed at a policy of regular succession in this provincia at this time. The order of succession is another question. Broughton initially listed these commanders as follows: Q. Mucius Scaevola, ex praetura for 97; possibly L. Gellius, ex praetura for 93; L. Valerius Flaccus, ex praetura possibly for 92; C. Iulius Caesar, ex praetura possibly for 91; L. Lucilius, ex praetura possibly for 90; C. Cassius, ex praetura for 89.240 But here Broughton erroneously thought that when an Asian commander shows the title “pro consule,” it must refer to a promagistracy. He later corrected that mistake. Following in large part a reconstruction of Sumner’s, Broughton in the end chose to make Q. Mucius Scaevola governor in 98 or 97, L. Valerius Flaccus ex praetura in 95 or 94, possibly L. Gellius ex praetura for 93, C. Iulius Caesar for the years 92 through 90, and L. Lucilius “ca. 90” and perhaps into 89, in which year he places the arrival of C. Cassius.241 Evidence for the ex praetura command of the cos. 93 C. Valerius Flaccus had surfaced not long before Broughton offered this revised fasti, and managed to escape the author—hence C. Flaccus’ absence in both lists. A reexamination of the fasti for Asia in the 90s suggests that C. Iulius Caesar and (perhaps) L. Lucilius belong not at the end of the decade, but near its beginning.242 The Priene inscription shows that we need two or three years for C. Caesar, and of course at least one for Lucilius. There simply does not appear to be any room for both these men in the latter half of the 90s, if my reconstruction is correct in its essentials: C. Valerius Flaccus, ex praetura by 97 or for the year 95; Q. Mucius Scaevola, ex consulatu for 94 (with that year seeing the first celebration of a quadrennial festival in his honor); possibly L. Gellius, ex praetura for 93; L. Valerius Flaccus for 92 or 91, with some of 90 (the year of the second celebration of the provincewide festival); and C. Cassius in the provincia by the year 90. The fact that Priene was hard pressed by the publicani during the governorship of both C. Caesar and L. Lucilius offers modest additional support for placing them before Q. Scaevola. It is perhaps best to leave this investigation of the 90s at that for now. A new fact or two might emerge which will necessitate yet another rearrangement of the available pieces of this irritating puzzle. 14.5.9 Praetorian Commands in Asia during the First and Second Mithridatic Wars There is not much point in trying to disengage general principles from the fasti for Asia after the defeat of C. Cassius in 89 down to the end of the 80s. During these years, just three or four individuals in or around Asia are known to have had or claimed praetorian imperium. The first two are Q. Minucius Thermus and (quite illegally) C. Flavius Fimbria. When L. Valerius Flaccus (cos. suff. 86) had dismissed his subordinate Fimbria at the Hellespont and sent him back to Rome, he put Q. Thermus in his place, leaving him as pro praetore in charge of Byzantium. However, Fimbria stirred up the troops at Byzantium to dislodge Thermus, and he
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took over the delegatee’s fasces. Fimbria no doubt claimed Thermus’ imperium as well, until Flaccus returned from Chalcedon in a huff.243 Fimbria’s shortlived appropriation of Thermus’ fasces was just a first step. After Fimbria had L. Valerius Flaccus put to death at Nicomedia in 85, there is reason to think he represented himself as taking on his superior’s consular imperium. Now, Lintott has supposed that Fimbria, on murdering Flaccus, took the title pro quaestore pro praetore. This seems much too legalistic. Fimbria’s behavior at Byzantium (not to mention Nicomedia) shows his attitude toward constitutional propriety. The Livian Periocha thinks that Flaccus’ imperium devolved on Fimbria. And Appian and Strabo are clear that Fimbria henceforth proclaimed himself the head of a consular army. For what it is worth, a late epitomator strongly implies that Fimbria adopted the consular insignia to lead it.244 The third (and I would argue last) praetorian commander for this period is L. Licinius Murena. As is well known, Murena—whom Sulla had left in Asia to complete his various administrative arrangements for the provincia—conducted a halfhearted campaign against pirates followed by the three-year “Second Mithridatic War,” during which he carried hostilities right into Pontus. Murena’s activities earned him the title imperator, and later a triumph “de Mithridate.” But they also had alarmed Sulla enough to order his recall. Murena’s status, though much discussed, poses no great technical difficulty: Cicero quite clearly attests to his praetorship. The date of Murena’s actual magistracy must be 88 or—since the fasti for that year seem quite full (10.5.5)—87, followed by service in the east. He might have had Macedonia as his formal provincia, but never managed to take it up. Rather, he functioned very much as Sulla’s subordinate, first in Greece (on which see 14.1.4) and Asia, and then in an independent command in the Roman province. The celebration of that triumph came (probably) in 81, after his recall by Sulla.245 Yet L. Murena’s position certainly seems to have confused Mithridates. When the king formally complained in early 82 that Murena had violated the peace, he did so both to the Senate at Rome, but also to Sulla as his superior.246 This in turn put the Cinnans in a bind. The Senate responded to Mithridates by sending the legatus Calidius to order Murena to back off. However, it took care not to give that envoy an actual senatus consultum.247 Evidently the Senate felt a properly voted decree would imply recognition of Murena’s command. From the (outlawed) pro cos. Sulla’s perspective, Murena was fighting as a subordinate, yet possessed full auspicia (as the grant of a triumph shows). Though Murena’s entry in the triumphal Fasti is not extant, it seems reasonably secure that he triumphed only pro praetore. There is no hint in our sources that he had consular imperium in Asia. Sulla is said to have given Murena orders not to fight with Mithridates, and finally recalled him for breaking those orders, all obviously by virtue of maius imperium.248 Quite modest support for the notion that Murena had no more than praetorian imperium comes from the status of his own chief subordinate. When Murena went off to campaign in Pontus, he left the pro quaestore L. Licinius Lucullus behind to see to Asia proper. And when Murena had to return to Rome, Lucullus may have remained in sole charge of the provincia until a proper governor arrived in 81 (see 14.6.1), conducting a major siege of Mytilene in the
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interim. He then lingered in the provincia into the year 80. Yet not one of the (many) dedications to Lucullus extant from this period shows that he had received delegated imperium.249 The same is true of the A. Terentius A.f. Varro who is amply attested as a legatus in Asia in the period ca. 85–82.250 Murena almost certainly was not qualified to confer imperium on anyone.
14.6 Asia in the Post-Sullan Period 14.6.1 Praetorian Commanders in Asia down through 76 It was a praetor—M. Minucius Thermus—who arrived in Asia to pick up the siege of Mytilene from the pro quaestore L. Licinius Lucullus.251 And when exactly was that? The question is an important one. M. Thermus can only have received the provincia subsequent to Sulla’s recall order to the renegade commander L. Licinius Murena. Having a terminal date for Murena would illuminate exactly how seriously Sulla took the administration of Asia and the peace with Mithridates. Broughton252 rightly regarded Thermus as pr. 81, but states equivocally that he was “sent to Asia in or soon after his praetorship.” In truth, our evidence points strongly to an early date. We have no record of activities in a city praetorian provincia for this man; there is no reason to think he received one. Indeed, Thermus should be the commander for Asia whom a senatus consultum (preserved epigraphically) charged to look after the affairs of loyal Stratoniceia in late March of the year 81. The document implies that he was still in the city or in transit to the provincia at that time.253 Murena, by implication, had been recalled and perhaps had already departed from the province. The key point for the chronology of all this is that another praetorian governor, C. Claudius Nero, was in the provincia by early 80. Thermus must have left at that time, and the pro quaestore Lucullus (elected aedile in absence for 79)254 apparently went with him. C. Claudius Nero is postively attested as pro consule of Asia.255 Samos complained to him of the predations of C. Verres, who had beset the island while he was in transit to Cilicia as a legatus of its commander Cn. Cornelius Dolabella.256 So Nero was already in Asia when Verres’ superior Dolabella—definitely pr. 81 and a promagistrate in 80 (see 15.1.1)—was setting out to his provincia, that is, early 80. Nero’s city provincia is not attested, which allows the possibility he reached the praetorship not in 81 but 80. Though Sulla set up a system in which individuals normally received territorial provinces ex magistratu, it was not overly rigid in this requirement (see 11.1.3). At any rate, C. Nero remained in the province of Asia apparently for at least 79. That is the probable date of the murder trial of Philodamus of Lampsacus and his son, charged with murdering a lictor of Verres as that legate passed once again through the province. The Cilician commander Dolabella is said to have attended, leaving his provincia for the event to serve in Nero’s judicial consilium.257 Someone was obviously in Asia for the year 78: an inscription of late May of that year instructs the magistrate holding the provincia to grant certain honors to
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some Greek sea captains.258 But we have no names until the M. Iunius D.f. Silanus attested as pro consule in Asia in the year 76.259 There is just an outside chance that we might have a praetor for the interim. A late Ciceronian scholiast says that “Terentius Varro,” a cousin of Q. Hortensius, was a “defendant from Asia” (“reus ex Asia”). He was accused de repetundis before the praetor L. Furius and then (on the same or a different charge?) brought to trial before P. Lentulus Sura (pr. 74), only to be scandalously acquitted through Hortensius’ agency.260 There are all sorts of uncertainties here. For a start, we have seen (14.5.9) that an A. Terentius A.f. Varro is found as a Sullan legatus in Asia in the period ca. 85–82. If the defendant was A. Terentius Varro, the question remains open whether he faced prosecution for his acts as legate or for a subsequent (unattested) praetorian command in Asia in 78 or 77 (the two available years in the fasti for that province). If he was not this A. Varro, one still must wonder whether the “Terentius Varro” of the scholiasts was an ex-praetor.261 It is technically possible, for instance, that C. Claudius Nero had to stay in Asia through 78 and M. Iunius Silanus arrived in the provincia as his direct successor in 77. All we know for certain is that he was in Asia during the year 76. To continue on a speculative note for the moment: An inscription of Mylasa in Caria262 might shed some light on Silanus’ identification. The document records how one of its citizens travelled to “Asia” and persuaded the strathgov~ M. Iunius D.f. Silanus—termed patron of the city—to visit and act in a “more beneficent manner” toward the Mylasans. This text (especially the mention of patronage) certainly implies that Silanus had been to Mylasa before. It seems just possible that he is the same as the quaestor M. (Iunius) Silanus Murena of I. Priene 121, who is found listed after that series of three praetors for Asia of ca. 122–ca. 100 (discussed 14.5.1) in a document which demonstrably includes events down to perhaps the year 95.263 Now, the name “M. Iunius D.f. Silanus Murena” is impossible for an adoptee, as Shackleton Bailey points out.264 But there is no technical obstacle to supposing that the Asian commander’s father was a Murena adopted into the Iunii Silani, by a D. Iunius Silanus. At any rate, Eilers, who does not take into consideration the Mylasa decree, is unconvincing in his attempt to split the name to create a M. Silanus (“pr. Asia ca. 102”) in addition to a quaestorship ca. 100 in Asia for L. Licinius Murena (as we have seen, praetor by 87 before fighting for Sulla in Greece and Asia).265 The name “M. Silanus Murena” prima facie suggests an adoption, and the Iunii Silani are known to have gone in for that practice even in the mid-second century: the pr. 141 D. Silanus Manlianus was born a Manlius Torquatus. There would be nothing incongruous about a Murena born ca. 160 who found himself adopted into the gens Iunia—perhaps by the same D. Silanus who saw his son, the pr. 141, commit suicide in 140 (9.1.3). On this reconstruction, he himself had a son shortly before ca. 120, who served as quaestor in Asia in the late 90s and reached the praetorship by 77. As Eilers himself mentions,266 we can see already in the nomenclature of Cn. Aufidius Orestes (pr. 77, cos. 71) and M. Terentius Varro Lucullus (pr. 76, cos. 73) an onomastic system where the adoptee’s original cognomen was simply added unchanged to his new adopted name. And it seems that even in the second century
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adoptive cognomina and agnomina, once transferred, could be hereditary. admittedly, all this is a far stretch.
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14.6.2 M. Iunius Iuncus and the Roman Acquisition of Bithynia Silanus’ direct successor in the province was another member of the gens Iunia— M. Iunius Iuncus, who received Asia as pro consule. By this point, fresh trouble was expected from Mithridates, and the Romans had started making counterpreparations.268 Iuncus’ provincia grew only more complicated after the death of king Nicomedes IV and the news that his will left the kingdom of Bithynia to Rome. The Senate decided to add to Iuncus’ provincia the task of organizing Bithynia.269 Now, the fact that the recently published Lex portorii Asiae shows publicani collecting Roman customs revenues in Chalcedon and along the Bosporus in 75 has led some to surmise that Nicomedes was dead and Bithynia had become Roman territory already in that year.270 The inference is unwarranted. Badian points out that those Hellespontine tolls had been legislated for since (probably) the year 80 and had nothing to do with the death of Nicomedes nor the organization of the new provincia of Bithynia. The date of Nicomedes’ demise can be placed in either (late) 75 or 74.271 But there is no reason to suppose that M. Iuncus received his additional commission for Bithynia before early 74.272 The details of just a few events from this man’s praetorian command have come down to us. During the winter of 75/74 (so it appears), pirates managed to kidnap the young C. Iulius Caesar off Pharmacusa, forcing him to pay a hefty ransom for his freedom. Caesar retaliated—though a privatus at the time—by capturing most of these pirates with his own tumultuary fleet. We are told that Caesar then headed to Iunius Iuncus in Bithynia, and asked him to authorize their execution. When Iunius proved slow to send a dispatch on the matter, Caesar took the pirates out of jail at Pergamum and crucified them himself. Suetonius even has Caesar at this time independently raising a force of auxilia to drive Mithridatic troops away from cities of the Asian mainland across from Rhodes.273 M. Iunius Iuncus must have left one of his subordinates in charge of the provincia in his absence. Either that deputee was not sufficiently prepared to defend the province or there was trouble in more than one place.274 Indeed, the nature of Caesar’s activities implies that M. Iuncus was paying scant notice to the administration of Asia after he left for Bithynia. It is not difficult to see how much energy that added assignment might require, not least since Iuncus had to keep Nicomedes’ former subjects from revolting while he started turning that old independent kingdom into a Roman provincia.275 Then there was the matter of securing Nicomedes’ treasures. The praetor and his staff evidently got their hands on much of the king’s wealth: one of Iuncus’ (apparent) legates is known to have carted royal furniture to Rome.276 (It would be surprising if the praetor did not take away even more spectacular items from Nicomedes’ estate.) Iuncus also had to take precautions against the possibility that Mithridates might invade Bithynia.
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The coss. 75 C. Cotta and L. Octavius took up as their promagisterial provinces respectively Cisalpine Gaul and Cilicia,277 so the threat of Mithridates invading Bithynia was not deemed too acute at the start of 74. Yet open war was just around the corner. The date of the outbreak of the Third Mithridatic War is an old problem, but one that has received renewed attention in the last decade, following the publication of the Lex portorii Asiae (though that document surely has no direct relevance to the question). Appian places Mithridates’ invasion of Bithynia and rapid defeat of the cos. 74 M. Aurelius Cotta in the spring of an unspecified year, and Memnon of Heraclea adds the detail that at the time the cos. 74 L. Lucullus already had crossed to the east.278 The question to be settled is whether the year of that invasion and the first Roman defeat at Chalcedon is 74 or 73, and whether Mithridates’ later siege of Cyzicus—a winter operation, which Appian279 says coincided with the death of Sertorius—belongs to 74/73 or 73/72. The literature is vast on this topic,280 and I have no desire to attempt a full reexamination of the evidence here—especially since the Third Mithridatic War was a wholly consular affair from the start. However, a brief overview of our basic information on the preliminaries might help us determine the minimum time M. Iunius Iuncus had to stay in the eastern theatre. Even before the death of Nicomedes, it is said that the Pontic king had made an alliance with Sertorius and received the Sertorian strathgov~ M. Marius to help him win over Asia.281 Our sources are full of additional details on how carefully Mithridates planned for a new war with Rome.282 And we are told that in Rome too “many were now stirring up anew the Mithridatic War,” with the cos. 74 M. Aurelius Cotta leading the van. Cotta claimed that it “had not ended, but rather paused.” Obviously he had some noneastern provincia but was hoping to go himself to fight Mithridates. His consular colleague L. Licinius Lucullus also had his eyes on a major eastern command, despite having drawn Cisalpine Gaul as his provincia. Lucullus’ particular fear was that a special command would be created against Mithridates. So he did what he could to keep Pompey—the obvious candidate for such a commission—adequately supplied to keep fighting the Sertorians in Spain.283 News of the death of L. Octavius (now pro cos.) early in the year set off a lively competition for his provincia of Cilicia. As Plutarch tells the story, the real decision was in the hands of the senator (probably a praetorius) P. Cornelius Cethegus. Cicero attests to this individual’s influence in the Senate, which he says approached that of the consulars. Plutarch implies Cethegus might even have a direct impact on the content of popular legislation. If Pompey were to return in 74 with his army to Italy, says Plutarch, Lucullus realized he was likely to get the Mithridatic command through Cethegus, “who at that time exercised control over political affairs by doing and saying everything with an eye toward winning [popular] favor.”284 Plutarch states that there were “many” who hoped to get Cilicia.284 The provincia—now suddenly attractive because of its proximity to Cappadocia—had seen only consular commanders since 78 (see 15.1.1), namely, P. Servilius Vatia Isauricus (cos. 79) followed (quite briefly) by L. Octavius (cos. 75). Now that war
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with Mithridates was imminent, the Senate was unlikely to declare the province praetorian. What the Senate must have been deliberating was whether to give Cilicia to one of the consuls of 74 or to send a privatus with imperium instead. Plutarch in fact specifies Pompey and Q. Metellus Pius as Lucullus’ chief rivals for the commission.286 In the end, the Senate acquiesced in a hybrid solution, one demonstrating that Mithridates’ preparations were now that much further advanced than at the time of the pro cos. Octavius’ death in early 74. Lucullus received Cilicia as his consular provincia, almost certainly with Asia attached. Cicero describes his mission as an offensive one, “to proceed against Mithridates.” M. Aurelius Cotta—who as we have seen badly wanted the Mithridatic command—“after persistent entreaties to the Senate, was dispatched with ships to guard the Propontis, and to defend Bithynia”: thus Plutarch, with Cicero confirming the essentially defensive nature of Cotta’s assignment.287 All the same, it was indeed a major step (as Cicero notes) to send both consuls to conduct an overseas war.288 And the consul M. Cotta apparently smoothed the way for other special arrangements. A Ciceronian scholiast says that “through the influence of the consul Cotta and the faction of Cethegus in the Senate,”289 the pr. 74 M. Antonius secured his special commission to fight piracy throughout the Mediterranean area. This, too, might be connected to the eastern war (11.3.1). As noted, had Cotta failed in his attempt to get an eastern provincia, he no doubt would have contrived to get this pirate command instead. This flurry of preparations and the first movements of the war push M. Iunius Iuncus right out of our sources. In brief, M. Aurelius Cotta crossed first to the east and established himself at Chalcedon. Lucullus arrived in Asia only after holding the elections for 73 and raising a legion in Italy. Even then, he did not proceed directly against Mithridates. Plutarch tells us his first task was to retrain the troops he found in Asia, which will have taken some time. When Lucullus did move, he had reached no further than Phrygia when Mithridates invaded Bithynia and shut up Cotta in Chalcedon. Lucullus came to his colleague’s rescue, and in the following winter managed also to relieve Cyzicus of Mithridates’ siege.290 Though Cotta and Lucullus might have left Rome to take up these commands during their actual magistracies, it should be clear by now that we have to exclude spring 74 as the date when Mithridates attacked Bithynia. Indeed, if we are to keep Appian’s notice that war broke out in the “spring,” we have to assign Mithridates’ invasion, the actual fighting at Chalcedon, and the start of the siege of Cyzicus all to the year 73. We may presume that M. Iuncus yielded Bithynia to Cotta as soon as he arrived, and then retired to his proper provincia of Asia and stayed there at least until Lucullus touched shore. Iuncus surely had plenty of challenges that kept him busy in the interim. One was gathering the Roman forces and auxilia in Asia for Lucullus’ arrival, which came no sooner than autumn 74 and conceivably as late as the spring of 73. Iuncus may have seen some fighting in Asia too: as we have noted, the privatus Caesar already in 74 had to encounter some Pontic forces in the field.
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14.6.3 The Outbreak of the Third Mithridatic War B. C. McGing has effectively addressed most counterarguments in favor of spring 74 as the start of the war.291 There is just one major piece of evidence that survives his analysis. The Periocha of Livy’s Book 93, after noting the death and bequest of Nicomedes, Mithridates’ alliance with Sertorius, and the king’s other preparations for war, mentions the invasion of Bithynia and the defeat of M. Aurelius Cotta “cos.” at Chalcedon, then (in a corrupted section) describes the failure of Pompey and Metellus Pius to take Calagurris: and exploits by Pompey and Metellus against Sertorius [——] [H]e was equal to all in the arts of war and military service [——] and he forced them, driven from the siege of the town of Calgurris, to head for separate regions, Metellus to Further Spain, Pompey to Gaul. resque a Pompeio et Metello adversus Sertorium [——] omnibus belli militiaeque artibus par fuit, [——] et ab obsidione Calagurris oppidi depulsos coegerit diversas regiones petere, Metellum ulteriorem Hispaniam, Pompeium Galliam.
In the Periocha Cotta’s title “cos.” need not be taken literally. It could stand for “pro consule,” as often, and so belong to the year 73.292 But those events in Spain must belong to “Year 3” of Pompey and Metellus’ joint fighting against Sertorius, that is, the year 74 (13.4.5). Keaveney, commenting on the Periocha’s report of these Sertorian affairs, thinks that “the position of this notice makes the date of 74 virtually certain” for the start of the Mithridatic War.293 Here he seems too hasty. Scholars apparently have abandoned the text at the end of Per. 93 as a lost cause.294 But for that first lacuna one partial supplement readily presents itself: “resque a Pompeio et Metello adversus Sertorium ” (“and [the book] contains exploits . . . ”). Such a formulation—which seems quite inevitable295—shows that what we have is a summary statement of the familiar “res praeterea (liber) continet” genre.296 And that in turn suggests Livy can have related the Calagurris incident and the arrangements Metellus and Pompey took for winter 74/73 anywhere in his Book 93.297 The upshot is that the battle at Chalcedon need not have preceded those Sertorian items in Livy’s narrative, and so does not necessarily date to the year 74. Nor is there anything further on in the Periocha that positively excludes the possibility that Livy in his Book 93 related Chalcedon as an incident of early 73. Per. 94 consists of the “cos.” L. Lucullus’ victories over Pontic cavalry and his quashing of a mutiny, and Deiotarus’ success against Mithridates’ prefects, followed (in the “praeterea” section) by a notice of Pompey’s successes against Sertorius. All that can belong to spring or summer 73. Periocha 95 has C. Curio (cos. 76) as “pro cos.” vanquishing the Dardani (not closely datable), the outbreak of the gladiators’ war (demonstrably later 73, as we have seen in 11.8.6), and the “pro cos.” Lucullus lifting the siege at Cyzicus. There are independent grounds for dating that event to 73/72, and that is the chronology I assume for what follows below.
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14.6.4 Praetorian Commands in the Third Mithridatic War Other than a few legati who might have received delegated imperium from M. Cotta or L. Lucullus—and the Sertorian “praetor” M. Marius (see 13.4.1)—no individuals with praetorian imperium are explicitly attested in the fighting of the Third Mithridatic War, all the way down to the arrival of Pompey in 66 (and indeed quite a bit beyond). The most probable example of delegation is C. Salluvius C.f. Naso, a legatus pro praetore who protected Mysia Abbaetis and Phrygia Epiktetos, no doubt for Lucullus; for this, any date from mid-73 on seems possible. The only reason we hear of this man is that some Mysi Abbaetae set up a bilingual dedication to him, which survived at Nemi. Neither Salluvius nor either of the other two legati pro praetore who perhaps belong to this period find their way into literary accounts of this war.298 Conversely, those literary sources are full of instances where legati are fighting in semi-independent commands299 or are left responsible for substantial towns or territories.300 Yet one is hard pressed to say which if any of these individuals were pro praetore. In one instance the literary sources do come close to implying delegated imperium. Lucullus’ chief delegatee in Pontus (occupied in 71) appears to be M. Fabius Hadrianus. Appian says this man “had been left behind by Lucullus to hold a command”; Dio calls him a[rcwn in Pontus.301 But there are also plenty of apparent counterexamples. P. Rutilius Nudus was possibly of praetorian rank when he served as a praefectus classis under M. Aurelius Cotta in Bithynia. Appian tells us he fought semi-independently against Mithridates before Chalcedon in 73, but there is no suggestion in our sources he had imperium302 To take another instance, the legatus C. Valerius Triarius probably had held imperium in Sardinia before the time of this war (see 13.1.1). From the perspective of the author Memnon, he comes off as almost the equal of the consular commanders Cotta and Lucullus during his long service in the east. Here we do have a number of inscriptions, dating from a visit to Delos to repair fortifications, traditionally (following Phlegon of Tralles) dated ca. 69, but none indicate he had imperium at the time.303 L. Licinius Murena (the future cos. 62) also had substantial military responsibilities, but he, too, is never termed anything more than “legatus.”304 One last example: when Lucullus invaded Armenia, he left (apparently in addition to M. Hadrianus) the legatus Sornatius in a position of authority in Pontus. Here again we have one, possibly two, epigraphic attestations, but no title more grand than “legatus.”305 It does seem, however, that in this period a legatus with imperium might be commemorated in a Greek inscription without explicit mention that he was “pro praetore.”306 So a good deal of uncertainty remains. In sum, the epigraphic evidence—all quite random—suggests that the practice of delegation of imperium by consular commanders surely was more common than our surviving literary texts indicate. Still, we have so few ironclad examples of the practice that there is little sense in trying to divine how M. Cotta and L. Lucullus put it to work during their commands in the Third Mithridatic War. Nor is Cn. Pompeius’ later command in the east illuminating, for all his wide use of legati. We
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have no explicit instance of the pro consule Pompey personally delegating imperium to a subordinate in the years 66–62, until he left the pro quaestore M. Aemilius Scaurus to hold Syria in early 62 B.C. (11.5.1). 14.6.5 The “Restoration” of Asia as a Praetorian Provincia After reducing Heraclea Pontica by siege—said to be a two-year operation—M. Aurelius Cotta returned to Rome, probably in late 71.307 Once his consular colleague had departed, Lucullus in 70 turned his attention to the debt-ridden province of Asia, still very much laboring under the fine imposed by Sulla almost a decade and a half previously. He also asked the Senate to send a commission of decem legati to organize the territory he had won from Mithridates. The financial reforms Lucullus carried through in Asia, though wildly popular in the provincia, are said to have stirred up opposition from publicani, who for their part worked on the tribunes in Rome. There were also accusations that Lucullus was intentionally prolonging the war. In 69, right around the fall of Tigranocerta, the Romans (we are not told precisely how) removed Asia from Lucullus’ composite provincia, “and restored the rule of Asia to the praetors.”308 And that despite a military threat to Asia from Mithridates and the Armenian king Tigranes, which indeed would continue for several years.309 Lucullus naturally was not completely shut off from the province of Asia.310 But to make it once again praetorian was a grave insult to this commander,311 especially since the decision came at the height of his military success. His provincia soon was to shrink to nothing. Lucullus was to lose Cilicia to the cos. 68 Q. Marcius Rex, and finally the military provincia of Bithynia and Pontus to the cos. 67 M.’ Acilius Glabrio.312 The year 67 also saw Cn. Pompeius—pro cos. against the pirates under the lex Gabinia (11.8.2)—and at least three of his legati pro praetore impinge on Asia and the eastern consular military provinciae.313 Finally, in 66 the tr. pl. C. Manilius handed over Cilicia, Bithynia, and Pontus entirely to Pompey, who stayed in the east down into late 62 B.C. But to focus on Asia: The first known commander after the decision of 69 to make this provincia praetorian is P. Cornelius Dolabella. This was the individual who, as city praetor, presided over the sponsio, known from Cicero’s Pro Caecina, of A. Caecina versus Sex. Aebutius in 69 or 68. The date of his arrival in Asia as pro cos. can be either 68 or 67.314 We then have four more commanders ex praetura to fit into the four or five years down to L. Valerius Flaccus (pr. 63) who went to Asia for 62.315 For none of these four is a city praetorship attested. But the relative order of these four praetors is not hard to divine, thanks especially to some informative passages in the speech Cicero delivered in defense of Flaccus when the latter was prosecuted repetundarum in 59. It is also readily apparent that at most one of these predecessors of L. Valerius Flaccus can have been prorogued in the provincia. Flaccus himself definitely spent just one year in the provincia.316 So the Senate in the 60s was obviously trying hard to maintain a policy of annual succession for Asia. The first two commanders for the province after Dolabella were T. Aufidius and P. Varinius. Valerius Maximus makes much of the remarkable coincidence that
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T. Aufidius had experience as a publicanus in Asia before becoming pro consule for the provincia; Cicero says in the Pro Flacco that he conducted himself “integerrime atque splendidissime” and shows that he directly preceded P. Varinius in that command. Cicero elsewhere mentions Aufidius as a potential candidate for cos. 63, which shows he had reached the praetorship by 66.317 Now, between Aufidius and the arrival of L. Valerius Flaccus in 62, one must fit into the praetorian fasti for Asia three individuals. So T. Aufidius was in the provincia by 66, perhaps directly succeeding P. Cornelius Dolabella. As for Varinius, Broughton should be right in suggesting that the P. Varinius who shows up as a commander in Asia is identical with the homonymous pr. 73 defeated by Spartacus (11.8.6), explaining that he had iterated the praetorship after expulsion from the Senate in 70. The name is exceedingly rare: no other Varinii are known to have held office in the Republic.318 All we can say is that he had received Asia by 65. The next two incumbents were P. Orbius and P. Servilius Globulus. In the Pro Flacco, Cicero says that each of these men in Asia heard a legal dispute involving the younger Appuleius Decianus (the future prosecutor of L. Valerius Flaccus), but came to two different decisions; Cicero also shows that Globulus directly preceded Flaccus in the provincia. P. Orbius (a noted expert in the civil law) then must have held Asia in or before 64. Since P. Globulus was tr. pl. 67, the year of his actual praetorship is likely to have been the year 64, as Broughton has it. But the year 65 cannot be absolutely excluded, with a command in Asia for both 64 and 63.319 14.6.6 L. Valerius Flaccus in Asia It is another wonderful example of the sors opportuna that L. Valerius Flaccus, pr. urb. in 63, received Asia in the sortition, where his father had served both as praetor in the late 90s and in an ill-fated consular command of 86–85 (see 14.5.9).320 As urban praetor, the younger L. Flaccus had played a prominent role in capturing the Allobrogian legates with the letters that exposed the Catilinarians. But he seems to have done very little for the welfare of the province of Asia: Cicero in a letter to his brother reveals that he thought the province a mess at the time Quintus (pr. 62) arrived there as Flaccus’ successor in 61.321 The problems evidently included debt and depopulation in the cities, serious urban and rural crime, and actual civil disturbances. There seems to have been an agricultural crisis, too.322 Yet when Flaccus later came on trial under the lex Cornelia de repetundis in late summer or early autumn 59, Cicero (with Hortensius) defended him all the same. In the Pro Flacco, Cicero argued that the trial was not so much about Flaccus’ acts as commander in Asia; rather, he was being punished by his enemies for having helped foil Catiline four years earlier. For good measure, Cicero threw in some attacks on the ethnic character of the Asian provincials who had accused Flaccus of wrongdoing, and also some (predictably laudatory) digressions on Flaccus’ father and family. The defendant was acquitted after two actiones. Despite the success of Cicero’s defense, Flaccus was known to Macrobius as one of Cicero’s most manifestly guilty clients.323 Toward the beginning and conclusion of the Pro Flacco, Cicero summarizes L. Flaccus’ service in Asia simply as “iuris dictio.”324 A good part of the speech (not
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entirely extant) is devoted to examining and defending Flaccus’ conduct in civil and criminal cases.325 But he evidently was up to a lot more in the province. By Cicero’s own account Flaccus requisitioned money from the cities of Asia to raise a fleet, and then, in coordination with M. Licinius Crassus (cos. 70), patrolled the entire coast looking for pirates. One problem was that no praetor before Flaccus had made precisely this type of financial demand on the cities. (The only precedents Cicero can cite are Sulla and Pompey, patently both special cases.) Another problem is that Flaccus never entered those funds into his account books, nor did he do any actual fighting—serious indications of corruption, which Cicero does little to dispel.326 There were plenty of additional grounds—gleaned even from Cicero’s defense speech—for suspecting Flaccus had put a premium on enriching himself while in Asia.327 “Avaritia” was obviously a central charge that Cicero had to defuse.328 So it is no doubt a rhetorical ploy that Cicero in his defense speech twice represents Flaccus’ main sphere of activity as “iuris dictio.” The narrower the range of activity, the more limited might appear the opportunities for abuses. One notes also that Cicero always calls the defendant simply “praetor,” not “pro consule,” which was his expected title.329 In this speech, the only person said to have consular imperium in Asia is L. Licinius Lucullus—who was a juror in Flaccus’ trial. Cicero probably is trying to downplay Flaccus’ powers in his province while simultaneously flattering Lucullus.330 In this speech, Cicero has little to say about what L. Flaccus had to show for his administration of Asia. He once terms him “iustissimus praetor,” but here he might be thinking just as much of Flaccus’ time in the urban province, which (as noted above) he touted loudly because it was so effective against the Catilinarians. Indeed, when searching for positive reasons to acquit his client, Cicero offers the splendor of Flaccus’ family, his career up to his promagistracy in Asia, his future prospects—indeed, almost anything but what Flaccus did for Asia. In provincial administration it is difficult to please everyone, offers Cicero: there are plenty of people who hate the whole Roman system; in any case, provincials have no business dictating what Roman commanders should do. In the end, just about the only achievement Cicero registers for Flaccus in Asia is that he frightened the pirates by his manner of naval requisitions. Yet Cicero also plainly says his own brother did not follow Flaccus in this when himself taking up the provincia.331 Cicero’s own correspondence to his brother shows that he had a low opinion of L. Flaccus’ tenure of Asia, and it does seem that this attitude colors the Pro Flacco. But there may be another reason why Cicero is noticably reticent on the positive aspects of Flaccus’ provincial administration. At the time of this speech, his brother Quintus (pr. 62) was finishing his third and (as it happened) final year in the provincia of Asia. Cicero knew full well that he was liable to prosecution on his arrival in Italy. It was expedient, then, not to let Quintus’ predecessor in Asia shine too brightly in the Pro Flacco. 14.6.7 Q. Tullius Cicero in Asia Quintus drew Asia as his promagisterial provincia definitely after 25 January 61, and probably not long before 15 March 61.332 Although he expected and in fact wanted
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only a single year in Asia, he would return from the province only in spring 58, after twice being prorogued. Quintus attempted to bring Atticus with him to Asia as a legatus, which shows that (at this time) even nonsenators could hold that post.334 But Atticus’ refusal to serve as a praetor’s “attendant” (“assecla,” as he put it) resulted in a feud between the two that M. Cicero himself managed to settle only in the next year.335 It was just the first fire from this provincial command that needed to be put out. For Quintus—by his brother’s own account—was quick to anger, and careless, to boot.336 Those qualities in particular caused Cicero to harbor transparently serious doubts about Quintus’ suitability for tenure of a high-profile provincia like Asia.337 At the root of it, he appears to have been worried that Quintus’ behavior would reflect poorly on himself.338 We are much better informed about the latter stages of Quintus’ administration as pro consule.339 Cicero’s first extant letter to his brother (Q. fr. 1.1), dates to the end of 60 B.C., after the Senate had decided to prorogue this governor for a third year in Asia. That prorogation came despite Cicero’s lobbying to the contrary, Quintus’ desire to have returned a full year previously, the eagerness of various praetors of 60 to get the province, and the desire of negotiatores to turf Quintus out.340 The picture of Quintus that emerges from this letter and others to follow in 59 is far from flattering.341 And it is clear that Cicero thought his brother in general all too oblivious to his own public image.342 The qualities Quintus showed in the earlier part of his command cannot have been all that different from what we find in this last year. Indeed, Cicero terms his brother’s first year the worst for displays of anger (though admitting that the sad state of the province gave Quintus a partial excuse).343 In his first or second year, Quintus demonstrated questionable judicial severity, too.344 As for carelessness, it is odd that this praetor delegated a thorny legal case (inherited from Flaccus) to a legatus, M. Gratidius, to decide.345 But from the start, as we have seen, he steered clear of at least one of his predecessor Flaccus’ dubious precedents.346 And Cicero claims he was successful within the space of two years in reversing many of the ills—especially those concerned with public order and unfair taxes—that beset the province on his arrival.347 We do not learn precisely what attitude Quintus took toward the Asian publicani, who had overbid on the taxes for the province and in 60 were pressing hard for a rebate, backed by Crassus and (to an extent) M. Cicero against the strong objections of the cos. Q. Caecilius Metellus Celer and the quaestorius M. Porcius Cato. Cicero, at the end of 60, says that Quintus had a good reputation with the publicani, but one certainly gets the impression that he thought his brother could use greater tact in dealing with this group.348 Already in that first letter from the end of 60 we find Cicero voicing strong concerns about the possibility that Quintus would face prosecution on return to Rome from his promagistracy.349 Indeed, anxiety about possible prosecution motivates a good deal of the practical advice Cicero dispenses in that series of letters from late 60 and 59 to his brother in Asia.350 As noted, we might count his palpably ambivalent defense of Quintus’ predecessor L. Valerius Flaccus in the Pro Flacco (August or September 59) as another reflection of that anxiety. The fact that Quintus’ successor—T. Ampius Balbus (pr. 59 who had drawn the provincia before 10 Decem-
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ber of that year)—was known to be “very charming” (“perblandus”)351 gave Cicero additional cause for alarm. Comparisons were inevitable. Quintus left the province at the end of April 58, and had reached Athens by 15 May. Cicero was anxious that he go straight to Rome to prepare against possible legal action and not try to meet him—now in exile—in his abject state at Thessalonica.352 Cicero’s fears for his brother remain prominent in his correspondence for the months that follow.353 In a way, those fears would reach their most acute point in early September 58, after the sortition of city provinciae among the praetors for 57. In a letter to Atticus, Cicero expresses deep concern that Quintus might face prosecution in a quaestio—doubtless repetundarum (11.7.1)—run by the (then praetor designate) Ap. Claudius Pulcher, brother of Clodius.354 In the event, Quintus probably was never brought to trial.355 14.6.8 Praetorian Commanders in Asia, 58–50 In the spring of 59, there was some discussion in Rome whether to use cistophoric coinage deposited by Pompey to pay Quintus in his provincial command.356 As pro consule in Asia in 58/57, his successor T. Ampius T.f. Balbus actually minted such coins at Ephesus, Pergamon, Tralles, and Laodiceia. It should be noted that Ampius started producing coin issues at Ephesus by 23 March 58—that is, before Q. Cicero had left (and probably before Ampius had arrived). Ampius’ coinage in that province continues through the period 24 January–23 March 57.357 The Senate evidently prorogued Ampius for the entire year 57, but with Cilicia—not Asia—now as his provincia. The evidence is a chance statement by Cicero that it was Ampius whom P. Lentulus Spinther (cos. 57) found in Cilicia when taking it up in 56.358 The arrangement has caused some confusion.359 However, Syme adequately explains how the pro consule Ampius might find himself transferred from one eastern province to another. He points out that under the Sempronian law, Cilicia was supposed to be consular for 57. When its intended recipient, A. Gabinius (cos. 58), managed to have Cilicia declared praetorian and get Syria instead, the Senate put Ampius—for all his charm, not a man of particular potentia—in charge of Cilicia until it could come up again in the sortition.360 The man who replaced Ampius in Asia for 57 was a C. Fabius M.f., evidently a praetor of 58. As pro consule in Asia, he too minted cistophori, at Ephesus, Pergamon, Tralles, Apameia, and Laodiceia. Fabius’ Ephesian coins show him in control of the provincia from 24 March 57 to perhaps 24 March 56.361 There are no non-numismatic sources on his command. Some have regarded him as a “Hadrianus”—that is, nephew of the notorious praetor C. Hadrianus burned alive at Utica, and cousin or son of the legate M. Hadrianus active in the Third Mithridatic War—despite the fact that no source offers a cognomen.362 It seems a reasonable guess, since no other senatorial M. Fabii are attested in the previous generation. Next in the province was C. Septimius T.f. While a praetor in the city in 57 (precise provincia unknown), C. Septimius supported Cicero’s recall from exile. As pro consule for Asia, he minted at Pergamon, Tralles, and Ephesus.363 His coins are dated by the second of two Ephesian moneyers of “Year 78”—surely 24 March–23 September 56, since at this point these officials seem to have served a six-month
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term—and under two separate moneyers of “Year 79” of the provincial era. So Septimius was in the province at least until 24 March 55, but probably a bit longer: his successor C. Claudius Ap.f. Pulcher (pr. 56) is known to mint at Ephesus only starting in “Year 80” (i.e., after 24 September 55). As pr. 56, C. Claudius had energetically supported another brother—P. Clodius—in Rome,365 but his city provincia is not attested. He issued as pro consule for Asia cistophori at Ephesus, Pergamum, and Tralles. C. Pulcher was minting at Ephesus in “Year 80” (i.e., 24 September 55–23 September 54) and “Year 81,” with examples of his coins under two separate moneyers for each of these years.366 So C. Claudius Pulcher remained in this province (supposing a six month term for Ephesian moneyers at this time) at least until 24 March 53. But likely it was somewhat longer, for we know from Cicero he had been prorogued for all that year.367 The repeated prorogations do come as a surprise. Though Q. Cicero had three full years in Asia, Claudius’ immediate predecessors T. Ampius Balbus, C. Fabius, and C. Septimius, each had to stay in Asia only for one year (though Ampius, of course, found himself prorogued in a different provincia). Where we can check, three of the five praetors of 57 who took up a promagistacy found a successor in their provincia after a single year.368 And of Claudius’ praetorian colleagues from 56, M. Aemilius Scaurus had just one year in Sardinia, while Q. Ancharius stayed in Macedonia one or at most two years. It certainly seems as though the Senate was taking pains to ensure annual succession where it could in these years (15.3). But for all we know, long prorogations might have been common after 57: as it happens, C. Pulcher, M. Scaurus, and Q. Ancharius are the only praetors from the period 56–53 for whom both the date of magistracy and territorial provincia are known. One notes that P. Cornelius Lentulus Spinther (cos. 57) was in nearby Cilicia from 56 down into 53, and his successor Ap. Claudius Pulcher (cos. 54) from 53 down into 51 (15.1.2), which offer a parallel of sorts for C. Pulcher’s three-year command. Cicero says that before his (second) prorogation, Claudius had hoped to run for the consulship of 53.369 In the event, the movements of his (presumed) quaestor C. Scribonius Curio (the future tr. pl. 50) suggest a return to Rome late in 53 or early in 52.370 Back in Rome Claudius did not find election to the consulship, but rather condemnation in 51 for repetundae, followed by exile.371 The last commander to be placed in the Asian fasti for this period is Q. Minucius (Q.f) Thermus. He is consistently termed “pro praetore” in Asia, but was definitely of praetorian standing, with charge of the provincia.372 Minucius was at Ephesus in late July 51, and was set to depart from Asia in May of the following year.373 Broughton suggests he “probably” came to the provincia in 52.374 Yet Minucius’ rank—pro praetore as opposed to pro consule—virtually assures that he received Asia under the lex Pompeia de provinciis of 52 (11.1.5), and so quite likely for 51. The arrangements for Asia for 52 remain unknown. There are other circumstantial details to support this interpretation that Minucius got his province only under the lex Pompeia. It is reasonable to suppose that Minucius was son of the monetalis Q. (Minucius) Therm(us) M.f., who is probably the same man as the Q. Minuc(ius) M.f. Ter. listed sixth in the cos. Cn. Pompeius Strabo’s consilium at Asculum in 89. The Asian commander himself seems to have reached the Senate as early as 73, and was elected tribunus plebis for
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62.375 The date of Minucius’ actual praetorship and his activities in the city are not attested. In view of the (probable) details of Minucius’ cursus and the interval between magistracy and promagistracy stipulated by the lex Pompeia, it is reasonable to suggest that his praetorship might have fallen as far back as one of the years 60–58 (all the praetors of 57 are known).376 Minucius does seem to have picked up some legal experience before his ex praetura Asian command. Cicero personally commends Minucius on his administration of justice, apparently with some sincerity.377 But all the same, Cicero also gives Minucius some very specific instructions on how to conduct legal affairs in Asia; some of his prescriptions in his letters to this man come off as practically imperious.378
15
Cilicia and the Gauls in the Late Republic
So far, our survey of regular praetorian provinciae in the later Republic has taken us through the evidence for the city praetorships (10.4, 11.7, 12.1–4) and also the various territorial provinces where praetors served: Sicily and Sardinia (13.1–2), the Spains (13.3–4), Macedonia (14.1–2), Africa (14.3–4), Asia (14.5–6), pre-Sullan Cilicia and the Gauls (10.1–2), and Bithynia/Pontus, Crete, Cyrene, and Syria (11.2–5). In addition, we have examined special praetorian provinciae both outside (10.5, 11.8) and inside (10.6, 11.9) the city of Rome. To complete the circuit, it remains to look at praetorian commands in Cilicia (15.1) and the Gauls (15.2) in the period after Sulla. In 15.3 I have added some general remarks on staffing of provinciae in the later Republic, meant to complement the discussion in 9.4.1–4 of this same issue in the period down to 122 b.c.
15.1 Roman Cilicia in the Late Republic 15.1.1 Cn. Cornelius Dolabella (pr. 81) and His Consular Successors The first commander to receive the province of Cilicia under Sulla’s new system was Cn. Cornelius Dolabella. As praetor, he ruled that the sponsio should take place which gave rise to Cicero’s Pro Quinctio of 81. The date of the speech, and thus Cn. Dolabella’s praetorship, is certain (12.1.1). Cn. Dolabella received Cilicia ex praetura for 80 and (surely) 79.1 Dolabella apparently spent quite a bit of time in this province. The fighting in Cilicia was fierce enough for Dolabella’s quaestor C. Malleolus to meet his death in battle. It seems unlikely that Dolabella, in the same year in which he lost his quaestor, would let his legatus C. Verres (whom he appointed “pro quaestore” in place of the fallen Malleolus) go off on business to Bithynia and Thrace, and then himself take leave of Cilicia and its war to disentangle Verres from troubles at Lampsacus. So more than one year seems required.2
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His rank raises a more thorny problem. Dolabella is termed “pro consule” (as we would expect) in the scholiasts to the Verrines. But when Cicero cites evidence from Dolabella’s later trial for extortion (in which he was condemned), it is “from the damages assessed against Dolabella ‘pr. et pro pr.’”3 The title “pro praetore” is very odd for the post-Sullan period, especially in a province where even before Sulla praetorian commanders invariably received enhanced imperium (10.1). The designation of Cn. Dolabella as “pro praetore” in his court record may simply reflect the adminstrative perspective of Rome. Strictly speaking, he was a praetor and prorogued praetor, and the fact he held enhanced imperium in his provincia was perhaps irrelevant in a document of this type. But it is worth suggesting that Dolabella indeed only had the status of pro praetore. Plutarch includes, in a list of instances where Sulla showed jealousy of the supporters who helped him win the Civil War, an attempt to take back a naval command (nauarciva) he had given to a “Dolabella.”4 It has been assumed—on the basis of this passage alone—that the elder Cn. Dolabella (i.e., the future cos. 81) had command of a fleet in that struggle.5 However, Plutarch’s statement seems better matched to the Cn. Dolabella who was pr. 81. Cilicia can plausibly be regarded as a “naval command.” There are ample references to the Roman fleet in this provincia6—as one would expect, since “Cilicia” was specifically set up to combat piracy (see 10.1). And in the two instances where Plutarch elsewhere uses the word nauarciva in a Roman context, in both cases it is in reference to Pompey’s grand command aginst the pirates under the lex Gabinia of 67.7 It is possible that Sulla for some reason8 interfered with the younger Dolabella’s ex praetura command, eventually letting him have Cilicia, but refusing him the same grade of imperium that all the other territorial governors in his system had. One notes that the commander for Asia for 80, C. Claudius Nero, was already settled in his provincia when Cn. Dolabella was still in transit (see in 14.6.1), which lends modest support to the hypothesis of a quarrel between the dictator and this Dolabella as promagistrate. After Cn. Cornelius Dolabella, one has to wait about a dozen and a half years before another praetorian commander had a chance to get Cilicia in the sortition. The cos. 79 P. Servilius Vatia was in Cilicia probably by early 78. There he remained for a “quinquennium” (as Cicero terms it); more precisely, down into early 74, when he returned to Rome to celebrate a triumph (his second) and assume the agnomen “Isauricus.”9 His successor in the province was L. Octavius (cos. 75), who died, however, soon after his arrival in Cilicia in 74. By this point, renewed war with Mithridates seemed inevitable. That even prompted talk of creating a special commander to replace Octavius in Cilicia. But L. Licinius Lucullus (cos. 74) managed to get the provincia decreed to himself, remaining in possession of it for at least five full years. He eventually lost Cilicia to the cos. 68 Q. Marcius Rex, who took it up as pro consule in 67. After not quite a year in the provincia Marcius himself was superseded by the privatus pro consule Pompey, under the lex Manilia of 66. Pompey held Cilicia as part of his massive eastern provincia down to late 62 (on all this, see 14.6.2 and 14.6.5). He even enhanced Roman Cilicia with some new territorial additions in 63. Meanwhile, Marcius—who had been hailed “imperator” in Cilicia—sat outside the walls of Rome at least until late 63, waiting for a triumph that never came.10
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15.1.2 Praetorian Commands in Cilicia after 62 The years 61 through 58 are a blank for Cilicia. It conceivably remained consular (the promagisterial provinciae for the coss. 62 and 61 are unknown). But in all likelihood, once Pompey completed his organization of Cilicia, it was placed once again in the praetorian sortition. How many times is another question. We know the immediate postpraetorship activities of five or six of the eight members of the college of 62; the only other provinciae that admit vacancies for 61 are Sardinia, then Cyrene, Crete (neither of which was ever a high administrative priority), and perhaps Bithynia. Thus there is no technical obstacle to supposing Cilicia was declared praetorian for 61, and allotted to one of the two or three praetors of 62 about whom we are in the dark. In the years 60 through 58, we can account for the ex praetura activities of just two or three men each year, but for the governorship of all the standing territorial provinciae except for Sardinia, Cyrene, and Crete. So Cilicia can have come up in the sortition for any of these years. But it is even possible that a pr. 62 held Cilicia from 61 down through 58. Cilicia by now had a wellestablished tradition of longish commands, and other provinciae—Sicily, Africa, Gallia Transalpina, Asia, Bithynia, Syria—saw prolonged tenures by ex-praetors precisely at this time (13.2.7). Furthermore, if there was just a single commander for Cilicia for this four-year period, it would go some way toward explaining how the administrative arrangements for the province in these years have fallen so completely out of our record. At the start of 58, it looked as though the cos. A. Gabinius would proceed to Cilicia for 57, where his main task would be the annexation and organization of Cyprus. For various reasons, the tr. pl. P. Clodius decided to have the tribunicius M. Porcius Cato sent pro quaestore with praetorian imperium to see to that commission instead (11.8.4). But through the agency of Clodius, the consul managed to have Cilicia made praetorian—as it probably had been for the previous four years—and Syria declared consular, to be assigned to himself. As part of this deal, the Senate laterally transferred T. Ampius Balbus (pr. 59) extra ordinem from his promagisterial command in Asia to Cilicia. Ampius’ coins for Asia run up to possibly 23 March 57, but he might have left for Cilicia before or after that point. Ampius then held that provincia as his own until it came up again in the sortition for 56. In fact, he waited long enough in Cilicia to meet his successor, the cos. 57 P. Cornelius Lentulus Spinther.11 It was Spinther who in 56 undertook the actual organization of Cyprus, which for the rest of our period was attached to the provincia of Cilicia (11.8.4). Ampius is only the second named praetorian commander we find in charge of this province in the entire period after Sulla’s dictatorship. As it happens, he was to be the last before the start of the Civil War in 49. P. Cornelius Lentulus Spinther (cos. 57) returned from his provincia of Cilicia in 53 and triumphed (after a wait) in 51. During his tenure Phrygia was added to the provincia of Cilicia, and with it, Apameia and Laodiceia; the commander for Cilicia now had responsibility also for Cyprus. Lentulus Spinther’s direct successor was Ap. Claudius Pulcher (cos. 54), who spent more than two full years in the provincia. M. Tullius Cicero followed as
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pro consule under the lex Pompeia, arriving in the provincia 31 July 51 and staying precisely one year to the day.12 None of Cicero’s immediate predecessors delegated praetorian imperium to a subordinate to hold the provincia until the arrival of a successor. Indeed, just as T. Ampius Balbus waited for P. Lentulus Spinther, Spinther personally met Ap. Pulcher on his arrival. And when Cicero arrived to supersede Pulcher, he found (to his great annoyance) his predecessor still holding assizes in the province. Ap. Pulcher earlier had claimed he had delegated charge of the provincia to a member of his staff, but it seems that was just a ruse.13 However, Cicero was in a great hurry to quit his provincial command at the first available (legal) opportunity. After much tortured deliberation, on 30 July 50 he left his quaestor C. Coelius Caldus to hold Cilicia until a successor should show up (none was in prospect at the time). Cicero does not say explicitly that he gave Coelius imperium. But there is good reason to think the quaestor received it.14 The individual who finally took up the provincia was P. Sestius L.f. Quaestor 63, he was tr. pl. 57, acquitted de vi in 56 and also (apparently) on another charge (de ambitu?) in 52.15 He definitely reached the praetorship at some point.16 Cicero mentions P. Sestius among those cum imperio in Italy in March 4917—an assorted group that includes Pompey, Q. Metellus Scipio (cos. 52, and now pro cos. under the lex Pompeia), and perhaps even a commander from Macedonia waiting ad urbem for a triumph vote (see 14.2.6). In the sortition of provinces that followed, Sestius received Cilicia, where he is found by mid-year.18 He should have been of praetorian standing by the time of that command,19 but the date of his actual praetorship is irrecoverable on our present evidence. The years 55, 54, 53, 51, and 50 are each conceivable.20
15.2 The Gauls in the Post-Sullan Period Badian has also comprehensively treated the provincial fasti for both Cisalpine and Transalpine Gaul in this period (cf. 10.2.1–3), which removes the need for extended discussion of arrangements for the Gauls in this section.21 It is clear that Sulla in setting up his new system envisaged these provinciae as separate commands: Sulla himself as cos. II 80 had Cisalpine Gaul as his promagisterial provincia, though he chose not to take it up (11.1.6). In subsequent years, the Senate continued to conceptualize the Gauls as two provinciae—at least in principle, that is. It comes as little surprise to find that in this period the Senate several times had to combine the two Gauls and declare them a single (usually consular) provincia. We find that certainly for the years 77, 67 through 65, and finally for Caesar in 58 through 50 (joined also with Illyricum). The total accounts for more than one-third of the years of this period. Those instances before Caesar were doubtless in part to compensate for the strain on the system caused by ex-magistrates who followed Sulla’s lead and refused their own provincial assignments! One noteworthy development for the praetorship emerges from this maintenance of Cisalpina and Transalpina as separate provinces. Contrary to long previous practice, after Sulla men of praetorian rank might find themselves assigned a
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northern command. Despite Sulla’s increase in the number of praetors and his integration of ex-consuls into the administrative system, there were still too many territorial provinciae relative to the available number of commanders to keep subconsulars altogether out of the Gauls. Indeed, the first post-Sullan commander we find in Transalpina was of praetorian standing. 15.2.1 Praetorian Commands in the Gauls of the 70s I have argued (13.4.2) that L. Manlius was in command of Gallia Transalpina as pro consule at least in 78 and met disaster while trying to enter Iberia in late 78 or early 77. His move was surely fully authorized ex S.C. By the time the Senate in 78 sent the consul M. Aemilius Lepidus and his colleague Q. Lutatius Catulus to restore order in Etruria (where the people of Faesulae had attacked Sullan veteran colonies),22 Lepidus had received both Gauls as his provincia under the lex Sempronia. Evidently it was he who soon was supposed to succeed L. Manlius in Transalpina.23 M. Aemilius Lepidus seems to have operated in Cisalpina already while consul, perhaps aiming to score a triumph over some Alpine tribe.24 In 77, when Lepidus, now pro consule, was causing so much trouble in Italy, we learn that he had left M. Iunius Brutus (tr. pl. 83) in charge of that provincia. We do not know whether Lepidus dispatched a legatus also to Transalpina, now or at a previous time. But the speech in Sallust of the senior consular L. Marcius Philippus—set in early 77 during the interregnum that Lepidus caused by his demand for a second consulship—singles out Lepidus’ legati as a threat in themselves. It would be surprising if Lepidus made no attempt during his consulship or revolutionary promagistracy to assert his authority in the further provincia.25 If he did send a legate there, that would help account for L. Manlius’ march with his full forces into Hispania Citerior. What Pompey did to M. Lepidus’ legate in Cisalpina, and his elevation to pro consule to combat Sertorius later in 77, has already found discussion (11.8.2 and 11.8.5). To keep to the situation in Transalpina. Manlius’ defeat at Ilerda in northeast Spain and Lepidus’ insurrection in Italy in 77 left the further provincia wholly exposed. If Lepidus had a legatus there, he was no longer wanted. To meet the crisis in Transalpina, I have suggested (13.4.4) that the Senate sent M. Fonteius—who should be a pr. 77—in his year of office. It is reasonable to think that it was Mam. Aemilius Lepidus who eventually had to hold Cisaplina as consul in 77, perhaps even staying there for a year or two beyond.26 M. Fonteius, for his part, definitely remained in Transalpina for a “triennium,” probably down through the year 75. Fonteius later was prosecuted repetundarum, not immediately following his return but sometime after the Aurelian judicial law of the year 70 and previous to the year 67 (discussed shortly below).27 Following Fonteius in the provincia may have been Cn. Tremelius Scrofa. While holding an appointment in Gallia Transalpina, this man is said to have led a Roman army deep into Gaul, marching toward the Rhine. Scrofa came from a long line of praetors, and himself must have been of praetorian rank at the time of this campaign.28 Direct succession of Fonteius is not out of the question, but the
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expedition to the Rhine most naturally dates to a time when the fighting in Spain against Sertorius was no longer acute. Whether it was precisely Cn. Scrofa who succeeded Fonteius or not, Transalpina should have been praetorian in the years 74 through 72. The proof is that Cisalpina is allotted as a separate consular provincia for each of these years. The provincia fell to C. Aurelius Cotta (cos. 75), who was voted a triumph (albeit on slight grounds) late in 74 or early 73—but died the day before he was to celebrate it.29 L. Licinius Lucullus (cos. 74) had Cisalpina under the lex Sempronia for 73, but managed to switch it for Cilicia (14.6.3). And C. Cassius Longinus (cos. 73) was killed in the Cisalpine provincia fighting in coordination with a praetor (or prorogued praetor) Cn. Manlius against Spartacus’ forces in 72 (11.8.7). This may be a convenient place to point up a vexing puzzle. In a discussion of the cities of Transpadane Italy (i.e., Cisalpine Gaul), Strabo notes that the tribe of the Rhaeti caused damage to the moderate-sized town of Comum, but (Cn.) Pompeius Strabo (pr. by 91, cos. 89) settled a Roman colony there. “Then C. Scipio added three thousand [sc. colonists], and then the deified Caesar settled it with an additional five thousand,” that is, in 59 b.c. Who is this C. Scipio? From the nature of his activity—not to mention the individuals between whom he is grouped—his rank is very possibly praetorian.30 The fasti are open for Cisalpina in 79 (Sulla declined the province, and presumably someone had to fill in), possibly 76–75 (unless Mam. Aemilius Lepidus was there), 71–68 (see below in the next section), and (just conceivably) 60. The year 79 (with Scipio as a praetor for 80, then receiving Gallia Cisalpina ex praetura), or 76, or 75 each seems credible. After the fighting in the Civil Wars and the Bellum Lepidanum—in which Cisalpine Gaul saw its share of the action, and even some recorded reprisals—Comum might very well need a supplement. However, that is about as far as one can go. 15.2.2 Praetorian Commands in the Gauls down to 65 The four years 71 through 68 are a blank, for both Gallic provinces. It has been suggested—with some plausibility—that L. Afranius, as a praetorian commander in Hispania Citerior, had responsibility also for Transalpina for at least part of this time.31 We do get a glimpse of contemporary conditions in Transalpine Gaul from Cicero’s defense of the ex-governor M. Fonteius against a repetundae charge in the year 69 or 68. The prosecutors seem to have argued that Fonteius’ acquittal would spark a new war in Gaul.32 Cicero, for his part, in the Pro Fonteio (mostly extant) has much to say about the worthlessness of the Gallic witnesses who testified against this commander, the history and character of Gauls in general, and Fonteius’ career and family (including a sister who was a Vestal Virgin), suggesting—with amusing hyperbole—that the present trial was a replay of the Gallic sack of 390 b.c.33 However, Cicero on the whole tries to defend this provincial governor on his record. (His later practice would differ.) Fonteius aided the commanders in Spain with troops, money, and supplies, and administered a provincial levy for wars “all over the world.” He carried on some significant military activity in Gaul itself, in the main (apparently) against the Vocontii; he also had his legates improve the Via Domitia.34 Cicero acknowledges there was no little resistance to the praetor’s
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requisitions. He also admits Gaul was having deep credit problems at the time of Fonteius’ praetorship, which did not prevent that governor from thinking up novel taxes.35 Yet Cicero says that Fonteius had the support of the parties that mattered— the socii of Massilia, the people of Narbo, and the Roman citizens in the province.36 Unfortunately, we do not know the result of Fonteius’ trial. But the prosecution surely had some basis for its claim that Transalpina was troubled. In 67, the cos. C. Calpurnius Piso must have received both Gallic provinciae. Early in that year, while still in Rome, Piso chose to exercise his authority in Transalpina, refusing (surely through legati) to let Pompey’s legates hold levies there in preparation for the war with the pirates. Dio tells us that the People, for this, “immediately would have driven Piso out of his ajrchv”—probably by depriving him of this provincia— had not Pompey interceded. (He was evidently still in the city.)37 Piso managed to keep his command, indeed for two full years beyond his consulship. We know he personally acted in both provinciae. At some point he had to subdue a rising of the Allobroges.38 In summer 65, Cicero, looking forward to his bid for the consulship, tells Atticus he planned to stay with Piso in Cisalpina from September of that year to January 64, when the law courts in Rome were quiet. We do not know precisely when Piso returned to Rome. When he did (sometime before December 63), he, too, found himself in the quaestio repetundarum, prosecuted by Caesar. There the central issue was not conditions in Transalpina, but Piso’s punishment of a Transpadane. The Latin colonies in Cisalpina had been clamoring for the Roman citizenship during Piso’s entire tenure; as censor in 65, M. Licinius Crassus even had tried to enrol the Transpadanes as Roman citizens, though his colleague Q. Catulus prevented him. The Transpadane issue might explain why the pro cos. Piso was spending so much of the year 65 in that provincia.39
15.2.3 L. Licinius Murena and C. Pomptinus in Transalpine Gaul From this point, we know the disposition of Gallia Transalpina for each of the years down to the end of our period. The pr. urb. 65 L. Licinius Murena definitely succeeded Piso there in 64. Murena held a levy in Umbria while en route to this provincia, at the same time taking care to build support among voters in northern Italy for a future consular bid. That came after a year of further prorogation, and efforts to win the goodwill of the negotiatores of Transalpine Gaul. By the summer of 63, L. Murena had left his brother and legate Gaius to look after Transalpina while he sought (and won) the consulship in Rome. C. Murena was still there in November 63, when Lucius as consul designate was fighting an ambitus prosecution (the occasion of Cicero’s Pro Murena). In the Catilinarian crisis, the Senate even gave this legatus special powers to conduct criminal investigations. The text of Sallust says those took place “‘in citeriore Gallia,’ the provincia he was in charge of as legate.” That comes as a surprise, since there is no hint in our sources (including the Pro Murena) that L. Licinius Murena had charge of Cisalpine Gaul.
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Indeed, Badian has argued for the emendation “in ulteriore Gallia.”40 Let us postpone discussion of this problem for the moment. The next commander to take up Gallia Transalpina was the pr. 63 C. Pomptinus. Pomptinus had already drawn the provincia well before the night of 2/3 December 63. That is when Cicero had him aid the pr. urb. L. Valerius Flaccus in apprehending two Allobrogian envoys as they headed out of Rome with compromising letters from leading Catilinarians in hand. “Cicero,” explains Badian, “in order to impress the Allobroges, will have deliberately assigned the arrest (in part) to the man with whom they knew they would have to get on as their governor in the following year.”41 The Allobroges seem to have behaved themselves for a spell after Pomptinus arrived in the provincia. Yet in 61, Pomptinus had to stand by as Ariovistus, king of the German Suebi, helped the Sequani defeat Rome’s allies the Aedui just beyond the northern border of the province. A senatus consultum had authorized Pomptinus to protect that Gallic tribe, but he apparently chose not to intervene with his forces (which consisted of a single legion). For that same year, this commander faced also trouble from the Helvetii, who wanted to migrate westwards into the Roman province. And the Allobroges suddenly staged their own rebellion. We are unusually well informed on Pomptinus’ campaign against the Allobroges. The campaigning style reported by Dio for this praetor, where the legati do the fighting and the praetor supervises from a central command post, might have been more common than our sources in general suggest. Pomptinus and his legates subdued this people in a series of battles spread over the two years 61 and 60. Still, the military situation with the Helvetii was so acute in mid-March 60 that we find a senatus consultum authorizing an immediate sortition of Gallia Cisalpina and Transalpina between the two consuls, who were to conduct a levy—and no doubt proceed straight to their respective provinciae. An embassy of three legati— headed by Q. Metellus Creticus, cos. 69 and triumphator, with L. Valerius Flaccus (pr. 63) in second position—was to travel north to dissuade Gallic tribes from joining with the Helvetii. There was even to be a sortition among the ex-consuls, apparently for special commands in the field. However, Pomptinus soon put out the fire in Transalpina, removing the need for these emergency arrangements—to the chagrin of the cos. Q. Caecilius Metellus Celer, who had drawn that Gallic province, and was hoping for a triumph.42 Indeed, Pomptinus’ successes apparently made the consul Metellus Celer quickly lose interest in Transalpine Gaul. When the tr. pl. L. Flavius (who was trying to push through an agrarian law) threatened to prevent Celer from taking up his allotted provincia, the consul professed that he would gladly remain in the city. Q. Metellus Celer was still in Rome in April 59—more than four months after the end of Flavius’ tribunate—though he definitely had not renounced Transalpina. Celer soon died, not while in transit to his province but while still acting in the city; just a few days earlier he had been speaking in the Senate and on the Rostra, so Cicero tells us, intimating poison by his wife Clodia.43 Perhaps already the cos. 59 Caesar had received Cisalpine Gaul and Illyricum with three legions for five years under the tribunician lex Vatinia (commonly assigned to May of that year). It
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apparently was Celer’s death that prompted the Senate to add Transalpina with a fourth legion. Suetonius tells us the Senate wanted to forestall the People in making that grant; this way, the provincia remained notionally subject to the Senate’s annual review. Caesar had arrived in Gaul by the end of March 58, and soon started the campaign that took him and his subordinates far beyond the boundaries of the Roman province. Thanks to the arrangements of 59 and a consular law of 55 that gave Caesar his Gallic provinciae for five additional years, this pro consule was to remain in charge of Cisalpina, Transalpina and Illyricum for just short of nine continuous years.44 As for Pomptinus, the Senate at some point in 59 voted him a supplicatio for his victories in Transalpina, against the wishes of Caesar and his supporters.45 We cannot tell precisely when the Senate allowed him that honor, but any time from the start of the year seems possible. Since Pomptinus had every reason to believe in winter 60/59 that Celer would soon proceed to take over Transalpina, he would not wait too far into the year to send his dispatch on the previous campaigning season to the Senate. Cicero himself considered that the best time for a request, and his own letter from Cilicia to Cato in 50 b.c. trying to build support for a supplicatio belongs to January of that year. The celebration of the supplicatio for Pomptinus’ victories need not have followed immediately upon the Senate’s vote.46 All we know is that it took place in 59, simultaneously with the sumptuous funerary banquet Q. Arrius (pr. 73) held in honor of his deceased father. Gelzer thought that had taken place by April, before Arrius abandoned hope of winning a consulship for 58. His view is likely to be correct.47 C. Pomptinus, on his return, also managed to triumph—but only after a full five years of obstruction. Matters came to a head in 54. Before dawn one morning in (probably) October of that year, a former legatus from Pomptinus’ Allobrogian campaign—Ser. Sulpicius Galba, now a city praetor—illegally pushed through the vote that allowed Pomptinus imperium in the city. Pomptinus planned to stage his triumph on 3 November, and in this he had the support of the cos. Ap. Claudius Pulcher as well as some (unnamed) praetors and tribunes. But in steadfast opposition was a formidable group—the praetors M. Porcius Cato and P. Servilius Isauricus (who kept watch for Pomptinus at the porta triumphalis) as well as the tr. pl. Q. Mucius Scaevola. They vehemently maintained that Pomptinus had not received a legitimate lex de imperio (and so could not retain his military auspices to triumph). Pomptinus did get his triumphal procession, but during its course some of the tribunes who missed the chance to veto his lex took out their frustration by causing blood to spill.48 Sad as it turned out, Pomptinus’ triumph was the first Rome had seen in seven years, since Pompey’s magnificent display in 61 on his return from the east. And we must remember that no praetorian commander had ever triumphed from “Gallia,” however defined, since L. Furius Purpurio in the year 200 (8.3.3). It is a wonder that Pomptinus ever pulled off a triumph at this time specifically from Transalpine Gaul, given the attitude (and political muscle) of Caesar and his friends. As it happens, Pomptinus’ Allobrogian war marks the last serious revolt from the Roman provincia proper. (Of course, plenty would follow in Gallia Comata and Germania
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beyond.) We have seen that Pomptinus’ success had irritated Q. Metellus Celer, and it must have had even more of that effect on Caesar. One might note that he consistently avoids mentioning Pomptinus by name in the Bellum Gallicum.49 There is an epilogue of sorts. C. Pomptinus accepted an invitation to serve under Cicero as a legatus in Cilicia for the years 51/50 and as such was instrumental in the victory that led to Cicero’s imperatorial acclamation in October 51. But Cicero later felt his legate had compromised his chance of a triumph by entering the pomerium soon after his return to Italy.50 Here for once the motivation is clear. Pomptinus surely by this time had had his fill of waiting outside Rome. 15.2.4 Praetorian Commands in Gallia Transalpina and Gallia Comata under Caesar, 58–50 A brief comment about the one aspect of Caesar’s consular command in the Gallic Wars directly relevant to this study: Caesar made wide use of his legati (some quite senior)51 in his ultra-ambitious campaigns. Many—especially those with smaller armies—had considerable scope for independent action.52 Often Caesar entrusted two or more legions to a particular legatus.53 And of necessity he routinely must have had to leave subordinates in charge of the individual Roman provinciae that made up his command.54 Yet, curiously, there is just one explicit mention of delegation of praetorian imperium in the Bellum Gallicum. In describing operations against the Helvetii in 58, Caesar notes that he sent T. Labienus as pro praetore with two legions as an advance force.55 Labienus was a most suitable choice for such an assignment. A tribunus plebis of 63, he was certainly of praetorian standing while he served as a legatus under Caesar: we are told that Caesar in 50 helped him prepare for a consular bid by giving him charge of Gallia Cisalpina.56 The Helvetian campaign of 58 cannot be the only instance in the Gallic Wars in which Caesar made one of his subordinates pro praetore. So why the reticence? A clue may lie in a passage of his Bellum Civile, in which he sharply criticizes functionaries of the pro cos. 49 Q. Scipio. Those subordinates, it is alleged, inappropriately received delegated imperium to carry out exactions even in insignificant towns of Asia during the year 48.57 (Scipio himself was technically pro cos. for Syria.) Perhaps Caesar feared his own delegation decisions of the Gallic command might come under scrutiny, and so avoided specifically mentioning grants of imperium apart from that one incidental notice near the beginning of the Bellum Gallicum. In that work, Caesar does occasionally point out that he gave such and such a subordinate realistic resources for the task at hand—but nothing beyond.58 In general, he is obviously at pains to communicate his own measured approach to delegating authority and the superb discipline he has imparted to his staff. For instance, Caesar, in the chapter that directly follows the notice of Labienus’ delegation, is careful to emphasize that he gave this legatus strict orders to wait for him before joining battle with the enemy.59 There are many similar passages in the Bellum Gallicum where Caesar stresses how effective his control was over his subordinates.60 The reader gets a few negative exempla involving subordinates, too, which Caesar clearly introduces to throw the many successful instances of responsible delegation and staff discipline into high relief.61 And in one instructive passage Caesar
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describes how the Arvernian chieftain Vercingetorix found himself with a delegation problem all his own.62 15.2.5 Commands in Cisalpine Gaul after 65 It is time to turn finally to the question of the allotment of Gallia Cisalpina in the years between the tenures of the cos. 67 C. Calpurnius Piso—attested in the provincia through the end of 65—and the cos. 59 C. Iulius Caesar, who held it down through 50. The year 64 is a mystery. Neither of the coss. 65 can have had Cisalpina as governor: one was censor in 64, the other pro consule in Macedonia. And as Badian has shown, there is no good positive proof that L. Licinius Murena (pr. urb. 65) had Cisalpina in addition to his promagisterial provincia of Transalpina. So Badian has suggested that the Senate might have prorogued C. Piso in charge of the nearer province alone: “[H]is prosecution by Caesar is not dated, but may well belong to 63. . . . [I]t would make perfect sense to leave such a reliable man there for another year, while relieving him (as soon as manpower allowed) of the troublesome Allobroges.”63 Obviously someone must have been in command of the “Gallicanae legiones” attested in Cisalpine Gaul when the Catilinarian crisis comes up in the next year.64 Yet there is a snag to Badian’s hypothesis. A few years later, Cicero can represent a proposal to take Cisalpina out of Caesar’s composite command as a grave insult, a “deminutio provinciae” that one would not inflict even on a man of middling status.65 It seems hard to believe that Piso would have acquiesced in such an arrangement—but at present we have no better alternative reconstruction. Under the Sempronian law, the coss. 63 were to have Gallia Cisalpina and Macedonia as their provinces. As we have seen (11.1.6, 14.2.4), Cicero struck a deal with his colleague C. Antonius in which he gave him Macedonia in exchange for Cisalpine Gaul. More machinations followed. Sometime after the elections for 62—but before the current praetors had drawn their promagisterial provinciae— Cicero called a contio in which he announced formally that he would not take up that provincia. So Gallia Cisalpina found its way into the sortition of ex praetura provinces. The next step (as Cicero explicitly relates) was that C. Antonius and Cicero manipulated the lot so that Cisalpina fell to the pr. Q. Caecilius Metellus Celer. (We must allow for the possibility that the consuls also matched other praetors of 63 to specific territorial provinciae.) Then, on the same day as the sortition, Cicero saw to the passage of a senatus consultum that he characterizes as an outstanding officium to Metellus Celer.66 What was its nature? To answer that, one should look at what Celer ended up doing the rest of that year. Under the senatus consultum ultimum of 21 October, Sallust says two aspiring triumphatores—the cos. 69 Q. Metellus Creticus and the cos. 68 Q. Marcius Rex (both still with imperium outside the walls)—took up positions respectively in Apulia and the area around Faesulae in Etruria. Meanwhile, the city praetor Q. Pompeius Rufus was sent to Capua and his colleague Q. Metellus Celer to Picentine territory, each with authority to levy troops to meet the emergency. Cicero confirms Sallust’s report, and adds detail. In his Second Catilinarian (9 November), he congratulates himself on the foresight by which he sent Q.
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Metellus to the “ager Gallicus and Picenus,” and predicts the praetor will either crush Catiline or check all his movements. In the same speech, he boasts that Catiline and his forces were no match for the “Gallic legions and the levy which Q. Metellus held in the ager Picenus and Gallicus.”67 Metellus appears also to have had special judicial powers from the Senate. Sallust reports that the two Gauls, the ager Picenus, Bruttium and Apulia all experienced commotion later in 63. Yet, “[T]he praetor Q. Metellus Celer ex senatus consulto threw a good many into chains after examining their case, as did C. Murena in citeriore Gallia [thus the MSS.], who was in charge of that provincia as legate.” Again, Cicero confirms Sallust’s report, at least on the praetor. In a letter from January 60 to Metellus, he summarizes that man’s role in the Catilinarian affair: “when through my agency you had been set off by the most eminent and honorific distinctions,” the task of saving the state was divided in such a way so that “you were to defend Italy both from armed enemies and from hidden conspiracy (coniuratio).” Plutarch even goes so far as to say that in the crisis Cicero took charge of affairs in the city and “entrusted matters outside to Q. Metellus.”68 That is obviously an exaggeration. We have seen that the senatus consultum ultimum of late October empowered also two consulars who were cum imperio and another city praetor to act in the field, and soon also the legatus C. Murena is found conducting judicial investigations. Murena must have been in Transalpine Gaul, as Badian suggests; Celer was firmly in possession of Gallia Cisalpina with its (three) legions by early December. Later that month, positioning himself probably just south of Bononia, he effectively blocked Catiline from making his way to the Transalpine province and the Allobroges. Catiline backtracked toward Pistoria, where he met the forces of C. Antonius and was defeated on (very likely) 3 January 62.69 On the basis of this evidence, Badian suggests that “the S.C. secured by Cicero’s special efforts, and so unusually honorific as regards Celer, gave him consular imperium and allowed him to enter his province, as well as giving him the judicial commission that Sallust attests.”70 The first bit seems certain.71 Yet one notes that in Cicero’s letter to Metellus Celer, immediately after mention of that senatus consultum, Cicero adds, “in fact, after you set out (profectus es) [sc. for your command, as often], please remember what measures I took on your behalf in the Senate, what I said in contiones, what letter[s] I sent to you.”72 So Cicero did even more for Metellus Celer after his departure. That might be the occasion when the praetor—and the legatus C. Murena—picked up the judicial commission, in Cisalpina and Transalpina respectively. Celer is clearly attested as pro consule in Cisalpina for 62. There, he probably undertook some mopping-up operations against the Catilinarians akin to those we find two city praetors of 62 conducting in the territory of the Paeligni and in Bruttium (11.8.9). While governor in the provincia, we happen to know that he received an embassy from Ariovistus, king of the Suebi, that presented him with some Indians who had been shipwrecked and washed up on German shores. The king might have been trying to pave the way for acceptance of his major campaign against the Aedui that came in 61.73 Metellus Celer might even have been prorogued into 61. If so, he did not stay in the provincia for much of the year. He won election to the consulship for 60—
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his tenure in Cisalpina (whatever its length) will have come in handy for that—and by the end of the year was in Rome exerting his authority as consul designatus.74 The alternative is that one of the coss. 62 replaced Metellus Celer in Cisalpina: we do not know what L. Licinius Murena did after his consulship, and it appears that his colleague D. Iunius Silanus was positively eager for a military provincia.75 Finally, though detailed evidence is lacking, there is good reason to suspect that the cos. 60 L. Afranius took up Cisalpina at some point after he received it in the emergency sortition of March of his consular year. And there he will have remained until the cos. 59 C. Iulius Caesar took charge.76 Of course, Gallia Cisalpina then remained firmly consular down to the end of the decade. In the one real opportunity for a change in that arrangement—the debate of 56 that was the occasion of Cicero’s De Provinciis Consularibus—we do not see any trace of a suggestion to make it praetorian.77
15.3 The Staffing of the Praetorian Provinciae after 122 15.3.1 Decompensation of the Administrative System, 122–82 In chapters 10 and 12 we explored how after 122 b.c. the Romans set up additional standing courts, each modeled on C. Gracchus’ quaestio repetundarum. There were at least four such courts in existence by the year 99, and six by 82. And by ca. 100 they created a new (aedilician) quasi magistracy, the iudex quaestionis, to preside in the less politically important courts. We first see this officer hearing trials de veneficiis; in time it is probable he took over inter sicarios and some peculatus trials as well. But in this period the other permanent courts (repetundae, maiestas, ambitus, and at times peculatus) had praetors as presidents. New standing territorial provinces also were instituted, namely, Cilicia ca. 100 and the two Gauls by the mid-90s. All the same, the annual college of praetors stood at six. One wonders how many senators of the later second and early first centuries thought or cared about the larger questions of imperial administration: it is hard to fathom how they thought the Roman system could take on those extra permanent responsibilities while leaving the number of magistrates untouched. (Compare, e.g., the Senate’s meticulous control of succession in the Spains in the latter half of the 140s and early 130s, detailed in 7.3.1.) Indeed, by the 90s, there were twice as many provinciae as annual praetors. There was some recognition of the limits of empire. In 96, when the kingdom of Cyrene was bequeathed to the Roman People, the Senate decided to decree that the cities of that kingdom should be “free.” All the same, in the early 80s there was an attempt to annex Egypt ex S.C., which a tribune of the plebs had to veto. It is significant that at the time (ca. 87, under the Cinnan government) a majority of senators could not see—or chose not to see— the practical and political problems of such an annexation for themselves. In the era 122–91, the Senate used prorogation as a panacea for its ailing administrative system. In contrast to the policy of the earlier second century, it now routinely permitted consuls to hold some very long commands—three, four, even five years, in provinces as diverse as Sardinia (a single command spanning 115–111),
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Macedonia (110–106), Hispania Citerior (98–early 93) and Ulterior (97–early 93), and the special designation “Numidia” (109–107, then 107–105).78 Indeed, a fair number of consuls from this period appear to have had three-year commands. But it should be remembered (9.4.3) that if we do not know the actual calendar date of a triumph, a triumph two years after a consulship may mean only one year’s prorogation in the provincia. For a salutary example, note M. Livius Drusus, cos. 112 in Macedonia, who triumphed 1 May 110.79 Praetorian commands in the provinces could be lengthy as well. For examples of three-year commands already in the late second century one notes Sex. Pompeius (pr. by 121), who probably was prorogued at least twice in Macedonia before he was killed in 119; Q. Servilius Caepio (pr. by 109), who celebrated a triumph from Hispania Ulterior in late October 107; the praetor M. Antonius, who was pro consule in Cilicia to combat the pirates from 102 to his return to triumph in later 100; and C. Iulius Caesar, praetor in Asia for two or three years in the early 90s. In addition, T. Albucius was pro praetore in Sardinia when he demanded a supplicatio ca. 107; T. Didius held a command as praetor by 101, and triumphed from Macedonia in 100 or 99. However, two-year commands such as these may be due to mere technical reasons. There is no use venturing statistics on patterns of prorogation of praetors for the years 122–91. Our evidence is so deficient that the only certain one-year praetorian command in our record for that period is C. Servilius Vatia, who had a troubled time as pr. 102 in Sicily. How typical, say, three-year commands were we do not know. At any rate, it clearly was undesirable to prorogue a praetor repeatedly. Asconius, speaking of the future cos. 115 M. Aemilius Scaurus, offers one reason why: an unscrupulous praetorian commander was capable of extorting enough money from allies to buy himself the consulship, which gave him another provincia to plunder before having to face prosecution (14.3.2). In this period, the ever widening numerical disparity between provinciae that needed imperium and the magistrates available to fill them was just one form of pressure on the system. All the city provinciae that were praetorian necessarily had to be placed in the sortition each year. And not all the territorial ones received the same treatment. Here the favored province is wealthy Asia. Even on our spotty evidence, we can place four or five commanders in the provincia in the years ca. 122–115 (14.5.1), and six or seven for the hard-pressed 90s (14.5.8). But even there, one commander (C. Iulius Caesar, pr. ca. 99) had to stay two or three years. Then there were the accidents. Major wars might upset the system. For instance—to focus just on praetors—three separate praetorian commanders needed to be sent against the rebel slaves of Sicily in the years 104–102, followed by a consul for 101. And from time to time miscellaneous special praetorian provinciae had to be declared. In the period 122–82, the Senate seems to have scrupulously avoided setting up commands of this type outside Italy: there is one possible instance in Illyria ca. 120, and then M. Antonius as pr. for Cilicia in 102. However, in the crisis years 91–87 we can assume that almost all praetors and recent expraetors were needed in Italy for the Social War, which in turn meant that few, if any, of the overseas provinciae can have made it into the sortition. Of course, praetorian commanders might die en route to their provinces, or in them. In 119,
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the fallen Sex. Pompeius immediately had to be replaced in Macedonia. Around 111, L. Calpurnius Piso Frugi was killed in Hispania Ulterior; the Senate did manage to send out an eminently suitable successor (a Ser. Galba) even though the Jugurthine War was raging. The year 91 saw the death of the praetor Q. Servilius at Asculum. Thus, filling the various provinciae each year was a difficult process, subject to all sorts of variables. In the face of all these pressures, it would be a wonder if the Senate did not at least occasionally combine the two Spains in this period. After the year 133, when P. Scipio Aemilianus had reduced Numantia, the military emergency in the peninsula had passed—for a time—and the addition of new praetorian provinciae would make separate allotment of Hispania Citerior and Ulterior in the sortition a luxury. It may be relevant that not a single praetorian governor of Citerior can be identified in the years 132–98. At least for the period 105–101, it is possible (following a notice in Appian) that a legatus held the province in some or even all of these years (13.3.1). One administrative expedient that really comes into its own at this time is the use of ex magistratu commands. To cover all the provinciae which required a commander with imperium, the Senate needed increasingly to prorogue city praetors and send them overseas. We know from Plutarch that C. Marius served as a city praetor in 115, and after his praetorship was allotted Hispania Ulterior as a provincia (13.3.1). More definite instances come not long after that of Marius. True, L. Licinius Lucullus, city praetor in 104, was prorogued for 103 because he was deemed the most capable commander available to fight a major war in Sicily. But the fact we see at least four city praetors in the four years 97–94 used in this way suggests that by then the expedient had become a necessary part of the system.80 The most probable disposition of Asia for 94 shows that the Romans had started using ex consulatu commands too. Of course, being assigned a province ex magistratu did not preclude further prorogation. Consider Sulla, urban praetor in 97 and then pro consule in Cilicia and Cappadocia following his year of office—and for some time beyond. In all, this eastern command lasted perhaps four years. The urban praetor for 94, C. Sentius, had it worse: he returned to Italy after at least six and a half years of hard fighting in Macedonia. In other words, Sentius had been prorogued three times even before the outbreak of the Social War, and that despite a serious defeat in 92. The Senate evidently had a lot less latitude to remove unsuccessful commanders than even a decade earlier.81 So the system showed real signs of breaking down even before the tumultuous decade 91–82. It is noteworthy that, despite all the stress on the administrative system, extraordinary votes of imperium to nonmagistrates remained rare down until the late 90s. Just one is (apparently) attested in that period, for the city of Rome. In 113, the senior consularis L. Cassius Longinus Ravilla received a special appointment by the People to inquire into the case of three Vestals tried on a charge of incestum late in the previous year. In this case his imperium was just for a special, short-term religious court. He was not meant to take over one of the fixed quaestiones. The extreme crisis of the Social War did necessitate at least a few popular grants of imperium for the field. The legati C. Marius and Q. Servilius Caepio in
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90, and (just possibly) L. Sulla in 89, were voted consular imperium to compensate for consuls killed in action. Sex. Iulius Caesar (cos. 91) received in late 90 consular imperium to take over the siege of Asculum for a time. The emergency practices of this war surely helped change attitudes about the propriety of such extraordinary grants. In 88, the privatus Marius was elected to a special Mithridatic command that involved consular imperium. (Here one remembers the popular commission P. Cornelius Scipio Aemilianus tried to obtain to fight Aristonicus in 131, the most recent direct precedent.) In late 82, Pompey was dispatched to Sicily with a special grant of praetorian imperium; since he triumphed in the next year, it seems likely he received his position through a lex, not delegation from the pro cos. Sulla. Several times in this period, we hear of consular commanders delegating their powers to a subordinate. In late 110, when the consul Sp. Postumius Albinus returned from North Africa to Rome to hold the elections, he put his brother Aulus pro praetore in charge of his army. In 105, the quaestor L. Sulla was left pro praetore in charge of the camp in Africa by the pro cos. C. Marius “setting out on an expedition.” That latter example shows—against Mommsen—that (at least by this time) a commander did not have to leave his provincia to delegate imperium (14.3.1). Likewise, in 86, the legatus Q. Minucius Thermus was left pro praetore at Byzantium by the cos. suff. L. Valerius Flaccus (14.5.9). Again, Flaccus did not have to leave his provincia (Asia, with the war against Mithridates) to do so. But those instances from Africa and Asia were meant very much pro tempore. Though precise figures are lacking, the consuls of 90 and 89 who led the Roman effort in the Social War probably delegated imperium somewhat freely to the consular and praetorian legati who fought under them—and apparently with the intention that those legates have that imperium for most, perhaps all, of the year. The legates C. Marius and Q. Servilius Caepio seem to have had praetorian imperium at the time their superior P. Rutilius Lupus was killed in 90. The same is true of L. Sulla at the time of the death of his commander, the consul L. Porcius Cato, in 89 (10.5.3–4). It must be emphasized that each of those grants will have come when both general and legate were fighting practically side by side in “Italia.” Furthermore, it now appears that in late 87 the pro consule Sulla made his pro quaestore L. Lucullus pro praetore for a far-ranging commission in the eastern Mediterranean that would last through 86. And in 83 the young Cn. Pompeius apparently claimed the title pro praetore for himself; it is possible that Sulla confirmed it by delegating him real imperium, again to be held for a long period of time (10.5.7). Balsdon has implied that also praetors with consular imperium could always delegate that power. He enunciates the following principle: “[I]f a [proconsular] governor of a province died, his quaestor (or ‘pro quaestore’) automatically became acting-governor (‘pro praetore’), and was attended probably by six fasces, until a replacement arrived; and if a governor left his province before the arrival of his successor, he appointed an acting governor to fill the gap.”82 Balsdon’s first hypothesis, the “spontaneous generation” of praetorian imperium, cannot be substantiated from our record (such as it is) of the Republic down to 50 b.c. Significantly, it does not appear in the two places where we would expect to find it. The detailed inscription of Lete in Macedonia (discussed in 14.1.1) tells how, in 119, the quaestor M.
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Annius P.f. took command of the Roman army in that provincia after the death in the field of his praetor, Sex. Pompeius. M. Annius made no claim to praetorian imperium. If he acted pro praetore, it was de facto, not de jure. By this time, it may have been accepted that a praetor pro consule could confer imperium on his quaestor, but the praetor Sex. Pompeius died before he got the chance. Nor does (in a later period) C. Cassius Longinus, the quaestor of Crassus, ever seem to have claimed he was acting pro praetore after his escape from Carrhae in 53, despite the fact that he took on the entire defense of Syria (11.5.2). It is not until the triumviral era that we find an apparent instance of a pro quaestore assuming the title pro praetore after his superior has died.83 Balsdon’s second proposition, that commanders pro consulibus (whether of consular or praetorian rank) could delegate their imperium to a subordinate, does find some good support already in the second-century record. The earliest datable evidence for the practice of “praetorian delegation” has to do with the orator M. Antonius, epigraphically attested as quaestor pro praetore in the provincia of Asia in (probably) 113/112 b.c. A praetor pro consule either had left him in charge of the province, or had delegated him imperium for some special task (11.1.5, 14.5.2). We find additional examples of this form of delegation soon after the case of Antonius.84 In the Social War, we even see a privatus with consular imperium— Sex. Iulius Caesar, a former cos. 91—making a C. Baebius pro praetore to act in his place when he was mortally ill (winter 90/89, discussed in 10.5.3). Though the quaestor M. Antonius is our first known example of an individual being delegated imperium by a praetor, the practice of “praetorian delegation” in fact might go back as far as the very start of the second century. In 11.1.5, I have suggested that the ability to delegate imperium in the field helps explain the practice of granting consular imperium to regular praetorian commanders for distant provinces (i.e., the Spains, Macedonia, Asia, and Cilicia), as well as Sulla’s decision as dictator to standardize the rank of pro consule for all commanders who were to take up a territorial province. The Social and Civil Wars left a number of commanders positively stranded in distant provinces. The praetors affected include C. Norbanus, pr. by 90 and in command in Sicily down to perhaps 84; P. Servilius Isauricus, pr. perhaps by 92 and (apparently) in Sardinia down through 88 (he triumphed on 21 October in that year); C. Sentius Saturninus, pr. urb. 94 and pro cos. in Macedonia 93–87; and P. Sextilius Rufus, pr. perhaps by 92 and in Africa down to perhaps 87. C. Coelius Caldus (cos. 94) had to hold a joint provincia (Gallia Transalpina and Cisalpina) over this time, for upwards of eight years. But the unluckiest of all was the cos. 93 C. Valerius Flaccus, who had a provincial tenure that was to involve both Spains and Transalpine Gaul (where he succeeded Coelius) for a period of twelve years. Indeed, in the period 87–82, the Senate seemingly elevates neglect to an adminstrative principle. There is no sign that Gallia Cisalpina had its own governor in the years 87–82. Sicily, Sardinia, and Africa are known to have received commanders in these years (one each), but more as a defense against Sulla than out of concern for administration. The pr. Q. Antonius Balbus, who was dispatched to Sardinia in 82, was probably the first governor of any sort the province had seen in six years. When the praetor for Africa, C. Fabius Hadrianus, was burned to death
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in late 83 during an uprising in Utica, the Senate is said to have taken no measures to avenge his death. However, the Spains probably did get a pair of Marian praetors before Q. Sertorius arrived to take up Citerior in 82. The praetor M. Perperna Veiento, who took up Sicily in 85 or 84, probably typifies the attitudes of his era. He was the grandson of a successful commander of the First Slave War, and no doubt was chosen to hold Sicily for this very reason, relieving C. Norbanus (the future cos. 83) after a tenure of at least six years. Perperna gave little thought to the administration of the island (he apparently wholly neglected his civil law duties), and at one point even threatened to leave it to lift Sulla’s siege of Praeneste. However, when Sulla sent Pompey pro praetore against this commander, he quickly abandoned the provincia altogether. 15.3.2 The Sullan Reforms and Their Limited Practical Effects New challenges faced Sulla upon winning control of the res publica. At the start of 81, all ten of the territorial provinces lacked a proper commander: see 11.1.1 on the situation in Sicily, Sardinia, the Spains, Macedonia, Africa, Asia, Cilicia, and Transalpine Gaul. What is more, there were certainly six permanent quaestiones in the city (repetundae, ambitus, maiestas, peculatus, de veneficiis, and inter sicarios) that needed appropriate court presidents. Something significant had to be done. Sulla as dictator decided to retain the basic administrative system as he found it, but to enlarge the praetorian college by two members, for a total of eight. His idea was for praetors normally to remain in Rome during their year of office, to see to the city jurisdictions and permanent quaestiones. Then, after their magistracy, they would proceed to an overseas province with consular imperium. Consuls and ex-consuls too were to play a role, as commanders in the more important provinces. As dictator, Sulla did not try to cut back on Rome’s basic administrative commitments, either outside or inside Rome. Significantly, he wanted to keep all the permanent quaestiones—and the principle of praetorian presidency of those courts—in place. Though the dictator merged the administration of the courts de veneficiis and inter sicarios, he also introduced at least one additional court (de testamentis), which offset that gain and kept the total number (probably) at six. The system of quaestiones now covered an extremely broad array of crimes; the establishment of ad hoc courts would become significantly harder to justify (11.9.1). In the city, Sulla retained the institution of the iudex quaestionis to aid the praetors, primarily in the superintendancy of the combined court inter sicarios and de veneficiis. However, when possible Sulla wanted praetors to man even that court (as M. Fannius did in 80—see 11.7.4). Even a decade and a half after Sulla’s reforms we find praetors hearing cases de peculatu (11.7.5). Thanks to Sulla’s de facto institutionalization of ex praetura and ex consulatu commands, there were now ten holders of imperium available each year to man the ten regular territorial provinces. Henceforth one might reasonably expect that for the various provinciae, tenures of one year were to be the norm. But accidents were bound to happen. Special provinciae that demanded the diversion of magistrates
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and ex-magistrates were practically inevitable. Illnesses and deaths of commanders were inevitable, too. The pr. 80 M. Domitius Calvinus was killed in Hispania Citerior, probably during the year of his magistracy; he had been expected to hold the province for the year 79 (13.4.2). Ap. Claudius Pulcher, cos. 79, fell ill in transit to Macedonia and had to delay his arrival in his provincia until 77; he then died there in 76 (14.2.2). In 77, M. Aemilius Lepidus (cos. 78) was ejected from the Gauls, which he had as a joint promagisterial province, and soon died in Sardinia (11.8.5). In the 70s alone, three additional holders of imperium are known to have died in their military provinciae. Two analogous cases are found for the 50s.86 Yet the impact that deaths and the declaration of special provinciae had on the new administrative system was tiny in comparison to another factor: Sulla’s allowance that an ex-consul or ex-praetor could refuse a territorial province, after he had received it in the sortition. Here it was Sulla himself who showed the way, for as cos. II 80 he was allotted but never took up Cisalpine Gaul ex consulatu. In this, he set an example for many later consuls and (at least starting in the early 60s) praetors (11.1.6). Hard statistics on this phenomenon are impossible to offer. However, the praetorian college of 66—one of our best attested—may not have been wholly atypical. Of the eight praetors that year, at least three declined an ex praetura command. One praetor of that year (C. Antonius) apparently even preferred to serve as a legatus in Pompey’s great eastern provincia than to receive one for his own (12.1.3). Other well-attested praetorian colleges (e.g., 63 and 57) seem to have had a higher rate of ex magistratu commands. However, only two of the consuls of the years 63 through 59 are definitely known to have reached a territorial provincia in the year that followed their magistracy, namely, C. Antonius (cos. 63) and C. Iulius Caesar (cos. 59). Though the cos. 60 L. Afranius probably had Cisalpine Gaul for 59 and his colleague Q. Metellus Celer had planned to go to Transalpina for that same year but died, that still leaves eight noncommanding consuls (two absolutely certain) for just these few years. Of course, the best proof that the refusal of an ex magistratu province was a common occurrence in the postSullan period is that Pompey, as cos. III in 52, introduced a new system of administration that was to be staffed—evidently for five years—solely by those individuals who had previously declined a promagisterial province. Pompey also required that, from this point on, all ex-consuls and ex-praetors should take up a province, after a set interval (11.1.7). All the same, Sulla’s clever reform of the administrative system evidently won the confidence of the Roman Senate. For almost immediately one finds that body taking on further commitments without raising the number of magistrates—a parallel process to the expansionism that followed not long after its institutionalization of prorogation in 146 b.c. In the city, three additional standing criminal courts appear: a quaestio de vi (perhaps as early as 78 b.c., but certainly by 63), that of the lex Papia (65 b.c.) on claims to citizenship, and another established by the lex Licinia (55 b.c.), a measure aimed primarily at the electoral associations known as sodalitates. Not just iudices quaestionis (as we would expect), but actual praetors are attested as presidents of the new vis and lex Papia courts. In the quaestio de sodaliciis, we invariably find praetors (11.7.6–7). It helped that special quaestiones in the city remained rare, with merely two trials known that required a praetor (the
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processes on incestum of 73 and 61 b.c.) down to—and perhaps including—the unusual year 52 b.c., with its spate of extraordinary processes for vis and ambitus (11.9.1–3). Within two decades of Sulla’s reform, the Senate was to incorporate also four new overseas provinciae into Rome’s territorial empire: Bithynia/Pontus (organization begun in 74 b.c., with the first regular commander arriving in 61 or 60), Crete (annexed and organized 68–65 b.c.), Cyrene (organized by 63 b.c.), and Syria (annexed and organized 66–62 b.c., and allotted to a praetor for 61). Those accretions brought the total of regular provincae to fourteen, which the Senate apparently regarded as an upper limit. So though in 58 it took on responsibility for Cyprus, it did so with the understanding that the island be only a pendant to the province of Cilicia. It was not until after the year 50 that Cyprus received even its first quaestor; in 47 Caesar deannexed the island (11.8.4). Furthermore, the Senate would not exploit its opportunities to annex Egypt, despite some loud agitation (especially in the mid-60s) to take that giant step. Nor did the Senate tamper with Numidia, though interference there too was suggested toward the end of our period (11.6). 15.3.3 Making the Sullan System Work So how did the Senate manage to staff this ever growing system? First, let us turn to the praetorian provinciae in the city. Here, the continued acceptance of the device of combination is attested for the immediate post-Sullan period. An epigraphic document of 78 demonstrates that L. Cornelius Sisenna was both praetor urbanus and inter peregrinos in that year. And that despite the fact there were no major wars under way in Italy or overseas in May 78 (the date of the document), other than the problem of Sertorius in Spain (M. Lepidus’ intentions would not be fully known at the time) (12.1.2). Since no individual can be identified as peregrine praetor after the year 76 b.c. (12.2.1), there is reason to suspect that this particular expedient—which of course had an old history (9.4.1)—might have become an increasingly common one in the years down to 50 b.c. The ambit of the iudex quaestionis never expanded to include the major courts repetundae, ambitus, and maiestas. Nor is there good evidence in this era to suggest this quasi magistrate even heard cases de peculatu (as he is known to have done in the pre-Sullan era) and under the later charge de sodaliciis. His responsibility was restricted to inter sicarios and de veneficiis, and (once introduced) the courts de vi and lege Papia. The first two of those quotidian quaestiones seem to have been a lot of work. For instance, in 66 b.c., three iudices had to split the court inter sicarios and de veneficiis; the introduction of a Pompeian law de parricidiis (probably 55 or 52) no doubt made this court still more labor intensive (11.7.4). Vis perhaps necessitated a similar subdivision of tasks among iudices (see 11.7.6 on the year 52). Praetors also occasionally supervised trials in these “minor” courts (e.g., inter sicarios in 80 b.c., under the Papian law in 62, de vi in 56). But probably few individuals received such quaestiones as their main responsibility. What we do find— at least by the 50s—are praetors who have to take on duties in the major permanent courts that went beyond their proper city provinciae. In the year 59, two different
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praetors (apparently) were presiding over trials de repetundis (11.7.1). That same year, it seems a would-be prosecutor could approach more than one praetor to indict a consul designate for ambitus (11.7.2). In 54, we find a praetor for maiestas and another one of his colleagues each hearing cases under the lex Licinia de sodaliciis (11.7.1 and 11.7.3, 11.7.6–7). Indeed, the introduction of this new court de sodaliciis presupposed that praetors would take on the responsibilities it entailed as an overload. There was an established tradition of putting praetors who had charge of criminal courts to work simply as needed: see 10.4.2 for the praetor repetundis 95 (one of the first we can identify as such) who drafted laws for a Sicilian community, or 11.7.3 on the praetor maiestatis 66 who dealt with public grain matters. So it is not all that surprising that by the 50s, praetors who supervised criminal quaestiones also occasionally are found as jurors in other courts (11.7.1–2, 12.2.3), or even engaged in activities in the sphere of civil law (11.7.1). Conversely, after Sulla praetors in the “civil” jurisdictions might have to see to cases in the criminal law that went beyond the standing quaestiones (12.1.2–3, 12.2.4—certain for 74, perhaps also 58). The ultimate extension of this principle was to send a praetor into the field during his actual magistracy. Sulla himself sanctioned the continued use of commands in magistratu: I have argued that the years 81 and 80 saw perhaps a halfdozen uses of this expedient.87 Later examples—to name just the praetors— include (just perhaps) an anonymous peregrine praetor of 78 (12.4.1), perhaps the praetor M. Fonteius in Transalpine Gaul in 77 (13.4.4, 15.2.1), certainly the pr. 74 M. Antonius in his pirate command (11.3.1, 12.4.1), any number of praetors in the gladiators’ war of 73–71, some praetors who were meant to guard Italy against pirates shortly before the year 67, and two city praetors in both of the years 63 and 62, against the Catilinarian conspirators and their supporters (11.8.6–9, 12.4.1). But in those two latter years the praetors spent only a part of their year of office outside the city—in 63 a very small part, a little more than two months. It is to be noted that, as far as our record goes, the Senate never sent more than two city praetors into the field in any given year of the 70s through the 50s. This looks like deliberate policy. In this period, even instances of praetors performing routine nonmilitary tasks outside the city are not that easy to find (12.4.1). But in a crisis, the Senate might be forced to use even recent ex-magistrates. That was certainly the case in the Bellum Lepidanum of early 77, which erupted during an interregnum, when there were no consuls and praetors in office (11.8.5). Consider now the handling of the territorial provinces. C. Annius, as pr. 81 a member of the first “Sullan” praetorian college, had charge of both Spanish provinces (13.4.2). We do not see the Spains combined again into a single provincia until the unusual command of Pompey as cos. II 55, who governed both Citerior and Ulterior through legates. Rather, after Sulla it is Cisalpine and Transalpine Gaul that were most commonly collapsed into one. We find that certainly for the years 77, 67 through 65, and finally for Caesar in 58 through 50 (also with Illyricum)—a total of (at least) thirteen years in all, though nine of these are accounted for by Caesar’s honorific command (15.2). Combining the two Spains— which evidently happened not all that often in this period—or the two Gauls was a natural expedient. Combinations more exotic than these for praetors do not have
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good attestation in the sources, though it is possible L. Afranius combined Hispania Citerior with Transalpine Gaul at some point in the years 71–68 (15.2.2). Consular commanders were a different story. L. Licinius Lucullus (cos. 74), as pro consule against Mithridates, had Asia, Cilicia, and Bithynia/Pontus as a joint provincia. So did Cn. Pompeius as a privatus with consular imperium in the years 66–62. Of course, from time to time commanders might be asked to take action outside their proper provinciae.88 And occasionally a commander received instructions to leave his territorial provincia for one elsewhere. In 79, the Senate (surely) ordered the praetor L. Manlius to move permanently out of his province, Gallia Transalpina, to hold Hispania Citerior, where another praetorian commander had just been killed (13.4.3). And when A. Gabinius (cos. 58) contrived to have his province of Cilicia declared praetorian and to receive Syria instead, the Senate put the Asian commander T. Ampius Balbus (pr. 59) in charge of Cilicia for the entire year 57 (14.6.8). But transfers of this sort are different from having to govern two regular provinciae simultaneously. Thus far, the Sullan system comes off as relatively healthy. The next indicator to examine is the frequency of prorogation and the length of individual commands beyond the year of magistracy. As noted, since the annual number of magistrates with imperium now (once again) equaled that of the territorial provinciae, provincial commands should in theory last one or, at most, two years. Yet what we actually find in the post-Sullan record, as early as the 70s, are prolonged tenures that outstrip even those of 122–91 b.c. Some ex-consuls—and (notably) the privatus Cn. Pompey—get commands of five years and up, especially to bring major wars to a conclusion. But there are a few instances of repeated prorogation that beg basic administrative questions. In Cilicia, a single (consular) commander—P. Servilius Vatia—from 78 down into 74 fought pirates but also saw to routine administration in that province (15.1.1). L. Afranius, who reached the praetorship at some point in the 70s, was prorogued in Hispania Citerior an indeterminate number of times— conceivably from 76 down into 69 (eight years), or beyond, perhaps eventually with responsibilities also in Gallia Transalpina (13.4.6). So the new system shows signs of stress almost from the time of its introduction. Starting with the lex Gabinia of 67, that gave the privatus Pompey a command for three years against the pirates, we occasionally find tenure of such and such a provincia guaranteed for a set period of time (by the early 50s, regularly five years). There was in fact an old precedent of sorts for this, the commissions of IIIviri with imperium for three years active in south Italy in the 190s (8.4.1).89 In 63, the tribune P. Servilius Rullus must have been thinking of this type of commission—which for all we know might have been common—in his proposal (see 11.8.3) to endow Xviri with (praetorian) imperium for five years to adjudicate and sell various public lands. In 57, Pompey as a privatus received a grain commission that involved imperium for five years (11.8.2). In 50, the tribune C. Scribonius Curio floated a purposely provocative proposal for the creation of an elaborate five-year roadbuilding superintendancy, surely with imperium.90 Yet the crucial development is when the Senate began to allow actual magistrates of the Roman People fixed five-year commands ex consulatu, not for major wars but to hold regular provinces that were
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merely troubled. That is what we see for the two Gauls (with Illyricum) from 58–50, the two Spains for 54–50, and Syria (it was planned) also for 54–50.91 Calculating the exact length of overseas commands is difficult in the postSullan period, especially since we have precious few triumph dates with which to work. All the same, we have a good number of secure instances of tenures of three (especially) or four years of a wide range of provinces. (If one counts the time some of these commanders spent waiting for a triumph outside Rome, the total span of imperium militiae can balloon, in one case—C. Pomptinus, pr. 63—to almost a full nine years.) Praetors account for all but six of the sixteen certain or probable cases of these medium-to-long commands.92 Two-year commands are very common for both ex-consuls and ex-praetors throughout this period, across the range of provinciae.93 There is a curious “bubble” of prorogation in the general period 62–58, when individual praetorian commanders are repeatedly (twice or thrice) extended in Sicily, Africa, and Transalpine Gaul in the west, and Asia, Bithynia/Pontus, and— just perhaps—Cilicia in the east. The addition of Syria in 61 to the roster of regular provinciae, coupled with the reintegration of Bithynia into the normal administrative system about that same time, goes some way toward explaining this phenomenon. It also may be that a lot of ex-magistrates were declining provinciae in precisely these years (13.2.6). Yet one also notes that in the years 61–59, no commander was holding more than one province—surely another contributing factor to the “bubble.” In truth, long multiprovince commands quickly became a vital part of the postSullan administrative system. Consider the cos. 74 L. Licinius Lucullus, who was pro consule in Asia in the years 73 through 69, in Cilicia from 73 through 68, and in Bithynia/Pontus from 71 into 67. In crude terms, Lucullus’ tenure of those three provinciae for those periods of time represents the work of eighteen annual commanders. Pompey’s commands in Hispania Citerior (77–71), in Bithynia and Cilicia (66–62), and in the two Spains (54–50) total twenty-seven such “commander years,” while Caesar’s in the two Gauls (58–50) equal eighteen (twenty-seven if one counts in his service also in the special province of Illyricum). To put it another way: if the Senate in the period 73–50 had wanted to keep to a policy of strict annual succesion, with no combination of provinciae, it would need to send out sixty-three (or seventy-two) individual commanders to take on what these three men covered. I have suggested (9.3.2) that the fact one or both Spains had to be declared consular provincia in each of the years 145 to 133 gave the Senate a distorted impression of how well the larger system was functioning at the time, and emboldened it to take on new fixed administrative commitments in the city and abroad. Similarly, the big multiprovince commands of the 70s and 60s created a false impression of efficacy elsewhere in the system, so much so that Rome felt it could afford to add Crete, Cyrene, and Syria, all within a short span, as new permanent provinciae. Perhaps the best indication of the importance of megacommands to the efficacy of the late Republican empire is that when there were none in progress—as in the years 61–59—the Senate found itself having to extend praetors for long terms in
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widely disparate provinces, including Asia, where short commands had been traditional. No commands of a single year are securely attested for Africa, Cilicia, or Gallia Transalpina in this period down to the lex Pompeia of 52 b.c.; the first two of these provinces were probably not administrative priorities in this era. Where we do find one-year commands—and it is almost invariably ex-praetors who get them—is in Sicily (the years 80, 77, 74), Sardinia (56–55), the Spains as a combined provincia (81), and individually Hispania Citerior (78, 59) and Ulterior (80, 62–61), Macedonia (70–69, 58, 55), Asia (all or all but one of the years 66–62, then 57–56), Gallia Cisalpina (an ex-consul in 74), and Bithynia/Pontus (57–56).94 From this list, Sicily (at least at first) and Asia emerge as favored provinciae. It also appears that the Senate had the motivation and manpower in the years 58–55 to aim at regular succession across the system. There are two consecutive one-year commands even in Sardinia. Two powerful nobiles had received that province for the relevant years; less well-connected individuals might not have been so successful at getting quick supersession. Yet around 55 b.c., the Senate’s policy started to unravel. Note P. Cornelius Lentulus Spinther (cos. 57), who was in Cilicia from 56 down into 53; C. Claudius Pulcher, pr. 56 and pro cos. in Asia down through 53 (on whom see 14.6.8); and Ap. Claudius Pulcher (cos. 54), who was in Cilicia from 53 down into 51—or consider the situation of Syria, which had no proper commander for the latter half of 53, all of 52, and most of 51. It is a pity our fasti of the provinces in the latter half of the 50s are not more complete; as it stands, we cannot trace this particular development in detail. Yet the neglect of Syria in the years after Crassus’ death in 53 raises another point: the ever increasing reliance in this period on legati as an administrative expedient, not just to play major subordinate roles in large provinciae or multiprovince commands (where they were essential), but to fill in gaps between proper commanders. In this general era, it is not uncommon for quaestors or legati to be stuck for some time holding provinces (even some major ones) after the departure or death of a superior. Sometimes those stewardships amounted to a year or (as in the case of Syria after Crassus’ death in 53) substantially more.95 We also see the reverse, that is, a commander having a legate or legates hold a province for him before his arrival. For instance, I have suggested that M. Fonteius as legatus preceded Cn. Cornelius Dolabella (cos. 81) in Macedonia—which had not seen a real governor in years—and held it until his superior’s arrival, for a span of time long enough that he had to take on significant independent action (14.2.1). There were obvious shortcomings to this ploy. For one thing, difficulties might arise when legates were sent to provinces where the decessor was still in place and not interested in giving way.96 An extreme form of the genre is for someone with imperium to command a province wholly in absence. Though a praetor of 167 may have governed Sardinia a full year in this way (6.2.2), there is no sign of such lengthy in absentia commands for another hundred years. As cos. 67, C. Calpurnius Piso exercised control over Transalpine Gaul through legates while remaining in Rome (15.2.2). However, the outstanding example is the cos. II 55 Pompey, who, after receiving the two Spains for five years under the lex Trebonia, sent two legati to govern his joint province for
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him. Though Pompey never made it to Spain, his original legates apparently were still there in 49 b.c. (13.4.8). There is every indication that Pompey—despite his own record—in his reforms as cos. III 52, wanted short commands in the territorial provinces to become the norm. Yet even his (ultimately shortlived) scheme presupposed prorogation. On average, the number of available ex-magistrates will have been somewhat less than ten, since at least one or two ex-praetors from each college will have become consuls during the statutory interval between magistracy and promagistracy. Meanwhile, the total of territorial provinciae to be staffed stood at fourteen (11.7.1). Pompey’s system foundered almost immediately: no praetorian commanders ended up receiving provinces in the year 50 b.c.97 To round off our survey of the Roman administrative system after Sulla, we should turn to the commands given to privati, both by a special lex and through personal delegation of (praetorian) imperium. In this era, the Senate readily acquiesced in the notion that privati and sub-praetorians might hold special or territorial provinciae. The most notable instance, of course, is Pompey, granted ex S.C. full consular imperium in 77 for Hispania Citerior (where he remained down into 71), and then in 67 against the pirates, and again in 66 against Mithridates (triumphing in 61). That last command was envisioned as early as 74, and was forestalled only through some skillful maneuvering on the part of the cos. L. Licinius Lucullus (14.6.2). In March 60, a senatus consultum apparently provided that ex-consuls take positions in the field to face down a Gallic tumultus, but soon proved unnecessary (15.2.3). In Pompey’s third consulship of 52, at least two nonmagistrates—a consular and a very senior praetorian—were given imperium to preside over special quaestiones for vis and ambitus in the city (11.9.3) The central issue in instances such as these was competence and authority. Yet we find also the phenomenon of “negative” commands, designed to keep consuls and praetors out of important tasks which they might exploit to their own material and political benefit. In early 75 (11.4), the Senate chose to use a quaestor (probably endowed with imperium) to collect money in Cyrene; in 58 (11.8.4), the tribunicius M. Porcius Cato was made “pro quaestore pro praetore” to annex wealthy Cyprus. In addition, there were plans afoot in 65 to send a subpraetorian (possibly with imperium) to attach Egypt as a tributary province (11.6). There were other miscellaneous schemes, such as the Senate’s dispatch of Cn. Calpurnius Piso as a quaestor pro praetore to Hispania Citerior for 65 (13.4.7), or Rullus’ plan in 63 to create Xviri with imperium for five years, who might simultaneously also hold a magistracy (11.8.3). Overall, the above examples cumulatively go to show that a majority of senators had no objection in principle to extraordinary grants of imperium—at least for most of our period. The reaction to a Parthian threat of mid-51 b.c. does suggest an eventual change in attitude. Here the Senate explored a variety of military options (the consuls of the year did not want the task). But, significantly, the dispatch of a privatus was not among them.98 Personal delegation of imperium to nonmagistrates is frequently attested in this period. The evidence is not all that we would like (see 14.6.4), but down to the year 52 we find commanders—mostly consulars but a good number of praetorians pro consulibus—giving out imperium to subordinates in the western provinces,99 in the
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east,100 and in Italy;101 privati with consular imperium, too. Indeed, in the year 67, Pompey had (apparently) twenty-four legati pro praetore under him in his special pirate command, including two consulars and three or four known praetorii; the Senate might have allowed him a similar setup in his grain commission of 57 (11.8.2). The power to delegate should be one major reason why in certain emergency situations—the Social War, the war with Spartacus, the Catilinarian conspiracy—we see several praetors during their year of office have their imperium raised from praetorian to consular. Eventually, that type of enhancement became redundant. The lex Pompeia de provinciis of 52 established that ex-praetors proceed to territorial provinces pro praetore, and perhaps specifically enabled these praetorian commanders to delegate imperium—for the first time in the history of the Republic—at their own level.102 One final point: The vexed domestic politics of the 60s and 50s created a surprising new source of manpower—commanders cum imperio waiting outside the city for the Senate’s vote of a triumph. The precedent was M. Antonius (pr. 102, imperator, and cos. des. 99), who had been asked in a senatus consultum ultimum of the year 100 to provide external protection for Rome when Saturninus and his followers had caused a serious disturbance. In the Catilinarian crisis of 63 the Senate, also through a senatus consultum ultimum, put to work not outside the city but in Apulia and Etruria the cos. 69 Q. Caecilius Metellus and the cos. 68 Q. Marcius Rex, each of whom had been waiting before Rome for some years (11.8.9). At the start of 49, it is suggested, the Senate contemplated using the returned eastern governor M. Nonius in the same way, but for service abroad; around this time, Pompey certainly had thought of using the imperator ex Cilicia Cicero in this fashion (14.2.6). One wonders whether in the intervening years the Senate gave duties to the pr. 63 C. Pomptinus (outside Rome from 58 down until November 54) or the cos. 57 P. Cornelius Lentulus Spinther (waiting for a triumph vote from 53 down into 51) (15.1.2, 15.2.3). Men who so badly wanted a triumph no doubt will have eagerly performed anything the Senate asked of them, without a senatus consultum ultimum.
16
Conclusions
Its story begins with a woman’s jealousy of her sister, married to a patrician who had reached the top of the Roman political pyramid. It involves a struggle so bitter that for five years the Romans descended into anarchy. It owes its genesis to an old war hero who quelled civil strife by suddenly hammering out a brilliant compromise: “The nobility yielded to the Plebs in the matter of the plebeian consul, the Plebs conceded to the nobility a single praetor, elected from the patricians, to administer law in the city.” Sad for the historian to say, that is the gist of our fullest account of the creation of the praetorship, that of Livy Book 6. And for the office’s subsequent development, we are left on our own. We can guess the general outlines. Pressures in the areas of domestic policy, warfare, and—in later times—provincial administration must have created, expanded, and shaped the praetorship. Circumstances continually forced the Romans to innovate in their handling of the office. Innovations were remembered and employed when needed. Eventually (and sometimes reluctantly), many of these innovations were institutionalized. And all this had to take place within a complex social framework. The question of how many praetorships there should be, and who should be eligible to hold them, can never have been a purely administrative question. These issues were inextricably connected with basic social and political issues, such as rivalry between patricians and plebeians—later, nobles and nonnobles—as well as issues such as prestige and electoral corruption. Rome’s Earliest Magistrates Reconstructing the details is the difficult task. For earliest Rome, I accept the view of Mommsen, which is essentially that of Livy and all other ancient writers who treat this era. After the expulsion of the kings from Rome, two magistrates—at least later to be known as consuls—were chosen from among the patricians. Each of the consuls had imperium, the full power of the king, but they were limited to one year
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of office. With imperium came the kings’ auspicia, the right to ascertain the will of Jupiter in certain prescribed ways. It soon became apparent that two consuls were not enough to look after Rome’s ever increasing major administrative and military needs. Yet the Romans were reluctant to give imperium, and with it auspicia, to too many men. One compromise attempt at a solution was the institution of the so-called “military tribunes with consular potestas,” a college of up to six magistrates who had the consular right to lead an army, yet who did not have imperium and whose auspices were deficient in some way—we know they could not celebrate a triumph. The idea perhaps was to keep plebeians—who were eligible for the office—away from the highest public auspices. Social conflict between plebeians and patricians, as well as a prolonged military struggle with the Gauls, forced the Romans to abolish the consular tribunate in 367. Instead, under what is known as the Licinian-Sextian legislation, they let plebeians into the consulship, and introduced a new patrician magistrate, the praetor, to serve as a colleague of the consuls. To create this office, the Romans had to put a bold new construction on the regal power. The praetor was to hold the king’s auspicia, and an imperium which was defined as of the same nature as the consuls’, but minus, “lesser,” in relation to theirs. As a magistrate with this type of imperium and auspices, the praetor could do all that the consuls could do, save holding elections of major magistrates in the Centuriate Assembly and celebrating the Latin Festival at the beginning of each year. All other activities of the consul were open to the praetor, unless a consul stopped him. But a praetor could not interfere with the consuls. In sum, the Romans needed more than two regular magistrates who could command an army. But a college of up to six consular tribunes, all with equal potestas and thus veto power over each other, did not prove to be a good idea. Witness the dismal military record of the twenty-odd years following the Gallic invasion of 390. The invention of two grades of imperium—one minus in relation to that of the two chief regular magistrates—solved the problem of excessive conflict in command. It was an artful “dodge.” Prefects, Dictators, Consular Tribunes, and Censors as “Dodges” It was D. Daube who first articulated the concept of the “dodge” (see 2.1.3). Daube pointed out that all dodges—that is, circumventions of a law—are essentially misinterpretations. He also noted that a dodge may exist for hundreds of years without its nature being fully grasped. Daube was primarily interested in explaining some practices in the Roman civil law, but his observations on the dodge are readily extended to constitutional and religious matters. A good example of an early dodge is the institution of the Prefect of the City. A king or consul who had to leave Rome would appoint a representative with wide powers to act in his stead, without having to fear that this subordinate would get in the way of his own actions. Now, these prefects cannot have held imperium. There is no indication that a Roman king could or would simply delegate his full royal
Conclusions 599
imperium to another; and for the Republic, it can be shown that one cannot personally give out imperium on one’s own level. But the consuls (and later the praetors) presumably inherited with their kingly imperium the right to leave a subordinate in a given place to fulfill a specific task, and give him limited public auspicia. The Prefects must have had auspicia, especially to judge from their military activities in the field. However, these auspices were not entirely their own. The tenure of the Prefect ended at the discretion of his superior. The Prefecture of the City nicely falls under Daube’s definition of a dodge. It was a circumvention of the rule that one needed imperium to lead an army and perform certain important civil functions. The king or consul acts through a substitute, with delegated special powers. This clever compromise would serve the Romans for centuries, whenever all holders of imperium had to leave the city. But it left at least one thorny question to be answered in the augural sphere. How could two men hold public auspicia which were the same yet different? Rather than think too hard about this paradox, the Romans exploited it. Daube said, “[T]hough dodges assume many forms, they are reducible to very few models.” The dictator is like a reverse prefect: a consul names an individual so as to be given orders! The exact nature of the dictator’s powers is somewhat of a mystery. It was a primitive office. It embraced full imperium, but had a tenure of only six months. To be sure, the standard view is that the dictator, though appointed by a consul, had more powerful imperium and auspicia than the man who named him. A few ancient texts (most notably Livy) appear to confirm this interpretation. It would seem that the emperor Claudius is the most explicit: in his speech preserved on the Lyons tablet, Claudius states that in military or civil emergencies the old Romans resorted to “the dictator’s imperium, which was more powerful (valentius) than even that of a consul.” But it would be most surprising if the dictator possessed anything qualitatively greater than consular imperium. The consul had the imperium and auspicia of the kings of Rome. Logically, the dictator could have no more. There are one or two fourth-century examples from Livy when a dictator and consul fought and won a victory together, but the consul alone received the triumph. This would be impossible if a consul operating in the same theater of operations as a dictator was fighting not under his own auspices, “alienis auspiciis,” as Livy elsewhere implies. Cicero in fact suggests, in the ideal constitution of the De Legibus, that the dictator had the same imperium as the consuls (“idem iuris”). The dictatorship is a difficult office to comprehend. The dictator had powers which were the same as the consuls’, but different. Cicero implies he had as much imperium as the two consuls, but no more. However, what about the speech of the emperor Claudius? I would hold that a dictator’s imperium was indeed valentius, “more efficacious,” than a consul’s—though not maius in the technical sense of the word. The Romans of the Republic never accepted the concept of imperium which was greater than the regal power. The dictator (like the consul) had the regal auspicia, yet did not have to fear interference from a consul. The dictator’s auspices were incommensurable with those of the consul. The dictator should not have been a colleague of the consuls,
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since he was not created under the same auspices, that is, in the Centuriate Assembly. There are some indications he may not even have been a magistrate of the Roman People. The dictator’s primitive, anomalous status, with precedence over all other magistrates, is never adequately explained to us by our ancient sources. By the second century b.c., when people started writing books about auspicia and the like, they probably did not quite understand it themselves. One thinks of Daube’s observation, “[A] dodge . . . may exist for hundreds of years without its nature being fully grasped.” I offer two brief additional examples of early constitutional dodges. There is the institution of the consular tribunate mentioned above, which was first seen in 444. The bulk of the ancient sources imply that this was a compromise meant to sidestep a basic issue of the conflict of the orders. It also was an attempt to supply commanders to fight enemies on multiple fronts. The Romans were to make an ad hoc decision each year whether the chief magistrates in the state be a pair of patrician consuls, or a—theoretically—mixed college of three, four, or six consular tribunes. A top magistracy, and with it, patrician auspicia, were for the first time open to the plebeians, yet the patricians still preserved the consulship as their exclusive domain. There was a twist. The consular tribunes, by virtue of their election in the centuriate assembly, received auspicia maxima for the civil sphere, but, in the field, auspices which were somehow less than the regal complement. Their defective military auspices may be precisely why they are called “military tribunes with consular potestas.” The Romans stopped short of giving the consular tribunes imperium, which would imply the full power of the kings—to patricians and plebeians alike. What we see here is a controlled experiment, one which allowed plebeians to handle patrician auspices, within certain limits. In this case, one dodge necessitated another. The patricians wanted to keep an old regal and consular task, the census and ritual purification, or lustrum, out of the hands of the mixed colleges of consular tribunes. To this end, in 443—the year after the appearance of the first consular tribunes—they invented the censorship. This was a specialized patrician collegiate magistracy resembling the consulship in some respects (for example, election in the Centuriate Assembly), but with several important differences. The patricians designed the new office of the censorship to have enough power to discharge its intended functions, but no more. The censors were to hold auspicia maxima. This presumably came with their election in the Centuriate Assembly. But the People chose the censors on a different occasion, and thus under different auspices, than the senior magistrates of the state. The People also followed the election of censors with the passage of a law—not in the Curiate Assembly, as was the practice with new consuls so as to validate their military auspices—but in the Centuriate Assembly, exceptionally of all patrician magistrates. Cicero is probably only guessing when he states the double vote for censors was taken “so that the People might have the power of rescinding its distinction, should it have second thoughts.” The procedure of a lex centuriata presumably was meant to restrict their powers, to ensure that the censors did not consider themselves colleagues of the consuls, nor think they had military auspicia. As M. Valerius Messalla (cos. 53) tells
Conclusions 601
us, the augurs in fact deemed the censors’ maxima auspicia to be of a different grade (potestas) than that of the consuls. The consuls could not vitiate the auspices of censors, nor censors those of consuls; these magistrates could interfere only with the auspicia of their proper colleagues. The Creation and Early Development of the Praetorship The conceptual breakthroughs which came with these dodges paved the way for the invention of imperium maius and minus. In particular, the relationship of dictator to consul may have partly inspired the consul/praetor arrangement. (The dictator and magister equitum combination probably served only as a negative exemplum; the master of the horse does not originally seem to have had imperium, and his auspicia were overly entwined with those of his superior.) We can also view the arrangement of two consuls, one patrician and one plebeian, and a patrician praetor, as a more complex modification of the old system, the mixed colleges of consular tribunes alternating irregularly with patrician consular pairs. The reforms of 367 were not a clean break with the past, as is suggested by the account of Livy, who is taken at his word by many modern scholars, but rather show continuity of development. The system of two consuls and a praetor was more or less a rationalized consular tribunate. But the creation of the praetorship also marked a real innovation. For the first time, the Romans were able to reconcile in a proper magistracy the concept of permanent subordination with what was essentially regal imperium. And like a good dodge, some aspects of the praetorship were not completely understood by posterity. For example, no one in the late Republic seems to have been able to explain adequately why a praetor could not hold praetorian elections. What was this new magistrate supposed to do? Livy’s anachronistic explanation, taken over by later authors, that the praetor was created to hear cases at law in the city, is a retrojection from the most familiar function of the praetor in his own day. Livy soon contradicts this by his own narrative; his statement must be rejected. Quite simply, the praetor was to do almost everything that consuls did, unless they were around and wanted to stop him. The sole praetor probably remained in or near the city while the consuls went out on military campaigns. For example, we know that the praetor was not at the famous surrender at the Caudine Forks in 321. And so it came about that the praetor often served as the chief magistrate with imperium in Rome. In the absence of the consuls, the praetor looked after the defense of the city, presided over the Senate, held assemblies of the People (including for capital iudicia), and regulated the Roman civil law process. But as a holder of imperium, the praetor could also exercise a military command when required. The first actual activity we see of the praetor in Livy is in a military capacity, in 350 and 349: the tradition Livy follows for these years did not regard such praetorian commands as anything surprising or exceptional in themselves. It is suggested that the praetor’s right to triumph was secured by 283, when the pr. suffectus M.’ Curius Dentatus scored a victory over the Lucanians, for which he received an ovatio. Again, it must be emphasized that the actual evidence for the early development of the office virtually excludes Livy’s explanation that the praetor was introduced “qui ius in urbe diceret.”
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It took thirty years for the praetorship to be opened to plebeians, the last major magistracy to remain so exclusive (a plebeian had reached the dictatorship and even the censorship by the end of the 350s). This development did not come without a struggle. The stipulation that the praetor had to be a patrician was an integral part of the delicate social compromise engineered by the Licinian-Sextian legislation. Even the pioneering C. Marcius Rutilus (cos. 357, IV 342), the first plebeian dictator and censor, probably did not sue for the office: a plebeian candidacy for the praetorship would have violently disturbed the uneasy concordia ordinum of his time. However, the senatorial establishment did eventually allow the praetorship to open up, probably to defuse the serious discontent of plebeians whose families had been shut out of the consulship. A series of reforms that started in the late 340s provides the background to this development. In particular, the Genucian plebiscites of 342, that apparently guaranteed one consulship each year to plebeians, also placed a temporary ban on iteration of all magistracies. We should not understand this latter law’s stipulation “ne quis eundem magistratum intra decem annos caperet” as “no one might hold the same office twice within ten years”—a provision that is so frequently violated that one scholar not so long ago was driven to suggest that the law is a fake, forged by a reform-minded consul of 198. Rather, the tribune Genucius must have moved “no one might hold the same office twice for the next ten years,” that is, the decade down to 331, which is what we actually get (at least among plebeians) in the record. In Genucius’ measures we have a strong expression of protest directed at the recent domination of the consulship by patricians (who had begun to fill both available places), but especially against members of a few favored plebeian families—like C. Marcius Rutilus, cos. IV in the very year of Genucius’ plebiscite. So when the patrician consul of 337 refused to accept the candidacy of the plebeian Q. Publilius Philo for the consulship, he did not receive the support he evidently expected from the Senate. Philo won election to the office, and we hear of no further opposition to candidates to the praetorship simply because they were plebeians.
The Invention of “Prorogation” In time, the principle was established that the imperium of the consuls and praetors could be extended into the next year (prorogatio). Like many aspects of the Roman Republican constitution, prorogation was an ad hoc invention that gradually became more common and was finally institutionalized. The first grant Livy records is for Q. Publilius Philo, who now as cos. 327 was besieging the city of Naples. When his year of office was almost up, the Roman Senate, realizing that the city could be taken any day, decided not to recall the man but instead have the tribunes propose a measure, that “on the expiration of his consulship he conduct the campaign pro consule (in place of a consul) until the war was concluded.” A generation later, because of the prolonged state of military emergency created by the Second and Third Samnite Wars, we find that prorogation—which we can add to our collection of dodges—had passed into regular Roman administrative prac-
Conclusions 603
tice. It allowed the Romans to meet their military needs without increasing the number of magistrates or sacrificing the principle of the annual magistracy. At first, promagistrates were never used to supplant actual magistrates altogether. This seems clear from a study of the dates of Roman triumphs in the third century, which are preserved in the triumphal Fasti. The triumphal dates seem to show that the usual term of prorogation in the period before the war with Hannibal was not a full year, as is generally supposed and indeed was the later regular practice, but only six months—the length of a campaigning season. We have a chance reference to an extension of imperium for this term in Livy, in his notice of the arrangements for 296. This must be the standard Roman practice down to the time of the Hannibalic War, even though Livy does not normally bother to mention it. We should also note that, even in the period when individuals were prorogued for a full year, Livy does not use the titles “proconsul” or “propraetor.” Neither does Cicero, nor any other Republican source. The Romans obviously never came to terms with recognizing the promagistracy as an actual office. Livy does not usually give us the details of the process of prorogation, which, though he had found it in his sources, he obviously did not think important. I have suggested that the Romans initially had a two tiered system: prorogatio, in which the People would vote (rogare) to approve extensions of commands in fixed praetorian provinciae, and propagatio, for all the other cases, where the Senate alone was competent to make this decision. By the mid-second century, the Senate had usurped the People’s powers in this matter: that is why all extensions of imperium are eventually called “prorogation.” Introduction of the Peregrine Praetor The invention of prorogation in 327 allowed the Romans to keep the system of three magistrates with imperium for about another ninety years, down to almost the end of the First Punic War. But by the end of that war, Rome had acquired a second praetor, whom we know from Republican documents as the praetor qui inter peregrinos ius dicit: “the praetor who administers justice among foreigners.” How did this come about? A late epitomator in Justinian’s Digest surmised from his title that an influx of foreigners into Rome at the end of the First Punic War made necessary a second praetor to hear law cases that developed between them. Most modern scholars have surprisingly followed this guess. Daube stoutly defended it, and interpretations based on the epitomator’s explanation are still being offered. Now, the notion of a praetor specifically created to hear mostly cases in which both litigants were noncitizens (especially at this time) is absurd. On the other hand, if the original jurisdiction of this praetor was to deal with law cases involving conflicts of interest between citizens and noncitizens, one would logically expect a praetor inter cives et peregrinos, which was in fact the official titulature under the Empire. But in the mid-third century even that task would hardly have been so onerous that it could not be performed by the urban praetor. Mommsen, for one, accepted the Digest’s view, and conjectured that this magistrate’s actual introduction was somehow connected to a crisis of the year 242. A
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praetor had to be sent to Sicily in place of a patrician consul and flamen of Mars, whom the pontifex maximus had (unexpectedly) restricted to Italy. Incidentally, this praetor helped score a naval victory in late consular 242 which won the war for Rome, and with it the dominion of Sicily. At first glance, Mommsen has a good hypothesis for the date. But it is easy to forget that 242 was at least the third time in the First Punic War the praetor had to be in Sicily for an entire year. We also must remember that, in this war, he was normally the only holder of imperium for all Italy during the campaigning season— and perhaps beyond. In 248, the praetor needed to ward off a Punic general who was threatening the Italian coast. More Carthaginian raids followed, as Polybius tells us. The Romans took these incursions seriously, to judge from the establishment of citizen maritime colonies in Etruria and the founding of a Latin colony at Brundisium in 244. More probably, it was the defense needs of Italy in the crisis years of the mid240s which prompted the Romans to create a second praetor. The Romans realized that they were not properly covered for emergencies, and so added another permanent holder of imperium. Even in the later period, the peregrine praetor was marked as a magistrate who could be sent wherever a commander with imperium was needed. Livy sometimes reports the allotment “the peregrine province and wherever the Senate has decided,” provincia peregrina et quo senatus censuisset. The frequent absence of the peregrine praetor from Rome on special missions during (especially) the Hannibalic War helps to confirm this interpretation. I must emphasize that there probably was no legal motive for his introduction, except perhaps that the Romans wanted two praetors instead of one partly to reduce the possibility of frequent suspensions of legal business (iustitia) in the city during military crises. How, then, do we explain the second praetor’s titulature, inter peregrinos? The preposition inter of course can be used to denote the name of a place. For example, in the phrase inter sicarios, it also seems to imply competence over a certain group, here, “murderers.” A Roman judge was not expected to adjudicate disputes between sicarii! Following the treaty with the Carthaginians and the organization of (western) Sicily in 241, the Romans may have sent this praetor literally inter peregrinos, that is, as a governor of the newly organized permanent provincia “Sicilia” (Rome’s first). Like some other Roman titles, such as pontifex (literally, “bridgebuilder”), the original reason for the designation was forgotten. At some later point in the Republic the peregrine praetor assumed responsibility for hearing law cases involving citizens and noncitizens; but it was only in the Empire that his titulature was changed to reflect his actual sphere of activity. Indeed, a late summary of Appian’s Sicilian History reports that, after the war, the Romans “imposed tribute on the Sicilians . . . and sent them an annual praetor.” We soon can find confirmation of this notice. In 234, the urban praetor was forced to travel to the recent Roman acquisition of Sardinia to put down a rebellion, even though we know there were no wars at the time other than in the two consular provinciae of the year, Liguria and Corsica. That there were no other wars is certain: we are told so by our main literary source for this year, a summary of Dio Cassius. The praetor inter peregrinos can have been in no other place than Sicily.
Conclusions 605
Increase in Praetors to Four The number of praetors remained stable for little more than a decade. The Romans further raised the number to four in the early 220s. This was an extremely important decision. It increased by fifty percent the number of holders of imperium, and, among other things, changed the relationship of the praetorship to the consulship in the career path. In the days when there was only one praetor, the office, when held, could— and did—either precede or follow the consulship. Sometimes the office was held even in the year directly after one’s consulship, as an alternative to prorogation. The choice was between praetorian imperium valid both at home and in the field for an entire year, or imperium as pro consule for six months. Raising the number to two and then four praetors made it almost inevitable that the praetorship would precede the consulship in the normal career pattern. From now on, praetors cannot have expected to reach the consulship automatically, though the men who were successful in the office will have had a better chance at it than nonpraetors. The increase is traditionally dated to 228 (for 227), which should be right. But the background to this decision must have been the sending of both consuls to Illyria in 229, which exposed the Roman vulnerability in their new overseas provinces. Had there been a serious crisis in, say, Corsica, there was no magistrate who could be dispatched to the island other than the urban praetor (we should remember the incident of 234, when the urban praetor had to be sent to Sardinia). The Romans took a major and unprecedented step to make sure that this situation would not recur. With new overseas responsibilities, even two praetors were not enough, and so two additional ones were created. One of the two new praetors was placed in charge of Sicily, the other had responsibility for Sardinia and Corsica. The peregrine praetor now seems to have shed his earlier role of overseas provincial commander, and was free to be deployed in other capacities. For the sake of convenience, we may call the individuals who received the urban and peregrine provinciae “city praetors”—keeping in mind that, especially for the praetor inter peregrinos, Rome was only a base. In the 220s and early 210s he can be found in north Italy, fighting (none too successfully, as it happens) against Gallic tribes. Interrelationship of Praetorian Provinciae The relationship of the two older praetors to each other, and against the “new” ones—including two additional praetors later added for Spain in 197 (see below)— has never been properly sorted out; the topic demands some detailed discussion. The designations as such seem only to mark what they normally did (whatever it was), but each of them could be called upon to do different things. And there is abundant evidence from the entire Republican period that, in a pinch, any praetor—regardless of the provincia he received in the sortition—generally could fulfill the functions of any other. The Ludi Apollinares are probably the first significant exception. An oracle of 213 attached these games permanently to the urban jurisdiction. But that set-aside came a decade and a half after the introduction of the praetors for Sicily and Sardinia, and is not evidence for some special power inher-
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ent in the urban provincia. By making this designation, the oracle (or rather its author) simply was trying to guarantee that a praetor was available to celebrate these games each year. After this precedent, it is not surprising that the praetor urbanus accrued other fixed religious ceremonies at Rome. Nevertheless, the urban and peregrine praetorships do show some differences against the Sicilian and Sardinian praetors, and all later ones who were created to command in territorial provinciae. There was a legal requirement that the city provinciae be placed in the sortition each and every year. The explanation is simple: a prorogued magistrate could not properly exercise his imperium within Rome. By 184 we know that the election of a suffect was legally required if either the praetor urbanus or praetor inter peregrinos—but not an overseas praetor—died in office early in the year. Here the answer is less obvious. This was probably a necessary feature of the earliest praetorship (note the election of a praetor suffectus in 283), and so it is strange that it later would be denied to all but the city praetors—especially since praetors in permanent territorial provinciae were the more likely to die in office. Perhaps it was felt that a legal stipulation to hold a suffect election for any praetorian place—once there were more than two—would excessively restrict the activities of the consuls of a given year. The city praetors also had precedence over their praetorian colleagues in convening the Senate. In the early first century, we even find a few letters from the Senate to Greek communities in which the names of the consuls of the year as well as those of the urban and peregrine praetor are used to date the document. That seems to confirm that the two old city provinciae had at least by now acquired a formal, enhanced status. At this time, the praetors in charge of various standing courts (e.g., repetundarum, discussed below) were equally likely to be present at the routine sessions of the Senate where such letters were drafted. As for the relationship between the praetor urbanus and praetor inter peregrinos, two main factors seem to have been at play: the chronological seniority of the provincia urbana, and the historical mobility of the peregrine praetor. The original and primary role of the peregrine praetor, as we have noted, was to go “quo senatus censuisset.” He was in Sicily ca. 240–228, and then available for action, wherever he was needed, in Italy down through the start of the Hannibalic War. In most years of this war, and for a few years beyond, the peregrine praetor was far from Rome, fighting in south Italy (215–213, 211) and later Gaul (210–198). The praetor urbanus, as the “original” and sole praetor for more than a century, already had acquired the bulk of the important routine duties in Rome. There was little reason for him to transfer any of these permanently to his far-ranging colleague. Indeed, Livy explicitly tells us a few times in his narrative of the Second Punic War that the urban praetor had to take on the peregrine praetor’s iurisdictio (we are not told what that was, at this time or any). While the Carthaginians were in Italy, the urban praetor was expected also to defend the city and provide for the protection of the coast near Rome. On occasion, we find him seeing to the provision and enrollment of Rome’s armies. Some new responsibilities which the urban praetor accrued in this war (e.g., shipbuilding, formerly a consular task) became permanently attached to his provincia. But in the post-Hannibalic period, we see no evidence of the praetor urbanus relinquishing any of the traditional responsibilities that dated back to his
Conclusions 607
days as sole praetor: for instance, in the mid-160s, we find him still supervising viritane land allocation (in Campania). Development of the Provincia Urbana So it appears the development of the provincia urbana was quite haphazard. The urban praetor, once he got all the odd jobs piled on to him, seems to have been tied to Italy—rather like the flamines—and then, of course, to Rome, more or less. Indeed, it is quite startling to see the extent of the urban praetor’s routine duties by the mid-Republic. For a start, during the regular course of the year (when the consuls were off in the field), he can be expected to have chaired meetings of the Senate. As presiding magistrate, the praetor urbanus (or any other praetor to whom he yielded) had absolute power to frame relationes, the setting out of a topic for discussion that often formed the basis of senatus consulta. The praetor also moderated senatorial debate, and put questions to a vote. Numerous other responsibilities and powers followed from this presidency—too many to list. Of course, a consul had full power to order a praetor not to convene the Senate, so as to prevent a vote on a given issue (this in fact happened in 210). However, in the Republican period, it is significant that a consul never uses his imperium to invalidate a praetor’s senatus consultum, once it was passed. He could, if he chose to, and conflicts over senatus consulta did arise; but the maintenance of concordia among the governing class was obviously deemed a much higher priority. On the whole, the praetor’s presidency of the Senate well illustrates his position as colleague of the consuls. We may note that the praetor regularly transmitted the Senate’s orders to (often superior) commanders, which, of course, he had helped to formulate. In a protracted dispute of the late 170s, a plebiscite even gave an urban praetor precedence over an uncooperative consul in convening the Senate. That rogatio was probably overcompensating: in 169, a simple senatus consultum allowed an urban praetor (and one for Spain) to take over a consular levy. This collegiality of consuls and praetors has given rise to at least one myth: that the urban praetor, like a consul, was able to delegate his imperium to a nonmagistrate. There is no good evidence that he had any such special power. But we can surmise that the Senate on occasion asked the urban praetor to propose a special rogatio to the People (at least in the Curiate Assembly), so that an individual privatus could receive a grant of imperium. In 217, it even seems that the urban praetor passed a measure in the Centuriate Assembly so that Q. Fabius Maximus could act pro dictatore (until a consul was available to “name” him). If the praetor engaged in other types of legislative activities in the period down to 166, we do not know about it. Important bills seem to have been the prerogative of consuls, or otherwise tribunes; the peregrine praetor who tried to pass a war vote in 167—when a consul and praetor urbanus was in the city—is cited by Livy as an example of gross constitutional impropriety. The praetor urbanus does have the responsibility of convening the Centuriate Assembly to vote in the final stage of capital trials. He also regularly conducted elections of minor magistrates and members of special commissions—in (at least) the latter case, even when one or both consuls are in the city. Precedence in certain matters was readily waived: we find
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that the presence of a higher magistrate in no way hindered the urban praetor from performing even some major religious duties. Though we know little of the urban praetor’s supervision of civil procedure in the city down through the mid-Republic, there is no doubt that here his powers will have grown as the rigorous procedural forms of the legis actiones gave way to the formulary system. This process seems to have started about 200. Formulae were not prescribed by law; their composition and application rested solely on the praetor’s authority. The origins of this new system of procedure (like almost every aspect of Roman civil law in our period) are hotly disputed. I have suggested that wartime conditions and an increase in the praetors’ legal (and other) work prompted the pontifices to allow that a “formula” could substitute for “certa verba” in a civil suit, thus allowing legal actions to be completed even on dies nefasti. Subsequent developments are not all that easy to trace. We do see the praetor providing remedies outside the existing procedural frameworks by the mid-second century. Not long after 122 b.c., the provisions promulgated by the praetor in his edict started to eclipse popular legislation as the principle vehicle for changing existing civil law rights. In Cicero’s day, the praetor undoubtedly could agree to the use of a formula even if it had no basis in the civil law; alternately, he could refuse to assent to a particular formula, even in an area where the civil law provided an action. Professional jurists will have helped in most of these developments: already in the 120s we find one sitting on the praetor’s consilium during the first part of a civil case. Development of the Provincia Peregrina One wonders what was happening with the peregrine praetorship during the second century. Our curiosity should be piqued by the fact that there is separate allotment of the provincia peregrina in all but two of the years 197–166. In one case (168, on which see below), there is even an extraordinary arrangement to compensate for the absence of the peregrine praetor when he had to go overseas for the year. A servile insurrection in Latium of 198 may have prompted this new policy of keeping both “old” praetors in or near the city. But what convinced the Romans to keep to this policy for decades to come must have been the growing civil responsibilities of the urban praetor. Around this time (certainly by 190), the praetor urbanus even had his lictors reduced from six to two (at least when in the city), showing that the Romans now did not expect him to play a military role. We can suppose that the Senate tried to retain the peregrine praetor in the city to serve as his adiutor. We have only a few glimpses of how the peregrine praetor might help his colleague when in Rome. I must emphasize that the way they divided the tasks should not depend on some special powers inherent in their respective provinciae, but can be explained by the urban praetor’s “seniority” and the peregrine praetor’s traditional mobility. The clearest illustration comes from the Senate’s handling of criminal quaestiones. The supervision of special quaestiones went to the peregrine praetor more often than the praetor urbanus. Superintendency appears to have been determined simply by the relative availability of these praetors: for example, in 180, the peregrine praetor saw to poisoning cases in and near Rome (within the
Conclusions 609
tenth milestone), since there were six praetors in that year; the urban praetor took over this same task in 179, because there were (under the lex Baebia, discussed below) only four. Provincial praetors also often received quaestiones (though always extra ordinem), even functioning within the city. In such instances, the Senate’s administrative decisions were informed by practical, not legal, concerns. Confirmation for a “pragmatic” policy comes from other spheres. In granting sessions of the Senate, the urban praetor was responsible for introducing embassies from friendly or allied communities or peoples; the peregrine praetor is found treating with foreign embassies from defeated peoples asking for special treatment, who conceivably might have to be questioned as to their intent before they drew near Rome. Similarly, in a large emergency levy, the praetor urbanus appears to have been charged with mustering citizen legions, while the praetor inter peregrinos called up soldiers from the Latin League. The rationale in both these cases must be that the peregrine praetor had fewer formal responsibilities, and was more free to move if a task demanded his presence outside Rome. Cumulatively, these instances help us approach the vexed problem of the peregrine praetor’s role in the civil law. As noted, we actually have no good evidence for the Republican period that there existed for the peregrine praetor a discrete iuris dictio. In any event, it seems impossible that the peregrine praetor was restricted to hearing cases in which a peregrinus was a litigant, or, when it came to procedure, that he was circumscribed in any formal way. Indeed, it can be shown that all praetors had the right (in their own provinciae) to hear cases between Roman citizens, or between citizens and peregrines, and in time we know they could even set up a framework for peregrini to contest a suit on the Roman citizen model (first attested for the early 80s). The provision of the lex Plautia Papiria (of 89 or 88) that a professio for citizenship could be made before any praetor—and so the praetor inter peregrinos—shows that something of this “collegial” aspect of the praetorship long remained (at least down to Sulla). A good circumstantial case can be made that the peregrine praetor simply was expected to hear cases for which the urban praetor was too busy or considered less important. Special Grants of Imperium To move from civil affairs to developments militiae: A study of the commands of the Third Samnite War (298–290) and Second Punic War (218–201) amply illustrates exactly how resourceful the Romans could be at finding ways to compromise between institutional principles and military necessities. This latter conflict— which was the longer and obviously more dangerous of the two—forced Rome to make these compromises to an unprecedented extent. Here we find all sorts of dodges to free up manpower, including the combination of two praetorian provinces into one, and the largescale use of prorogation of imperium (with repeated extensions particularly common for commanders in special provinciae). These practices received their heaviest use in the crisis of the first eight years of the war. But once developed, they were retained throughout our period, and down until the end of the Republic.
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One particularly consequential development—which may have got its start well before the Hannibalic period, or even earlier than the Third Samnite War— was the granting of praetorian imperium to private citizens, who were usually, but not always, ex-magistrates. This was another dodge to ensure that there were enough men with imperium to go around. Yet the Romans seem to have reserved this expedient—in contrast to prorogation—for times of extreme emergency. On the whole, these commands were defensive in nature: the Senate seems to have identified certain tasks that needed imperium but not much fighting experience, and then given those to nonmagistrates. Nevertheless, in 215, Ti. Sempronius Longus (cos. 218) was active fighting against Hanno in Lucania, probably with a special grant of (praetorian) imperium. And some privati even received consular imperium. M. Claudius Marcellus was probably the first, under special conditions (political and military) in 215. Next came a long series of commanders (starting in 210) who were sent pro consulibus to Spain, as well as a commander appointed pro consule for Greece in 205. Such grants of consular imperium often seem to be largely symbolic. It can be shown that enhanced imperium—whether that of a praetor or privatus—does not necessarily imply a larger army, just a larger task and a more independent position. It did always require a popular vote. Special grants of imperium (at either level) never grew as common as simple prorogation, and, in the period immediately following the Second Punic War, the Senate severely curtailed its use of this expedient for privati. There obviously were no more military crises on the scale of Hannibal’s invasion of Italy, and after 197 there were (except for a few years) six rather than four praetors on hand. But such grants never disappeared completely. In 133, during the height of a slave war in Sicily, two senior consulares received (praetorian) imperium to put down a servile uprising at Minturnae and Sinuessa. In 131, Scipio Aemilianus thought he could get such an extraordinary appointment for himself (but at the level of pro consule) to fight the pretender Aristonicus in Asia. Yet the Romans who voted on the proposal preferred to ignore a major religious impediment and send the consul and pontifex maximus P. Licinius Crassus to fight this war (the other consul was a flamen, and, as such, no more mobile). In the first century, attitudes changed dramatically, and the practice of giving extraordinary commands to private citizens exploded: Pompey held six such grants in his career, and in many ways paved the way for the Principate.
Limits on Military Initiatives by Praetors in Italy and Gaul But to return to the Second Punic War: Despite the Senate’s ingenuity in exploiting the limited number of magistracies, praetorian commanders in Italy rarely were meant to fight significant battles against the Carthaginians, or take on Gallic tribes in the field. Generally, praetors (or pro praetoribus) appear in major campaigns only to help a given consular commander. In the dangerous first eight or so years of the war, the Senate did very occasionally allow holders of praetorian imperium (mostly already ex-consuls) to initiate battle against these enemies. More often,
Conclusions 611
when we hear of praetors or pro praetoribus fighting against Hannibal, it means the Senate simply failed to prevent them from coming into his way. From 210 on, as the military situation improved—and Rome ran out of experienced consulares—the Senate kept praetorian commanders in Italy under extremely tight control. We now hear of very little actual fighting by praetors in the Italian peninsula. This development was partly a consequence of the praetors’ minus imperium when they served in the same provincia as a consul. Then there is the basic fact that praetors often received less experienced troops than consuls and proven consular commanders—and were expected to give up their armies, once seasoned, to their superiors. But a few notable defeats suffered by praetorian commanders in the field—culminating with that of Cn. Fulvius Flaccus, pr. 212 in Apulia—also must have conditioned the Senate’s willingness to entrust major military responsibilities to men of this rank. In fact, in the entire Second Punic War, only two praetors emerged successful from a major engagement in Italy without consular support: the experienced M. Claudius Marcellus at Nola in 216, and C. Hostilius Tubulus (who probably engaged Hannibal under the Senate’s special instructions) in 207. The main function of praetors and praetorian commanders in Italy in the latter part of the Second Punic War seems to have been simply to maintain order and to prevent defections in problematic districts, especially in the north—well away from Hannibal. Most of their activities concerned members (and former members) of the Italian confederacy. In a few cases they are recorded to have reduced lesser towns, taking disciplinary action as appropriate. Praetorian commanders are wholly absent from south Italy after 210, except for garrison duty at Tarentum and Capua. Following Hannibal’s departure from Italy in late 203, praetors would return south to restore order—but only since consuls were not available. There were no praetorian triumphs during the Second Punic War. In fact, only one is known from the Italian peninsula in all the years which follow (that of L. Furius Purpurio in 200, which came not without a dispute), down to Crassus’ ovatio over Spartacus and his slaves in 71. Praetors were mostly excluded from the conquest of Gaul and Liguria also in the years after the Hannibalic War. In these campaigns, it was policy for both consuls to proceed to the north. In circumstances when only one consul was available, the Senate preferred to prorogue a consul who was already in the area (multiple times, if need be) or send a sole consul to fight unaided, rather than have one share the main command with a praetor. On the occasions when praetorian commanders do appear, the consuls did not allow them to expand their ancillary role—and disciplined them if they tried. Following the forced dismissal of a praetor in 187, the Senate started making its mandata more explicit. This seems to have worked, for a time. Yet soon the practice of sending praetors to the north stops altogether. After a peregrine praetor of 178 who was prorogued to hold a command (tellingly, pro consule) in Liguria, no other praetors are found in northern provinciae until one who received Gaul in 146 (perhaps alongside a consul). C. Sempronius Tuditanus, in his ambitious campaign against the Iapydes as cos. 129, appears to have used a senior consular (and triumphator) as well as a praetorius as his legati. When the former triumphator scored a major success, it was Tuditanus,
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as consul, who, despite his own poor performance, received the imperatorial acclamation. This peculiar advantage of fighting with experienced legati (as opposed to praetors possessing their own auspices) cannot have escaped many of the consuls in our period: note, for instance, the presence of praetorian legati, but not praetors, in the Third Punic War. Praetors had plenty of reason to go triumph hunting for their own sakes, especially to win a consulship. On the basis of the actual record, we can assume that many consulares in the Senate of the second century viewed praetors as a danger to Roman lives and reputation, posing too much of a risk to be used on the dangerous northern frontier. (Livy tells us as much in his narrative of the praetor Purpurio’s request for a triumph in 200.) Policy in central and south Italy was a bit different. We find holders of praetorian imperium operating in Magna Graecia from 202 to 199 and then from 193 almost continuously down to 180. But much of their work was police action, or, in the Syrian War, maintaining defensive positions and preparing expeditionary forces for the war in Greece. One consequential development does emerge from Livy’s annual lists of provincial allotments. In 190, Etruria as well as Apulia (the latter joined with the “Bruttii”) were declared armed praetorian provinciae, with prorogation of their commanders into 189 and 188, respectively. For 187 Livy reports the placement of the provincia of Tarentum in the praetorian sortition. The situation in Etruria and south Italy must have been quite serious if the Senate thought it necessary to keep two praetors there in 190, when the war against Antiochus was still far from settled, and then to maintain those forces (at least in south Italy), even after the war was over. Though Livy does not say so (perhaps intentionally), the special praetorian assignments in Italy of 190–187 must form the background to the quaestio de Bacchanalibus, assigned extra ordinem to the consuls of 186. In each of the six years that follow, a praetorian commander is found in south Italy. Down through 181, suppression of the Bacchic cult is said to have been a prime concern. What we surely do not have here is a genuine spiritual revival (as is often thought). Rather, rebels in south Italy and Etruria apparently seized upon the Bacchic rituals to give a religious sanction and organization to their defiance of Rome. It was natural for the Senate to call upon praetors for the drawn-out task of suppressing them. More surprising is the choice of a praetor to reduce the rebellious town of Fregellae in 125. The Senate’s selection of L. Opimius may have been ad hominem (his political sympathies surely recommended him for the task). Alternately, it may be that neither of the consuls of the year—one of whom was the Gracchan M. Fulvius Flaccus—wanted the job, and it fell by default to the praetor. An impending Cimbric invasion explains why, in 104, it was the city praetor L. Licinius Lucullus who had to leave Rome to put down a well-organized slave revolt at Capua. In 91, with trouble from the Italian allies looming, the Senate stationed a praetor with consular imperium in the area of (at least) Picenum. That commander met his death at Asculum, which led to the dispatch (I suggest) of more praetors of the year into the field: Cn. Pompeius Strabo to Picenum, probably L. Postumius to Nola, and perhaps L. Porcius Cato to Etruria. Yet the one possible praetor of 90 known to have served in the war, L. Calpurnius Piso Caesoninus, is said to have manufactured arms. And Cn. Strabo does not seem to have been prorogued into
Conclusions 613
90, but made a legate (though probably with imperium) of one of the consuls of the year. Indeed, in the major military emergencies of the post-Gracchan era, the most important subordinate roles generally were filled by legati, some quite senior. For instance, in the Cimbric War, the consul L. Cassius Longinus in 107 had a cos. 112 as well as a (likely) praetorius on his staff, while the consul Cn. Mallius Maximus in 105 had a cos. suff. 108 as legate. Likewise, in the dangerous crisis of the Social War, we see that the consuls who held the chief command entrusted much of the serious fighting not to praetors but to experienced legati of consular or praetorian rank. Those served as legati pro praetore, with imperium officially conferred throughout their tenure. In 90 and 89, the Senate even saw fit to raise the rank of certain legates—not praetors—to pro consule to compensate for two individual consuls who had fallen in the war. In the latter of these two years, several praetors also had to take on major responsibilities in the southern theater of this conflict. Yet it is really only in the year 88, when the Italian revolt was on its last legs, that we find praetors in office entrusted with substantial military responsibilities. And in the civil fighting of the years 83 and 82, the Marian government mainly preferred to use consuls and prorogued consuls rather than praetorian commanders, though the latter were often more capable. Sulla, too, organized his force under legates—at least some of whom were of praetorian standing, recent volunteers to his cause—and allowed them the capability to fight independently. In the decades that followed, certain commanders extended overseas the basic model we find in the Social War. To operate in his massive special provincia against the pirates, the pr. 74 M. Antonius made wide use of independent legati and praefecti. Pompey, in his pirate command of 67 under the tribunician lex Gabinia, combined the command structure of the Social War and Antonius’ huge commission. The Gabinian law entitled Pompey not just to appoint a large number of legates (two dozen or so), but also to delegate each of them praetorian imperium. Each of those legates had the responsibility for his own independent quasi provincia. Among the thirteen reliably transmitted names, we find two consulares and three or four known praetorii. Even after Sulla as dictator increased the number of praetors to eight and provided that they all might hold city provinciae, the only instances of city praetors venturing outside Rome on special commissions have to do with military commands, by and large prompted by acute emergencies. In this period, praetors or praetorian commanders only seldom are involved even with a levy in Italy (none are attested between 122 and 72). There are some indications that when the gladiators’ revolt of Spartacus first broke in 73, the Senate took pains to spare the city praetors. For 72, the plan was for the two consuls of the year and an ex-consul of the previous year to conduct the major fighting. However, matters for those senior commanders went so badly that the Senate by the fall ordered the consuls not to fight any longer, and allowed M. Licinius Crassus (probably pr. 73) to conduct the war with the consuls’ legions and surely with their level of imperium. As it happens, this praetorian commander had a crisis of confidence in himself: in winter 72/71, Crassus asked the Senate to summon M. Lucullus (cos. 73) from Thrace and the pro cos. Pompey from Spain to help against the Spartacans. But before either of these men could
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arrive, Crassus himself went on to win a decisive victory against the gladiators—one of the absolute high points of praetorian generalship in the late Republic. Independent Commands for Praetors outside Italy Outside Italy, the Senate allowed holders of praetorian imperium much greater latitude. It had not all that much choice, for even in a major war, the Senate was reluctant to let both consuls of a given year go overseas. That happened only twice in the period 218–122. To end the Syrian War, the consuls of 189 received as their provinciae Aetolia and Asia. Those were quite separate theaters; the joint command against Carthage which the consuls of 149 managed to secure for themselves was much harder to justify. More telling for normal Roman practice is the fact that the Senate never let both consuls go to the Spains during the serious rebellions of 157 to 150 and then 147 down through 133, though in many of those years there were no significant wars elsewhere. Wherever a consul could not go, one naturally would expect a praetor to fill his place; but not in a high-profile war (at least ideally). For a decade after 143, the Senate did not allow praetors to do any of the fighting in the Spains. Instead, it aimed at a system where consuls would receive the provinciae of Hispania Citerior and Ulterior in alternate years, so long as the emergency should last, even though that meant superseding some successful commanders, and proroguing others who had been defeated. When that emergency policy had to be abandoned (after the recall of a cos. 137), the Senate simply sent a string of consuls to Citerior (culminating with Scipio Aemilianus, cos. II 134 by special dispensation), and prolonged the imperium (for five years) of an effective general in Ulterior, until both provinciae were thoroughly pacified, and ready once again for normal praetorian administration. It is in the Greek east where we best see truly independent commands for holders of praetorian imperium. Yet those were developed only gradually. The first praetor we find sent across the Adriatic happens to be a capable consularis, M. Valerius Laevinus (cos. 220 and pr. II 215). As pro praetore in Illyria and Greece from 214 down through early 210, Laevinus’ role was mainly defensive. He also turns out to be the only praetor to serve in the First Macedonian War. To succeed Laevinus, the Romans prorogued P. Sulpicius Galba (cos. 211), keeping him in that theater for five full years. And when it came time to supersede Galba (for 205), the Senate preferred to have the privatus P. Sempronius Tuditanus receive a special grant of consular imperium than send a praetor or pro praetore. By 206, Rome’s allies in Greece were quite ready to make peace with Philip. In the delicate political atmosphere, the Senate apparently decided it would be sending the wrong message to replace a pro consule with someone possessing (merely) praetorian imperium. This principle, which we may call “the persistence of consular imperium,” can clearly be seen at work later in our period when the Romans started to create permanent praetorian provinciae in the east (see below). In the preliminaries to the Second Macedonian War, the Romans sent Laevinus once again to the east, now as a privatus with (praetorian) imperium. In 201, Laevinus delivered an expeditionary Roman force to the Illyrian mainland,
Conclusions 615
surely with the understanding that he soon would be replaced. Unlike Laevinus’ earlier eastern command, this mission turns out to have set a real precedent for praetors, who are sent to do exactly the same thing at the start of the Syrian as well as the Third Macedonian Wars. All three instances of this practice share the same general features. At the time of each of these expeditionary missions, war had not been formally declared; once a praetor had crossed with an advance force, at the beginning of the next administrative year the war vote would be taken, and a consul (with a proper force) would depart for the east. These praetorian commanders generally maintained a strictly defensive posture up to the time of their supersession (which was never more than a year), though they were fully capable of fighting if the situation demanded. All the same, the Senate must have instructed these commanders to avoid decisive action (and the praetors obeyed), for we hear of no bold initiatives. Once the actual fighting of the Second Macedonian War commences, we find certain individuals in wideranging naval commissions, serving (so it appears) as legati pro praetore of a consular commander. In the first two years of this war, the Senate was trying to maintain annual consular commands; as the consuls were relieved, their appointees sailed home with them. That policy soon changed. T. Quinctius Flamininus went to the east as cos. 198, and then stayed as pro consule down into 194; the Senate allowed his brother Lucius (pr. 199) to be prorogued probably five consecutive times to serve (as a quasi legatus) under him. The success of these men—especially L. Flamininus—facilitated the development of a new category. Starting in the late 190s with the Syrian War, and then again in the Third Macedonian War, praetors regularly went to the east as genuinely independent commanders, especially to conduct naval operations (their provincia was a special one, termed the classis). In the last year of fighting in the Third Macedonian War (168), the principle was extended and an independent praetorian command was created on land for Illyricum. (This foreshadowed, in a way, the later creation of the praetorian provincia “Macedonia”.) All these commanders, though tactically subordinate to a consul (or consuls), fought under their own auspicia and with their own imperium. Indeed, four of these praetors (out of eight)—including the land commander—managed to celebrate a triumph. In these two eastern wars, the Senate adhered rigorously to the principle of annual succession for both praetors and consuls, until the hostilities were settled and peace arrangements had to be made (which, in the case of Illyricum, the praetor worked out himself). Here, for once, the line of development seems clear. The Senate had noted the usefulness of the legati pro praetore, but sought to avoid extended commands such as that of L. Flamininus by placing the “Fleet” in the praetorian sortition each year during actual fighting, replacing even competent naval commanders. (In the Hannibalic War, the tendency had been to keep good admirals on the seas as long as possible.) The pressure to maintain this policy doubtless came from within the governing class, especially from the properly elected magistrates of each year who wanted to have their own chance at military gloria in the east. Otherwise, the Senate obviously did not like praetors as the principal commanders in major conflicts, if it could be helped. In some ways, in the post-
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Gracchan era that tendency grew more pronounced. Consider the string of consular commanders (each extended for at least one year and at least one prorogued twice) that undertook major campaigns in the area east of the Rhône in the latter half of the 120s; the prolonged consular commands in Sardinia (one covering the years 126–122, then another 115–111); the whole conduct of the Jugurthine War (consular in each of the years 111–105); and M. Rufus (cos. 110), prorogued four times in all in Macedonia before triumphing ca. 1 August 106. Exceptions are few. I have suggested that in the opening stages of the Second Slave War in 103, the Senate dispatched the modestly experienced L. Licinius Lucullus (pr. 104) ex praetura as a compromise that spared both the untested new praetors of the year and Marius’ consular colleague L. Aurelius Orestes while the Cimbric emergency was ongoing. That slave war eventually had to be declared consular, and given to M.’ Aquillius (cos. 101). He would be the last consular commander to hold Sicily as a provincia in the period down to 49 b.c.; the regular praetorian governors were thought adequate to check occasional dangers from slaves and pirates. In all, we know only two possible instances of praetorian commands in special provinciae outside Italy in the period 122–82 b.c. (perhaps a pr. ca. 120 in Illyria, then the pr. 102 M. Antonius in Cilicia), and two more from 81 to 50 (the pr. II 79 M. Cosconius in Illyria, followed by the pr. 74 M. Antonius—son of the aforementioned—in a wideranging pirate command). No individuals with praetorian imperium are explicitly attested in the fighting of the Third Mithridatic War from the year 73—when exceptionally both consuls of the previous year began a campaign in the east—all the way down to 63. Granted, in 69, the Romans removed Asia from the cos. 74 L. Lucullus’ composite provincia, “and restored the rule of Asia to the praetors,” despite a military threat to the provincia from Mithridates and the Armenian king Tigranes. The object here was not primarily military but political, namely, to insult Lucullus. The triumphal Fasti show nicely the Senate’s reluctance to expose praetors to dangerous enemies. Consider Macedonia, which Cicero deems the triumphal province par excellence. After Q. Caecilius Metellus “Macedonicus” in 146, T. Didius is the only praetor known to have triumphed from the provincia (probably in the year 100). Even imperatorial acclamations are rarely attested for praetorian commanders. In short, the record suggests that praetors might have long commands in the province, yet when possible the Senate had men of consular rank take on severe fighting. That tendency grows particularly marked in the decades after Sulla. Yet the picture was not the same everywhere. Between the Sertorian War (ended 71 b.c.) and the command of Q. Caecilius Metellus Nepos (cos. 57 and pro cos. for Citerior in 56), only praetorian commanders received the Spains, and that despite their military possibilities. M. Pupius Piso Calpurnianus (pr. by 71) aggressively hunted for a triumph in Ulterior, and was awarded one in 69. L. Afranius, Pupius’ counterpart and contemporary in Citerior, also triumphed; C. Iulius Caesar (pr. 62) was hailed imperator but gave up a near-certain vote of a triumph to make a professio for the consulship of 59.
Conclusions 617
And contrary to long previous practice, after Sulla men of praetorian rank might find themselves assigned a northern command. Indeed, the first post-Sullan commander we find in Transalpina was of praetorian standing. C. Pomptinus (pr. 63) even managed to triumph from that province, after years of obstruction, in the year 54—the first praetorian commander ever to triumph from “Gallia,” however defined, since L. Furius Purpurio in the year 200. The explanation must be that after 81, there were still too many territorial provinciae relative to the available number of commanders to keep subconsulars altogether out of the Gauls. The Senate was more lenient with Transalpina in this respect than Cisalpina. In the Senate’s administrative deliberations of 56 that occasioned Cicero’s De Provinciis Consularibus, we find that no one seems to have allowed the possibility that Gallia Cisalpina might be declared praetorian for 55. However in the later Republic we occasionally find a reaction against placing consulars in important commands (discussed below). Restrictions on the Magistrate’s Powers in His Provincia In short, in the post-Livian period, we never see grand commands for holders of imperium minus quite like those of the Syrian and Third Macedonian Wars. But some of these individuals were thought to have taken their independence too far. An ex-praetor of 171 chose exile after the People fined him for his excessively stern measures against two Boeotian towns. A prejudicial senatus consultum (perhaps more than one) had paved the way for his condemnation. The case is important, for praetors in our period are very rarely successfully prosecuted for offenses committed in the field—otherwise, only for perduellio, after major losses of Roman troops (the two known instances are Cn. Flaccus, pr. 212, and C. Plautius, pr. 145). The incident of 171 is for us an unprecedented example of the Senate’s encroachment on the praetor’s (originally absolute) powers of imperium within his provincia. A similar measure soon followed in 169, limiting the requisitions Roman commanders and officers could make from allies. This was a productive development— as the numerous laws on grain requisition that we find a century later in the Verrines go to show. However, it is a pity that we lose Livy before we can adequately trace this development further. One thing that is clear is that, despite the growth of central controls from Rome, many commanders went right on behaving as they pleased. We happen to know that the earliest commanders for Roman Asia (i.e., those of the mid-120s) had been in the habit of exercising their jurisdiction even in extraterritorial parts of the province. We may note that restrictions were also applied to imperium domi. The really consequential development here is the law of 122 b.c. in which C. Gracchus introduced his new “praetor repetundis.” The praetor, though the presiding magistrate in each trial, was under obligation to choose his panel of iudices from a restricted class of individuals, from which senators were excluded. He then was compelled to accept the finding of this body, which the law calls a consilium (“advisory council”). This latter detail is particularly remarkable, from a constitutional perspective. Never before, as far as we know, was a magistrate legally required to abide by the
618 The Praetorship in the Roman Republic
decision of his consilium. We are perhaps justified in viewing this measure as another encroachment on the (originally near-absolute) imperium of the praetor. Paradoxically, one purpose of this new praetorian provincia was to keep other praetors (as well as consuls) in check. Rome’s acquisition of Asia must at least partly have prompted Gracchus’ reform: it is surely no accident that the earliest securely attested trial under Gracchus’ new-style quaestio is that of a praetorian governor of Asia, Q. Mucius Scaevola, probably soon after C. Gracchus’ death in 121. By the year 100, we know for a fact that there existed a small forest of regulation concerning administration in the territorial provinces. We owe that knowledge to the discovery of a major inscription from Cnidus (a substantial fragment of a previously known Lex de piratis) that dates to the year 101 or 100. Most relevant for our purposes here, it spells out some limitations under a lex Porcia—apparently new— on the movements of the commander and his staff outside the provincia. It was now law that a commander was liable for the public actions of his comites. (That must be one reason why, in the Verrines, Cicero is so eager to show that a wide assortment of knaves were members of Verres’ official entourage, and as such of his judicial consilia.) Though Sulla is the one who generalized consular imperium for the territorial provinces (see below), he also took a keen interest in regulating the behavior of Rome’s promagistrates as commanders. To do so, he introduced an elaborate law de maiestate, which remained in effect down to the end of the free Republic, even alongside Caesar’s extraordinarily comprehensive lex de repetundis of 59 b.c. Like so much else in his reform program, Sulla drafted his lex de maiestate partly in response to the irregularities of the tumultuous years 91–82 b.c. But it seems he also had a larger, forward-looking purpose. Here Sulla in a single statute apparently codified not just a whole host of senatus consulta and leges—some demonstrably containing minute regulations—that had emerged haphazardly over the previous century or so, but also certain restraints previously observed by commanders only more maiorum. The provisions of Sulla’s maiestas law that we know about mostly are concerned with orderly succession in the provinces, crucial if his new administrative system was to work. In this, Sulla’s legislation was successful: at any rate, for the late Republic we do not hear of any dangerous conflicts between decessor and successor. Sulla’s laws of his dictatorship in turn launched a trend. One particularly representative example of the late Republican craze for enshrining mos maiorum in statute is the tribunician lex Cornelia of 67 b.c., compelling praetors to follow their own edicts. The law surely did not attempt to dictate the actual composition of the individual edicts. Its aim (probably) was only to prevent ad hoc deviations. We find city praetors making plenty of those in our record for the 70s—most notably L. Cornelius Sisenna (pr. urb. et per. 78) and C. Verres (pr. urb. 74)—prompted by both favoritism and spite. That the lex Cornelia also applied to provincial governors— many of whom will have relied on the urban edicts as a model—is conceivable. All these measures represent significant encroachments on the magistrate’s (originally absolute) rights of imperium. Yet for all the creep of legislation, Roman commanders were highly skilled at finding the loopholes. Consider C. Verres: Cicero managed to quash this particular commander. Yet the overarching impres-
Conclusions 619
sion we get is that it was no easy thing to call magistrates to account in the late Republic, especially if they were well connected. The Senate was by no means eager to pass an actual senatus consultum condemning a given provincial governor’s actions. It is ironic that an era that had such an appetite for legislation on provincial administration might acquit in the extortion court an L. Valerius Flaccus from Asia or an M. Aemilius Scaurus from Sardinia. We have Cicero’s defense speech in each case, and can plainly see that he found little in their actual provincial records to commend them. Even more ironic, this general period also saw the creation of a massive provincia for the pr. 74 M. Antonius in his pirate commission, again for L. Lucullus against Mithridates in the east, and even wider-ranging commands for Pompey and Caesar. There also were special ad hoc (or rather ad hominem) grants of a less spectacular sort, yet that still represented an increase in certain magistrates’ powers. Grants of Consular Imperium to Praetors But we are getting far ahead of our story. It must be remembered that, with the exception of M. Valerius Laevinus in the First Macedonian War, the only praetors down to 166 who held the eastern theater by themselves were those in charge of crossing expeditionary forces. By the mid-second century, the inhabitants of Macedonia, Greece, and Asia must have expected that consular commanders fight the main campaigns. As chance would have it, the year 149 saw a major rising in Macedonia—after both consuls had fully committed themselves to fighting Carthage. The Romans were forced to assign the rebellion as a praetorian provincia; the pretender Andriscus defeated and killed the praetor who was sent (and then prorogued) early the next year. In the emergency, a praetor of 148, Q. Caecilius Metellus, received a grant of higher imperium to fight Andriscus (no consul seems to have been available in that year either). Metellus vanquished the pretender, and himself organized the annexation of “Macedonia,” winning a triumph and a triumphal agnomen (the first and only for an individual qua praetor) on his return home in 146. Epigraphic evidence confirms that consular imperium was retained for all subsequent praetorian commanders in this new provincia. The next major eastern war that came along was against Aristonicus in Asia in the years 131–129. Here the Romans gave no fighting to regular praetors. They must have considered the military threat to the region too grave, and the political stakes (ultimately, the organization of another new provincia) too high. Instead, we find the war entrusted to a series of consuls, the first of whom (as we have seen) faced a religious impediment. These consuls were subject to strict annual succession— though we do find one instance of a legatus who received praetorian imperium by (a consul’s) delegation in the field. And once “Asia” was properly annexed and organized, the institution of praetorian commanders with consular imperium was extended to it as well. The same would be true of “Cilicia,” when that was created as a permanent provincia ca. 100. Each of these provinces had their military aspects, despite Cicero’s famous claim in the Pro Flacco (59 b.c.) that an Asian praetor’s main sphere of activity was “iuris dictio.”
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The regular dispatch of praetors pro consulibus to provinces such as Asia and Cilicia can be viewed as “persistence of consular imperium”—yet another example of the “dodge.” The principle can also be seen in the west, though there its application is entirely ad hoc. The Senate took some extraordinary measures to keep Spain consular after the death of the Scipios in 211. True, at first a single praetorian commander was sent to supersede the tumultuary dux who had taken emergency charge of the provincia (and then started to use the title “pro praetore” for himself). But the military situation in this theater quickly deteriorated, and a special election was held in the comitia centuriata, which made the privatus P. Cornelius Scipio (the future Africanus) into a pro consule. This is how he fought in Spain down into 206, aided by a genuine pro praetore. It may be that the two privati who were sent to relieve these commanders did so with grants of praetorian imperium. But by 204, these same men were certainly pro consulibus; Livy can be taken to imply that the People raised their imperium after a serious revolt of 205. All subsequent governors sent to Spain—for the rest of the Republican period—also displayed the insignia of a consul (most importantly, attendance by twelve lictors), perhaps to overawe the bellicose Spanish tribes. We find this practice even in Italy: note the peregrine praetor of 178 who was prorogued as pro consule against the Ligurians, a traditionally consular provincia. In the first century, in certain severe emergency situations—the turbulent year 91, the last stages of the Social War, the first stages of the war with Spartacus, the Catilinarian conspiracy—we see several praetors during their year of office have their imperium raised from praetorian to consular. However, in the later Republic such enhancement of imperium could not be taken for granted, as the incident of the two praetors and their (combined) “twelve axes” captured by pirates in Italy shortly before 67 b.c. shows. It is uncertain what grade of imperium the pre-Sullan praetorian commanders for the provincia of Africa possessed. An African governor might have served pro consule: one should keep in mind that consuls in the Second and Third Punic Wars had always done whatever fighting there was on the African mainland, and that (at least) the early praetors for Africa might have occasion to command a large military force. We hear of consular commanders delegating their powers to a subordinate any number of times down to the end of the period; it is clear (against Mommsen) that they did not have to leave their provincia to do so. The quaestor M. Antonius in 113/112 is our first known example of an individual being delegated imperium by a praetor pro consule. But the practice of praetorian delegation might go back much further, perhaps as far as the very start of the second century. Soon after Antonius, this type of delegation by praetors—and even privati—with enhanced (i.e., consular) imperium is reasonably well attested, both before and after Sulla took the step of generalizing consular imperium for promagistrates in all the territorial provinces. Indeed, the power to delegate imperium may be one of the major factors behind the decision to institutionalize grants of consular imperium to praetorian commanders for distant provinces like the Spains, Macedonia, Asia, and Cilicia. There, the seamless succession of proper governors was difficult to achieve, and legati might find themselves in sole charge of a large provincia for longish stretches. It also may be the main reason why, eventually, Sulla as dictator standardized
Conclusions 621
the rank of pro consule for all commanders who had charge of a territorial province. The power to delegate might also explain why, in certain emergencies, the People (surely) raised the imperium of various praetors in office for use in Italy. In time, we find instances of delegation of imperium that go beyond short-term stopgaps. Consider the consuls of 90 and 89 who held the chief commands in the Social War. They apparently gave imperium to more than a few of the (numerous) consular and praetorian legati who fought under (and often in close proximity to) them. The significant thing is that those legates were intended to have their imperium for an entire year, or a good part of it. Sulla validated this practice, so it seems, by making similar grants to his subordinates—most notably, to his quaestor L. Lucullus for a prolonged commission in eastern Mediterranean waters in 86, and to the young Cn. Pompeius during the fighting of the Civil War in 83–82. In the year 67, Pompey had (apparently) twenty-four legati pro praetore under him in his special pirate command, including two consulares and three or four known praetorii; the Senate might have allowed him a similar setup in his grain commission of 57. (Below, we shall discuss the situation of delegation after Pompey’s reforms of 52.) Sicily and Sardinia as “Double Provinciae” Let us turn now to the Senate’s policies toward the various standing territorial provinciae, especially in the formative middle Republican period. For Sicily, the central administrative issue was different than for most provinces. In times of danger, the island positively required more than one holder of imperium. In the first two years of the Hannibalic War, with Hiero’s help a single praetor was able to protect the island. However, when the Carthaginans launched a two-pronged attack on Sicily in the crisis year 216, the Romans managed to avert disaster only by sending the urban praetor on a counterraid of the coast of Africa. In 215, upon the news of Hiero’s death, the Senate was forced to supplement the regular command on the island by sending a privatus to a special praetorian provincia (“the fleet”—a handy designation, as we have seen, later to reappear elsewhere). Sicily was a consular—as well as a praetorian—provincia in each of the years 214 through 207, and then in 205 and (surely) 204. After 215, praetors also received the charge of some armies that had disgraced themselves in Italy, now on restricted service. These two factors greatly diminished the possibility that praetors and prorogued praetors in Sicily might have much of an independent role. There was some opportunity for praetors to see action during the siege of Syracuse and the first year after its fall in 211, in both east and west Sicily. A bit later (208), a Sicilian praetor also saw some service in south Italy. Yet the bulk of the campaigns in this theater were conducted by a holder of consular imperium, with a praetor acting in tactical subordination. Once the fighting shifted to Africa, the Sicilian praetors remained in place, preparing (not conveying) supplies and defending the coastline against the possibility of a Carthaginian counterattack. With the end of war, a single praetor once again administered “Sicilia”— though the acquisition of Hiero’s kingdom (in 211) had now much enlarged the provincia. It was probably in one of the years 210–206 that the Sicilian praetor first received two quaestors, one each for the eastern and western portions of the island.
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That is certainly what we find in the late Republic; it may have started as a compromise solution, meant to substitute for the addition of another permanent praetor to the provincia. Yet the need for more than one holder of imperium occasionally reappeared. We find the division of the provincia between two praetors in the years 191 and 190, when it was feared that Antiochus III might try to use the island as a stepping-stone to Italy. And in the First Slave War, the Romans had to introduce a similar administrative arrangement. The war started in 135, when a praetor was the sole commander in the provincia. In each of the years 134 through 132, we find a praetor or pro praetore in a western command while a consul fought the main war in the east. In both these theaters, the Senate stuck to a policy of annual succession. Though tactically subordinate to the consuls, these praetorian commanders were fully independent, and fighting under their own auspicia. The proof is that M. Perperna, pr. 133, was awarded an ovatio (probably in 132) for liberating the sanctuary of Demeter at Henna from the rebel slaves. “Sardinia”—which consisted of the islands of Sardinia and Corsica—was similarly a double provincia of sorts. But it was never a major area of conflict during the Hannibalic War, and so we find its praetors were more than twice as likely to be prorogued as their Sicilian counterparts. That changed somewhat in 197–166. The easily rationalized omission of the distant Spains from the sortition in this period meant that Sardinia was left out in only two years (195 and 190), Sicily never. Yet the sortition lists do not tell the entire story. By late 203, and throughout the decisive year 202, the Romans went so far as to abandon the serious defense of Sardinia, and sent the island’s praetorian commanders to Africa to aid P. Cornelius Scipio in the last operations of the war. In these two years, the protection of the provincia of Sardinia must have been delegated to a legatus. In 200, we find a transferred pro praetore serving as the sole commander with imperium in this provincia. In the mid-180s, the Senate started the habit of asking Sardinian praetors to take on special quaestiones in or near Rome, at first (184, 180) for part of the year, but later (177) for the whole. It quite probably used a praetor of 176, who had excused himself from the provincia, in the same way (not to forget a Spanish praetor who supervised the first quaestio repetundarum in 171). As amazing as it seems, Livy is specific that C. Papirius Carbo (pr. 168) had been assigned two sortes, Sardinia and the provincia peregrina. Carbo ended up staying in Rome, apparently for the entire year. In 167, another Sardinian praetor was retained in Italy, to hear capital cases (and apparently other matters). In these latter two years, the praetors, whatever their exact duties, may have sent legati to hold Sardinia (remember the situation of 203–202). Also, the practice of retaining the Sardinian praetor for legal chores (but still placing the provincia in the sortition) may have continued to grow after 166, though we have no way to know. Sardinia and Corsica, of course, occasionally offered possibilities for military gloria. Ti. Sempronius Gracchus received the provincia as cos. 177, and triumphed from there two years later. Gracchus was assisted throughout by a praetor of 178— one of the longest praetorian commands we have for the second century. The Romans were not terribly worried about prorogation in Sardinia; as it happens, we know that this particular praetor could have been replaced in either 177 or 176
Conclusions 623
(praetors drew “Sardinia” in the sortition in each of those years). This man’s first prorogation, when the island was declared consular in 177, is readily explained: as policy, the Senate tried to avoid committing two magistrates in their actual year of office to this provincia. And so in perhaps 175, but certainly 174 and 173, a praetor of the year fought in Corsica while the commander of the previous year was prorogued for the island of Sardinia. This contrasts with the practice we have observed during crises in Sicily. That provincia was larger, richer, and generally had a higher administrative priority (it is always listed before Sardinia on official lists). When C. Cicereius, an ex-scribe who was pr. 173, decisively ended the unrest on Corsica of the mid-170s, he did not even get a supplicatio. But that must have been largely because of his social, not his praetorian or “provincial,” status. On his return, Cicereius probably surprised almost everyone by asking for a triumph. When refused, he celebrated one in its quasi-official form on the Alban Mount (much) later in the year, later commemorating it by dedicating a temple on the Alban hill. For an ex-scriba, an Alban triumph was a tremendous accomplishment. Indeed, Cicereius was the first (and probably the only) praetor to celebrate this ceremony: we hear of no Alban triumphs after 172. Though it had a distinguished enough pedigree, perhaps the honor was henceforth regarded as so devalued that no would-be triumphator considered it as an option. The patres may even have decided to put a stop to the practice, partly in the fear that more praetors would go that route to advance their careers (thus subverting the Senate’s own authority over the triumph). If so, that would be another example of the Senate’s encroachment— attested elsewhere for precisely this time—on the exercise of imperium. Sardinia was declared consular—and entrusted to a single commander—several times in the final decades of our period (163, perhaps 162, and 126). L. Aurelius Orestes (cos. 126) spent five years in the provincia; there is no sign that he ever had a praetor under him. A bit later, M. Caecilius Metellus (cos. 115) served in Sardinia for four and a half years. The length of these Sardinian commands is quite striking, when one notes that other major wars of this general period usually received a regular succession of commanders. From all appearances, the Senate seems to have revived the old practice of the Second Punic War, of making Sardinia the provincia of first resort when it needed to make room in the praetorian sortition. Addition of the Two Spanish Provinciae and Its Effects We should now focus on Spain. To drive the Carthaginians out of Iberia and prevent its reoccupation, the Senate from 218 on sent out commanders in pairs. As we have seen, at first one and later (after 205 or 204) both these men were endowed with consular imperium. The privatus P. Scipio held the chief command from 210 down to 206; afterward, the Senate started to entrust the Iberian peninsula to two nonmagistrates. After the conclusion of the Hannibalic War, there must have been strong pressure to devise a more permanent arrangement for Spain. Despite the special grants of consular imperium, few men of talent could have been eager to take up an office which lay outside the recognized career path, and go to a distant territory for what often turned out to be quite a long amount of time. We know from Livy that since these men were not proper magistrates of the Roman state, the
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Senate (initially) and then—when its resolve gave out—the tribunes tried to debar them from celebrating a triumph. Those who did go to Spain tried to keep their options open: two different men tried to hold in absentia an aedileship in conjunction with their special Spanish commands. Perhaps they thought that holding this magistracy—any magistracy— might get them around the technical restrictions attached to privati cum imperio and help their claims to a triumph. From 197, the Senate decided to remove the need for such imaginative dodges and instead entrusted Spain to regular annual magistrates. It added Hispania Citerior and Ulterior to the traditional praetorian provinces of the urban and peregrine jurisdictions, Sicily and Sardinia; it also increased the number of praetors from four to six. The Senate no doubt had seen the necessity for this addition some time before, but the major war with the Macedonian king Philip that started in 200 delayed implementation of this decision. Like their predecessors, the new praetors went to the Spains with enhanced (i.e., consular) imperium right from the start, a development which (as noted) would become applied elsewhere, and throughout the administrative system by the late Republic. It must be emphasized that the rank of pro consule had no great relevance to the size of the army these individuals commanded. There were only two legions (or fewer) between the two commanders in Spain in the period 205–188, and then again (probably) from 178 down to the mid-150s. Yet they always retained their enhanced imperium. Evidence from outside Spain confirms this finding. The Spains provide the bulk of the praetorian ovations and triumphs in our period. We know of seven such triumphs and five ovations in the years 197 down to 122; elsewhere, in this same time span, we find attested five triumphs (all from eastern provinciae), one Alban triumph (from Sardinia), and one ovatio (from Sicily). Iberia was a dangerous theater, and the praetors for the Spains almost invariably fought under their own auspicia (only Hispania Citerior in 195 was a consular provincia in the period down through 154). It is also just possible that nobiles had a better chance of reaching the Spanish provinciae in time of war (see Appendix B.9), and thus a better chance of obtaining a triumph or ovation on their return. The Senate appears to have given out ovationes quite freely, as a compromise solution in problematic cases. The pro cos. L. Cornelius Lentulus (commander in Spain as a privatus in 205–200) had set the precedent in 200, followed by another privatus in 196. From that point on, when regular praetors from the Spains requested a triumph, they never came away empty-handed—so far as we can tell. Even the obscure M. Helvius (pr. 197) got an ovatio in 195, when grave doubts arose about his technical eligibility for a triumph. Some successful Spanish commanders do not seem to try for a triumph, if we are correctly informed; but in such cases they are all nobiles, who in any case made it to the consulship. For some, perhaps, it did not matter all that much. Two new praetors for Spain allowed a new administrative attitude toward the city jurisdictions. As we have noted, once the total praetorian college is brought to six, the urban praetor is never again found far from the city on a mission in the period covered by the extant portions of Livy. As far as the peregrine praetor is concerned, he is sometimes sent outside of Rome, but usually on tasks of limited scope,
Conclusions 625
and never as an annual commander in a territorial provincia, as in the Hannibalic period. At the time of the Senate’s decision to annex the Spanish provinciae formally, it seems optimistically to have envisaged a system of annual succession of pairs of praetors. Of course, there were still major foreign wars and various crises in Italy and Gaul that required the presence of a praetor. Within a decade, it was only regular prorogation of the two Spanish praetors that enabled the new system to work: only once in the period 191–181 were the Spains allotted two years in a row (in 188, following the death of the pr. 189 for Ulterior). Six praetors also had significant social and political effects, which (as we shall see below) are quite illuminating for the problem of the decline of the Republic. In the period after the Second Punic War, there was evidently a great deal of confusion as regards the order in which magistracies should be held: the debate on the Roman cursus honorum, or career path, spans the 190s and 180s. In 199, the candidacy of T. Quinctius Flamininus for the consulship met with a great deal of opposition by the tribunes, since he was seeking the office without having held the mid-level magistracies of the aedileship or praetorship. The Senate eventually ruled that he could seek the office. The nobles wanted fewer electoral rules, because that meant more opportunity for the use of personal prestige, influence, and wealth— and ultimately, a quicker climb to the top. But after 196, and down to where Livy breaks off thirty years later, all the consuls except for one can be shown to be ex-praetors. And the exception shows us merely that dispensation was possible, for the right sort of person: namely, the great Scipio Africanus, consul 205 and consul for the second time in 194—clearly a special case. Astin must be right: a new law came into effect ca. 196 that made the praetorship a prerequisite for consular candidacy. Another major problem of this general period, beside the vagueness of the career path, was the rise of ambitus, “procuring election.” The two issues soon became connected. The increase in the number of praetors, and the new stipulation that only ex-praetors could seek the consulship, meant that competition for the highest office soon became fierce. The Romans attempted to settle these issues once and for all with the introduction of two novel laws at the end of the 180s, which are products of the same process of discussion. The year 181 saw the consul M. Baebius Tamphilus pass a lex Baebia, an antiambitus law that stipulated in one of its provisions that in alternate years, four and six praetors respectively be elected. Mommsen suggested that if there were fewer ex-praetors around, competition for the consulship—and thus bribery—would be less intense. Under the terms of the lex Baebia, praetors were sent to the Spains in only even-numbered years: 180, 178, and so on. The two Spains were left out of the sortition in odd-numbered years, when there were just four praetors to go around for six regular provinces. Commanders sent to the Iberian peninsula could thus expect a two-year tenure. Indeed, since 191 this pattern of prorogation had been the de facto situation in the Spains. But now, other provinciae could expect to feel the pinch. It is important to note that at this time the Senate apparently felt the state’s administrative needs could be met without routine recourse to special praetorian lots—despite the necessity to declare two such provinciae in the very year the
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Baebian law was passed. The Senate must have envisaged sending out the praetor inter peregrinos (as they did in the Hannibalic era) to meet special administrative needs that might arise in the “Baebian” years. This is good (indirect) evidence that the peregrine praetor’s presence in the city was still not regarded as absolutely essential. Once the number of praetors was set for the moment (in effect, at an average of five per year), in 180 a second law, the lex Villia Annalis, was introduced. This law, which evidently kept the praetorship as a prerequisite for the consulship, also stipulated the minimum ages for candidacy for each magistracy. This would have the immediate effect of preventing younger candidates from swelling the ranks of hopefuls for the various curule offices. I also attempt to show from statistics (Appendix B.9) that the Romans made a conscious decision to allow less cheating in the praetorian sortition. In the years down to 180, men of consular and praetorian descent, and men who were elected in first or second place in their colleges, received the attractive urban jurisdiction and the rich provincia of Sicily a disproportionately large number of times. After 180, however, the allotment of at least the territorial provinciae becomes truly random. But leaving that aside, the attested reforms of 181 and 180 did what they were supposed to do. Significantly more non-nobiles start reaching the praetorship. And ex-praetors, particularly plebeian ex-praetors, begin reaching the consulship at a more swift pace on the whole in the 170s, usually three years after their first praetorship. One perhaps unforeseen result of these new regulations is that in the 170s, a few ex-praetors of sometimes quite advanced age sought a second praetorship— one man twenty-four years after his first incumbency. He must have been looking for a consulship, which—thanks to a well-regulated career path—was easier to obtain than it had been before. The lex Baebia is crucial for the administrative history of the Republic, since it marks the first institutional acceptance of routine prorogation. But the experiment of allotting the Spains only every other year soon floundered. By the mid-170s, six praetors are again being elected every year—over the elder Cato’s objections, as we happen to know. He must have put a higher priority on the moral issue of controlled ambitus than on the issue of administrative convenience. Three New Provinciae between 146 and 122 Given the nature of our sources, it is not entirely surprising that no ancient author mentions a crucial decision of 146. In that year, the date of the organization of Macedonia and Africa as praetorian provinces, it was decided not to increase the number of praetors. The immediate effect of the Senate’s decision was that it became, for the first time since the partial repeal of the Baebian law, impossible for all the provinces to be governed by regular magistrates in their year of office: there were now eight praetorian provinces, counting the two city jurisdictions, but only six praetors. There was no option but to make into actual policy the regular prorogation of overseas governors. The institutional status of prorogation was never again questioned. The year 146, in effect, marked a new system of provincial administration.
Conclusions 627
The Romans must have been confident in their ability to get by on two consuls, six praetors, and frequent prorogation. In the years that immediately followed their big decision, the fact that hardly any praetors in office went to the Spains (precisely two in the period 145–133) also may have obscured the full consequences of their action. In 133, the Senate decided to acquiesce in the popular passage of a motion brought by Ti. Gracchus, to accept the bequest of Attalus III which left the Pergamene kingdom to Rome; this would soon be organized as the praetorian provincia of “Asia.” We should note that no actual praetors set foot in this provincia until 126 or perhaps 125. The full effects of adding Asia (or, indeed, Macedonia and Africa) may not have been felt when, in 122, yet another provincia was created, this time in the city. In that year, C. Gracchus placed a praetor in charge of a permanent court to try cases of provincial extortion (repetundae). The wealth of Attalus’ kingdom made the annexation of “Asia” an almost irresistible temptation. We have also seen that, from the mid-180s through the mid-160s (where our detailed record breaks off), the Romans occasionally tried to make three praetors available for tasks near the city. The introduction in 149 of a standing criminal court to try cases of provincial extortion will quickly have given rise to more legal work (as Cicero tells us). However, both the new permanent provinciae “Asia” and repetundarum were difficult to administer. Asia, which was now the richest Roman provincia, virtually required annual sortition. The extortion court absolutely demanded it; as we have seen, one cannot properly prorogue a praetor to serve in a city jurisdiction. All this meant that praetors who received the older territorial provinciae could expect significantly longer tenures. Even the city jurisdictions were affected. Now, occasionally in the “Livian” period, we find that a city praetor is prorogued, and sent ex praetura to a special command. This practice is not especially common. There are four known cases of such prorogation to hold a territorial provincia in the period down to 166: one peregrine praetor and three urban praetors, distributed quite evenly over the time of Hannibal’s Italian campaign (but none later, before Livy fails us). As chance would have it, two instances of ex praetura commissions show up right after the big decision of 146. Scipio Aemilianus obtained an extra ordinem command in Hispania Citerior for his best friend C. Laelius (a praetor of 145) at the start of 144. In the very next year, the pr. urb. 144 Q. Marcius Rex—who had received as praetor a massive project of aqueduct repair and construction—was prorogued in a special provincia which allowed him access to the city without losing his imperium when crossing the pomerium. As noted, no praetors had to go to the Spains in the years 142 through 133, and so the Senate may have been able to place the ex praetura expedient on the back shelf. But it is not long after the institution of the praetor repetundis that we find a certain instance of an ex praetura command: C. Marius, a city praetor in 115 who was sent after his magistracy to hold a different provincia, namely, Hispania Ulterior in 114. The remarkable thing, of course, is that the number of praetorships was not increased. The Senate evidently placed a premium on controlling competition for the consulship, and chose to neglect the rapidly accelerating erosion of a fundamental Republican constitutional principle—the annual magistracy—as well as to
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ignore the added inconveniences to commanders and possible danger to provincials. Ti. and C. Gracchus certainly will have known the consequences of their actions on the imperial administrative system. In particular, C. Gracchus had firsthand experience of extended service in an overseas provincia, as a quaestor in Sardinia in 126–125; his old commanding officer, L. Aurelius Orestes (cos. 126), was still on the island—in his fourth year of imperium—even as the new provincia repetundarum was being created. The Gracchi brothers simply thought the benefits of their own programs outweighed the advantages of regular succession in the provinces. They could have claimed (and perhaps did have to claim) to be building on precedent, namely, the Senate’s decisions of 181 and 146 to remove the numerical correlation of praetors and their provinciae. Whatever the long-term implications of the addition of Asia and the extortion court as praetorian provinciae, by and large we can understand why (and, to a certain extent, how) the Gracchi did what they did. What is quite amazing is that, so soon after the introduction of the new system of 146, the Senate seems to have lost its will to control the number of provinciae and, with it, the length of provincial commands—a remarkable volte-face from its careful policy of the first half of the second century, when it carefully tried to limit the need for routine prorogation. Addition of Further Provinciae between 122 and 82 Additional standing courts—modeled on C. Gracchus’ extortion court—were established after 122 b.c., reaching at least four in number by the year 99 and totaling six by 82. By the start of the first century—perhaps with the introduction of the quaestio de veneficiis—a new quasi magistracy for aedilicians was invented, the iudex quaestionis. Here is another example of the “dodge.” The iudex was given all the powers he needed to conduct a criminal trial, and magisterial attributes and insignia as well. But he was assigned only the less politically important courts, came under the supervision of the urban praetor, and—unlike an actual magistrate of the Roman People—potentially could be removed from his position and prosecuted during his term of presidency. The institution of the iudex quaestionis gave some relief to the system. But the remaining standing courts (repetundae, maiestas, ambitus, and sometimes peculatus) were staffed by praetors, and—we can assume—had to be placed in the sortition each year. New standing territorial provinces also were instituted, with Cilicia ca. 100 and the two Gauls by the mid 90s. Nonetheless, the number of praetorships remained at six. The addition of all those praetorian provinciae, with no corresponding increase in magistrates to staff them, suggests that, starting in the last third of the second century, the members of the Senate had lost serious interest in maintaining a workable administrative scheme for Rome’s growing empire. By the nineties, the ratio of praetors to praetorian assignments became as skewed as 1:2. Yet it seems the Senate even in that decade gave Asia a succession of annual commanders. And ca. 87, under the Cinnan government, the Senate would have annexed Egypt had not a tribune (or tribunes) prevented it.
Conclusions 629
In the period 122–82 b.c., the Senate managed to cover its commitments by a number of methods. On the one hand, it seldom allowed praetors to hold special commands outside Italy. It did however use prorogation lavishly. For consuls, we find some significantly long commands—three (common), four, even five years, across the range of western and eastern provinces. That stands in real contrast to the policy of the earlier second century. Praetorian commands in the provinces could be lengthy as well, but none are known to total more than three years in the period down to 91. It clearly was undesirable to prorogue a praetor repeatedly: after a biennium, a praetorian commander was entitled to run for the consulship, and from that gain another provincial assignment, all the while free from prosecution by virtue of his magistracy. Then, there is the device of ex magistratu commands, in which the Senate prorogued an individual city praetor and sent him overseas—with the possibility of still further prorogation once in place. We see at least four city praetors proceed to an eastern provincia in the four years 97–94. Sulla, who was urban praetor in 97 and sent as promagistrate to Cilicia and Cappadocia following his year of office, then had to stay in the east for quite a long time, perhaps four full years. Another one of these individuals—a praetor urbanus for 94—had to stay in his territorial province of Macedonia for at least six and a half years. And it is fairly probable that for the year 94 Asia saw an ex consulatu command. So even before the troubled decade 91–82, Rome’s imperial system was trying to cope with considerable challenges. One expedient the Senate did not really use in the period down to the outbreak of the Social War was extraordinary votes of imperium to nonmagistrates. There is just one probable instance recorded for the period 122–91—a grant to a senior consular to conduct a quaestio regarding charges of incestum in 113. The extreme crisis of the Social War changed all that: we find several popular grants of imperium for the field in the years 90 and 89. The emergency practices of this war surely helped change attitudes about the propriety of such extraordinary grants. As early as 88 b.c., the privatus Marius was elected to a special command to fight Mithridates VI that involved consular imperium; in late 82, Pompey was dispatched to Sicily with a special grant of praetorian imperium, surely through a lex. The 70s saw a number of such grants proposed or realized. The administrative system received a serious jolt in the crisis years 91–87, when the Social War demanded the presence of praetors and capable praetorii for duties within the Italian peninsula. In those years sortition of the overseas provinciae must have been rare. At any rate, it is clear that a significant number of commanders (in Sicily, probably Sardinia, the Spains, Macedonia, Africa, and the Gauls) found themselves stranded. The Civil Wars only exacerbated the problems. Most notably, a cos. 93 became trapped in a command that ultimately was to involve both Spains and Transalpine Gaul down to the year 81. And the Marian Senate largely abandoned the serious administration of Sicily, Sardinia, and Africa. By the time Sulla assumed the dictatorship in late 82 or early 81, basically every one of the territorial provinciae—then ten in number—was badly in need of a proper commander. But, in addition, there were (apparently) six permanent courts in the city (repetundae, ambitus, maiestas, peculatus, de veneficiis, and inter sicarios) that needed to be staffed.
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Sulla’s Reform of the Praetorship and Its Effects Sulla, in his reforms, chose not to make cuts but rather to shore up the existing system by passing a measure that increased the number of praetors to eight. He meant for praetors to remain in Rome during their year of office (to tend to the city jurisdictions and the various standing courts, where iudices quaestionis would also lend a hand), and, on the expiration of their magistracy, to govern an overseas province with consular imperium “militiae.” (For that last feature there is just one counterexample—Cn. Dolabella, pr. 81 and pro pr. for Cilicia in 80—but that apparently came about owing to Sulla’s own personal pique.) Consuls could be dispatched to important provinces after their year of office to supplement the system. Rome now had notionally ten holders of imperium available each year, to match its ten regular territorial provinces. An immediate effect of increasing the number of praetors was that it lessened the prestige of the office. That was not lost on the ancients: Velleius boasts that an ancestor saw two sons reach the magistracy “when six were still being elected.” Other effects followed from the fact that, at all normal times, henceforth there would be at least one holder of imperium maius in the city. Most importantly, the urban praetor was now effectively debarred from serving as Senate president. Nor did the urban praetor (who retained precedence among praetors) and his colleagues stand much of a chance of getting legislation passed if either consuls or tribunes were unwilling. True, we find at least one example of a praetorian law in the period before Sulla passed when a consul or consuls were presumably in the city (the lex Porcia, apparently of February 101). And there are some important praetorian laws that date to the post-Sullan era—most notably, the lex Aurelia iudiciaria passed toward the end of 70 b.c. Yet we happen to know that this particular measure required a fair bit of groundwork on the part of the promulgator, L. Aurelius Cotta (who was almost certainly not urban praetor). In general, the ever-present prospect of interference by consuls or tribunes must have had a chilling effect on praetors who hoped to pass bolder initiatives into law. Ambitious praetors often chose to put their main political energy behind pending tribunician bills, probably because they had a greater chance of success. By the year 57 b.c., it appears that a praetor was capable of obnuntiating against a tribune at a plebeian legislative assembly. So by the late Republic, praetors had acquired at least in theory some degree of negative power over the main source of the state’s legislation. Indeed, both before and after Sulla, the disposition and availability of the sitting consuls was important in determining the workload of the individual praetors in a given year. When the consuls were unable or unwilling to see to a particular task, a praetor or praetors might be ordered to step in. For example, in 75 the pr. urb. C. Licinius Sacerdos and his praetorian colleague M. Caesius assisted the consuls of the year in the massive task of repairing temples in Rome; the next year, the urban praetor C. Verres and his colleague P. Coelius had to finish the task unaided. In 61, both consuls were available when P. Clodius was brought to trial in a special quaestio concerned with profanation of the Bona Dea ceremony, but apparently neither wanted the invidia that this trial of a powerful nobilis was bound
Conclusions 631
to generate, whatever its outcome. So they let it devolve on a praetor, who had to take the task. Sometimes both the consuls and praetors stepped aside and let a tribune fill the resulting vacuum. In the year 123, apparently no consul or praetor wanted to take responsibility for a senatus consultum that overturned an action by a highborn praetorian commander for Spain; so the tribune C. Gracchus ended up convening at least one session of the Senate that dealt with this matter. Starting in the early 90s, we see urban praetors offering progressively more extravagant Apolline Games: indeed, it was probably L. Cornelius Sulla in 97 who started the trend. The extravagance rose to unprecedented levels in the mid-60s— but it imparted to the office no corresponding increase in prestige. Not long after 78, one notes that the two senior praetors have dropped out of the dating formula in senatus consulta, and do not reappear in that context for the rest of the free Republic. The habit of granting consular and praetorian ornamenta (first securely attested for the early 60s) went some way toward cheapening the office further. Then there was the danger factor. By putting so many magistrates in the city, Sulla heightened the danger of future conflict between consuls and praetors, between members of the same praetorian college, and between praetors and lower magistrates. What mitigated this decision is that the whole political system of the Republic was predicated on a basic understanding: its magistrates should restrain themselves from exercising their formidable powers to the fullest extent. That, indeed, most choose to do, to a remarkable degree, right down to the late 50s. The one outstanding exception is found for the year 95, when the consul Q. Mucius Scaevola vetoed the senatus consultum that granted his consular colleague L. Licinius Crassus a triumph for fighting some undistinguished tribes in Cisalpine Gaul. Occasionally, we see consuls using their maius imperium against individual praetors. M. Aemilius Scaurus as cos. 115 by edict forbade anyone from approaching a certain city praetor to hear cases at law. In 91, the consul L. Marcius Philippus seems to have taken the step of forbidding any praetor from calling the Senate and putting proposals by the tr. pl. M. Livius Drusus to a vote. The consul Mam. Aemilius Lepidus in 77 is said to have “abrogated” the jurisdiction of a praetor who granted possessio bonorum to a eunuch; a senatus consultum followed that backed the consul’s decision and (apparently) barred the eunuch from asking other praetors for relief. In late 57, the consul Q. Caecilius Metellus Nepos used his maius imperium against the urban praetor L. Caecilius Rufus to save P. Clodius (who was Nepos’ half brother) from coming to trial de vi. However, on one occasion (the year 67), we find a remarkable show of praetorian solidarity in the face of a distinctly “uncollegial” show of consular power. When the cos. M.’ Acilius Glabrio smashed a praetor’s curule chair for not rising in his presence, this praetor (who demonstrably did not have the urban jurisdiction) and his praetorian colleagues thenceforth gave only judgments de plano. For the later Republic, we do not have a single secure instance of a praetor in the city using his imperium to veto a colleague’s actions, even in the realm of civil law. Litigants who did not like a praetor’s actual decision customarily appealed to a tribune of the Plebs, sometimes a consul. When Cicero says the praetor Piso “intercessit” in Verres’ civil law cases, he probably did nothing more than to accept the
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petitions his colleague had refused. That was indeed a provocative intervention, though Cicero in his description is disingenuous in making it sound like an actual veto. In cases where magistrates fail to show self-restraint, it is the Senate or tribunes which might step in, usually in a reactive way. That sometimes even gave rise to a law circumscribing such and such a behavior. (For a praetor to reverse the ruling of a predecessor was a different matter, and happened with relative frequency— but was still felt to be a blow to one’s dignitas.) So far, the evidence suggests that praetors in the city enjoyed no less civilized treatment after Sulla pushed through his reform than before his dictatorship. All the same, it is abundantly clear that the increase in number of praetors and the expectation that they stay in Rome made the city less, not more, safe. That comes across especially in the electoral comitia. Sulla surely knew that to introduce two new praetors at once, for a total of eight, would directly cause increased competition in the consular elections. That was the reason why the Senate had let the number of praetors stand at six for so long, and precisely a century earlier even tried reducing the number to four in alternate years. For Sulla suddenly to reduce the odds of a praetor eventually reaching the consulship from one in three to one in four was one of the high costs of his political settlement, only superficially mitigated by his concurrent introduction of new ambitus legislation. An examination of individual careers reveals that Sulla’s additions to the number of praetors and reform of the cursus created a “winner-takes-all” atmosphere at the curule elections. An ex-praetor had to win the consulship quickly or run a real risk of being shut out permanently. The frequently delayed and disrupted consular elections of the last generation of the Republic, and the steady stream of major ambitus laws (each with progressively sharper penalties) show well the now thoroughly overheated atmosphere. In the unusually long interregnum of 53 b.c., Dio Cassius tells us all the tribunes even suggested that instead of the election of consuls there should be a reinstitution of the consular tribunes (not seen since 367), “in order that there might be more magistrates.” The heightened intensity of the consular elections in this period seems to have impacted also the praetorian ones—somewhat paradoxically, since Sulla had expanded the college of praetors. The record suggests that ex-tribunes and (especially) ex-aediles had to advance to one of the eight places quickly or face the prospect of losing out altogether. References to prosecutions of praetorian candidates for ambitus are frequent enough, and disruptions at praetorian comitia could be quite violent (for example, those of 55 b.c.). Sulla’s scheme had another major built-in structural flaw. Oddly, Sulla allowed that an ex-consul or ex-praetor could refuse a territorial province after he had received it in the (requisite) promagisterial sortition. Sulla himself, as cos. II 80, drew but never took up Cisalpine Gaul ex consulatu, seemingly oblivious to the precedent he was setting. Many consuls and (at least starting in the early 60s) praetors later seem to have followed his lead. By way of example, just two of the consuls of the years 63 through 59 can positively be shown to have reached a territorial provincia in the year following their consulship. Indeed, so many individuals in the last two decades of the Republic declined a command that Pompey, as cos. III in 52, introduced a new system of administration that (apparently) was meant to run
Conclusions 633
for five years just on the strength of those men. He also made the acceptance of a province (after an interval) mandatory for ex-consuls and ex-praetors. Post-Sullan Additions and Reforms One outcome of Sulla’s reforms is that they spurred yet another round of expansionism (remember the years following 146 b.c.) by the Senate. Soon after the repairs of 81 to the administrative system, the Senate took on new responsibilities but did not increase the number of higher magistrates. In Rome, it allowed the formation of three new standing courts, namely, a quaestio de vi (perhaps as early as 78 but certainly by 63), that of the lex Papia (65) on claims to citizenship, and another quaestio established by the lex Licinia (55) on electoral associations (sodalitates). Praetors (as well as iudices quaestionis) are attested as presidents for the first two of these courts; for the quaestio de sodaliciis we find only praetors. By 62 b.c., the Senate also had added four new territorial provinciae that required someone with imperium. There is Bithynia/Pontus (organization begun in 74, with the first regular commander taking it up for 61 or 60), Crete (annexed and organized 68–65), Cyrene (a Roman province by 63), and finally Syria (annexed and organized in the years 66–62, and placed in the praetorian sortition for 61). Yet the Senate in our period went no further than fourteen regular territorial provinciae. True, in 58 b.c., the Senate annexed wealthy Cyprus; but from the start it planned that the island be attached to the preexisting province of Cilicia. Though the notion of annexing Egypt had some prominent advocates and a good measure of popular support, it never was allowed to come to pass in this era. From time to time, we see politicians float various schemes to extend imperium past its traditional limits. These seem more like attempts to provoke than genuine reforms. Cicero in 63 implies that Rullus wanted to give his agrarian commission imperium both domi and militiae for five years. At the very beginning of the next year the tribune Q. Metellus Nepos promulgated a bill to allow the pro consule Pompey to retain his military imperium within the pomerium to deal with the Catilinarians. In 57, a tribune proposed that Pompey as grain commissioner hold imperium in the provinces which was maius against that of their regular governors. To these examples we can add also that tribunician proposal of 53 on the reinstitution of the consular tribunes, “in order that there might be more magistrates.” For genuine attempts at reform, we have to wait almost until the very end of our period. The consuls of 53 set about to remove the protection from prosecution (and opportunity for immediate enrichment) that a promagisterial command had always afforded; they procured a senatus consultum that mandated an interval between magistracy and promagistracy for ex-consuls and ex-praetors. It was Pompey who, as cos. III 52, implemented that reform. He also got rid of the Sullan loophole that allowed the refusal of consular and praetorian provinciae, and scrapped the system of sending both ex-consuls and ex-praetors to territorial provinces with enhanced (i.e., consular) imperium. Rather, Pompey made praetorian imperium the standard grade for provincial governors. Under his scheme, only ex-consuls were to receive consular imperium; ex-praetors got praetorian.
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The Sullan System in Practice I How did the Senate manage to staff this ever-growing system? First, it counted on the innate flexibility of praetors and their provinciae in the city. All praetors could hear cases at law—evidently regardless of the citizen status of the litigants—using or (if necessary) adapting existing civil law procedures. There is no reason not to think that, in a pinch, any praetor could fill in for another in a criminal court. For a good demonstration of this “collegial” aspect of the praetorship, note the provision of the lex Plautia Papiria (88 b.c.) that a professio for citizenship could be made before any praetor. The Senate did set limits on special quaestiones in the city which might require a praetor as president. We know of only two such trials (the incestum processes of 73 and 61) down to 52 B.C., a year when Pompey as cos. III set up extraordinary courts for vis and ambitus. Combination of city provinciae also helped: we find that for the urban and peregrine jurisdictions as early as 78. Certainly by the 50s, individual members of a praetorian college are routinely found taking on duties that went beyond their proper city provinciae. Consider, for instance, obligations in hearing civil law cases. It seems to have been somewhat common in this era for a petitioner who had been rebuffed at one praetor’s tribunal to try his luck at another’s; we have notices to that effect for the years 77 and 74. (That in turn is another proof that the urban praetor did not monopolize civil jurisdiction.) Furthermore, for certain years we have chance notices that more than one praetor was hearing cases de repetundis (59), de ambitus (59), or de sodaliciis (54). In that same decade, praetors who had a criminal quaestio as their provincia sometimes show up as jurors in other standing courts. They are also attested in the civil law sphere; meanwhile, praetors in the “civil” jurisdictions saw to some criminal trials that fell outside the scope of the permanent quaestiones. The institution of the iudex quaestionis also might have seen an expansion over time in the post-Sullan period: three are attested in just the court inter sicarios and de veneficiis for 66. Sulla himself retained the use of commands in magistratu. For praetors, the years 81 and 80 alone saw perhaps a half a dozen uses of this expedient, and many more were to follow in the 70s (particularly in the war against Spartacus) and 60s (to guard the coast of Italy against pirates in the early 60s, in the Catilinarian crisis of 63, and against Catiline’s alleged sympathizers in 62). For one praetor of 63, Cicero as consul saw to the passage of a senatus consultum that led to a bundle of special powers, including enhanced imperium, which Cicero implies was a rare distinction for a sitting magistrate. However, no more than two city praetors are found operating outside Rome in any given year of the post-Sullan period; and that may have been deliberate policy. In addition, ex-magistrates might be diverted from their proper provinciae in an emergency (as in the Bellum Lepidanum), or put to work while in transit to or from their territorial provinces. And we do have a few examples of a permanent lateral transfer of a commander from one provincia to another: a pr. 79 who moves from Gallia Transalpina to Hispania Citerior, a pr. 59 transferred from Asia to Cilicia. For Italy, in time the Senate even put to work commanders cum imperio waiting outside the city for the vote of a triumph. In truth, by the 60s and 50s, triumphs
Conclusions 635
were getting very troublesome to obtain. Here some background will be helpful. In our (admittedly defective) record there is no imperator who returned to Rome from the time of Sulla’s dictatorship down into the mid-60s known to have entered the city without an ovatio or triumph. But after ca. 66 down to the end of our period, the only commander known to have triumphed without obstruction was Pompey from his great eastern command, in 61. Some of the hopeful imperatores had to wait for periods that might stretch to five years, while others just gave up. It would be useful to know to what extent the Senate exploited this odd situation and gave these vulnerable commanders chores in Italy. Certainly at the beginning of 49, the Senate takes for granted the service of those cum imperio outside the city in the impending conflict with Caesar, even for posting overseas. But these expedients are overshadowed by three others—the increased use of legati, special commands to privati, and softening attitudes toward repeated prorogation. On more than a few occasions in the post-Sullan period, we see quaestors or legati having to hold down major provinces for considerable stretches of time (up to a year or even more) after the departure or death of a commander. We find this particularly for the Spains at the start of and then following the Sertorian War. Some holders of imperium even use legati to command a province wholly in absence while in Rome: we see this for the cos. 67 C. Calpurnius Piso and Transalpine Gaul, and for the cos. II 55 Cn. Pompeius and the two Spains. There may have been an old precedent for this—a praetor of 167 for Sardinia detained for special tasks in the city—but if so, there is little trace of its use in the century that followed. In the post-Sullan era, the Senate freely allowed the creation of special commands for privati and sub-praetorians, even for territorial provinciae. Here Pompey takes the prize. With the Senate’s approval, in 77 he received consular imperium for Hispania Citerior, which he retained until triumphing in late 71. Soon Pompey gained a commission in 67 against the pirates, and then another in 66 (yet mooted as early as 74) to fight Mithridates, over whom he triumphed in 61. In early 60, a senatus consultum seems to have empowered ex-consuls to put down a Gallic tumultus. There were special grants also for positions in Rome. In 52, Pompey as consul secured imperium for at least two nonmagistrates—a consular and a very senior praetorian—to preside over special quaestiones for ambitus and vis in the city—despite the fact that regular courts for these crimes existed and were running. We find also in some years the phenomenon of “negative” commands. Now, sometimes a provincia was made praetorian to keep it away from a dangerous consular. For instance, in 61, Cicero and others had legitimate fears as to what Pompey’s protégé, the cos. M. Pupius Piso, might get up to if he had Syria as a military arena, and they brought it about that the provincia be declared praetorian instead. (The same fears obtained when the cos. 58 A. Gabinius wanted the provincia for 57, but he could not be stopped.) This principle could be extended downwards. Sometimes the Senate skipped over the consuls and praetors and used a subpraetorian—or even a junior privatus—for an important task, with a special grant of imperium to match. The idea was to avoid the the risk of a highranking magistrate exploiting a certain position for his own material and political benefit. We see that ploy used for a money-
636 The Praetorship in the Roman Republic
collecting expedition to Cyrene in 75 and for the annexation of Cyprus in 58. A similar scheme was mooted in 65 for the annexation of Egypt. Interference by special commanders in overseas praetorian provinciae was in fact a hallmark of the age. The trend starts with the special provincia of M. Antonius in 74 and continues through Pompey’s extraordinary commands of 67 and 66 under the Gabinian and Manilian laws. In 65, the Senate dispatched Cn. Calpurnius Piso as a quaestor pro praetore to Hispania Citerior. The land bill the tr. pl. P. Servilius Rullus tried to pass at the start of 63 is another example of this phenomenon. In 57, when Pompey received a special grain command pro consule for five years, he was voted the right also to appoint (at least) fifteen senatorial legati to help him in his task, to be distributed throughout the Mediterranean. But eventually, there was a backlash against extraordinary commands in general. When faced with a Parthian crisis in the fall of 51, the Senate entertained a range of military solutions—but no one advocated sending a privatus to do the job, and that despite the reluctance of the consuls of the year to fight this dangerous enemy. Then there is prorogation. After Sulla, with ten regular territorial provinciae and (in theory) two ex-consuls and eight ex-praetors available for dispatch, one would expect short commands (one, occasionally two years) to be the norm. The reality is that multi-year commands that surpass even those of the period 123–91 b.c. appear immediately in the 70s. Ex-consuls and the privatus cum imperio Cn. Pompeius in his various commissions (77–71 in Hispania Citerior, 67 against the pirates, and 66–62 in the east) are responsible for the longest tenures, that is, five years and up, mostly in the context of major wars. Yet the Senate allowed repeated prorogation in other situations: a consular commander for Cilicia who fought from 78 to 74, and a praetorian commander (L. Afranius, apparently pr. by 76) for Hispania Citerior prorogued perhaps eight or even more years, maybe eventually with responsibilities also in Gallia Transalpina. We have a good number of secure instances of tenures of three (especially) or four years of a wide range of provinces. Praetors account for all but six of the sixteen certain or probable cases of these medium-to-long commands—another marked departure from the practice of the period down to 91 b.c. The Senate’s handling of each territorial commitment varied in the late Republic. But it is remarkable to see how few territorial provinciae show evidence of a sustained policy of annual succession. In the case of Sicily we find one-year commands for the years 80, 77 and 74, but none beyond—despite Rome’s experience of Verres and the general political importance of the island as a grain exporter to Rome. There are one-year commands attested for Hispania Citerior for 78 and 59, and Ulterior for 80 and then 62–61. But most of those seem due to exceptional circumstances (military defeats in 80 and 78, premature departures in 61 and 59). For Africa, Cilicia, and Gallia Transalpina, no commands of a single year are securely attested from 80 to 52. Gallia Cisalpina had an ex-consul hold it for one year in 74; other known commanders were prorogued. Asia is the only provincia that escapes routine prorogation: we find one year commands in all or all but one of the years 66–62, then 57–56. However, for the mid-50s we can detect an attempt to tighten up the system as a whole (see below).
Conclusions 637
It is not long after Sulla’s dictatorship that the Senate starts positively guaranteeing multi-year commands to certain individuals. Starting with the lex Gabinia of 67 that gave the privatus Pompey a command for three years against the pirates, we occasionally find tenure of a certain commission or provincia guaranteed for stretches of more than one year. One remembers the commissions of IIIviri with imperium for three years active in south Italy in the 190s. But it was a different matter to allow actual magistrates of the Roman People fixed multi-year commands ex consulatu, that is, to hold regular provinces that were merely troubled. Starting in the 50s, we see consular imperium handed out in five-year stretches to Caesar, Pompey, and Crassus. The most unusual of these multi-year grants was the Spanish command Pompey received as cos. II 55—since he did not like the notion of actually going to Iberia. “His plan,” says Dio, “was to let legati subdue Spain while he took in own hands affairs of Rome and Italy.” And that is what he did, allowing two senior legates to hold Spain down through 49 b.c. Delegated Authority in the Later Republic In truth, the idea of a commander holding a province in absentia was not quite new. More than a century earlier, as we have seen, a praetor of 167 may have done the same thing for Sardinia. C. Valerius Flaccus (cos. 93) must have allowed his subordinates a good deal of independence during his long tenure (a dozen or more years) in the two Spains and Gaul, as we know some other commanders did who held “tandem” provinces such as his. C. Calpurnius Piso exercised control over Transalpine Gaul even as cos. 67 in Rome. In sum, Pompey’s notion to govern the Spanish provinciae through two senior legati strikes one merely as an exploitation of a variety of preexisiting administrative precedents. One can readily understand the general appeal of legati to a Roman commander. Even if a legate does all the work for a major victory, his superior gets the imperatorial acclamation. Pompey had a long history of letting legati do a good part of the campaigning in his ambitious commands. The commission in 67 b.c. against the pirates is just the most outstanding example. There, he secured imperium for each of a large number of legates (here again, some quite senior in status) and then set them up in independent quasi-provinciae. The campaign against Mithridates that followed provides more instances of Pompey’s subordinates seeing to some unusually substantial chores. In this, he had plenty of precedents, and there is no shortage of subsequent examples, too. Yet it was Pompey’s command in Spain in the second half of the 50s that was the pathbreaking one, and the clear source for the system of legati Augusti pro praetore under the Empire. Delegation is one area where over time we can detect a definite broadening of the powers of a magistrate in his provincia. By the last third of the second century, it is clear that a consular commander could delegate imperium to a subordinate while himself remaining in his military provincia. When we get to the point where it is accepted that a commander does not have to step foot in his provincia to exercise authority in it, we are getting quite far away from the original conception of the term. A surprising thing happens after Pompey in 52 modified Sulla’s system by completely divorcing the magistracy from the promagistracy and then restoring praeto-
638 The Praetorship in the Roman Republic
rian imperium as the standard grade for praetorian governors. We now find for the first time men who are pro praetore delegating imperium at their own level. In the late Republic, no one seems to have been able to explain adequately why a praetor could not hold praetorian elections. So perhaps the augurs did not bother to object to this aspect of Pompey’s reform. There was a certain logic to it, after all. If a consul could personally give out imperium in his provincia, why not a praetor who had consular imperium? And if a praetor pro consule was entitled to do so, why not a praetor—or rather (under Pompey’s system) an ex-praetor who was pro praetore? (Caesar took Pompey’s measure one big step further, by letting two legati pro praetore actually celebrate triumphs in the year 45.) Once a pro praetore starts delegating his official power, we are far away from the idea that imperium was the full power of the old kings of Rome. The invention of minus imperium in the fourth century—followed later by innovations such as prorogation, grants of imperium to nonmagistrates, “enhanced” imperium for praetors, and the like—made possible Rome’s Republican empire. But these circumventions had their own built-in contradictions. Again, rather than think too hard about these paradoxes, the Romans exploited them, particularly so in the last generation of the Republic. The Sullan System in Practice II From the Senate’s perspective, combination of provinciae—especially when combined with prorogation—turns out to be the most important way to make ends meet. Once P. Scipio Aemilianus had taken Numantia in 133, over the next few decades the Romans at times may have felt confident enough to combine the two Spains. Indeed, it is just possible that a legatus was the sole commander of Hispania Citerior (so Appian implies) in some or all of the years 105–101 b.c. C. Valerius Flaccus (cos. 93) held the two Spains as a combined provincia for many years (see above). And C. Annius, as pr. 81 a member of the first “Sullan” praetorian college, certainly had charge of both Spanish provinces (in his case for one year only). However, we do not see the Spains combined again into a single provincia until the unusual command of Pompey as cos. II 55, who governed both Citerior and Ulterior through legates. In the post-Sullan era, the Senate most readily made the two Gauls into a joint provincia. For praetors, more exotic combinations are hard to find, though it is possible the praetorian commander L. Afranius combined Hispania Citerior with Transalpine Gaul at some point in the years 71–68. Consular commanders were given more expansive possibilities. L. Licinius Lucullus (cos. 74, then pro cos. into 67) against Mithridates at one point had Asia, Cilicia, and Bithynia/Pontus as a joint provincia. So did Cn. Pompeius as a privatus with consular imperium in the years 66–62; remember also his later tenure of the two Spains. C. Caesar had the two Gauls with Illyricum from 58 to 50. These three men served as the functional equivalent of dozens of individual annual commanders. Extended multiprovince commands certainly offered the Senate a measure of administrative convenience. One of their many troubles, however, is the illusion they gave of efficacy in the larger system. Perhaps that helps explain why Rome in
Conclusions 639
the 60s alone confidently annexed Crete, Cyrene, and Syria. Conversely, when no megacommands were in progress—as in the years 61–59—we see praetors in widely disparate provinces (even Asia) having to serve long terms. In the years 58–55 the Senate does seem to have aimed at regular succession across the system (so the evidence for Sardinia, Macedonia, and Bithynia/Pontus suggests). But the policy proved impracticable to maintain. We find long commands for Cilicia (two ex-consuls covering the years 56–51) and Asia (where an expraetor remained for the years 55–53); Syria was without imperium from the latter half of 53 down through most of 51. Pompey in his reforms as cos. III 52 (most importantly, a statutory minimum interval between magistracy and promagistracy) clearly wanted to restore short commands for Rome’s provinces. Yet even his scheme implied routine prorogation: the number of magistrates with imperium available each year theoretically stood at ten (in practice slightly less), while the total of territorial provinciae to be staffed remained at fourteen. So despite Sulla’s far-reaching reforms, signs of stress appear almost immediately in the Roman administrative system, already in the early 70s. By the mid-50s the entire system was again in danger (both from a domestic and provincial perspective), which prompted reforms by the Senate and Pompey in 53–52. In short, the new total of eight praetors—which resulted in increased competition for the consulship, bringing all sorts of concomitant ills (e.g., vastly increased electoral bribery and provincial extortion)—turned out to be an important factor in the dissolution of the Republican political system. Without going further into the symptoms of the decline of the Republic, I will emphasize that there were men in the mid-second century who could foresee the problems connected with the rise in the number of praetors. The cos. 181 M. Baebius Tamphilus, Cato the censorian, and the unnamed magistrates and senators who in 146 brought about the decision not to increase the number of praetors: each had a firm grasp of the social realities of excessive electoral competition at the top. Questions of city and provincial administration aside, the Roman political system could barely tolerate six praetors elected each year. Here is where the radical tribunician proposal of 53 b.c. fits in, that there should be a reinstitution of the consular tribunate. The aim was to remove the bottleneck caused by eight praetors, but only two consuls. Soon after this, Caesar, as dictator, indeed did take steps to increase the number of magistrates—measures that Augustus later made redundant by his reform of the whole system.
Additional Notes
I. Personal Delegation of Imperium in the Period 218–166 There are four known examples of a consul delegating praetorian imperium to a nonmagistrate in the Second Punic War (the earliest period of Roman history for which we have a fully documented and reliable record), the first occurring in 217. In that year, the consul Cn. Servilius Geminus appointed a C. Centenius pro praetore in the field to bring a detachment of cavalry to his consular colleague C. Flaminius; Hannibal, however, met and destroyed this man and his force. (On Centenius, see Plb. 3.86.3; Liv. 22.8.1 pro pr. ; Zonar. 8.25.9 strathgov~. App. Hann. 9.37 makes him a privatus. The grant of imperium has been questioned, yet without good reason—see below.) In the following year, Cn. Servilius Geminus and M. Atilius Regulus, coss. 217, remained in command of an army after their term of office had expired. Throughout the spring and early summer of 216, the two ex-consuls were based in Apulia, where they kept an eye on Hannibal. What was their status? Livy (22.34.1) tells us that at the end of 217 “consulibus prorogatum in annum imperium.” Polybius (3.106.2) is more detailed: proceirisqevnte~ uJpo; tw`n peri; to;n Aijmivlion [i.e., L. Aemilius Paullus, cos. 216] ajntistravthgoi kai; paralabovnte~ th;n ejn toi`~ uJpaivqroi~ ejxousivan ejceivrizon kata; th;n eJautw`n gnwvmhn ta; kata; ta;~ dunavmei~ (“They were made pro prr. by Aemilius, and, taking command in the field, directed the operations of their forces as they saw fit”). Here oiJ peri; to;n Aijmivlion is simply a periphrasis for Aemilius himself (cf. LSJ s.v. periv C.1.2), as is clear from what immediately follows in 3.106.3, cf. 4. In the other three occurrences of the term ajntistravthgo~ in this author, it means pro pr. at 8.3.1 and 15.4.1, and pro cos. at 28.3.1. However, this last passage, from the Constantinian excerpt De Legat. Gent., uses both ajntistravthgo~ and ajnquvpato~ to describe the status of A. Hostilius Mancinus, cos. 170 and pro cos. 169 (Plb. 28.3.1 and 5.6; cf. Liv. 43.17.9); F. W. Walbank (Commentary III 329) makes a plausible case that the title ajntistravthgo~ 640
Additional Notes 641
is not the epitomator’s wording, but Polybius’ own. Nevertheless, Walbank (Commentary I 435; cf. II 444) unhesitatingly takes our passage (3.106.2) to mean “the consuls of 217 were appointed proconsuls,” and so coordinates it to Livy’s notice, thus following the majority view of their status in 216 (see B. Schleussner, WJA 4 [1978] 221 n. 27, with earlier bibliography). This cannot be right. The mention of L. Aemilius Paullus appointing these men to their positions (which Walbank ignores) naturally suggests personal delegation of praetorian imperium—the only level at which a consul was qualified to make such a grant (see 2.1.2 above). What is more, Polybius (3.106.2–5) shows that the new pro prr. were under the consuls’ orders. L. Aemilius Paullus is said to have ordered Cn. Servilius to avoid general engagements and to stick to skirmishing, in order to train his inexperienced recruits. We should conclude from Polybius’ detailed notice that Livy misreports the nature of the prorogation for the coss. 217. The third example is Q. Pleminius, appointed pro pr. in charge of the garrison at Rhegium and then Locri in 205 by the consul P. Cornelius Scipio (Africanus) (Liv. 29.6.9, with 6.1.3 above). (It is possible also that the consul’s brother L. Cornelius Scipio received delegated imperium that same year to hold Messana— and the Roman forces there—while Publius was away aiding Q. Pleminius at Locri: cf. Liv. 29.7.2.) The last securely recorded instance in this period is L. Baebius, who in 203 was left ajntistravthgo~ in charge of the Roman camp in Africa by P. Scipio, now pro cos. (Plb. 15.4.1). Mommsen (St.-R. I3 678–685, esp. 678 n. 1; 681 n. 4) refused to believe that a privatus who received delegated imperium could exercise that command if his superior was also in the field (see further below; cf. ch. 14 n. 126). On this basis, Mommsen reckoned that C. Centenius must have received a special grant of imperium from the pr. urb. of 217. B. Schleussner (WJA 4 [1978] 218–219, strongly supporting Mommsen’s view of delegation in the field) went one step further, and altogether dismissed the notices of Centenius’ status as a holder of praetorian imperium. (On the other hand, W. Kunkel in Staatsordnung 285 posited that Centenius already had imperium before his special commission—but that only begs the question.) Mommsen (St.-R. I3 678 n. 1 and 681 n. 4) also proposed that Cn. Servilius Geminus and M. Atilius Regulus in 216, and L. Baebius in 203, were only legati. A. Giovannini (Consulare Imperium 62 n. 14) follows Mommsen’s general view, and regards both coss. 217 as legati in 216. As for the case of the two consuls of 217, here, surely, actual grants of imperium must be meant, as Polybius makes clear in his use of the term ajntistravthgoi, and his explicit description of their competence. Most probably the Senate wanted to make sure their commands were subordinated to the consuls of the year. As pro coss., holding imperium consulare militiae, they probably would not be technically subordinate, or might not think so. C. Centenius and L. Baebius do not raise any real difficulty. Their cases are confirmed by the similar command of Q. Pleminius (not mentioned by Mommsen in his discussion of “Stellvertretung”), as well as some certain second century examples, discussed in 9.4.4. We cannot tell whether delegation of imperium to a nonmagistrate by a consul was permissible when both were in the city. It would be useful to know whether the consul P. Aelius Paetus in 201 secured a lex de imperio for M. Valerius Laevinus
642 The Praetorship in the Roman Republic
before he set off to Greece (in early consular 200), or delegated praetorian imperium to him (Liv. 31.3.2). Mommsen (St.-R. I3 681 n. 1) seems to have envisaged delegation in this case; below I argue that the passage of a lex de imperio in this case is more likely. Let us now move to another thorny problem having to do with delegation. It has long been an article of faith among scholars that the urban praetor—like the consuls—was able to delegate his imperium. Mommsen (St.-R. I3 681f, also II3 652 n. 2) firmly held held that belief; for later adherents to this notion see, for example, W. F. Jashemski, Origins 37–39; H. Kloft, Prorogation 58 n. 48; A. Keaveney, Rome and the Unification of Italy (London 1987) 134; J. S. Richardson, JRS 81 (1991) 3; cf. I. Buti, Index 19 (1991) 254 (all holders of imperium can delegate it). Mommsen stated the general underlying principle: “[F]requently a command outside the city which has fallen vacant is entrusted to the urban praetor, only so that he—as a commander in chief who is necessarily retained in Rome—might exercise it through a representative (‘Stellvertreter’)” (St.-R. I3 681f). This in itself might be believed, but it does not follow that the “Stellvertreter” would have imperium. I have argued (especially in 2.1.2, and also above) that a consul could not delegate imperium at his own level, namely, consular imperium; so it would be most surprising if the pr. urb. could delegate praetorian imperium. Mommsen adduced four passages to support his thesis, to which we shall now turn. T. Manlius Torquatus in 215 When the praetor for Sardinia, Q. Mucius Scaevola, had fallen ill, “the Senate decreed that Q. Fulvius Flaccus [pr. urb. 215] . . . should enlist . . . and see to the transport of a legion to Sardinia at the first available opportunity, and he should send whomever he thought best cum imperio to carry on the war until Mucius should recover (ut . . . mitteret . . . cum imperio quem ipsi videretur, qui rem gereret quoad Mucius convaluisset)” (Liv. 23.34.13–14). It is difficult to tell from Livy what the actual procedure was by which imperium was conferred in this instance. Here the praetor may merely be making a nonbinding designation for the comitia formally to appoint. The choice of the pr. urb., T. Manlius Torquatus (cos. 235, II 224), received praetorian imperium: Livy later (23.40.1) actually calls him praetor. After delivering Sardinia from a military emergency, Manlius returned to Rome: “He reported to the Senate that Sardinia was completely subjugated, and turned over the tribute to the quaestors, the grain to the aediles, the captives to the pr. Q. Fulvius” (23.41.7). Mommsen sees a legal reason for this last item: Manlius hands the prisoners—namely, the noble Carthaginian officers (cf. 23.41.2)—to Q. Fulvius because he had fought under the urban praetor’s auspicia. This is not a possible explanation (thus rightly Kunkel, Staatsordnung 19 n. 48). T. Manlius Torquatus, on his return, reported directly to the Senate, not to “his superior”; and he clearly delivered each part of what he had brought back to the competent magistrates—again, not everything to “his superior.” The urban praetor, as the chief magistrate with imperium in Rome in the absence of the consuls, regularly saw (e.g.) to the incarceration of important or dangerous prisoners, just as quaestors looked after money and aediles looked after imported wheat. For this function of the pr. urb. see 39.41.7 (184) and 45.42.4–5 (167); cf. ch. 9 n. 36.
Additional Notes 643
M. Valerius Laevinus in 205 “The task was assigned [sc. by the Senate] to the pr. [urb.] Cn. Servilius [Caepio], if he thought it to the advantage of the state, to order the two urban legions to be brought up from the city, having given imperium to whomever he saw fit (duas urbanas legiones imperio cui videretur dato ex urbe duci iuberet). M. Valerius Laevinus [cos. 220, II 210] led these legions to Arretium” (Liv. 28.46.13). “Imperio . . . dato” seems to show that Livy shared Mommsen’s view, that imperium was conferred by personal delegation: it also implies that Livy thought this to be the case in the first passage cited above. By now, we have often seen how indifferent Livy is to details of procedure (see in general 1.2.1 above). Here we may have a compressed notice of what actually was a four-part process. First, the decision of the Senate to entrust to the pr. urb. the matter of choosing a commander to bring the legions to Arretium; second, the choice of M. Valerius Laevinus by the pr. urb.; third, the granting of imperium to Laevinus in some unspecified way; and fourth, the orders of the pr. urb. to Laevinus. L. Oppius Salinator in 192 “The Senate . . . decreed . . . that M. Fulvius [Centumalus] the praetor [urbanus] should send a fleet of twenty ships to defend the coast of Sicily and that he who led this fleet should be cum imperio—L. Oppius Salinator led it, who had been plebeian aedile the previous year” (Liv. 35.23.4 and 6–7). This short notice seems even more compressed: it contains the decision of the Senate that a fleet be prepared, the order to the pr. urb. that he fit out these ships (a common task for the city praetors, on which see Additional Note VI), and that the pr. urb. also choose a commander who would have imperium. How he would have it, we are not told: there is no implication in this passage of a delegation of imperium. Tribuni militum in 171? “The task was given to the praetor [urbanus] C. Sulpicius Galba of levying four city legions . . . and of choosing from the Senate four military tribunes to lead them (ut . . . iis [sc. legionibus] . . . quattuor tribunos militum ex senatu legeret, qui praeessent)” (Liv. 42.35.4). There is no explicit mention of a grant of imperium in this item; these men may simply have been military tribunes with special powers ex S.C. Cf. Liv. 41.5.8, the dispatch of the tr. mil. C. Cassius (surely Longinus, cos. 171) to lead a legion to Ariminum in 178 (see Additional Note IX). There, too, we get no mention of a grant of imperium. From these four examples Mommsen (St.-R. I 681 n. 6; II 652 n. 2) surmised that five other examples of “delegation” by the pr. urb. may be alluded to in Livy. Mommsen’s examples are worth citing here. T. Otacilius Crassus in 215 Livy states that, after T. Otacilius Crassus (pr. 217 and pro pr. 216) dedicated a temple to Mens on the Capitolium, “he was sent to Sicily with imperium to command the fleet” (“in Siciliam cum imperio qui classi praeesset missus”) (Liv. 23.32.20). This should not describe prorogation, but rather his dispatch as a privatus cum imperio (see 6.1.2 above). T. Otacilius Crassus is nonetheless described as praetor (Liv. 23.41.8), just like the privatus T. Manlius Torquatus in that same year (see above). But as in the case of T. Manlius, it is by no means clear what the method of appointment was.
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M. Centenius Paenula in 212 The centurion M. Centenius Paenula, “having completed his military service, was brought into the Senate by the pr. P. Cornelius Sulla and asked the Senate to give him five thousand soldiers. . . . Eight thousand soldiers were given to him, half of them citizens, half allies” (Liv. 25.19.10 and 13). It is unlikely that M. Centenius received imperium as well: he is called only “dux” by Livy. Centenius did not ask for imperium. If he had in fact received imperium, Livy is likely to have pointed up this grant, since it would have reinforced his anecdote (25.19.9–17) on the poor judgment of the Senate (Centenius was soon to be easily defeated by Hannibal). Livy thought the fact Centenius received an army at all incredible (as should we). And on the march, M. Centenius “raised a good number of volunteers from the rural areas,” almost doubling the size of his army. The whole episode—a Roman disaster involving the loss of approximately fifteen thousand men under the command of an ex-centurion—has obviously been subject to a good deal of exaggeration. That is, if any of it is to be believed at all (see De Sanctis, Storia III 2 370). It is rather strange that two Centenii met disaster in special commands within a few years (see above on the privatus C. Centenius in 217); the second of these catastrophes, the defeat of the centurion, may be annalistic fabrication. However, B. Schleussner (WJA 4 [1978] 215–222) has argued that the centurion M. Paenula had imperium (by “delegation” from the urban praetor, ignored in our sources), whereas C. Centenius in 217 (explicitly termed pro praetore and strathgov~ in our sources) did not, suggesting—implausibly—that C. Centenius’ status has been confused with that of the later centurion. C. Terentius Varro in 208 In that year, C. Terentius Varro (cos. 216) held imperium in Etruria (“cum imperio missus”) (Liv. 27.24.1). This is a simple general formulation: no procedure can be divined. Nevertheless, since Varro’s (praetorian) imperium was then extended into the next year (27.35.2 pro pr.), it seems unlikely that his original grant of imperium was by delegation. There is no certain case from this general period where a holder of delegated imperium is prorogued. L. Manlius Acidinus in 207 In his report of this year, Livy offers a vague notice concerning L. Manlius Acidinus (pr. urb. 210): “A letter then arrived [sc. in Rome], sent by L. Manlius Acidinus from the camp (ex castris)” in regard to the Roman victory at the Metaurus (27.50.8, cf. 43.9). Mommsen (followed by MRR I 296) supposed he might have held an independent command to guard the Appennine passes against Hasdrubal. No title is preserved, and his status—not to mention his method of appointment—is irrecoverable. L. Quinctius Flamininus in 198 Livy describes L. Quinctius Flamininus (pr. 199) in the year after his praetorship, “to whom the superintendency of the fleet and the imperium over the sea-coast had been handed by the Senate” (“cui classis cura maritimaeque orae imperium mandatum ab senatu erat”) (32.16.2). This notice may in fact be an instance of prorogation, as is likely from the mention of the Senate (see 8.2.1 above): that is, it is a retrospective summary of his new provincia. However, if this was a special grant of imperium, the notice refers to only the first step of con-
Additional Notes 645
ferring a command, the initial S.C. We have no evidence from the entire free Republic that the Senate could simply “hand” imperium to someone; a vote by the People should have been necessary. Two cases, not found in Mommsen’s list, come into Livy’s account of the years 173 and 172. When a locust plague hit South Italy in 173, “Cn. Sicinius, pr. designatus, cum imperio Apuliam missus” (42.10.8). As in the similar cases of T. Otacilius Crassus in 215 and C. Terentius Varro in 208 above, no specific procedure is mentioned. The other possibly relevant case is the appointment of A. Atilius Serranus (pr. urb. 173) to a special task in 172. After a levy had been conducted by the peregrine praetor, “to receive this force at Brundisium and send it to Macedonia, A. Atilius Serranus was chosen (deligitur), who had been praetor the previous year” (42.27.4). This can hardly be prorogation, since it is reported to have taken place well into the consular year. No title is preserved: it is not certain that Atilius held imperium for this task. Imperium was in fact not necessary for this duty, despite its military aspect. For example, in 212, after the pr. urb. sent a C. Servilius (Geminus, the cos. 203?) as legate ex auctoritate patrum into Etruria to buy grain, this legatus went on to relieve the garrison of Tarentum (Liv. 25.15.4–6). Legati do not need imperium. Our results have been largely negative, but telling. In not one of the eleven principal passages discussed above do we have a description of the actual delegation of imperium in the city, by (for example) the laying on of hands, conferment of a toga praetexta (see ch. 11 n. 71) or lictors, or by any other method. The phrase “mittere cum imperio”—found or suggested in three (out of four) of Mommsen’s “certain” passages (see on T. Manlius Torquatus in 215, M. Valerius Laevinus in 205, and L. Oppius Salinator in 192, above) and two (out of five) of his “probable” passages (T. Otacilius Crassus in 215 and C. Terentius Varro in 208, above)—tells us nothing, since it is simply a general formulation for the granting of a special command. This is clear, for example, from Livy’s account of the process by which C. Claudius Nero (pr. 212) was chosen as a replacement for the Spanish commander Cn. Cornelius Scipio in 211. The Senate decided that the tribunes should bring before the Plebs the question “quem cum imperio mitti placeret” (Liv. 26.2.5); Claudius already held imperium at the time of his selection (7.1.2 above). On the phrase “cum imperio” in general, which is not used for elected magistrates in their year of office, see St.-R. I3 117 n. 1; cf. St.-R. I3 683 n. 2. On mittere = mandare, see ch. 4 n. 144. It appears that an individual could receive imperium on the strength of a plebiscite, if he subsequently received a lex curiata. We should not assume the cumbersome procedure of (a) the Senate asking the tribunes to (b) procure a plebiscitum to (c) have imperium granted to the person chosen by the populus, and (d) have it confirmed by the lex curiata. It seems particularly difficult to believe that (c)—following (b)—was envisaged. After all, a praetor could have been asked to rogare populum at once. One—but only one—passage (M. Valerius Laevinus in 205, “imperio . . . dato”) does imply personal delegation by the praetor urbanus. Livy may even have
646 The Praetorship in the Roman Republic
thought this was the actual Republican procedure. But the truth must be that Livy did not really know—or care—how imperium was granted to privati when no consul was present; hence his consistently vague formulations in these contexts. It should be noted that in the four principal alleged instances of the practice of praetorian delegation (T. Manlius Torquatus in 215, M. Valerius Laevinus in 205, L. Oppius Salinator in 192, and the tribuni militum in 171), the pr. urb. acts upon instructions of the Senate. This also is true for the one instance in which a consul is employed in the city in a similar manner, in 201: “A full Senate . . . decreed, that the cos. P. Aelius (Paetus) should send cum imperio whomsoever he saw fit, to take over the fleet . . . brought from Sicily, and then to cross over to Macedonia. M. Valerius Laevinus was sent (missus) pro pr.” (Liv. 31.3.2–3). A consul, of course, could delegate praetorian imperium, and so it had been done more maiorum. On the other hand, what we may have in this passage, as well as in all the passages collected above featuring urban praetors, is simply the Senate’s use of these magistrates because of their ius agendi cum populo—and so their ability to see to the passage of a lex de imperio. (It may be relevant that Laevinus was prorogued into the year 200—to be inferred from Liv. 31.5.5 and 7—the year he actually crossed to the east.) Festus (p. 43 L, ex Paulo) points toward the general interpretation offered here in his explanation of the phrase cum imperio (found in four of the above passages on the pr. urb.—T. Otacilius Crassus and T. Manlius Torquatus in 215, C. Terentius Varro in 208, and L. Oppius Salinator in 192): it was the technical term for an individual to whom the People personally had given imperium (“‘cum imperio est’ dicebatur apud antiquos, cui nominatim a populo dabatur imperium”). A lex passed by the People (in accordance with an S.C.) must have been the standard way to confer a special command. This is clear from the negative reaction of many senators in 211 on receiving a letter from a de facto commander in Spain, “because he had written ‘[L. Marcius] pro praetore to the Senate,’ although imperium had not been given to him by order of the People nor by authority of the Senate (imperio non populi iussu, non ex auctoritate patrum dato)” (Liv. 26.2.1; here “ex auctoritate patrum” seems to stand for “ex S.C.”). Also note M. Claudius Marcellus, pr. 216 and pro cos. in 215, probably a special command and not prorogation (7.1.3 above), and P. Sempronius Tuditanus, pro cos. in Greece in 205 (Additional Note XII). Another possibility is that the urban praetor was involved only in that he presided over the passing of a lex curiata (see 1.3.4 for its military aspects) for the privatus in the Curiate Assembly. A lex curiata figures in the fullest (and only certifiably authentic) parallel to the procedure needed to confer imperium on privati, the Rullan rogation of 63. This bill provided for the election of Xviri as land commissioners and the granting of imperium to them in the comitia curiata presided over by a praetor (Cic. Agr. 2.26–32, esp. 26, with 11.8.3 and 12.4.3 above). Yet these Xviri were magistrates (Cic. Agr. 2.26, claiming that the conferment of a magistracy in this way was unprecedented). Livy (34.53.1–2), in his account of the year 194, tells of a plebiscite providing for the establishment of colonies, followed by the urban praetor’s presidency of an election on the Capitol (i.e., apparently in the comitia curiata) of two sets of IIIviri coloniis deducendis who were to hold imperi-
Additional Notes 647
um (5.4.7 and 8.4.1 above). IIIviri were magistrates of the Roman People (Mommsen, St.-R. II3 624–639). In sum, there is no strong positive proof that the urban praetor—or any holder of praetorian imperium—had the power to delegate his imperium. If it were legally possible, it is strange that delegation is never recorded for any holders of praetorian imperium in the noncity provinciae: surely at least one instance should have come up in Livy’s account of the Hannibalic War (noticed by Mommsen, St.R. I3 681 n. 5). It seems more likely that the urban praetor had responsibility only for the choice of the privatus and the securing of a special grant of imperium by a lex. The pr. urb. of course did not always have the choice of who was to be sent to a special command. The Senate left the People, or, more often, the Plebs to decide that. We see selection (not election) of commanders by plebiscitum particularly in the special Spanish commands prior to 197 (7.1.1–6). Finally, it is worth suggesting that a consular commander’s order (the verb iubere crops up frequently in these contexts) coupled with physical contact in the form of personal investiture of praetorian insignia (cf. App. Mith. 94.432, of Pompey in 67) may have formed part of the ceremony of delegation of imperium in the field. For some illuminating comments on the role of contactus in various aspects of Roman religion, see H. Wagenvoort, Roman Dynamism (Oxford 1947) 12–51 (but note the criticisms of J. Linderski, ANRW II 16.3 [1986] 2290f); J. Therasse, CEA 20 (1987) 29–52; also cf. R. Monier, Iura 4 (1953) 96–97 (role of the sagmina in the fetial rite). II. Laws Restricting Iteration and Continuatio in the Mid-Republic Was there a legal restriction before the time of the Second Punic War forbidding iteration of the same magistracy within ten years? Two or three passages in Livy might be taken to suggest it. First is Livy’s report of the lex Genucia on iteration of 342 (7.42.2), which stipulated that “no one should hold the same magistracy within ten years (intra decem annos).” This has been the starting point for all discussions of the restriction of iteration in the mid-Republic. However, in 3.3.2 I have argued that we should accept this plebiscite’s alleged provision about holding the same magistracy intra decem annos, but recognize that this was only a temporary measure that lapsed by 330; as such, it should have no direct bearing on our larger discussion regarding whether there was a ten-year “rule” on iterations in effect before 218. Second, there is the story of the election of Q. Fabius Maximus Rullianus, cos. III 308, to a fourth consulship for 297 (Liv. 10.13.8–13). In this highly dramatized passage, Fabius tries to dissuade the People from making him consul yet again by adducing a law “by which it was prohibited that the same man be reelected as consul within ten years” (13.8: “qua intra decem annos eundem consulem refici non liceret”). As Livy tells it, the tribunes immediately offered to pass a plebiscite granting Fabius a dispensation from the “laws.” The People proceeded to a vote, and elected Fabius along with his old consular colleague from 308, P. Decius Mus (who
648 The Praetorship in the Roman Republic
now became cos. III). We do not hear whether they received the dispensation that the tribunes offered. Indeed, Livy’s anecdote (using his own chronology) makes no sense as it stands. The most plausible explanation is that Livy’s source, in an effort to make a good story, ignorantly retrojected the (undoubted) later Republican institution of the ten-year interval for consuls to the beginning of the third century. A third passage of some relevance is Livy’s description of the attempt by a dictator comitiorum habendorum caussa, Q. Fulvius Flaccus, to accept his own election as consul for 209 (27.6.2–11). When two tribunes threatened to interpose their veto, Fulvius adduced a recent law, from the year 217 (translation adapted from the 1943 Loeb edition of F. G. Moore): In the consulship of Cn. Servilius, when C. Flaminius, the other consul, had fallen at Trasimene, by authority of the Senate it was proposed to the Plebs, and the Plebs had decreed that, so long as the war remained in Italy, the People should have the right to reelect as consuls the men they pleased and as often as they pleased from the number of those who had been consuls (ex iis qui consules fuissent quos et quotiens vellet reficiendi consules populo ius esset).
Fulvius also added two precedents (27.6.8): L. Postumius Megellus, who as interrex presided over his own election as consul (as cos. III for 291), and Q. Fabius Maximus (cos. suff. II 215, yet vitio creatus; III 214). Livy’s narrative, as so often, is unclear. It appears Q. Fulvius has two points to make. The first is that it is permissable to elect him. There he has a law to support him (the measure passed in 217), which the tribunes must have known. The second is that he may preside over his own election. That was his real difficulty, since there was no law, only mos maiorum, which Fulvius duly cites, going back as far as the early third century. To these examples he could have added several other earlier figures (see St.-R. I3 500 n. 1). The tribunes obviously thought the sooner that practice was stopped, the better. But they did not gain their point on this occasion; the Senate, when asked to arbitrate in the dispute, decided in Fulvius’ favor. This passage is sometimes taken to refer to the existence of a measure that had placed a prohibition on consular iteration, but that was suspended in mid-217 (e.g., J. Briscoe in CAH VIII2 [1989] 68; cf. 525; also myself in Athenaeum 67 [1989] 467–468). That particular interpretation is impossible. Months before the suspension of this statute, C. Flaminius (cos. 223) had already been returned as cos. II 217. Mommsen (St.-R. I3 519 with n. 5) thought a law prohibiting iteration within ten years indeed existed, dating its introduction to 342 or perhaps 330. Mommsen had to suppose that the (many) exceptions to this “rule” in the subsequent consular fasti down to ca. 200—when we indeed start to find the regular occurence of a tenyear interval, counting exclusively—were the result of special dispensation in times of military crisis. He pointed out that the exceptions to the ten-year “rule” primarily (though not exclusively) fall in the periods of the Samnite, Pyrrhic, and Punic wars. Mommsen’s view has been accepted by most scholars (see, e.g., Develin, Patterns in Office-Holding 13–16 and The Practice of Politics in Rome 105–118 for an elaborate defense of Mommsen’s hypothesis; also K.-J. Hölkeskamp, Historia 42 [1993] 24). A few have not been convinced. R. Billows (Phoenix 43 [1989] 112–133,
Additional Notes 649
esp. 114–118) has emphasized the large number of consuls (more than forty, by his count) who broke this “law” in the period 341–217 by iterating within ten years, several doing so in years of no apparent emergency. Billows argues that, in spite of the literary sources, the actual consular fasti have no hint of a ten-year interval for iteration before the end of the Hannibalic War. An independent examination of the basic data (which I cannot set out in detail here, but can be gleaned from MRR I) suggests that Billows must be right on this point. No matter how one reckons the actual count—with or without “dictator years,” counting exclusively or inclusively—when “post-Genucian” iterations of the consulship occur in the period 330–218, more than half the time they do so at an interval of under ten years. In all, I find sixty-four certain examples of iteration (and two uncertain cases, which I exclude from consideration—see MRR I sub annis 328 and 221). Of these sixty-four iterations, if we subtract the dictator years and count exclusively, 63 percent break the ten year “rule”; the number is reduced to 55 percent if we do not not subtract those years. Counting inclusively, the figure is 53 percent whether one subtracts dictator years or not. If iteration within ten years was ever forbidden, there must have been many dispensations—not to be lightly assumed. Though one or two would be acceptable, it is hard to believe the sheer number of ad hoc exceptions which are necessary for defenders of Mommsen’s tenyear “rule.” If a ten-year gap were mandated by law, we would expect a significant number of iterations to fall ten to twelve years after a previous consulship (i.e., as close as possible to the legal minimum). To be sure, by any of our modes of reckoning an interval of ten to twelve years is common, comprising about a quarter of our sixtyfour examples from 330 to 218 (unless we count inclusively without subtracting “dictator years,” in which case it comprises about 19 percent of the total). Yet almost all of these possible iterations at an interval of ten to twelve years are closely framed by exceptions to the supposed ten-year “rule.” For instance, it can be argued (if we leave out the possibility that C. Plautius Decianus, cos. 329, was II 328) that none of the seven consuls who iterate in the years 329–321 break this “rule.” But there is a cos. 336 who is II in 330, and all four consuls of 320 and 319 are iterating at short intervals. Or, consider the years 297 and 296, which saw the reelection of the consular pairs of 308 and 307, respectively, while a cos. 305 was II 294. However, note M. Valerius Corvus, cos. V 300 and VI 299 (albeit in that latter instance as suffectus), as well as the years 295 (the reelection of the experienced consuls of 297) and 291 (when the cos. II 294 held the office for the third time). In short, it is difficult to recognize from the actual record any standing prohibition on iteration within ten years. As Mommsen noted, consular iterations at short intervals largely fall in the periods of the major wars. This is natural, since in times of acute crisis the People would be interested in placing the best commanders possible in the field, and members of the ruling class might be less likely to object to a more experienced peer delaying their own advancement. Now, there are a few short stretches in the latter part of the fourth century and in the third century when all repetitions are at least ten years apart or where there are no iterations at all: the years 307–300, 290–279, 269–255, 240–230 (if we count inclusively), and (perhaps) 223–218. But
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that pattern, such as it is, cannot be due to legislation. In the years 366 to 341, when iteration is undoubtedly unrestricted (and there is continuous hard fighting in central Italy combined with a political struggle over control of the consulship), it does not occur in every year, or even every few years. The same goes for the period 330–218. Here the triumphal fasti provide a control of sorts, in showing that the years that show no violation of the ten-year “rule” were hardly quiet. So our conclusion must be that the absence of consular iteration at intervals of less than ten years is partly accident, and partly political reality. There was no special law forbidding it. It is just that few men managed to achieve it (one might distantly compare consules iterum under the Empire, apart from Imperial families). Eventually, iteration of the consulship was restricted in some way. Livy does not tell us the details, nor is there any reason to think he should have. Senatorial issues were (in principle) secret, and this is the type of measure that would be passed by consensus, without a highly visible debate. The Senate probably stipulated a ten-year interval—though it is just possible that they banned consular iteration altogether, except by special dispensation. The exact date for this move is difficult to ascertain. The example of P. Sulpicius Galba, cos. 211 and then II 200 (i.e., ten years apart), is probably fortuitous. There was a war against Macedonia afoot in 200, and Galba had experience in that area as a pro cos. (Additional Note XII), which amply explains why he reappears precisely in that year. But then we find P. Cornelius Scipio Africanus, cos. 205 and II 194, with no counterexamples of iteration at close intervals for decades to come: note M. Aemilius Lepidus, cos. 187 and II 175; L. Aemilius Paullus, cos. 182 and (after a repulsa: Plu. Aem. 6.8) II 168; and Ti. Sempronius Gracchus, cos. 177 and II 163. When one adds in M. Claudius Marcellus, cos. 166 and II 155 (see immediately below), these cases provide a reasonable argument for a ten-year rule. In the 150s, we find two consuls of 162 who were vitio creati iterating in 156 and 155 respectively. We can suppose they won this concession by special permission, when they argued that the augural flaw in their original election should not debar them from reseeking the office before they were too old. In addition, M. Claudius Marcellus, cos. 166 and II 155 (a proper interval) became cos. III in 152. This has led one scholar (R. L. Calvert, Athenaeum 39 [1961] 22–23) to suggest that there was no prohibition on reelection after the second term. Rather, Marcellus, too, must have won the Senate’s dispensation, no doubt citing (tendentiously) the coss. II of 156 and 155 as precedent and using personal influence to do the rest. But Marcellus’ election to a third consulship must have been unpopular with many of his peers. It was probably this which caused consular iteration to be prohibited altogether. The Livian Periocha 56 shows that an actual lex “that forbade anyone to be made consul a second time” had been passed by 135 (on this, cf. Astin, Lex Annalis 19 n. 6). At all times, multiple consulships were a menace to concordia within the senatorial establishment. In times of major overseas wars, they would be particularly resented. Livy is too defective for us to tell whether in the situation of 169/168 there was opposition to L. Paullus’ second consulship, and we lose him altogether by the time of Ti. Gracchus’ iteration in 163. But in the 150s, it is not difficult to see that many senators might imagine that their political system was breaking down. Not only do we start to see the short intervals, but in the year 155 both consuls were iter-
Additional Notes 651
ating—something which had not been seen since the crisis years of the Hannibalic War (the last case is in 209). The Senate surely considered it necessary to take firm action before initiating hostilities with Carthage. It would be dangerous to let one or two consulares monopolize the opportunities for military glory in that war. A likely date for the introduction of the (putative) ten-year mandatory interval for iteration of the consulship is ca. 196. This is when we know the Senate had turned its attention to regulating access to this office, specifying the praetorship as a prerequisite (7.2.4). Billows (Phoenix 43 [1989] 112–133) cannot be correct when he suggests that starting ca. 200 a ten-year interval was required for the iteration of all magistracies (not just the consulship). Except perhaps for the brief “Genucian” decade, praetors at all times—down to the late Republic—seem to have been exempt from restrictions on iteration (T. C. Brennan, Athenaeum 67 [1989] 467–487); there is no good reason to suppose that a minimum interval was required before iterating any subpraetorian magistracy, either. The consulship was the real focus of anxiety, as the formulation of the law reported in Per. 56 suggests. We may safely conclude that there was no specified ten-year interval for iteration of the consulship before the early second century. But that is not to say there were no other measures affecting consular iteration previous to that time. In his reported speech at the elections for 209 (Liv. 27.6.7–8, summarized above), Q. Fulvius Flaccus is made to cite a law which he says was passed after the Trasimene disaster, “ut . . . ex iis qui consules fuissent quos et quotiens vellet reficiendi consules populo ius esset.” What barriers was this law of 217 meant to eliminate? Livy’s wording raises questions. Reficere was the technical term for reelection of a magistrate for a second consecutive year (i.e., continuatio); cf. the rogatio de tribunis reficiendis of the tribune C. Papirius Carbo in 131 or 130 (MRR I 502). This is the meaning of reficere in virtually all of its occurrences in an electoral context in Livy: see (e.g.) his description of the elections for 214 (24.9.4). Nevertheless, the bulk of Livy’s examples are connected with the same complex of “facts” (the tribunician iterations of the Struggle of the Orders recounted in Books 3–6). And in one passage reficere is not synonymous with continuare, but must mean simply “to reelect” (10.13.8, the elections for 297, quoted above). This exception shows that we have to consider the wording of the law of 217 independently of Livy’s regular usage. What this law did say, specifically, was that “out of those who had been consuls” (not just the two of the previous year, but clearly a large reservoir of men) the People could reficere any it liked as often as it liked. Here reficere cannot be taken in its regular technical sense, but must mean “reelect.” Now, the case of C. Flaminius (cos. 223, II 217), who died at Trasimene, eloquently shows that there was no prohibition on iteration within ten years in effect when the law was passed. What the law must have done was to eliminate other restrictions. It surely allowed continuatio of the consulship (cf. Mommsen, St.-R. I3 500 n. 1). Perhaps by extension it was taken to apply to any office involving imperium (cf. the dictator Fulvius’ bid for election as consul for 209). Continuatio of the consulship (on which see St.R. I3 517 n. 3) is not found from the time of the Pyrrhic War (M.’ Dentatus, cos. II 275, III 274) until the Hannibalic era. M. Claudius Marcellus was cos. II 215 and III 214; Q. Fabius Maximus was III 215 and IV 214 (he is aptly cited as precedent in Q. Flaccus’ speech); Flaccus himself was pr. 215, II 214. Continuatio then disappears
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until the second through sixth consulships of C. Marius in 104–100. The law of 217 probably also removed a cap on the number of iterations. Nobody, in many decades, has more than one (see the remarks of Cornell, Beginnings of Rome 372): the last examples before the Second Punic War (when it is common in the years 215–208) are L. Megellus, cos. III 291, and M.’ Dentatus, cos. III 274. After 208, there is only M. Claudius Marcellus, cos. III 152, which caused a stir, and then the extraordinary cases of the later Republic, starting with C. Marius at the end of the first century. Laws like the measure of 217 may have been traditional in times of extreme emergency. This particular one will not have remained in effect for long. Although technically its terms were to hold good “so long as there was war in Italy,” it may have been rescinded soon after the conflict between the dictator Q. Fulvius Flaccus and the tribunes who threatened to veto the consular comitia for 209. At some point soon after, it was obviously decided to rationalize the system and allow individuals to iterate the consulship (evidently) at ten-year intervals. The dispensation granted to M. Claudius Marcellus, cos. III 152, led to a demand that the rules be tightened even further. But the potential for special legislation like that of 217 probably remained. In the Cimbric War, such a law (with the requisite changes in wording) may have covered C. Marius (cos. 107) in his second through fifth consulships of 104–101. Consider also Q. Metellus Numidicus, cos. 109 and (as is generally accepted) a consular candidate again for 101 (Broughton, Candidates Defeated 9 with n. 14). Marius’ sixth consulship of 100 is the puzzling one, for the military crisis had passed—and with it surely any emergency legislation which had suspended electoral restrictions. As it turns out, the sources suggest Marius’ sixth consulship was by special dispensation (esp. Vell. 2.12.6 “consulatus veluti praemium ei meritorum datus”). (The petition of C. Servilius Glaucia, pr. 100, for election as cos. 99—surely inspired by Marius—was considered illegal, and as such was refused: Broughton, Candidates Defeated 30.) The outbreak of the Social War seems also to have occasioned emergency legislation lifting the leges annales. Either that legislation was not revoked at the war’s end or was soon revived, for we see it in effect also during the regnum Cinnanum (10.5.8). III. Some Possible Praetors of the Years down to 218 C. Genucius Clepsina, ?pr. 273 In 1983, excavations by M. Cristofani in the ancient urban area of Cerveteri uncovered a subterranean complex with the following graffito carved into the wall of its main chamber: C. GENOVCIO(S) CLOVSINO(S) PRAI. For a brief description of this inscription and its archaeological setting (interpreted as a nymphaeum, but with no independent date of construction), see M. Cristofani and G. L. Gregori, Prospettiva 49 (1987) 2–14, esp. 4; M. G. Marzi, SE 52 (1984) 403f (but misrepresenting the reading as CLEVSINO); M. Cristofani, Archeologia nella Tuscia 2 (1986) 24–26 and Table XXIV; M. Cristofani in his introduction to G. Proietti, Cerveteri (Rome 1988) 8. For a transcription and color photograph of this graffito, see W. V. Harris in M. Cristofani (ed.), Gli Etruschi: Una nuova immagine (Florence 1984) 55; see also M. Cristofani (ed.), Dizionario della civiltà etrusca (Florence 1985) 123, cf. 49.
Additional Notes 653
The abbreviation of title—whether it be PRAI(TOR) or PRAI(FECTUS)—is unparalleled in Republican Latin inscriptions: PRAE occurs in the Empire for praefectus instead of the more normal PR or PRAEF (see ILS 2636), but this obviously sheds no light on our isolated inscription, apparently carved centuries earlier. The spelling PRAI is unfortunately no use for the dating (it occurs, at least sporadically, at all times in the Republic, as does OU for U). In addition, the inclusion of the cognomen and absence of filiation is most unusual for the midRepublican period (as far as we can tell). As it happens, eight other graffiti have been found on walls in or just off the main chamber (texts in Prospettiva 49 [1987] 4–7), including one with the consular date A.D. 208, which shows exactly how long this space had been in use (though probably not continuously). If Genucius indeed scrawled his name on fresh plaster, as G. L. Gregori maintains (Prospettiva 49 [1987] 4), we are probably justified in regarding the Genucius graffito as contemporaneous with the construction of the complex itself. But the variation in the lettering (it looks as if at least two different hands had written it, with the nomen and cognomen showing not much similarity) makes any present hypothesis uncertain. All scholars who have discussed the inscription have identified this man with C. Genucius L.f. L.n. Clepsina, cos. 276 and II 270, whose brother L. Clepsina was consul in 271. The cognomen “Clusinus” (“from Clusium”) is the Latinized version of Etruscan “Clevsina” (which lurks behind the “Clepsina” of the Fast. Cos. Cap. in the entries on these two brothers). The cognomen—in either Etruscan or Latinized form—is exceedingly rare, with one known occurrence apart from these consular brothers (TLL Onomasticon II 492; cf. also CIE 5474, from Tarquinii in the third century). Cristofani ventured to offer a date for the inscription as well as a supplement for Clepsina’s title: “[H]e was the magistrate who, acting as praetor in 273 b.c., completed the operations, perhaps military, that led to the surrender of Caere, decreeing its definitive incorporation in the Roman state” (Dizionario della civiltà etrusca 123). However, we must remember that this Genucius could easily be a later family member (e.g., son, nephew, grandson, or grandnephew) who never made it to the consulship. Let us suppose for the moment that our Genucius was in fact the two-times consul. Can Cristofani be correct in supposing that he also was praetor in the crucial year 273? Given the nature of this inscription and its context, one can only reexamine the evidence for Caere in the Republic (albeit here only briefly), and then balance the various possibilities. The Caeritans had of course protected the Vestals, priests and sacred implements of the Roman people during the Gallic invasion of 390 (evidence collected in Harris, Rome in Etruria and Umbria 45 n. 4). According to Livy (5.50.3) the Romans in turn decided “cum Caeretibus hospitium publice fieret.” Gellius (16.13.7) states that the Caeritans received the honor of civitas sine suffragio for this deed (no date specified), the first municipes to be given this status. Gellius adds that paradoxically this grant was the origin of the term “Caeritan tablets,” in which the censors registered those who were marked with a nota and were deprived of the right to vote. (For a different interpretation of the same facts, see Strab. 5.2.3 p. 220, cf. Porph. on H. Ep. 1.6.62.) Notwithstanding some tendentious aspects of the Gellius passage (on which see J. Pinsent, CQ 7 [1957] 89–97) we should probably believe his statement that
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Caere was the first to receive the status of civitas sine suffragio (see Badian, Foreign Clientelae 17 n. 1). The idea that Caere received the civitas s.s. in virtue of its services to Rome during the Gallic invasion (Gellius, Strabo) is not necessarily incompatible with the notion that this status was also ignominiosum (Porphyrion, Strabo): whether civitas s.s. was an honor or a disgrace may be an anachronistic (later) question. But when did Caere receive its civitas s.s.? In 353, the Romans declared war on the Caeritans, who in turn backed off from hostilities. Livy reports that the Caeritans received mild terms, due in part to their protection of the Roman state religion in 390 (7.20.8). Livy makes no mention of a grant of civitas s.s. at this time, and it is unlikely that this was the occasion on which it was conferred (on this Harris, Rome in Etruria and Umbria 94–95; cf. M. Humbert, Municipium et civitas sine suffragio 141–143 and in J. E. Spruit (ed.), Maior viginti quinque annis 70–72, who posits the grant ca. 350). In any case, the terminus ante quem for this grant would be 338 (cf. Liv. 8.14.10, three other instances of civitas s.s.), if we accept Gellius’ assertion that Caere was the first to receive this status. We hear nothing of official relations between Caere and Rome until ca. 273. At that time, the Romans (for some unknown reason) were at the point of voting for a declaration of war on Caere; hostilities were forestalled when Caeritan ambassadors agreed to a cessation of one-half their land (D.C. 10 F 33 with Zonar. 8.6.10; cf. D.H. 20.15.1 [= 20.5] for the similar case of the Bruttii ca. 271). Within a decade, Rome started planting colonies on this confiscated territory (Harris, Rome in Etruria and Umbria 148–149). At some point, Caere itself was made a praefectura of the class which received an annual praefectus appointed by the pr. urb. in Rome (see 5.2.4). So Cristofani’s conjecture—that C. Genucius Clevsina is the cos. 276, II 270, and was active in the area of Caere as praetor in 273—is only one of several possibilities. It is true that the combination of Caeritan unrest and the subsequent confiscation of land (the latter reported only by Dio) afforded a good opportunity for a Roman magistrate with imperium to be on the spot. Yet it is also possible that C. Genucius—if really the consul—was sent to this Etruscan town as praetor in an earlier period of unrest: note the triumph of Q. Marcius Philippus as cos. 281 and that of Ti. Coruncanius as cos. 280 for campaigns in Etruria (A. Degrassi, Inscr. Ital. XIII 1 72f, 545). An alternative is that he served as one (not even necessarily the first) of the praefecti (see 3.2.1 above) sent out every year after the confiscation of Caeritan land. (It is hard to see why anyone would be building an elaborate nymphaeum in Caere in the troubled year 273.) Alternately, our C. Genucius is a descendant of the consul of the 270s, to be placed later in (most likely) the third century. Though no Genucii reached the consulship after 270, the gens evidently continued in public life for some time: most significantly, in 210 a L. Genucius (doubtless a grandson of one of the two consuls of the 270s) headed a senatorial embassy to Numidia (Liv. 27.4.7–9). Note also the Genucius listed by MRR I 219 as tr. pl. 241, and the M. Genucius who was killed in Gaul as tr. mil. 193 (Liv. 35.5.14). But in purely statistical terms, it is overwhelmingly probable that Genucius—whatever his exact date and identity—was a praefectus, not a praetor. As a “Genucius,” he may have been well suited for the job: the cognomen “Clousinos” probably indicates a deep-rooted
Additional Notes 655
Etruscan connection (cf. A. Naso, Epigraphica 48 [1986] 191–198), though he chose to spell it in its fully Latinized form. M. Valerius, pr. Sardinia ca. 227 Münzer identified (without a query) the “M. Valerius” of Solin. 5.1 (where he names the first praetor specifically created for Sardinia) as M. Valerius Laevinus, cos. 220 (perhaps), pr. II 215 (Liv. 23.24.4), cos. (II?) 210 in Sicily, and dead in 200 (RE s.v. Valerius 211 col. 45, followed by Broughton, MRR I 229). It is true that the notice of praetorian iteration for 215 will fit, but it is by no means compelling. In the period ca. 227 through 219, about thirty-six men will have held the office of praetor, and more than one man from the gens Valeria may have reached the office. A praetorship ca. 227 seems rather early for Laevinus (if indeed he was cos. I in 220), an extremely able man whose two sons reached the praetorship in 182 and 179 (i.e., forty-five and forty-eight years later, on this reckoning). C. Flaminius (praetor for Sardinia in the same year as “M. Valerius,” i.e., ca. 227) reached the consulship in 223. Though Flaminius’ alleged status as a novus homo may be questioned (V. Max. 5.4.5 implies his father was a senator), he certainly was no favorite of the Senate (Liv. 21.63.2–3, etc.). Only one patrician iterates as consul in the period 227 through 221 (in 224), so this factor will not have had too severe an impact on Laevinus’ chances for the consulship. F. Stella-Maranca (MAL [ser. 6] 2 [1927] 296) actually did query this identification of the first praetor for Sardinia, but did not suggest an alternative of his own. Perhaps the first Sardinian praetor is a M.’ Valerius (the text of Solinus is very poor), the firstborn son of the cos. 263. Or he may be a Valerius we never hear of again, because he did not survive to serve (or was not recorded as serving) after 218: for example, a son of the cos. 261. M. Livius Salinator (cos. 219), pr. in the 220s? From Nemi comes an intriguing Republican dedication, CIL I2 41 = ILLRP 76: DIANA | M. LIVIO(S) M. F. | PRAITOR DEDIT. This archaic inscription was found in the grove of Diana at Nemi by L. Boccanera (NSA 1887 24f) in roughly the same context as that of the dedicatory inscription of C. Aurelius Cotta, pr. II 202 and cos. 200 (CIL I2 610 = ILLRP 75; see T. C. Brennan, Athenaeum 67 [1989] 467–487 for discussion). The dative Diana (on which see A. Ernout, Recueil de textes latins archaiques2 [Paris 1957] 28) and the archaic script (similar to that in CIL I2 610, which is dateable to 200) suggest a date of the late third or early second century. A. Degrassi (ILLRP 76) did not venture an identification: “incertum [est] utrum praetor Aricinus an populi Romani.” It is true that non-Roman magistrates made dedications at the grove, a major site for dedications from at least the end of the fourth century down to the beginning of the first (A. E. Gordon, The Cults of Aricia [Berkeley 1934] passim): see CIL I2 40 = ILLRP 77, from the same archaeological context as the M. Livius dedication. Yet it is perfectly possible that a Roman praetor in his year of office made a dedication to Diana, as the example of C. Aurelius Cotta demonstrates. No M. Livius M.f. is known to have held the praetorship in the period 218–166, for which our records are almost complete. If the man in question is indeed a Roman magistrate, the only plausible candidates for the identification are M. Livius
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Salinator (cos. 219, II 207) in some year before 219, or (less likely) his father (known only as Xvir s.f. in 236—MRR I 223). (For a possible ancestor, cf. also 3.7 on the early third-century “Livius pro pr.”) Two Atilii as prr. 218? What are we to make of the “C. Atilius Serranus praetor” who made a vow in Rome in the winter of 218 (Liv. 21.62.10, cf. 1), that is, at the same time a “C. Atilius praetor” is said to be wintering at Placentia (21.63.15)? It is just possible that he could be the same praetor, or that Livy (or his annalistic source) is simply mistaken. Yet it should be noted that if L. Manlius Vulso was praetor in 219 (as argued in 4.3.4), there is an open space in the praetorian college for 218. It is possible that in 218 two Atilii held the praetorship, C. Atilius Serranus (consular candidate for 216—Liv. 22.35.2) in the urban jurisdiction, and another C. Atilius as praetor inter peregrinos (i.e., cum Gallia). If so, it is likely that the peregrine praetor was a Regulus (rather than another Serranus). He would be the eldest son of the consul of 257 and 250, C. Atilius M.f. M.n. Regulus, elder brother of M. Atilius Regulus (pr. 213), and cousin of both M. Atilius M.f. M.n. Regulus (cos. 227, II 217) and C. Atilius M.f. M.n. Regulus (cos. 225). In 216, an M. and a C. Atilius serve as IIviri aed. dedic. for the dedication of L. Manlius’ temple of Concordia (Liv. 23.21.7). The choice of these men may be significant: on my hypothesis, this is the same C. Atilius who, as praetor, brought aid to L. Manlius in 218. What is more, the Atilii Reguli—if that is indeed the family of one or both of these IIviri—perhaps had a personal link with the Manlii Vulsones. C. Atilius Regulus (cos. 257, II 250, and perhaps the father of C. and M. Atilius) and L. Manlius Vulso Longus (cos. 256, II 250, presumably the father of our L. Manlius Vulso) had served together as consular colleagues. However, the addition of a “C. Atilius Regulus, pr. 218” to our praetorian fasti must remain speculative. IV. Suffectio of Praetors We hear of the election for a suffect praetor only after the death of the urban praetor and the praetor inter peregrinos. Livy (39.39.1–15) reports that in 184, after the death of the pr. urb. C. Decimius Flavus (early in the year), the regular election (“e lege” 39.39.6; see also 14) to fill his position was scheduled, yet cancelled due to the audacious campaign of the sitting curule aedile Q. Fulvius Flaccus to win the place (see Mommsen, St.-R. I3 513 n. 3). In 180, after the death of the peregrine praetor Ti. Minucius Molliculus (also early in the year), C. Claudius Pulcher was elected suffect in his place (Liv. 40.37.4). On the two occasions in Livy’s record when provincial praetors die—both early in the year—no suffect is elected. In the first case, it is true, practical considerations made a special election near impossible. In 189, L. Baebius Dives was wounded by Ligurians on his way to Hispania Ulterior, and soon died at Massilia (37.57.1–2). In consequence, the pr. urb. Sp. Postumius Albinus wrote to P. Iunius Brutus, pr. 190 and now pro pr. in Etruria, informing him of an S.C. that he should entrust his provincia to a legatus and leave for Spain at once (37.57.3–4). There was little real alternative: the consuls had already set out for the war against Antiochus III in the east (37.51.7), and could hardly be recalled. However, the second case seems to
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show that even when a consul was available to hold an election for a fallen provincial praetor, a suffectus was not created. The praetor N. Fabius Buteo died on his way to Hispania Citerior in 173, also at Massilia (42.4.1). By the time the news had reached Rome, one of the consuls, L. Postumius Albinus, had set off for his special task of investigating illegal possession of ager publicus in Campania (42.1.6) (which responsibility he had in addition to “Liguria”—42.1.1–2), and the other consul, M. Popillius Laenas, was probably already in Liguria. L. Postumius Albinus surely could have been recalled to Rome for the election of a suffectus, had there been a legal stipulation that one be elected. Rather, the Senate decreed that the two praetors of the previous year who were in Spain should draw to see which one would be prorogued to replace Fabius in Citerior. Probably not entirely by chance, the praetor who was already in Citerior received the lot to stay (42.4.1–3 “sors opportuna fuit”). When a prorogued praetor died in his provincia, no special provisions were made other than to place that lot in the next available sortition (cf. 33.25.8–9, Hispania Citerior in 196) and then to hurry the newly elected praetor out to succeed to this command: cf. the example of the Spains in 39.21.4 (186) and 40.2.5 (182). No permanent provincia could be left sine imperio for long. It would be interesting to know whether a suffect might be elected to replace a praetor repetundis—or any of the other praetors in charge of later standing courts—who had died in office. C. Gracchus in his lex repetundarum made a provision of some sort for the replacement of praetors who had died or abdicated, but owing to the state of the text, we cannot tell what it was (cf. CIL I2 583 lines 72–73). As far as our present information goes, it appears that the original “city” praetors were apparently assimilated to the consuls when it came to suffectio, while the later, and “lower,” praetors were not. There obviously was a time limit within the year (demonstrable for the consuls) after which suffection did not take place. It is an open question what this limit was (and why it existed): since do not know the cutoff date, we cannot judge, for example, whether Cn. Carbo, as cos. II 84, acted improperly in failing to replace his fallen colleague Cinna with a suffect after the summer solstice (App. BC 1.78.358–359 with Badian, Studies 228 and 233 nn. 12 and 13); see Mommsen, St.-R. I3 29f for other exceptions. V. The Defense of Rome in 211 According to Livy’s account of the year 211, the consuls Cn. Fulvius Centumalus and P. Sulpicius Galba, as well as the pro cos. Q. Fulvius Flaccus (cos. 212) were called to defend Rome against an expected attack by Hannibal. We are told “lest his imperium be annulled were he to come into the city, the Senate decreed that Q. Fulvius shall have equal imperium with the consuls” (“cui ne minueretur imperium si in urbem venisset, decernit senatus ut Q. Fulvio par cum consulibus imperium esset”—26.9.10). The notice of Flaccus’ recall from Campania has often been doubted (e.g., Münzer, RE s.v. Fulvius 59 cols. 244–245; De Sanctis, Storia III 2 338; cf. MRR I 277 n. 5). Yet, even if spurious, the annalist who made it up knew enough to realize that Flaccus as a promagistrate would need a special grant to retain his imperium in the city. It is unlikely that an S.C. alone (which is all that Livy mentions) was good enough to do this; judging from the procedure adopted
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for promagistrates who were awarded a triumph, he may have needed at least a plebiscitum as well (Liv. 26.21.5—211 and 45.35.4—167; in these cases the Plebs was not making a grant of imperium, only extending the bounds in which it could be exercised). What seems amazing, however, is Livy’s statement, slightly later in his narrative, that when Hannibal actually came near the walls, all ex-dictators, ex-consuls and ex-censors received a special grant of imperium to quash various tumultus which had sprung up (26.10.9 “placuit omnes qui dictatores consules censoresve fuissent cum imperio esse, donec recessisset a muris hostis”). If this proposal was actually passed (e.g., J. S. Richardson, JRS 81 [1991] 5, fully accepts it), it must have been through a lex. Senators had been employed to crush earlier tumultus, but no grant of imperium is mentioned (22.55.6–8—216). It is particularly strange that censors—who were not holders of imperium in their term of office and are invariably ranked below praetors in formal lists (see 2.5.2 above)—should be included in 211, and praetors excluded. Either censores is a mistake, possibly Livy’s own, for praetores, or the word praetores was omitted between consules and censoresve, where it ought to be expected. The homeoteleuton -ores makes the latter of these two explanations easier to imagine. VI. Praetors and Shipbuilding, 218–166 In the period 218–166, there appear to have been five major shipbuilding and ship renovation efforts: three during the Hannibalic War, one at the start of the war against Antiochus III, and one at the beginning of the Third Macedonian War. It is uncertain what magistrate or magistrates supervised the first ship construction drive, in early 217, when sixty quinqueremes were built (see Plb. 3.75.4 and J. H. Thiel, Studies 48f). It may have been the newly elected consuls, who were still in the city making preparations for their campaign of that year (3.75.5–7). When the Senate ordered one hundred new ships to be built in early 214, we are told explicitly that the consuls had this task in addition to their levy of six new legions (Liv. 24.11.4–6). In 208, there was a rumor of a massive Carthaginian naval invasion (27.22.8). This report (later proved false) prompted a third shipbuilding and renovation program, which the Senate entrusted to the pr. urb., even though the consuls of that year were still in the city (27.22.12; cf. 23.1). Why the involvement of the praetor? This fleet (thirty old ships which were on dry dock at Ostia, and twenty new ships) was supposed to protect the sea coast near the city—part of the urban praetor’s defense responsibilities. The emergency of 208 set a precedent. Henceforth, it was the urban praetor, assisted occasionally by one of his praetorian colleagues, who arranged for the construction or repair of ships and the drafting of personnel to man them, even if one or both consuls were in the city when these orders were given. A list might be helpful. The war against Antiochus required orders of ships for three straight years, 192 through 190. Before the consuls of 192 had set out for their provinciae, the Senate ordered the two city praetors to prepare one hundred quinqueremes; at the end of the year, when a consul had returned for the elections, the pr. urb. had to provide another fifty (Liv. 35.21.1–2; 24.7–8). Early in 191, M. Iunius Brutus, who served as both pr. urb. and pr. per., was told to refurbish some old ships stored in the yards,
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and to draft freedmen (“socii navales”) to fill them (36.2.15). The consuls were in Rome (cf. 36.3.14; 37.1). In the next year, there was a rumor that Antiochus was increasing the number of ships in his fleet. The pr. urb. of 190 saw to the construction of thirty quinqueremes and twenty triremes (37.4.5); the consuls had probably set out for their provinciae by that point (cf. 37.4.2 and 4). We hear no more of such preparations until the start of the war with Perseus. In 172 (when the consuls had left Rome) the urban praetor was ordered to repair all seaworthy quinqueremes in the shipyards, as well as to construct fifty new ones; if he was unable to meet this target, the praetor for Sicily was to help him. The urban praetor also was to enrol enough freedmen from the Roman citizen body to fill twenty-five ships (42.27.1–3; cf. Cato ORF3 F 190). So shipbuilding is one specific instance where we can trace how the Senate let a once consular task devolve—permanently—upon the urban praetor. Furthermore, the post-Hannibalic examples show with reasonable clarity how among praetors the Senate entrusted tasks in or near the city to the praetor urbanus in the first resort, and brought in others as his (interchangeable) helpmates. Note the aid of the peregrine praetor in 192, but in 172—when the praetor inter peregrinos was slated early on to cross to Greece (above, 5.5.1, 8.5.1)—the praetor for Sicily. VII. The Case of Pomponius, Praetor inter Peregrinos in 217 In 217, after the Roman disaster at Lake Trasimene, the peregrine praetor M. (?) Pomponius is said to have frankly announced to an assembly of the People the news of the defeat. Widespread consternation, even panic, followed (Plb. 3.85.7–8; Liv. 22.7.7–13; Plu. Fab. 3.4.). Broughton (MRR I 246 n. 8) is puzzled at Pomponius’ action: “[O]rdinarily official announcement of a serious defeat was made, in the absence of the consuls, by the pr. urbanus. Since [M.] Aemilius [Regillus] held that position it is reasonable to assume that he could not officiate and that his place was taken by the pr. peregrinus.” It should be stated that the actual evidence on this responsibility is ambiguous. I can find no evidence from this period of the pr. urb.—or any praetor—announcing a defeat (not that there were that many), and no decisive evidence on which praetor made announcements of victories. In 207, C. Hostilius Cato, pr. urb. et inter peregrinos, announced the news of the Metaurus victory (Liv. 27.50.8–11; for the joint provincia, see 36.11). In 203 (a year in which the provincia peregrina is not reported to have been allotted discretely to an individual), the legate C. Laelius and the pr. urb. P. Aelius Paetus ascended the rostra together at a contio to announce the news of P. Cornelius Scipio’s first victory in Africa (30.17.3; cf. 21.10) (i.e., the praetor called a contio for the legatus to announce it). At Flor. 1.38.20, neither the name nor the provincia of the praetor announcing the victory over the Cimbri in 101 b.c. is specified. The pr. urb. 217, M. Aemilius Regillus, was surely in or near the city after the defeat at Trasimene. As flamen, he will have been restricted in his movement (24.8.10; cf. 22.9.11, 33.8–9.) The point of the story is that Pomponius tactlessly (though some might think courageously) announced the defeat, perhaps without proper consultation with the Senate as to the form the announcement should take.
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The Senate was obviously in continuous session by now, under the praetor urbanus. (Note that, immediately following this announcement, “for some days the praetors [the plural posits M. Regillus in the city] kept the Senate in the Curia, from sunrise until sunset”—22.7.14.) When it got late in the day (22.7.8 “haud multo ante solis occasum”) and it was felt by the Senate that something simply had to be said to the crowd, the praetor inter peregrinos was probably the only man who could do it, since the Senate could not suspend its session. The way Pomponius did it was unfortunate. Although we must assume the praetor called a formal contio (on the Senate’s instructions), all our sources relate that his blunt statement made the Trasimene disaster seem worse than it actually was, resulting in widespread panic. In succeeding years, the Senate remained in tight control. After Cannae, the Senate took great pains to ensure that the Forum was cleared out by the magistrates and that anyone with important information from the field be brought before the city praetors (Liv. 22.55.1–56.5). The letter which reported the Metaurus victory in 207 was read first in senatu and then in contione, even though this time no panic was to be feared (27.50.8–11). Before the public announcement of P. Cornelius Scipio’s victory of 203, the praetor urbanus consulted the Senate (30.17.3). In 197, when the consuls of the year sent word of their successes in Gaul against various Gallic tribes and the Ligurians, “the pr. urb. M. Sergius read aloud these dispatches in the Senate, and then ex auctoritate patrum to the People” (32.31.6). And again, on receipt of the news of the victory of T. Quinctius Flamininus in 197, “the pr. M. Sergius first read this letter in the the Senate, and then ex auctoritate patrum in a contio” (33.24.4). The Roman Senate and magistrates had learned from the experience of Pomponius the praetor in 217. VIII. The Magister Equitum as President of the Senate At the very end of the year 216, following the report of the death of the consul designatus L. Postumius Albinus in Gaul, it is Ti. Sempronius Gracchus, mag. eq. and cos. des. 215, who presided over a Senate meeting where the military provinciae were reviewed and arrangements for the following year were discussed (Liv. 23.25.2–11, esp. 2 “Ti. Sempronius senatum habuit”). In the light of Livy’s explicit statement, Mommsen (St.-R. I3 209 n. 5) is wrong to suppose that a praetor actually may have presided over this session; however, the praetor M. Claudius Marcellus was in Rome at the time, and spoke at this important meeting. It is very difficult to disentangle the background to this Senate meeting (which finds no discussion in M. Bonnefond-Coudry, Sénat). The peregrine praetor Pomponius Matho had summoned the dictator M. Iunius Pera with his mag. eq. to hold the elections, and also called the praetor M. Claudius Marcellus to Rome to consult with the Senate (Liv. 23.24.1–2). After the elections, the dictator returned to his legions (23.24.5). What immediately follows in Livy’s account is the surprising death of the praetor and cos. des. L. Postumius Albinus, which left the remains of the two legions in Gaul without a commander. Pomponius Matho may have been dispatched immediately to Gaul, the provincia in which he certainly later served in 215 and 214 (see 5.2.1 above). It is most irregular, however, that in his (presumed)
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absence, the mag. eq. Ti. Gracchus presided over the Senate meeting in late 216, when the praetor M. Claudius Marcellus was available. How did the magister equitum manage to act as president on this occasion? First, imperium was not needed for this particular job: in a few years (210) we find that the tribune of the Plebs, who at this time was not a member of the Senate, could perform the task (see 5.4.2 above, also Ateius Capito in Gel. 14.8.2). As far as we know, tribunician presidency of the Senate would not recur for some time in the Republic, though it may have, unrecorded, once the precedent was accepted. (The only Republican parallels down to 50 b.c. are apparently C. Gracchus in 123, then in 91 and late in the year 57: see 12.4.2 above) It also should be mentioned that changes could be made ad hoc in the proper order of magistrates qualified to act as president of the Senate: see 5.4.2 for an S.C. of 197 and a plebiscite of 172, each privileging praetors over consuls. And one urban praetor in 200 apparently gave over the presidency to his colleague in the peregrine jurisdiction (5.4.1). But at the end of 216, of course, we have a case of a praetor yielding to a junior magistrate, who may not even have had (at this point, at least) a recognized right of presiding over the Senate. Varro, in the famous commentarium on Senate protocol that he originally wrote for Pompey in 70 and revised after 43, skips the mag. eq. (as well as the censors) in his apparently comprehensive list of magistrates who had this right (see Gel. 14.7.4–5; Mommsen, St.-R. II3 209 n. 5, even suspected that Varro had an anti-Caesarian motive in this). Cicero in the ideal constitution set out in the De Legibus (3.10), does allow the mag. eq. the right of presiding over the Senate, but this may be a proposed innovation (see 2.3.2 above). Of the examples of a mag. eq. as president of the Senate collected by Willems (Sénat II 129 n. 4), none offers clear confirmation for Ti. Sempronius’ case in 216. An alleged instance in 325 (Liv. 8.33.3–4) is particularly problematic, where Livy’s formulation (“patre auctore [i.e., the father of the mag. eq., M. Fabius Ambustus, who at the time held no magistracy] . . . vocato extemplo senatu”) is (purposely?) vague. Livy may not have known (i.e., his annalistic source did not say) whether the mag. eq. actually presided over the Senate in this instance (cf. Mommsen, St.-R. I3 209 n. 5). Willems also points out that Caesar’s mag. eq. M. Aemilius Lepidus in 48 is said by Dio to be competent to preside over the Senate, and in this “he exhibited some semblance of the Republic” (42.27.2; cf. the S.C. contained in J. A.J. 14.10.6). It is possible that the mag. eq. had by now accrued some special powers not inherent in the original office, which was in abeyance from 202 down to 82/81, and then again until 48. (See 2.3.1, on the lictors of the mag. eq.) The master of the horse’s constitutional “right” in this regard may be only (pace Dio) a Caesarian innovation. This “right” may have been given to the magistrate by a lex (perhaps in the very one mentioned by Dio at 43.48.2, on which see 2.3.1), or it may have been simply arrogated. The dictator Caesar was not over concerned with legal technicalities, especially in 49 and 48 (see 2.3.2 for what he did or allowed in these years). But the most likely explanation is that M. Aemilius Lepidus was seen as acting with derivative power as the dictator’s representative (cf. the indisputable power of the mag. eq. to command an army), and was accepted as such. By this stage, the mag. eq. had received a whole bundle of attributes, and was even claiming a derivative right to
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remain in office past six months (see 2.3.1). A de facto right to preside over the Senate—which of course is independent of imperium—simply may have been assumed. To return to the problem of 216, where there was probably little precedent to act as a guide. One can only speculate what happened. I would suggest that, after the elections, the dictator M. Iunius Pera ordered the mag. eq. Ti. Sempronius Gracchus to act as his representative in the city, forbidding the praetors Pomponius Matho and M. Marcellus to interfere. The statement “the master of the horse was left in Rome to . . . consult the Senate” (“relicto magistro equitum Romae, qui . . . patres consuleret”—Liv. 23.24.5) may in fact allude to Pera’s original order. The praetors Matho and Marcellus of course had to bow to the maius imperium of the dictator and let the mag. eq. preside. (On the mag. eq. as “Vertreter” of the dictator, see Mommsen, St.-R. II3 178f; also R. Wittmann in Kunkel, Staatsordnung 719, positing that solution for this very incident.) By the standards of 216, a most turbulent year, a magister equitum and consul designatus as president of the Senate was an acceptable innovation, since it would last only for a few days. The fact that protocol was violated (i.e., an available praetor was supplanted) shows only the extent of the emergency. The dictator M. Iunius Pera must have seen that continuity was of the highest importance. IX. The Peregrine Praetor outside of Rome in the 170s There are three instances in the 170s when the praetor inter peregrinos is known to have left the city. On the first occasion, in 178, it was feared that the Histrians at Aquileia had totally destroyed a consular army under A. Manlius Vulso (Liv. 41.5.3). The Senate ordered Manlius’ consular colleague, M. Iunius Brutus, to cross from his provincia (the war against the Ligurians) into Gaul; it also instructed the pr. per. Ti. Claudius Nero “to defend that provincia during the consul’s absence.” Nero immediately set out to Pisa “paludatus” (see 41.5.5–6 and 8, and cf. C. F. Konrad, JRA 7 [1994] 155, on the technical term). M. Titinius, the pr. urb., did not leave the city (Broughton, MRR I 395, is wrong in this). He merely ordered that the first legion and an allied force of the same size meet at Ariminum: “Titinius sent C. Cassius, a military tribune, to Ariminum to command the legion, and held a levy at Rome” (Liv. 41.5.7–8). This was late in the year. A decision had already been made to prorogue the consuls of 178 (41.6.2). In addition, the cos. M. Iunius Brutus—who never returned to Pisa—boasted at the consular elections that he had not spent more than eleven days in Histria (41.7.6). The story continues. At the beginning of the next year, 177, Livy states “Ti. Claudius pro cos., who had been praetor in the previous year, was in charge of Pisa (Pisis praeerat) with a garrison of one legion” (41.12.1). He stayed in the area of Liguria for all that year (41.14.2), and into 176 (41.14.11; he must have been at Pisa until mid-August—41.17.6). The report of 41.12.1 is puzzling, since we would expect Ti. Claudius to be pro praetore. The wording seems to eliminate the possibility of simple scribal error; and we know from practice elsewhere (7.1.4 above) that one’s level of imperium is not necessarily correlated with army size. If the notice is true (as Mommsen believed—St.-R. II3 649 n. 2), I should think he was prorogued, with
Additional Notes 663
the People raising his imperium. Note the case of M. Claudius Marcellus, pr. 216 and pro cos. 215 (8.3.1 above); a similar procedure must have been followed in the case of P. Sempronius Tuditanus, pro cos. in Greece in 205 (Additional Note XII). The explanation must be that at the beginning of 177, both of the consuls were needed elsewhere. Ti. Sempronius Gracchus was to serve outside Italy (in Sardinia), and his consular colleague C. Claudius Pulcher was expected to fight a Histrian war. Though Pulcher soon did make it to Liguria (MRR I 397–398), Ti. Nero still stayed into 176. The Ligurians for the past seventeen years had seen only men of consular rank in their area: Nero was literally acting pro consule, “in place of a consul,” and his imperium was enhanced, in keeping with the now-traditional status of the Roman commanders on the Ligurian front (see 8 n. 17). Our second example is the peregrine praetor of 172, Cn. Sicinius, who crossed to Epirus during his year of office (“priusquam magistratu abiret”) to bring a consular army and a fleet into the Macedonian theater (8.5.1). Though Sicinius’ actual crossing took place late in the year (mid-February), the pr. urb. might have had to see to many of his routine duties (see Additional Note VI). Sicinius stayed in the east well into the next year: before his departure it seems to have been decided that he would be prorogued in Macedonia “donec successor veniret” (42.27.6–8). The third occasion when a peregrine praetor left the city in this decade is found for 170, when it was decided to send eight ships to the legatus C. Furius on the island of Issa, in order to monitor better the activities of the Illyrian king Gentius. “Two thousand soldiers were put aboard these ships, a force that the pr. M. Raecius raised ex senatus consulto, in that part of Italy which faced Illyricum” (43.9.6). Later in that consular year (January), when the Senate called back (early) the consul A. Atilius Serranus to Rome to hold the elections for the forthcoming year, M. Raecius was ordered to ensure that all senators returned and remained in the city (43.11.3–5). On the one previous occasion when such a measure was taken—in 191—it was a consul who issued the edict (36.3.2). This seems to have led P. Foucart (MAI 37 [1906] 316f) and later Broughton (MRR I 423 n. 3) to make M. Raecius praetor urbanus and the other city praetor Q. Maenius praetor inter peregrinos: most unlikely, in view of Raecius’ activities on the Adriatic coast. M. Raecius was chosen to perform the task of recalling senators to Rome precisely because as praetor inter peregrinos he was at relative liberty to leave the city and scout out would-be offenders of his edict. One final note: In 174, the pr. urb. may have had to assume the duties (in addition to his own) of the unfortunate pr. per. L. Cornelius Scipio. This man, though properly elected, may never have been able to act in his jurisdiction. Scipio allegedly suffered the double indignity of having his family prohibit him from exercising his office (V. Max. 3.5.1; cf. V. Max. 4.5.3, with wrong praenomen), and of having the censors eject him from the Senate during his actual year of office (Liv. 41.27.2). X. The “Two Lictors” of the Urban Praetor Holders of praetorian imperium in the Republic are variously reported to have been attended by six and two lictors. (Praetors who held enhanced, i.e., consular, imperi-
664 The Praetorship in the Roman Republic
um, such as the governors of the Spains, were preceded, like consuls, by twelve lictors—see 7.1.2.) Polybius—who had seen actual praetors in Rome as well as in Greece—makes no reference to two lictors. In fact, for Polybius, “six axes” are synonymous with the praetorship. Polybius calls the magistrate variously strathgo;~ eJxapevleku~ (3.106.6; 33.1.5), or (more often) simply eJxapevleku~ (2.23.5, 24.6; 3.40.11 and 14), as well as strathgov~ (3.85.8, 118.6; 6.53.7; 7.3.1 oJ tetagmevno~ ejpi; Lilubaivou strathgo;~ tw`n ÔRwmaivwn; 21.10.4, 44.3 to;n ejpi; tou` nautikou` strathgovn; 23.2.9; 28.16.6 to;n ejpi; tou` nautikou` strathgovn; 30.4.4 and 6; 31.23.5; 35.2.5 kata; povlin oJ strathgov~; 36.4.4 and 6; 5.8 ejpi; th`~ Sikeliva~ tetavcqai strathgovn). A prorogued praetor is sometimes designated ajntistravthgo~ (8.3.1), sometimes simply strathgov~ (8.7.11): both these references refer to the same man, Ap. Claudius Pulcher in 213. Polybius’ use of these various designations is not systematic. In his writings, both strathgov~ and eJxapevleku~ can also denote the office in a general sense (strathgov~—6.53.7; tw`n strathgw`n ti~—30.4.4; ÔRwmai`oi . . . ejxapevsteilan . . . e{na de; tw`n eJxapelevkewn eij~ Turrhnivan—2.23.5) Although he usually terms city praetors strathgov~ (3.85.8; 23.2.9; 31.23.5; 35.2.5 kata; povlin; 36.4.4 and 6) and praetors in the field strathgov~ or eJxapevleku~ (for the latter, 2.24.6; 3.40.11 and 14), Polybius once uses eJxapevleku~ of a city praetor (33.1.5: A. Postumius Albinus in 155 strathgo;~ w]n eJxapevleku~ kai; brabeuvwn to; diabouvlion). A few other authors also allude to “six axes” in reference to both provincial praetors and the praetor in general (Mommsen, St.-R. I3 384 nn. 4–5; of those passages, Cic. Ver. 2.5.142 is not relevant—see ch. 13 n. 52). The original praetor must have had six lictors at the inception of the office, at least when outside of the city. That goes as well for the first provincial governor, the praetor inter peregrinos—hence the generalization of this custom for all praetors in the field. A passage in Valerius Maximus (1.1.9) at first glance seems to show that praetors could be accompanied by six lictors in the city. Valerius tells of a praetor L. Furius Bibaculus, “who, when ordered by his own father, the chief of the college of Salii, carried—with his six lictors preceding—the arms and sacred shields, though he had exemption from this duty [i.e., of carrying the ancilia] by reason of his magistracy.” The location of this (undated) anecdote must be Rome, since that is where the rituals of the Salii took place. The pious Bibaculus may have been a praetor in the period before the Second Punic War, when the complete list of praetors becomes known. (MRR I 237 even assigns a tentative date of 219 for his praetorship.) But the period after 166, when Livy’s account gives out on us, cannot be excluded (thus Münzer, RE s.v. Furius 36 col. 320). There is no reason for any preference regarding this praetor’s date. Mommsen (St.-R. I3 384 n. 5), who believed that only praetors receiving a provincia outside the city were entitled to six lictors, was convinced that L. Furius Bibaculus must have been a provincial praetor who participated in the procession in the short interval between entering his office and his departure for his provincia. This explanation is not necessary. Valerius Maximus’ statement that Furius Bibaculus had six lictors probably should be rejected altogether. Lactantius (Inst. Div. 1.21), who has this same story and follows the same source as Valerius, does not specify the number of lictors: Valerius may have made up the number himself. In the Empire, praetors do seem to have been accompanied by six lictors in Rome
Additional Notes 665
(Mart. 11.98.15; cf. D.C. 53.13.4). Valerius Maximus may have thought that the same was true for the Republic, or he simply may have ascribed the practice of his own day to Furius Bibaculus for rhetorical effect. Indeed, “Bi-baculus” implies two (see below). The detail of the duo lictores finds confirmation in Plautus’ Epidicus lines 23–28 (ca. 190 b.c.). Although the setting of the relevant passage is at Athens, the coloring is Roman. The joke is that Epidicus is acting like the urban praetor. Thespio says to him, “at unum a praetura tua, | Epidice, abest | . . . lictores duo, duo ulmei | fasces virgarum.” Cicero speaks of two lictors as the normal number for the praetor urbanus. In a (highly rhetorical) section of the De Lege Agraria (2.93) on the conduct of certain magistrates in Capua at the time of the Social War, he relates: “These men wished to be called ‘praetors’, though in other colonies they were called duoviri . . . also, lictors walked before them, not with staffs (bacilli), but paired, with fasces—as they precede urban praetors here (ut his praetoribus urbanis anteeunt).” The one detail of this passage that Cicero could hardly exaggerate is the number of lictors, which was certainly known to his audience, the Roman People. A further point: no Latin author uses “praetores urbani” to encompass both praetors at Rome, that is, the urban and peregrine praetor (though cf. “duae urbanae provinciae” at Liv. 43.11.8 and 45.44.2). But one must infer (indirectly) from this passage that the peregrine praetor had two lictors as well. He could hardly have more than the praetor urbanus. A third reference to duo lictores, again in connection with the praetor urbanus, occurs in a well-known passage in Censorinus (Natal. 24.3 = RS II 44): In the XII Tables it is written as follows: “The setting of the sun shall be the last part of the day (suprema tempestas).” But afterward M. Plaetorius the tribune passed a plebiscite, in which it is written: “praetor urbanus qui nunc est quique post hac fiat duo lictores apud se habeto isque supremam ad solem occasum iusque inter cives dicito.”
(The text is that of our oldest manuscript, the eighth-century Coloniensis 166.) The verb fiat is certainly strange, and the words “isque . . . inter cives dicito” make no sense as they stand. The text has accordingly often been emended (see the discussion of J. A. Crook, Athenaeum 62 [1984] 586–595), but no convincing solution has yet emerged. (The precise extent and nature of the lacuna cannot be known, of course.) But most puzzling of all is the phrase “qui nunc est.” This law must be changing an existing function of a current magistrate. In addition to the textual mess, it is doubtful whether Censorinus is quoting accurately. Varro also refers to the lex Plaetoria, but differs from our text of Censorinus: L. 6.5 “lex Plaetoria (Pretoria, MS.) id quoque tempus esse iubet supremum quo praetor in comitio supremam pronuntiavit populo.” The fact that Varro in this passage does not mention the duo lictores need not bother us, since his principal interest in this lex is its redefinition of the word suprema. And the date of the lex Plaetoria is likewise irretrievable. Two of the elements in this lex—the duo lictores and the urban praetor’s administration of justice inter cives—may not be new measures, but in fact tralatician, thus complicating matters all the more (though the imperatives suggest they
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are not). However, the redefinition of suprema (for which the passage is quoted by Censorinus and Gellius) must definitely be a new feature. The praetor, within limits, was given power to announce it (i.e., he could set his own working hours). Mommsen believed that the law could not be older than the mid-third century, arguing that the designation praetor urbanus assumes the existence of the peregrine praetor (St.-R. I3 384 n. 2). In this he is followed by Münzer, RE s.v. Plaetorius 10 col. 1947; cf. also F. Millar, JRS 79 (1989) 146 (“not earlier than 242”). Though this view has been challenged (see Kunkel, Staatsordnung 121 n. 67), it is probably true: we have seen (in 4.2) that the term praetor urbanus very likely dates back only to the mid-third century. J. A. Crook (Athenaeum 62 [1984] 594) has suggested that the lex Plaetoria was occasioned by the creation of the praetor inter peregrinos, which he dates ca. 242: “[T]he lex Plaetoria was the very statute that set up the new structure of two jurisdictional praetors . . . [T]he creation of the new post would be bound to necessitate a redefinition of the privileges and powers of the original one.” Crook’s hypothesis makes a fair argument, but is not decisive. As Münzer (RE s.v. Plaetorius 10 col. 1947) has pointed out, all the known Plaetorii belong to the last 150 years of the Republic, that is, after ca. 200. In addition, the details in the Censorinus passage that Crook considers a “redefinition” of the powers of the praetor urbanus may be partly tralatician. It is impossible to ascertain exactly how important or innovative this law actually was. The evidence of Valerius Maximus, our only authority for a city praetor’s six lictors, is too uncertain to use. But it seems practically necessary to suppose that the praetor originally did have six lictors in Rome, a number that at some point was reduced. The terminus ante quem for this (presumed) reduction is provided by Plautus (ca. 190). Such a change would not be introduced at random: it should reflect a real innovation in the nature of regular magistrates with imperium. If not original to 366, the creation of the praetor inter peregrinos in the 240s (and with it, the introduction of the designation “urbanus” for the original praetor) is just one of several possible occasions for the institution of two lictors for the praetor in the city. The innovations of 227 (4.3.3 above, two additional praetors for Sicily and Sardinia) or (perhaps) 197 (5.3.2 above) can be said to have led to a “redefinition” of the role of the urban and peregrine praetors. Since the function of these offices was planned to change, the insignia of the urban praetor—and probably the peregrine praetor—may have undergone a metamorphosis as well, at least domi. (In support of 227 as a terminus post quem see K.-H. Vogel, ZRG 67 [1950] 99–104, but with an unacceptable hypothesis that the two lictors represented a minimum requirement for attendance.) Nevertheless, the year 197 itself should probably be excluded as the precise date for a change in the number of the city praetors’ lictors. In that year, two new praetors were granted consular imperium (i.e., attendance by twelve lictors) to serve as governors of the Spains; it would be surprising if the Romans introduced two (possibly irritating) innovations at the same time. Two final observations: On the basis of Valerius Maximus’ story of L. Bibaculus, Arriat (Le préteur pérégrin 11) made the interesting suggestion that praetors were entitled to six lictors on ceremonial occasions, but in their everyday activities used only two. Once the Valerius Maximus “evidence” is taken away, that hypothesis can no longer stand. But Arriat may have a point. There is every reason
Additional Notes 667
to think that, at funerals, ex-urban praetors would always be represented by six lictors; at these occasions, other high magistracies seem to have received the grandest insignia to which they were entitled (cf. Plb. 6.53.7–8 with 2.2.2 above). Another possibility is that the two lictors applied to the praetor only in connection with his court of law, which of course was just one of the many tasks he performed. Here one can appeal to Polybius, who uses strathgo;~ . . . eJxapevleku~ of a praetor acting as Senate president in 155 (33.1.5); but Cicero (Agr. 2.95, on praetors on the move) seems to gainsay him. XI. The Praetorian Colleges of 185, 177, and 166 For the year 185, Livy used mostly Polybius; he did not have (or did not use) a full annalistic source. As Nissen noted, in Livy’s report of this year “there is missing the allotment of provinciae, the expiation of prodigies, and, especially, all the activities of the consuls in Rome” (Kritische Untersuchungen 224). To this list of omissions we should add that Livy’s report of the praetorian elections for 185 (39.23.2) is probably mistaken. “Praetores facti P. Cornelius Cethegus A. Postumius Albinus C. Afranius Stellio C. Atilius Serranus L. Postumius Tempsanus M. Claudius Marcellinus.” The first and last men on this list are actually non-entities, who have no recorded activities in this year. Münzer (RE s.v. Cornelius 95, followed by Broughton, MRR II 551) identifies Cethegus with P. Cornelius (L.f. P.n.) Cethegus, aed. cur. 187, cos. 181 (prorogued into 180), and Xvir agris dandis assignandis 173. However, we readily can transfer all these offices to a very real character by the same name, who held the praetorship in the next year, P. Cornelius Cethegus (Liv. 39.32.14, 38.2, 39.15). If we excise the otherwise unknown Marcellinus and Cethegus from the praetor list for 185, we have a ready candidate for one of the two vacancies which results: A. Manlius Vulso, cos. 178, for whom our sources register no praetorship. (See G. Rögler, Klio 40 [1962] 101, who suggests this very solution.) Barring special dispensation, it probably was impossible to reach the consulship without it in this period—especially after the lex Villia Annalis of 180 (Liv. 40.44.1). An interval of seven years between praetorship and consulship seems quite representative of the fortunes of the Manlii Vulsones at this time. L. Vulso, pr. 197, never reached the consulship, and Cn. Vulso took six years (pr. 195 and cos. 189). Broughton (MRR I 361, with expanded argumentation in III 137) suggested that A. Manlius Vulso was praetor suffectus in 189 (presumably to replace L. Baebius Dives, who died on his way to Hispania Ulterior). This cannot be right. Suffecti do not seem to be elected when provincial praetors die in office, however early in the year; and Livy tells us exactly how the Romans compensated for this particular mishap (see Additional Note IV). Cn. Cornelius Scipio and C. Valerius Laevinus served as prr. 179 (in the peregrine jurisdiction and Sardinia respectively—Liv. 40.44.2 and 7), but are reported as elected praetors again for 177, with no mention of iteration of office (41.8.1). They are not wanted. If their names are retained, the total of praetors for that year would be six. Under the lex Baebia of 181 (Liv. 40.44.2), there should have been only four praetors elected in 177. The law was probably observed: it is suspicious that Livy (41.8.3) reports “Scipio et Laevinus Galliam in duas divisam provincias sortiti sunt,” an unparalleled arrangement for this period. And it is difficult to see how, if there
668 The Praetorship in the Roman Republic
were two praetors in Gaul, the Ligurians could launch a surprise attack on Mutina (41.14.1–2). We are told that the consul C. Claudius Pulcher was forced to proceed from Rome to deal with the invaders: there is no mention of Cornelius or Valerius in the field. In addition, one of these two praetors, C. Valerius Laevinus, was elected cos. suff. in 176. A consulship in the year following a praetorship is not found for the post-Hannibalic period, and would be particularly strange, now that the lex Villia Annalis was in effect. Probably a late annalist thought there ought to be six praetors, and invented two—Cn. Scipio and C. Laevinus—when he found only four. There is also a problem with the arrangements for 166, the last year for which we have Livy. The exact assignment of provinciae to the praetors of this year is unknown; it cannot be based on the supposition that the order of names of praetors at Liv. 45.44.2 is parallel to the order followed in the list of provinciae assigned (see D. Wilsdorf, LSKPh 1 [1878] 94; cf. Münzer, RE s.v. Licinius 131 col. 452; H. Gundel, RE s.v. Quinctilius 13, col. 904; MRR I 437 n. 1). Livy employs a similar narrative technique (i.e., a list of praetors elected, followed by a list of the provinciae decreed for the sortition) when describing the arrangements for 171 (42.28.5–6), 169 (43.11.7–8), and 168 (44.17.5 and 9). Only for 168 do the two lists match up with what was actually allotted (44.17.10); because of the stress of the war with Macedonia, the sortition might even have been fixed by electoral order (on this, see further Appendix B.9). XII. Commands in Greece 214–205: The Principle of “Persistence” of Consular or Praetorian Imperium The first eight years of the Second Punic War saw intense fighting in Italy, Sicily, and Spain. Some pressure was released after 211, when Sicily had been rid of the Carthaginians. However, there is no point in the Hannibalic period when the Senate felt it could make a substantial administrative and military commitment to the east. As we have seen in 8.5.1, the first Roman commander with imperium to cross the Adriatic with a military force during this conflict was M. Valerius Laevinus, pr. 215, who sailed to Illyria as pro pr. in 214, and then had to remain in Greece for a further three years. Laevinus took with him (at most) a Roman legion and fifty ships (Liv. 24.11.3; 40.5 and 8). This, in fact, was larger than the force that his successor, the pro cos. P. Sulpicius Galba, was to hold in the years 210–206 (in general, see Brunt, Italian Manpower 666, and cf. J. W. Rich, PCPhS 30 [1984] 152–155, who thinks the size of Laevinus’ force is much exaggerated). After some quick initial military action in 214 that saved Oricum and Apollonia (MRR I 260 and 261), Valerius made no move against Philip for the next two years (213 and 212), but instead launched a diplomatic offensive, all in a bid for an alliance with the Aetolian League; the object was to embroil Philip in a Balkanwide war and thus forestall the possibility of him crossing to Italy and joining forces with Hannibal. The Aetolians agreed to a treaty in late summer 211, though its final ratification came only in 210 (Liv. 26.24.1–16, with E. Badian, Latomus 17 [1958] 197–206, and cf. F. W. Walbank, Commentary II 11–13 and Rich, PCPhS 30 [1984] 155–157). For his part, the praetor
Additional Notes 669
Valerius, making good on Rome’s end of the bargain, in autumn and early winter 211 effectively debarred Philip’s fleet from entering the Corinthian Gulf (26.24.15–26.3). It was at Anticyra in early 210 that M. Valerius Laevinus heard what must have been not entirely unexpected news: “He had been elected consul in his absence, and P. Sulpicius [cos. 211] was coming as a successor” (26.26.4). The war had spread beyond a standoff in south Illyria into a major conflict encompassing the entire peninsula, and the Senate had decided that a consular commander should take over the Roman fleet. Hannibal’s presence in Italy meant that P. Sulpicius Galba only made it to Greece as pro cos. in early 210. There he remained as the sole Roman commander with imperium from 210 through 206 (MRR I 287, 292, 296, and 300). Galba was highly competent, yet by autumn 206 the Aetolians were so hard pressed by Philip’s raids and so disheartened by Rome’s failure to respond to their requests for further military assistance that they decided on making peace with the Macedonians (Plb. 11.7.2–3; Liv. 29.12.1; 32.21.17 and 36.31.11 [both from speeches], with Walbank, Commentary II 278–279 for the chronology). The Aetolians had already arranged for peace on Philip’s terms—the Peace of Phoenice—by the time long-awaited help came from Italy. P. Sempronius Tuditanus, a privatus with consular imperium, crossed to Greece in 205 as Sulpicius’ successor, bringing ten thousand infantry, one thousand cavalry, and thirty-five additional ships (Liv. 29.12.2). (J. W. Rich, PCPhS 30 [1984] 136–151, offers an alternative chronology for these events, with Tuditanus arriving in Greece in 206, but it is far from compelling in its details.) Livy wholly omits the background and mechanics of P. Sempronius Tuditanus’ extraordinary appointment as Galba’s successor, forcing us to reconstruct these items for ourselves. Tuditanus, a hero at Cannae (MRR I 251), was a man of some experience, having served as pr. 213 in Gaul (and pro pr. there through 211), as well as censor in 209. His special command is significant in two respects. First, it illustrates the emergence of the principle of what we may call the “persistence” of consular imperium. Once a provincia had been declared consular, it tended to remain consular for some time, even if a shortage of suitable commanders already holding consular imperium meant resorting to a special vote by the People. Similar decisions had been made in 215 (the command of M. Claudius Marcellus to fight against Hannibal in Campania—Liv. 23.30.19 with 8.3.1 above) and in 210 (the special consular command of P. Scipio Africanus, to replace his father in Spain— 26.18.4, etc. with 7.1.3 above). I have suggested that the Senate, in the same year as Tuditanus’ command (205), had attempted to downgrade the imperium of the command in Spain from consular to praetorian (Liv. 28.38.1 with 7.1.4 above), only to reverse the decision when the experiment failed. The privati who were to hold the Iberian peninsula received their consular imperium by a vote of the People (29.13.7); the Senate retained this development in the new, more permanent arrangements of 197. A later example of the principle of “persistence” at work is the special consular command of Ti. Claudius Nero, pr. per. 178, at Pisa in 177 (see 8.1.1 and Additional Note IX). Again, it must be stressed that the decision to create a special consular command had nothing to do with the size of the army in a particular provincia (see 7.1.4). P. Sempronius Tuditanus in Greece in 205 and Ti. Claudius Nero in 178 had
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in fact only one Roman legion. It appears, rather, that the presence of a consular commander accompanied by twelve lictors in a bellicose provincia was perceived to have an important psychological effect on the enemy, which translated into a Roman military advantage. Once the enemy was used to consular commanders, experience showed that it was inadvisable to send praetorian commanders in their stead. In noncrucial provinciae, we can even detect a principle of “persistence of praetorian imperium,” especially in the maintenance of garrison forces under praetors at Capua and Tarentum, and in Etruria during the Hannibalic War. Occasionally, we can almost glimpse the decision process at work. In 210, there seems to have been a reversal of the decision to hand Gaul to a legatus, and rather to continue to treat it as a praetorian provincia (Liv. 26.28.5; 27.7.8—see 8.3.2 above). Following the death of Quinctius Claudus Flamininus (pr. 208 and pro pr. into at least 206) at Tarentum in 206 or 205—roughly the same time as the dispatch of P. Sempronius Tuditanus to Greece—the Romans decided not to return to the policy of 214–210, when Tarentum was governed by a praefectus. Instead, the late praetor’s putative nephew, T. Quinctius Flamininus, received a special grant of praetorian imperium to continue in Claudus’ place (inferred from Liv. 29.13.6—204). There is a second significant feature to the appointment of P. Sempronius Tuditanus to serve as P. Sulpicius Galba’s successor in Greece. If Livy’s report of the arrangements for 205 is accurate, other options may have been available to solve the problem of succeeding P. Sulpicius Galba in Greece, such as sending L. Veturius Philo, cos. 206, who as it happens was not prorogued into the next year (see Liv. 28.45.9–11). L. Philo, like Tuditanus, had served as praetor in Gaul, and, as a consularis, would have been just as fully qualified for a command in the east. Moreover, there would be much less constitutional bother, since he need only be prorogued into the next year, as P. Sulpicius Galba (cos. 211) had been in 210. In truth, the appointment of Tuditanus seems to have been ad hominem, like Pompey’s to Spain in 77 “pro consulibus” (11.8.2). The fact that Tuditanus was sent as a privatus to Greece points to 206 as the year the decision was made at Rome. Although Hannibal, holed up in Bruttium, was not all that menacing by now, both consuls of 206 in their actual year of office had to be available to face the Carthaginian general if necessary. (In the event, it did not come to a fight in that year—Liv. 28.10.8; 11.8–12.9.) Meanwhile, the motions of the Aetolian League toward Philip at that time also demanded some action on the Senate’s part. The Senate’s response was largely symbolic: the appointment (or promise of the appointment) of the censorius P. Sempronius Tuditanus to bring reinforcements to Greece and to succeed the pro cos. P. Galba. Although Tuditanus and his troops and fleet could not cross until spring 205, the Senate and P. Sulpicius Galba may have adduced (we can imagine) the glorious precedent of the privatus P. Cornelius Scipio in Spain (and the like) in the hope of retaining the Aetolians (cf. App. Mac. 3.1–3—winter 207/206?—for their truculent mood at this time). As it turned out, P. Sempronius Tuditanus crossed too late. The Roman failure to break the treaty between Philip and Aetolia resulted in Tuditanus negotiating the Peace of Phoenice, and then returning to Rome to serve as consul for 204 (Liv. 29.12.1–16).
Additional Notes 671
Simply put, special considerations affected the creation of P. Sempronius Tuditanus’ command—particularly, the pressure exerted by the Aetolian League. But Sempronius’ command demonstrates that the Senate, even at this late stage in the war, was still quite willing to invest privati with imperium. This attitude is confirmed by the case of T. Quinctius Flamininus at Tarentum, who was given a special praetorian command by 205 (8.2.2). XIII. Praetorii in the Consilium of RDGE 12 (S.C. de Agro Pergameno) The S.C. de agro Pergameno seems best assigned not to 129 (as had been long supposed) but to 101 b.c.: see the discussion in 9.1.5 with n. 80 and the bibliography there collected, especially E. Badian, LCM 11.1 (1986) 16 on C. Coelius C.f., tenth in the consilium. Badian presents a strong case for identifying that man with the tr. pl. 107 and cos. 94 C. Coelius C.f. C.n. Caldus: not only does the rank fit, but his well-attested novitas (on which see below) guarantees he had no senatorial antecedents. Assuming the date of 101, how many praetorians can we identify with reasonable certainty? 1. Q. Caecilius Q.f. Aniensis First (of 55) in the senatorial consilium to RDGE 12. We would expect—given the large size of this consilium—that the individual in first position, Q. Caecilius Q.f. of the tribe Aniensis, would be a consularis. Mattingly (AJPh 93 [1972] 423) makes a good case for Q. Caecilius Q.f. Q.n. Balearicus (cos. 123), and that is the solution I adopt here. 2. C. [——]ius C.f. Menenia Our second name can be either consular or praetorian: the available possibilities (given the length of the lacuna, which allows a supplement of four letters to the nomen) are C. Atilius Serranus (cos. 106, filiation unknown), C. Flavius C.f. Fimbria (cos. 104), and C. Fannius C.f. (pr. by 118) (Mattingly, AJPh 93 [1972] 421f). But he may be an otherwise unknown senior praetorius. 3. M. Pupius M.f. Scaptia From position in this large consilium, almost certainly of (senior) praetorian status in 101 b.c. Mattingly (AJPh 93 [1972] 421) reasonably equates him with the M. Piso who adopted the future cos. 61 at an advanced age (Cic. Dom. 35 “summa senectute”) but by 91 (De Orat. 1.104). Cf. also Badian, Chiron 20 (1990) 395, accepting the identification. 4. C. Cornelius M.f. Stellatina From position likely to be of praetorian status in 101 b.c. The only Republican Cornelii known to use both the praenomina Gaius and Marcus are the patrician Cethegi, and so the identification of this man as a Cethegus (suggested long ago by Willems, Sénat I 701) seems relatively secure. Mattingly (AJPh 93 [1972] 422) presumes he is son of the cos. 160 M. Cornelius C.f. C.n. Cethegus, which seems plausible since the L. Iulius Sex.f. (Caesar), who holds seventh place in the same consilium (see below), should be son of the cos. 157.
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5. L. Memmius C.f. Menenia From position, quite conceivably a praetorius in 101 b.c. He is possibly to be identified with either the monetalis L. Memmius of RRC I 315 no. 304 (dated by Crawford to “109 or 108 b.c.”), or the L. Memmius of P. Teb. I 33 (112 b.c.), a Roman senator said to be ejn mivzoni ajxiwvati ka[i;] timh`i keivmeno~ (lines 3–6), who was to receive elaborate entertainment at public expense during his sightseeing tour of the Fayum, or both. Despite the formulation of the Egyptian document, that Memmius need not have been of praetorian standing in the year 112. In Egypt, even a pro quaestore might enjoy a lavish reception (see Plu. Luc. 2.6–9 on L. Lucullus in 86 b.c.). H. B. Mattingly, in AJPh 92 (1972) 421, goes further and regards the identification with the visitor to Egypt as certain. 6. Q. Valgius M.f. [——]lia Probably a junior praetorius or (less likely) senior aedilicius in 101 b.c. No previous Valgii are known to hold a magistracy in the Republic; on the distribution of the name, see Wiseman, NM 269 no. 460. 7. L. Iulius Sex.f. Falerna This man “can surely only be the son of Sex. Iulius Caesar (cos. 157 b.c.) and younger brother of the homonymous urban praetor of 123 b.c. In 90 b.c. his own son was consul, so that he was probably born ca. 160 b.c.” Thus Mattingly in AJPh 93 (1972) 422; Badian (Chiron 20 [1990] 389) also makes this L. Iulius fill the generation between the coss. 157 and 90. Further, Mattingly (LCM 10.8 [1985] 119) and Badian (LCM 11.1 [1986] 16) both are inclined to regard this L. Iulius as a senior praetorius in 101 b.c. But if Iulius had reached the praetorship ca. 120 or even ca. 115, we would prima facie expect him near the top of this list, not as low as no. 7—especially if Badian (LCM 11.1 [1986] 16) is right that no. 10 C. Coelius C.f. represents the grade of tribunicius. As presumptive son of a cos. 157 and father of a cos. 90, L. Iulius Sex.f. certainly seems much too old to have been a junior praetorian in 101 b.c., just three places above the tr. pl. 107 C. Coelius C.f.—whatever the latter man’s precise status at this time. So on the basis of Mattingly’s reckoning of L. Iulius’ age combined with his position in this list of senators, I suggest that Iulius rose no higher in his career than the (curule) aedileship. (As a patrician he obviously cannot have held the plebeian aedileship or tribunate of the Plebs, and the placement of C. Coelius C.f. below this individual disallows the possibility he is a mere quaestorius.) 8. C. Annius C.f. Arnensis 9. C. Sempronius C.f. Falerna 10. C. Coelius C.f. Aemilia 11. P. Albius P.f. Quirina 12. M. Cosconius M.f. Teretina It is a pity that we can securely identify neither no. 8, C. Annius C.f., nor no. 9, C. Sempronius C.f. This Sempronius may be the
Additional Notes 673
Longus who shows up as a senior legatus under a praetor for Sicily in the mid-90s (see 13.1.4), or, as Badian suggests (LCM 11.1 [1986] 16), a Tuditanus, namely, son of the cos. 129. C. Coelius, in place no. 10, is somewhat problematic. As noted, he was tr. pl. 107 and must have held his praetorian command in Hispania Citerior by 98 (see 13.3.2), but that is all we know for sure of the dates of his earlier cursus. Now, the fasti for Hispania Citerior are entirely open for some time down to 98, and Caldus technically can have been, for example, pr. 103 (note the new man C. Marius, tr. pl. in 119 and praetor in 115) and back in Rome as a praetorius already in 101 b.c. Yet Coelius’ moneyership (RRC I 324 no. 318, dated by Crawford to 104) makes such a reconstruction very forced indeed. P. Albius P.f., listed eleventh, is very probably a praetorius by 91 (see Appendix B n. 190), but there is no telling precisely when he reached the office. The last highly-ranked senator in this list who allows identification is no. 12, M. Cosconius M.f., who should be son of the pr. ca. 135. Mattingly assumes he is already of praetorian rank (LCM 10.8 [1985] 119), but without sufficient warrant; as Badian points out (LCM 11.1 [1986] 16), “the son of the praetor may well be born about 140 and is perhaps more plausibly regarded as still too young for praetorian status.” In sum, if no. 7, L. Iulius Sex.f., was really an aedilicius, this would mean that C. Annius C.f., C. Sempronius C.f., C. Coelius C.f., and all the other members of the consilium below position no. 7 were of subpraetorian status in 101. XIV. Verres’ Attested Movements in His Sicilian Provincia, 73–71 Cicero cites the grievances of over fifty individual Sicilian communities against Verres: for a roster, see L. Havas, ACD 5 (1969) 63–75. But Cicero does not offer too many particulars of Verres’ personal contact with these towns. A list (however brief) may be instructive: the sheer amount of detail Cicero provides is meant to demonstrate that Verres’ rapacity touched every corner of the provincia. At Catina, Verres is said to have visited (and stolen from) its shrine of Ceres (Ver. 2.4.100). Verres apparently also personally stole from the town of Henna in the interior (2.4.109–113). Much further west, Verres can be placed at Segesta soon after his arrival in 73 (2.4.76). He also was at Lilybaeum that same year: he overturned his quaestor’s decision in an important case that involved a praefectus of M. Antonius (Div. Caec. 56). It was at Lilybaeum “during the height of the slave war in Italy” that Verres investigated a conspiracy of slaves from the evocative site of Triocala (Ver. 2.5.12–14). Indeed, Verres seems to have had a house at Lilybaeum (2.4.32), and perhaps also one at Agrigentum (2.4.94). On the north coast, Verres is said to have been a “frequent” guest of Sthenius of Thermae (2.2.83), and a dinner guest of Eupolemus of Calacte (2.4.49). Verres travelled also to Haluntium on his assizes, says Cicero, but he was too lazy actually to make the steep ascent to the town, and so had his subordinates rob it for him (2.4.51). Further east (but still on the north coast) at Tyndaris, Verres enjoyed the hospitality of one Dexo (2.5.108); on his first visit to the town the praetor robbed it of its statue of Mercury, which he had shipped to Messana (2.4.85).
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Messana was Verres’ favorite town in Sicily (2.4.3), says Cicero, and complicit in many of the praetor’s predations (see esp. 2.2.13 and 4.23), for which it received a vacatio from all of its treaty obligations (2.4.150, 5.58, and passim in the speech). Verres entered the province through Messana in 73 (2.2.19); it was there that his unexpected arrival led to the apprehension and crucifixion of P. Gavius in (perhaps) 71 (2.5.160–170). Messana was the home of the festival known as the “Verria” (2.4.24) and the only town to grant the praetor a eulogy at his trial (2.5.57)—with a man Verres had personally stolen from as head of the deputation (2.4.7). Of the other major cities, Tauromenium (a civitas foederata on the east coast) does not seem to have suffered too badly (yet see 5.49–50, 56). Verres must have largely respected its status, or at least stayed away. Though he evidently had some friends in the town (5.165), the people of Tauromenium still threw down his statue on departure (2.2.160). Cicero only once (as far as I can tell) states that Verres had never visited a certain place—the distant island of Melita, the furthest point in the province (2.4.103). XV. Some Possible Praetorian Commands of the Years 50–49 T. Furfanus Postumus, ??pr. for Sicily before 5o In late January 49, an S.C. ordained that one L. Postumius should immediately proceed to Sicily to succeed T. Furfanus Postumus (Cic. Att. 7.15.2 “Postumus autem, de quo nominatim senatus decrevit ut statim in Siciliam iret Fufanoque succederet,” with Shackleton Bailey, CEF II 403 and Two Studies2 25 on the name Furfanius/ Furfanus), though it seems he was to do so only as a preliminary to the arrival of M. Porcius Cato (pr. 54). Cicero (Att. 7.15.2) relates that Postumius declined the appointment, and so the Senate chose instead a certain C. Fannius, who received imperium for the task. But in early March, Fannius was still cum imperio in Italy (Att. 8.15.3), and later shows up in Asia (MRR II 262). The praetorius Cato did make it to his command in Sicily (sources in MRR II 263). Broughton had tentatively listed Furfanus as a quaestor in 51, and pro quaestore in 50 and early 49 (MRR II 241, 250, 262); the rank he suggested is merely an inference from this passage. We do happen to know a bit about this man’s career. In Milo’s trial of 52, Furfanus evidently had served as one of the jurors (Mil. 74–75 “huic T. Furfanio, cui viro . . . tali viro”). Asconius (p. 38 C) says they were drawn from a panel that was especially distinguished (“numquam neque clariores viros neque sanctiores propositos esse”). So Sumner suggested that Furfanus was already of senatorial status and thus quaestorian rank by that year, and indeed had reached the praetorship before taking up his post in Sicily. Shackleton Bailey concurs, as does Broughton: “[I]n view of the decree of 53 setting an interval of five years between city magistracy and provincial command . . . his praetorship would date from 55 at the latest” (MRR III 96, giving also citations for Sumner and Shackleton Bailey). But a stipulated interval between magistracy and promagistracy passed into law only in 52 (see 11.1.7). And in the year 52, that panel of jurors—360 in number—also included Velleius Paterculus’ grandfather, who rose no higher than praefectus fabrum (Vell. 2.76.1), and thus remained an eques. It is certainly conceivable that Furfanus had only
Additional Notes 675
equestrian status in 52—the way Cicero refers to him in the Pro Milone need suggest no more—with election to a quaestorship for 51 or even 50. That the Senate decreed L. Postumius should “succeed” Furfanus in itself implies nothing about the rank of either individual. Cicero elsewhere speaks of a quaestor “succeeding” a pro quaestore in Syria (Fam. 2.17.5, the year 50) as well as a quaestor or pro quaestore being “succeeded” in Macedonia (see 5.6.1 for supersession by another quaestor, 13.29.4 by a proper commander). But the very fact Furfanus was sitting in Sicily in January 49 waiting for a successor may support the notion he had only quaestorian status. Furfanus prima facie had served his requisite time in Sicily by the end of 50 if the Senate was debating on how to relieve him in early 49. If he really was a praetorian commander, in this era he need not have waited through the winter for the Senate’s decision, but can have simply delegated control of the provincia to a subordinate and headed home. That, at any rate, is the course of action many commanders whose term expired in 50 chose. At the time of the Senate’s decree on Sicily, quaestors were holding the provinciae of Syria, Cilicia, Asia, and Macedonia, while a legatus had been left in charge of Africa (references in MRR II 249–250, 253). (Legati also held the two Spains, the two Gauls, and Illyricum, but under quite different circumstances.) In 45, Furfanus reappears in Sicily, this time as a pro cos. (MRR II 309). Though a praetorship for 46 is not directly attested, it seems a reasonable assumption (see MRR II 295). So his position in January 49 is most likely to have been pro quaestore or (just possibly) legatus. L. Postumius, ?pr. before 49 What was the status of the L. Postumius whom the Senate wanted to “succeed immediately” T. Furfanus in Sicily in early 49 (see above in this Additional Note)? The Senate is known to issue directions to all sorts of magistrates as to how or when they should proceed to such and such a provincia: see, e.g., I. Knidos I 31 Kn. IV lines 5–10 and D. B Lines 27–29 (magistrates with imperium, ca. 100 b.c.); Fam. 3.3.1 (pro coss. in 51); Fam. 2.17.5 (a quaestor in 50). So that in itself does not get us very far. But Cicero, when he says that the Senate gave Sicily to Postumius “nominatim,” should mean that it gave it to him outside the regular sortition of (praetorian) provinces (cf. Dom. 24 “extra ordinem sine sorte nominatim,” also 21 and 23). And that grant surely involved imperium (cf. Dom. 24 “nominatim rei maximae...summum virum...delectum praefecimus”), as we shall see Cicero immediately makes clear in his further discussion of the arrangements for Furfanus’ supersession. Yet Postumius demurred, declaring that “he would not go without [M. Porcius] Cato.” He also thought, Cicero tells us, that he could best put his energy and auctoritas to work in the Senate, namely, in the coming debates on Caesar’s term (Att. 7.15.2). The mention of this type of auctoritas need not imply praetorian status for Postumius. Cicero obviously felt that this man had too high an opinion of himself, as did the author of the pseudo-Sallustian Epistula ad Caesarem (2.9.4, supplying also the information that he was not a nobilis). Sumner, Shackleton Bailey, and Broughton (see MRR III 172) all identify this Postumius with the “T. Postumius” of Cic. Brut. 269, a pugnacious politician and orator who “bene iuris publici leges atque instituta cognoverat.” Perhaps this is so (with emendation of the Brutus text). But Sumner’s further suggestion that he is to
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be amalgamated with the moneyer C. Postumius of RRC I 407 no. 394 (dated by Crawford to 74) and the “Postumus” who was a candidate for the praetorship of 62 (on whom see Broughton, Candidates Defeated 38f), does not convince (thus, rightly, Shackleton Bailey, Two Studies2 37–38). A more likely possibility is the quaestor L. POS who served in Sicily in this general era (see M. Grant. ap. MRR II 479). But, on balance, all that seems secure is that L. Postumius was a privatus, possibly but not certainly of praetorian rank when he refused the Senate’s Sicilian commission in January of 49. C. Fannius, ??pr. before 49 When L. Postumius refused in early 49 to go to Sicily (see above in this Additional Note), the Senate’s choice fell on one C. Fannius: “is cum imperio in Siciliam praemittitur” (Att. 7.15.2). The verb praemittere shows that Fannius (and by implication Postumius) merely was meant to precede, and so was in a subordinate position to, the praetorius M. Cato. (See, e.g., Catil. 2.26, where Cicero uses praemittere of himself as consul sending a praetor into the field.) Now, Fannius was a tr. pl. of 59 (MRR II 189), who in 56 was said to have had good prospects for high curule office (sources and discussion in Broughton, Candidates Defeated 36). Broughton once counted him as pr. 54 (MRR II 222), but that is only a guess based on his (presumed) status in 49. He should have been of praetorian age by 49 (Sumner, Orators 145). In addition to the notice on the Senate’s Sicilian deliberations of January 49, Cicero in early March of that year mentions C. Fannius among those cum imperio in Italy and thus able to cross to Greece (Att. 8.15.3), a group that includes Pompey, Q. Metellus Scipio (cos. 52, and now pro cos. under the lex Pompeia), a possible expraetor, and perhaps even a commander waiting ad urbem for a triumph vote (see below in this Additional Note) as well as a few men of indeterminate status. It is a very mixed group, and not particularly illuminating for the problem at hand. As mentioned above (see above in this Additional Note on T. Furfanus Postumus), Fannius soon appears not in Sicily but Asia. Josephus knows of this man, and calls him (apparently) “pro pr.” (AJ 14.230 ajntistrathvgou, though note MSS. ajrcistravthgou) in the context of the year 49, but also (most oddly) has him offer “consul” (14.233 strathgo;~ u{pato~) as his title in the prescript of an undated letter to the Coans. Fortunately, we are not totally at the mercy of this source, since Fannius minted coins with the legend C FAN-PONT PR at Apameia, Ephesus, Laodiceia, and Tralles (Stumpf, Numismatische Studien nos. 57–67). Of these, the Ephesian issues, two in number (Stumpf nos. 58 and 59), both belong to the “Year 86,” that is, between 24 September 49 and 23 September 48. Broughton suggests that “the legend PR may stand for pr(o praetore)” (MRR III 90, with discussion on whether Fannius was killed in 48 or not). But that abbreviation is hard to parallel: I know of no good example in the epigraphy of the Republican period. With all due caution, I offer that Fannius was a privatus, probably still of subpraetorian rank, when the Senate decided to grant him imperium for Sicily in January 49. He was pro pr. in 49 (as Josephus has him at AJ 14.230), but for 48 he was “praetor,” which is precisely what the legend and date of his coin issue suggest. On this interpretation, he will have received his praetorship at the elections the
Additional Notes 677
anti-Caesarian government staged at Thessalonica in the winter of 49/48 (see D.C. 41.43; cf. Caes. Civ. 3.82.3). Fannius was functioning as “praetor” in Asia at least by mid-March of 48, to judge from the fact he is able to mint in conjunction with two separate colleges of Ephesian moneyers in “Year 86” of the provincia. Fannius’ use of the title of “praetor” on his coins does not preclude the possibility that he held consular imperium for 48, as the example of Q. Oppius (pr. for Cilicia by 89) shows (see 10.1). Indeed, that might just possibly provide the background to Josephus’ confusing notice of his status at AJ 14.233. If Fannius wrote that letter to the Coans in 48, it is perfectly possible that he used the title strathgo;~ ajnquvpato~, and that the second element in his title was truncated to u{pato~ at some stage in the later transmission of that document. Or the mistake may belong to Josephus’ copyists (remember ajrcistravthgou at 14.230 for ajntistrathvgou). Voconius, cum imperio in 49 Cicero lists a Voconius among those cum imperio in Italy in early March 49 (Att. 8.15.3). Two holders of this nomen are known to be active in the later years of the free Republic. First, a Voconius commanded (or was supposed to command) a fleet under L. Lucullus at Nicomedia in (apparently) 72: Plutarch (Luc. 13.1–2) relates how this Voconius’ ill-timed decision to be initiated in the Samothracian mysteries allowed Mithridates to sail unobstructed through the Bosporus in flight. Second, there is Q. Voconius Naso, who was presumably (plebeian) aedile in 67, for he was a iudex quaestionis in 66 (see MRR II 153, also 11.7.4 above). He was an ex-praetor when he served as iudex in a private suit in Rome that dates to either the year 60 or 59 (Cic. Flac. 50, not listed in Alexander, Trials). In view of the rarity of the nomen, there is a good chance that he is to be identified with Voconius the fleet commander—and also with the Voconius who was cum imperio in Italy in 49. If Q. Naso had not taken up a promagistracy after his praetorship—as certainly seems possible—as a praetorius he was liable to receive a provincia under the provisions of the lex Pompeia of 52.
APPENDIX A
Table of Commands of Some Imporant Provinciae, 219–50 A.1. Location of the Praetor inter Peregrinos in His Year of Office, 219–198 (Individuals in parentheses) = not specifically attested by Livy as peregrine praetor. Location of the praetor inter peregrinos when prorogued can be found in the charts in A.3. Name
Place
Titulature in Livy; remarks
219 218
(L. Manlius Vulso) (C. Atilius ?Regulus)
Gaul Gaul
217
M.(?) Pomponius
Rome
216
M.(?) Pomponius Matho
?Latium
215
M. Valerius Laevinus
Luceria
214 213 212
(Q. Fabius Maximus) M.’(?) Aemilius Lepidus P. Cornelius Sulla
Apulia Luceria Rome
211 210
(M. Cornelius Cethegus) (C. Laetorius)
Apulia Gaul
209 208 207 206
L. Veturius Philo P. Licinius Crassus (L. Porcius Licinus) Q. Mamilius Turrinus
Gaul ?Rome Gaul Gaul
Found in Gaul in early summer 218 Sent in early summer 218 to Gaul to rescue L. Manlius. Dismissed by cos. P. Scipio; returns to Gaul before end of year In the city at the time of the Trasimene disaster inter cives Romanos et peregrinos. Found in city after Cannae, and again at end of year. Departs Rome at very end of 216 to replace L. Postumius Albinus (pr. 216), who had fallen in Gaul (see Additional Note III) peregrina sors in iurisdictione. Said to have set up tribunal with pr. urb. at piscina publica before leaving city for Apulia Provincia later defined as Luceria peregrina sors provincia urbana et peregrina; other three provinciae in this year are all special Must be pr. per., despite silence of Livy Must be pr. per. Gaul may have been initially given to a legatus; C. Laetorius is there by end of year peregrina cum Gallia peregrina et quo senatus censuisset Must be pr. per. (provincia) peregrina
679
680 Appendices A.1. (continued) Name
Place
Titulature in Livy; remarks
205 204
(Sp. Lucretius) L. Scribonius Libo
Gaul Gaul
Must be pr. per. peregrina et eidem Gallia
203 202
(P. Quinctilius Varus) (M. Sextius Sabinus) or (M. Livius Salinator) (M. Valerius Falto)
Gaul Gaul ?Bruttium Bruttium
Must be pr. per.
(L. Furius Purpurio) or (Q. Minucius Rufus) (Cn. Baebius Tamphilus) (C. Helvius)
Gaul ?Bruttium Gaul Gaul
201 200 199 198
Less likely Must be pr. per.; Gaul declared consular this year Less likely Must be pr. per. Must be pr. per.
681 T. Otacilius (12) Crassus > [T. Otacilius (12) Crassus] Ap. Claudius (293) Pulcher
P. Cornelius (200) Lentulus
217
216
214
215
M. Aemilius (19, 67) (Lepidus)
218
West Sicily
T. Otacilius (12) Crassus (pr. II)
[[T. Otacilius (12) Crassus]]
[T. Otacilius (12) Crassus]
CN. SERVILIUS (61) GEMINUS
TI. SEMPRONIUS (66) LONGUS
Fleet (including permission to raid coast of Africa)
M. CLAUDIUS (220) MARCELLUS [Ap. Claudius (293) Pulcher]
?{Sex. Pomponius (14)} (legatus of Ti. Longus; “fleet” off Vibo) ?
East Sicily/ south Italian coast
Full references for the commanders in this list can be found in MRR. I have added RE numbers after the names. (Parentheses around names) = position not reported in ancient sources. Praetorian commanders are in normal type, consular commanders are in capitals. [Single brackets] = prorogued commanders [[Double brackets]] = special grants of imperium from the People {Curly brackets} = legati, quaestors, or praefecti who held or may have held imperium (only the more important examples are listed) = not original provincia = never arrived in allotted provincia Extended arrows = complex responsibility (selectively listed)
[M. VALERIUS (211) LAEVINUS] [M. VALERIUS (211) LAEVINUS] Sex. Iulius (147) Caesar (?returned early from provincia)
209
208
L. Cincius (5) Alimentus
210
211
[P. Cornelius (200) Lentulus]
213
West Sicily
A.2 (continued)
[M. VALERIUS (211) LAEVINUS]
?{M. Valerius (251) Messalla}
{M. Valerius (251) Messalla}
[T. Otacilius (12) Crassus]
[T. Otacilius (12) Crassus]
[T. Otacilius (12) Crassus]
Fleet (including permission to raid coast of Africa)
[L. Cincius (5) Alimentus] (active at Locri)
[M. CLAUDIUS (220) MARCELLUS] [Ap. Claudius (293) Pulcher] {T. Quinctius (38) Crispinus} (replaced Ap. Pulcher in late 213) [M. CLAUDIUS (220) MARCELLUS] [M. CLAUDIUS (220) MARCELLUS] ?{D. Quinctius (7)} (fleet at Rhegium) <M. Cornelius (92) Cethegus> (arrived in Sicily after Marcellus’ departure) M. VALERIUS (211) LAEVINUS ?[M. Cornelius (92) Cethegus] (?prorogued until Laevinus’ arrival) ?{D. Quinctius (7)} [L. Cincius (5) Alimentus]
East Sicily/ south Italian coast
[C. Aurunculeius (1)] (fleet sent from Spain by P. Scipio)
[T. Otacilius (12) Crassus] (based in Sicily) [T. Otacilius (12) Crassus] (based in Sicily)
[T. Otacilius (12) Crassus] (based in Sicily)
West coast of Italy
[C. Aurunculeius (1)]
C. Aurunculeius (1)
P. Manlius (98) Vulso
L. Cornelius (187) (Lentulus)
[Q. Mucius (19) Scaevola]
[Q. Mucius (19) Scaevola]
Sardinia/Corsica
683
[M. VALERIUS (211) LAEVINUS] C. Servilius (60) (Geminus) L. Aemilius (109) Papus
M. Pomponius (19) Matho (received entire provincia after Scipio’s departure)
P. Villius (10) Tappulus
Cn. Tremelius (4) Flaccus
P. Aelius (152) Tubero
206
205
204
203
202
201
207
[P. Villius (10) Tappulus] (defensive only)
[P. CORNELIUS (336) SCIPIO] (permission to invade Africa) {C. Laelius (2)} {L. Cornelius (337) Scipio} [M. Pomponius (19) Matho] (defensive only)
{C. Laelius (2)}
[M. VALERIUS (211) LAEVINUS]
M. Pomponius (19) Matho (investigated Pleminius affair)
P. CORNELIUS (336) SCIPIO (also captured Locri) ?{L. Cornelius (337) Scipio} (?left pro pr. in temporary command at Messana) {Q. Pleminius (2)} (garrisoned Rhegium, then Locri as pro pr.)
C. Mamilius (5) Atellus
[Cn. Octavius (16)] (Sardinian coast; also protected convoys to Africa) (Italian coast; also supplied Scipio in Africa) [P. Cornelius (214) Lentulus] [Cn. Octavius (16)] (both Lentulus and Octavius were active off the African coast) ?{M. Marcius (86) Ralla} (served under Scipio in Africa; termed legatus)
[Cn. Octavius (16)] (supplied Scipio in Africa)
A. Hostilius (10) Cato Ti. Claudius (62) Asellus Cn. Octavius (16)
M. Fabius (54) Buteo
?{An unknown legatus} (?held command in Sardinia in absence of commanders with imperium)
P. Cornelius (214) Lentulus
Ti. Claudius (249) Nero
Cn. Octavius (16)
Ti. Claudius (62) Asellus
A. Hostilius (10) Cato
684
[M. Pomponius (18; cf. 20) Matho]
[M. Pomponius (18; cf. 20) Matho]
215
214
216
217
[L. Manlius (92) Vulso] C. Atilius (11) P. CORNELIUS (330) SCIPIO TI. SEMPRONIUS (66) LONGUS CN. SERVILIUS (61) GEMINUS C. FLAMINIUS (2) [[C. Centenius (1)]] L. Postumius (40) Albinus
218
Gaul
Conventions as in A.2
[C. TERENTIUS (83) VARRO]
[C. TERENTIUS (83) VARRO]
Picenum
Etruria
A.3. Commanders in the Italian peninsula, 218–176, 91–88
Q. FABIUS (116) MAXIMUS dict. M. Minucius (52) Rufus mag. eq. M. IUNIUS (126) PERA dict. Ti. Sempronius (51) Gracchus mag. eq. TI. SEMPRONIUS (51) GRACCHUS Q. FABIUS (116) MAXIMUS [[M. CLAUDIUS (220) MARCELLUS]] Q. FABIUS (116) MAXIMUS M. CLAUDIUS (220) MARCELLUS (later Sicily)
Suessula/Capua/ Campania
C. TERENTIUS (83) VARRO [[Cn. Servilius (61) Geminus]] TI. SEMPRONIUS (51) GRACCHUS M. Valerius (211) Laevinus {P. Valerius (181) Flaccus} (coast) [TI. SEMPRONIUS (51) GRACCHUS] (later Campania) Q. Fabius (103) Maximus (the son)
Q. FABIUS (116) MAXIMUS [M. CLAUDIUS (220) MARCELLUS] M. CLAUDIUS (220) MARCELLUS
M. CLAUDIUS (220) MARCELLUS [CN. FULVIUS (43) CENTUMALUS]
CN. FULVIUS (43) CENTUMALUS M. Cornelius (92) Cethegus (later Sicily)
[M. Valerius (211) Laevinus] (crosses to Greece) Q. FABIUS (103) MAXIMUS (the son) TI. SEMPRONIUS (51) GRACCHUS M.’(?) Aemilius (cf. 67) Lepidus Cn. Fulvius (54) Flaccus
T. QUINCTIUS (38) CRISPINUS
Q. FULVIUS (59) FLACCUS
[TI. SEMPRONIUS (51) GRACCHUS]
TI. SEMPRONIUS (51) GRACCHUS
686
203
204
[M. LIVIUS (33) SALINATOR] Sp. Lucretius (13) [[?M. Valerius (211) Laevinus]] [M. LIVIUS (33) SALINATOR] L. Scribonius (16) Libo [Sp. Lucretius (13)] [M. CORNELIUS (92) CETHEGUS] P. Quinctilius (12) Varus [Sp. Lucretius (13)]
Q. Mamilius (13) Turrinus
206
205
M. LIVIUS (33) SALINATOR L. Porcius (22) Licinus [[?L. Manlius (46) Acidinus]]
C. CLAUDIUS (246) NERO (also north Italy) {Q. Catius (3)} left sine imperio [Quinctius (Claudius 151) Claudus Flamininus] (Tarentum) [Quinctius (Claudius 151) Claudus Flamininus] (Tarentum) (?dies)
P. SEMPRONIUS (96) TUDITANUS [P. LICINIUS (69) CRASSUS]
L. VETURIUS (20) PHILO Q. CAECILIUS (81) METELLUS P. LICINIUS (69) CRASSUS [Q. CAECILIUS (81) METELLUS]
C. CLAUDIUS (246) NERO [Q. FULVIUS (59) FLACCUS]
Lucania/Bruttium
687
C. AURELIUS (95) COTTA
Cn. Baebius (41) Tamphilus (discharged) L. CORNELIUS (188) LENTULUS SEX. AELIUS (105) PAETUS C. Helvius (1)
200
199
194
195
196
197
C. CORNELIUS (88) CETHEGUS M. CLAUDIUS (222) MARCELLUS L. VALERIUS (173) FLACCUS P. CORNELIUS (336) SCIPIO
Gaul
P. AELIUS (101) PAETUS
201
198
M. Sextius (35) Sabinus [?Sp. Lucretius (13)]
202
Q. MINUCIUS (22, 55) RUFUS L. FURIUS (86) PURPURIO P. Porcius (19) Laeca TI. SEMPRONIUS (67) LONGUS {L. Cincius (not in RE)} praefectus at Pisa
Pisa/Liguria
Etruria
L. Furius (86) Purpurio (also Gaul)
M. SERVILIUS (78) GEMINUS (arrives late) [M. SERVILIUS (78) GEMINUS]
Suessula/Capua/ Campania
M. Valerius (153) Falto (late in year, in “Campania”)
Luceria/Apulia/ Tarentum
?[[T. Quinctius (45) Flamininus]] ?(Tarentum)
Lucania/Bruttium
[Q. Minucius (22, 55) Rufus]
M. Valerius (153) Falto (later “Campania”) Q. Minucius (22, 55) Rufus
C. Livius (29) Salinator
688
C. LAELIUS (2) [P. CORNELIUS (350) SCIPIO NASICA]
[C. LAELIUS (2)]
C. LIVIUS (29) SALINATOR M. Furius (20, 56) Crassipes (dismissed)
190
189
188
187
P. CORNELIUS (350) SCIPIO NASICA
L. CORNELIUS (270) MERULA [TI. SEMPRONIUS (67) LONGUS] L. QUINCTIUS (43) FLAMININUS
191
192
193
Gaul
A.3. (continued)
M. VALERIUS (252) MESSALLA M. AEMILIUS (68) LEPIDUS C. FLAMINIUS (3)
[Q. MINUCIUS (65) THERMUS]
Q. MINUCIUS (65) THERMUS {L. Cincius} praefectus at Pisa CN. DOMITIUS (18) AHENOBARBUS (also quo senatus censuisset) [Q. MINUCIUS (65) THERMUS] [Q. MINUCIUS (65) THERMUS]
Pisa/Liguria
?{P. Cornelius (336) Scipio}
[P. Iunius (54) Brutus] (transferred to Spain) An unknown legatus
P. Iunius (54) Brutus
Etruria
Suessula/Capua/ Campania
P. Claudius (294) Pulcher (Tarentum)
[M. Tuccius (5)]
M. Tuccius (5)
Luceria/Apulia/ Tarentum
IIIviri cum imperio × 2 A. Cornelius (258) Mamulla [M. Baebius (44) Tamphilus] (crosses to Greece) M. Tuccius (5) [A. Cornelius (258) Mamulla] (crosses to Greece) [M. Tuccius (5)]
IIIviri cum imperio × 2 <M. Baebius (44) Tamphilus>
IIIviri cum imperio × 2
Lucania/Bruttium
689
[M. CLAUDIUS (223, 224) MARCELLUS]
Q. Fabius (32, 58) Buteo
[Q. Fabius (32, 58) Buteo]
181
180
L. Iulius (27) (Caesar?)
182
183
184
185
186
> (detained by Bacch. investigation) Q. MARCIUS (79) PHILIPPUS AP. CLAUDIUS (294) PULCHER M. SEMPRONIUS (95) TUDITANUS P. CLAUDIUS (305) PULCHER L. PORCIUS (23) LICINUS M. CLAUDIUS (223, 224) MARCELLUS Q. FABIUS (91) LABEO CN. BAEBIUS (41) TAMPHILUS L. AEMILIUS (114) PAULLUS [Q. FABIUS (91) LABEO] P. CORNELIUS (95) CETHEGUS M. BAEBIUS (16, 44) TAMPHILUS [L. AEMILIUS (114) PAULLUS] A. POSTUMIUS (46) ALBINUS Q. FULVIUS (60) Cn.f. FLACCUS [L. Duronius (2)] (Apulia and Histria)
L. Duronius (2) (Apulia and Histria)
?[L. Pupius (5)]
L. Postumius (62) Tempsanus (Tarentum; also in Apulia) [L. Postumius (62) Tempsanus] (Tarentum; also in Apulia) L. Pupius (5) (Apulia)
?[P. Claudius (294) Pulcher]
690
91
176
177
178
179
North (general)
C. CLAUDIUS (300) PULCHER (also Liguria) [C. CLAUDIUS (300) PULCHER]
Q. FULVIUS (61) Q.f. FLACCUS L. MANLIUS (47) ACIDINUS FULVIANUS M. IUNIUS (48) BRUTUS (also in Gaul) Ti. Claudius (251) Nero (Pisa—late in year) [[TI. CLAUDIUS (251) NERO]] (imperium raised) Q. PETILLIUS (4, 11) SPURINUS (killed in action) C. VALERIUS (208) LAEVINUS
Pisa/Liguria
Etruria/Umbria
Etruria
??L. Postumius (13)
South (general, including Marsi)
Suessula/Capua/ Campania
Samnium/Apulia
Luceria/Apulia/ Tarentum
?Ser. Sulpicius (60) Galba (?pr. 91)
Lucania/Bruttium
Lucania/Bruttium
691
89
90
P. RUTILIUS (26) LUPUS (killed 11 June) {Cn. Pompeius (45) Strabo} {Q. Servilius (50) Caepio} (pro pr., then pro cos.) {C. Perperna (2)} (removed from command) {C. Marius (14)} (eventually pro cos.) {Valerius (249) Messalla} CN. POMPEIUS (45) STRABO {L. Gellius (17)} {Cn. Octavius (21)} {M. (Caecilius) (44) Cornutus} {Ser. Sulpicius (60) Galba} {C. Baebius (11)} (pro pr.) CN. POMPEIUS (45) STRABO
L. IULIUS (142) CAESAR {P. Cornelius (203) Lentulus} {T. Didius (5)} {P. Licinius (61) Crassus} {L. Cornelius (392) Sulla} {M. Claudius (226) Marcellus} L. Postumius (13) (killed)
C. Cosconius (3)
{M. Claudius (226) Marcellus}
Cn. Papirius (38) Carbo {A. Gabinius (9, cf. 8)} (killed late in year)
[[Cn. Cornelius (345) Scipio Calvus]] (?pro pr.) [[Cn. Cornelius (345) Scipio Calvus]] (?pro pr.) [[Cn. Cornelius (345) Scipio Calvus]] (?pro pr.) [[Cn. Cornelius (345) Scipio Calvus]] (?pro pr.)
[[M. Valerius (211) Laevinus]]
[P. SULPICIUS (64) GALBA] [[P. SEMPRONIUS (96) TUDITANUS]]
[P. SULPICIUS (64) GALBA]
[M. Valerius (211) Laevinus]
[M. Valerius (211) Laevinus]
[M. Valerius (211) Laevinus] (pr. II 215) [M. Valerius (211) Laevinus]
694
M. Claudius (222) Marcellus
L. Valerius (173) Flaccus
199
198
Q. Fulvius (69) Gillo
200
Sicily
A.4 (continued)
M. Porcius (9) Cato
L. Villius (9) Tappulus
Sardinia
[[Cn. Cornelius (74) Blasio]] (pro cos.)
[[Cn. Cornelius (74) Blasio]] (pro cos.)
[[C. Cornelius (88) Cethegus]] (pro cos.)
Spain Command A
[[L. Stertinius (5]] (pro cos.)
[[L. Stertinius (5]] (pro cos.)
[[L. Manlius (46) Acidinus]] (pro cos.)
Spain Command B [[M. Valerius (211) Laevinus]] (part of year) P. SULPICIUS (64) GALBA [[L. Apustius (2 and 5) Fullo]] (fleet) {C. Claudius (105) Centho} (legatus) [P. SULPICIUS (64) GALBA] (part of year) [[L. Apustius (2 and 5) Fullo]] (fleet) (part of year) {C. Claudius (105) Centho} (legatus) (part of year) P. VILLIUS (10) TAPPULUS [[(C.) Livius (29) (Salinator)]] (fleet) T. QUINCTIUS (45) FLAMININUS (fleet)
South Illyria/ Macedonia/Greece
Asia Minor
695
C. Laelius (2)
Cn. Manlius (91) Vulso
Cn. Cornelius (74) Blasio
L. Cornelius (337) Scipio L. Valerius (350) Tappo [[L. Oppius (32) Salinator]] (pro pr. to deliver ships; elected pr. 191) M. Aemilius (68) Lepidus [L. Valerius (350) Tappo] (guarded eastern shore with small “fleet”)
196
195
194
193
191
192
L. Manlius (93) Vulso
197
Sicily
L. Oppius (32) Salinator
L. Porcius (23) Licinus Q. Salonius (not in RE) Sarra
Cn. Cornelius (265) Merenda
[Ti. Sempronius (67) Longus]
Ti. Sempronius (67) Longus
L. Acilius (Acilius 7 = Atilius 16)
Sardinia
[C. Flaminius (3)]
> (sors changed to “Bruttii”) [C. Flaminius (3)]
C. Flaminius (3)
M. PORCIUS (9) CATO P. Manlius (31) (?pro pr.) Sex. Digitius (2)
C. Sempronius (90) Tuditanus (killed) [[Cn. Cornelius (74) Blasio]] Q. Minucius (65) Thermus
Hispania Citerior
L. Aemilius (114) Paullus
M. Fulvius (91) Nobilior (sors changed to “fleet”) [M. Fulvius (91) Nobilior]
Ap. Claudius (245) Nero [M. Helvius (4)] (only part of year) P. Cornelius (350) Scipio Nasica
C. Atinius (9) Labeo [M. Aemilius (68) Lepidus] (probably in east Sicily; deserted provincia)
190
Sicily
A.4 (continued)
Q. Naevius (4, 16) Matho (saw to quaestio for four months nr. Rome) ?[Unknown pr. 185] (?forced to await arrival of Q. Matho)
C. Aurelius (213) Scaurus Unknown
Q. Fulvius (60) Flaccus
(transferred to provincia peregrina) [L. Oppius (32) Salinator] C. Stertinius (4)
[L. Oppius (32) Salinator]
Sardinia
L. Manlius (47) Acidinus Fulvianus [L. Manlius (47) Acidinus Fulvianus] L. Quinctius (37) Crispinus [L. Quinctius (37) Crispinus] A. Terentius (80) Varro
L. Plautius (19) Hypsaeus
[C. Flaminius (3)]
Hispania Citerior
C. Calpurnius (62) Piso [C. Calpurnius (62) Piso] P. Sempronius (65) Longus
[C. Atinius (2, cf. 1)]
C. Atinius (2, cf. 1)
(died en route)
[L. Aemilius (114) Paullus]
Hispania Ulterior
[M. FULVIUS (91) NOBILIOR] (part of year)
[M. FULVIUS (91) NOBILIOR]
M. FULVIUS (91) NOBILIOR
L. CORNELIUS (337) SCIPIO L. Aemilius (127) Regillus (“fleet”)
South Illyria/ Macedonia/Greece
[CN. MANLIUS (91) VULSO] [Q. Fabius (91) Labeo] [CN. MANLIUS (91) VULSO] (part of year)
CN. MANLIUS (91) VULSO Q. Fabius (91) Labeo (“fleet”)
L. CORNELIUS (337) SCIPIO L. Aemilius (127) Regillus
Asia Minor
697 C. Numisius (2)
L. Aquillius (24) Gallus
177
176
178
Q. Mucius (20) Scaevola Unknown
P. Cornelius (260) Mamulla
Sp. Postumius (49) Albinus L. Caecilius (49) Denter Ti. Claudius (250) Nero
179
180
181
182
183
T. Aebutius (10) (Parrus) TI. SEMPRONIUS (53) GRACCHUS (conducted special quaestio in Rome) [T. Aebutius (10) (Parrus)] [TI. SEMPRONIUS (53) GRACCHUS] > (refused provincia) [T. Aebutius (10) (Parrus)]
C. Terentius (51) Istra M. Pinarius (21) Rusca (Corsica, then Sardinia) ?[C. Terentius (51) Istra] (?held Sardinia until arrival of M. Rusca from Corsica) C. Maenius (10) (detained in Italy to hold special quaestio) ?[M. Pinarius (21) Rusca] (?prorogued until arrival of C. Maenius) C. Valerius (208)
Balbus (both provinciae) (assigned provincia peregrina in addition to Sardinia after departure of L. Anicius to east) ??[P. Fonteius (24) Capito] or ??{An unknown legatus} (??held provincia in presumed absence of C. Carbo) (conducted special quaestio in Italy) ??[P. Fonteius (24) Capito] or ??{An unknown legatus} (??held provincia in presumed absence of A. Torquatus)
L. AEMILIUS (114) PAULLUS L. Anicius (15) Gallus (Illyria) Cn. Octavius (17) (“fleet”’)
A. HOSTILIUS (16) MANCINUS {Ap. Claudius (103) Centho} (Illyria) L. Hortensius (4) (“fleet”) Q. MARCIUS (79) PHILIPPUS {Ap. Claudius (103) Centho} (Illyria) C. Marcius (61) Figulus (“fleet”’)
700 Unknown
155
Hispania Citerior
Unknown
Unknown
Hispania Citerior
Unknown
Sicily
Sardinia
M.’ IUVENTIUS (30) THALNA (fought in Corsica; died late in year) TI. SEMPRONIUS (53) GRACCHUS (arrived in provincia after holding elections for 162) ?[TI. SEMPRONIUS (53) GRACCHUS]
Unknown
Unknown
Unknown
Unknown
Sardinia
156
161 160 159 158 157
162
166 165 164 163
Sicily
A.4 (continued)
L. Calpurnius (87) Piso Caesoninus L. Mummius (7a)
Hispania Ulterior
M.’ Manilius (12) (possibly already prorogued)
Unknown
Hispania Ulterior
C. MARCIUS (61) FIGULUS P. CORNELIUS (353) SCIPIO NASICA
Dalmatia
South Illyria/ Macedonia/Greece
Asia Minor Dalmatia
Asia Minor
701
Unknown Q. FULVIUS (95) NOBILIOR M. CLAUDIUS (225) MARCELLUS (cos. III) L. LICINIUS (102) LUCULLUS [L. LICINIUS (102) LUCULLUS]
[L. Mummius (7a)] M. Atilius (22) (Serranus) [M. Atilius (22) (Serranus)] Ser. Sulpicius (58) Galba [Ser. Sulpicius (58) Galba]
Unknown
147
Unknown
Hispania Citerior
Unknown
Q. Fabius (109) Maximus Aemilianus
Sardinia
148
149
Sicily
C. Vetilius (1)
Unknown
Unknown
Hispania Ulterior
Conventions as in A.2. Praetorian commanders in the Spains and Macedonia will have held consular imperium (except as noted), as will all provincial commanders sent out in the years 81–53.
A.5. Commanders in Sicily, the Spains, Macedonia, and Africa, 149–50
C. Plautius (9) Q. FABIUS (109) MAXIMUS AEMILIANUS [Q. FABIUS (109) MAXIMUS AEMILIANUS] Quinctius (2) (Crispinus or Flamininus) Q. FABIUS (115) MAXIMUS SERVILIANUS [Q. FABIUS (115) MAXIMUS SERVILIANUS]
Hispania Ulterior
?[Cn. Egnatius (cf. 1)] D. Iunius (161) Silanus (Manlianus)
Licinius (130) Nerva
Cn. Egnatius (cf. 1)
L. MUMMIUS (7a) [L. MUMMIUS (7a)] Q. Fabius (115) Maximus Servilianus [Q. Fabius (115) Maximus Servilianus]
Macedonia
Africa
703
125
127 126
129 128
130
131
132
133
T. Quinctius (47) Flamininus
?[(L.) Cornelius (172, 192) Lentulus] L. Plautius (20) Hypsaeus T. Manlius (2, cf. 74) C. FULVIUS (53) FLACCUS (arrives in mid-year) L. CALPURNIUS (96) PISO FRUGI M. Perperna (4) ?[T. Manlius (2, cf. 74)] P. RUPILIUS (5) [M. Perperna (4)] (ovatio in this year) (south Italy, perhaps prorogued) ?[T. Annius (78) Rufus] (see 131)
135
134
?(L.) Cornelius (172, 192) Lentulus
136
L. AURELIUS (181) ORESTES [L. AURELIUS (181) ORESTES]
[P. CORNELIUS (335) SCIPIO AEMILIANUS]
P. CORNELIUS (335) SCIPIO AEMILIANUS (cos. II) [P. CORNELIUS (335) SCIPIO AEMILIANUS]
L. FURIUS (78) PHILUS [M. AEMILIUS (83) LEPIDUS PORCINA] Q. CALPURNIUS (86) PISO
[D. IUNIUS (57) BRUTUS]
[D. IUNIUS (57) BRUTUS]
[D. IUNIUS (57) BRUTUS]
[D. IUNIUS (57) BRUTUS]
??P. Cornelius (202a) Lentulus (date approx.)
?[M. Cosconius (8)]
[M. Cosconius (8)]
[M. Cosconius (8)]
SER. FULVIUS (64) FLACCUS (Illyria) M. Cosconius (8)
704
[L. AURELIUS (181) ORESTES (triumph 8 Dec.)]
122
117
118
120 119
C. Porcius (5) Cato (latest possible date)
[L. AURELIUS (181) ORESTES]
123
121
[L. AURELIUS (181) ORESTES]
Sardinia
124
Sicily
A.5 (continued)
Q. Fabius (110) Maximus (possibly prorogued, exact provincia unknown) [Q. Fabius (110) Maximus] (see 124) ?Q. CAECILIUS (82) METELLUS (BALEARICUS) [?Q. CAECILIUS (82) METELLUS (BALEARICUS)] [?Q. CAECILIUS (82) METELLUS (BALEARICUS)]
Hispania Citerior
See Hispania Citerior
See Hispania Citerior
Hispania Ulterior
{M. Annius (not in RE) P.f.} (quaestor, no imperium) Unnamed praetor and quaestor Cn. Cornelius (373) Sisenna (possibly prorogued; see 119)
P. Licinius (135) Nerva (possibly prorogued) [L. Licinius (103) Lucullus] (city pr. 104) C. Servilius (see 12, cf. 11) (Vatia)
[T. Albucius] (2) (date only approximate)
106
105
T. Albucius (2) (date only approximate)
Sardinia
107
Sicily
A.5 (continued)
See 105
See 105
See 105
See 105
?{legatus}
Hispania Citerior
M. Marius (22) (possibly prorogued)
?M. Marius (22)
L. Caesius (see RE 4)
[Q. Servilius (49) Caepio] (triumph 28 October)
Hispania Ulterior
??C. Billienus (4, cf. 3) (not certain, latest possible date; cf. also Asia) ?C. Memmius (3 = 5) (latest possible date) T. Didius (5)
[M. MINUCIUS (54) RUFUS] (triumph ca. 1 Aug.)
[M. MINUCIUS (54) RUFUS]
Macedonia
[Q. CAECILIUS (97) METELLUS (NUMIDICUS)] {P. Rutilius (34) Rufus} {A. Manlius (12)} C. MARIUS (14) (all Numidia) [C. MARIUS (14)] {L. Cornelius (392) Sulla} (q., also pro pr.) [C. MARIUS (14)] (Numidia) L. Bellienus (5) (Africa, possibly prorogued)
Africa
707
89
90
91
92
?P. Servilius (93) Vatia (Isauricus) (province only likely) ?[P. Servilius (93) Vatia] (Isauricus) (see 92) ?[P. Servilius (93) Vatia] (Isauricus) (see 92) ?[P. Servilius (93) Vatia] (Isauricus) (see 92)
C. Norbanus (5)] (quite possibly prorogued) [C. Norbanus (5)] [C. VALERIUS (168) FLACCUS]
[C. VALERIUS (168) FLACCUS]
[C. VALERIUS (168) FLACCUS]
[T. DIDIUS (5)] (triumph II 10 June) ?C. VALERIUS (168) FLACCUS [C. VALERIUS (168) FLACCUS]
[T. DIDIUS (5)]
94
L. (Sempronius) (?18) Asellio (date only approximate)
[T. DIDIUS (5)]
95
93
[T. DIDIUS (5)]
T. DIDIUS (5) [T. DIDIUS (5)]
?C. Coelius (12) Caldus (date only approximate) ?[C. Coelius (12) Caldus] (see above)
96
L. Domitius (26) Ahenobarbus (latest possible date)
?L. Cornelius (138) Dolabella [L. Cornelius (138) Dolabella] (triumph 26 Jan. 98)
[C. Sentius (3) Saturninus]
[C. Sentius (3) Saturninus]
[C. Sentius (3) Saturninus]
[C. Sentius (3) Saturninus]
[C. Sentius (3) Saturninus] (pr. urb. 94)
??L. Iulius (142) L.f. Caesar (not certain, latest possible date)
?[T. Didius (5)]
?[T. Didius (5)]
P. Sextilius (12) (?Rufus) (quite possibly prorogued)
??P. Sextilius (12) (?Rufus)
??P. Sextilius (12) (?Rufus)
??P. Sextilius (12) (?Rufus)
708
[C. Norbanus (5)] or ?M. Perperna (6) Veiento
M. Perperna (6) Veiento (probably)
84
83
[C. Norbanus (5)]
86
[C. Norbanus (5)] or ?M. Perperna (6) Veiento
[C. Norbanus (5)]
87
85
[C. Norbanus (5)]
88
Sicily
A.5 (continued)
?[P. Servilius (93) Vatia] (Isauricus) (triumph 21 Oct., see 92)
Sardinia
?[C. VALERIUS (168) FLACCUS] ?Unnamed praetor
?[C. VALERIUS (168) FLACCUS]
?[C. VALERIUS (168) FLACCUS]
?[C. VALERIUS (168) FLACCUS]
[C. VALERIUS (168) FLACCUS]
[C. VALERIUS (168) FLACCUS]
Hispania Citerior
?[C. VALERIUS (168) FLACCUS] ?Unnamed praetor
?[C. VALERIUS (168) FLACCUS]
?[C. VALERIUS (168) FLACCUS]
?[C. VALERIUS (168) FLACCUS]
[C. VALERIUS (168) FLACCUS]
[C. VALERIUS (168) FLACCUS]
Hispania Ulterior
??{legati}
[C. Sentius (3) Saturninus] [L. CORNELIUS (392) SULLA (cos. 88)] L. Licinius (122) Murena L. CORNELIUS (392) [SULLA] [L. Licinius (122) Murena] ?L. Cornelius (338) Scipio Asiaticus [L. CORNELIUS (392) SULLA] [L. Licinius (122) Murena] [L. Cornelius (338) Scipio Asiaticus] [L. CORNELIUS (392) SULLA]
[C. Sentius (3) Saturninus]
Macedonia
[Q. Caecilius (98) Metellus Pius] (see 86; ejected) C. Fabius (82) Hadrianus [C. Fabius (82) Hadrianus] (killed)
[Q. Caecilius (98) Metellus Pius] (see 86)
[Q. Caecilius (98) Metellus Pius] (pr. 88, now pro cos.) (de facto control)
{M. Petreius (3)} (leg. pro pr. of cos. II 55 Pompey; exact Spanish provincia uncertain) {M. Petreius (3)} (see on 55) {M. Petreius (3)} [C. Cosconius (5)] (see on 55) (?pr. 54; command probable) ?{M. Petreius (3)} (see on 55) ?{M. Petreius (3)} ?[M. Nonius (52) (see on 55) (?Sufenas)] (pr. by 52)
M. FULVIUS (58) FLACCUS [M. FULVIUS (58) FLACCUS] C. SEXTIUS (20) CALVINUS
Gallia Transalpina
Conventions as in A.2. Commanders in Asia and Cilicia will have held consular imperium (except as noted), as will all provincial commanders sent out in the years 81–53.
A.6. Commanders in Asia, Cilicia, and the Gauls, 131–50
??M’. (or M.) Valerius (248) Messalla (not certain, date approximate)
121
119 118 117
C. Atinius (10) Labeo Macerio (but possibly pr. 121)
122
123
Asia
A.6 (continued) Cilicia
Gallia Cisalpina
CN. PAPIRIUS (37) CARBO (in Noricum)
Q. MARCIUS (91) REX [Q. MARCIUS (91) REX] (triumph 3 Dec.) ??L. CAECILIUS (93) METELLUS DIADEMATUS ??[L. CAECILIUS (93) METELLUS DIADEMATUS] M. AEMILIUS (140) SCAURUS (triumph after 27 Nov.)
[M. FULVIUS (58) FLACCUS] (triumph this year) [C. SEXTIUS (20) CALVINUS] [C. SEXTIUS (20) CALVINUS] (triumph this year) CN. DOMITIUS (20) AHENOBARBUS [CN. DOMITIUS (20) AHENOBARBUS] Q. FABIUS (110) MAXIMUS (ALLOBROGICUS) [CN. DOMITIUS (20) AHENOBARBUS] (triumph, prob. in this year) [Q. FABIUS (110) MAXIMUS (ALLOBROGICUS)] (triumph, prob. in this year)
Gallia Transalpina
715
95
98 97 96
99
L. Lucilius (8) (date quite approximate) [C. Valerius (168) Flaccus] (pr. urb. ?96) (latest possible date)
[L. Cornelius (392) Sulla] (pr. urb. 97) [L. Cornelius (392) Sulla]
[M. Antonius (28)]
M. (Plautius) (22) Hypsaeus (date quite approximate) C. Iulius (130) Caesar (date quite approximate) [C. Iulius (130) Caesar] (see on 99)
100
M. Antonius (28)
[M. Antonius (28)]
??C. Billienus (4, cf. 3) (not certain, latest possible date; cf. also Macedonia)
??C. Rabirius (see 6) C.f. (not certain, date quite approximate)
?Ser. Cornelius (208b) Ser.f. Lentulus (not certain, date quite approximate)
101
103 102
104
107 106 105
109 108
111 110
112
C. MARIUS (14) V [Q. LUTATIUS (7) CATULUS]
L. CASSIUS (62) LONGINUS (killed) Q. SERVILIUS (49) CAEPIO [Q. SERVILIUS (49) CAEPIO] (imperium abrogated) CN. MALLIUS (13) MAXIMUS C. MARIUS (14) II {M.’ Aquillius (11)} (leg.) C. MARIUS (14) III C. MARIUS (14) IV Q. LUTATIUS (7) CATULUS
M. IUNIUS (169) SILANUS [M. IUNIUS (169) SILANUS]
L. LICINIUS (55) CRASSUS
716
[C. Cassius (10)]
[L. CORNELIUS (392) SULLA] (cos. 88)
[L. CORNELIUS (392) SULLA] {L. Licinius (104) Lucullus} (pro q. pro. pr.) L. VALERIUS (178) FLACCUS [L. CORNELIUS (392) SULLA] [L. VALERIUS (178) FLACCUS] (killed)
88
87
86
85
[C. Cassius (10)]
89
90
91
L. Valerius (178) Flaccus (latest possible date) ?C. Cassius (10) C. Cassius (10) (possibly prorogued)
?[L. Cornelius (392) Sulla] or L. Gellius (17) (pr. per. 94; cf. also Asia)
?[L. Cornelius (392) Sulla]
Cilicia
?[C. VALERIUS (168) FLACCUS] (see on 87)
??[C. VALERIUS (168) FLACCUS] (see on 87)
?[C. COELIUS (12) CALDUS] (see on 93) ??[C. COELIUS (12) CALDUS] (see on 93) ??[C. COELIUS (12) CALDUS] (see on 93) ??[C. COELIUS (12) CALDUS] (see on 93) ??[C. VALERIUS (168) FLACCUS] (cos. 93) (also Spains)
?[C. COELIUS (12) CALDUS] (cos. 94) (command not certain, Gallic province unspecified) ?[C. COELIUS (12) CALDUS] (see on 93) ?[C. COELIUS (12) CALDUS] (see on 93)
See Gallia Cisalpina
Gallia Transalpina
See Gallia Transalpina {P. Coelius (Caelius 13)} [CN. POMPEIUS (45) STRABO] (cos. 89) (command in Bellum Octavianum)
See Gallia Transalpina
See Gallia Transalpina
See Gallia Transalpina
See Gallia Transalpina
See Gallia Transalpina
?[L. LICINIUS (55) CRASSUS] (command not certain, Gallic province unspecified) See Gallia Transalpina
Gallia Cisalpina
717
[L. Licinius (122) Murena]
[L. Licinius (122) Murena]
[L. Licinius (122) Murena] (recalled, triumph) M. Minucius (64) Thermus C. Claudius (247) Nero (pr. 81 or 80)
[C. Claudius (247) Nero]
83
82
81
79
[M. Iunius (170) Silanus (?Murena)] (pr. by 77) (latest possible date) [M. Iunius (84) Iuncus] (pr. 76)
[P. Cornelius (140) Dolabella] (pr. by 68) (latest possible date) At least four of Pompey’s legati pro praetore ??M.’ ACILIUS (38) GLABRIO
[T. Aufidius] (pr. by 67) (latest possible date)
[P. Varinius (1)] (pr. II by 66) (latest possible date) [P. Orbius (3)] (pr. by 65) (latest possible date) [P. Servilius (66) Globulus] (pr. by 64) (latest possible date)
[[M. Porcius (16) Cato]] (pro pr.) (annexation of Cyprus) (cos. 58) (exchanged province for Syria) (pr. 59; pro cos. 58 Asia) [[M. Porcius (16) Cato]] (pro pr.) (Cyprus) [P. CORNELIUS (238) LENTULUS SPINTHER] (cos. 57) [P. CORNELIUS (238) LENTULUS SPINTHER] [P. CORNELIUS (238) LENTULUS SPINTHER] ?[P. CORNELIUS (238) LENTULUS SPINTHER] (triumph in 51) [AP. CLAUDIUS (297) PULCHER] (cos. 54) (arrived late) [AP. CLAUDIUS (297) PULCHER] [AP. CLAUDIUS (297) PULCHER] (superseded 31 July) ??{Q. Mucius (23) Scaevola} [M. TULLIUS (29) CICERO] [C. IULIUS (131) CAESAR] (see 58) [C. IULIUS (131) CAESAR] (see 58)
[C. IULIUS (131) CAESAR] (see 58)
[C. IULIUS (131) CAESAR] (see 58)
[C. IULIUS (131) CAESAR] (see 58)
[C. IULIUS (131) CAESAR] (see 58)
[C. Pomptinus (1)] [C. Pomptinus (1)] ?[C. Pomptinus (1)] (triumph Nov. 54) (cos. 60) (dies in April or May in Rome) [C. IULIUS (131) CAESAR] (cos. 59) (with Illyria) [C. IULIUS (131) CAESAR] (see 58)
[C. IULIUS (131) CAESAR] (see 58) [C. IULIUS (131) CAESAR] (see 58)
[C. IULIUS (131) CAESAR] (see 58)
[C. IULIUS (131) CAESAR] (see 58)
[C. IULIUS (131) CAESAR] (see 58)
[C. IULIUS (131) CAESAR] (see 58)
[C. IULIUS (131) CAESAR] (cos. 59) (see Gallia Transalpina) [C. IULIUS (131) CAESAR] (see 58)
?[L. AFRANIUS (6)]
?
720
{L. Antonius (23)} (quaestor, pro pr.) {C. Coelius (14) Caldus} (quaestor) [P. Sestius (6)]
[M. TULLIUS (29) CICERO]
Cilicia [C. IULIUS (131) CAESAR] (see 58) {T. Labienus (6)} (leg.)
{Cn. Cornelius (228) Lentulus Marcellinus} (leg. pro pr. under Pompey)
[A. GABINIUS (11)] M. LICINIUS (68) CRASSUS (departure late in year)
{M. Aemilius (141) Scaurus} (see 66; pro pr.) [L. Marcius (76) Philippus] (pr. 62) [L. Marcius (76) Philippus] [Cn. Cornelius (228) Lentulus Marcellinus] (pr. 60) [Cn. Cornelius (228) Lentulus Marcellinus] A. GABINIUS (11) (departure late in year) [A. GABINIUS (11)] [A. GABINIUS (11)]
[[Cn. Pompeius (31) Magnus]] ?{M. Aemilius (141) Scaurus} (see 66) [[Cn. Pompeius (31) Magnus]] {M. Aemilius (141) Scaurus} (see 66) [[Cn. Pompeius (31) Magnus]] {M. Aemilius (141) Scaurus} (see 66)
?{M. Aemilius (141) Scaurus} (pro q.)
{Q. Caecilius (96) Metellus Nepos} (leg. pro pr. under Pompey)
Symbols and Abbreviations Dates: >120 = “previous to 120”; ≥120 = “previous to, or in, 120”; 2c = “2nd century.” A question mark before a date indicates that it is uncertain; two question marks, that it is very uncertain. Names: RE number (where available) follows nomen; suff.= praetor suffectus; des.= praetor designatus. A question mark before a name indicates that the praetorship itself is uncertain; two question marks that it is very uncertain. A question mark following praenomen, nomen, or cognomen indicates that this element of the name is uncertain. Provinciae (pv): U = praetor urbanus; ip = inter peregrinos; C = city (U, ip, or both); amb = ambitus; mai = maiestas; pec = peculatus; rep = repetundae; sic = inter sicarios; ven = de veneficiis; vis = de vi. A = Asia; Af = Africa; Ap = Apulia; Bi = Bithynia/Pontus; Ci = Cilicia; Cy = Cyrene; Etr = Etruria; Fl = fleet; G = Gallia; GC = Gallia Cisalpina; GT = Gallia Transalpina; H = Hispania; HC = Hispania Citerior; HU = Hispania Ulterior; Il = Illyria; Ist = (H)istria; Lig = Liguria; Luc = Lucania; M = Macedonia/Achaea; Pi = Pisa; qe = quaestio extraordinaria; qsc = quo senatus censuisset; Sd = Sardinia; Si = Sicilia; Su = Suessula; Sy = Syria; T = Tarentum; Z = provincia declined Si>Sd = “Sicily allotted in the sortition, but changed to Sardinia.” C/HU = “served as city praetor in actual year of praetorship, and sent as a promagistrate to Hispania Ulterior in following year.” C/Z/HU = “served as city praetor; declined promagisterial provincia; but after interval assigned Hispania Ulterior” (i.e., under the lex Pompeia). Ancestry is indicated as follows (adapted from E. Badian, “The Consuls, 179-49 b.c.,” Chiron 20 [1990] 371–413, as are the actual individual attributions, where relevant): c = consular; p = praetorian; sp = senatorian subpraetorian; na = not attested or recoverable
723
724 Appendices P = Patrician; (P) = Patrician descent displayed in name; N = novus homo, attested or implied; N? = probably novus homo. In cases where descent can be further specified: (308 308 296 295
M. Valerius (137) M.f. M.n. Maximus Corvus II M. Valerius (137) M.f. M.n. Maximus Corvus III M. Valerius (137) M.f. M.n. Maximus Corvus IV4 P. Sempronius (85) P.f. C.n. Sophus Ap. Claudius (91) C.f. Ap.n. Caecus (?II)5
293 292 283 283 ?280 ?273 270 ?≥268 257
M. Atilius (50) M.f. M.n. Regulus L. Papirius (53) L.f. Sp.n. Cursor L. Caecilius (92) Metellus Denter6 M.’ Curius (9) M.’f. M.’n. Dentatus (suff.)6 Q. Marcius (78) Q.f. Q.n. Philippus7 C. Genucius (17) L.f. L.n. Clepsina8 (Minucius?) (2)9 ??M. Livius (12, 13) Drusus10 A. Atilius (36) A.f. C.n. Calatinus
Name L. Postumius (56) L.f. L.n. Megellus11 Q. Valerius (157) Q.f. P.n. Falto P. Cornelius (42) C. Flaminius (2) C.f. L.n.12 M. Valerius (see 211)8 M. Livius (33) M.f. M.n. Salinator8 L. Manlius (92) (Vulso)13 M. Claudius (220) M.f. M.n. Marcellus L. Postumius (40) A.f. A.n. Albinus M.(?) Pomponius (18) Matho P. Furius (80) Sp.f. M.n. Philus M. Valerius (211) P.f. P.n. Laevinus C. Aurelius (95, cf. 15) C.f. C.n. Cotta14 Q. Terentius (30)15 C.? Aelius (103, cf. 148, 149) Tubero16 C. Servilius (59) (Geminus)17 C. Papirius (58) L.f. Maso17 M. Annius (15)17 M.’ Acilius (9)17 C. (Baebius??) (not in RE) Herennius17 Q. Baebius (45) (Cn.f.) Tamphilus18 Q. Aelius (103) Paetus19 P. Cornelius (266) Merenda19 K. Quinctius (41) Flamininus20
