Libertas and Res Publica in the Roman Republic: Ideas of Freedom and Roman Politics 9004441298, 9789004441293

Table of contents :
Dedication
Contents
Abbreviations
Notes on Contributors
Introduction • Catalina Balmaceda
1 Archaic Ideas on the Concept of Libertas • Carlos Amunátegui
2 Libertas in Early Latin Authors • Catalina Balmaceda
3 The God Liber and Republican Notions of Libertas in the Late Roman Republic • Valentina Arena
4 The Freedom of the Rhodians: Cato the Elder and Demosthenes • Harriet I. Flower
5 Ex Imperio Libertas: Freedom and Republican Empire • Clifford Ando
6 The Notion of Res Publica and Its Conflicting Meanings at the End of the Roman Republic • Claudia Moatti
7 The Consulship under the Triumvirs: a Phantom Office? • Francisco Pina Polo
8 Arbitration in the Res Publica: a Novel Way of Solving Internal Political Conflicts in the 40s and 30s BC • Cristina Rosillo-López
9 The Auctoritas and Libertas of Augustus: Metamorphosis of the Roman Res Publica • Frédéric Hurlet
10 A Great and Arduous Struggle: Marcus Antonius and the Rhetoric of Libertas in 44–43 BC • Jeff Tatum
11 Res Publica, Libertas and Free Speech in Retrospect: Republican Oratory in Tacitus’ Dialogus • Henriette van der Blom
General Bibliography
Index

Citation preview

Libertas and Res Publica in the Roman Republic

Impact of Empire Roman Empire, c. 200 B.C.–A.D. 476

Edited by Olivier Hekster (Radboud University, Nijmegen, The Netherlands) Editorial Board Stéphane Benoist Angelos Chaniotis Lien Foubert Anne Kolb Luuk de Ligt Elio Lo Cascio Bernhard Palme Michael Peachin Francisco Pina Polo Rubina Raja Christian Witschel Greg Woolf

volume 37

The titles published in this series are listed at brill.com/imem

Libertas and Res Publica in the Roman Republic Ideas of Freedom and Roman Politics Edited by

Catalina Balmaceda

LEIDEN | BOSTON

Cover illustration: Roman relief depicting the manumission of slaves with pileus. Marble, 1st century BC. Musée Royal de Mariemont inv. B.26 (Ad Meskens). Library of Congress Cataloging-in-Publication Data Names: Balmaceda, Catalina, 1970- editor. Title: Libertas and res publica in the Roman Republic : ideas of freedom  and Roman politics / edited by Catalina Balmaceda. Description: Leiden ; Boston : Brill, [2020] | Series: Impact of empire:  Roman Empire, c. 200 B.C.-A.D. 476, 1572-0500 ; volume 37 | Includes  bibliographical references and index. Identifiers: LCCN 2020034019 (print) | LCCN 2020034020 (ebook) | ISBN  9789004441293 (hardback) | ISBN 9789004441699 (ebook) Subjects: LCSH: Liberty—History. | Republicanism—Rome—History. |  Political science—Rome—History. | Rome—Politics and  government—265-30 B.C. Classification: LCC DG254.2 .L53 2020 (print) | LCC DG254.2 (ebook) | DDC  320.937—dc23 LC record available at https://lccn.loc.gov/2020034019 LC ebook record available at https://lccn.loc.gov/2020034020

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. issn 1572-0500 isbn 978-90-04-44129-3 (hardback) isbn 978-90-04-44169-9 (e-book) Copyright 2020 by Catalina Balmaceda. Published by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. Koninklijke Brill NV reserves the right to protect this publication against unauthorized use. Requests for re-use and/or translations must be addressed to Koninklijke Brill NV via brill.com or copyright.com. This book is printed on acid-free paper and produced in a sustainable manner.

In Memoriam Miriam T. Griffin (1935–2018) Fergus G.B. Millar (1935–2019)

∵

Contents Abbreviations IX Notes on Contributors xi Introduction 1 Catalina Balmaceda 1

Archaic Ideas on the Concept of Libertas 15 Carlos Amunátegui

2

Libertas in Early Latin Authors 33 Catalina Balmaceda

3

The God Liber and Republican Notions of Libertas in the Late Roman Republic 55 Valentina Arena

4

The Freedom of the Rhodians: Cato the Elder and Demosthenes 84 Harriet I. Flower

5

Ex Imperio Libertas: Freedom and Republican Empire 104 Clifford Ando

6

The Notion of Res Publica and Its Conflicting Meanings at the End of the Roman Republic 118 Claudia Moatti

7

The Consulship under the Triumvirs: a Phantom Office? 138 Francisco Pina Polo

8

Arbitration in the Res Publica: a Novel Way of Solving Internal Political Conflicts in the 40s and 30s BC 153 Cristina Rosillo-López

9 The Auctoritas and Libertas of Augustus: Metamorphosis of the Roman Res Publica 170 Frédéric Hurlet

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A Great and Arduous Struggle: Marcus Antonius and the Rhetoric of Libertas in 44–43 BC 189 Jeff Tatum

11

Res Publica, Libertas and Free Speech in Retrospect: Republican Oratory in Tacitus’ Dialogus 216 Henriette van der Blom

General Bibliography 239 Index 263

Abbreviations AJAH AJPh ANRW AU

American Journal of Ancient History American Journal of Philology Aufstieg und Niedergang der römischen Welt Der altsprachliche Unterricht: Arbeitshefte zu seiner wissenschaftlichen Begründung und praktischen Gestalt. AncSoc Ancient Society BICS Bulletin of the Institute of Classical Studies  BMCR Bryn Mawr Classical Review  BSFN Bulletin de la Société française de numismatique CIL Corpus Inscriptionum Latinarum CJ The Classical Journal CLA Classical Antiquity CJ The Classical Journal CQ Classical Quarterly CRAI Comptes rendus de l’Académie des Inscriptions et Belles - Lettres CPh Classical Philology FrHist The Fragments of the Roman Historians. T. Cornell (ed.) Oxford, 2013. G&R Greece and Rome HiMA Revue Internationale d’Histoire Militaire Ancienne HSCP Harvard Studies in Classical Philology ILS Inscriptiones Latinae Selectae IURA Rivista Internazionale di Diritto Romano e Antico.  JHS The Journal of Hellenic Studies JRS The Journal of Roman Studies  LTUR Lexicon Topographicum Urbis Roma. M. Steinby (ed.)  6 vols. Med. Ant. Mediterraneo Antico MEFRA Mélanges d’Archéologie et d’Histoire de l’école Française de Rome, Antiquité ORF Oratorum Romanorum Fragmenta. E. Malcovati (ed.) PCPS Proceedings of the Cambridge Philological Society RE Real-Encyclopädie d. klassischen Altertumswissenschaft REL Revue des Études Latines RGDA Res Gestae Divi Augusti RhM Rheinisches Museum RIC Roman Imperial Coinage. Vol. 1 Augustus–Vitellius. C.H.V. Sutherland. London, 1923 (revised 1984).

x SCI TAPA ZSS

Abbreviations Scripta Classica Israelica: Yearbook of the Israel Society for the Promotion of Classical Studies Transactions of the American Philological Association Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, romanistische Abteilung

Notes on Contributors Carlos Amunátegui is Professor of Roman law and Legal Theory at the Pontificia Universidad Católica de Chile. He has written seven books on Roman law, Comparative law, Codification and Artificial Intelligence, among them: Origen de los Poderes del Paterfamilias, El Matrimonio en Plauto and Arcana Technicae. El Derecho y la Inteligencia Artificial. Clifford Ando is David B. and Clara E. Stern Distinguished Service Professor and Professor of Classics and History at the University of Chicago.  He writes on the histories of religion, law and government under Rome and in the Roman tradition.  Valentina Arena is Reader in Roman History at University College London, UK. Her work focuses on the history of ancient ideas and the intellectual landscape of the Roman Republic. She is the author of Libertas and the Practice of Politics in the late Roman Republic (2012), the editor of Liberty, Ancient Ideas and Modern Perspectives (2018) and co-editor of volumes on the antiquarian tradition. She is the Principal Investigator of the ERC research project on Roman Republican Antiquarians. Catalina Balmaceda is Associate Professor of Ancient History at the Pontificia Universidad Católica de Chile. She has published Sallust: The War against Jugurtha (with Michael Comber, 2009), more recently Virtus Romana: Politics and Morality in the Roman Historians (2017) and several articles on Roman historiography. She is now leading a project on the idea of merit and meritocracy in Roman intellectual and political culture. Henriette van der Blom is Senior Lecturer in Ancient History at the University of Birmingham, where she researches Roman oratory and politics, rhetoric and memory culture. She is the author of Cicero’s Role Models (OUP 2010) and Oratory and Political Career in the late Roman Republic (CUP 2016) and the founder of the Network for Oratory and Politics.

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Harriet I. Flower is Andrew Fleming West Professor of Classics at Princeton University. She teaches and writes about Roman history with a special focus on republican political culture, memory and forgetting, spectacle, and traditional religious practices. Frédéric Hurlet is Professor of Roman History at Paris Nanterre University and member of the Institut Universitaire de France. He has published widely on Augustus and government of the Roman Empire. He is leading a research project focused on Augustan aristocracy. Claudia Moatti is Professor of Roman History at Paris 8 and of Classics at USC (Los Angeles). She has studied the intellectual transformations of the Roman society at the end of the Republic, the Roman land archives and the control of human mobility in the Roman Empire. Her most recent book examines the notion of res publica (Res publica. Histoire romaine de la chose publique, Paris, 2018). Francisco Pina Polo is Professor of Ancient History at the Universidad de Zaragoza (Spain). His publications include The Triumviral Period (2020), The Quaestorship in the Roman Republic (with Alejandro Díaz Fernández, 2019), and The consul at Rome: The Civil Functions of the Consuls in the Roman Republic (2011). He was a member of the Institute for Advanced Study (Princeton) in 2012 and 2014. He is co-director of the series Libera Res Publica. Cristina Rosillo-López is Senior Lecturer in Ancient History, University Pablo de Olavide, Seville. Her research focuses on politics and political culture of the Late Roman Republic. She is the author of La corruption à la fin de la République romaine (IIe-Ier av. JC): aspects politiques et financiers (Historia Einzelschriften 2010) and Public Opinion and Politics in the Late Roman Republic (CUP, 2017). Jeffrey Tatum is Professor of Classics at the Victoria University of Wellington. He works principally on the history and literature of the late Roman Republic. He is the author of several books, including The Patrician Tribune: Publius Clodius Pulcher, Always I am Caesar, and Quintus Cicero: A Brief Handbook on Canvassing for Office.

Introduction Catalina Balmaceda The system of government practised in ancient Rome from the expulsion of Tarquin the Proud in 509 BC to the establishment of Augustus as sole princeps of Rome in 27 BC, known to us as ‘republican’, represents one of the most important models of government not only in antiquity but also in Western political thought as a whole. Numerous and very diverse interpretations of the political apparatus of the city of Rome from the fall of the last king up to the advent of the emperors, have been used by classical scholars as the cornerstone of a political discourse explaining what the Romans described as the time when matters of public interest, government, and all other affairs were managed by the free Roman people: ‘The new liberty enjoyed by the Roman people, their achievements in peace and war, annual magistracies, and laws superior in authority to men will henceforth be my theme.’1 This book addresses questions recognised as essential for understanding the political nature of the Roman state during the republican period. It does so by analysing two key concepts under different aspects: libertas (liberty) and res publica (public matter/state). Although they have been studied and analysed separately under different circumstances within the history of Rome, the profound relationship between these two concepts – which were insistently linked by Roman authors, especially in the late Republic – has been somewhat overlooked in our times, and it seems particularly relevant to reconsider them together.2 Why was res publica intimately connected with libertas for Romans? Is it possible to trace when or how this connection started? Did the decline of libertas bring about the destruction of the res publica, or the other way around? Was the connection between libertas and the res publica more at the level of theoretical discourse, or was it a practical reality in action? The chapters of this volume approach these and other questions in a coherent, unified way, and propose fresh readings that shed light on the significance, relationship and development through time of these two concepts, which are fundamental to the idea of the Roman Republic. 1  Livy, 2.1.1: Liberi iam hinc populi Romani res pace belloque gestas, annuos magistratus, imperiaque legum potentiora quam hominum peragam. 2  Some aspects of this connection have been analytically explored, but in a different context and for different aims, under the umbrella-term ‘republicanism’. See, for example, Pettit 1997 and Skinner 1998.

© Catalina Balmaceda, 2020 | doi:10.1163/9789004441699_002

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According to one of the greatest historians of the Roman Republic, Livy, the fall of the monarchy in 509 BC was part of a process of liberation from tyranny. The kings had made Rome into an ordered and lawful city, but the monarchy was the solution only because the Romans did not know any better, ‘they had not yet tasted the sweetness of freedom,’ says Livy.3 The abusive way the kings exercised their power meant that the people eventually rebelled against them. If getting rid of the heavy burden of the kings was seen as a liberation, it naturally followed that Romans identified the new political regime with freedom, and so freedom was their ‘chief concern’ (prima cura) when they had to define the offices of the new political organization.4 In the first books of his Ab Urbe Condita, Livy shows not only the acquisition of libertas which meant the freedom from regnum, but also, even more strenuously fought for, the establishment of the res publica by the free people of Rome who opposed dominatio. Liberty was the condition without which it seemed impossible to live in Rome or be part of the Roman people: ‘in this prayer they were all united, that the day which saw the end of liberty in their City might also see the City’s end.’5 The words that Livy puts in the mouths of ancient Romans probably express the sentiments of his own times rather than those of the people of the early Republic, as has been duly suggested by scholars,6 but the idea that regnum and dominatio started meaning slavery to Romans is not too far-fetched, because the expulsion of the kings did in fact mean liberation from absolute power wielded by one man, as all the magistracies now became collegiate and annual.7 After 509 BC, the Romans understood res publica – at least in theory – as a community which had the duty, among others, of dealing with a variety of different matters concerning its own political organization.8 This res publica 3  Livy, 1.17.3: libertatis dulcedine nondum experta. 4  Livy, 2.2.2. 5  Livy, 2.15.3: ea esse vota omnium ut qui libertati erit in illa urbe finis, idem urbi sit. Cf. Crifò 1958; Bruno 1966; Ferrary 1982; Hammer 2014. 6  See, for example, among others: Nicolet, 1986, 320; Raaflaub 1986, 23; Smith, 2011, 25. 7  Livy, 2.1.6: Libertatis autem originem inde magis quia annuum imperium consulare factum est quam quod deminutum quicquam sit ex regia potestate numeres. 8  To try to define the concept of res publica in depth would go far beyond the aims of this volume. Claudia Moatti has written several important articles on the topic, culminating in a comprehensive approach to the concept in her 2018 book: Res publica. Histoire romaine de la chose publique. Harriet Flower in Roman Republics 2010, proposes an original and thoughtprovoking interpretation of republican chronology, challenging the traditional picture of a single monolithic Republic arguing instead for the presence of a series of republics. For the development of the idea of res publica in Western political thought, see Millar 2002.

Introduction

3

or ‘public thing’ was not anything specific; the word res in Latin has a wide diversity of meanings and the combination res publica was equally broad.9 As Claudia Moatti puts it, ‘res publica does not have a precise meaning, it was what the citizens made it, through common action or through conflict.’10 Res publica, res populi, Cicero said through Scipio’s lips, but he did not feel it necessary to explain what res was, and he concentrated on populus.11 The res publica as the ‘common thing of the people’ did certainly involve an institutional aspect, but the emotional one was not less important. It was regarded as more than a simple res; the res publica had a body, thoughts, and feelings: it was something alive; it was the greatest and dearest cause to the citizens, in whose name it was even possible to kill fellow-citizens.12 In its genesis, therefore, res publica had nothing to do with a defined political system.13 The flexibility, and sometimes ambiguity, of the term res publica had political consequences in Roman society, some of which will be analyzed in this book; but its relationship with the concept of libertas makes it even more complex to pin down or describe res publica as a fixed reality at a particular time. Having said this, even though the ideas of res publica and libertas had a wide scope, this was not unlimited. Limitations came mainly from context and usage. Res publica meant many things and liberty admitted degrees, but there was some common ground that everyone understood. In broad terms, after the expulsion of the kings, libertas became a pre-condition for legitimate government of the res publica. Livy was not the first one to make an explicit connection between libertas and res publica. Cicero had said it before him, and in his De Re Publica there are significant passages which indicate that the two ideas were associated with one another. Unsurprisingly, these associations in his account of the political trajectory of the city of Rome went back to the opposition to regnum, as he asserts in several passages of the dialogue: ‘To be sure a nation ruled by a king is deprived of many things, and particularly of liberty, which does not consist in serving a just master, but in serving no master at all.’14 And further on he explains how, when freedom is hijacked by one man, it is impossible for the res publica to exist: ‘therefore, wherever a tyrant rules, we ought not to say that

9  For the different meanings and uses of the word res, see the standard articles by Drexler in Maia 1957 and 1958. 10  Moatti 2017, 34. 11  Cic. Rep. 1.39. Cf. Schofield 1995. 12  Cf. Lind 1986, 50; Hammer 2014, 30–31; Moatti 2017, 40. 13  Cf. Mackie 1986; Moatti 2018. 14  Cic. Rep. 2.43: Desunt omnino ei populo multa, qui sub rege est, in primisque libertas quae non in eo est ut iusto utamur domino, sed ut nul[lo.] See also 1.48; 2.57–58.

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we have a bad form of commonwealth (res publica), as I said yesterday, but, as logic now demonstrates, that we really have no commonwealth at all.’15 Cicero may have been one of the first to rationalize the connection between libertas and res publica but, in truth, there were many well-known episodes in the traditional history of Rome that underlined the same connection. Apart from the legendary account of Lucretia’s rape and Brutus’ first consulship, there were other stories which had the struggle for libertas at their centre: the origins of the tribunes of the plebs and the laws of provocatio, the tale of Virginia and the decemvirate, or other events related to the struggle between patricians and plebeians.16 These traditions had been present in Rome before the first century BC, but it was around this time when they were reshaped and fixed as cherished memories of the Roman political organization.17 If res publica had a broad and multi-faceted range of meanings, making the concept difficult to grasp and translate, the case of libertas was not very different. The concept of libertas in Rome can be approached through many different angles, but here we will refer mainly to libertas in its political aspects. In Roller’s analysis of freedom and slavery in political discourse under the Julio-Claudians, he concludes that it is ‘incorrect’ to talk about libertas having a political meaning. He argues that the concept of libertas is an example of how the language and imagery of social status – the status of a liber (freeborn) being the opposite to that of a servus (slave) – was used ‘metaphorically’ to describe political relationships.18 If a political community perceived that they were treated by the authorities in the way a master treated his slave, then they felt ‘enslaved’ to the public power. The community assumed some of the characteristics of the slave, in this case the absence of the freedom to make their own (political) decisions; and therefore, feeling like a slave was used as a metaphor to express their lack of libertas as they were not actually or formally the slave of anybody but only in a figurative sense. This may be semantically correct, and Roller’s point on the precise meaning of libertas is illuminating for the theory; in practice, however, it does not seem equally relevant, as this ‘metaphorical’ use of libertas may have been in use for such a long time – our sources do not allow us to see when or how this started – that the ‘metaphorical’ use of political libertas may have appeared almost simultaneously with the social meaning of the word. 15  Cic. Rep. 3.43: ergo ubi tyrannus est, ibi non vitiosam, ut heri dicebam, sed, ut nunc ratio cogit, dicendum est plane nullam esse rem publicam. 16  On provocatio and the right to appeal, see Cornell 1995, 196–97, 226–27, 267–77 and Lintott 1999, 97–99. 17  Cf. Momigliano 1951; Raaflaub 1986; Cornell 1986; 1995; Fantham 2005. 18  Cf. Roller 2001, 228–33. See also pages 220–22 in this volume.

Introduction

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In essence libertas meant the status of non-slavery, being primarily understood as the absence of domination.19 The status of unfreedom could be experienced as a private person, e.g. by being the slave of a master, or publicly, that is, as part of a group or community dominated by a public power, whether wielded by one person or several. In this latter sense, libertas as nondomination implied precisely being protected by the law, which checked the arbitrary use of power by officials towards the individual and the community, especially through two institutions: the tribune’s ius auxilii, and the citizen’s right to appeal to the people with the laws of provocatio. Livy defines them as the ‘two bastions of liberty’ through the words of the tribune of the plebs Icilius: duas arces libertatis.20 Therefore, libertas in Rome was based on law and implied having certain rights: the right to act without constraints, the right of protection under the law, the right to be your own master. These rights would be mere self-interest, if they were not intimately connected to the greatest duty of all: that of caring for and preserving the res publica. They would end up as regnum, superbia and dominatio if they did not aim at the care of the commonwealth (cura rei publicae) by the community that held them. Even though the approach to libertas in this book will be mainly political, different meanings and usages will also be looked at. These will include libertas as a social status, the opposite of servitus; libertas as an expression of freedom of speech; libertas identified with the idea of civitas, since a manumitted slave attained Roman citizenship, or with the rule of law, as libertas also provided an umbrella of legal protection and civic rights.21 Libertas will also be found to work as a political catchword used for propaganda in the struggles during the crisis of the late Republic.22 However, this volume does not constitute an exhaustive semantic account of the concept, nor a description of its history, but a study on its meaning as related to the res publica in the political context of the times. One way of understanding this dynamic or evolving nature of the idea of libertas is to see the word as having a core meaning and then several more 19  Studies on the topic of liberty, of course, abound and they go from a philosophical approach such as Berlin 1969 through broad historical perspectives, such as Patterson 1991 or Schmidtz and Brennan 2010, to specific books on Roman libertas, like Wirszubski 1950; Bleicken 1972; Cogitore 2011; Arena 2012. There are also many substantial chapters or articles on the subject, for example Brunt 1988; Millar 1995; Fantham 2005; Arena 2006; 2007, Hammer 2014, 52–58. 20  Livy, 3.45.8. 21   See, among others, Wirszubski 1950; Hellegouarc’h 1972; Brunt 1988; Millar 1995; Mouritsen 2001; Fantham 2005; Arena 2012. 22  Cf. Syme 1939, 59, 155, 516.

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specific meanings derived from the different contexts in which the concept was found. The context-dependence of the terms libertas and res publica, however, did not make them so vague that they lost their force and appeal. On the contrary, it was precisely their malleability and capacity for adaptation that made them powerful, as they created an impression of concord and harmony between the speaker or promoter of these ideas and the audience.23 This could only be possible, of course, if, detached from the constraints of the particular context, libertas and res publica were agreed by all to be common property and indisputably good.24 This makes libertas, in a certain sense, a ‘value concept’ which, together with res publica, in particular circumstances came to represent ideals or accepted principles with regard to the relationship between the individual and the state. These value concepts worked as a tacit agreement – nowhere were they written down – but they were powerfully felt, and created an emotional response when any of their tenets seemed even minimally challenged or threatened. At some point during the republican period, libertas started being in some way synonymous with res publica, or at least it became an essential aspect of the res publica, so that defending the former necessarily implied – according to first century BC sources – that one was working for the protection of the latter as well. Res publica and libertas in combination meant what we have come to understand as ‘Roman republican government’, and it was probably what Tacitus implied in the enigmatic rhetorical question at the beginning of the Annals, referring to the time of Augustus’ Principate: ‘How many people were left who had actually seen the res publica?’25 Being part of the Roman political conceptual world, libertas and res publica demanded a certain code of behaviour – again, unwritten – which entailed the practice of particular qualities: courage (virtus), faithfulness ( fides), moderation (moderatio) and firmness (constantia), among others. Political concepts such as libertas and res publica converted into value concepts thus became not only political values but actual moral values, as these concepts worked as a kind of channel which connected political practice with common good, public morality and individual behaviour.26 The complexity of the terms as outlined above means that this book contains a rich combination of conceptual and theoretical arguments, dealing as 23  Mackie 1986, 322–23. 24  On public ownership of the res publica and questions of public control, see Russell 2016 (especially ch. 2 ‘Roman concepts of publicus/privatus’). 25  Tac. Ann. 1.3. quotus quisque reliquus qui rem publicam vidisset? 26  For the connection of politics and morality in Roman political thought, see for example, Adcock 1959; Earl 1961 and 1967; Lind 1989 and 1992; Balmaceda 2017.

Introduction

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it does with issues concerning political practice and ethical dilemmas in particular circumstances, during the lifespan of the Roman Republic.

2

The centrality and validity in Roman studies of the main topics of this book, libertas and res publica, do not need to be argued for and can also be seen in the vitality of recent publications. This last decade has seen two substantial monographs about libertas in Rome: one in French by Isabelle Cogitore which deals with the usage of the term libertas mainly in literary works, Le doux nom de liberté: histoire d’une idée politique dans la Rome Antique (Bordeaux, 2011), and the comprehensive and well-documented analysis by Valentina Arena, Libertas and the Practice of Politics in the Late Roman Republic (Cambridge, 2012), where, taking Cicero as her main source, she reconstructs not only the political thought around the idea of liberty in Rome, but principally its practice in politics during the late Republic. In 2018, Arena also edited a special issue of the journal History of European Ideas entitled Ancient history and contemporary political theory: the case of liberty. The volume collects a series of papers on the way the concept of freedom was articulated not only in Roman culture but in a wider range of geographical and historical contexts of the ancient world, with the aim of establishing a dialogue on rival notions of political liberty in antiquity. The concept of res publica in Rome has not lagged behind, and two books have appeared in the last couple of years, one by Louise Hodgson, Res Publica and the Roman Republic: ‘Without Body or Form’ (Oxford, 2017) and the other by Claudia Moatti, Res publica: Histoire romaine de la chose publique (Paris, 2018). Hodgson’s work analyses the political crisis of the Republic by examining how the concept of res publica was perceived by the actors of the time, from 133 BC to Augustan times. Moatti, meanwhile, studies res publica by approaching the term not only historically (as Hodgson does) but also philosophically, and explores its multiple, and problematic, processes of formalization in Roman history. Moatti makes it very clear that neither the expulsion of the kings in 509 BC nor the granting of the title ‘Augustus’ to Octavian in 27 BC put an end to res publica, even though the Romans did acknowledge that these events changed something in their political organization.27 By inter-relating these two all-important Roman concepts of libertas and res publica, this book deals with them more broadly, chronologically and 27  Moatti 2018, 3–4.

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thematically, than previous studies: the time span covers more than four centuries, from our earliest extant Roman sources to Tacitus’ Dialogus, and explores the connections of these concepts with other central aspects of Roman life such as rhetoric, literature, empire, political practice, and foreign policy, among others. The reader will find frequent cross-references among the chapters and, although the pieces are grouped within thematic units, the topics intertwine to offer a coherent picture not only of how the notions of libertas and res publica were consolidated and conceptualized during the Republic, but also why they continued being key to Roman political life even during the Empire. The first group of papers deals with ‘Ideas of Libertas’, that is with different notions of it, and the different angles from which libertas has been understood throughout republican times, ranging from archaic legal ideas to the development of an emergent political meaning as well as religious interpretations. Carlos Amunátegui’s chapter, Archaic Ideas of Libertas, introduces us to the origins of the definition of libertas in Roman law, primarily understood as non-domination. This negative approach to libertas – ‘freedom from’ – is particularly pertinent to what has been called a ‘slave-society’, and archaeological evidence shows that Rome was such a society very early on. The next section of the chapter explores what liberty actually entailed from a juridical and social point of view, and stresses the links between status libertatis and citizenship. From here, Amunátegui goes on to analyse Florentinus’ definition – found in the Digest, but in connection with the archaic legal concept of liberty – and deals with its peculiarities, namely, libertas presented as the ‘faculty’ to do whatever one wishes, but given in the context of ‘status’, which nevertheless shed light on other legal matters touching on the concept of freedom. In the second paper, Libertas in Early Latin Authors, Catalina Balmaceda examines the incipient conceptualization(s) of Roman political libertas in authors before Cicero, and other significant authors of the first century BC, that is, before the time in which Roman political thought was rationalized and explained by late Republican intellectuals. By analysing the works of comedians such as Plautus and Terence, and the poet Ennius, Balmaceda investigates whether these earlier conceptualizations of libertas – which was a term primarily related to the socio-juridical status of a free man as opposed to a slave – involved any political implications which could have helped to define and lay the foundations for the catchwords used in the struggles of the dying Republic, when libertas was not only in the mouth of every political leader, but was also the rallying cry of totally opposite groups in Rome. The chapter concludes that, although the early understanding of libertas may have differed a little from the meaning employed by the politicians, historians or intellectuals of the last years of

Introduction

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the Republic, libertas in these early Latin authors does appear to have a political connotation and value that can be identified as a ‘proto-political meaning.’ The last chapter in this section is by Valentina Arena, The God Liber and the Republican Notions of Libertas in the Late Roman Republic, who focuses on the Roman god Liber and its relationship with the idea of libertas especially in the first century BC. By examining and analysing the different ways in which Liber was understood and symbolised in the late Republic, Arena concludes that, contrary to what later sources have led us to believe, the divinity had become primarily associated with the idea of fertility, abundance and vegetation, and therefore was not primarily related to political or juridical freedom. As she puts it, ‘Liber had rather come to signify liberty from physical constraints to enable the individual to flourish and realise one’s own potential (inherent in one’s nature).’28 The identification of this alternative way of conceptualizing liberty in Rome shows the variety of manners in which its rich potential could be used by intellectuals and politicians, especially in struggles of the late Republic. The second thematic unit, ‘Libertas and Republican Empire’, comprises two papers which analyse the way Roman freedom was seen against the freedom of non-Romans, particularly those peoples who were conquered during the great republican expansion. Chapter 4, Harriet Flower’s The Freedom of the Rhodians: Cato the Elder and Demosthenes, deals with the first surviving use of libertas understood as political freedom applied to a foreign power, in Cato’s speech Pro Rhodiensibus. Delivered in the Senate in 167 BC, the speech argues against a new war with the Rhodians and uses libertas to refer to the position of independent and sovereign states, whose liberty may choose to stay neutral in conflicts where Rome was involved. The chapter also proposes that Cato also drew vital inspiration from Demosthenes’ Oration 15, On the Liberty of the Rhodians, delivered in 351 BC, a connection that has not been made by earlier scholars and commentators. ‘Ex imperio libertas’: Freedom and Republican Empire by Clifford Ando, approaches a similar topic to Chapter 4, but from a different angle, namely, that at a discursive level, the Romans maintained that many subject communities of the Empire were in fact free, both in their foreign and domestic affairs; in practice, however, the legal autonomy of the communities was potentially inimical to the freedom of the Romans. Ando shows that Romans themselves did sense a ‘tension between their ideological commitment to freedom for themselves and others and their occasional neglect regarding democratic principles of (local) legal legitimacy.’29 28  Arena in this volume, page 75. 29  Ando in this volume, page 113.

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The third section ‘Res Publica: continuity and change’ focuses both on explaining particular and somehow stable aspects of the complex notion of res publica and, at the same time, on illustrating particular moments when this res publica was challenged by changes and novelties that brought it near to annihilation, but could emerge transformed after the civil wars through Augustan policy. The first chapter in this unit is by Claudia Moatti, The notion of res publica and its conflicting meanings during the late Republic, who gives the framework for understanding and interpreting the complexities and ambiguities of the expression res publica. The difficulty and even – according to Moatti – impossibility of translating this phrase comes not only from the multiplicity of meanings of the word res (matter, thing), but also from the conflicting interpretations of the notion and the political practices that these interpretations reflect. The coordinates that Moatti sets in her chapter not only explore the semantic and lexical marks of the idea of res publica, but also show a development that would affect Roman polity deeply. During the period which in the history of Rome has been conventionally called ‘republican’, the res publica underwent a process of formalization that involved important attempts to crystallize these interpretations with different results. For Moatti, this process included ‘the legal construction of the res publica as a norm of action, as the public authority.’30 However, it was not achieved without serious conflicts, especially in the late Republic, and would give rise to distinctive forms of sedition which in the end broke up the unity of the civic community and gave rise to a new form. The three chapters that follow Moatti’s form a thematic and method­ ological cluster, presenting three case-studies related to the management of the internal politics of the city, where it is precisely the lack of libertas that seems to endanger the survival of the res publica. In Chapter 7, The Consulship Under the Triumvirs: a Phantom Office, Francisco Pina Polo examines the nature of the institutional and political role played by the consuls under the triumvirs. By addressing the questions of imperium, control and decision-making during the second triumvirate, Pina Polo argues that the consulship, although it retained the core faculties for which it had been instituted, was definitely ‘a secondary and subordinate magistracy under the triumvirate, the office that really mattered.’31 This anomalous functioning of the res publica necessarily changed the perception of the libertas of the Roman people, who watched, powerless, the end of the independence of the consulship – the symbol of a system which repudiated tyranny. Cristina Rosillo-López’s piece, Arbitration in the res publica: a novel way of solving internal political conflicts in the 30  P  age 135. 31  Page 151.

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40s and 30s BC, explores how the procedure of ‘arbitration’, a republican mechanism of problem-solving by which the two conflicting parties drafted a compromissum (agreement) and named an arbiter to settle a dispute, started being applied not only to private matters, but to public ones too. According to Rosillo-López, cases of political arbitration attested a new conception of res publica in which the boundaries of what constituted private or public affairs became blurred. Her analysis of the sources shows that the practices of private law arbitration were adapted and applied to the political conflicts of the dying Republic and describes, as an example, how soldiers exercised their libertas in a novel way in their roles as arbiters of political problems as well as military ones. The last paper in this section is Chapter 9, The Auctoritas and Libertas of Augustus: Metamorphosis of the Roman Res Publica, by Frédéric Hurlet, who analyses how auctoritas and libertas, two terms that may at first sight seem opposed, were transformed from being very much part of the republican res publica, to constituting shared realities during the Principate. Following on the notion of the partes of the res publica introduced by Claudia Moatti in Chapter 6,32 Hurlet studies the role that auctoritas and libertas played in the imperial ideology of Augustus’ regime, showing on the one hand what aspects of these republican concepts were retained during imperial times, and on the other, the extent to which they actually became foundational ideas of the imperial regime; and explaining the reasons for this ‘metamorphosis’. According to Hurlet, it was the concepts’ flexibility and ability to adapt to the new circumstances that explains their survival within a ‘monarchical’ environment. The last thematic unit, ‘Oratory, libertas and res publica’, is devoted to showing the significant role and function that oratory played in relation to the use (and abuse) of the concept of libertas when asserting the conditions necessary to maintain the res publica. Chapter 10 deals with ‘oratory in action’, while Chapter 11 presents a retrospective view of republican oratory and free speech through the lens of a witness of the new political setting, the Principate. Jeff Tatum’s paper, ‘A Great and Arduous Struggle’: Mark Antony and the Rhetoric of Libertas in 44–43 BC, introduces Cicero’s provocative view of libertas in his Philippics to present Antony as a threat to republican freedom, and Antony’s personal defence through his appeal in a letter addressed to Hirtius and Octavian to persecute and punish the tyrannicides. Antony’s selffashioning as the true libertatis vindex (defender of freedom) subverted the rhetoric of Cicero and Caesar’s assassins – who had striven hard to achieve the auctoritas of ‘Liberators’ – and positioned them as guilty of parricidium. Tatum shows that the effectiveness of Antony’s argument lies partly in his managing 32   Page 126.

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to appropriate the claim of libertas, which constituted a ‘meaningful, influential means of achieving legitimacy.’33 In the last chapter of the volume, Res Publica, Libertas and Free Speech in Retrospect: Republican Oratory in Tacitus’ Dialogus, Henriette van der Blom explores how Tacitus saw the notion of libertas as free speech in both republican and imperial periods, and shows how his presentation was based both on republican sources, and also on early imperial versions of the republican past. The interlocutors of the dialogue present libertas as a feature of the republican past which consisted not only in the outspokenness to say what they want, but mainly in the freedom to address the powerful without fear of punishment. This presentation, van der Blom argues, ‘says as much about contemporary concerns of speaking to those in power as it does about the conditions of republican public speech and notions of libertas and res publica.’34

3

In various ways, then, the contributors to this volume explore the connection of libertas and res publica in the Roman Republic. Much, of course, remains to be examined and we hope to have stimulated further discussion. The aim of these chapters has not been to give a new, controversial or more exhaustive definition or explanation of the terms in question, but rather to see how they work (or not) together in action, and thus widen the horizon of thought about these concepts in Roman history, thereby enriching our way of approaching their interconnections, political and otherwise. But another goal of this historical investigation is, of course, related to our present times. Libertas and res publica are Latin concepts that were crucial to ancient Romans, both to their practice of politics and their sophisticated creation of political discourse. But they are also ideas that have become part of the cultural heritage and political thought of any society that looks for the active participation of its members in the organization of their own community and also for the personal flourishing of each of the individuals that make up that society. Freedom and the ‘common thing’ – meaning the managing of the State – are still ideals that move, stir and inflame our own societies. The more deeply one explores the relationship of these ideas in antiquity, the more it will remind us that, although some of these concepts may sometimes have been used as catchwords or convenient slogans adapted to circumstantial conflicts, they have also worked as ideals that have legitimized the 33  P  age 208. 34  Page 234.

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practice of politics in Rome and in contemporary political culture. It seems a worthwhile exercise to investigate how political values worked in the ancient world, and review to what extent and in what way they are still valid and relevant for the present. To think about important political ideas is, in some way, to strive to establish some of the intellectual foundations that may help to construct a more harmoniously organized political society in both the local and the global community.

Bibliography

Adcock, F.E. 1959. Roman Political Ideas and Practice. Ann Arbor. Arena, V. 2006. ‘Liberti and Libertas: A Call for Civic Freedom’, in M. Kleijwegt (ed.) Faces of Freedom: The Manumission and Emancipation of Slaves in Old World and New World Slavery. Leiden. Arena, V. 2007. ‘Libertas and Virtus of the Citizen in Cicero’s De Republica’, SCI 26, 39–66. Arena, V. 2012. Libertas and the Practice of Politics in the Late Republic. Cambridge. Arena, V. 2018. ‘Ancient history and contemporary political theory: the case of liberty’, History of European Ideas 44.6, 641–57. Balmaceda, C. 2017. Virtus Romana, Politics and Morality in the Roman Historians. Chapel Hill. Bruno, L. 1966. ‘Libertas Plebis in Tito Livio’, Giornale Italiano di Filologia 19, 107–30. Brunt, P.A. 1988. ‘Libertas in the Republic’, in The Fall of the Roman Republic and other Related Essays. Oxford. Cogitore, I. 2011. Le doux nom de liberté: histoire d’une idée politique dans la Rome Antique. Bordeaux. Cornell, T. 1986. ‘The Formation of the Historical Tradition of Early Rome’, in I.S. Moxon, J.D. Smart, A.J. Woodman (eds.) Past Perspectives, Studies in Greek and Roman Historical Writing. Cambridge, 67–86. Cornell, T. 1995. The Beginnings of Rome. Italy and Rome from the Bronze Age to the Punic Wars. London. Crifò, G. 1958. Su alcuni aspetti della libertà in Roma. Modena. Drexler, H. 1957. ‘Res Publica’, Maia 9, 247–81. Drexler, H. 1958. ‘Res Publica’, Maia 10, 3–37. Earl, D.C. 1961. The Political Thought of Sallust. Cambridge. Earl, D.C. 1967. Moral and Political Tradition of Rome. New York. Fantham, E. 2005. ‘Liberty and the People in Republican Rome’, TAPA 135.2, 209–29. Ferrary, J.L. 1982. ‘Le idee politiche a Roma nell’epoca repubblicana’, Storia delle idee politiche, economiche e sociali 1, 723–804. Flower, H. 2010. Roman Republics. Princeton.

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Hammer, D. 2014. Roman Political Thought. From Cicero to Augustine. Cambridge. Hellegouarc’h, J. 1963. Le Vocabulaire Latin des Relations et des Partis Politiques sous la Republique. Paris. Hodgson, L. 2017. Res Publica and the Roman Republic: ‘Without Body or Form’. Oxford. Kapust, D. 2004. ‘Skinner, Pettit and Livy: the conflict of the orders and the ambiguity of republican liberty’, History of Political Thought 25, 377–401. Lind, L.R. 1986. ‘The Idea of the Republic and the Foundation of Roman Political Freedom’, in C. Deroux (ed.) Studies in Latin Literature and Roman History IV. Brussels, 44–108. Lind, L.R. 1989. ‘The Idea of the Republic and the Foundations of Roman Morality’, in C. Deroux (ed.) Studies in Latin Literature and Roman History V. Brussels, 5–34. Lind, L.R. 1992. ‘The idea of the Republic and the Foundations of Roman Morality: II’, in C. Deroux (ed.) Studies in Latin Literature and Roman History VI. Brussels, 5–40. Lintott, A. 1999. The Constitution of the Roman Republic. Oxford. Mackie, N. 1986. ‘Res Publica Restituta: A Roman Myth’, in C. Deroux (ed.) Studies in Latin Literature and Roman History IV. Brussels, 302–40. Millar, F.G.B. 1995. ‘Roman libertas and civic freedom’, Arethusa 28, 99–105. Millar, F.G.B. 2002. The Roman Republic in Political Thought. Hanover, NH and London. Moatti, C. 2017. ‘Res Publica, Forma Rei Publicae and SPQR’, BICS 60.1, 34–48. Moatti, C. 2018. Res publica. Histoire romaine de la chose publique, Paris. Momigliano, A. 1951. Review of C. Wirszubski, Libertas as a Political Idea in the Late Republic and Early Empire, JRS 41, 146–53. Mouritsen, H. 2001. Plebs and Politics in the Late Roman Republic. Cambridge. Nicolet, C. 1980. The World of the Citizen in Republican Rome. London [Paris, 1976]. Patterson, O. 1991. Freedom in the Making of Western Culture. London. Pettit, P. 1997. Republicanism: a Theory of Freedom and Government. Oxford. Raaflaub, K.A. 1986. ‘The Conflict of the Orders in Archaic Rome: A Comprehensive and Comparative Approach’, in K.A. Raaflaub (ed.), Social Struggles in Archaic Rome. Berkeley, 1–46. Roller, M. 2001. Constructing Autocracy: Aristocrats and Emperors in Julio-Claudian Rome. Princeton and Oxford. Russell, A. 2016. The Politics of Public Space in Republican Rome. Cambridge. Schmidtz D. and J. Brennan. 2010. A Brief History of Liberty. Malden, MA – Oxford. Schofield, M. 1995. ‘Cicero’s Definition of the Res Publica’, in J. Powell (ed.) Cicero the Philosopher. Oxford, 63–84. Skinner, Q. 1998. Liberty Before Liberalism. Cambridge. Smith, C. 2011. ‘Thinking about Kings’, BICS 54.2, 21–42. Wirszubski, C. 1950. Libertas as a Political Idea in the Late Republic and Early Empire. Cambridge.

chapter 1

Archaic Ideas on the Concept of Libertas Carlos Amunátegui 1

Introduction

Liberty is one of the key concepts of modern legal thought. It is present in all modern constitutions playing different roles within the positive system, usually as included among fundamental rights, following the 18th century liberal tradition. In the famous late 18th century rights declarations, liberty was founded on Natural law, an idea which came directly from the classical past, several times, probably elaborated during the late Republic and early Imperial times and repeated in Justinian’s Digest. Nevertheless, the concept of liberty is unevenly treated in Roman law sources. There is little information about the role that liberty played in Public law. Although some modern scholars have identified a concept of libertas as a sum of civil rights,1 composed of different powers that a citizen could hold, most of the legal material does not refer to such a notion. Certainly, citizenship comprehended different layers of protection against arbitrary acts of power2 and political participation in the affairs of the Republic,3 but libertas was not the same as citizenship. There seems to be a notion of libertas implied in citizenship, as the common freedom that all members of the city enjoy. This notion of libertas plays an important role in the political arena, regulating the relation between the citizen and the government,4 especially in the late Republic, but it tended to disappear from the scene in the Principate.5 Legal concepts of 1  Volterra 1991, 410. Also, Wirszubski 1950, 7–30 and Franciosi 1953, 330–33. 2  As the provocatio and the auxilium of the tribunes. 3  Brunt 1988, 297. On the matter see also Bauman 2000, 101; Manfredini 2010, 247–263; Arena 2012, 54. 4  For instance, Arena opens her book with a functional definition of the concept: ‘I am exclusively concerned with the notion of political liberty, understood as the relation between the liberty of the citizen and the power of the commonwealth, and its conflicting applications in the political debates that took place in the last period of the Republic …,’ Arena 2012, 1. 5  Different of the most relevant aspects of libertas were effectively wiped out of existence during the Principate. For instance, ‘freedom of speech, libertas, especially among the elite, to all intents and purposes disappeared: freedom as the old Republic knew it was swept away and Rome’s Senate, which for centuries had shaped policy and presided over the growth of

© Carlos Amunátegui, 2020 | doi:10.1163/9789004441699_003

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libertas tend not to emphasize this ‘public’ notion of liberty, but seem to focus on a related but somehow different idea, libertas as non-servitude,6 as a status of non-domination of the individual in the sense of not being a slave.7 This points to a negative concept of liberty, which has a legal precise content and seems to be primary in the construction of Roman ideas on libertas8 – even in its most complex public notion. We will explore the notion of liberty in Roman law in the following sections, firstly by analysing its role in relation to slavery in the Archaic period, to then studying an intriguing definition contained in the Digest, where libertas is defined as a power to do whatever one wishes. There seems to be a connection between the legal concept of liberty contained in the Digest and the previous ideas developed in Archaic and Late republican times, and we will attempt to find it in the last section of this chapter. 2

Libertas and Slavery in Archaic Rome

Slavery has a long history in Roman society. Scholarship has usually focused on the period that goes from the First Punic War to the 3rd century AD, where its social and economic importance became primary, labelling Rome as a ‘slave society’.9 Nevertheless, slavery seems to be quite older. It is attested in the XII Tables10 in several dispositions and in Rome’s legendary past. We cannot precisely pinpoint a moment in which slavery became a part of the Roman world. It was probably an intrinsic element of Latin society well before any historical record was kept. The first evidence that could be linked with subordinate work in the Latin society comes from archaeology. According to Bietti Sestieri’s interpretation of the necropolis of Osteria dell’Ossa, the site’s earliest burial groups show no social differentiation among the buried.11 The only difference that can be established comes from gender and age, but not from status.12 At   Mediterranean empire, was reduced to a state of servitude – as even emperors complained (Ann., 3.65),’ Bradley 2010, 624.    In the words of Kunkel 1956, 323: ‘im Munde der Kaiser bedeutet libertas überhaut nicht mehr die echte republikanische Freiheit, sondern ungefärh das gleiche wie securitas.’ 6  Most famously, but not exclusively, in Gai.1.9, Dig.1.1.4, Dig.1.5.3–5, Dig.12.6.64 and Inst. Iust. 1.3.1. 7  Galinsky 2006, 6; Arena 2012, 14; Strunk 2017, 23. 8  Levy 1961, 142; von Lübtow 1953, 20. 9  For the discussion of this term, see Bradley 1994, 10–29. 10  (Bruns) XIIT 2.1; 5.8; 6.6; 8.3; 8.14; 10.6a; 11.2a–2b. 11  Bietti Sestieri 1992, 146–50. 12  The excavator describes two main groups of burials, which show different traditions in their inhumation, the North group and the South group. Each of these develops different

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17

the beginning of Latial Period III (c.770–740 BC), the introduction of several new technologies in central Italy from the Greek world seem to have affected the production patterns.13 During this period, cultivation of vines and olives is introduced, allowing to improve the productivity of higher lands which were previously unoccupied in agriculture.14 Also, settlements extended,15 and a process of nucleisation took place, concentrating the population of older and smaller settlements into larger ones.16 At this precise period of time, Bietti Sestieri finds evidence of subordinated labour at Osteria dell’Ossa. The burial group that comprises graves 230–293 seems to be the first to contain a central burial of a male and female couple (graves 262 and 259), which belong to an elderly man and a young woman, the male one including a sword. The central graves are richer than the rest, and at the periphery of the group some graves have no burial goods at all.17 These differences will widen in successive group burials and during the following period, (c.740–640 BC) impressively rich burials will appear, the so called tombe principesche, which include ostrich eggs, gold items and even a whole combat chariot. In short, during the second half of the 8th century and the first half of the 7th, together with the introduction of several new production technologies and the expanse of settlements, social distinctions, at least in burials, appeared. The presence of graves without any goods suggests the appearance of subordinate population that inhabited together with a group of wealthier individuals. This can be interpreted as the emergence of subordinate work. Subordinate work does not imply slavery. In fact, there are several ways in which Romans from historical times recruited subordinate workers without sites of collective burial, which correspond to two or three generations of individuals. According to the evidence found, the groups, which can be reliably dated as belonging to the 9th to mid 8th centuries BC seem to differentiate the burials of their members according to age (individuals between 15 and 40 years old on the privileged central groups) and sex. The paraphernalia of males and females between 15 and 40 years of age would be composed of some socially important items (spear heads for men, spindle whorls for women) and some pottery, while the older and younger members of the group would lack these privileged items. 13  This includes literacy, the potter’s wheel, the diaphragm kiln, technical improvements in iron work and bronze casting, and possibly vine and olive cultivation.    See Torelli 1986, 51–52; Forsythe 2006, 56. 14  For a detailed and interesting study on the soils and land occupation from Bronze Age to the Archaic Period, see Fulminante 2007, 152–83. 15  Morel 2007, 493. 16  Torelli 1986, 35; Cornell 1995, 90. 17  Bietti Sestieri 1992, 203 &ff.

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recurring to slavery, most prominently through nexum. Mancipatio could be used to create a bond of subordination, either through nexum18 or through the transfer of dependant alieni iuris into the power of another paterfamilias. Both the nexi and the fili familias in mancipio were to work for the acquirer, although they remained formally free and retained their military duties and citizenship.19 Their situation is described in the sources as loco servorum, occupying the place of a slave.20 This does not mean that they were true slaves. In fact, we know that at least in historical times the son in mancipio could not be mistreated, for he had the actio iniuriarum against his holder,21 and could even force him to liberate him when due time came.22 These ways to recruit manpower remained in force during the Middle Republic, when they were finally replaced by slavery. Then famously, nexum was abolished by the lex Poetelia Papiria in 326 BC, while the transfer of sons does not appear to be widely used in historical times.23 As to slavery, there are some hints that seem to point to an early introduction during the formation of Rome. Tradition points to Tarquin the Elder as the

18  The nature of nexum is quite debated in Roman law. The information we have is somehow contradictory. It appears to be an act that must be performed through the solemnity of the bronze and balance: Fest. Verb. 165.20: Nexum est, ut ait Gallus Aelius, quodcumque per aes et libram geritur: id quod necti dicitur. Quo in genere sunt haec: testamenti factio, nexi datio, nexi liberatio. Cic. De or. 3.159: Nam si res suum nomen et vocabulum proprium non habet … ut nexum, quod per libram agitur … Varro, Ling. 7.105: In Colace: ‘nexum’ Manilius scribit, omne quod per libram et aes geritur, in quo sint mancipia. Mucius, quae per aes et libram fiant ut oblige[n]tur, praeter quom mancipio detur. hoc verius esse ipsum verbum ostendit, de quo querit: nam id es[t] quod obligatur per libram neque suum fit, inde nexum dictum. It is debated whether this means that the act is made through a mancipa­ tio or by some other means. In the XII Tables the famous disposition cum nexum faciet mancipiumque, uti lingua nuncupassit, ita ius esto [Festus Verb 173.11] is highly debated. For a summary, see St. Tomulescu 1966, 39ff. The main theories are the following: Huschke proposes that nexum is simply a debt contracted per aes et libram (see Huschke 1846, followed by Bekker 1871). A second theory proposes that nexum is a self-mancipatio (see Mitteis 1901, 96ff). This theory found opposition in Lenel and Kretschmar (Lenel 1903, 84ff; Kretschmar 1908, 227ff). Mitteis’s theory seems dominant nowadays. 19  Varro Ling. 7.105: liber qui suas operas in servitutem pro pecunia quam debebat, dum sol­ veret, nexus vocatur, ut ab aere obaeratus. hoc C. Poetelio Libone Visolo dictatore sublatum ne fieret, et omnes qui bonam copiam iurarunt, ne essent nexi, dissoluti. 20  Gai 1.138 21  Gai 1.141. 22  Gai 1.140. 23  In fact, the mancipatio of descendants seem to subsist in legal explanations because it was used to fulfil other social needs different to the provision of labour. It was part of the procedure of adoption (Gai.1.99), coemptio (Gai.1.118) and of emancipation (Gai.1.134).

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first king to enslave defeated enemies.24 In fact, during the later monarchy of Rome there were massive public works implemented, including the desiccation of the Forum and the construction of impressive public buildings.25 This would require high levels of manpower. The word used by Romans to refer to slaves, servus, seems to come from the Etruscan serve,26 something that would strengthen the relation between Etruscan influence and slavery.27 Even more interesting is that in the XII Tables the only word attested to refer to slaves is servus, and not any other Latin equivalent such as mancipium. Even more, according to tradition, Servius Tullius introduced a law to grant citizenship to freed slaves,28 something that will stand as an oddity in the classical context during historical times. Another symbolic character that is linked to slavery is Junius Brutus, the liberator of Rome and founder of the Republic. During the wake of consulship, a slave denounced the sons of Brutus because they were conspiring against the newly founded Republic to bring Tarquin the Proud back. Brutus immediately put them to death29 and granted freedom and citizenship to the slave.30 According to Livy, the consul introduced by this act a new way to free slaves, touching them with the vindicta, a kind of rod used in the ancient legis actio per sacramentum in rem to claim property.31 It is, of course, highly symbolical that the creator of the Republic, and therefore, liberator of Rome, is the one to introduce a new method to free slaves, strengthening the link between public libertas and freedom as the liberation of servile condition, quite in the line of the famous beginning of Tacitus’ Annals.32 Be that as it may, by the debut of the Republic servile work seemed common, and the slave had appeared in the socio-legal Roman arena. The word libertas itself seems be of archaic morphology. It follows the pattern liber-libertas, as vetus-vetustas, and not the later – eritas suffix, as in pros­ per, prosperitas.33 The word liber has a primary meaning linked to growth, as in 24  Dion. Hal. 3.49–50, 6.19–20. See Franciosi 1992, 208; Serrao 2006, 205. 25  Torelli 1989, 37; Momigliano 1989, 95–96; Smith 1996, 150; Edlund-Berry 2013, 406–25. 26  See Bonfante 1985, 203–10; Benveniste 1932, 429ff.; De Visscher 1936, 246. There were some fictional etymologies that tried to derive the word servus from servare, to save, because the slaves would be captives saved from death, as in Dig.1.5.4.2–3 and Dig. 50.16.239.1. See Gamauf 2016, 384. 27  Franciosi 1959, 375; Franciosi 1992, 206; De Martino 1997a, 82–83; De Martino 1997b, 27–57. 28  Dion. 4.22.4, Zonar. 7.9. 29  Livy 2.5.5; Val. Max. 5.8.1; Virg. Aen. 816; Dion. Hal. 5.7–8. 30  Livy 2.5.8, Dion. Hal. 5.13. 31  Gai. 4.16. 32  Tac. Ann., 1.1. libertatem et consulatum L. Brutus instituit. 33  Brachet 2002, 79–89.

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the divine couple formed by Liber and Libera,34 whose main festivity was the Liberalia.35 In this sense, the descendants of the pater – the ones who were, in a sense, growing – were usually called liberi in archaic legal locutions, as in the solemn declaration made before the censors that the citizen had a wife libe­ rorum quaerendorum causa.36 The paterfamilias in historical times held potestas both over his slave and his descendants.37 This was the very same power, permitting the power holder to act in an equally despotic way towards them, applying his vitae necisque potestas, his power to kill or let live. In fact, to name the vitae necisque potestas seems to be equivalent to patria potestas in archaic legal terminology, for the adopter, when asking the comitia calata to authorize his adoption of another paterfamilias (adrogatio), asked the comitia if they accepted that the adoptee entered his power of life and death.38 The only difference between the descendants – liberi – and the slaves was that the first were free while the second were not, therefore the quality of those descendants was the libertas (liber-libertas). In this sense, the word libertas seems to be a development from the relations held inside the family group to designate the quality of those members who were, although under the power of the pater, not of servile condition, but his descendants. In the XII Tables, the word is used in this sense consistently.39 The link between citizenship and status libertatis may have also appeared early in the legal history of Rome. Although we have no express prohibition on the enslavement of citizens in the XII Tables, some dispositions of the archaic legal background seem to imply it.40 Most conspicuously, there is the disposition of the XII Tables that establishes the possibility to sell the debtor trans 34  Raaflaub 1984, 536; Wissowa 1926, 68. 35  Varro, Ling. 6.14; Macrob. Sat. 1.4.15. See Valentina Arena’s paper in this volume. 36  Val. Max. 2.1.4; Gell. 4.3.pr, 17.21.44. See Péter 1991. 37  Gai.1.52 In potestate itaque sunt serui dominorum. quae quidem potestas iuris gentium est: nam apud omnes peraeque gentes animaduertere possumus dominis in seruos uitae necisque potestatem esse, et quodcumque per seruum adquiritur, id domino adquiritur.    Gai.1.55 Item in potestate nostra sunt liberi nostri, quos iustis nuptiis procreauimus. quod ius proprium ciuium Romanorum est ( fere enim nulli alii sunt homines, qui talem in filios suos habent potestatem, qualem nos habemus) idque diui Hadriani edicto, quod proposuit de his, qui sibi liberisque suis ab eo ciuitatem Romanam petebant, significatur. nec me prae­ terit Galatarum gentem credere in potestate parentum liberos esse. 38  Gell. NA 5.19.9: Eius rogationis uerba haec sunt: ‘Velitis, iubeatis, uti L. Valerius L. Titio tam iure legeque filius siet, quam si ex eo patre matreque familias eius natus esset, utique ei uitae necisque in eum potestas siet, uti patri endo filio est. Haec ita, uti dixi, ita uos, Quirites, rogo.’ 39  As for instance in (Bruns) XIIT 8.3, 8.14 where ‘libero’ contraposed with ‘servo’. 40  Levy 1961, 142, 147.

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Tiberim in the process of manus iniecto.41 It seems that to transform a citizen into a slave was not possible inside the city, so the decemvirs would have permitted the enslavement of the debtor by selling him outside the city’s sphere of influence, at Etruscan side of the Tiber. The same can be said of the ius post­ liminium.42 This institution intended to return the libertas to a citizen who was captured and reduced to slavery. If he ever returned to the city, he regained his citizenship and rights.43 Although we do not know when the postliminium was created,44 its frame seems archaic, and could be related to some kind of prohibition of slavery of citizens within the Rome itself, as the one attributed by Dionysius to Servius Tullius.45 According to Dionysius, Servius Tullius would have prohibited to offer personal service as a collateral in debts. At least in the way Dionysius understood it, the disposition seems quite unlikely, for it would have anticipated the Lex Poetelia Papiria in almost three hundred years and we know that nexum was possible during the early and middle Republic. It might come from a simpler disposition that prohibited the enslavement of citizens and not figures that implied a subordinate position as nexum, but this is only speculation. In the legal atmosphere of the 5th century Mediterranean area, the problem of a citizen’s slavery was a debated issue. In fact, during the previous century Solon had prohibited it in Athens.46 Romans tended to link Greek legal ideas and early Roman institutions, something that was illustrated in the different stories that claimed Greek origins to the XII Tables, as the embassy to Athens47 and the participation of the philosopher Hermodorus in their conception.48 Although these stories are probably not exact historical accounts, it is beyond doubt that there was a very real influence of Greek ideas in decemviral legislation.49 On the matter, there are interesting features to pinpoint, as the presence of Greek words in the XII Tables and some regulations that mimic earlier Greek legislation, like the prohibition of burial paraphernalia. In this same 41  (Bruns) XIIT. 3.5, Gell. 20.1.46–47. 42  On the matter, see Levy 1943, 159–76; Hernández-Tejero 1989, 53–64. 43  Dig. 49.15.4 [Modestinus libro tertio regularum] Eos, qui ab hostibus capiuntur vel hostibus deduntur, iure postliminii reverti antiquitus placuit. An qui hostibus deditus reversus nec a nobis receptus civis Romanus sit, inter Brutum et Scaevolam varie tractatum est: et conse­ quens est, ut civitatem non adipiscatur. 44  Kaser 1971, 290–91, links it with the 3rd century BC. 45  Dion. Hal. 4.9.6–7. 46  See Vamvoukos 1979, 89–124; Karavites 1982, 145–62. 47  Livy 3.31. 48  Dig. 1.2.2.3–4; Pliny, HN 34.21; Strabo 14.1.25, p. 642c. 49  Wieacker 1971, 757–84; Wieacker 1956, 456–91; Ferenczy 1984, 2001–12; Steinberg 1982, 379–96; Toher 2005, 268–92; Cornell 1995, 274; Forsythe 2006, 210; Bauman 1996, 39–62.

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line, the inclusion of dispositions to favour freedom might come from this very same philo-Greek environment. According to the legal sources, the XII Tables did involve the favor libertatis principle,50 or the idea to favour freedom in legal processes.51 Gaius reports that when using the legis actio per sacramentum in rem, if the claimed issue was the freedom of the apparent slave, the sacramen­ tum sworn by the litigants would amount to fifty asses, whatever the real value of the slave would be, in order to favour the vindicationes in libertatem.52 The existence of a semi-servile status for debtors left real slavery only for foreigners and permitted its formal prohibition for citizens.53 Although they might still be subject to compulsory work if they failed to pay certain debts guaranteed by nexum, they could not become slaves within Roman territory. In fact, slavery and citizenship became two opposite poles, while the liberation of a slave made him a citizen. There is debate regarding the date of this last institution,54 although the sources seem to point to the archaic period.55 Slavery was somehow equivalent to death56 – servitutem mortalitati fere comparamus –57 and therefore, all previous ethnical origins were lost with it.58 As Volterra puts it,59 in the archaic period, you could not be free without having a citizenship, so the only alternative left was to grant the exslave the Roman one.60 In fact, all formal manumissions implied a public act,61 50  Although the hypercritical school casted doubts on its authenticity (see Albertario 1933, 61–77), nowadays there is little doubt on the authenticity of the fragments, especially since Gaius 4.14 attested it. See Ankum 2006, 47; Imbert 1949, 274–79; Castello, 1984, 2175– 89; Riccobono 1965, 591; Wubbe 1990, 253. 51  Riccobono 1965, 591; Ankum 2006, 47–48; Bradley 1994, 162. 52  Gai. 4.14. 53  As Wiedemann 1994, 2 puts it: ‘Solon’s attempt to prevent political discontent in Attica, and the pressure which Roman peasant-soldiers were able to exert upon an elite which needed them to wage war, meant that for particular (and quite separate) reasons neither Athenians nor Romans accepted that a citizen who fell into debt should formally lose his independence to another. Hence the enslaving of outsiders (already attested by our earliest sources, Homer and Hesiod) became much more economically significant than it had earlier been and continued to be in those other areas of the Greek and Roman world which continued to recognise semi-servile statuses.’ 54  See Daube 1946, 57–75. 55  We already mentioned the disposition attributed to Servius Tullius on the subject, Dion. 4.22.4, Zonar 7.9. The story about Brutus is also linked to it (Livy 2.5.8, Dion. Hal. 5.13). 56  Bradley 1994, 25; Giltaij and Tuori 2015, 45; Gamauf 2016, 384. 57  Dig. 50.17.209: Ulpianus libro quarto ad legem Iuliam et Papiam. 58  Joshel 2010, 38. 59  Volterra 1991, 395–416. 60  In Levy’s 1961, 142 words: ‘keine civitas ohne libertas’. 61  Arena 2012, 19. See Gai 1.17.

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for the testament needed the approval of the comitia, the vindicta needed the intervention of a magistrate and the census the intervention of the censor. Therefore, manumission was not a private act, and its public nature allowed it to generate a public consequence – the grant of citizenship. Finally, during the late 4th century BC, with the approval of the lex Poetelia Papiria, the nexum was formally abolished. Hence, for the central period of Roman history, slavery will become the most important way to secure subordinate work. Shortly after, the newly founded Temple of Libertas was erected by Sempronius Gracchus in 238 BC.62 3

Slavery and Political Liberty

During the 3rd century BC, Rome concluded its expansion in the Italian peninsula and started a quest for the dominance of the Mediterranean basin. This newly found predominance came with important military victories that permitted the conversion of defeated armies into a new provision of labour. We cannot get a precise figure on the number of slaves in Rome at any time, but some conjectures have been made which tend to put a rather high figure for the Italian peninsula in between a 20 and a 30% of the population.63 Appian describes the situation as follows:64 For these reasons the rich became maximally wealthy and the slaves abounded in the countryside, while famine and scarce population afflicted the Italian people, decimated by poverty, taxes and military service. Population could then be divided in a fairly simple way between free and slave, for this was the major difference between the subjected workforce and the rest of the population who benefited from the imperial position that Rome had gained. The free had a sphere of sacrosanctity associated with the political rights that the plebs had obtained in the struggle of the orders of the previous era. The auxilium of the tribunes, the provocatio ad populum and the possibility of participating in the governance of the city through voting became the quintessential elements that configured the status of the free citizen who, therefore, 62  Wissowa 1926, 101–103; Elm von den Osten 2006, 32–44; Springer 1950, 390–91; Koortbojian 2002, 33–48. 63  Most importantly, Scheidel 2005, 64–79. Nevertheless, the number of freed people in Italy seems disturbingly high. Three quarters of all the gravestones mention freedman status of the buried. See Mouritsen 2005, 38–63. 64  App. BC 1.1.7.28.

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lived in a free Republic.65 This tradition seems to reflect in later thought, and we will find evidence that links these Archaic and Late Republican ideas into Late Roman works, as is the Digest. In Justinian’s Digest we find an interesting definition of libertas: ‘Florentinus, ninth book of the Institutiones. Freedom is the natural faculty to do whatever one wishes, except if it is prohibited by violence or law.’66 This definition, verbatim repeated in Justinian’s Institutes,67 has not called for much attention of recent scholarship and it has been even dismissed as ‘una banale riminis­ cenza di dottrine stoiche.’68 Nevertheless, we think it holds some interesting elements that should be accounted for when writing both about political and legal liberty. The definition is obviously taken from the stoic philosophical tradition. In fact, Cicero gives account of some similar ideas in his Paradoxa Stoicorum: ‘What is liberty? The power to live as you wish.’69 He develops the concept stating that the wise man is the veritable free person, for he acts not constricted by law or force, but from his free will.70 It is no wonder that the legal concept of libertas is developed from stoic ideas, because the discussion about freedom and slavery in Roman law was deeply influenced by this school of thought.71 We have plenty of examples on the matter, including some famous critics to slavery that can be found in the Digest.72 On Florentinus we have very little information. He seems to have lived during the first half of the 3rd century, because he copies a text from the jurist Paul.73 As expected of a cultivated man of his time, he knew Greek and quoted in it occasionally.74 We know he wrote his own Institutiones in twelve books, of which 41 fragments are quoted in the Digest, but hardly anything more. Analysing the definition, it seems rather odd to discover that liberty is conceived as a faculty, a power. In Roman legal thought there was no subjective 65  S trunk 2017, 23; Bleicken 1962, 1–20; Kunkel 1956, 302–52. 66  D  ig. 1.5.4 Florentinus libro nono institutionum. pr. Libertas est naturalis facultas eius quod cuique facere libet, nisi si quid vi aut iure prohibetur. 67   Inst. Iust. 1.3.1. 68  Betti 1943, 41. 69  Cic. Par.Stoic. 34: Quid est enim libertas? Potestas vivendi, ut velis. 70  Cic. Par.Stoic. 34: Soli igitur hoc contingit sapienti, ut nihil faciat invitus, nihil dolens, nihil coactus. 71  Mitsis 1999, 153–77; Mayer-Maly 1983, 91–102; Levy 1949, 3–19; Kuebler 1934, 79–98; Giltaij and Tuori, 2015, 39–63; Honoré 2002, 80; Gaudemet 1995, 105–15; Gaudemet 1987, 7–23; Honoré 2010, Brouwer 2015; Castello 1984, 2175–90. 72  Dig. 1.1.4, Dig. 1.5.4, Dig. 40.11.2, Dig. 50.17.32. 73  The text is Dig. 38.2.28. See Lenel 1939, 171–72; Honoré 2002, 88. 74  See, for instance, Dig. 11.7.4.

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rights theory,75 so, in designating libertas as a facultas, Florentinus seems to be walking away from law and entering into a somehow different terrain of social relations. Nevertheless, this is not the only oddity the definition contains, because the limits that Florentinus bounds liberty with seem even stranger. Liberty, according to his definition, has two frontiers, law (iure) and violence (vi). The first, law, has a long academic tradition attached to it. Cicero stated that libertas in legibus consistit,76 in the sense that freedom comes from law.77 Freedom would be the power to act within the framework given by law, which, in itself, should not be a problematic assertion. More interesting is the second limit that Florentinus puts to libertas, violence. Violence stands outside of law, and by confronting it to law it seems that Florentinus is referring to an illegitimate use of force. This is something already implied by Cicero in his Paradoxa Stoicorum, when he defines the free act as opposed to the forced one (nihil coactus). The idea seems cogent, for a man lawfully condemned by a judge is as deprived of freedom as one who has been kidnapped. The consideration that illegitimate force is contrary to freedom seems interesting, for it implies that freedom is not a legal concept, but a meta-legal one. Rights cannot be affected by violence. On the contrary, if someone is deprived by force of something that by law is his, a whole set of legal mechanisms are activated in order to prevent the situation and restore the rule of law. The theft does not deprive the victim of property, only of possession, and in order to recover possession the victim is provided with actiones in rem (reivindicatio) and in personam (actio furti). Property is a right defined by law, and therefore it cannot be affected by facts. The factual aspects of material control of a res are encompassed by possession, which is not a right and its consistence is factual. Paradoxically, liberty can be affected either by law or by facts. This brings to mind Hume’s famous ‘naturalistic fallacy’, which states that from a fact (‘an is’) a normative consequence (‘an ought’) cannot be deduced.78 If liberty is affected by facts as violence, therefore, it cannot be a right, but something else entirely. Although Romans did not develop the natural fallacy and its strict separation between law and facts, the idea that facts cannot affect rights is present in their legal reasoning.79 Paul explicitly says that facts cannot affect rights (res

75  Villey 1983, 63. 76  Cic. Leg. Agr. 2.202. On the mater see: Bleicken 1962, 1. 77  Cic. Leg. 3.39 Quam ob rem lege nostra libertatis species datur, auctoritas bonorum retinetur, contentionis causa tollitur. 78  The term ‘naturalistic fallacy’ comes from George Edward Moore 1953, 10. 79   Mayer-Maly 2000, 15.

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facti infirmari iure civili non potest),80 implying that legal institutions remain separate from factual phenomena. This reasoning is present also in Celsus ( facti, non iuris est quaestio in Dig. 24.1.47),81 and Julianus ( facti magis quam iuris quaestio est in Dig. 39.5.2.7). Even more, a similar rationale can be found in Marcian (Dig. 29.7.7.1 and Dig. 22.1.32.pr, quoting a Constitutio from Antoninus Pius), Papinian (Dig. 41.5.12.12) and Ulpian (Dig. 1.5.16),82 so we can say that the separation between ius and factum was well present in Roman legal ideas. Florentinus’ definition of liberty is even more awkward in the context that is given. It is put forward in the context of status libertatis, which is entirely a legal institution. In fact, a kidnap does not change the status libertatis of the victim. The victim remains free, although he cannot exercise his freedom. To defend it, the vindicatio in libertatem is provided, in order to assert his liberty and recover the complete exercise of it. This is a somewhat common situation in Rome, omnipresent in the plots of comedy and in its mythological past, as in the case of Verginia.83 In a sense, the definition given by Florentinus exceeds the matter of sta­ tus libertatis and appears to be wider in scope and not well connected to slavery. This might be due to a summarization occurred during the compilation or maybe because the explanation that linked the definition of liberty contained in Dig.1.5.4.pr, to the definition of slavery in Dig.1.5.4.1 was simply cut off, we cannot know. Does this mean that the definition is irrelevant for legal purposes? Of course not. There are other legal matters where freedom is important and Florentinus’ definition seems to be illuminating. For instance, regarding fear (metus), that is the violence exerted against a person in order to force him to comply in a legal act. The in integrum restitutio which is provided by the praetor in the case of metus aims to protect the freedom of the person whose will has been constricted by force. This exact reasoning is given by Paul regarding the aditio hereditatem.84 Ulpian, quoting Pomponius regarding the unde 80  D  ig. 41.2.1.4 [Paulus libro 54 ad edictum] Si vir uxori cedat possessione donationis causa, plerique putant possidere eam, quoniam res facti infirmari iure civili non potest: et quid at­ tinet dicere non possidere mulierem, cum maritus, ubi noluit possidere, protinus amiserit possessionem? 81  In fact, Celsus dismisses a problem of impensae when the matter is clearly factual and not legal: facti, non iuris est quaestio in Dig. 24.1.47. 82  For the analysis, see Mayer-Maly 2000, 1–29. 83  Cf. Livy 3.44–58. 84  Dig. 4.2.21.5 [Paulus libro 11 ad edictum] Si metu coactus adii hereditatem, puto me heredem effici, quia quamvis si liberum esset noluissem, tamen coactus volui: sed per praetorem res­ tituendus sum, ut abstinendi mihi potestas tribuatur.

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vi interdict, says that the goal of the institution is to liberate the victim from violence, whether it comes from enemies, thieves or even a populum (si quo magis te de vi hostium vel latronum vel populi tuerer vel liberarem).85 It is quite interesting that private acts of violence are put together with public acts, and that the interdict is set to give protection from both. This seems rather unusual, for it relates the notion of libertas with a higher level of thought that regards not merely the status libertatis but with a general conception of liberty that encompass private and public affairs. In this same sense, Marcian explicitly says that libertas is not a private, but a public matter (libertas non privata, sed publica res est), and leads us straight to the discussions about public liberty in the Late Republic.86 The liberty of the Republic can be constrained by violence, as when a revolutionary group takes control of the public apparatus. This seems to be implied in the initial declaration of Augustus in his Res Gestae: ‘I vindicated the Republic to liberty, which was oppressed by the domination of factions’.87 But then again, libertas has two limits, vis and ius, so the question stands, if liberty has factual limits, does it also have legal limits? Can there be legal limits to public acts? Is there some kind of constitutional limits to the powers of the civitas? Recently, B. Straumann has extensively written about constitutionalism in the Late Republic and has concluded that there was an effort from different intellectuals, most prominently Cicero, to construct a sort of legal frontier to the action of the comitia, limiting the power of the populus to act against the liberty of the Republic, especially by giving extraordinary powers to individuals, ultimately founding these limitations in natural law.88 Given the unrepresentative nature of Roman assemblies and easy approval that leges had 85  D  ig. 4.2.9.1 [Ulpianus libro 11 ad edictum] Animadvertendum autem, quod praetor hoc edicto generaliter et in rem loquitur nec adicit a quo gestum: et ideo sive singularis sit persona, quae metum intulit, vel populus vel curia vel collegium vel corpus, huic edicto locus erit. Sed licet vim factam a quocumque praetor complectatur, eleganter tamen Pomponius ait, si quo magis te de vi hostium vel latronum vel populi tuerer vel liberarem, aliquid a te accepero vel te obligavero, non debere me hoc edicto teneri, nisi ipse hanc tibi vim summisi: ceterum si alienus sum a vi, teneri me non debere, ego enim operae potius meae mercedem accepisse videor. 86  Dig. 40.5.53.pr. Marcianus libro quatro regularum. Si quis rogatus ancillam manumittere moram fecerit, si interea enixa fuerit, constitutum est huiusmodi partum liberum nasci et quidem ingenuum. Sed sunt constitutiones, quibus cavetur statim ex quo libertas deberi coe­ perit ingenuum nasci: et hoc magis est sine dubio sequendum, quatenus libertas non privata, sed publica res est, ut ultro is qui eam debet offerre debeat. 87  R GDA 1: rem publicam a dominatione factionis oppressam in libertatem vindicavi. 88  Straumann 2016, 23–147.

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in the republican system,89 the construction of legal limits to the apparently unrestrained power of the comitia seems cogent. Among any public theorisation of liberty that might have been developed in the Late Republic, we have only glimpses left in the sources. Florentinus’ definition, might, in fact, be another glimpse, although awkwardly included in status libertatis, a matter for which it might not have initially aimed.

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Honoré, T. 2010. ‘Ulpian, Natural Law and Stoic Influence’, Tijdschrift voor Rechtsgeschiedenis 78, 199–208. Huschke, P.E. 1846. Uber das Recht des nexum und das alte römische Schuldrecht. Leipzig. Imbert, J. 1949. ‘Favor libertatis’, Revue Historique de Droit Français et Étranger 27, 274–79. Joshel, S.R. 2010. Slavery in the Roman World. Cambridge. Karavites, P. 1982. ‘Eleutheria and Autonomia in Fifth Century Interstate Relationships’, Revue Internationale des Droits de l’Antiquité 28, 145–62. Kaser, M. 1971. Das Romische Privatrecht 1, München. Koortbojian, M. 2002. ‘A Painted Exemplum at Rome’s Temple of Liberty’, Journal of Roman Studies 92, 33–48. Kretschmar, P. 1908. ‘Das Nexum und sein Verhältnis zum Mancipium’, in Zeitschrift der Savigny-Stiftung für Rechtsgeschichte / Romanistische Abteilung 29, 227–80. Kuebler, B. 1934. ‘Griechische Einflüsse auf die Entwicklung der römischen Rechtswls­ senschaft gegen ende der republicanischen Zeit’, in Atti del congreso internazionale di diritto romano. Bologna e Roma XVII–XXVII aprile XCMXXXIII 1. Pavia, 79–98. Kunkel, W. 1956. ‘Bericht über neuere Arbeiten zur römischen Verfassungsgeschichte III’, in Zeitschrift der Savigny-Stiftung für Rechtsgeschichte / Romanistische Abteilung 73–1, 302–52. Lenel, O. 1902. Das Nexum in Zeitschrift der Savigny-Stiftung für Rechtsgeschichte / Romanistische Abteilung 23, 84–101. Lenel, O. 1939. Palingenesia iuris civilis I. Leipzig. Levy, E. 1943. ‘Captibus redemptus’, Classical Philology 38.3, 159–76. Levy, E. 1949. ‘Natural Law in Roman Thought’, Studia et Documenta Historiae et Iuris 15, 1–24. Levy, E. 1961. ‘Libertas und Civitas’, in Zeitschrift der Savigny-Stiftung für Rechtsgeschichte / Romanistische Abteilung 78, 142–72. Manfredini, A.D. 2010. ‘Le pilleus libertatis (C.7.2.10–C.7.6.1.5)’, Revue Internationale des Droits de l’Antiquité 57, 247–63. Mayer-Maly, T. 1983. ‘Das ius Gentium bei den späteren Klassikern’, in IURA 34, 91–102. Mayer-Maly, T. 2000. ‘Juristische Reflexionen über ius I’, in Zeitschrift der SavignyStiftung für Rechtsgeschichte : Romanistische Abteilung 117, 1–29. Mitsis, P. 1999. ‘The Stoic Origin of Natural Rights’, in Ierodiakonou, K. (ed.) Topics in Stoic Philosophy. Oxford, 153–77. Mitteis, L. 1901. ‘Ueber das Nexum’, in Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Romanistische Abteilung 21, 96–125. Momigliano, A. 1989. ‘The Origins of Rome’, in Walbank F.W. et al. (eds.) The Cambridge Ancient History, 7–2. Cambridge, 52–112. Moore, G.E. 1953. Principia Ethica, Cambridge.

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Morel, J.-P. 2007. ‘Early Rome and Italy’, in Saller, R.P., Morris, I., Scheidel W. (eds.) The Cambridge Economic History of the Greco-Roman World. Cambridge, 497–503. Mouritsen, H. 2005. ‘Freedmen and Decurions: Epitaphs and Social History in Imperial Italy’, in The Journal of Roman Studies 95: 38–63. Mouritsen, H. 2017. Politics in the Roman Republic. Cambridge. Péter, O.M. 1991. ‘Liberorum quaerundorum causa’, Revue Internationale des Droits de l’Antiquité 38, 285–32. Raaflaub, K. 1984. ‘Freiheit in Athen und Rom: Ein Beispiel divergierender politischer begriffsentwicklung in der Antike’, Historische Zeitschrift 238, 529–68. Riccobono, S. 1965. ‘L’idea di humanitas come fonte di progresso del diritto’, in Studi in onore di Biondo Biondi 2. Milan, 585–614. Scheidel, W. 2005. ‘Human Mobility in Roman Italy, II: The Slave Population’, Journal of Roman Studies 95, 64–79. Serrao, F. 2006. Diritto privato economia e società nella storia di Roma. Naples. Smith, C.J. 1996. Early Rome and Latium. Oxford. Springer, L.A. 1950. ‘The Temple of Libertas on the Aventine’, The Classical Journal 45.8, 390–91. Steinberg, M. 1982. ‘The Twelve Tables and Their Origins: An Eighteenth-Century Debate’, Journal of the History of Ideas 43.3, 379–96. Straumann, B. 2016. Crisis and Constitutionalism. Roman Political Thought from the Fall of the Republic to the Age of Revolution. Oxford. Strunk, T.E. 2017. History after Liberty. Tacitus on Tyrants, Sycophants and Republicans. Michigan. St. Tomulescu, C. 1966. ‘Nexum bei Cicero’, in IURA 17, 39–113. Toher, M. 2005. ‘The Tenth Table and the Conflict of the Orders’, in Raaflaub, Kurt A. (ed.) Social Struggles in Archaic Rome. New Prespectives on the Conflict of the Orders. Oxford, 268–92. Torelli, M. 1986. ‘History: Land and People’, in Bonfante, L. (ed.) Etruscan Life and Afterlife. Detroit, 47–65. Torelli, M. 1989. ‘Archaic Rome Between Latium and Etruria’, in Walbank F.W. et al. (eds.) The Cambridge Ancient History, 7–2. Cambridge, 30–51. Vamvoukos, A. 1979. ‘Fundamental Freedoms in Athens of the Fifth Century’, Revue Internationale des Droits de l’Antiquité 26, 89–124. Villey, M. 1983. Le droit et les droits de l’homme, Paris. Volterra, E. 1991. ‘Manomissione e cittadinanza’, in Talamanca, M. (ed.) Scritti Giuridici 2. Naples, 395–416. Von Lübtow, U. 1953. Blüte un Verfall der römischen Freiheit. Berlin. Wieacker, F. 1956. ‘Zwolftafelprobleme’, Revue Internationale des Droits de l’Antiquité 3, 456–91.

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Wieacker, F. 1971. ‘Solon und die XII Tafeln’, in Studi in onore di Edoardo Volterra, 3. Milan, 757–84. Wiedemann, T. 1994. Greek & Roman Slavery. London and New York. Wirszubski, C. 1950. Libertas as a Political Idea During the Late Republic and Early Empire. Cambridge. Wissowa, G. 1926. Paulys Real-Encyclopädie der Classichen Altertumwissenschaft, b. 13. Stuttgart. Wubbe, F.B.J. 1990. ‘Humanitas de Justinien’, in
Tijdschrift voor Rechtsgeschiedenis 58, 249–62.

chapter 2

Libertas in Early Latin Authors Catalina Balmaceda

1

The specific content of political libertas, a definition of what it really entailed, was not written anywhere, but constituted the very foundations of the Republic as it was born when the chains of enslavement to the tyrant Tarquinius the Proud were broken. The concept of freedom acquired different emphases and more precise nuances depending on particular circumstances or situations. Libertas was primarily a legal status that meant the freedom of an individual from enslavement; it therefore implied personal self-determination. But when libertas was understood politically,1 it also meant the freedom of the citizen with regard to the self-determination of the community, the safeguarding of political rights, the supremacy of law and freedom of expression.2 Libertas, at least theoretically, represented freedom from regnum and dominatio. As part of the political vocabulary, libertas was a dynamic term that evolved through time and needed constant redefinition and interpretation.3 Libertas had a political meaning that could not be separated from the social and cultural one. Moreover, libertas evoked ideas of self-representation, and was an image with which the Romans liked other peoples to identify them. Therefore, the concept involved a psychological aspect that gave it great emotional power; being free and having a Republic were the same thing for a Roman.4 Late republican politicians and thinkers such as Cicero, historians like Sallust or Livy, and even later ones like Tacitus, created and canonised certain paradigms which illustrated and fostered the idea that the essence of the Roman res publica was intrinsically related to libertas. Profound and emotionally powerful ideas beautifully expressed by these masters of Latin language crystallised heartfelt beliefs: Cicero would claim that ‘other nations can endure slavery: the assured possession of the Roman people is liberty’ (aliae 1  For libertas not having a political meaning per se, cf. Roller, 2001 227–32. 2  Cf. Wirszubski 1950; Hellegouarc’h 1963, 542–59; Fears 1981, esp. 869–75; Brunt 1988, 281–350; Millar 1995; Mouritsen 2001; Arena 2012. 3  For the use of political vocabulary, see for example, Claudia Moatti’s paper in this volume. 4  Cf. Cic. Sest. 81.

© Catalina Balmaceda, 2020 | doi:10.1163/9789004441699_004

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nationes servitutem pati possunt, populi Romani est propria libertas);5 and Livy followed him, saying that ‘Rome was not a monarchy, but a free City’ (Non in regno populum Romanum sed in libertate esse);6 while Tacitus firmly declared that ‘freedom and the consulship were established by Lucius Brutus’ (liberta­ tem et consulatum L. Brutus instituit).7 It has often been said that rather than painting a realistic portrait of political life after the expulsion of the kings from Rome, what these authors do is to use the republican period as a backdrop to reflect and think about their own experiences of their own times.8 How many of these ideas formed part of the ‘invention of tradition’ undertaken during the last century of the Republic?9 Is it possible to draw any political significance or consequences from the concept of libertas in early Latin authors, that is, before the great political and intellectual works of the late Republic? To look at libertas in pre-classical authors is doubly tricky. We are constrained by the paucity of the amount of information available, and its nature. Most of the relevant extant sources are extremely fragmentary. For example, the fragments from the Roman historians contain only a couple of instances of the word libertas, mainly transmitted by late-Republican authors.10 This, of course, may constitute a certain check to our investigation. But rather than despairing at the partiality or poverty of the evidence, one can still attempt to make sense of what these early Latin texts do say and try to read them not only in their own right and the specific context of their production, but also in relation to the wider picture of the political situation and culture of the time. Even though I will not examine here every single instance of the word libertas in the different authors, it can be a rewarding exercise to look at some examples coming from different literary backgrounds and see the variety of contexts and meanings in which libertas could be used; this will help towards an increased awareness of the fact that key political concepts and values were present in many ways long before they appeared, firmly and comprehensively defined and categorised, in the late Republic. My main purpose here is to show how, even before this ‘age of rationalisation’ in Rome,11 libertas was understood by the people of Rome – even the common people who attended the performances of comedies in the city, for 5  Cic. Phil. 6.19. 6  Livy 2.15.3. 7  Tac. Ann. 1.1.1. 8  See, for example, Wirszubski 1950, 11; Brunt 1988, 341. 9  I am borrowing the expression from Hobsbawm and Ranger 1983. 10  For the fragments of the Roman historians, see Cornell 2013. For the two instances of the word libertas, cf. FRHist 5.F88 and 26.F20. 11  For this expression, see Moatti 2015.

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example – as having more than one sense, and even a political connotation or twist that can be called a ‘proto-political meaning’. This understanding of libertas was, in some sense, similar to the one to which people were exposed during the political struggles and debates of the late Republic, and to which politicians, historians or intellectuals of the time referred when justifying their views and tenets. Naturally, this ‘proto-political meaning’ of libertas did not coincide exactly with the concept of political freedom in the late Republic, but it is worth pointing out that even when libertas appeared in a mainly social context, referring to the juridical status of a free-born person compared to a slave – as we will see in the comedies of Plautus and Terence – or in an elevated setting such as Ennius’ epic poem or tragedies, there were some hints in the expressions of language that conveyed political implications as well.

2

Latin Comedy seems the obvious place to look for the word libertas in early Roman writers, as it is one of our first extant sources for early Latin.12 Besides, apart from the many fragments, a substantial number of comedies have survived in their complete form, and moreover, the themes associated with comic playwrights usually related to the world of slaves, some of whom have their freedom granted at the end of the play. When one looks at comedy in this context, it is important not to see only the specific plot of each work, but to consider the overall production and timing, so as to be able to discover small gestures that could have been significant for the public at the time. The first attestations of the word libertas in comedy come from Cn. Naevius (c.280/260–c.200 BC). He was also an epic poet, but was most famous and original as a dramatist.13 In the fragments that remain from the Agitatoria or the Comedy of the Driver, freedom appears as a much-prized thing for which it is worth sacrificing one’s own wealth and riches: ‘I at any rate have always valued freedom at a much higher price than money, and have held freedom to be preferable’ (Semper pluris feci ego / potioremque habui libertatem multo quam pecuniam).14 This latter fragment, actually, does not shed more light on the idea of freedom than the expected, that is, a high value in a society where the 12  The actual first appearance of the word libertas is found in the XII Tables. For more on this, see Carlos Amunategui’s paper in this volume. For Roman comedy in general see, for example, Duckworth 1952/1994, Marshall 2006; Manuwald 2011; and recently, Dinter 2019. 13  For Naevius’ life and work, see Conte 1994, 43–48; Manuwald 2011, 194–204. 14  Agitatoria, 5–6.

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institution of slavery is an everyday reality. The second instance of libertas appears in Tarentilla or The Tarentine Maid, where Naevius says through Carisius’ words: ‘that no king should dare to overthrow what I confirmed here in the theatre by the applause I received, how far this condition of slave surpasses this liberty!’ (Quae ego in theatro hic meis probavi plausibus, / ea non audere quemquam regem rumpere / quanto libertatem hanc hic superat servitus).15 The passage is ambiguous as there is not much context to these lines to be able to draw any significant conclusion from them. It can be understood ironically, meaning that a slave on the stage actually enjoys more freedom than a free citizen, as his free speech is not constrained by any higher power. It is in Plautus’ works, however, that it is really possible to make a more profitable study of the use of the word libertas.16 The twenty comedies that have survived in their entirety, in some sense, make up for the absence or scarcity of material from his predecessors. Titus Maccius Plautus (c.254–184 BC) represents the ‘New Comedy’ in Rome, a term which is used to distinguish the type of comedies composed by the playwrights of fourth- or third-century Athens from the ‘Old Comedy’ of fifth-century Athens, represented for us by Aristophanes’ eleven surviving plays, which date from the period 425– c.388 BC. New Comedy in Rome has been termed as fabulae palliatae or ‘comedies in Greek dress’ because the names of the characters and places are all Greek; these details ensure that the play is set elsewhere than Rome, thus protecting the author against the charge of ridiculing Romans and providing the audience with the pleasing exoticism and prestige of Greek culture.17 That said, Roman comedies did not follow all the Greek rules for drama: for example, they allowed more characters to appear on stage. The Mostellaria, for instance, had thirteen (ten men and three women), and was performed by five or six actors.18 On the other hand, even if the position and organisation of the theatre was greatly changed, these plays did pretend to be Greek in content: the characters were careful to refer to Romans as foreigners (barbari), as if they were real Greeks, and they even pretend to be alien to Roman morality. These jokes that alluded to Roman customs or way of life seen from a foreign point of view would certainly have made the play funnier for a Roman audience.19

15  Tarentilla, 69–71. 16  For Plautus’ life and work, see among others, Fraenkel 1922/2007; Perna 1952; Duckworth 1952/1994, 49–56; Conte 1994, 49–64, Moore 1998; Manuwald 2011, 239–47 (with bibliography). 17  Cf. Moore 1998 and Manuwald 2011. 18  Cf. Terzaghi 1929. 19  Cf. Anderson 1993.

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In Rome, drama was associated with games (ludi) in honour of the gods and festivals.20 Songs, musical instruments, and different-coloured costumes were a central part of all the festivities. Wigs and masks also played an important role: there were about 44 different types of masks portraying even minute subdivisions and details, such as the sun-tan of the countryside or the pallor of the city.21 Wigs were normally white for old men, who wore the pallium, black for young, and red for the short-tunicked slaves. Costume, wig and mask became part of a complex system of communication in the dynamics between actors and spectators. In The Captives, for example, where the slave is disguised as the master, he appears wearing his master’s clothes, but probably keeps the reddish hair, so the audience can still recognise that he is the slave.22 Roman comedy did not practise social or political criticism in the explicit way that Aristophanes’ comedy had done, but it was realistic after its own fashion.23 Many expressions, deliberately anachronistic details or gestures reflected what was happening at the time in Rome, and they referred in implicit terms to foreign policy, wars, or important laws that had been passed. Some of Plautus’ comedies, for example, were written and performed during the second Punic War (218–201 BC), with Hannibal’s invasion of Italy as the central event. Several works made occasional reference to the fact that Rome was at war, and some characters, such as the braggart soldier in Miles Gloriosus, would have sounded perfectly familiar to Plautus’ audience.24 Later on, Rome embarked on another military mission, now with Greece against King Philip V in the Second Macedonian War (200–197 BC). While Plautus did not make explicit references to this new war, it was clear – especially at the time when the play Stichus was composed in 200 BC – that there were some anti-war feelings and that the Romans were not very keen on starting a new conflict,25 even

20  For Roman festivals, and especially Ludi Romani, see Duckworth 1952/1994, 76–79; Marshall 2006, 16–31; Manuwald 2011, 55–62. 21  There is a reference in Diomedes and Festus saying that the masks were not introduced in Rome until the first century BC, although this is emphatically rejected by Leigh 2006, xix. Conte 1994, 32 affirms that masks were used at least from the middle of the second century BC onwards. For more about masks, see Duckworth 1952/1994, 88–94; Marshall 2006, 126–58; Manuwald 2011, 79–80. 22  See Captivi, beginning of Act II. 23  Cf. Manuwald 2011, 293–301; Germany 2019, 66–84. 24  See Plaut. Cist. 197–202; Amph. 39–45; Asin. 14–15. Cf. Leigh 2004, 24. 25  Paniseri 1997, says that many of them reflect a rural plebs tired of the wars, of false airs of grandeur, real miseries, and the insecurity of life.

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though they were under the guise of protective allies, and even liberators of Greek cities.26 Plautus explored the ideas of Roman loyalty and Greek deceit, but he also had faithful Greek slaves procuring freedom for their masters in distress, and it was not difficult to move from the stage to the city’s foreign affairs. Even internal circumstances, such as the passing of new laws or celebrations, were alluded to in his plays. In the Bacchides, for example, Chrysalus says that he does not want to hold a triumph because that would be too common a thing to do.27 This could only be funny if people had in mind the year 189 BC when four triumphs were held by different generals: Scipio Asiaticus, Aemilius Regillus, Fabius Labeo, and Aemilius Paullus. In Pseudolus and Rudens Plautus makes references to the Lex Laetoria from the beginning of the second century BC, with veiled criticisms of its consequences for the independence of young citizens.28 Although the word libertas almost always appears in Plautus in a slavery versus free-born context, it nevertheless sheds light on other meanings that the concept of freedom carried at the time of writing. As slaves were the main characters of almost all Plautine comedies, it is not surprising that freedom should appear as one of the most valuable possessions a human being could have. This could be seen clearly, as it was usually compared to parents and fatherland, as will be shown later on. Even though there was no explicitly moralising aim in comedy, the constant contradiction between the good ends sought and the bad means used by slaves always gave a touch of morality to the development of the plot.29 The slave pursues a legitimate aim, and in fact the final solution appears to be acceptable to all, but he also uses illegitimate and fraudulent means. Slavery did carry stereotypical moral overtones and slaves were usually depicted as indolent, cowardly, idle, dishonest and deceitful. As Brunt put it, ‘the degradation of many slaves made it natural to connect freedom with morality: a free man was, or should be, a better kind of man than a

26  Cf. Owens 2000, 388. For a more detailed military contextualization of the plays, see Perna 1955, 179–204. 27  Bacch. 1073: ‘Don’t be surprised that I am not holding a triumph: that’s too common. I don’t care for it’ (ne miremini quod non triumpho: pervolgatum est, nil moror). 28  Pseud. 303–304; Rud. 1381–82. The Lex Laetoria gave special protection to minors if they had been induced to enter fraudulent transactions. For more on the relationship of Plautus and Roman law, see Estavan 1966 and Gaertner 2014; for comedy and law in general, see Bartholomä 2019. 29  For the moral tone of Roman comedy, see especially Duckworth 1952/1994, 272–304 and Hunter 1985, 139–46.

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slave … in any case, enslavement doubtless tended to debase a man.’30 In comedy, however, the slaves used these characteristics for the good, together with some noble qualities. When slaves behaved honorably they were candidates for being granted their freedom. This is very marked in Roman comedies especially, because freedom was more frequently granted in Rome than in Greece.31 Terence, for example, in his Andria makes someone say: ‘I have converted you from my slave into my freedman, because you have served me with the character of a free man’ (feci ex servo ut esses libertus mihi, propterea quod servibas liberaliter).32 Thus we see that different virtues and qualities appear to be directly related to the final acquisition of freedom. In Amphitruo, a play written around 190–185 BC, freedom can be acquired through virtus or courage and as a reward for it. The text establishes a very important connection between libertas and virtus, and it will become vitally significant in politics because success – and in politics success mainly means freedom either against an external power or against internal pressure – is a direct consequence of virtus or courage. The passage in Plautus’ Amphitruo, which appears at first sight to be simply praise for courage, is key in showing this connection: courage works as the preserver of libertas, and moreover, it is through courage that one can recover one’s liberty. In this play, which does not have slaves as its main characters,33 it is Alcmena, Amphitruo’s wife, who says: ‘Courage is the best reward. Courage does indeed outdo everything; freedom, safety, life, possessions and parents, homes and relatives are protected and preserved. Courage has all good within itself, all goods are present for the man who has courage’ (virtus praemium est optimum; / virtus omnibus rebus anteit profecto: / libertas salus vita res et parentes, patria et prognati / tutantur, ser­ vantur: / virtus omnia in sese habet, omnia adsunt / bona quem penest virtus).34 This is a list of the most sacred of Roman values: libertas is put at the front of the list together with the parents, the fatherland, and life. Because Alcmena is the wife of a commander in chief and actually a free woman, it is likely that libertas here means freedom from despotism as much as personal freedom from another’s domination. Courage brings about libertas and it is a condition for creating the necessary setting for libertas. This would be amply demonstrated 30  B  runt 1988, 287–88. For evidence, Brunt gives Hom. Od. 17.322: a man loses his arete when he is enslaved and Arist. Pol. 1.2.5: a natural slave has intellectual and moral qualities that assimilate him to an animal, and needs perpetual tutelage. 31  Cf. Treggiari 1969 (though more specific for the late Republic); Bradley 1987; Garnsey 1996; Mouritsen 2011. 32  Andria, 38. 33  Although Sosia, Amphitruo’s slave, is a relatively relevant character. 34  Amph. 648–653.

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later on in the historians’ narratives. Livy, for example, is explicit in making the connection between the two in Book 4, when the dictator Cincinnatus applauded his Master of the Horse, Servilius Ahala, for killing Maelius who was a potential threat to the freedom of the Republic: ‘Praised be your courage, C. Servilius, you have freed the commonwealth!’ (Macte virtute, C. Servili, esto liberata re publica).35 It was Servilius’ courage that preserved freedom in Rome against Maelius’ attempt at regnum.36 In the play called Poenulus or the ‘Little Carthaginian’, freedom is also the reward for a virtue, but this time the virtue is that of pietas. The work was probably written around 189–187 BC and there are some hints in the text that reveal that the state is at peace – it would have been inconceivable to have a Carthaginian as the hero of the play if Rome had been at war with Carthage – and Rome felt quite secure after the victory at Zama and the harsh peace she had imposed on the Carthaginians.37 The appearance of libertas in connection with pietas happens when a father recovers his daughters, who had been made slaves and taken away from him and his land, after devoutly praying to Jupiter. The Carthaginian father says: ‘so that the girls who I was without for many years and whom I lost from my country when they were small – restore their freedom to them, so that I may know that there is a reward for unconquerable piety’ (ut quibus annos multos carui quasque patria / perdidi parvas ~ redde is libertatem, invictae praemium ut esse sciam pietati).38 Of course, Jupiter grants the man what he had been asking for, and again, one can see the association of libertas, parents and patria as the girls lost, and recovered, all three at one blow. The moving description of this Carthaginian father looking for his daughters is quite striking considering that Carthaginians had been Rome’s deadliest enemies in the recent past. On considering libertas as a reward for the virtues of pietas and virtus, what strikes us is that these two qualities appear in literature as quintessentially Roman; there is no other pair of virtues by which the Romans so liked to describe themselves, and so it is quite decisive that they associate these virtues with the acquisition of libertas. Virtus and pietas will appear also, very meaningfully, in the golden shield given to Augustus for having ended the civil wars and restored the freedom of the res publica: ‘a golden shield was placed in the 35  Livy, 4.14.17. 36  For the connection between libertas and virtus in the Roman historians, see Balmaceda 2017. 37  Romans defeated Carthaginians at Zama in 202 BC. 38  Poen. 1189–1190. For other instances to Hanno’s pietas, see 1137; 1256; 1275.

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Curia Julia whose inscription testified that the Senate and the Roman people gave me this in recognition of my valour, my clemency, my justice, and my piety’ (clupeus aureus in curia Iulia positus, quem mihi senatum populumque Romanum dare virtutis clementiaeque et iustitiae et pietatis caussa).39 As all comedies had a happy ending, there were some final scenes where slaves who had received money for their clever services were able to buy their own freedom, as in Miles Gloriosus where the master says: ‘I will give you freedom and wealth (libertatem tibi ego et divitias dabo) if you succeed’,40 or others where someone bought somebody else’s freedom, usually the young lover who bought the freedom of a beautiful slave girl, such as in Epidicus: ‘and you are to say that you buy her in order to free her’ (atque ut eam te in libertatem dicas emere).41 The liberation of slaves is described as having a proper protocol and following the normal legal procedure, so much so that at one point Plautus seems to forget he is not supposed to be writing about Rome and even talks of the praetor being present in the forum: ‘go to the forum to the praetor, inquire if you won’t trust me’ (i ad forum ad praetorem, exquire, siquidem mihi credere non vis).42 This was sheer fantasy, because the fabulae palliatae were supposed to be set in Greece or in a Greek-related territory – this particular comedy was set in Athens – and also because the Greeks did not need an official to validate or confirm the act of manumission.43 But for the audience, the mention of the praetor and the forum made the recovery of freedom much more realistic and vivid. Probably, in these very frequent scenes of manumission, the pilleus was a prominent feature.44 We cannot know for sure whether the pilleus or felt cap that former slaves wore as a sign of liberty was used on the stage, especially having in mind the use of masks to portray the different characters, but it is not too far-fetched to imagine that some comedies might have ended with the actor changing his slave’s mask for a freedman’s mask which could have included the wig and pilleus. The Romans were familiar with the pilleus: they saw it worn by freedmen in the streets of Rome and perhaps also with the stage wigs in comedies; later on they saw the pilleus depicted on coins (the first one is

39  R GDA, 34. 40  Mil. Glor. written in 206 BC, line 1213. For this play, see Hammond, Mack and Moskalew 1970. 41  Epid. written between 200–195 BC, line 278. 42  Persae, 487. 43  See Garlan 1988. 44  According to Richlin 2018, 418–19, there were between 26 and 29 slaves freed in Plautus’ comedies.

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126 BC),45 and also in big paintings, such as the one in the temple of Libertas.46 The image of the felt cap underwent a fascinating process of abstraction from being a symbol of a juridical fact – the change from slave to freedman – to being the symbol of the political freedom of the Roman citizen, implying not only the exercise of the rights (iura) protected by the laws (leges), but also a general state of the commonwealth or res publica under no domination at all. The fact that the image of the pilleus was so familiar must certainly have helped this process of abstraction and politicisation.47 Another important aspect of slaves and freedmen in Plautus’ comedies is that it is implied that the manumitted slaves always became citizens, something that did not happen anywhere except in Rome.48 Therefore, even if the characters were Greeks or Carthaginians, they were treated like Romans in Rome. The granting of citizenship to a former slave would have been particularly striking in a comedy such as Poenulus for example, as it is Rome’s archenemy who becomes a citizen with all the rights of freedom.49 For Plautus, therefore, the granting of libertas reflected the Roman world with Roman legal practices in a Roman political setting. It comes as no surprise that the comedy where libertas appears most prominently is Captivi or The Captives, written in 189 BC. This is the only comedy where the driving force is not love, but the touching devotion of a slave to his master.50 Captivi has a lot of what can be seen as ‘moralising verses’ that, combined with the laughter expected from a comedy, makes it a rather more powerful and profound work than is usual in Plautus. One can see, for example, the weight that the comedian gives to virtus in this play, a quality which allows men to live after death: ‘a man who dies through his courage does not die’ (Qui per virtutem, periit, at non interit).51 The main character of Captivi is presented in the prologue of the work as a slave whose cleverness manages ‘to set his master free, and by the same stroke he will unknowingly save his brother and let him return home to his father as a free man’ (et suom erum faciet libertatis compotem, eodemque pacto fratrem servabit suom reducemque faciet liberum 45  For republican coins with libertas, see Crawford 1974, nos. 266, 270, 391 and 392. 46  For this temple, see Koortbojian 2002; Clark 2007, 47; 58–59; 82; 178–79; Cogitore 2011, 177–79; 290–92; and Arena 2012, 30; 34–36; and Arena in this volume. 47  The most famous coin with the pilleus representing political libertas is, of course, the silver denarius that Brutus coined after Caesar’s assassination in 44 BC, with the cap between two daggers and the inscription EID MAR (Ides of March): RRC 508/3. 48  Cf. Syll3 543. See Hopkins 1978; Bradley 1988. 49  Cf. Poen. 901–6. See also Persae, 474–5. On manumission scenes, see Richlin 2017, 418–34. 50  Lindsay 1900. 51  Capt. 690. For virtus with a political meaning in Plautus, see Earl 1960, 235–43.

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in patriam ad patrem imprudens).52 Here again, we find libertas together with the sacred goods of parents and patria. These elements will appear together again in other passages: ‘now that I have lost home and freedom’ (nunc quando patriam et libertatem perdidi),53 or: ‘I have no objection to losing parents and freedom at your place’ (nullam causam dico quin mihi et parentum et libertatis apud te deliquio siet),54 and again, in: ‘my friend Philocrates is at home with his father in freedom’ (meus sodalis Philocrates in libertate est ad patrem in patria).55 In Captivi, Plautus seems to engage in a rather more serious way with the ‘sacred triad’ of parents, country, and freedom. For his audience, some of whom were displaced foreigners taken captive in war, these were definitely the highest goods to which they could aspire. The idea that freedom and patria are intrinsically related will resonate in political speeches of the late Republic, precisely when in the fight for libertas politicians – and also historians, as we have seen above – identified Rome, their patria, with the land of freedom. A necessary feature of comedy plots was mistaken identity, either because of a disguise, a particular circumstance that prevents recognition, or ignorance of origin. This is also quite clear in Captivi where the one who was the slave in his own patria, becomes the master in a foreign land in order to save his master from slavery, therefore creating great confusion: ‘Once I was just as free as your son; the enemy’s armed force has taken freedom away from me just as it did from him: he is a slave at our place just as I am now a slave at yours’ (Tam ego fui ante liber quam gnatus tuos, tam mihi quam illi libertatem hostilis eripuit manus , tam ille apud nos servit, quam ego nunc hic apud te servio).56 The idea that the free-born person can lose his freedom and slaves can become masters, brings to mind the idea of a ‘swappable libertas’, depending on the land where you happen to be, and also under which government you find yourself: ‘and you are also a slave and were free before; and I trust I will be free if I restore this man’s son to freedom here’ (Et tu quidem servos es, liber fuisti, et ego me confido fore, si huius huc reconciliasso in libertatem filium).57 The notion of ‘swappable libertas’ would become more significant and relevant in the debates of the late Republic where opposing sides felt oppressed and cried out for liberty from different places and standpoints.58

52  Capt. 41–44. 53  Capt. 300. 54  Capt. 625–6. 55  Capt. 698–9. 56  Capt. 310–12. 57  Capt. 574–6. 58  See, for example, Jeff Tatum’s paper in this volume.

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In Mostellaria, libertas appears for the first time in a figure of speech as a cloak or a mantle that protects men: ‘your freedom is a cloak for your back; I have nothing to cover my back with if I don’t fear and look after my master’ (libertas paenula est tergo tuo: mihi, nisi ut erum metuam et curem, nihil est qui tergum tegam).59 Freedom is here a cloak that brings safety to the person, freedom means protection because one is under the law, whereas if one was a slave one could be tossed here and there according to the whims of one’s owner. Applying this idea to politics, it is clear to see why political freedom meant protection too: if you were a free citizen in Rome, you were protected from a magistrate’s arbitrariness: the lex de provocatione and the tribune of the plebs, meant, in fact, that the citizens were protected and safe from indiscriminate domination: two pillars of freedom (duas arces libertatis), Livy calls them, talking about the early Republic.60 There is no indication as to when this play was staged, but the reference to libertas as a protection specifically to the scapula or ‘back’, reminds us of the lex Porcia de provocatione or lex Porcia de tergo civium that Cato probably carried in 195 BC.61 He himself claimed to have done so much for Romans’ ‘backs and shoulders’ in one speech, in an obvious reference to the legislation connected with the prohibition of scourging a Roman citizen.62 There are more instances where the concept of libertas is used in different contexts and not only related to the slave versus freedman condition. In the Bacchides, for example, there appears the all-important concept of freedom of speech: libertas orationis.63 Pistoclerus says to his slave: ‘Lydus, you’ve been given freedom of speech until now. It is enough’ (Istactenus tibi, Lyde, libertas datast orationis. Satis est).64 One may contrast here the freedom of speech of a Roman citizen – especially libertas senatoria if he was a senator –65 with that of the slave Lydus, who is given libertas orationis only for a certain amount of time, after which it is taken away from him. The expression libertas orationis which appears several times in the fragments of the Roman orators as well, can mean both the right to speak and the right to say what one wanted.66 This 59  Mostellaria, 991–2. 60  Livy, 3.45.8. 61  For a detailed discussion on the laws de provocatione, see Oakley 2005, 120–34. 62  O RF fr. 117: si em percussi, saepe incolumis abii; praeterea pro re publica, pro scapulis at aer­ ario multum rei publicae profuit. Astin 1978, 22 doubts that it was really Cato who moved this law. 63  Bacch. written in 189–188 BC. 64  Bacch. 168–9. 65  Cf. Tac. Ann. 13.49. For libertas senatoria, see Strunk 2017, 79–132. 66  Cf. ORF M. Porcio Cato; M. Antonius; L. Licinius Crassus; L. Marcius Philippus; L. Scribonio Libo.

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may well be the first written evidence that we have of an idea so key in Roman political culture.67 Another example of libertas in a completely different context is found in Rudens, with reference to some lost myth of Heracles: ‘Goodness, Liberty, you were smart never to want to set foot on a ship with Hercules’ (edepol, Libertas, lepida es, quae numquam pedem voluisti in navem cum Hercule una imponere).68 Libertas is here invoked as a goddess or divinity in some mythical allusion to the goddess Eleutheria / Libertas who would never go together with Heracles on a boat. It seems to be quite an obscure allusion to the cleverness of the pimp, but shows the presence of a cult of the personified Libertas probably in parallel to that of Eleutheria.69 As indoor scenes could not be staged in the fabulae palliatae, everything happened outside the house, that is, in a public space, mainly in the squares or the streets of a city. The Roman comedy scenario, therefore, was a civic one: the civitas.70 A peculiarity of Plautus’ comedies, as we have seen, is that although the setting of his works was Greek, he adapted and translated the names into Roman ones: he talks of the forum instead of the agora, he names Roman officials that did not exist in Greece or outside Rome, like praetors, aediles and lictors.71 This adaptation for a Roman audience may seem the natural thing to do, but it also provided the public with a timely indication that the citystate, the civitas, defines and conditions everyone’s social and political life. The public urban space is in some sense the same for all; one could find slaves, freedmen and free-born citizens walking on the streets of Rome or watching what was going on at the forum. A different logic operated inside buildings and houses, but the city streets were where the citizen exercised his freedom and public duties; it was there where he was seen as a free person and acted accordingly in the exercise of his rights.72

67  On freedom of speech in orators, see Henriette van der Blom’s paper on Tacitus’ Dialogus de Oratoribus in this volume. 68  Rud. 489–90. For the role of gods in comedy, see Clark 2019, 217–28. 69  For more context to the play, see Marx 1959, 128 and Sonnenschein 1891, 119. Clark 2007, 142–49 deals with the cult of Libertas. For a different form of the cult of Libertas, see Valentina Arena’s paper in this volume. 70  For public space, see Russell 2016. 71  Praetor: Pers. 485–87; Epid. 26; Pseud. 357–58. Aedile: Rud. 371–73; Capt. 824. Lictors: Epid. 28. 72  For more cases of libertas in Plautus, see: Cas. 313; 931; Epid. 278; 617; 654; 726; 733; Mil. Glor. 700; Poen. 420; 1210; 1218; Rud. 1394; and Stich. 751.

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Plautus’ successor in time and impact was P. Terentius Afer (195/85– 159 BC).73 Even though all six plays of this former slave, Terence, have survived, there is one only very significant reference to libertas in his comedies and this appears in The Brothers or Adelphoe. It is important to remember the political background to this play. The Brothers was produced at the funeral games of L. Aemilius Paullus Macedonicus in 160 BC; his greatest achievement was, of course, the victory over King Perseus of Macedon at the battle of Pydna in 168 BC. The Romans had entered the Third Macedonian War as champions of Greek liberty because the regal tyranny of Macedon threatened the freedom of the Greek cities.74 After their victory, the Romans avoided imposing imperial rule on the defeated, and instead proposed the client and patron relationship. Terence’s audience would have naturally included men who had seen all this, men who had participated in the war, and perhaps other prominent figures such as Cato the Elder, who was 74 at the time but still vigorous. The plot of the play consists of two brothers who have different values and raise their children accordingly. One is presented more as an Epicurean and sociable character, the other a more austere and serious one. Of course, the dichotomy between the Greek education and the stern and strict Roman moral code following the maiores is present here, even though both brothers are Greek and the aim of the play is to entertain, not to show which type of education is more successful. But the Greek atmosphere of the comedy, plus the fact that Rome had just presented herself as the liberator of the Greek cities against the power of the Macedonian king, made the allusion to libertas much more pungent. Libertas in Adelphoe appears with the qualifying adjective aequa, and this may well be the first attestation of the expression of aequa libertas – something related or similar to the Greek isonomia meaning equality before the law – that would become important in the claims of politicians in the late Republic.75 It is significant, then, that we find the duplet aequa libertas not only in political speeches or writings such as those of Cicero or in Livy,76 but also in a midsecond century BC comedy. Aequa libertas here can be related to the sense of equality before the law that the optimates tradition would use later on, and therefore it meant freedom in the political context. This sense is particularly emphasised when a couple of lines before the appearance of libertas there is 73  On Terence see, for example, Duckworth 1952/1994, 56–65; Goldberg, 1986; Conte 1994, 92–103; Manuwald 2011, 244–57. 74  Cf. Syll3 643; Livy 42.6, 11, 14. 75  For more on the important idea of aequa libertas, see Wirszubski 1950, 9–15; Criffò 1958, 35–42; Brunt 1988, 309, 325; Hammer 2014, 247–48. 76  For example: Cic. Planc. 33; Rep. 1.69; Off. 1.124; Livy, 3.31.7; 4.5.1; 38.50.8.

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a reference to kingship as the character Aeschines is accused of having a reg­ num: ‘Are you the king of this place, Aeschines?’ (regnumne Aeschines hic tu possides?),77 and later on, the pimp Samnio talks about having a free citizen whipped, clearly a violation of the law: ‘a citizen scourged?’ (loris liber?).78 The whole passage can be seen as a wink to the Porcian laws de provocatione of 195 and 184 BC which banned whipping or scourging a Roman citizen.79 The play continues: ‘You, filthy scoundrel! Is this the place where they say there is equal liberty for all?’ (O hominem inpurum! hicin libertatem aiunt esse ae­ quam omnibus?).80 Aequa libertas makes no apparent sense in the context of the comedy, but it does if libertas is understood as the civic rights, that is in a political context. Having in mind the recent events of the Macedonian War and the liberty of Greece, this aequa libertas could also suggest the freedom of the Greeks, which, of course, only ironically could be considered equal to that of the Romans.81 Another version of the play has aequa libertas translated with stronger political implications: ‘You disgusting filth! And they call this a democracy!’82 Which, together with the reference to regnum a couple of lines above, gives the expression a different twist that could be associated to what Valentina Arena described as the popularis tradition of aequa libertas, that is, not only equality before the law, but also that the members of a community, ‘alongside being governed, hold the power to govern themselves,’83 which of course could not happen in a regnum. This is political libertas at its best.

3

Moving on from comedy, one sees that the instances of the word libertas are rather fragmentary. Apart from Lucilius’ single reference to libertas in his Satires, also in the context of a slave trying to buy his own freedom and very much aligned with Plautus,84 it is in Ennius’ work where meaningful uses of libertas again appear.85 The poet Ennius (239–169 BC) was considered the father 77  Adelph. 175. 78  Adelph. 182. 79  See note 61. 80  Adelph. 183. 81  For the freedom of the Greeks -especifically the Rhodians- see Flower’s paper in this volume. 82  Gratwick 1987, 97. 83  Arena 2012, 142. But see Hammer 2014, 247–48. 84  Cf. Luc. Satires, 29.893. 85  For Ennius see, for example, Skutsch 1968; Jocelyn 1972, 987–1026; Conte 1994, 75–84; Elliot 2013.

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of Roman poetry, summus poeta noster and egregius as Cicero called him,86 or the ‘Roman Homer’ for Propertius and Ovid.87 A native of the Calabrian town Rudiae, he went to Rome in 204 BC as part of Cato’s entourage. When fighting in the second Punic War he gained the friendship of Scipio Africanus, Scipio Nasica and Fulvius Nobilior, whose achievements he praised in his Annales and also in a praetexta called Ambracia, which celebrated Nobilior’s triumph over the Aetolians.88 He also composed fabulae palliatae, and fragments of some of these works have survived. There are some examples of the use of libertas in the Erechtheus and Phoenix, but these tragedies are too incomplete to give much explanation of the background. In the Erechtheus, originally a tragedy by Euripides dealing with the siege of Athens, in lines 142–3, Ennius says: ‘through my distress I win freedom’ (cui nunc aerumna mea libertate paro).89 The brevity of this fragment allows only a straightforward interpretation of freedom as such a great and valuable possession that the price of obtaining it will always be high. It is by suffering and pain that one can give birth to something as valuable as freedom for the fatherland, which in some way points to the same relationship between libertas and virtus already mentioned in the comedies. It is by facing difficulties that freedom is gained or recovered. In Phoenix, instead, we have a longer paragraph: ‘It is proper for a man to live inspired by true valour and to stand against his adversaries strong and blameless; it is freedom when he bears a pure and steadfast heart; all else is servile, hidden in the darkness of night’ (sed virum vera virtute vivere animatum addecet fortiterque innoxium stare adversum adversarios; ea libertas est qui pectus purum et firmum gestitat; aliae res obnox­ iosae nocte in obscura latent).90 This passage is meaningful in its own right, and seems to contain powerful ideas concerning virtus and also about libertas.91 Perhaps the important point here is that the two concepts make reference to the moral or ethical aspect of the terms. Libertas is not opposed just to slavery or external domination, it points to an internal freedom that indicates liberty of spirit mainly from vices and corruption. This applies to virtus, which is not just the bravery shown in fighting, but the courage to live a virtuous life in spite of the opposition of one’s enemies. Both concepts appear related to innocence of heart and a clean life. The other significant point is, yet again, the connection 86  Cic. Tusc. Disp. 3.45. 87  Propertius 3.3.6 and Ovid, Am.1.15.19. 88  Fabula praetexta was a genre of Latin tragedy introduced in Rome by Naevius. For the different genres: fabulae palliatae, praetextae, etc., see Manuwald 2011, 129–86. 89  Erechtheus, 142–43. 90  Phoenix, 308–11. 91  For more on this passage, see Jocelyn 1967, 389–91.

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between the two ideas – virtus and libertas. What is most interesting in Ennius’ libertas in tragedy is that, as far as one can see from the fragments, it is not related to juridical libertas or the status of a free-born, since Ennius in Phoenix does not refer to the context of slavery. This is a clear example that libertas before the political struggles of the late Republic did not always or only refer to the social status of a person. Freedom here is something personal, moral, something that, in fact, needs to be won by strength of character. But Ennius’ greatest achievement was undoubtedly his poem the Annals. Other attempts of epic composition in Latin had been the Odyssey of Livius Andronicus and Bellum Punicum by Naevius; both of them followed Greek models quite faithfully. Ennius’ poem, instead, telling the story of Rome from Aeneas to Ennius’ own times, was a profoundly Roman work. It became a classic quite quickly and a major landmark in the history of Roman poetry.92 Unfortunately only known to us through fragments, Ennius’ Annals have been regarded as the work of the invention of Roman past with an enormous impact on Roman collective imagination,93 especially in making sense of their past and a ‘contribution to the development of a new, distinctly Roman literary culture.’94 Although most of the Annals have been lost, we know that out of the eighteen books, it was the section from Book 4 to 6 that covered the time of the Republic from the fall of King Tarquinius up until the war with Pyrrhus (281– 271 BC). The fragment that concerns us here is from Book 6 where Ennius narrates the end of the battle of Heraclea, the cremation of the fallen and the return of the prisoners to Rome.95 The poet has King Pyrrhus saying: ‘Those whose valour the fortune of war has spared, their liberty it is certain that I spare’ (Quorum virtuti belli fortuna pepercit, eorundem libertati me parcere cer­ tum est).96 Pyrrhus, the victor, is going to let the prisoners stay free, because fortune had allowed them to live after the war because of their courage. When the episode is taken as a whole, Ennius appears to be implying that Pyrrhus operates with the same moral code as the Romans; in fact, his speech could just as well have been delivered by a Roman general. It is once again interesting to note the explicit connection between virtus and libertas. We have seen that li­bertas has been given as a reward for valour in the slave versus freedman context 92  For more on the Annals of Ennius, see especially Skutsch 1985; Elliot 2013; Goldberg and Manuwald 2018, xxi–lxxxviii, 97–107. 93  Elliott 2013, 198: ‘Ennius’ representation of Roman history was crucial to how Republican Romans understood their past in its relationship to their present identity;’ see also 231–32. 94  Goldberg and Manuwald 2018, 107. 95  Skutsch 1985, 328; 352. 96  Annals, 6.188.

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in comedy, but here, in a military setting, Ennius has freedom as a reward for valour as well, when he refers to Roman citizens and soldiers. By ennobling and ‘Romanising’ the enemy, Ennius somehow raises the ethos of Roman wars: a worthy enemy made wars appear not only just and justifiable, but also elevated the Roman victories when they finally came.97 Later on, in Book 9, when dealing with the second Punic War, Ennius has Publius Cornelius Scipio saying: ‘and that they preserve liberty forever’ (liber­ tatemque ut perpetuassint que maximae).98 According to commentators this may be a prayer or a speech of Scipio before or just after his appointment to the command in Spain,99 as narrated by Livy.100 Unfortunately, the fragment is too short to say any more about what libertas represented here, but it probably referred to the liberation of the region of Hispania to the south of the Ebro. Livy gives us this episode, where young Scipio bravely volunteered to go to Spain when everybody saw it as a death sentence. After the campaign, Scipio’s noble conduct towards the natives helped to portray the Romans as ‘liberators’ of the Hispanic territories from the Carthaginian hands instead of conquerors.101 One might infer that the liberty Ennius puts on Scipio’s lips is that of the inhabitants of Hispania, not of the Romans – that it is the Hispanics who are the subject of the verb ending in the third person plural perpetuassint, ‘they’. This fragment, together with Cato’s speech on behalf of the Rhodians,102 show that when the Romans used the word libertas they did not only mean the internal political freedom of the Roman people, as suggested by Kloesel, but it could refer to the internal political freedom of any nation.103

4

The term libertas in early Latin authors was used in a variety of contexts and ways. Libertas was part of everyday reality in a society with slaves, freedmen and freeborn. Literature naturally reflected this world, and in plays and poetry libertas was used primarily to express the juridical status that defined one as a 97  Elliott 2013, 279. 98  Annals 9. 317. 99  Skutsch 1985, 495. 100  Cf. Livy, 26.18–19. 101  Livy, 28.19 also says that the Spaniards were fighting for their freedom (but not in Scipio’s words): non libertas solum agebatur, quae uirorum fortium tantum pectora acuit, sed ul­ tima omnibus supplicia et foeda mors ob oculos erat. 102  For the analysis of libertas in this speech, see Harriet Flower’s chapter in this volume. 103  Kloesel 1935, 136; contra: Calboli 1978, 293.

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person, but it did not stop there. Libertas was found in multiple environments and situations in different kinds of works of literature from comedy through tragedy to epic. These instances of libertas would have had different audiences, ranging from the highly cultured Roman who read serious poems or attended the Senate meetings, to the mixed public who went to see the comedies at the theatre. This fact would have made libertas ever present in Roman society. In comedy, the word libertas appears mainly in the slaves versus free-born context, but it does shed light on other meanings that the concept of freedom carried at the time of writing. Freedom emerges as one of the most valuable possessions a human being could have, and therefore it was usually compared to or placed together with parents and fatherland. Moreover, comedies seem to have pioneered common expressions using libertas that later on became the specific language of political ideas and beliefs popularised by politicians in the struggles of the late Republic. Some of these catch phrases were for example, the idea of amissa libertas (lost liberty) that we find in Plautus’ Miles Gloriosus and in Captivi,104 or the entitlement of the citizen to libertas orationis (freedom of speech) found in Bacchides,105 and the important duplet of aequa libertas (equal liberty) of Terence’s Adelphoe.106 The fact that freedom appeared as something susceptible of recovery in several plays will be important later on too, especially when expressions such as libertatis vindex (defender of liberty) and libertas restituta (restored liberty), found in Captivi and Poenulus,107 appeared on the political scene and in the agenda of renowned politicians, or when people could read in the first chapter of the great bronze inscription of Augustus, the Res Gestae: ‘acting on my own initiative and at my own charges, I raised an army with which I brought again liberty to the state oppressed by the domination of a faction’ (per quem rem publicam a dominatione factionis oppressam in libertatem vindicavi). By contrast, in the more elevated literary genre of tragedy, libertas was susceptible of an idealistic and more internal understanding: it included an element of freedom of spirit as the consequence of internal struggle, as we see in the Erechtheus, and was related to personal moral virtue, most significantly virtus (courage), as illustrated in the Phoenix.108 Long before libertas had become a political battle cry for politicians of the first century BC, recurring ever more frequently in political speeches, historical 104  105  106  107  108 

 il. Glor. 1210; Capt. 300. M Bacch. 168. Adelphoe, 183. Capt. 930; Poen. 1185. Erechtheus, 142–43; Phoenix, 308.

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narratives and even in theoretical political essays, the word already expressed both freedom from abuse and freedom of action, sometimes involving an early political meaning, connected to the protection of the Roman citizen by the laws, and the right to participate in the politics of the res publica. From what one can see in the fragmentary evidence in early Roman literature, libertas was a powerful idea that was almost always emotionally charged and was used by pre-classical authors with different interpretations which, combined with the political and cultural context of the time of writing, gave a subtle but real political twist to otherwise neutral expressions, showing how language translates and expresses – sometimes even unconsciously – the aspirations and desires of a society.

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Earl, D.C. 1960. ‘Political Terminology in Plautus’, Historia 9, 235–43. Elliott, J. 2013. Ennius and the Architecture of the Annales. Cambridge. Estavan, L. 1966. ‘Roman Law in Plautus’, Stanford Law Review 18. 5, 873–909. Fears, J.R. 1981. ‘The Cult of Virtues and Roman Imperial Ideology’, ANRW 2.2, 889–939. Fraenkel, E. 2007. Plautine Elements in Plautus. Oxford. (Orig in German 1922). Gaertner, J.F. 2014. ‘Law and Roman Comedy’, in Fontaine, M. and A. Scafuro (eds.) Oxford Handbook of Greek and Roman Comedy. Oxford, 615–33. Garlan, Y. 1988. Slavery in Ancient Greece. Ithaca. Garnsey, P. 1996. Ideas of Slavery from Aristotle to Augustine. Cambridge. Germany, R. 2019. ‘The Politics of Roman Comedy’, in Dinter, M. (ed.) The Cambridge Companion to Roman Comedy. Cambridge, 66–84. Goldberg, S.M. 1986. Understanding Terence. Princeton. Goldberg, S. and G. Manuwald, 2018. Fragmentary Republican Latin, Ennius. Cambridge Ma. Gratwick, A.S. 1987. Terence: The Brothers, edited with translation and notes. Warminster. Hammer, D. 2014. Roman Political Thought. Cambridge. Hammond, M; A. Mack; W. Moskalew, 1970. Miles Gloriosus. Cambridge Ma. Hellegouarc’h, J. 1963. Le Vocabulaire Latin des Relations et des Partis Politiques sous la Republique. Paris. Hobsbawm, E. and T. Ranger. 1983. The Invention of Tradition. Cambridge. Hopkins, K. 1978. Conquerors and Slaves. Cambridge. Hunter, R.L. 1985. The New Comedy of Greece and Rome. Cambridge. Jocelyn, H.D. 1967. The Tragedies of Ennius. Cambridge. Kloesel, H. 1935 Libertas. Breslau. Koortbojian. 2002. ‘A Painted exemplum at Rome’s Temple of Liberty’, in JRS 92, 33–48. Leigh. M. 2004. Comedy and the Rise of Rome. Oxford. Leigh, M. 2006. The Comedies of Terence. Translated by W. Clayton. Exeter. Lindsay, W.M., 1900. The Captives of Plautus. London. Manuwald, G. 2011. Roman Republican Theatre: A History. Cambridge. Marshall, C.W. 2006. The Stagecraft and Performance of Roman Comedy. Cambridge. Marx, F. 1959. Plautus Rudens, text und kommentar. Amsterdam. Millar, F.G.B. 1995. ‘Popular Politics at Rome in the Late Republic’, in Malkin, I. and Z.W. Rubinsohn (eds.) Leaders and Masses in the Roman World. Leiden, 91–113. Moatti, C. 2015. The Birth of Critical Thinking in Republican Rome. Cambridge. [Paris, 1997]. Moore, T.J. 1998. The Theater of Plautus: Playing to the Audience. Austin. Mouritsen, H. 2001. Plebs and Politics in the Late Roman Republic. Cambridge. Mouritsen, H. 2011. The Freedmen in the Roman World. Cambridge. Oakley, S.P. 2005. A Commentary on Livy. Books VI to X, volume IV Book X. Oxford. Owens. W.M. 2000. ‘Plautus “Stichus” and the Political Crisis of 200 B.C.’ in AJPh 121.3, 385–407.

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Paniseri, C. 1997. Plaute et Rome ou les ambigüités d’ un marginal. Brussels. Perna, R. 1955. L’Originalità di Plauto. Bari. Richlin, A. 2017. Slave Theater in the Roman Republic. Plautus and Popular Comedy. Cambridge. Roller, M. 2001. Constructing Autocracy: Aristocrats and Emperors in Julio-Claudian Rome. Princeton and Oxford. Russell, A. 2016. The Politics of Public Space in Republican Rome. Cambridge. Skutsch, O. 1968. Studia, Enniana. London. Skutsch, O. 1985. The Annals of Ennius. Oxford. Sonnenschein, E. 1891. T. Macci Plauti, Rudens. Oxford. Strunk, T.E. 2017. History after Liberty. Tacitus on Tyrants, Sychophants and Republicans. Ann Arbor. Terzaghi, N. 1929. La Mostellaria. Turin. Treggiari, S. 1969. Roman Freedmen during the Late Republic. Oxford. Wirszubski, Ch. 1950. Libertas as a political idea at Rome during the late Republic and early Principate. Cambridge.

chapter 3

The God Liber and Republican Notions of Libertas in the Late Roman Republic Valentina Arena

1

This essay focuses on the Roman god Liber and his relation with the notion of libertas in the first century BC. A very powerful, and prima facie convincing, explanation of this relation is, in the words of one of the most authoritative scholars in the field, that ‘by name and by nature, Liber is the god of freedom … Though many explanations were offered by ancient sources to account for his name, the simplest and most obvious was an ideological one: Liber a libertate. Political freedom, libertas, was the defining quality of the Roman Republic, achieved by the expulsion of Tarquin and under threat ever after,’ and which was divinised as Liber.1 When analysing the evidence at our disposal, it is indeed possible to observe that Liber is conceived as enacting different forms of liberation: Liber frees the individual from worries and fears, frees the soul from the constraints of a mortal body, and frees the semen, both male and female, in sexual union.2 As Anthony Corbeill brilliantly put it, Liber was conceived as fulfilling the role of both the Realiser and the Liberator.3 Recent works have moved away from a linear development of Liber in Rome as an Italic deity of subversive traits, gradually tamed in the third and second century BC through a process of Hellenisation, and have considered the concomitant aspects of ancient deities variously emphasised at different times and in different ways. Building on these works, my investigation focuses on the 1  Wiseman 2000, 265–99 = Wiseman 2008, 84–139, esp. 84. See also Wiseman 1998, 35–51 and 2008, 32–36, 63–86. See also Mastrocinque 1988, 245–75. For a very interesting reading with insights not dissimilar from the present argument, see Montanari 1988, esp. 130–6. For the etymology, see Servius on Aeneid 4.638, cf. 3.20 (causa libertatis), 4.57 (Lyaeus … apte urbis libertatis est deus). For further discussion see below, 68–72. 2  On the mind, its worries and fears see Sen. Tranq. 17.8; on the soul and the restraints of the body, Serv. Georg. 1.166; and on semen see Varr. Ant. rerum diuinarum fr. 93 Cardauns; for a list of these etymologies see Maltby 1991, 337. 3  Corbeill 2015, 128.

© Valentina Arena, 2020 | doi:10.1163/9789004441699_005

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important question of what specific traits of Liber became prominent in the first century BC and, crucially, what they stood for in the intellectual world of the late Republic.4 Contrary to the prevailing assumption that in the late Republic the god Liber represented solely and univocally the notion of the political liberty of the people, I aim to show that in the first century BC, Liber was predominantly the personified divine quality of a strand of liberty, which consisted in the realisation of one’s own nature. In opposition to the dominant idea of libertas, which indicated the juridical status of the members of the civitas, guaranteed by a matrix of civic and political rights and figuratively represented by the pilleus (the hat worn by freed-slaves), this notion of liberty was conceived as embodying the idea of human and agricultural fertility. Associated with the concept of economic independence and liberty of speech (notions not articulated as rights preserving the status of liberty), it was figuratively represented, amongst other symbols, by the ivy wreath and the phallus. This idea of liberty stood, in essence, for self-fulfilment. There is no doubt that the polymorphous nature of the god Liber and the contested meaning of libertas were also conducive to mutual allusions, contaminations, and manipulations of these distinct ways of thinking about liberty. However, by foregrounding this submerged intellectual tradition of libertas, as attested in the late Republic and personified by Liber, I hope to clarify the ways the Romans conceptualised liberty and shed some light on the intellectual richness of the Roman conceptual world.

2

Contrary to the modern practice of etymological research, which is primarily concerned with phonological changes and relations between Indo-European languages analysed through diachronic historical research, in the ancient world etymology is primarily about understanding the present: ‘it wants to know,’ Ineke Sluiter argues, ‘why anything is called what it is called, the reason for the name, and what motivates the namegiver – and the explanations it comes up with are not intended to give us insight into the past, into the historical processes and developments leading to the present situation; rather, and importantly, (ancient) etymology is about understanding the present.’5

4  See, for example, Wyler 2010, 191–201; Versnel 2011; Bernabé et al. 2013. 5  Sluiter 2015, 896–922, esp. 898.

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Ancient etymologies of the names of the deities, therefore, open up a window on how the divine world they represent was understood and conceived in the writer’s present. ‘The etymology will rarely be a heuristic tool to find out what a word means: that meaning, or someone’s opinion on the meaning, is the given, and the etymology’, Sluiter continues, ‘is a form of reverse engineering that will make it possible to read off that meaning from the surface of the word…. This is how etymology is a tool for thinking: it supplies a particular kind of argument and explanation,’6 which, although occupied with the past, was more about the present. By referring to different etymologies of the same divinity’s name, ancient authors show the argumentative power of etymologies, which attested to different conceptualisations of the divine qualities, and, most importantly, acted as the means by which the ancients themselves understood the functionality of their deities.7 Organised in a structure that, as Perfigli has splendidly illustrated, very much mirrored the taxonomy of Roman social and political life, each Roman deity was designated to perform a specific function.8 This detailed articulation of the Roman divine world provided the Romans with an order to which they could effectively appeal to guarantee the successful outcome which they wished for.9 As Augustine laments, the Romans had so many deities responsible for individual fields listed in their pontifical books of old,10 that it would have been an impossible task for him to report all of them: ‘how is it possible in one passage of this book to record all the names of the gods and goddesses that they were scarcely able to find room for in the huge volumes in which they divided up the services of the deities among the departments, assigning each to his own? They did not reach the conclusion that they should put some god in charge of all their land, but assigned fields to the goddess Rusina, mountain peaks to the god Jugatinus, hills to the goddess Collatina, and valleys to Vallonia. Nor could they even find a single Segetia who was worthy to be entrusted once for all with the grain in the fields (segetes), but as long as the seed was under ground they chose to have the goddess Seia in charge, then when it was above ground and moving toward harvest, the goddess Segetia, and when the grain was harvested and stored away, they gave the goddess Tutilina the job of guarding it safely.’11 The etymologies of the theonyms showed the reason 6  Sluiter 2015, 904. See also Maltby 2003, 103–18. 7  Cic. Top. 35–37 and de Or. 2.256–257. See also Cic. Nat. Deor. 2.6–3 and Acad. 1.32. 8  Perfigli in Pironti and Perfigli 2018, 71–111. 9  Perfigli 2004, 152. 10  Serv. Georg 1.21. 11  Aug. Civ. Dei 4.8.

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why these deities carried the names by which they were called: so, for example, the goddess Rusina derived her name from rus, the cultivated land, as Iugatinus from iugum, the yoke of the mountains, the goddess Collatina from collis, the hill, and the goddess Vallonia from vallis, the valley. As Perfigli observes, these theonyms reproduced a form of classification of the land through their divine representations.12 Of those concerning the actual sowing, in a passage most probably informed by Varro, Augustine lists Seia as the goddess who looks after the grain when underground, the goddess Segetia who looks after it when above the ground, and Tutilina who looks after the harvest when collected and stored away. The ratio of the deities, which informs their names, coincides with the etymology of their theonyms, since, as Varro is reported to have thought, names are imposed on the deities on the basis of their officia.13 So Pliny explains that Seia derives from seeding (serere) and Segesta from the harvest (segetes), the remits of their respective responsibilities.14 Since ancient etymology does not aim at reconstructing a single and historically accurate derivation from word form to word form, but rather functions as ‘a tool for thinking about contemporary reality,’ several etymologies of the same word can co-exist and each of them reveals an aspect of the divinity.15 As it is possible to reconstruct from later sources, in the late Republic there were a number of etymologies of the god Liber, which can be traced back to two main aspects: semen and wine. In a discussion which is much indebted to Varro, Augustine shows how the deities of Roman polytheism were so preoccupied with an endless number of trivial tasks, each of which was parcelled out to one individual deity, that none could have supported Roman imperial expansion. In the same manner in which they had meticulously divided up all the activities conducive to a prosperous harvest, the Romans, according to the last book of Varro’s Antiquitates rerum divinarum, had assigned each function of human fertility to one of the twenty deities that Varro calls dei selecti.16 ‘For’, Augustine argues, ‘it is the 12  Perfigli 2004, 139. 13  Serv. Geor. 1.21: nomina numinibus ex officiis imposita. See Salvadore 1987, 81–108 with discussion on this passage. 14  Pliny HN 18.8. Cf. Aug. Civ. Dei 4.24. 15  Sluiter 2015, 902. See Plato Crat. 405a–406c (on Apollo, followed by a discussion on Dionysus). Cf. Cic. Nat. Deor. 1.40. 16  Aug. Civ. Dei 7.2: ‘At any rate, these are the gods which Varro commends as select, discussing them in the compass of a single book: Janus, Jupiter, Saturn, Genius, Mercury, Apollo, Mars, Vulcan, Neptune, Sol, Orcus, Liber pater, Tellus, Ceres, Juno, Luna, Diana, Minerva, Venus, Vesta. There are twenty altogether, twelve male and eight female.’

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select Janus who offers access, a door (ianua) as it were, to the seed; the select Saturn bestows the seed itself; the select Liber bestows the emission of the seed on males, and Libera, who is also Ceres, or Venus, does the same for women; the select Juno, not by herself, but with the help of Mena, daughter of Jupiter, bestows the menstrual flow for the growth of what has been conceived. And yet it is the ignoble and obscure Vitumnus who confers life, and the obscure and ignoble Sentinus who confers sensation. These two things are as much superior to the others as they are themselves inferior to intellect and reason.’17 Following the ancient practice of etymological research, which enables one to reach the ratio of the deities, Augustine claims that the etymology of Liber stems from the action of liberating the semen: ‘And what of those functions of the deities, parcelled out in such petty and minute assignments, a thing that is responsible for their rule that each must be invoked for his own special kind of service? … They [the pagans] say that the god Liber gets his name from liberating (a liberamento) because it is through his favour that males in intercourse are liberated from, or relieved of (emissis seminibus liberarentur), the semen which they emit. For women they say that the same service is performed by Libera, whom they also identify with Venus, for they think that the woman also emits seeds. Hence in the temple of Liber they dedicate to the god the male sexual organs, and in the temple of Libera the corresponding female organs. In addition, they assign women attendants to Liber, as well as wine to arouse the sexual appetite.’18 Thus, according to this etymology, Liber (and his female counterpart Libera) derive their names precisely from their function of ‘setting in motion and discharging the seeds (seminum commotores vel emissores).’19 Discussing further the peculiarities of Liber, relying on Varro as his source, Augustine underlines an important point: the seeds that fall within the remit of Liber have two important qualifications, they are male and they are liquid.20 His seeds, however, belong to the category of the moist group, liquor: ‘They put 17  Aug. Civ. Dei 7.3. See also 7.2. at n. 16. The special status of ‘chosen deities’ (selecti dei) stems from their ability to ensure that through their theonym people people knew precisely the nature of the deities’ specific task is. See Pironti and Perfigli 2018, 105–6. 18  Aug. Civ. Dei 6.9. See also Civ. Dei 7.2 = Isid. Orig. 8.11.43. 19  Aug. Civ. Dei 7.3: ‘and again Janus who opens the way for the seed and Saturn the giver of seed, or sower, and Liber and Libera who set in motion and discharge the seeds–seeds which are not worth a thought until they attain to life and sensation (Ianus seminis ad­ missor et Saturnus seminis dator vel sator et Liber et Libera seminum commotores vel emis­ sores).’ Cf. Aug. Civ. Dei 7.16. Liber is specifically responsible for the act of liberation. 20  Aug. Civ. Dei 7.3. See also further down at 7.3: ‘Liber and Libera have charge of releasing all seeds and so preside also over those that belong to the reproduction of men (omnium seminum emittendorum Liberum et Liberam et ideo his etiam praeesse quae ad substituen­ dos homines pertinent).’

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Liber and Ceres in charge of seeds, either putting him in charge of male seeds and her of female, or him in charge of the moist class and her of the dry class of seeds (Liberum et Cererem praeponunt seminibus, vel illum masculinis, illam femininis; vel illum liquori, illam vero ariditati seminum).’21 As Maurizio Bettini has shown, Liber is therefore the god of all liquid seeds, those responsible for animal and human procreation and those related to the world of agriculture.22 ‘I come now to the rites of Liber, a god whom they [the pagans] have put in charge of moist seeds; this includes not only the juice of fruits, among which wine somehow holds first place, but also the semen of animals (Iam vero Liberi sacra, quem liquidis seminibus ac per hoc non solum liquoribus fructuum, quo­ rum quodam modo primatum vinum tenet, verum etiam seminibus animalium praefecerunt).’23 According to this religious classification, Liber’s provincia, therefore, is the semen, specifically qualified as liquid and male. Through this shared divine referent, Bettini argues, the male semen and wine are put in close relationship of proximity: they are both liquores that, in Bettini’s view, can be assimilated to virus as being both liquids with very strong characteristics, under the remit of the same god. Thus, within the same discussion, Augustine can present Liber as the god of vineyards and the god of male semen. Claiming that it is only one god who is honoured by various names, he states, ‘let him be Saturn in time, Mars and Bellona in war, Liber in the vineyards, Ceres in the grain fields, Diana in the woods and Minerva in mental endowments. And finally, let us assume his presence also in that throng of plebeian gods, if I may so describe them. Under the name of Liber let him preside over the seeds of men, and as Libera over the seeds of women.’24 Personifying the notion of human and agricultural fertility along the same lines, the god Liber was thereby considered also the god of the seeds of wine and, by extension, of wine itself. As Festus states, Liber was the discoverer of wine and his name derives from the liberty with which people talk when they drink wine.25 And Fulgentius in his Mythologies claims that Liber derives his name, hence his main functionality or rather officium, from the fact that wine liberates the minds or, alternatively, following Isidore’s etymology, the limbs.26 21  Aug. Civ. Dei 7.16. 22  Bettini 1995. 23  Aug. Civ. Dei 7.21. 24  Aug. Civ. Dei 4.11. 25  Fest., 115L: Liber repertor vini ideo sic appellatur, quod vino nimio usi omnia libere loquantur. 26  Fulg. Myth. 2.12: Liber … pater dictus est, quod vini passio liberas mentes faciat. For other passages that connect the etymology of Liber with wine see Plut. Mor. 289a= Quaest. Rom.

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The latter, who also conserves the Varronian/Augustine etymology of Liber from liberating the semen, connects in addition the name of the god Liber with libare, an association that is also found in Varro’s De lingua Latina.27 It is not surprising, therefore, that many sources of the late Republic associate Liber with wine to the extent that often one stands for the other. As Cicero attests, in the first century BC the euhemeristic tradition of thought enjoyed a certain fortune in Rome. According to this belief, in origin deities were human beings who had conferred great benefits upon the rest of humanity and therefore were considered gods, as ‘it was thought that whatever confers great utility on the human race must be due to the operation of divine benevolence towards men. Thus sometimes a thing sprung from a god was called by the name of the god himself; as when we speak of corn as Ceres, of wine as Liber, so that Terence writes: “when Ceres and when Liber fail,/Venus is cold.”’28 And listing the religious laws of the best form of commonwealth, Cicero reiterates the point emphatically: ‘They shall worship as gods both those who have always been regarded as dwellers in heaven, and also those whose merits have admitted them to heaven; Hercules, Liber, Aesculapius, Castor, Pollux, Quirinus.’29 Ancient discoveries were accounted godlike, Lucretius says in his verses, ‘for Ceres is said to have introduced corn to mortals, Liber the liquor of vine-born juice (Ceres fertur fruges Liberque liquoris vitigeni laticem mortalibus insti­ tuisse); but,’ he adds polemically, ‘nevertheless life could have remained without these things.’30 The use of this metonymy of Liber for wine is so extensively adopted that it also functions as an effective method in ornamenting the style, something which Lucretius regards as a way to infect one’s own mind with base superstition. In his opinion, this process is nothing else than a misapplication of the name of the deity to what should be called with its proper name, that of the liquid.31

104; Serv. ad Aen. 1.171.1 Liber per vino. Isid. diff. 1.349 and Id. Etym. 8.11.44: quod multo vino membra soluantur. 27  Isid. diff. 1.349: libare proprie fundere est. unde et Liber vocatur qui vini usum in Graecia ostendisse fertur. Varro Lin. Lat. 6.2: ab loebeso liberum with De Melo 2019, ad loc; Fest. 121L loebsum et lobertatem antique dicebant liberum et libertatem. Ita Graeci loibe (eta) et leibein. 28  Cic. Nat. Deor. 2.60. For a list of passages that comment on the metonymy see Pease 1955/1958, ad loc. 29  Cic. leg. 2.19 (with 2.27). 30  Lucr. 5.13–5. Cf. 2.600; 3.221. 31  Cic. de or. 3.167 and Lucr. 2.655–7.

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Although according to Ennius Liber is not one of the twelve dei consentes,32 in his De re rustica Varro states that next to the twelve dei consentes, urban deities, venerated with golden statues around the Forum, there were twelve others, agricolarum duces, who should be invoked for any agricultural activity.33 After the universal parents, Jupiter, the Father, and Tellus, the Mother Earth, and Sol and Luna, whose courses govern all matters of planting and harvesting, the third pair is Ceres and Liber. Prayers should be directed to them as ‘their fruits are most necessary for life; for it is by their favour that food and drink come from the farm (quod horum fructus maxime necessari ad victum; ab his enim cibus et potio venit e fundo).’34 The profound connection between Liber and the sphere of agricultural fertility, especially as manifested in the vineyards, is also elaborated by the Augustan poets. Liber, the ‘inventor of grapes,’ covers the hills with the shade of his vines.35 Associated with the Sun and the Moon as the two celestial entities that regulate the rhythm of growth, in the first book of Virgil’s Georgics, Liber and Ceres are presented as dispensing their most precious fruits, wheat and wine.36 In the fourth Eclogue, after a quick glance at the splendid future that awaits the puer, Virgil turns to his actual moment of birth. Although it is in the reign of Apollo that the puer will come, at the moment of his arrival Liber’s symbols of fecundity and vegetal flourishing, the serpentine ivy, the baccar, the colocasia, and the acanthus, will blossom around him. Thus, when he will be an adolescent and will learn what virtus is, the earth will flourish with wheat, grapes and honey, produced by the generating powers of Liber and Ceres.37 Thus referring to the god by his symbols, Virgil, alongside the other Augustan poets, seems to elaborate extensively the idea of Liber as the deity of procreative force, of abundance and fertility, essential in agriculture, and with which he was predominantly associated in the late Republic.38

32  Enn. Ann. 240-41 apud Apuleius de deo Socratis 2, which, however, lists Ceres. Cf. Liv. 22.10.10 who too does not include Liber, but pairs Ceres with Mercury. 33  Aug. Civ. Dei 7.1: Varro includes Liber in his list of twenty dei selecti. Cf. Enn. Ann. 7.24 FRLI = Apul. de deo Socr. 2.7 who lists Ceres, but not Liber. Liv. 22.10.10 too does not include Liber, but pairs Ceres with Mercury. 34  Varro Rust. 1.1.6. 35  Ovid. Fast. 3.785 and Virg. Ecl. 7.58. 36  Virg. Georg. 1.7–9. Cf. Virg. Georg. 1.5–7; Macr. Sat. 1.18.16 and Lyd. men. 4.51. 37  Cucchiarelli 2012, 155–178. See also Mac Góráin 2012–2013, 191–238 and 2013, 124–45. 38  On Liber as Roman god of fertility see Bruhl 1953.

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3

The attributes of Liber, whose iconography delineates the semantic range of the deity, are the thyrsus, the ivy, the horns, often wrapped in bunches of grapes and vine leaves, all attested in literary evidence, as well as, amongst others, the cantharus, the rhyton, and the phallus, which appear alongside the others also on visual evidence.39 The ivy and phallus were amongst the symbols that figured prominently in the celebration of the Liberalia. Although it seems that the original ludi in honour of Liber had been later integrated with the celebrations of Ceres on April 19th, scholarly consensus now gathers around the idea that the feast of the Liberalia, which took place on March 17th, was somehow (although in what exact way remains unclear) connected to the deity Liber.40 Explaining the etymology of the festival with the role played by the priestesses of Liber, who on this occasion offer liba (the sacrificial cakes to the god), Varro tells us that at the Liberalia ‘old women wearing ivy wreaths on their heads sit in all parts of the town, as priestesses of Liber, with cakes and a brazier, on which they offer up the cakes on behalf of any purchaser (Liberalia dicta, quod per totum oppidum eo die sedent sacerdotes Liberi anus hedera coronatae cum libis et foculo pro emptore sacrificantes).’41 39  On ivy Ovid, Fast 1.393 and 3.767–70; Plin. HN 16.144; on horns Hor. c. 2.19, 29–30; Ovid, Am. 3.15.17; Fasti 3.789; Met. 4.19; Prop. 3.17.19; and horns and grapes Tib. 2.1.3–4; Ovid, Met. 3.666. For a full iconographic catalogue see LIMC, s.v. Dionysos/Bacchus. For a discussion of the difficulty in interpreting the ample variety of Dionysian imagery, Wyler 2004, 33–51. For the flourishing of Dionysian iconographic motives in the Augustan age see Wyler 2013, 541–53. See also Castriota 1995 on the famous Campana reliefs. It should be noted that, although Pliny (HN 35.154) reports that two Greek artists, Damophilos and Gorgasos, had been invited to decorate the temple, which till then, we are told, was of purely Tuscan style, there is no way of establishing to what extent the cult statue of Liber might have had a Hellenised image. See also Vitr. 3.3.5 who adds that the fastigium was decorated tuscanico more. 40  Ovid, Fast. 3. 785–6. For the date see Degrassi 1963, 425. For an overview on the issue see North 2012. Most interestingly, Montanari 1988, 115–22 and Musiał 2013, 95–100 advance the well sustained hypothesis that the festival was indeed not dedicated to Liber, but rather, it is implied tentatively, to Jupiter. 41  Varro Ling. Lat. 6.14: the reference to oppidum, as opposed to urbs, might indicate that Rome shared this celebration with other Italic cities. See Miller 2002, n.10. Cf. Ovid, Fast. 3.713–70. Varro, Ling. Lat. 5.106 states: ‘libum “cake,” because, after it was baked, liba­ batur “there was an offering of some” of it to the gods before it was eaten.’ See also ibid. 7.44: ‘liba “cakes,” so named because they are made libare “to offer” to the gods.’ Cf. Ovid, Fast. 3.733–4 who adds the etymology of liba from Liber.

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According to Ovid, old women played such an important role in the celebration because of their vinosior aetas, the fondness for wine that comes with age. They also wore an ivy wreath because this is one of the favourite attributes of Bacchus, who held it dear as the nymphs protected his cradle by covering it with ivy leaves.42 Throughout Italy, the festival seems to have included the procession of a phallus transported in a carriage round about the crossroads and eventually into the city. Augustine strongly criticises the fertility ritual, which he had found in Varro’s writing: ‘Varro says that at the crossroads of Italy certain rites of Liber were celebrated with such shameless abandon that phallic symbols were worshipped in his honour. And this was not even done in secret to preserve some modesty, but with an unconcealed parade of lewdness. For this obscene member was set up with great honour on little carts for the days of the festival of Liber, being first displayed at the crossroads in the country and later conveyed even into the city (nam hoc turpe membrum per Liberi dies fes­ tos cum honore magno plostellis inpositum prius rure in compitis et usque in urbem postea vectabatur).’43 Focusing his discussion on Lavinium, most probably as a result of his dependency on Varro, Augustine continues, ‘in the town of Lavinium one whole month was assigned to Liber, and during the days of that month everyone was expected to use the most shameful words, until the member was finally conveyed across the forum and allowed to rest in its own place (in oppido autem Lavinio unus Libero totus mensis tribuebatur, cuius diebus omnes verbis flagitiosissimis uterentur, donec illud membrum per forum transvectum esset atque in loco suo quiesceret). Moreover, it was required that the most honourable matron of the city should publicly place a crown on this most dishonourable member. We must understand that the god Liber had to be appeased in this way to ensure the success of the crops (sic videlicet Liber deus placandus fuerat pro eventibus seminum), and to avert evil influences from the fields a matron had to do in public what not even a courtesan should have been allowed to do in the theatre, if there were matrons in the audience.’44 At the end of the first century BC, this festival pro eventibus seminum, celebrating both human and earthly fertility, is also portrayed by Virgil in the Georgics as a joyful occasion, honouring abundance and plentifulness.45 As 42  Ovid, Fast. 3.765–70. 43  It is unclear whether the phallophoria entered Rome: Varro/Augustine refers to Urbs, usually Rome, however, the discussion moves on to single out Lavinium. For different interpretations see Radke 1979, 175 and Cancik-Lindemaier 1985, 51 n. 66. Cf. Plin. HN 28.7. 39: Pliny refers to the Vestals as the custodians of the fascinus. 44  Aug. Civ. Dei 7.21. On the centrality of Lavinium in Roman religious life, see CIL X.797=ILS 5004 and Marco Simón forthcoming 2021. 45  Virg. Georg. 2. 385–96.

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John Miller has convincingly argued, Virgil’s description of a festival in honour of Bacchus, which took place at cross-roads and where unsophisticated and jubilant songs were sung and liba, honey-cakes, offered to the god, corresponds to the Liberalia as described by Varro (and also as reported by Augustine).46 As a result of this celebration, where oscilla were also hung on pine trees, ‘every vineyard ripens in generous increase; fullness comes to hollow valleys and deep glades, and every spot towards which the god has turned his comely face (hinc omnis largo pubescit vinea fetu, complentur vallesque cavae saltusque pro­ fundi et quocumque deus circum caput egit honestum).’47 We are also informed that in the late Republic, alongside the phallophoria, during this fertility celebration an important rite of passage may take place, when Roman boys abandoned the marks of childhood, the toga praetexta (the bordered toga) and the bulla (apotropaic locket), and assumed the toga virilis (a plain white toga) to signify the reaching of manhood.48 The ceremony had a twofold dimension: first, at home, the puer set aside the insignia pueritiae, the toga praetexta and the bulla, before the Lares of the house to whom they were consecrated and then with family and friends launched into a public procession through the Forum and up to the Capitol to sacrifice to Jupiter and Juventas.49 It seems that the right to wear the toga virilis, which could be attained at any stage in the teens (although most likely between 14 and 17 years of age) was intended, at least conceptually, to mark the attainment of full manhood, manifestation of fertility and fecundity of which Liber was a divine personification.50 46  M  iller 2002, 199–224, esp. 202. For a form of liberty of speech exercised at the ludi of Liber see also Naev. Pall. 113 R3 = Inc. 27 W.: libera lingua loquemur ludis liberalibus (‘At Liber’s Games we’ll talk with tongues at liberty’; tr. Engl. Warmington)]. See Manuwald 2011 for discussion. 47  Virg. Georg. 2.390–2. On oscilla see below, 68. 48  The most thorough accounts of this rite of passage entirely dedicated to the topic are Amiotti 1981, 131–40 and Dolansky 2008, 47–70. The toga is called virilis in Cic. Phil. 2. 44, Hor. Sat. 1. 2. 16, Livy 42. 34. 4; pura in Cat. 68. 15, Phaedr. 3. 10. 10, Pliny HN 8. 194, libera in Prop. 4. 1. 131–4 and Ovid, Fast. 3.377. 49  Smith 1890–1891, s.v. toga. The most comprehensive study is now Rothe 2020, who kindly sent me her work. Rep­resentations of Bacchus have been found in paintings of lararia in Pompeii: see Pompeii VII I, 36/37 and I 2, 20/21 with symbols such as ivy, grapes, cantharus, and thyrsus (LIMC s.v. Dionysus/Bacchus n. 98). On the sacrifices see App. BC 4.5.30; Serv. ad Ecl. 4.49 and, in ancient times, Dion. Hal. Ant. Rom. 4.15.5 (at the temple of Juventas). 50  An interesting debate about the fixing of the age of puberty is preserved in Gai. Inst. 2.196– 7: ‘Again, when males reach the age of puberty they are released from guardianship. Sabinus and Cassius and our other preceptors hold that a person has arrived at the age of puberty who manifests this by the condition of his body, that is to say, if he is capable of procreation; but in the case of those who cannot show this condition, as for instance,

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At the end of the first century BC, in the Fasti Ovid wonders why the toga virilis, the gown of manhood, was given to boys during the festival dedicated to Liber. In the manner proper to the ‘antiquarian poet,’ he reviews possible explanations: the youthful look of the deity, his status of father, his ability to grant a freer life, and the presence of a crowd in the city to celebrate the festival are all possible reasons. Although he does not explicitly settle for any of his explanations, he seems to grant greater weight to the last.51 When Ovid refers to Liber as the god who is free, through whom a gown of liberty is assumed and a pattern of freer life undertaken (sive, quod es Liber, vestis quoque libera per te sumitur et vitae liberioris iter), in his poetic use of the sequence liber/libera/liberior there is no explicit reference to the idea of political liberty. The main point of Ovid’s interpretation is that the right to wear the toga virilis may be gained at the Liberalia because the acquisition of that gown marked the beginning of a life that better fulfilled the idea of liberty as embodied by Liber. Since both the wider context of the festival of the Liberalia and the contemporary conceptualisation of Liber attest to the connection between the idea of fertility and abundance and this god, it seems that one of the most prominent, although indeed not the sole, functions of the ceremony concerning the toga virilis was to celebrate young Romans reaching sexual maturity. As Propertius put it, ‘the restraint of boyhood’s garb was lifted from me and I was given freedom to learn the way of love.’52 And again, in another elegy, he states that the donning of the toga virilis marked the rejection of a life spent in the forum addressing jury-courts and the beginning of a new, creative, life dedicated to poetry, while in Ovid’s Tristia its adoption emphasises the beginning of a freer life that rejected a senatorial career.53 Still, there is little doubt that, in the late Republic, the donning of the toga virilis coincided with the entrance of these young men in the civic community.54 ‘Scaevola tells us,’ Varro reports, that, although it no longer seems to be the case, ‘it used to be the custom for boys not to use their praenomen before eunuchs, their age should be considered to be that at which persons ordinarily reach puberty. Authorities belonging to another school, however, think that the age of puberty should be estimated by years; that is to say, they hold that a person has arrived at the age of puberty who has reached the age of 14.’ 51  Ovid, Fast. 3.771–790. On etymological explanations in poetry, O’Hara 1996, 58. On the richness of the interpretations in the religious sphere see Feeney 1998, 70–75 and 127–31. See also Scheid 1992, 118–131. For an excellent discussion of Ovid’s passage see Miller 2002. 52  Prop. 3.15.3–6. 53  Prop. 4.1.131–4 and Ovid, Tr. 4.10.27–30. See also Rothe 2020, 65. 54  Tac. Germ. 13.1.

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they put on the adult toga, and for girls not before they were married.55 With the assumption of the toga virilis, the young men appear to gain a sort of personal identity, are allowed to recline at banquets, to begin their tirocinium fori, inherit and make a will, and, most importantly for the commonwealth, are registered to fight.56 Most scholars claim that on this occasion they also gain the right to vote, although the evidence is scanty and not precise. It seems plausible to suppose that they gained the franchise when they began fighting in the army next to their father, if they still had one.57 However, it is not clear whether they could start exercising their voting right as soon as they donned the toga virilis or rather after having been enlisted for the first time.58 It seems that with the assumption of the toga virilis, which took place often, but not always and not solely, at the Liberalia, the Romans celebrated the coming of age of their next generation of young men, who, full of vigour, were now enlisted to fight. It might not be a coincidence, as Mario Torelli has underlined, that at the beginning of spring, on March 17th the Romans celebrated both the Liberalia, dedicated to the fertility of men and the earth, as well as the Agonalia, dedicated to Mars.59 It follows that in the late Republic the god Liber, whose visual signifiers indicated a semantic range of fertility and abundance, and whose ratio the ancients themselves understood as presiding over the liberation of male liquid semen or seed both of men (and animals) and wine (and, more in general, agriculture), attests the presence in the Roman intellectual world of a way of conceptualising liberty as the realisation of one’s full potential, inherent in one’s own nature.

55  Varro GRF, 331. See Gardner and Wiedemann 1991, 108–9. 56  Dion. Hal. Rom. ant. 4.15.5. Val. Max. 2.1.1 and 7.6.1 and Plin. HN 7.29 on Aemilius Lepidus who goes to fight still with his bulla and toga praetexta. On the right to dine whilst reclining see Roller 2006, 157–75 and on drinking wine D’Arms 1995. P Mich. 7.433 from early-second century AD shows that lists of recent recipients of the toga were displayed in the Forum Augustum in Rome while copies seem to have been kept in the provinces. See Dolanski 2008, 47–70, 64, n.26. Not much can be inferred from Dio 55. 22. 4: ‘this same year Agrippa was enrolled among the youths of military age, but obtained none of the same privileges as his brothers (κἀν τῷ αὐτῷ ἔτει τούτῳ ὅ τε Ἀγρίππας ἐς ἐφήβους, μηδενὸς τῶν αὐτῶν τοῖς ἀδελφοῖς τυχών, ἐσεγράφη).’ 57  Gardner 1993, 82. 58  On this and other aspects of togam virile sumere see Rothe 2020, 61–70. 59  Degrassi 1963, 66 ‘Lib(eralia), Ag(onalia), np. Libero, Lib(erae) | Fer(iae), quod e(o) d(ie) C. Caes(ar) vic(it) in Hisp(ania) ult(eriore).’ Agonium also in Fasti Verulani (AD 14–37) and Vaticani (AD 15–37). Torelli 1990, 93–106.

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4

However, there are two ancient etymologies of Liber that prima facie seem to point to a direct connection between this deity and a juridical understanding of liberty. Since they constitute the main argument often put forward to support an understanding of Liber as the divine personification of a juridical and political notion of liberty, they deserve attention.60 According to late antique commentators on Virgil, Liber was the Roman equivalent to Dionysus, whose main function resided in the purgation of the soul from impurities, which include also passions.61 Not only does Servius derive the etymology of the theonym from this act, but also in his commentary to the Aeneid he specifies that in sacris Liberi the act of purgation takes place through the ventilation of air.62 It was to this ventilation that the neophyte, whose soul had to be freed from impurities, had to be exposed as, in the old Liberalia festival certainly (albeit unclearly) connected to Liber, little puppets hanging from the trees were exposed to air which made them oscillate with the wind.63 The role played by ventilation and air in the sacra Liberi was also symbolised by the winnowing-fan, one of the objects sacred to the god: as ventilation was used to separate the grain from the chaff, so exposure to the purifying air was meant to liberate the soul from corporeal impurities.64 According to Servius and in line with the main tradition of Liber that associated him to viticulture, a similar function to that of air was performed by wine and music.65 Servius refers to dancing and singing as characteristic traits of the Liberalia66 and, in line with the Platonic tradition of thought, he does not find this facet of the cult in contradiction with its more orgiastic dimension.67 He reports that an alternative name for the sacra Liberi was orgia, deriving from the Greek ἀπὸ τῆς ὀργῆς, and which he translates into Latin as furor, a status achieved by virtue of the power of music.68 Contrary to the Republican view which sees furor as a complete darkening of the mind (to the extent that in 60  See, for example, Miller 2002, 200–1. 61  For a full discussion of the etymologies of Liber in Servius/Servius Danielis and the statue of Marsyas see Arena 2020b. For Liber and Dionysus see Arena forthcoming. 62  Serv. ad Aen. 6.741. See also Serv. ad Georg. 1.166, and on the role of ventilation see Turcan 1960, 129–144. 63  On the Liberalia see above, 63–7. 64  Pellizzari 2003, 166–9. On the mystic fan see also Harrison 1903. 65  Serv. ad Aen. 1.171.1 Liber per vino and 1.636; on this see also references at 26. 66  Serv. ad Buc. 5.30; ad Aen. 7.385. 67  Pellizzari 2003, 178–79. 68  Serv. ad Aen. 4.302.

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Roman law those affected by furor had to be under the tutela of someone else),69 Servius, in line with a Platonic tradition of thought in vogue at his time, seems to recognise the positive, purifying, dimension of this form of possession. When set within the wider context of Servius’ conceptualisations of Liber, it seems that the etymological explanation that Servius provides of the deity, Liber a libertate, should not be univocally understood as referring to a political and juridical concept of liberty.70 Explaining the alignment of Jupiter Stygius and Pluto, Servius expands on this point adding that the Stoics claim there is only one god, whose names vary pro actibus et officiis. As far as those names which derive from specific acts are concerned, Servius continues, Jupiter is so called from the act of iuvare, Mercury from an act of presiding over merces, and Liber from the idea of libertas.71 Here, however, Servius does not explain what the object is that Liber set free nor the obstacle or hindrance from which he liberates it nor the nature of this liberation.72 This, of course, does not mean that the god Liber is not connected to the idea of liberty, but rather that this idea of liberty should not inevitably be understood as a notion of juridical and political liberty, neither as the liberty of the citizen in relation to the commonwealth nor as the liberty of a city or people in relation to another city or people. However, discussing the deities to whom Aeneas makes sacrifices, in his commentary to the Aeneid, Servius explains the role of the god Liber in a manner that unequivocally suggests the juridical and political dimension of the idea of liberty associated to this deity. Liber, he states, is the symbol of free cities (signum liberae civitatis): ‘among older [Romans] there were cities classed as stipendiariae, foederatae, or liberae, but only in those cities called liberae was a statue of Marsyas, who is under the tutelage of Pater Liber, erected.’73 This is, in fact, the reason, Servius explains, why in the civitates liberae is to be found a statute of Marsyas, the attendant of the god Liber. Returning to this point, when commenting on the appellative Lyaeus, Servius/Servius Danielis states that Lyaeos derives his name ἀπὸ τοῦ λύειν, quod nimio vino membra solvantur, 69  On furor see Cic. Tusc. 3.11 and Arena 2011, esp. 305f. (with bibliography). 70  On the association see Paoli 1938, 97 and Bruhl 1953, 16 and at 22 for etymology. Wiseman 1998, 35–51 and 2000 is based on the assumption that the liberty with which Servius associates Liber was of political nature. However, despite the very elegant hypothesis based on syncretism with the Athenian liberation from tyranny, nowhere in Servius ad Aen. 4.638 is there an explicit connection between the god Liber and the idea of political liberty. 71  Serv. ad Aen. 4.638. 72  See discussion above, 56–61. 73  Serv, ad Aen. 3.20: nam apud maiores aut stipendiariae erant, aut foederatae, aut liberae. sed in liberis civitatibus simulacrum Marsyae erat, qui in tutela Liberi patris est.

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and adds that Liber, as he has previously stated, is the god of the liberty of the cities and for this reason a statue of Marsyas, his attendant, is located in the forum as symbol of the city’s liberty, represented raising his hand to signify that the city does not fall short of anything (qui erecta manu testatur nihil urbi deesse).74 Upon close scrutiny, however, these attestations, occurring nowhere else, show Servius/Servius Danielis’ misunderstanding of the evidence at his disposal and his attempt to reconcile it with his own conception of liberty, which is significantly dependent on his contemporary intellectual context. Not only, as many commentators have underlined, is the satyr Marsyas an unlikely candidate as champion of liberty of the cities, but also, even if he could have been plausibly presented as one, Servius makes a rather revealing historical error in his explanation of location of the statue, as, following his logic, it is the civitates foederatae, and not the civitates liberae, that should have displayed his statue in their forum. Contrary in fact to how it might appear at first sight, the civitates foederatae enjoyed, at least in theory, a higher degree of liberty than the civitates liberae. Whilst the civitates liberae enjoyed a number of privileges established by law or resolution of the Senate (such as immunity from taxation – during the Empire a very rare concession), all guaranteed by a unilateral grant by the Roman people, and as such, both in theory and in practice, revocable, the civi­ tates foederatae enjoyed a variety of privileges (which could go from possessing the status of independent states to enjoying a rather limited set of privileges, which did not include liberty from taxation), which, at least formally, were guaranteed by the treaty ( foedus) that they had struck with Rome at the time of their encounter.75 Within the administrative taxonomy of the Empire, the civitates foederatae, therefore, enjoyed the highest degree of liberty and would have been most suitably entitled to display the statue of the attendant of the god Liber. 74  Serv. ad Aen. 4.58: PATRIQUE LYAEO dictus Lyaeos ἀπὸ τοῦ λύειν, quod nimio vino membra solvantur. qui, ut supra diximus, apte urbibus libertatis est deus; unde etiam Marsyas, eius minister, est in civitatibus, in foro positus, libertatis indicium, qui erecta manu testatur nihil urbi deesse. I follow here the typographical distinction adopted by Thilo, who adopts italics to indicate the non-Servian scholia found in Servius Danielis. On the issues concerning the presentation of Servius’ text see Murgia and Kaster 2018, xx–xxviii. Macrobius reports the same explanation almost verbatim at 3.12: Lyaeus vero, id est Liber, urbibus libertatis est deus, unde Marsyas eius minister in civitatibus libertatis est indicium. 75   Sherwin-White 1973, 175–189; Jones 1940, 113ff. and 129ff and id. 1974, 4ff. See Tac. Ann. 3.40 as example of taxes imposed on civitates foederatae and Plin. Ep. 10.47 on the colony of Apamea in Bithynia and their independence from the provincial governor.

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In addition, Servius/Servius Danielis states that Marsyas is portrayed with his arm raised, to symbolise that the city is not lacking anything.76 This iconographic choice, also attested in the surviving visual evidence, has long puzzled scholars.77 On the one hand, in the Graeco-Roman context, the iconography of a raised arm is never associated with the idea of civic liberty; on the other, the formulation of liberty as a status of civic completeness, in which the city does not lack anything, does not belong to a Roman way of conceptualising (still less of expressing) this value. This idea of self-sufficiency, which in a civic context would correspond to the Greek equivalent of αὐτάρκεια, is not only unattested in discussions of Roman liberty, but also, and rather importantly, could not be correctly applied to describe the status of civitates liberae. Although the charter of the privileges of these cities often included the clause legibus suis uti, this notion was not tantamount to the status of autarkeia, but rather to that of autonomia (in this context the right to self-government under a constitution imposed by Rome, and from the beginning of the second century AD onwards the power to use only those laws in force at the time of the grant of liberty). It signified that the city in question had been freed from the previous regime and was allowed to govern itself with its own laws under the protection of the potentially interfering power of Rome – which, very importantly, reserved the right to withdraw this privilege. It follows that Servius’ etymological explanation of Liber a libertate should not be understood as referring to a juridical and political conceptualisation of this value. Rather, it seems to derive from an awkward, and ultimately unsuccessful, attempt by Servius/Servius Danielis to reconcile all the evidence available at the time. This evidence reveals a way of thinking about liberty that differs from the account of libertas as absence of domination or dependence from the arbitrary will of someone else, dominant in the late Republic, which I shall discuss later. By virtue of Liber’s intervention, the wine, one of the forms of his liquid seed, loosens up the body and liberates the inner self from physical constraints, as he frees the tongue from the constraints of inhibiting thoughts and the mind from passions. In the same manner, by Liber’s intervention the male semen, the other form of his liquid seed, is released in a sexual union in an act leading to human procreation. In the intellectual world of the late Republic, Liber, therefore, seems to act as the divine personification of a notion of liberty, according to which men are free when they are liberated from the constraints 76  On the complexity of manuscript traditions of Servius see Zetzel 1981, 81–147 and Vallat 2012, 89–99. On this passage see the interesting hypothesis of Ramires 2012, 137–203, esp. 146. 77  For a full analysis of the issue and a suggested explanation see Arena 2020b.

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of their own body or passions, which thereby act as interfering agencies, to realise the full potential inherent in their own nature. In this way of thinking about liberty, the emphasis is crucially on the positive dimension of liberty. As Thomas Hill Green puts it, according to this way of thinking, liberty is to have realised all the one has in himself, to become.78 In this account, liberty, in essence, is matter of being and becoming.

5

In the late Republic, there was another divine personification of the idea of liberty, Jupiter Libertas, or simply Libertas, as often mentioned in the sources. This notion, which was juridical and political in essence, was born out of the same etymology as Liber. Deriving from the Baltic-Slavic and Germanic noun *h1leudh (people) that in turn derives from the verb *h1leudh, meaning to grow, the adjective stands for ‘belonging to the people’, hence ‘free.’79 A long time ago Benveniste pointed out that in Latin free, liberi, came to signify children, as the legitimate children born from two free parents, and therefore fully recognised members of the community.80 These fellows of the same group shared in common the status of libertas, that is a status that was characterised by the absence of slavery. As elegantly formulated in the juridical texts of the imperial era, those who were free, either by birth or by manumission, possessed the natural ability to do whatever they wished, as they were not under the dominium of someone else.81 In Pettit’s well-known formulation, libertas in Rome was understood as a status of non-domination, that is a status where one was free by living in a condition devoid not of actual interference, but rather of the possibility of interference.82 The individual could never be free when in a state of domination, however kind his master might be, and however inclined to please all his subject’s wishes: it would always be the master’s prerogative to revoke unilaterally any concession that he might have granted, leaving the individual unable to conduct his life as he wished, and always inevitably at the mercy of somebody else. 78  Green 1906, esp. 323 ff. 79  De Vaan 2008, s.v. liber. 80  Benveniste 1969 I, 324. See also Chapter 1, 19–20 in this volume. 81  Dig. 1.5.3–6. For full discussion see Arena 2012, 15–30. See also Atkins 2018, 43–9. 82  On ‘liberty and Republicanism’ see most recently Laborde and Maynor 2008 including contributions by Pettit and Skinner. For a slightly divergent formulation see Pettit 2002, 339–56.

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Since, in Roman juridical discourse, slavery was the status of dependence on the arbitrary will of another person or group of persons, it follows that the Romans, seeing political liberty through the metaphor of slavery, conceptualised it as a status of non-subjection to the arbitrary will of another person or group of people, and analysed its loss in terms of falling into a condition of slavery. The ability to avoid this fall, and to preserve the status of political libertas, was dependent not only on the constitutional arrangements of the commonwealth, but also on the civic status of the individual Roman citizen. In late Republican Rome, this status of political liberty was achieved by a matrix of rights (iura) that constituted the legal means by which Romans succeeded in conducting their lives unobstructed by magistrates or groups wielding political power, in pursuit of their freely chosen goals. These true foundations of liberty were the rights to suffragium, provocatio, all the powers of the tribunes of the plebs (auxilium, intercessio and the ius agendi cum plebe), and the rule of law, which by the first century BC had become universally accepted as the essential means of protecting citizens from arbitrary coercion or interference. Since they provided the citizens with the necessary basis for enjoying a full life, these rights can be described as the basic Roman liberties that protected the range of choices deemed necessary within Roman society to guarantee its citizens the enjoyment of a free life. Crucially for the present discussion, amongst those rights, the right of free speech and the right to economic independence were not included as legal means to preserve the status of libertas.83 As a result of the Roman conception of speaking freely as the positive moral quality of a human ability and because of their failure to differentiate the abstract notion of labour from the labourers themselves, in the Republic the Romans did not legislate to protect as a matter of rights their ability either to speak their own mind or to protect their sources of income. Within historical context of the Roman Republic, those were not rights deemed necessary to guarantee the citizens’ status of liberty. This notion of libertas in the Roman Republic found its clearest symbolic expression in the pilleus, the hat worn by newly freed slaves. Functioning in a way that was equivalent to literary topoi, it shaped and propagated the notion of libertas as a status opposed to that of slavery, and potentially also enabled its reinterpretation. In its primary meaning the pilleus served as a sign of emancipation and release from dependency, whilst still acting as a visible reminder of past slavery.84 83  On liberty and economic independence see Arena 2019; on liberty of speech see Arena 2020a. 84  For a full discussion, see Arena 2012, 30–43.

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However, as is attested most explicitly in the coins of the second century BC, the pilleus also came to assume a wider significance as a symbol of liberty to be applied to all members of the community, either freed or free by birth, who were symbolically associated together as living in a condition of non-slavery. The important metaphorical meaning of the ex-slave’s cap was immediately intelligible to the contemporaries within the set of social conventions and collective attitudes of Roman society. In defining the dichotomy between liberty and slavery, the pilleus designated those who wore it as non-slaves, and described their status as devoid of someone else’s dominium and as recognised members of the Roman community. Commonly present in Roman daily life, the pilleus featured prominently also in the imagery of the temple of (Jupiter) Libertas. Built in 246 BC on the Aventine, ex multaticia pecunia the temple of Libertas was dedicated by the plebeian aedile Tiberius Sempronius Gracchus on 13th April, possibly to celebrate a triumph over the Carthaginians.85 The fact that this temple was dedicated on the same dies natalis as the temple of Jupiter Victor, which had been built by the consul Q. Fabius Maximus Rullianus in celebration of the famous victory of the battle of Sentinum in 295 BC, supports the idea that the temple on the Aventine was, in fact, dedicated to Jupiter Libertas, rather than solely to the deity Libertas.86 It may well be that the cult-statue of Libertas itself, now lost, was adorned with a pilleus, as the denarius issued by C. Egnatius Maxsumus around 75 BC suggests. On the reverse, the coin pictures a distyle temple with two figures and above the temple’s architrave, in clear correspondence with the two figures, are portrayed a thunderbolt and a pilleus, which act as direct attributes of the two divinities in the temple and contribute to their identification as Jupiter and Libertas. This suggestive hypothesis aside, it remains true that the pilleus was the first symbolic representation of liberty which a visitor encountered when entering the temple: from the end of the second century BC, its walls were adorned by a fresco, most probably still visible in the late Republic, which represented a joyful feast to celebrate the victory over the Carthaginians in the battle of Beneventum.87 In the fresco newly freed and enfranchised soldiers, wearing the pilleus or the wooden headbands, feasted either standing or on couches according to the bravery shown in battle. Here the image of the pilleus, built on the notion of liberty as a status opposed to the condition of slavery, 85  On the use of fines, see Piacentin 2018, 103–26. 86  See RGDA 19: Jupiter Libertas and Zeus Eleutheros; see also the fasti arvales CIL I², pp. 214 and 330; Degrassi 1963, XIII.2, 504. 87  Livy 24.16. See also Koortbojian 2002 and Arena 2012, 36–9.

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represented to the eyes of everyday visitors the duties which accompanied the acquisition of Roman freedom (and citizenship). On the basis of a common code in the context of an interpretative interaction between signifier and signified, walking into the temple, the late Republican viewer might perhaps have been unable to appreciate fully the historical references to the glorious victory of the general Tiberius Gracchus. However, he would have understood those symbols, which, extrapolated from the dedicator’s intentional context, had acquired a forceful meaning in the Roman society of the late Republic. He would, therefore, have read the image of the pilleus and the different feasting postures of the soldiers as explaining the notion of libertas as a status of non-slavery requiring an appropriate virtuous behaviour. The prominence of the pilleus in the imagery associated with libertas not only indicated but also reinforced the conceptual dichotomy between the liberty of the members of the community (either freed or free by birth) and slavery. Contrary to the iconographic symbols of Liber, which circumscribed its semantic range within the context of fertility and abundance, the pilleus represented a juridical idea of liberty as a status of non-slavery, that is a status of not being arbitrarily interfered with in one’s own choice, which means not being subject to the arbitrary will of another person or group of people. This status was guaranteed and protected by the legal and institutional means through which the status of political liberty was established and maintained. It seems, therefore, that in the first century BC Liber was indeed a god of liberty, but, contrary to what later sources such as Servius lead us to believe, not primarily the political and juridical liberty which was personified in the divine quality of (Jupiter) Libertas and which, importantly, did not include the right to speak freely nor the right to economic independence. Liber had rather come to signify liberty from physical and emotional constraints, enabling the individual to flourish and fulfil his own potential.

6

In 45 BC Cicero has the Stoic interlocutor Q. Lucilius Balbus discuss the deification of great men: ‘Our human experience and the common practice have ensured that men who conferred outstanding benefits were translated to heaven through their fame and our gratitude. Examples are Hercules, Castor and Pollux, Aesculapius, and Liber as well (by Liber I mean the son of Semele, not the Liber whom our ancestors solemnly and piously deified with Ceres and Libera, the nature of whose worship can be gathered from the mysteries.

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Because we call our children liberi, the offspring of Ceres were named Liber and Libera; the sense of ‘offspring’ has been retained in the case of Libera, but not in that of Liber) (hunc dico Liberum Semela natum, non eum quem nostri maiores auguste sancteque Liberum cum Cerere et Libera consecraverunt, quod quale sit ex mysteriis intellegi potest; sed quod ex nobis natos liberos appellamus, idcirco Cerere nati nominati sunt Liber et Libera, quod in Libera servant, in Libero non item).’88 Most interestingly, when mentioning Liber, Cicero has his speaker distinguishing the ‘Greek Liber’, the son of Semele, according to the genealogical form proper to Greek religious thinking, from the ‘Roman Liber’, whose nature is explained in the Roman way of etymology.89 The latter, Cicero tells us, is worshipped together with Ceres and Libera in a temple founded, according to tradition, in 496 BC as a result of a famine, on the suggestion of the Sibylline books, and later vowed in 493 BC by the consul Spurius Cassius.90 The nature of the worship, he continues, can be gathered from the Eleusinian mysteries, in which many Romans of the late Republic had been initiated.91 The Greek cult was dedicated to Demeter and Persephone, with whom Ceres and Libera were associated and, by the late Republic, this connotation seems to have granted a privileged role to the two female deities over Libera’s counterpart, the male Liber.92 Most interestingly, however, Cicero’s passage provides an explanation of these three deities by adopting an etymology which, acting as an explanation, permits us to think about these gods in terms of a Roman familia.93 Since 88  Cic. Nat. Deor. 2.62. 89  On the differences between the Greek and the Roman ways of thinking the gods, see Pironti and Perfigli 2018. 90  Dion. Hal. Rom. ant. 6.17.2–3: ναῶν κατασκευὰς ἐξεμίσθωσε Δήμητρι καὶ Διονύσῳ καὶ Κόρῃ κατ᾿ εὐχήν. On the temple and its location see Coarelli 1993. Contra Mignone 2016, who convincingly argues for a location of the temple in the Forum Boarium close to the Circus Maximus. On the important political role of the temple during the early Republic see Le Bonniec 1958, 342–378; De Cazanove 1990, 373–399; Spaeth 1996, 6–11 and 81–102. 91  Plut. Sulla, 26; Cic. leg. 2.35. 92  Fest. 86L s.v. Graeca sacra states that the festival was celebrated on account of finding Persephone, making explicit the link with Greek mythology. It should be noted that in the course of the third century, the cult of Ceres had been subjected to important alterations, adopting Greek practitioners and Greek ritual and perhaps being associated with the Greek Thesmophoria Cic. Verr. II.5.72.187ff.; Balb. 24.55; CIL VI 2181 = 32443. On the antiquissima Ceres from Enna who needed to be placated in 133 BC see Cic. Verr. II.4.48.108; Val. Max. 1.1.1; Lact. inst. 2.4.29. See discussion in Spaeth 1996, 17–9 and Orlin 2010, 104–10. On the predominance of Ceres see Le Bonniec 1958, 311 ‘Cet effacement apparaitra clairement lorsqu’au IIIe s. le culte mystique, et non plus politique, de Ceres-Proserpine eclipsera celui de Ceres, Liber, and Libera.’ 93  For this reading see Perfigli in Pironti and Perfigli 2018.

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the noun for children is liberi, Cicero explains, Ceres’ children are called Liber and Libera. Not only does this aetiological connection emphasise the association with fertility, but also presents the relation between these gods in very clear terms: Ceres is the mother, the head of the family group, the deity of grain, and Liber and Libera are her children, responsible for the male and female seeds. Although not mentioned in Cicero’s passage as not relevant to his argument, both Varro in Augustine and Ovid add another important member to this familia, Flora, the ministra Cereris. A special assistant to Ceres in the running of her household, Flora was the goddess of flowering, who even had her own flamen.94 ‘When the grain stood level in the field with ears newly formed,’ Augustine states, ‘the goddess Hostilina was in charge (for the ancients used hostire to mean, “make level”); when the grain was in flower, the goddess Flora; when it was milky, the god Lacturnus; when it ripened, the goddess Matuta …’95 Being responsible for flourishing, this goddess was connected with Liber and Libera, ‘perhaps you may think that I am queen only of dainty garlands;’ says the goddess in Ovid’s Fasti, ‘but my divinity has to do also with the tilled fields. If the crops have blossomed well, the threshing-floor will be piled high; if the vines have blossomed well, there will be wine; if the olive-trees have blossomed well, most buxom will be the year; and the fruitage will be according to the time of blossoming. If once the blossom is nipped, the vetches and beans wither, and thy lentils, O Nile that comest from afar, do likewise wither. Wines also bloom, laboriously stored in great cellars, and a scum covers their surface in the jars. Honey is my gift.’96 This family structure of the relations between gods, based primarily on associations of responsibilities, was not just a more sophisticated form of anthropomorphism, but rather an organised way to think about the gods with clear social distinctions and different ranking roles. One of the dei consentes, the goddess Ceres is the head of the familia; her children, in most classifications, are amongst the dei minuti and fulfil an essential role for successful agriculture, supported by the ministra Flora. Most interestingly, however, Cicero has Balbus make a very important remark: whilst Libera still retains the sense of ‘offspring’, Liber has now lost it. It seems that by the mid-first century BC Liber emancipated himself from the family bonds and was no longer solely

94  Varr. Ling. Lat. 7.45. Cf. Ovid. Fast. 4.945–7. The Tabula Agnonensis (ImIt Terventum 34) refers to Flora of Ceres. 95  Aug. Civ. Dei 8.4. 96  Ovid, Fast. 5.261–72. Varr. Rust. 1.1.6: Flora is one of the duces agricolarum, alongside Ceres and Liber.

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conceived as a member of the triad, where Ceres was now perceived as the most dominant figure.97 It is interesting to observe that in the late Republic the representation of the triad is only attested in the case of a triple herm with Ceres, Libera, and Iakchos with a cantharus, whilst the Fasti Farnesiani reports sacrifices to the sole god Liber on the Capitoline.98 There it seems a signum Liberi Patris was erected (whose appearances in the form of an ithyphallic herm can be only assumed, on the basis of Augustan motifs),99 as a temple built there dedicated to the god of wine that loosens up the body, the tecta Lyaei as Martial calls it, does not seem to be supported by extensive evidence.100 Although there is no doubt that in the Roman historical tradition the temple of Ceres, Liber and Libera was connected to the political conquests of the plebs, it seems that by the first century BC the triad was mainly perceived as one of earthly fecundity, with Ceres as the prevalent divinity. In the conceptualisation of their divinities, the god Liber had assumed a more independent role, whose marginalisation might have favoured an accentuation of his individual traits.101 In the late Republic, this Liber attests to the existence of a different way of conceptualising the liberty enjoyed by Roman citizens as citizens. According to this submerged tradition of thought, whose exact contours remain hard to delineate given the state of our evidence, a man is free not when he is able to conduct his life without being arbitrarily interfered with by someone else, that is not by virtue of being protected by a matrix of civic and political rights, but rather a man is free when he is endowed with the power to fulfil his own natural essence. As the festival of the Liberalia and their rite of passage concerning the toga virilis seem to suggest, the full realisation of one’s natural potential, the reaching of adulthood celebrated both in private before the altar of the Lares, and in public in a procession through the forum up to the Capitolium, seem to indicate that the civic community functioned as the arena within which this nature could be fully enacted. This notion of liberty is not, 97  S paeth 1996. 98  L IMC s.v. Dionysios/Bacchus 1986, n. 113: Mülle and Wieseler 1854–61, II I n. 341. Another possible representation of the triad, which however is very fragmented, from the Campana reliefs of Augustan period LIMC s.v. Dionysios/Bacchus 1986, n. 114. 99  Wyler 2011, 171–87 shows that a bearded ithyphallic herm is a frequent cult statue on Dionysiac images at the very end of the Republic and beginning of the Principate. 100  C IL XVI.10 and 11 (CIL I I² p. 250): two military diplomas (AD 70) that mention a statue of Liber Pater on the Capitoline. Martial 1. 70. 9–10. cf. Prop. 3. 17. 35. See Rodríguez Almeida 1993 1. 153–4 for the idea of a temple to Liber on the Capitolium. 101   According to Musiał 2007, 47–56, Liber’s marginalisation favoured the process of Hellenisa­tion of this deity.

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therefore, conceptually apolitical. It rather emphasises the positive dialectic dimension of liberty: a man is free when he has the power to realise his nature as a civic member of the community. The divine personification of Liber opens up a window on a different conceptualisation of liberty and can itself suggest different ways to think about liberty: liberty from the body whose interferences impede the full realisation of one’s own essence, liberty from worries and fears to achieve one’s own potential, liberty as the ecstasy of the soul. However, this liberty in all its different articulations is profoundly distinct from the notion of libertas as a status characterised by the absence of domination, a notion that was dominant in the intellectual world of the late Republic. Concerning the realisation of an individual’s potential as a member of the community, this intellectual tradition does not focus in the first place on the civic status of the single member and his civic and political rights. Although these accounts of liberty are conceptually very different, they were, of course, open to mutual contamination as well as various forms of reconciliation.102 Thus, by interpreting, subverting, and even moulding into new forms existing ways of thinking about liberty politicians as well as writers, for example, could try to achieve their aims. By adopting references to Liber without necessarily following in a coherent fashion the intellectual tradition primarily associated with him, these political actors and writers were able to make intellectual moves that, in turn, might even have generated, at least in principle, new ways of thinking about liberty. As Foucault stated, intellectual taxonomies are infinite. To appreciate fully what these authors were doing each time they referred to Liber and libertas, it is, therefore, necessary to bring some intellectual clarity about the different ways of conceptualising liberty in Rome. The identification of alternative ways to conceptualise liberty would enable us to shed light on the full intellectual weaponry at the disposal of intellectuals and politicians of

102  Cic. Att. 14. 14. 2. Cf. Cic. Att. 14.10.1. See also Cic. Flacc. 66 for an association between Mithridates and Liber and the denarius of Marcus Cato with the head of Liber on the reverse RRC 462. 2. Also interesting is the case of a gold coin minted by the socii in the Social War that seems to mimic the coinage of Mithridates, depicting Dionysus and the cista depicting an ivy-wreathed head on the obverse, and a rampant bull goring a wolf on the reverse See Pobjoy 2000. Although obscure in its historical truthfulness and implications see Serv. ad Ecl. 5.29: Caesar was the first to transplant the sacra Liberi patris to Rome. For Antony as posing as Dionysus see Plut. Ant. 24.3–4 and Cass. Dio 50.5.3. On other politicians’ connection with Liber see Val. Max. 3.6.6 and Plin. HN 33.150 (Marius); Plin. HN 8.4 (Pompey); Vell. 2.82.4 (Antony).

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the late Republic, who could exploit at will the full and diverse potential of the association of Liber with libertas to achieve their aims.

Acknowledgements

Thanks to Catalina Balmaceda for the very kind invitation and the other participants for interesting discussions. I am grateful also to Fiachra Mac Góráin and the audience of the conference Dionysius in Rome, who first prompted me to explore further my thoughts on Liber and libertas.

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chapter 4

The Freedom of the Rhodians: Cato the Elder and Demosthenes Harriet I. Flower 1

Libertas in Cato’s Pro Rodiensibus

It is not so easy to talk about libertas – in a political sense – before the time of Cicero (as several papers in this volume show).1 For obvious reasons, in the present state of our sources for the pre-classical Latin language the figure of the elder Cato looms large in any discussion of early Latin prose. Consequently, it comes as no surprise that Cato’s famous speech on behalf of the Rhodians, originally delivered in the Senate in 167 BC, provides the earliest extant example of the use of libertas in an international political context and it will be the focus for my discussion. This speech also contains the first use of amicitia in the context of an external political alliance with a foreign state, as well as providing important attestations of superbia, again in inter-state relations, and even of the word imperium, as applied to Rome’s role in the East. These other three words, however, have received more scholarly attention than the term libertas.2 The theme of Cato’s speech is the libertas of the Rhodians rather than the more commonly attested debate about libertas within the political community of the Romans, which we see in many later sources such as Livy and Cicero.3 For all these reasons, Cato’s speech provides essential insights into the semantic and political range of libertas in the early second century BC.

1  I would like to thank the following for feedback on this paper: Catalina Balmaceda, all the participants in the conference in Santiago in August of 2018, Yelena Baraz, and Michael Flower. 2  For superbia, see Chassignet 2002, xxvi who thinks this was the main theme of the speech and Baraz 2020. For amicitia, see Chassignet 2002, 45. For imperium, see n. 37 below. This is the first instance of an articulated concept of a metus hostilis (Beck and Walter 2001, 212 and Levene 2000, 187 with Appian Pun. 65.290–1). Aequitas was also an important concept, according to FRHist 5 F90 = Peter 95 = ORF4 8 F166 = Chassignet 2002, Origines book 5 F 3d with p. 45 n 2. 3  For libertas in later republican political discourse, see Wirszubski 1950, Marco Simon and Pina Polo 2000, Arena 2012, and Pellam 2014.

© Harriet I. Flower, 2020 | doi:10.1163/9789004441699_006

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This essay will examine how Cato used concepts of freedom expressed by the Latin term libertas in 167 BC to advance his own particular view of the evolving role Rome should be playing in the Mediterranean world.4 I will first set out what we know about the speech, which comes mainly from Aulus Gellius’ discussion of it in his Noctes Atticae. Then a sketch of the political background in the 160s BC will lead into a reading of how Cato talks about the libertas of the Rhodians, including what political freedom meant to the Greeks in the East and how notions of the independent sovereignty of others should have a place in Roman foreign policy. Libertas in the Rhodian speech will then be further contextualized with reference to how Cato had used concepts of freedom and servitude in a number of his earlier or contemporary speeches. Finally, I will go on to suggest that Cato drew significant inspiration from Demosthenes’ speech on the subject of Rhodian freedom (eleutheria) in shaping his argument. Cato’s speech, which successfully argued against a war with Rhodes immediately after the decisive Roman victory over the Macedonian king Perseus at Pydna in 168 BC, was famous even amongst his many publications, both during his life time and in later generations. It is the best attested of the 82 speeches of which we have fragments.5 Cato published it twice, first as a separate item probably close to the time of its delivery and then in book 5 of his Origines, the first Roman history written in Latin and usually dated around 150 BC.6 Consequently, the speech provides an opportunity to study Cato’s rhetorical strategies in a more holistic way than in most other rhetorical settings. Within the context of Latin authors writing during Cato’s lifetime, most other examples of the word libertas come from comedies by Plautus.7 These instances almost universally refer directly and specifically to relations between masters and their slaves, since such characters are very common in the plays, most of which were based on Greek originals.8 In this sense, they provide a general background to the way Cato is using the language of freedom in his Rhodian speech, delivered more than 15 years after Plautus’ death. Other fragments of contemporary tragedies, epic poetry, or early historical writers are 4  For libertas in the second century, see Yoshimura 1984, Chassignet 1987, Ferrary 1999, and Pfeilschifter 2005. 5  For the fragments of the Rhodian speech, see ORF4 8 F163–169, Sblendorio Cugusi 1982, 327– 33, Courtney 1999, 78–85, Cugusi and Sblendorio Cugusi 2001, 328–40, Beck and Walter 2001, 208–13, Chassignet 2002, 93–95, Calboli 2003, and now FRHist 5 F87–93. The main descriptions of the debate in the senate are Polybius 30.4, Livy 45.3.3 and 20.4–25.4, and Diodorus 30.24 and 31.5. 6  For the dual publication of this speech, see Livy 45. 25.3 and Gell. NA 6.3.7. 7  For libertas in Plautus, see Balmaceda in this volume. 8  For slaves in Plautus, see McCarthy 2004 and Richlin 2017.

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meager.9 For all these reasons, it is difficult to say how original and striking Cato’s expressions were on this occasion; he was probably reflecting ideas and modes of speech that already had currency within a wider circle, and not just in the Senate. Both Calboli and Splendorio Cugusi’s very detailed philological commentaries on the oratorical fragments characterize Cato’s language in the Rhodian speech as containing many patterns and usages very typical of his speeches in general.10 This oration did not represent a departure from his usual way of speaking, arguing, or presenting himself as an authority figure. Cato’s marked use of the first person conjures up the way he delivered his advice based on his considerable auctoritas and dignitas by this stage of his career.11 These fragments apparently allow us to hear something of what he sounded like in person. Most discussions assume that the speech was fairly short and that the published version was close to what he delivered in the senatorial debate. I will be operating on a similar, albeit hypothetical, basis. We have seven surviving verbatim fragments of this speech quoted by Aulus Gellius in his Noctes Atticae, published around AD 177, over 340 years after Cato spoke.12 The discussion of Cato’s Rhodian speech is the longest sub-section in the Noctes Atticae. In it Gellius defends Cato’s text in response to a letter sent by Cicero’s freedman M. Tullius Tiro to his patron’s friend Q. Axius, presumably written in the late first century BC after Cicero’s death. In other words, Gellius is not simply providing his reading of Cato’s text, although he is certainly familiar with it. Rather, he is writing a rebuttal of Tiro’s critique of Cato’s speech. Tiro had already quoted six of the seven fragments we find in Gellius, as part of his critical assessment of the structure, arguments, and style used in the speech on behalf of the Rhodians. By contrast, Gellius is an unabashed admirer of Cato’s language and rhetoric, while claiming that Tiro, whom he looks down on as a former slave, misread the speech and quoted out of context in order to support

9  For libertas in other early Latin, see Naevius Palliatae 10 and 74 and Ennius Ann. 6.189 and trag. 41 and 256. For a later comparison, see Lucilius Sat. 29 and 892 from the later second century BC. 10  Cugusi and Sblendorio Cugusi 2001 and Calboli 2003 give detailed philological commentaries in Italian. For an English commentary, see Courtney 1999. On libertas in particular, see Chassignet 2002, 45 n. 2. Sciarrino 2011 is the best general introduction to Cato’s prose. See also Briscoe at FRHist vol. 1, 23–25 for stylistic analysis. 11  Astin 1978 is the classic discussion of Cato. A recent introduction can be found in FRHist. vol. 1, 191–218. 12  For Aulus Gellius, see Holford-Strevens 2003, 195–96 and 205–206 with FRHist. vol. 3, 132–36.

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a partisan argument.13 Gellius himself only provides one additional quotation from Cato but urges his readers to consult the whole speech and Tiro’s letter for themselves.14 Both texts are assumed to be readily available to his learned audience. Unfortunately, they have not survived for us to read; Cato’s text appears at two removes, first in Tiro’s letter and then in Gellius’ miscellany. The effect of Cato’s speech, in both spoken and written form, is also directly attested by Livy’s account in book 45 (perhaps writing only shortly after Tiro’s letter?) and by Appian of Alexandria (Pun. 65), who was a generation older than Gellius. We hear other echoes in Sallust’s version of the famous Catilinarian debate in 63, written up in the late 40s.15 Again it becomes evident how striking the overall impact of this particular speech was, not least because Cato himself had promoted it in a special way. Unfortunately, Gellius’ account does not give a full outline of the argument and much of it is presumably missing, even if we imagine that the speech itself was not very long, certainly by the standards of later published speeches, such as those of Cicero. Although others have tried their hand at an overall reconstruction, I will not make my own attempt here, nor will I speculate about what Cato’s “real” motives might have been for arguing against a war with Rhodes.16 2

The Rhodians, Rome, and Perseus in the 160s BC

Before looking at Cato’s use of concepts of libertas to shape his defense of the Rhodians’ policies, I will first give a brief sketch of the historical and rhetorical context of the speech. Despite an existing alliance with Rome and despite the fact that they had benefitted significantly from supporting the Romans in their earlier war against the Syrian king Antiochus III, the Rhodians had tried to stay neutral during the harsh conflict between the Macedonian king Perseus and the Romans.17 Worse still, they had proposed themselves as mediators in securing a peace settlement immediately before the Roman victory at Pydna 13  Howley 2018, 174–90 offers a lucid analysis of Gellius’ approach to Tiro, for us the most visible literary slave. 14  Gell. NA 6.3.48–50 on superbia. 15  Levene 2000 provides a detailed and compelling analysis of the complex ways in which Sallust was using Cato. 16  For an outline of Cato’s speech, see Astin 1978, 276–78, FRHist. vol. 3 p. 133–34, Howley 2018, 184. Astin 1978, 278–81 claims that greed for booty was Cato’s main fear with regard to a new war with Rhodes, an issue that is not mentioned in the fragments. 17  For Rhodes in the 160s, see Gruen 1975 and 1984, 563–68 with the more recent discussion by Wiemer 2002, 317–25.

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in late June 168. Inevitably, this move cast doubt on their loyalty as Roman allies, although there is no reason to believe that the Romans would never have welcomed non-binding mediation by a third party under any circumstances.18 Regardless of how exactly one reads the rhetoric used by the Rhodians themselves, or by the various Romans who were attacking them, the political damage had now been done. A flurry of Rhodian embassies after Pydna did little to appease the Roman Senate, and especially those prominent men who had fought long and hard against Perseus. These senatorial veterans of the most recent conflict in the East were especially eager to begin another war soon.19 Shortly thereafter, L. Aemilius Paullus, the conqueror of Perseus, attacked and devastated Epirus, another state that had not sided with the Macedonian king.20 On the other hand, the fact that in 167 the praetor Manius Iuventius Thalna took a proposal to make war on the Rhodians directly to the people in an assembly, bypassing the Senate that had not yet formally decided the issue, does perhaps suggest that a new war with Rhodes was not necessarily the most predictable outcome of the Senate’s deliberations.21 However that may have been at the time, Polybius is surely right when he claims that the Senate wanted to make an example of the Rhodians, which they eventually managed to do without a military conflict, after several years of debates and arguments over what their policy should be towards Rhodes after war had been rejected as an option.22 The eventual removal of territories on the mainland granted to Rhodes by Rome after the Peace of Apamea, combined especially with the establishment of a free port on the island of Delos under the protection of Athens, dealt a decisive blow to Rhodian influence and prosperity.23 In other words, 167 did mark a real turning point in the fortunes of the Rhodians. The debate in the Roman Senate at which Cato spoke was decisive for them because it affected their independence and neutrality (what might be termed their libertas) in a Mediterranean world that had long been characterized by a balance between many players rather than the domination of 18  For Rome and third-party arbitration, see Eckstein 1988, Ager 1991, Wiemer 2002, 324, and Derow 2015, 43–44. 19  See Livy 45.25.2 with Wiemer 2002, 320 who identifies Valerius Antias as Livy’s source here. 20  For Aemilius Paullus’ war on Epirus, see Livy 45.33.8–34.9 and Plutarch Aem. 29.1–30.1. 21  See Polybius 30.4.4–6, Livy 45.21, and Diodorus 31.5.3 with Astin 1978, 123–24 and Wiemer 2002, 319. Thalna’s initiative was vetoed by two tribunes, M. Antonius and M. Pomponius. 22  See Polybius 29.19.5 with Badian 1958, 101 and Gruen 1984, 569–72. 23  Wiemer 2002, 322–325 offers a convenient analysis of the fate of the Rhodians after Pydna.

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any one power. In this sense, the speeches on either side will presumably have made a difference to the outcome in what was an open discussion about what Rome should do next. The Rhodian ambassadors spoke first in the Senate and presented their case before the senators had their own, separate debate about which policy to pursue. One of the Rhodian leaders, Astymedes, then published his speech, which Polybius had read, since he was in Rome as a hostage by this time.24 It is possible that Cato circulated his own speech at that same time partly in response to (or perhaps in support of?) what Astymedes had said. It is interesting to see that Livy gives a Rhodian ambassador whose name has been lost in a lacuna, presumably Astymedes acting as the leader of the delegation, a very long speech (the longest in book 45).25 Some of his arguments are the same ones used by Cato. Yet Livy chose not to reproduce Cato’s own speech, because it was already published in the Origines, a work that he assumes his readers have access to.26 So we can see that both the spoken words of these men and closely contemporary written versions had distinct impacts and helped various audiences to understand what had happened in the Senate and who was taking credit for having saved the Rhodians from a Roman attack in 167. 3

Cato Defends the Rhodians in the Senate

Cato was in his mid-60s when he delivered this speech. He was obviously a very well-known figure, a man who had by now held consular rank for nearly thirty years and who had been censor in 184, some 17 years earlier. He was also one of the leading orators of his day. On this occasion, we can see that he speaks very much in his own persona but in the surprising context of a defense speech, a plea for mercy from a senator much better known for his attacks on individuals and on contemporary moral decay and corruption.27 This overall effect 24  See Polybius 30.4 with Walbank 1979 ad loc. Chassignet 2002 sees this speech as decisive in fueling anti-Rhodian sentiments in the Senate. 25  Livy’s version can be found at 45.22–25, although the beginning is lost. Briscoe 2012 ad loc. is the best commentary. In this version, the Rhodians themselves talk about the charge of superbia. Did Cato borrow any themes from Astymedes’ speech or did Livy use Cato’s in a free composition? Or both could be the case? See also Baraz 2020. 26  Livy refers to Cato’s speech but does not reproduce it at 45.25.2. Polybius 30.4.9 omits Cato’s role. 27  For Cato as an orator, see Cic. De or. 1.171, 3.135, Tusc. 1.5, Brutus 65–69, 293–294, 298, 333, Quint. Inst. 12.10.10, and Plut. Cato 7.1 and 29.4–5 with Astin 1978, 137–44. The sheer number of fragments of Cato’s works that have survived in comparison with any other second century senator is testimony to the way in which his writings were circulating.

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will only have been amplified, in retrospect, by his obsessive attacks on the Carthaginians in the later 150s. Cato employs his usual vehemence and acuity to criticize both the Rhodians and also the senators who are keen to go to war with them. In this sense, he takes a number of rhetorical risks in a speech that was surely exciting to listen to. Cato makes the most of elements of surprise and even of humor as he engages with a familiar audience in a competitive and highly charged environment. Take, for example, the famous witticism about the superbia of the Rhodians that Gellius highlights as particularly effective: Rodiensis superbos esse aiunt id obiectantes, quod mihi et liberis meis minime dici uelim. Sint sane superbi. Quid id ad nos attinet? Idne irascimini, si quis superbior est quam nos? FRHist 5 F93 = Peter F95g = Chassignet F3g = Cugusi F106 = ORF4 8, 169 They say the Rhodians are arrogant, bringing a charge against them that I would absolutely not wish to have brought against me and against my children. So let them be arrogant! Why is that our business? Is that why you are angry, because someone is more arrogant than we are? This type of word play seems typical, as well as being deft and telling. In the opening of his speech Cato had already warned the Romans themselves that their recent success could cause them to become superbi, which would lead them to make a hasty decision in the heat of the moment, one that was not in their interest and that they might well come to regret later. Scio solere plerisque hominibus rebus secundis atque prolixis atque prosperis animum excellere atque superbiam atque ferociam augescere atque crescere. FRHist 5 F87 = Peter F95a = Chassignet F3a = Cugusi F100 = ORF4 8 F163 I realize that in favorable and advantageous and prosperous circum­ stances most people’s spirits tend to be exalted, and their arrogance and ferocity tend to increase and to grow. Consequently, one very clear message in this speech seems to have been: ‘when you criticize others, be wary that their faults are not also yours.’ In this same vein, Cato is saying something like ‘the Rhodians wanted more for themselves – BUT – so do we all; take care how you point a finger at the greed of others.’ In

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other words, Cato took aim at leading senators who might be angling to profit from a proposed invasion of the wealthy island of Rhodes.28 The speech presents as a series of thoughts in a loose framework, without a standard rhetorical structure in the argument. Brevitas leads to rapid changes of subject and even to reversals of perspective and argument. Cato is very ready to paint an unflattering picture of the Rhodians, thus deftly coopting the rhetoric of those on the other side of the debate. His argument against the war is ostentatiously not based on a conventional plea that the Rhodians are specially deserving or loyal or even nice or good people. Rather his most basic point seems to have been that it was in the Rhodians’ interest to remain neutral and to hope to gain from whichever side won the recent war between Rome and Macedon, but that it is now in the Romans’ interest not to start a war with Rhodes. Everyone naturally acts and, in fact, should act in their own interest in each situation, rather than being guided by emotion. It is in this context that the famous passage about the libertas of the Rhodians is quoted by Gellius, as it was before by Tiro: Atque ego quidem arbitror Rodienses noluisse nos ita depugnare uti depugnatum est, neque regem Persen uinci. Sed non Rodienses modo id noluere, sed multos populos atque multas nationes idem noluisse arbitror; atque haut scio an partim eorum fuerint, qui non nostrae contumeliae causa id noluerint euenire; sed enim id metuere, si nemo esset homo, quem uereremur, quidquid luberet, faceremus, ne sub solo imperio nostro in seruitute nostra essent. Libertatis suae causa in ea sententia fuisse arbitror. Atque Rodienses tamen Persen publice numquam adiuuere. Cogitate quanto nos inter nos priuatim cautios facimus! Nam unusquisque nostrum, si quis aduor­sus rem suam quid fieri aribitrantur, summa ui contra nititur ne aduorsus eam fiat; quod illi tamen perpessi. FRHist 5 F88 = Peter F95b = Chassignet F3b = Cugusi F101 = ORF4 8 F164 And indeed I think that the Rhodians did not want us to conclude the armed conflict in the way that this war turned out, nor did they want king Perseus to be defeated. But I think that it was not only the Rhodians who did not want this, but many people and many nations did not want it. And I am inclined to think that there were some of them who did not want it to happen, not as an insult to us, but because they were afraid 28  Calboli 2003 gives a detailed discussion of the economic motives behind Roman policies in the Eastern Mediterranean.

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that, if there were no man of whom we were fearful, we might do whatever we pleased, and in order not to be enslaved to us under our sole dominion. It was for the sake of their freedom that they had this opinion, I think. Moreover, the Rhodians never helped Perseus with their public resources. Consider how much more cautiously we deal amongst ourselves in private! For every one of us, if he thinks that anything is turning out against his own interest, makes every effort to oppose it in case anything should happen against it. This (negative outcome) is exactly what they (the Rhodians) have suffered. Cato uses libertas to refer to the position of Rhodes and others as independent, sovereign states.29 There may also be some overtones of a meaning that includes both ‘self-determination’ and perhaps even ‘neutrality’ in the sense of not being forced to take sides in any and every international conflict. The context makes a specific reference to freedom as opposed to slavery: the Greeks fear the slavery (servitus) they may be subject to under Roman imperium, if the Romans were to become the dominant power in the Mediterranean. This usage fits well with what we find in the language of Plautus and also with the pervasive role played by slavery in Roman society. Freedom was defined, in most cases, both by the visible presence of the unfree and by the theoretical possibility of becoming unfree oneself, especially through defeat in war or capture by pirates. Cato here portrays Rome’s power in a very negative light, as viewed by others.30 He invites himself and his peers to take this negative view of a potential, as yet unrealized, Roman imperium in the Mediterranean seriously. If we do not treat free men as free, will they inevitably fear and oppose us with good reason, since any free man would want to flee and fight becoming a slave? The image of libertas is used to justify misgivings about Rome, her military and her political objectives in Asia minor, as they have played out over more than a generation by this time. The reference to the future gives the argument an added twist, precisely because it does not involve a simple problematization of specific past actions, as was the case in so many of Cato’s other speeches. On this occasion, Cato invites his peers to think in more theoretical terms about Rome’s role overseas. 29  For the freedom of the Greeks as a Roman political policy or slogan in the early second century BC, see Ferrary 1999, Pfeilschifter 2005, 278–85, 310–16, 322–24, and Derow 2015, 205. 30  Griffin 2008 is the most important discussion of Roman critiques of their own imperialism and its effects on others. Her discussion has inspired my essay.

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Libertas in Cato’s Political Thought

We can better understand Cato’s use of libertas here by comparing this passage with other ways in which he uses this word and its associated ideas, especially in his speeches. Also from a speech, but in an unknown context, comes the famous saying about the role of libertas in the civic life of Rome. According to Cato, as quoted by Festus: Iure, lege, libertate, re publica communiter uti oportet: gloria atque honore, quomodo sibi quisque struxit. Cugusi 2001, F223 = ORF4 8 F252, Festus 408, 31L It is necessary to share in common the legal system, the law, liberty, and the state; each person has renown and political office according to how much they acquired for themselves. Here we see that Cato claims a form of libertas as the natural right of all citizens in a republican community. Again libertas is connected to the situation of the free man who is a citizen, who enjoys a commonly held set of civil rights under an equitable legal system.31 This Roman citizen’s libertas is like the libertas the Rhodians strive for on their island. Even as amicitia is used by Cato in the Rhodian speech to describe relationships with foreign states, by analogy with the way ‘friendship’ was understood amongst citizens at home, so libertas can also apply to those outside the Roman community, whether within their own civic context or in relations between states. Indeed amicitia logically implies libertas, since friendship is not a relationship usually imagined with a slave in Roman culture. Two other episodes offer further, suggestive parallels for the Rhodian case. More than 20 years earlier, in 190 BC, Cato delivered a famous pair of speeches attacking Q. Minucius Thermus (consul 193 BC) for his cruel treatment of the Bruttians.32 In his speech entitled de falsis pugnis, Cato said:

31  For Cato’s internal libertas, see Cugusi and Sblendorio Cugusi 2002, 223. For Scipio Aemilianus’ different view, see ORF4 F32 = Isidore Etym. 2.21.4. Commentary in Tan 2017, 161 and Ando in this volume. 32  See Cugusi and Sblendorio Cugusi 2001, 277–283. Thermus was denied a triumph. One may also note the speech In P. Furium pro Hispanis de frumento at Cugusi and Sblendorio Cugusi 2001, 109–11 of 171 BC (Livy 43.2), which discusses the greed and superbia of Roman magistrates who treat allies as if they were enemies.

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Quis hanc contumeliam, quis hoc imperium, quis hanc servitutem ferre potest? Cugusi 2001, F42 = ORF4 8, F58 = Gellius NA 10.3.17 Who can tolerate this violence, this abuse of power, this slavery? Although the word libertas itself does not appear in this verbatim quotation, the use of the image of the slave, the scandal and injustice of free people being punished like slaves, within the specific context of abusive behavior by a Roman magistrate with imperium, provides an important and suggestive parallel for the Rhodian speech. Cato’s use of the word imperium in the speech on behalf of the Rhodians is one of our first extant examples of a critical view of Roman power voiced by a prominent Roman (however exactly that word should be translated).33 But the complex of ideas that center on slavery versus freedom and its relationship to a Roman interaction with another state or a free citizen of that state is effectively the same as in 190. Cato shows himself to be consistent in his arguments that Roman power has been abusive to the natural rights of free populations in the past and that the fear of enslavement by Rome leads free peoples to consider how they can preserve their libertas, whether on a communal or individual level. Cato, at least in some specific contexts, does not think that the Romans should behave like or become enslavers of others. But when he says in 167 that the Rhodians may be fearing hypothetical enslavement by an all-powerful Rome in the future, this takes on a different tone if his audience remembers that he has been a consistent and impassioned critic of actual Roman abuses of free people, at least in some instances in the past. Cato’s successes in making such an argument on earlier occasions add to the impact of his words in the present moment. Similarly, Cato had himself, also in 167, delivered a speech arguing that Macedonia should remain free, even after the decisive defeat of king Perseus. Unfortunately, very little of this speech survives. But its title de Macedonia liberanda contained a reference to libertas.34 In other words, Cato spoke at length about the various reasons why it made sense for Romans to treat both defeated enemies and lukewarm allies (or bystanders who avoided 33  Chassignet 2002, 43 n. 2 collects the ancient evidence for a strong break in Roman attitudes to empire after Pydna (Polybius, Sallust, Livy, Plutarch, Pausanias). See also Badian 1958, 100–101, Gruen 1975 and 1984, 279–80, and Derow 2015, 205–206. 34  Livy 45.18.1–4 with Cugusi and Sblendorio Cugusi 2001, 116–17. By comparison, see Cato’s speech arguing for the freeing of the Achaean hostages in 151 BC (Cugusi and Sblendorio Cugusi 2001, 142–44, Plut. Cato 1.8 and 9.2) and his speech against Galba in 149 BC (Cugusi and Sblendorio Cugusi 2002, 150–54).

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commitments?) as free citizens of independent states. Obviously, there were many reasons for his political position, including apparently the idea that it was simply impractical for Rome to annex Macedonia and to rule it effectively (at least according to the emperor Hadrian).35 But a concept of libertas, linked to a view of an Eastern Mediterranean not dominated by a single power but shaped by networks of ‘friendships’ between independent states, does appear to have been something Cato was advocating at what was to be a watershed in Roman imperial development. Cato had always taken strong positions on the big questions of his day. In the speech on behalf of the Rhodians, he is not just advocating with regard to Rhodes in particular but is posing more general questions, such as ‘Why do or should we go to war?’ ‘What is our relationship with a state like Rhodes?’ ‘What is their point of view?’ and ‘Should we care to ask why they did not leap to our defense over the last several years, despite our on-going relationship?’ Meanwhile, it is relevant to note that Cato was not alone in using the image of slavery and freedom for political purposes around this same time. King Prusias II of Bithynia had come to Rome in 172, before the Third Macedonian War, and presented himself in public wearing the familiar costume of a newly manumitted slave, including the special freedman’s cap (pilleus). According to Polybius, who was very disapproving, the king only did this once; Livy has him repeating this performance on several, unspecified occasions.36 In any case, it seems clear that Prusias was flattering the Romans and some of them seem to have been quite content to be characterized as benevolent “masters” with freedom in their gift. In general, Prusias seems to have gained a favorable audience in Rome by speaking and behaving subserviently, in contrast to the Rhodians, who were consistently characterized as superbi.37 We may imagine that Cato did not find Prusias very convincing, especially since he apparently did not like kings very much anyway.38 In 167 he may also be saying to his peers: ‘Beware those who pretend to love being your slaves (or freedmen), when you yourselves know that it is rational for free men to value their libertas.’ 35  S HAHadrian 5.3 records Hadrian’s use of Cato’s Macedonian speech to justify his own withdrawal from conquered territory. 36  See Polybius 30.18 with Walbank 1979 ad loc and Livy 45.44.19–21 (placed prominently at the end of the book) with Briscoe 2012 ad loc and Eckstein 1988. 37  Gellius refers to superbia illa Rhodiensium famosissima (‘that thoroughly infamous arrogance of the Rhodians’) at NA 6.3.52. For later references to Rhodian superbia, see Cic. Fam. 12.14.3 (May 43 BC) with Ferrary 1999, 82–84 and Dio 60.24.4 (an example from the time of the emperor Claudius). 38  See Plutarch Cato 8.12 for Cato’s sententia that the creature known as a king was by nature a carnivore.

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Demosthenes 15: For the Liberty of the Rhodians

In thinking about Cato’s advocacy for the freedom of the Rhodians, there is one other text that appears to be relevant in helping us to find out more about what Cato was saying and how he was framing his case. This is a text that none of the commentaries on the fragments of Cato have mentioned so far. Demosthenes’ oration 15, entitled On the Liberty of the Rhodians (peri tes Rodion eleutherias) provides an obvious point of comparison and possible source of inspiration.39 In reading this speech I have become convinced that Cato was familiar with it, and that he was using many of its themes to create his own, obviously very Roman and very Catonian, argument for an independent Rhodes. At least some members of his audience in the Senate would presumably also have been familiar with this Demosthenes speech. Plutarch and Appian have already noted Cato’s recognized interest in Demosthenes as an orator.40 In both speeches, the theme of eleutheria is particularly apt – but there are also differences. A young Demosthenes (speaking in 351) was trying and ultimately failing to persuade the Athenians to undertake a war to reinstate the Rhodian democratic party, after the Carian satrap Mausolus had established an oligarchy supported by a Carian garrison on Rhodes. By contrast, a mature Cato successfully opposed a war of revenge against Rhodes after the brilliant Roman victory at Pydna. A detailed comparison between the speeches of Cato and Demosthenes is obviously impossible, because the Latin speech is so fragmentary. So I will simply highlight a range of parallels that suggest how Cato was influenced by Demosthenes in 167 BC. The overall tone and style of the two speeches are similar. Interestingly, one can take the criticisms Tiro made of Cato’s speech and apply them quite easily to Demosthenes 15.41 Neither speech follows a clear or standard rhetorical format; rather quick shifts of tone and subject create immediacy (or confusion, depending on one’s point of view). Tiro criticizes Cato for painting such a negative picture of the Rhodians while he is speaking

39  A new text of Demosthenes 15 can be found in the 2002 Oxford Classical Text edition by Dilts. A commentary is provided by Radicke 1995, who notes the loose structure of the speech and its rapid changes of pace. 40  See Plut. Cato 2.5 and App. Hisp. 39.160. Astin 1978, 149 and 152–53 argued strongly against Cato using any Greek models. Gruen 1992 gives a more balanced picture of Cato’s Hellenism. 41  Tiro’s criticisms address both the structure of the arguments and the style of expression. He sees the speech as ineffective in not defending the Rhodians and sophistical in arguing both sides of several issues. He characterizes it as disorganized and not following rhetorical conventions.

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in their defense, but this is exactly what Demosthenes also makes a point of doing in reference to the Rhodian democrats (15.15–16). εὖ μὲν γὰρ πράττοντες οὐκ οἶδ’ εἴ ποτ’ ἂν εὖ φρονῆσαι ἠθέλησαν, ὄντες Ῥόδιοι … 15.16.1 For even if they fare well, I am not sure whether they will be motivated to make a sensible plan, since they are Rhodians … Demosthenes’ Rhodians are dim-witted and unreliable – in short, they are Rhodians. This rhetorical strategy can be seen as a clever way to diffuse opposition by coopting points that were presumably made by speakers arguing the other side of the question. Tiro complains that Cato sounds like a Greek sophist, but without citing any particular Greek parallel (NA 6.3.34–35). Post deinde usum esse Catonem dicit in eadem oratione argumentis parum honestis et nimis audacibus ac non uiri eius, qui alioqui fuit, sed uafris ac fallaciosis et quasi Graecorum sophistarum sollertiis. ‘Nam cum obiceretur’ inquit ‘Rodiensibus, quod bellum populo Romano facere uoluissent, negauit poena esse dignos, quia id non fecissent, etsi maxime uoluissent’ … Then he (Tiro) says that Cato later in that same speech used arguments that were dishonest and excessively bold and not worthy of the kind of man that Cato had been on other occasions, but cunning and deceitful, and like the tricks of the Greek sophists. He (Tiro) says: ‘For although he accused the Rhodians of having wanted to make war on the Roman people, he said that they did not deserve a punishment, because they had not done that deed, although they had very much wanted to. Just as Cato would go on to do, Demosthenes uses the ancient topos of good fortune leading to bad judgement, but he applies it to the Rhodians themselves (15.16).42 By contrast, Cato uses it as an effective way to start his own speech but warns his audience of senators not to act rashly or hastily in the moment themselves (F87, see above), an adaptation that is then imitated by

42  The dangers of good fortune leading to hybris can already be found in Solon’s poetry (F6 West) and was a commonplace in Demosthenes’ speeches (1.23, 20.49–50, 23.113, 24.4, 43.1). See also Isocrates Areopag. 3–7.

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Sallust in his version of Julius Caesar’s speech during the Catilinarian debate of December 63 (BC 51).43 In these speeches, both Demosthenes and Cato use unreal hypotheticals to make their points. Cato spoke at length (F 91) about legal liability in cases of intent (as opposed to action), even pretending to quote from imaginary laws that would propose penalties for wanting more land or more sheep – who would want such a law? Who could imagine such a thought-police in Rome? Demosthenes’ speech also poses a number of complex hypothetical scenarios, in one of which he is asked to advise the Persian king (15.7) and in another he explains how he would respond to an imaginary request to help the Rhodian oligarchs, if they were a more independent government than they are (15.14). These scenarios are used to suggest that any opposing point of view, even an unreal hypothetical one, is logically untenable. Demosthenes boldly asks the Athenians directly what their motives usually are for going to war; Cato may or may not have posed that question as openly. What is certain is that each speech used certain key concepts, including friendship (between states), philia, philoi = amicitia; a notion of hybris that one can easily compare to superbia; images of freedom (libertas, eleutheria) contrasted with slavery (servitus); and free speech, which is called parrhesia in Greek, but which could also suggest another aspect of superbia in Latin.44 In addition to these more general similarities, a small-scale verbal parallel has so far apparently gone unnoticed. Beyond the seven canonical fragments quoted by Gellius, Tim Cornell also suggests that another small fragment from book 5 of the Origines may come from the Rhodian speech. It is (F101): illi polliciti sese facturum omnia … (they promised that they would do everything …).45 His argument is based on the use of illi here, which is a word Cato uses elsewhere to refer to the Rhodians in this speech. One may also note this sentence in Demosthenes 15.14: Οὐ μὴν οὐδ’ ἂν εἰ δι’ αὑτῶν εἶχον τὴν πόλιν οἱ νῦν ὄντες ἐν αὐτῇ Ῥόδιοι, παρῄνεσ’ ἂν ὑμῖν τούτους ἑλέσθαι, οὐδ’ εἰ πάνθ’ ὑπισχνοῦνθ’ ὑμῖν ποιήσειν. And yet, even if the party at present in possession of the city held Rhodes by their own strength, I should not have advised you to take their side, even if they were promising to do everything you wished. 43  See Sall. Cat. 51.1.5 with Levene 2000. 44  For the relationship of parrhesia and isologia (free speech) to superbia, see Polyb. 30.4 with Walbank 1979 ad loc. 45  Peter F104 = Chassignet F10 = Cugusi F112 = Prisc. GL 2.475.

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This is a small overlap but one that adds to my general argument. It provides additional evidence to support my contention that Cato was adapting and taking inspiration from Demosthenes oration 15 when composing his own speech on behalf of the Rhodians in 167. Other possible fragments from Cato’s speech are discussed in the appendix below. 6

Conclusions

In sum, three principal considerations seem striking about Cato’s use of libertas in his speech on behalf of the Rhodians. Firstly, he uses at least two (related but still distinct) ideas of freedom, one about the Roman Senate’s freedom to make the right choice (at the beginning of the speech) and the other about Greek concerns for their own freedom as independent communities. The latter example is explicitly contrasted with slavery, in order to define a basic, essential meaning of libertas. So libertas was an important, perhaps even the defining, concept in this speech, because it was closely associated with the Romans’ evolving role overseas. An underlying idea of Rhodian libertas was at the basis of Cato’s advice on foreign policy that Rome should look to her own advantage in avoiding a new war with an existing ally. Secondly, the composition and effect of the speech was determined by the fact that Cato had himself, more than 20 years earlier, used the dichotomy freedom/slavery to talk about how Romans should behave towards free foreigners and whole communities. Cato had a familiar set of themes that he tended to rehearse in his speeches in a repetitive but not ineffectual way. One could call this a political program, which included developing ideas about libertas. In this sense, libertas formed an underpinning for other key words in Cato’s vocabulary, notably amicitia (a friendly relationship with another free person or community, but not with a slave) and superbia (arrogance that crosses a line of acceptable behavior in a given context, in deed but sometimes also in word). Did Cato argue that the Rhodians were indeed arrogant or that they were exercising their natural freedoms of speech and action, freedoms that the Romans should recognize, if only for their own advantage? The fragmentary nature of the speech means we cannot be sure; Gellius tells us that there was significantly more to the speech than the select parts critiqued by Tiro. And thirdly, even in his most typically Catonian moments, Cato could and did make abundant use of Greek texts and ideas, as we can see from comparing Demosthenes’ speech about the freedom of the Rhodians with the surviving fragments of Cato’s oration on a similar topic. His adaptations were freewheeling but thoughtful, and they involved a sophisticated reading of what

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he considered rhetorically and even linguistically interesting in Demosthenes’ Greek. This is the case even when his Latin usage also follows patterns and rhythms that can be identified as specifically his own. In other words, Cato was confident that he could adapt a Greek model for his particular purposes, regardless of the original historical and political context or the relative success of the speech he was using. He may even have been setting out to show that he could be more successful than Demosthenes when speaking on the famous topic of Rhodian political independence.46 Tiro could later accuse him of sounding “like a Greek sophist”, but Cato himself was not worried about his own ability to speak like a Roman. Meanwhile, we cannot know whether Tiro referred to any specific Greek models in parts of his letter not commented on by Gellius. Cato’s speech was surely effective as he delivered it, regardless of whether individual audience members recognized echoes of Demosthenes 15 or of any other intertexts or references that Cato had made use of, which we can no longer recognize.

Appendix: Other Fragments of Cato That May Belong to the Pro Rodiensibus

As suggested above, a verbal parallel with Demosthenes 15.14 indicates that FRHist 5 F101, a small fragment of Cato quoted from book 5 of the Origines by the grammarian Priscian (GL 2.475), may belong to the Rhodian speech. The following fragments might also come from the same speech, although the case for each is more tenuous than for F101. Overall, given the fame of the Rhodian speech, it would not be surprising if other quotations from it had survived, either from the version in Origines 5 or from the separately published speech. We cannot know whether these two versions were identical. FRHist F102: also quoted by Priscian not far from F101 and assigned to Origines book 5: quod eorum nemo quisquam quicquam mihi ignoturus est. because (or the fact that) no single one of them is going to forgive me for anything … Peter F98 = Chassignet F6 = Cugusi F111 = Prisc. GL 2.510 46  Gruen 1992, 57 notes Cato’s debts to Greek authors, including Demosthenes. The overall conclusion of his detailed discussion of Cato’s Hellenism is that he often cited Greek pre­ cedents in order to define a Roman or Latin cultural achievement that matched or outdid its equivalent.

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For Cornell, the marked use of the first person suggests a speech. Gellius (NA 6.3.52) tells us that Cato spoke about the topic of forgiveness in his Rhodian speech, whereas it was not a common theme in most of his other speeches.47 Amongst the unassigned fragments of Cato’s speeches, the following quotation may be relevant. ORF4 8 F236: Quintilian Inst. 9.2.21 Ut Cato: “cedo, si vos in eo loco essetis, quid aliud fecissetis?” As Cato (says): “Tell me, if you had been in that situation, what would you have done differently?” Both the content and the tone are close to the Rhodian speech, although this subject could also fit elsewhere in Cato’s repertoire. Each of these fragments contains a hypothetical argument, like the ones in the Rhodian speech. On the other hand, it must be admitted that these two fragments could belong to other speeches, not least because Cato did recycle the same ideas and modes of expression in many of his public appearances.

Bibliography



Editions of Cato’s Fragments (in Chronological Order)



Works Cited

Peter, H. 1914. Historicorum romanorum reliquiae.2 Stuttgart. Malcovati, H. 1976. Oratorum Romanorum Fragmenta liberae rei publicae4. Turin. Sblendorio Cugusi, M.T. 1982. M. Porci Catonis Orationum Reliquiae. Turin. Chassignet, M. 1986/2002. Les origines ( fragments). Caton. Paris. Courtney, E. 1999. Archaic Latin Prose. Atlanta, GA. Beck, H. and U. Walter, 2001. Die frühen römischen Historiker. vol. 1, Darmstadt. Cugusi, P. and Sblendorio Cugusi, M.T. 2001. Opere di Marco Porcio Catone Censore, vol.1. Turin. Calboli, G. 2003. Marci Porci Catonis Oratio pro Rhodiensibus2. Bologna. Cornell, T.J. et al. eds. 2013. The Fragments of the Roman Historians. 3 vols. Oxford.

Ager, S.L. 1991. ‘Rhodes: The Rise and Fall of a Neutral Diplomat’. Historia 40, 10–41. Arena, V. 2012. Libertas and the Practice of Politics in the Late Roman Republic. Cambridge. Astin, A. 1978. Cato the Censor. Oxford. 47  See already Jordan 1856, 18.

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Badian, E. 1958. Foreign Clientelae. Oxford. Baraz, Y. 2020. Reading Roman Pride. Oxford. Briscoe, J. 2012. A Commentary on Livy Books 41–45. Oxford. Chassignet, M. 1987. ‘Caton et l’impérialisme romain au ii siècle av. J.-C. d’après les Origines’. Latomus 46, 285–300. Derow, P. 2015. Rome, Polybius and the East. Oxford. Dilts, M.R. 2002. Demosthenis Orationes, vol. 1. Oxford. Eckstein, A.M. 1988. ‘Rome, the War with Perseus, and Third-Party Mediation’. Historia 37, 414–44. Ferrary, J.-L. 1999. ‘La liberté des cités et ses limites à l’époque républicaine’. Med. Ant. 11, 69–84. Griffin, M.T. 2008. ‘Iure plectimur. The Roman Critique of Roman Imperialism’. In T.C. Brennan and H.I. Flower (eds.) East and West. Papers in Ancient History Presented to G.W. Bowersock. Cambridge, MA. 85–111. Gruen, E.S. 1975. ‘Rome and Rhodes in the Second Century BC: A Historiographical Inquiry’. CQ 25, 58–81. Gruen, E.S. 1984, The Hellenistic World and the Coming of Rome. 2 vols. Berkeley. Gruen, E.S. 1992. ‘Cato and Hellenism.’ Culture and National Identity in Republican Rome. 52–83. Ithaca, NY. Holford-Strevens, L. 2003. Aulus Gellius2. Oxford. Howley, J.A. 2018. Aulus Gellius and Roman Reading Culture: Text, Presence, and Imperial Knowledge in the Noctes Atticae. Cambridge. Jordan, H. 1856. Quaestionum Catonianarum capita dua. Berlin. Levene, D. 2000. ‘Sallust’s “Catilina” and Cato the Censor’. CQ 50, 170–90. Marco Simón, F. and F. Pina Polo, 2000. ‘“Concordia” y “libertas” como polos de referencia religiosa en la lucha politica de la Republica tardia’. Gerión 18, 261–92. McCarthy, K. 2004. Slaves, Masters, and the Art of Authority in Plautine Comedy. Princeton, NJ. Pellam, G. 2014. ‘Ceres, the Plebs and Libertas in the Roman Republic’. Historia 63, 74–95. Pfeilschifter, R. 2005. Titus Quinctius Flamininus. Untersuchungen zu römischen Griechenlandpolitik. Göttingen. Radicke, J. 1995. Die Rede des Demosthenes für die Freiheit der Rhodier (or. 15). Stuttgart. Richlin, A. 2017. Slave Theater in the Roman Republic: Plautus and Popular Comedy. Cambridge. Sciarrino, E. 2011. Cato the Censor and the Beginnings of Latin Prose. From Poetic Translation to Elite Transcription. Columbus, OH. Tan. J. 2017. Power and Public Finance at Rome, 264–49 BCE. Oxford. Walbank, F.W. 1979. A Historical Commentary on Polybius, vol. 3. Oxford.

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Wiemer, H.-U. 2002. Krieg, Handel und Piraterie. Untersuchungen zur Geschichte des hellenistischen Rhodos. Berlin. Wirszubski, C. 1950. Libertas as a Political Idea at Rome during the Late Republic and Early Principate. Cambridge. Yoshimura, T. 1984. ‘Zum römischen Libertas-Begriff in der Aussenpolitik im zweiten Jahrhundert vor Chr’. AJAH 9, 1–22.

chapter 5

Ex Imperio Libertas: Freedom and Republican Empire Clifford Ando 1

Introduction

This paper considers two interrelated problems in the analysis of Roman understandings of libertas, or freedom. The first is whether Romans understood freedom to be constituted through domination. The second is whether Romans understood the structures of freedom and domination that obtained in the international arena to have any necessary relation to the structures of freedom and domination that obtained within the Roman political community. The answers to these questions are quite obviously affirmative. They are worth framing because the multiple traditions of historical and normative thought that took their answers for granted have recently given way before two ideological currents of substantial seductive power. One is that strand in contemporary normative theory that we dub neo-Roman or republican, which seeks an historical imprimatur for its elaboration of doctrines of negative liberty in the form of freedom as non-domination. The other is that school of empire that believed it possible for doctrines of citizenly equality to be sustained in the metropolitan population of an imperial power, in contradistinction to the forms of domination that the metropole as collective exercised over all others. These themes are interwoven in the argument to follow; it may nevertheless to be useful to clarify the stakes at the outset. Recent readings of the Roman tradition by historians of early modern political thought, and kindred readings by contemporary normative theorists, have asserted that there is a single concept of liberty undergirding all Roman reflection on the topic.1 In the briefest possible terms, they aver that the Romans understood liberty in binarism with slavery: liberty is freedom from the possibility of interference by the arbitrary will of another; slavery is permanent subjection to domination because one is never free from the possibility of such interference, regardless whether it occurs. Neo-Romans regard this form of freedom to have been essential to citizenship; it was thus shared by all 1  Carter 2016 provides bibliography; see also Laborde and Maynor 2008.

© Clifford Ando, 2020 | doi:10.1163/9789004441699_007

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Romans, who were normatively coequal amongst themselves in the protections that Roman law and ideology aspired to afford them. For this reason, a firewall might effectively be imagined to have separated the situation of the subject of Roman law from the subjects of Roman power, namely, non-Roman objects of Roman domination. An alternative Roman tradition, expounded for us preeminently but not exclusively by Polybius, Sallust and Tacitus among the ancients, and by Augustine and Machiavelli among their readers, declined to subscribe to any theory of liberty as historical or normative constant. Freedom was born at Rome through the expulsion of the kings, but it existed in forms that were fundamentally inflected by social position: for the elite, freedom was the freedom to exercise virtue in pursuit of domination over others; for the non-elite, freedom was the freedom not to be dominated.2 For long periods, the tensions that issued from this structured hostility were released via collective aggression against others. The lust for domination was aggregated in ways that conduced the communal good of empire; but the fruits of empire ultimately so distorted the political economy of Italy, and the fundamentals of intra-elite competition at Rome, as to necessitate the end of republican democracy altogether. In what follows, I pursue these issues through consideration of evidence of the second century BC, largely in respect of those decades before the Gracchan confrontation with wealth inequality and elite power exposed for public debate the massively unequal enjoyment on the parts of elites and non-elites, Roman, Latins and allies, of the fruits of empire. My argument is shaped by several contextual factors, which I expound in turn. A first consideration, oft-named but ever present, is that of anachronism, most obviously the gap that separates contemporary normative theory from Roman realities, but also that which separates Rome of the middle and late Republic from that of the high empire.3 Cato’s context was not Cicero’s; the sociology of Roman power in the Republic differed fundamentally from that in the age(s) of Gaius and Ulpian. It is not simply that their “libertas” leads directly to our “liberty” by a continuous tradition, presenting all the standard obstacles to due diligence in matters of translation and historical semantics. There is also the problem that modern “freedom” is a vastly more capacious but also aggregative concept than any corresponding notion in antiquity: we 2  Indeed, Cicero bears witness to this tradition in numerous places, not least the allowance that the people understood republicanism to be normatively democratic: hanc unam rite rem publicam, id est rem populi, appellari putant. itaque et a regum et a patrum dominatione solere in libertatem re populi vindicari, non ex liberis populis reges requiri aut potestatem atque opes optimatium (Rep. 1.48). 3  Beyond Wirszubski 1950, essential bibliography includes Arena 2012 and Atkins 2018, 37–62.

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have freedom of speech, freedom of religion – freedoms that are implicated in so-called rights, which we may redeem before the law against the encroachment of public powers and intersubjective interference alike. Stripping all this away is hard. Nor can we take continuity in their analytic frameworks for granted: the distance that separated Scipio Aemilianus from Proculus, or Cicero from Ulpian, is often greater than we care to admit. I have myself written a long critique of contemporary neo-Roman political thought, focusing on the consequences of its inattention to the contexts of political speech.4 I urged particular caution regarding claims made about the Republic in literature written under the Principate. That project also surveyed a range of systematic errors and misconstruals in neo-Roman historical works that concerned themselves with the high empire, with the Justinianic codifications, and with politics and law in the Italian communes of the 11th through 13th centuries. But a great deal more work along those lines is both possible and necessary. To a very surprising degree, similar issues attend the efforts even of Roman historians to write histories of public power under the Republic or of the implication of republican ideology in the project of empire. One cannot emphasize strongly enough the importance of conducting such studies by reference to contemporary evidence. This stricture – which is surely prima facie incontestable – is given a very particular inflection when one treats the second century BC, and especially the languages of politics in that period. This is so because while it is clear that the Roman government generated an enormous amount of documentation in Latin, until the lex repetundarum of Tiberius Gracchus, we know this material almost exclusively in Greek translation. Likewise, Roman politicians clearly debated in both speech and writing questions about the nature and purpose of empire and the existence and redemption of rights, and so on and so forth – and they did so with sophistication and passion. Nevertheless, the very particular intellectual interests and ideological commitments of later Roman intellectuals mean that the surviving fragments of the orators of the second century were rarely selected for quotation and preservation because of what they reveal about republican politics or republican empire. Interest under the Principate lay rather with matters of style and lexicography. Hence, to cite only one example, for access to what we might term the Gracchan narrative of the dangers of empire to republican politics, we must turn – again – to Greek sources. The challenges that this situation presents to the historian of empire are clear enough; the ones that it presents to the historian of political language are, quite obviously, substantial. 4  Ando 2010, which is revised and corrected in Ando 2011, 81–114.

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Ex Imperio Libertas

I want now to turn to the aphorism of Scipio Aemilianus whence I draw the title of my paper. It is known to us from its quotation in the Etymologies of Isidore of Seville, where it and other fragments of second-century BC oratory are cited as examples of the rhetorical figure of “climax” (gradatio). (In other words, its survival is an example very precisely of the sort of mechanism for the preservation of second-century literature to which I referred a moment ago.) Climax est gradatio, cum ab eo, quo sensus superior terminatur, inferior in­ cipit, ac dehinc quasi per gradus dicendi ordo servatur, ut est illud Africani (Scipio ORF2 fr. 32): “ex innocentia nascitur dignitas, ex dignitate honor, ex honore imperium, ex imperio libertas.” Hanc figuram nonnulli cate­ nam appellant, propter quod aliud in alio quasi nectitur nomine, atque ita res plures in geminatione verborum trahuntur. Fit autem hoc schema non solum in singulis verbis, sed etiam in contexione verborum, ut apud Gracchum (C. Sempronius Gracchus ORF2 fr. 43): “pueritia tua adulescen­ tiae tuae inhonestamentum fuit, adulescentia senectuti dedecoramentum, senectus reipublicae flagitium.” Sic et apud Scipionem (Scipio ORF2 fr. 33): “vi atque ingratis coactus cum illo sponsionem feci, facta sponsione ad iu­ dicem adduxi, adductum primo coetu damnavi, damnatum ex voluntate dimisi.” (Isidore, Etymologiarum 2.21.4). Climax is an ascending series (gradatio), when the latter notion begins from the point where the earlier one let off, and from here as if in steps the order of speech is managed, as in that saying of Africanus: “From integrity is born social esteem; from social esteem, public office; from public office, power of command; from power of command, freedom.” Some people call this figure “enchainment” (catena = epiploké), because one thing is as it were bound to another, and so multiple things are entailed in the doubling of the words. Moreover, this scheme occurs not only in individual words, but also in the weaving together of words, as in this passage of Gracchus: “Your boyhood was a dishonor to your youth; your youth was a disgrace to your old age; your old age was a scandal of the state.” So, too, in this passage of Scipio: “Driven by force and unwillingly, I made a pact with him; the pact made, I led him before the court; when he had been led before the court, I convicted him at the first hearing; after his conviction, I dismissed him at my will.”5 5  The translation is that of Barney, Lewis, Beach and Berghof 2006, revised.

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I quote the entire set of examples for two reasons. First, it seems clear that Isidore relies ultimately on a source of the early first century BC; otherwise, his examples would not fall within a ten – or fifteen-year period of the later second century BC. Next, the second and third examples, arising as they do from the same context as the first, happen to instantiate precisely one of the (apparent) confusions that surprises us in the aphorism of Scipio, namely, that of public and private, albeit the confusion – or confounding – is different in the different cases. One might be forgiven for supposing that a gnomic description of the relationship between virtue, office, public power and freedom by one of the most prominent Romans of the second century would be the object of consideration attention. But it has been rarely adduced and even more rarely subject to close examination: after Wirszubski, there are readings by Kurt Raaflaub, John Richardson, Nicola Mackie, Robert Wallace, and James Tan, nearly all of whom takes its meaning as self-evident.6 But I remain unhappy. The import of the first three items seems clear enough: proper ethical conduct issues in social esteem, and social esteem may be cashed in for votes. In a properly ordered state, individual virtue is rewarded by popular regard, which maps the people’s judgment on the award of public office. We are in the domain of domestic (republican) politics, and the chain leads thence from public office to the higher magistracies, to wit, those that carry imperium, or power of command, over both Romans and others. It is the last link that is problematic, on two non-exclusive grounds. If the last clause, ex imperio libertas, remains in the domain of domestic politics, then Scipio would appear to say that only holders of imperium are truly free, while all other Roman citizens, even citizens optimo iure, are subject to their arbitrary power. This is, I think, a totally plausible reading, but it is difficult to square with the doctrine(s) of liberty as non-domination that contemporary neo-Romans associate with Roman republican thought. The last clause might instead refer to foreign affairs: it is on the basis of power-of-command over others that the Roman people is (uniquely) free. This, too, is an eminently plausible reading, with much support from Roman political and legal texts, as I will seek to demonstrate. To achieve this reading, we must suppose that the chain makes a conceptual leap – or, one might say, a link is assumed – that leads from individual virtue to the exercise of republican magistracy, and from there to its necessary consequence, namely, Roman domination over non-Romans in the form of empire. This is of course precisely 6  Wirszubski 1950, 38; Raaflaub 1984; Mackie 1992; Wallace 2009; Richardson 2009, 53–54; Tan 2017, 161 (a page of characteristic astuteness).

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the metonymic mapping of imperium qua magisterial power to imperium qua empire that will eventually be stabilized and cease to be metaphorical at all.7 On this interpretation, Scipio offers a theory of republicanism that anticipates Machiavelli: the virtue of republican notables is exercised in domination, and domestic peace is achieved – to the extent that it is – by directing their exercise of virtue toward the domination of external others.8 Hence, while in theory republics may be organized for persistence or for empire, those that aspire to persist will inevitably be consumed by those organized for empire, who alone can be free. But the predication of the system on the lust for domination, the libido dominandi, domestic and foreign, means that it carries within it the seeds of its own destruction, which are germinated by the very acquisition of empire. Not for naught did Scipio weep at the fall of Carthage, standing as it did in a relation of typology or prolepsis to the fall of Rome itself. Of course, it may well be that Scipio did not wish us to make a choice or, rather, that the interpretive choice was not necessary for him: ex imperio libertas described the fruits of republican politics as a freedom that was unique to magistrates and to Rome; it declined any distinction between domestic and foreign, by way of declining Machiavelli’s distinction between republics designed for persistence or for empire. There was only empire or, rather, there was only republican domination, in which many were free but some were freer than others. John Pocock cites Scipio’s aphorism by way of interpreting and assessing the historical researches of Carlo Sigonio into the meanings of Roman libertas.9 Sigonio he understands to have followed Augustine in denouncing the Roman conjoining of libertas with virtus, which ‘amounted to no more than a sterile pursuit of glory’. Within this understanding, what Scipio in particular clarifies is that individual virtue acquires meaning in both politics and history via its leveraging of communal resources in the form of power of command, impe­ rium. It was through the exercise of republican virtue in the form of powerof-command that elites won freedom for themselves and their communities, and so affirmed their status and power as an elite. In short, the climax ran both ways. What was pernicious, of course, was the purchase price of that freedom of self and community, to wit, “the extension of that self’s empire over others”. 7  John Richardson (2009) has argued with great power that the Romans did not stabilize a concept of ‘empire’ (under the term imperium) for an aggregate of territorial units of rule until the age of Augustus. Carlos Noreña and I are separately pursuing substantial programs of critique in respect of this argument, but its influence and cogency should not be underestimated. 8  Pocock 2003, 203–35. 9  Pocock 2003, 277.

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In his larger argument, Pocock draws our attention to the peculiarity of Scipio’s formulation by suggesting a Sallustian alternative. Sallust he adduces as the spokesperson of a traditional republicanism, according to which individuals can only be free to exercise virtue in a democratic republic: it was the end of tyranny that had allowed the Roman nobility to exercise their individual virtue and give rein to their lust for rule.10 On this theory, liberty, which is to say, freedom to pursue the excellence appropriate to oneself, sharpens virtue, and it is the collective result of the aggregated individual pursuit of virtue within a republican system that issues in empire. In other words, ex libertate imperium. Pocock did not go further, but I observe that precisely this formulation is employed by Johnson in his 1655 Historia rerum Britannicarum, in a retrospective consideration of the coming-to-power of Elizabeth I. He wrote: Cujus paene divina Virtus, cum Admirabili prudentia conjuncta, omnium mortalium fama celebranda est … Postea, Numinis beneficio, omnes for­ tunae impetus evasit; ex Innocentia nata est Incolumitas; ex Incolumitate Libertas; ex libertate, Imperium, optimo Jure contigit; ex Imperio, Gloria, & Nominis Inmortalitas. Her nearly divine virtue, conjoined with admirable prudence, is celebrated by reputation among all mortals. Later, through the benefit of the godhead, she escaped all hazards of fortune; from innocence was born safety; from safety, liberty; from liberty, rulership, according to the best right; from rulership, glory, and the immortality of her name. It is, of course, not nearly so elegant as Scipio’s turn of phrase. But it is also not a theory of republican republican politics at all, but at best one of republican monarchy: Elizabeth’s private virtue (which included her virginity) won the favor of the Christian god, who preserved England from the Spanish armada – hence, incolumitas; and safety issued not so much in ‘empire’ but in rulership, which belonged to the queen. As a result, the glory, and the immortality of her name, are Elizabeth’s. The reading according to which Scipio declined to recognize a distinction between domestic and foreign affairs – all was republic – exists in a relation of homology to a blurring of public and private in the other examples of gra­ datio cited by Isidore: Gracchus leaps from private conduct to public harm, and Scipio confuses his agency as the bringer of a charge (ad iudicem adduxi) with the power of the state to impose a sentence (the first-person adductum 10  Sall. Cat. 6.7–7.3.

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damnavi). The firm theoretical distinction between ius publicum and ius privatum lies more than two centuries in the future. On that point, I will shortly close. 3

“We Order You to Be Free”: Greaterness, Peace and Empire

A number of paths are open to us in order to resolve these interpretive difficulties. One method would be to gather and interrogate patterns of so-called co-occurrences. To put the matter in non-technical terms, how often do the terms of Scipio’s aphorism occur together? Are they associated terms of art in a particular idiom or language of politics? This is a method to which the figure of enchainment would seem well-suited as an object of study. The quick answer is that the sample size of contemporaneous Latin is small, and in that corpus, the relevant examples are vanishingly few, but significant. A notable example is a fragment of Cato that, alas, cannot with certainty be assigned to a particular context: Iure, lege, libertate, re publica communiter uti oportet; gloria atque honore, quomodo sibi quisque struxit (‘Law, statute, freedom, res publica: these one should enjoy in common; glory and public esteem, these each person has insofar as he acquires them for himself’).11 Elsewhere Cato attributes to the Rhodians a view that to be ‘under Rome’s sole imperium’ was to be ‘in slavery to us’: ‘They were of this opinion for the sake of their freedom, I think.’12 Post-republican examples are of course common: a notable instance occurs in Livy’s narrative of the struggle of the plebs against debt-bondage. The plebeians complained that ‘while they were fighting externally for freedom and empire ( foris pro libertate et imperio dimicantes), at home they were seized and oppressed by their fellow citizens.’13 But one need not descend to texts written in the nascent monarchy of the late first century BC to establish a context of interpretation for Scipio. Second-century evidence has more to offer than is commonly understood, particularly if one expands one’s field of vision in two respects: by taking on board inscribed legal instruments, and by examining not simply instances of the abstraction libertas, but also declarations of peoples and individuals 11  Cato, Orationes fr. 223 Cugusi = Festus s.v. struere 408L: the ancients employed “struere” pro adicere, augere. On this fragment see Flower in this volume. 12  FRHist Cato, Origines frag. 88 = fr. 101 Cugusi: … ne sub solo imperio nostro in servitute nostra essent. libertatis suae causa in ea sententia fuisse arbitror. See also In Q. Minucium Thermum fr. 42 Cugusi. 13  Livy 2.23:2: fremebant se, foris pro libertate et imperio dimicantes, domi a civibus captos et oppressos esse.

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as ‘free’. Consider, for example, the famous inscription from Alcántara, from 104 BC, recording the formal and unconditional surrender of a Spanish people to Lucius Caesius, and its aftermath (ELRH U2): 1. C(aio) Mario C(aio) Flavio [co(n)s(ulibus)] 2. L(ucio) Caesio C(aii) f(ilio) imperatore populus Seano+[– se?] 3. dedit Lucius Caesius C(aii) f(ilius) imperator postquam [eos –] 4. accepit ad consilium retolit quid eis im[perare (?)] 5. censerent de consili(i) sententia imperau[it (?) –] 6. captivos equos equas quas cepisent [– (?)] 7. omnia dederunt deinde eos L(ucius) Caesius C(aii) [ f(ilii) imp(erator) liberos (?)] 8. esse iussit agros et aedificia leges cete[raque omnia] 9. quae sua fuissent pridie quam se dedid[erunt –(?)] 10. extarent (uacat) eis redidit dum populu[s senatusque] 11. Roomanus (!) vellet (uacat) deque ea re eos [ – ] 12. eire iussit (uacat) legatos Cren[ – ] 13. Arco Cantoni f(ilius) (vacat) legates … then Lucius Caesius son of Gaius, imperator, ordered them to be free and the lands and buildings and laws and all other things that were theirs on the day before they surrendered themselves … he gave back to them so long as the Roman people and Senate wish. (Translation of the type in bold only.) As a technical matter, the freedom of the Spaniards is a consequence of act of imperium – it issues from the command of someone empowered by the Roman people so to order and to do. With regard to contemporary neo-Roman theory, it is useful to observe that their freedom exists on sufferance of the Roman people and may be terminated at whim. Although the verb describing the imperator’s speech act is different, the public-law situation in a decree of Lucius Aemilius Paulus from Spain in 189 BC is exactly the same (ILS 15): 1. L. Aimilius L. f. inpeirator decreivit 2. utei quei Hastensium servei 3. in turri Lascutana habitarent 4. leiberei essent; agrum oppidumqu. 5. quod ea tempestate posedisent, 6. item possidere habereque 7. iousit, dum poplus senatusque 8. Romanus velet. Act. in castreis 9. a.d. XII k. Febr.

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Lucius Aemilius, son of Lucius, imperator, decreed that those who as slaves of the Hastenses were dwelling in the tower Lascutana should be free; and the land and city that they possessed at that time, he ordered them to possess and to hold exactly those things, so long as the Roman people and Senate wish. Done in camp on the twelfth day before the kalends of February. The same understanding of freedom as available to the Romans to bestow, particularly in consequence of a formal act of giving oneself unconditionally into their trust, is visible in the eastern Mediterranean. Consider, for example, the letter of Lucius and Publius Cornelius Scipio to Carian Herakleia from 190 BC: συγχωροῦμεν δέ ὑμῖν τὴν τε ἐλευθερίαν καθότι καὶ ταῖς ἄλλαις πόλεσιν, ὅσαι ἡμῖν τὴν ἐπιτροπὴν ἔδωκεν, ἔχουσιν ὑφ᾿ αὑτοὺς πάντα τὰ αὐτῶμ πολιτεύεσθαι κατὰ τοὺς ὑμετέρους νόμους … RDGE 35, ll. 10–12

We grant to you freedom, just as to the other cities that have given power of decision (over themselves) to us, retaining for yourselves in all matters the conduct of civic affairs according to your laws … trans. after Sherk

What is clear in all these documents is that ‘freedom’, such as it was – including, for the Romans, the freedom of those subject to their whim—, was normatively good. But it was not unconditional: it was freedom subject to Roman sovereignty. In texts of the second century BC, this sufferance is expressed via clauses that affirm the right of the Romans to claw that freedom back. In the first century BC, in Cicero’s pro Balbo, by contrast, the language and thought focus on the power of the Romans to require subject peoples to adopt Roman laws. Normally, free peoples were expected to adopt laws according to rules of local legislative legitimacy, ‘but when the matter concerns our res publica, our empire, our wars, our victory, our safety’ (de nostra vero re publica, de nostro imperio, de nostris bellis, de victoria, de salute), then the Romans expected obedience and explicitly set aside the question and operation of local principles of legislative legitimacy.14 This is not to say that the Romans themselves did not sense any tension between their ideological commitment to freedom for themselves and others and their occasional neglect regarding democratic principles of (local) legal 14  Cic. Balb. 21–22.

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legitimacy. Neither did they lack the vocabulary to describe relations of domination between counterparties to an agreement, even in situations of formal equality. For example, according to Cicero, a treaty between Gades and Rome, struck during the Hannibalic War and revised in 78 BC, contained the phrase – not found in all treaties –: Maiestatem populi Romani comiter conservanto, ‘Let them uphold the greaterness of the Roman people in a friendly way.’15 As Cicero observes, ‘The clause has this force, that they are the lesser party in the treaty’ (id habet hanc vim, ut sint illi in foedere inferiores). The meaning of the comparative terms ‘greaterness’ and ‘lesser’ were not theorized under the Republic, and their consequences for the status of lesser parties as free, or for the nature of their freedom, went unexplored. It therefore remained for the jurist Proculus, writing in the first century AD, to consider whether peoples might be considered free if they were enjoined to respect the greaterness of another party. A free people is one that is not subject to the power of another people (liber autem populus est is, qui nullius alterius populi potestati est subiec­ tus). An allied people is either one that has entered into friendship under an equal treaty or one embraced by a treaty such that one people should with good will respect the maiestas of the other. Note moreover that the one people is understood to be greater; the other is not to be understood as not free. So, just as we understand our clients to be free, even if they do not excel us in authority or dignity, so those who are bound to respect our maiestas with good will should be understood to be free. Proculus, Letters bk. 8 fr. 30 Lenel = Dig. 49.15.7.1; trans. after O. Robinson

We have ended up somewhere we did not expect, in a world in which the freedom of all peoples – or, at least, all peoples who entrust themselves to the Roman people – is guaranteed by the exercise of imperium by Roman magistrates. Two aspects of this world surely deserve further comment: the nature and limitations of the freedom that these peoples possessed, on the one hand, and the stability and transformation of this doctrine (and form) of freedom over time, on the other. These are naturally not topics that I can treat quickly, but let me gesture at one important issue that will return us to the point from which we began.

15  Cic. Balb. 35. It is, alas, not known whether this clause derives from the Hannibalic treaty or the revision in 78 BC.

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The freedom granted to others by Rome was of course not freedom from the exercise of arbitrary will on the part of another. The greaterness of Rome meant that Rome alone was free in this sense. That said, the Romans and their counterparties were at pains not to make explicit the limits on the freedom of Rome’s friends, allies and subjects, each for their own reasons. One consequence is a willed confusion, between freedom as eleutheria, which we might define as freedom of action in foreign affairs, and freedom as autonomia, the right to use one’s own laws, which meant properly the domestic operation of both law-making and as well as law-applying institutions. Of course, all peoples of the Hellenistic world were capable of using this vocabulary correctly. But it merits observation that no less an observer than Cicero remarked on the debasement of Hellenistic notions of ‘freedom’ in these terms: ‘[In writing my provincial edict,] I followed Scaevola in many particulars, among them that by which the Greeks believe their freedom is granted to them, namely, that Greeks may settle disputes between themselves according to their own laws.’16 This is the world of republican empire, where the horizon of political conduct is the crafting of one’s own civil law. Not for naught did Lucius Scipio gloss his grant of freedom to Herakleia by saying (literally), ‘We grant to you your freedom,’ in such a way that you ‘retain for yourselves in all matters the right of citizenly conduct (politeusthai) according to your own laws.’ 4

Conclusion: Domination at Home

Have we therefore resolved the question of whether Scipio Aemilianus spoke of the freedom of the Roman people or the freedom of the individual, when he identified freedom as consequent upon the exercise of public power? So posed, the answer is surely, ‘No’. But I do think the argument that I have laid out points us in the direction of how we should answer a different question, namely, ‘If he did speak of the freedom of Roman citizens, can he truly have meant that only the magistrate was truly free?’ The answer to that question is surely, ‘Yes’. For one thing, we should not forget the long-standing Roman claim that magisterial imperium was simply the power of the kings, subject only to the temporal constraint of one’s term in office and shared with a colleague and 16  Cic. Att. 115.15 SB: multaque sum secutus Scaevolae, in iis illud in quo sibi libertatem censent Graeci datam, ut Graeci inter se disceptent suis legibus. Later in the same paragraph Cicero employs proper diction: the Greeks rejoice to use Greek judges, and believe they have obtain αὐτονομίαν.

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therefore subject to his veto – a veto that never came, but that’s a story for another day.17 Livy and Tacitus – to be sure, authors writing under a republican monarchy – identified the institution of republican republican government with the advent of liberty, but this should not distract us from the problematic with which they were also familiar, namely, that the reconstruction of Roman monarchy had required nothing more and nothing less than the building blocks of republican magistracy. Similarly, when Livy described the danger represented by the return of the Tarquins, he employed the language of deditio in fidem – the languages of domestic and foreign relations interpenetrated one another more than our distinctions would care to tolerate. Or, to put the matter another way, it was ever the risk of republican empire, that the forms of domination that the Roman people exercised over others would come home to roost, in the forms of domination employed by Romans over themselves.18 Finally, the trajectory of Roman freedom over the long term should be understood in light of the long history of Roman citizenship. Here I allude to another work by John Pocock, namely, his remarkable essay on the ideal of citizenship since classical times.19 Pocock contrasted the necessity of political agency to Aristotelian definitions of citizenship with the forms of agency ascribed to citizens in texts of the ius civile of the high imperial period. In short, [F]or the Roman jurist it was altogether different; persons acted upon things, and most of their actions were directly at taking or maintaining possession; it was through these actions, and through the things or possessions which were the subjects of the actions, that they encountered one another and entered into relations [that] might require regulation. The world of things, or res, claimed the status of reality; it was the medium in which human beings lived and through which they formed, regulated and articulated their relations with each other. (39–40) From being kata phusin zoon politikon, the human individual came to be by nature a proprietor or possessor of things; it is in jurisprudence, long before the rise and supremacy of the market, that we should locate the origins of possessive individualism. (40)

17  Sall. Cat. 6.7. See also Livy 2.1.7–8: Libertatis autem originem inde magis quia annuum im­ perium consulare factum est quam quod deminutum quicquam sit ex regia potestate nu­ meres. Omnia iura, omnia insignia primi consules tenuere; id modo cautum est ne, si ambo fasces haberent, duplicatus terror uideretur. 18  Ando 2011, 81–114; Ando 2015, 40–45; and elsewhere. 19  Pocock 1992.

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Roman citizens under the Principate were of course free; they were also, every one of them, subject to the arbitrary will of others. But the jurists had long since declined to name this ‘non-freedom’. Instead, the freedom of the citizen – the conduct of citizenship, the action of one who se pro cive gerere, the limits of what a Roman of the Principate did when he politeusthai – was to conduct intersubjective negotiations over matters of property according to ius civile. This, again, was the world of republican empire.

Bibliography

Ando, C. 2010. “‘A dwelling beyond violence’. On the uses and disadvantages of history for contemporary republicans”, History of Political Thought 31, 183–220. Ando, C. 2011. Law, language and empire in the Roman tradition. Philadelphia. Ando, C. 2015. Roman social imaginaries. Language and thought in contexts of empire. Toronto. Arena, V. 2012. Libertas and the practice of politics in the late Roman Republic. Cambridge. Atkins, J. 2018. Roman political thought. Cambridge. Barney, S.A., W.J. Lewis, J.A. Beach, and O. Berghof, trans. 2006. The Etymologies of Isidore of Seville. Cambridge. Carter, I. 2016. ‘Positive and negative liberty’. Stanford Encyclopedia of Philosophy. https://plato.stanford.edu/archives/sum2018/entries/liberty-positive-negative/. Accessed 4 February 2019. Laborde, C. and J. Maynor (eds). 2008. Republicanism and political theory. Malden and Oxford. Mackie, N. 1992. ‘Popularis ideology and popular politics at Rome in the first century B.C.’, Rheinisches Museum 135, 49–73. Pettit, P. 1997. Republicanism: a theory of freedom and government. Oxford. Pocock, J.G.A. 1992. ‘The ideal of citizenship since classical times’, Queen’s Quarterly 99, 33–55. Pocock, J.G.A. 2003. Barbarism and Religion, vol. 3: The First Decline and Fall. Cambridge. Raaflaub, K.A. 1984. ‘Freiheit in Athen und Rom: ein Beispiel divergierender politischer Begriffsentwicklung in der Antike’, Historische Zeitschrift 238, 529–67. Richardson, J. 2009. The language of empire. Rome and the idea of empire from the third century BC to the second century AD. Cambridge. Tan, J. 2017. Power and public finance at Rome, 264–49 BCE. Oxford. Wallace, R.W. 2009. ‘Personal freedom in Greek democracies, republican Rome, and modern liberal states’, in R.K. Balot (ed). A companion to Greek and Roman Political Thought. Malden and Oxford, 164–77. Wirszubski, Ch. 1950. Libertas as a political idea at Rome during the late Republic and early Principate. Cambridge.

chapter 6

The Notion of Res Publica and Its Conflicting Meanings at the End of the Roman Republic Claudia Moatti Res publica has a long history:1 under the Republic and the Empire it was used to refer to the Roman city as well as to local communities;2 and, in Medieval Ages, the partisans of the Emperor, the communal movement, the Christian community, and the lay local powers all used it too. However, all through these centuries, res publica never designated the Roman Republican period (509–27), nor did it indicate a “Republic” as opposed to a monarchy. It is only in the 15th century that the notion acquired its familiar double connotation, when Leonardo Bruni translated the Aristotelian idea of the best regime, politeia, into respublica, in one word – later translated as Republic or commonwealth.3 Bruni literally invented the “Republican” tradition, even if before him, as Skinner has tried to show, a number of thinkers, like Marsilius of Padova, Bartole di Sassoferrato or the dictatores had already thought about civic liberty.4 Undoubtedly, the modern term “republic” commonly serves to translate ancient texts, but not, however, to understand the nature of the Roman city or the specificity of Latin usage. In fact, the Romans could not say in Latin that they lived in a Republic. They simply did not have a specific term to designate their political regime, even if they said that the expulsion of Tarquinius had given place to libertas;5 and they did not borrow the political vocabulary of the Greeks. Of course, one could well imagine that even if the word Republic did 1  This paper is in part drawn from a book I published in France: Moatti 2018. I want to thank Ramzi Rouighi who reviewed this English version. 2  Festus, sv. Municipium, p. 155 L.: At Servius filius aiebat initio fuisse qui ea conditione cives fuissent, ut semper rem publicam separatim a populo Romano haberent, Cumanos, Acerranos, Atellanos, qui aeque in legione merebant sed dignitates non capiebant. ‘Servius used to say that, at the beginning, the municipes were those who had been cives of such a condition that they always had a respublica separated from the Roman people, like the people of Cumae, Acerra, Atella, who served in the legion but were not entitled to magistracy. See Mancini 1996, 110–11. 3  Leonardo Bruni, Aristotele, Politicorum libri, 1438, lib.III, ch. II: tres esse rerumpublicarum species cunctas, regnum, optimatium et eam quae appellatur respublica. See also Hankins 2010. 4  Skinner 1978. 5  See note 22.

© Claudia Moatti, 2020 | doi:10.1163/9789004441699_008

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not exist, the thing itself existed. However, the issue here is not merely about the application of modern notions onto ancient realities, but also about what is lost when we translate res publica into “republic.” Since languages carry different conceptions of the world and different idealizations, historians could not but pay close attention to linguistic usage and to changes to it. If Republic is not a good translation of res publica (two words), what did the latter refer to, and what does it say about the Romans? What representations did the Latin res bear, and how did various groups and individuals use the notion? In order to answer such question, we need to rethink, we need to undertake a political history of the notion, which would not be the same as a history of ideas, which would privilege the great authors, or as a conceptual history, as Reinhardt Koselleck would put it, since, and this is critical, res publica was not a concept. In order to shed light on these issues, I will begin with a few lexical remarks and then turn to the notion of res. I will then follow with an examination of conflicting descriptions of the res publica and its institutionalization, especially through the leges de maiestate, and, finally, an analysis of the main effect of this process of formalization: the discovery of verticality. 1

Lexical Matters

Written in two separate words all through ancient times, the notion of res publica presents us with several difficulties. First, we have no ancient definition of the notion. In fact, the Latin language did not conceptualize and did not aim to be exhaustive, as if things had to be constantly situated and contextualized. For example, the words senatus or civitas could define a place, a procedure, and individuals, as Verrius Flaccus explained.6 For res publica, however, the sources do not offer us much: Cicero used to say that it was a very vague and indeterminate notion,7 and his own solution was to offer an old 6  Verr. Flacc. ap. Gell.18.7.5: ‘senatum’ dici et pro loco et pro hominibus , ‘civitatem’ et pro loco et oppido et pro iure et quoque omnium et pro hominum multitudine, ‘tribus’ quoque et ‘decurias’ dici et pro loco et pro iure et pro hominibus, ‘contionem’ autem tria significare: locum suggestumque […] coetum populum adsistentis […], oratio (‘Senatus’ means the place and the men; ‘civitas’ the place and its fortification, the right of citizenship, and the multitude of the inhabitants; ‘tribus’ and ‘decuria’ the place, the status, and the people; ‘contio’ has three meanings: the place, the speech, and the tribunal from which a speech is delivered’). 7  Cic. De or. 2.67: Sed si illam quoque partem quaestionum oratori volumus adiungere vagam et liberam et late patentem, ut [….] de re publica, adsumamus eam quoque partem, sed ita, ut sit circumscripta modicis regionibus (‘But if we are disposed to assign to the orator those sorts of questions, which are also undefined, unsettled, and broad […], such as res publica, let us take

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syntagm ‘res publica est res populi’, and a tautology ‘res […] est res […]’ which is not much help.8 Second, we do not know when the locution first appeared. For the Romans of the first century, there was no doubt that their res publica was born with the birth of the city itself. But the most ancient evidence – the formula used by the praeco to gather citizens for the census and the formula of the devotio ducis –, goes back only to the 4th century. Varro Ling. 6.86: Quod bonum fortunatum felix salutare siet populo Romano Quiritium, rei publicae populi Romani Quiritium … (‘Good fortune, happiness and long life to the Roman people of the Quirites, and to the res publica of the Roman people of the Quirites, etc …’). Livy 8.9.4: … Sicut verbis nuncupavi, ita pro re publica Quiritium [pro] exercitu, legionibus, auxiliis populi romani Quiritium, legiones auxilia hostium mecum diis Manibus Tellurique devoveo (‘In like manner as I have uttered this prayer so do I now, on behalf of the res publica of the Roman people of the Quirites, of the army, the legions, the auxiliaries of the Roman People of the Quirites, devote the legions and auxiliaries of the enemy, together with myself, to the Divine Manes and to Earth’). In these two texts, res publica is linked to populus. Is that a reflection of fourth-century social reforms, which led to the unification of the populus? In any case, the articulation populus/publica deserves some attention. Whatever may be the etymology of populus, the word defines the active part of the citizens, i.e. men of an age to serve men in the Roman army; publicus has the same origin as pubes, which defines the boy whose father publicly declares capable of entering public life because he is of reproductive age. From war to sexuality, Latin reflects the gendered character of the public and thus of any res publica. In public space, masculinity was autonomous and femininity absent. The third difficulty is the uncertainty of the notion. Undoubtedly, the language of politics is never fixed or clear – think of democracy, people, or liberty. It is open to interpretation and that is precisely where politics lies.9 However, for res publica, that is not the only problem. For instance, what did it mean to upon ourselves those sorts of subjects also, but so that they be circumscribed by moderate limits’). 8  The purpose of this article is not to analyse Cicero’s definition although I will make a few remarks about it at the end. Note that res populi can be found in Plautus, Poenulus 524–5 (in re populi pacata). 9  We must thus take into account a plurality of viewpoints, and look at who is speaking, with what purpose, from what position in society, in what context, etc. Lexical continuity, conversely, hides this plurality, and thus the historicity of the notion.

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refer to a ‘public thing’, sometimes reduced to a single word, res, ‘the thing’?10 And what did res even mean? 2

Res, a Little Roman Word

Unlike other words (like table, shoe or even politeia and democracy), res has no explicit or a priori referent and can be used to describe a great number of realities. Res is similar to deus: it is a signifier without any precise signified, or, a ‘floating signified’, to borrow from Claude Levi-Straus. When the Romans alluded to the totality of the human world, to the undetermined world of human action, they used the expression res divinae et humanae, with res divinae referring to the totality of the forms invented by humans to venerate the gods. In the same way, mos maiorum expressed without details the traditions and values of the past without specifying which ones. The Greeks had no word to translate res; most of the time they used the neutral plural to describe the plurality of the world – for instance, res publica was translated as ta dèmosia pragmata or ta koina.11 On the opposite, the Romans used the singular, res, to capture the general whole – it was the same with legal categories such as peculium and hereditas: their existence lay in their status of envelope, which sometimes approximated a semantic vacuum. I call “kenotic” such a category, whose content varied according to experience: res publica could indeed define either the totality of the public, or one element only (the army, the aerarium, the cults, etc.), or it could even be a mere symbol. The most important was that, beyond this variability, the res remained (or seemed to remain) identical to itself. This specificity of the notion explains the perplexity of the moderns, who never know what translation to use: republic, state, affairs, or commonwealth. 10  Praising the city of Cameria, Cato the Censor said: ‘The citizens of Cameria have a beautiful town (oppidum), a wonderful territory (ager) and a rem fortunatissimam.’ (ORF4, I.56: Dissuasio legis Iuniae de feneratione (191 or 190), ap. Festus, sv. prorsus, p. 268, 7 L). We find evidence of this reduction of res publica to res until the end of antiquity. We can see this in Tertullian, De pallio, 5.4: ‘we have to live for our fatherland (patriae), our empire (imperio) and our res (rei)’; and in Augustine, Civ. Dei 19.24: ‘if a people is just, he forms a populus and his res is a res publica.’ 11  Ta dèmosia pragmata would have translated better negotia publica (on the distinction between res publica and negotia publica, see especially Fronto, ad M. Antoninum, de eloquentia 1.5). There were other translations of res publica: politeia, politeuma, to koinon. None captures the whole meaning of res.

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Res, and this is also true for res publica, could be the object of knowledge or power (pontifices, Roman jurists, philosophers were all described as experts in res divinae et humanae), they were objects of debate or action, but never subjects. For a res to acquire a precise signification, individuals needed to look at it, talk about it, or act on it; they needed to interact in relation to it. It is tempting to follow Heidegger, according to whom the word res came from the Greek eirô, which means ‘to talk about something’. In this case, res would be what people talk about or debate.12 This interpretation would be confirmed by the original meaning of res. In the oldest texts, res belonged to the judicial language, and in fact, the term reus, “the accused person”, was thought to be derived from res.13 If this etymology may seem suspicious, sources actually confirm that res (the affair) formed a kind of tryptic with lis (trial) and causa (the legal definition of the affair), according to the testimony of the XII tables.14 Res was the affair which had to be qualified, and about which there was a deliberation: de ea re qua agitur means, in the Roman legal and jurisprudential sources, ‘about the affair in question’.15 It was the same in the public sphere. The senatus-consultum de Bacchanalibus (186 BC) aimed at limiting and controlling the development of the cult of Bacchus in Italy, and used res to define the whole affair, which was the purpose of the senatorial decree (ea res cosoleretur), of the conflict opposing Rome to the initiates of Bacchus, of the inquiry of the consuls and their repression.16 12  Heidegger 1953, p. 207. This idea is not discussed by Ernout-Meillet 1951, 24. 13  Cic., De or. 2.41.183: Reos autem appello non eos modo qui arguuntur sed omnis, quorum de re disceptatur, sic enim olim loquebantur; 2.79.321: reos appello, quorum res est. See also Varro, Ling. 7, 93: There was a trial (lis) when there was a controversy on a thing (quibus res erat in controversia). 14  X II Tables I, 6–8 (FIRA, I, 21 ff): 6-REM UBI PACUNT, ORATO (Auct. ad Her., 2.13.20; Scaur., Orthogr., 2253; Prisc., Inst. gramm., 10, 5, 32; Fest., 199): When the parties agree on the matter the magistrate shall announce it.7.–NI PACUNT, IN COMITIO AUT IN FORO ANTE MERIDIEM CAUSSAM COICIUNTO. COM PERORANTO AMBO PRAESENTES (Auct. ad Her., 2, 13, 20; Gell., 17, 2, 10; Scaur., Orthogr., 2253; Quint., 1, 6, 11; Gaius, 4, 15). If they do not agree, the parties shall state their case before the assembly in the meeting place or before the magistrate in the market place before noon. Both parties being present shall plead the case together. 8.–POST MERIDIEM PRAESENTI LITEM ADDICITO (Gell., 17, 2, 10; Plin., NH. 7, 60, 212; Censorin., De die nat., 23). If one of the parties does not appear, the magistrate shall adjudicate the case, after noon, in favour of the one present. See also Magdelain 1990, 666–67. 15  For example, Dig. 42.8, 10, Ulp. lib.73 ad edictum. 16   F IRA, I, 240, n.30: Bacas uir nequis adiese uelet ceiuis Romanus neue nominus Latini neue socium | quisquam, nisei pr(aitorem) urbanum adiesent, isque [d]e senatuos sententias , dum ne | minus senatoribus C adesent quom ea res cosoloretur, iousisent. Ce[n]suere (‘No Roman citizen or man of Latin rights or anyone of the allies shall associate with the Bacchae, unless they have appeared before the urban praetor and he has given

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In this way, a res did not have any objective existence: it existed precisely as the object of interactions between different actors. We can easily understand how, beginning in the 3rd century BC, res came to designate, by extension, the asset about which there was a trial.17 But the asset was only the corpus of the affair, and the same word res referred to both, the litigious situation and, by extension, the asset in dispute.18 The same sense can be found in das Ding in German, which comes from the Saxon word Thing, which meant at the same time a judicial controversy, an affair and a place to discuss. If we apply these insights to res publica, we can deduce that the notion designated the world of affairs that citizens had in common or about which they had debates. Its content varied without it being necessary to list it: it is why res publica was indeed incomplete, open, and to be defined in context, case by case. Debate, litigation, and interaction: the judicial space appears in Rome as the matrix of politics. This has two important consequences: conflicts were recognized as a part of the process of socialization; and citizenship had a performative character. This analysis confirms Benveniste’s opposition between the Greek linguistic model of derivation, polis > politès, and the Latin one, civis > civitas.19 In Latin, the city did not preexist citizens; and we could add: the power to act came before the definition of a ius civitatis – since civitas meant both the city and the right to citizenship.20 Community was really based on action before being based on a pre-defined ius. permission, in accordance with the opinion of the Senate, delivered while not less than 100 senators were present when the matter was discussed’). 17  It is only in the 3rd century, according to Yan Thomas, or the 2nd century according to Mario Bretone, that the material goods, first known as familia pecuniaque, are unified as res: hence the material meaning of res privata, res familiaris (Bretone 1998, 41; Thomas, 2011, 423). Under the Principate, res fisci (Dig. 20.3), res civitatis (Dig. 48.13) or, later, res privata, will define the property of the fiscus, a city or the prince. 18  In an excellent article (1995), John Pocock made a distinction between Greek and Roman citizenships: Greek citizenship (he meant its Aristotelian definition) was membership in a political frame of action, where ‘political action is a good in itself and not instrumental to goods beyond it’; referring on the other hand to the three levels of private law as stated in Gaius (Instit. 1.8), personae, res, actiones, he asserted that for the Romans ‘citizenship has become a legal status, carrying with it rights to certain things–perhaps possessions, perhaps immunities, perhaps expectations’. However, this distinction takes only into account the most recent and material sense of res. In his monumental history of the Roman constitution, F. De Martino also wrongly defined res publica as “the patrimony of the people” (1972, 495), without historicising his definition. 19  Benveniste 1974. 20  Hence the possibility in Roman law to use fiction to resolve problems between Romans and foreigners: the non-Romans were given, during the time of the procedure, the same power to act as the Romans. Fiction was based on this open definition of the “thing” and on the importance of action in the Roman conception of citizenship.

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A fragment from Cato the Elder helps to better discern this idea of community: libertate, iure, re publica communiter uti oportet; gloria atque honore quo modo sibi quisque struxit. ‘We have to practice in common freedom, law and res publica, but glory and honors according to the way each of us has acquired them.”21 Beyond noticing the lexical constellation ius, lex, libertas, res publica,22 we can remark that what was in common for Cato was not goods or assets, but experiences, procedures, and legal actions. The practice of common affairs (communiter uti), clearly suggests a functional definition of the res publica. We may conclude that, unlike civitas, res publica does not refer to the territory, and that unlike populus it was not the collectivity of citizens. Res publica was the community of experiences and procedures (uti), the living community of citizens who debate, interact, and are in conflict. The same idea of experience can be found in a passage from the jurist Gaius that defined the expression corpus habere (which designated the status of an official corporation). The text also testifies to an important change: Dig. 3.4.1.1 (Gaius, lib.3 ad edictum provinciale): Quibus autem permissum est corpus habere […], proprium est ad exemplum rei publicae habere res communes, arcam communem et actorem sive syndicum, per quem tamquam in re publica, quod communiter agi fierique oporteat, agatur fiat.

21  A  p. Festus, sv. struere, 408 L. 22  Res publica belonged to several constellations (associated to populus and also to civitas, or, under the Empire, to imperium/orbis/genus humanum), but was often linked to lex, or ius, as we still see in Late Antiquity (e.g. Oros. Adv. Pag., 7.43.6: leges sine quibus res publica non est res publica (‘the laws without which there is no res publica’); or in Justinian, de codice confirmando, 1: Summa rei publicae tuitio de stirpe duarum rerum, armorum atque legum veniens (‘The very high protection of the res publica comes from two things, arms and laws’). The connection with freedom is more problematic. What freedom is this? Was it that of the people or that of the elite? Did it refer to the emancipation from any domination or to political rights? The expressions libera civitas or res publica libera that we find in the Republican sources (Caes., BG. 8.52.5; Cic., Rab. Post. 22 for example) referred to the first idea: they defined a city free from any form of domination, external as internal, whatever its political regime was. Cicero applied this notion even to the royal period (Cic., De dom. 13; Leg. Agr. 2.14), and stated that that Rome had always been a free state, where citizens were protected; however, in the pro Milone, he recognized that the Roman city had not been free under the kings (Cic., Mil. 5: nondum libera civitate). It is only under the Principate (in Livy or Velleius) that the expression res publica libera was used to designate the Republican period. On libertas, see Arena 2012

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Those permitted to form a corporate body […] have the right on the pattern of a res publica to have common property, a common treasury, and an attorney or syndic through whom, as in a res publica, that which should be transacted and done in common is transacted and done. Communiter agi here also refers to the community of actions, mainly in a judicial context. However, the emphasis on ownership, public treasury, and actor (the equivalent of res publicae, aerarium and the government in a res publica) shows a significant change in the concept of the res publica, on which I would now like to focus. 3

The Two Descriptions of the Res Publica

This notion of res publica that I define as open, flexible, kenotic was in fact progressively formalized and delimited at the end of the Republic. It was not a conscious process but a violent response from a part of the elite to the political and social crisis, the expression of their refusal of reforms, of their fear of conflicts. Such an attitude led to the rejection of a part of the reformers, deemed seditious, outside the res publica. The passage from conflict to rejection, to use George Simmel’s distinction, is at the core of the process of formalization. We can analyze it in multiple ways, by studying how res publica became the object of discourses, theories, debates, or changes in practices. Here I will focus on two aspects: the change in the description of the res publica and the emergence of the question of sedition. Let’s start with a definition of Quintilian: Inst. Orat. 5.10.63: Diuisione autem adiuuari finitionem docet, eamque differre a partitione quod haec sit totius in partis, illa generis in formas. Partis incertas esse, ut ‘quibus constet res publica’, formas certas, ut ‘quot sint species rerum publicarum’, quas tris accepimus: quae populi, quae paucorum, quae unius potestate regerentur. Cicero further shows that definition is assisted by division, which he distinguishes from partition, making the latter the dissection of a whole into its parts and the former the division of a genus into its forms or species. The number of parts he regards as being uncertain, as for instance the elements of which a state consists; the forms or species are, however, certain, as for instance the number of forms of government, which we are told are three, democracy, oligarchy, and monarchy.

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The most ancient description of a res publica was, in fact, based on partes. This kind of definition associated social and political elements: the Senate, the magistrates, the people, but also the priests, the army, the allies, the public treasury, etc. The list depended, as we already explained, on context. The characteristic of this kind of description is that the enumeration was never exhaustive. The second model was based on the Greek conception of political regimes (politeia) and appeared in Rome in the second century, with the Polybian theory of the mixed constitution. Modern historians have tended to discuss this theory in order to understand how far it indeed applied to the Roman reality. But it’s also important to ask what the point of this theory was and why it was so well received by the Roman elite. The comparison with the previous model helps to respond to these questions. In the first model, the multiple power relations determine the nature of the res publica; in the Polybian one, the forma, laid down first, determines its working: the elements, only three, the Senate, the popular assemblies, the two consuls, are defined in relation to the whole, whose unity is postulated. We find here the Aristotelian model of a composed body, whose identity comes from the way it is composed, and not from its elements, so that if the composition changes, the nature of the thing changes. The most important point is then the permanence of the structure. Polybius uses the word systema (6.10.13) and Quintilian explains that forms are fixed ( formas certas) while the definition of partes is never complete nor a priori defined (partes incertas). In these two configurations, partes and forma, the place of conflict could not be the same either. In the first one, conflict was part of the political game. It was somehow the plurality that was the organizing nexus of the world’s political vision, and this is also how Caesar interpreted his relation to the senators in the 50s. It was also the meaning of the sentence attributed to him by Suetonius and according to which the res publica was ‘just a word, without a body nor an appearance.’23 For him, res publica did not exist separately from the citizens; it did not form a body, a pre-defined entity. In the second configuration, on the contrary, the harmony came from the rational and mechanistic play between the three elements, while the conflict threatened the very identity of the state, because it changed its structure. As Polybius wrote: in this constitution ‘everyone stays in his place’ (6.18.8); and Cicero also insisted on the fact that the mixed constitution, the best regime, aimed at putting an end to conflicts (Rep. 2.17.32). It seems that in the second century, a part of the senatorial elite clearly sought to stabilize the res publica, 23  Suet., Div. Iul. 77: Nihil esse rem publicam, appellationem modo sine corpore ac specie.

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to control it, and, under the pretext of achieving this concordia potestatum as Cicero will say (Leg. Agr. 2.6.14), to limit the number of possible changes. The mixed constitution was the perfect theory for that, with its idea of unification and rationalization. We can better understand now, why sedition and the issue of the minutio maiestatis had such an importance in the history of the res publica and in its institutionalization. 4

The Institutionalization of the Res Publica

It is first the status of public land and property (does it belong to the res publica or to the citizens, is it alienable or not? and who decides that?), and then the related question of public order that determined this evolution. To summarize, the defense of the res publica was first seen as an exception in the name of which violence was used at the detriment of the laws, and eventually it became a norm of action through the creation of penal laws (among which were the de maiestate laws of the first century). The debate around Tiberius Gracchus’ death and then that around the senatus-consultum so called ultimum voted against Caius ‘for the res publica to suffer no harm (ne quid res publica detrimentum capiat)’, emphasize the fact that the notion of defense of the res publica did not yet belong to the normative space. There was of course the perduellio – translated as “crime of high treason,” which mainly concerned military affairs, the conduct of a magistrate unworthy of his office, or an attack on a plebeian tribune. However, the crimes had no unitary definition: only the procedure before the people, at the initiative of a tribune of the plebs, unified them.24 On the contrary, the measures against the Gracchi came from the Senate in the name of the unity and integrity of the res publica. And that was new. This is why those who defended the legality of the senatus-consultum ultimum invoked an extra-legal argument, self-defense, as Cicero explained in the pro Milone (3.8), and those who opposed it questioned the legality of a senatorial decision taken in contradiction with the judicial laws de capite civium and more generally with the sovereignty of the people.25 24  Madgelain 1990, 539–65. 25  Sall., Cat. 9: [In this kind of SC, the Senate gave the magistrates] ‘the absolute power (potestas maxima) to raise an army, wage war, coerce by all means the allies and citizens, have command and supreme judgment in Rome and outside; in other circumstances (aliter), without the order of the people (sine populi iussu) one cannot obtain any of these rights (ius)’.

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It was on this point that Lucius Opimius, one of the consuls of 121 responsible for the death of Caius Gracchus and his supporters, was brought to justice in 120, by the tribune of the plebs Quintus Decius. Opimius’ defenders argued that Caius Gracchus had been rightly killed (iure) ‘for the salvation of the country (pro salute patriae)’. To which the Gracchi’s supporters objected, according to Cicero, that it was not legal (not iure) to kill a citizen without trial. More precisely, Cicero explains, the trial focused on the question of ‘whether it was permissible to kill an opponent on the basis of a senatus-consultum in order to save the res publica (rei publicae causa)’, or even ‘whether it was right (recte) to kill without judgment (indemnatum) a citizen destroying his city (civem eversorem civitatis) in the name of the salvation of the res publica (rei publicae causa)’.26 The opposition recte/iure translates exactly the one between exception and norm, and refers to two temporalities of political action: the norm (iure) refers to the past of the law, to the respect of formal procedures, while the exception (recte) refers to the present good, the just cause. Here, the just cause was the salus rei publicae, set up as a principle against which the lives of certain citizens were worthless.27 This opposition became a commonplace under the Empire, and can be found in the case law concerning the private responsibility of a magistrate and the limits of his good administration. For the jurist Paul, in the 3rd century, a magistrate could commit an unjust act (iniuria) if he did so for the respect of the res publica (rei publicae venerandae causa).28 Just as an iniuria atrox was committed against a magistrate, so, one might say, an iniuria recta, an injustice with a just cause, was committed in the name of the State’s interest.

26  Cic., De or. 2.132: Veniet igitur in iudicium licueritne ex senatus consulto servandae rei publicae causa; Cic., Part. Orat. 30.106: potueritne recte salutis rei publicae causa civem eversorem civitatis indemnatum necare? 27  In this context, res publica was reduced to the reduced government–the Senate and the magistrates, without the people. And this is probably how res publica ended up being defined when it came to thinking about it in its purity. A law on public violence, the lex Lutatia ‘ordered that the trial of sedition and perverts who, with weapons in their hands, dared to besiege the Senate, the magistrates, attacked the res publica, be investigated every day without distinction’ (Cic., Cael. 1.1). No reference here to the populus. 28  Dig. 47.10.33, Paul. lib.10 ad Sabinum: Quod rei publicae venerandae causa secundum bonos mores fit, etiamsi ad contumeliam alicuius pertinet, quia tamen non ea mente magistratus facit, ut iniuriam faciat, sed ad vindictam maiestatis publicae respiciat, actione iniuriarum non tenetur. Cf. Dig. 4.2.3, Ulp. lib. 11 ad edict.: sed vim accipimus atrocem et eam qua adversus bonos mores fiat, non eam quam magistratus recte intulit, scilicet et iure licito et iure honoris quem sustinet.

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The notion of res publica to which all these texts refer has no longer anything to do with the old idea of a community of affairs. Res publica has become an unalterable entity, existing separately from citizens. In this regard, the word detrimentum, contained in the senatus-consultum ultimum (scu), and which we banally translated as ‘damage,’ is very interesting. It is a very rare word, which refers to a physical deterioration, a loss of substance. These ideas of unity and substance also underlay all the procedures put in place against the seditious, until their expulsion from the civic body – a body from which the sick members must be torn off to restore its integrity. This did not mean that the optimates denied the centrality of the law enshrined in Roman constitutional practice, or the role of the people gathered in assemblies. From then on, they just operated on a two-tier regime: one regular, where the law prevailed, the other exceptional, where a senatus-consultum alone could solve problems in the name of the res publica, whether it was a scu, or the invalidation of laws accused of having been voted adversus rem publicam or the charge of acting contra rem publicam. Two logics thus existed: one concerning the citizens, the other the res publica, of which the Senate set itself as a defender. There is thus a triple tension in the Gracchan affair: between the Senate and the people, between the senatus-consultum and the lex, and between two ideas of res publica – the community of affairs: and this entity above the citizens. Let us return to the recte/iure opposition and the defense of res publica in the name of a just cause. It is precisely to this exception expressed by recte and to the invocation of the detrimentum rei publicae that the lex Appuleia de minutione maiestatis populi of 103 or 100 responded. This law poses many problems. First, why was a law necessary when the perduellio could have been used, even more since Lucius Appuleius Saturninus was tribune? To this question, several answers are possible. One answer is that the perduellio seemed to be an archaic procedure (the punishment of suspension and flagellation was very cruel). Another one is that the comitial procedure had already regressed since new judicial procedures (quaestiones) had been created for other public crimes. In fact, the lex Appuleia also set up a specific court of law, a quaestio, whose jury of knights also aimed at thwarting the control that the senatorial oligarchy had on justice.29 A second set of problems concerns the definition of populus and maiestas. Did the law refer to the

29  D’Aloja 2011, 231–32.

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majesty of the sovereign state or that of the political people of the assemblies?30 And what did it mean to reduce its majesty?31 By placing it in its ideological context, however, it seems clear that the law was a reaction to the senatus-consultum ultimum. Reacting to the call to arms by the Senate ‘so that the res publica does not suffer any diminution (detrimentum)’, the populares countered with a decision of the people so that the majesty of the Populus Romanus was not diminished. It has never been noticed that the two expressions, detrimentum (rei publicae) and minutio (maiestatis populi romani) responded to each other. Both stemmed from the same idea of diminution, unbearable in a society that made growth (of goods, territory, and civic body) the condition of its continuity; and both posed the existence of a substantial and unbreakable entity (res publica in one case, the populus in the other). The lex Appuleia was so vague, however, that it was used by the populares as well as by the optimates. The popularis tribune of the plebs Saturninus accused of lese-majesty Q. Servilius Caepio the Younger for having prevented the vote of his frumentarian law and for having violated the right to vote of the people and tribunician power; on the other hand, the optimate faction brought de maiestate trials against tribunes of the plebs considered seditious. A text from the Rhetoric to Herennius, referring to Caepio’s trial, offers a valuable record of this controversy (2.12.17): “Maiestatem is minuit, qui ea tollit, ex quibus rebus ciuitatis amplitudo constat. Quae sunt ea, Q. Caepio? Suffragia, magistratus. Nempe igitur tu et populum suffragio et magistratum consilio priuasti, cum pontes disturbasti.” Item ex contrario: “Maiestatem is minuit, qui amplitudinem ciuitatis detrimento aerarium enim conseruaui, libidini malorum restiti, maiestatem omnem interire non passus sum”. 30  See Ferrary 1983. 31   Maiestas was first a quality, a dignity. According to Thomas 1991, it was originally the privilege of the magistracy; in the 3rd century, it became the attribute of the People in relation to the magistrates, and in the second century the quality of the city itself in relation to other cities, as evidenced by the treaty with the Aetolians. In all these cases, maiestas was seen as the expression of a “relative” superiority, which makes Y. Thomas assert that the Romans did not know the modern notion of sovereignty. However, we must make a distinction between maiestas as a quality which, in fact, applied to many other realities (res divinae, the Senate, eventually the princeps, the domus Augusta, etc.: see D’Aloja 2011), and the notion of majesty included in the crimen maiestatis, which was an absolute, to be protected by the law.

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“He impairs the sovereign majesty of the state who destroys the elements constituting its dignity. What are these, Quintus Caepio? The suffrage of the people and the magistracies. No doubt, then, in demolishing the bridges of the Comitium, you have deprived the people of their suffrage and the magistracy”. Likewise, in response: “He impairs the sovereign majesty of the state who inflicts damage upon its dignity. I have not inflicted, but rather prevented, damage, for I have saved the Treasury, resisted the license of wicked men, and kept the majesty of the state from perishing utterly”. Saturninus’ supporters were therefore defending the political rights of the people, its political participation, while his opponents accused the tribune of having violated the res publica by passing a law that would ruin it. As this text shows, Q. Servilius Caepio even tried to draw the notion of minutio towards the idea of detrimentum, thus placing at the heart of the trial not the people of the assemblies, but the legal people and the res publica. The same shift is evidenced in the de maiestate trial of the popularis Norbanus (between 97 and 91), who was accused of sedition ‘in the name of the res publica (pro re publica)’; and in the senatus-consultum ultimum against Saturninus and his accomplice Glaucia in 100, which included the notion of maiestas populi Romani, but in the legal and traditional sense of ‘State sovereignty’: Cic., Rab.perd. 7.20: Fit senatus consultum ut C – Marius L – Valerius consules adhiberent tribunos pl. et praetores, quos eis uideretur, operamque darent ut imperium populi Romani maiestasque conseruaretur. Adhibent omnis tribunos pl. praeter Saturninum, {praetores} praeter Glauciam; qui rem publicam saluam esse uellent, arma capere et se sequi iubent. A resolution of the Senate is passed, that Caius Marius and Lucius Valerius, the consuls, shall employ the tribunes of the people and the praetors as they see fit; and shall take care that the empire and majesty of the Roman people be preserved. They do employ all the tribunes of the people except Saturninus, and all the praetors except Glaucia; they bid everyone who desires the safety of the republic to take arms and to follow them. To sum up: if Saturninus had, in his law de maiestate, opposed to the detrimentum rei publicae the minutio maiestatis populi in order to defend popular sovereignty, the optimates took up the defense of the majesty of the people, but changed its meaning, or rather referred to the old meaning (as shown by the

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association between imperium and maiestas). For them, it was the unity and integrity of the res publica that was in danger under the laws of the popularis, those laws that had led the multitude to violence, and it was the legal people whose superiority had to be preserved over all. Hence the call to arms, as in the case of an external war, and the unity of all magistrates against Saturninus and Glaucia. By turning the accusation against the populares32 and by linking it to the question of sedition, the senators imposed a unique and definitive meaning on the notion of maiestas: the majesty of the legal people and of the res publica. A few years later, Sulla confirmed this interpretation. The popular conception of majesty disappeared from the scope of the law. The lex Cornelia de maiestate was an attempt to give to the defence of the res publica a normative status and to stabilize the notion of maiestas populi, here interpreted as maiestas rei publicae.33 The law gathered all the violations against the public authority, from the outside or the inside, for example the attack on the tribunician power (maiestas tribuniciae potestatis), which later made it possible to accuse the populares who did not take into account the intercession of a tribune of the plebs most often requested by the Senate. The law also targeted a magistrate or senator who took the lead in a military or popular sedition; a conspiracy;34 and the abuse of power in the management of a provincial government, which according to Cicero was described as an attack on the ‘majesty of the res publica’ or ‘the law of the empire (ius imperii)’.35 The fact of gathering under the same name different crimes allowed defining a state crime in a unitary manner;36 this made it possible to impose the same treatment on all criminals (the expulsion from the city), and to display after the civil war and the proscriptions the message that conflict resolution was once again being achieved through judicial procedures. The res publica was thus restored on a new basis. 32  In 98 against two tribunes of the plebs of 99 (Sextus Titius et Caius Appuleius Decianus), one of whom had kept a bust of Saturninus in his house, the other publicly regretted his death (Schol. Bobb. 94 St.; see Gruen 1966, 34–35), and then against Norbanus (De orat. II. 99). 33  The expression maiestas rei publicae was probably included in this law, as suggested by the Rhetoric to Herennius 4.25 (Maiestas rei publicae est, in qua continetur dignitas et amplitudo ciuitatis), and by Cicero, according to whom maiestas consisted in imperii atque nominis populi Romani dignitate (Cic., Part. Or. 30). 34  Cic., Cluent. 97; 99–100; Cic., Dom. 41; Vat. 27 ; Cael. 15.
6. 35  Cic., Verr. 2.5.50. The control of the governors probably was one of the goals of the law (Rogers 1951). 36  Cic., De or. 2.107; and Ferrary 1983, 558; 2007.

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Sulla thus followed the use that the optimates had made of Saturninus’ law, while he gave his name to another law, specified the crimes, and had the quaestio placed under a jury of senators. In this interpretation, where res publica, populus, imperium belonged to the same lexical constellation, that of public power, the reduction of majesty clearly concerned both the legal community, Rome’s sovereign position in the world and the res publica’s internal defense against subversive actions. External hegemony and internal domination over the seditious found their legislative text there.37 At the end of the Republic, Caesar also took measures in the field of majesty during his dictatorships (in 47 or 46) although it is not known whether it was a specific law or clauses contained in a more general law on public trials (the lex iudiciorum publicorum), as Mommsen thought. In any case, according to Cicero’s testimony in the Philippics, Caesar’s law punished the criminal by the loss of citizenship (aqua et igni interdictio) and probably also by the deprivation of property. After the dictator’s death, Mark Antony tried in vain to have the right to appeal to the assembly of the people (the provocatio ad populum) recognized in this kind of trial. The text of the law contained in Digest 48, 4 and referred as the lex Iulia de maiestate is however, more surely, the text of the Augustan law, whose date is also under debate.38 It has come down to us in a long quotation from Ulpian and in some fragments from other jurists of the third century AD. J.D. Cloud gave a philological analysis of the text to show how Augustan it was, but also how far it reflected the language of the end of the Republic.39 I would like here to focus only on a few formulas that have not been commented until now. Dig. 48.4 (Ulp. lib. 8 Disputat.) ‘The crime of treason is that which is committed adversus Populum Romanum or against their safety. He is liable, by whose agency a plan is formed with malicious intent to kill hostages without the command of the emperor; the one by whom men are armed with weapons or stones, or assembled within the city adversus rem 37  The elimination of popular interpretation deprived populares of an important tool for struggle. This may be one of the reasons for the use of the old perduellio in the Rabirius trial in 63. 38  On the lex Iulia de maiestate, see Tac., Ann. 1.72.2: nam legem maiestatis reduxerat, cui nomen apud ueteres idem, sed alia in iudicium ueniebant, si quis proditione exercitum aut plebem seditionibus, denique male gesta re publica maiestatem populi Romani minuisset. According to Bauman 1967, 272 this law dated from the first or the second decade of the Principate (for a discussion, see Santalucia 1998). Then the law was later extended, either by a s.c. in AD 8 (Bauman 1974, 1), or by a law (Koesterman 1955, 77) to the impietas against the princeps or against a person of high rank (Tac., Ann. 1.72.3). 39  Cloud 1963.

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publicam, or occupy with them places or temples; by whom is formed an assembly or a gathering calling for seditious purposes; by whose agency a plan is formed with malicious intent to kill the magistrate of the Roman people or anyone holding imperium or potestas; the one who asked people to bear arms contra rem publicam; or who sent a messenger to the enemies of the Roman people, or gives them a password, or does anything with malicious intent whereby the enemies of the Roman people may be helped with his counsel against the state (adversus rem publicam); or who persuades or incites troops to make a sedition or tumultus adversus rem publicam’.40 This text of the lex Iulia de maiestate reflects the convergence between all attacks on res publica: the notion of war lumps all enemies in the same category. As in the lex Cornelia, the main targets are the leaders of an armed rebellion, and in particular those “at the instigation of whom (consilio)” men have been armed. But another detail needs to be emphasized: the law carries two similar phrases, adversus rem publicam/contra rem publicam. The first was used against Saturninus in 100 and then integrated into the lex Cornelia; the second was part of the senatorial language during the first century BC, to designate actions deemed contrary to the interests of the res publica. This was the case, for example, in December 63 against Catiline’s partisans who were for this very reason imprisoned and then slaughtered on the spot without trial. This senatorial language was that of a state of emergency, not of legality. It is still this language of exception that Cicero will use after Caesar’s death to justify the illegal actions of tyrannicides. Augustus’ law thus seems to offer a synthesis of all previous legislative or senatorial measures. It appears not only thematically but formally as the culmination of a long process of normalizing the defense of the res publica, and as the sedimentation of its various forms (hence the almost chronological reference to the populus, the res publica, and in other passages of the Digest, to the princeps). 40  Translation Alan Watson 2009, with some modification.1. Maiestatis autem crimen illud est, quod adversus populum Romanum vel adversus securitatem eius committitur. Quo tenetur is, cuius opera dolo malo consilium initum erit, quo obsides iniussu principis interciderent: quo armati homines cum telis lapidibusve in urbe sint conveniantve adversus rem publicam, locave occupentur vel templa, quove coetus conventusve fiat hominesve ad seditionem convocentur: cuiusve opera consilio malo consilium initum erit, quo quis magistratus populi Romani quive imperium potestatemve habet occidatur: quove quis contra rem publicam arma ferat: quive hostibus populi Romani nuntium litterasve miserit signumve dederit feceritve dolo malo, quo hostes populi Romani consilio iuventur adversus rem publicam: quive milites sollicitaverit concitaveritve, quo seditio tumultusve adversus rem publicam fiat.

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Undoubtedly, under the Principate, the crimen maiestatis always kept exceptional features (Augustus for example authorized the torture of slaves against their master in this context).41 However, a major step had been taken between the death of Tiberius Gracchus and the Augustan law: it was the entry of exceptional measures into a text that somehow legalized them and provided them with judicial settlement. With the lex Cornelia and the lex Iulia, the exception defended by the Senate against the Gracchi became a positive norm, while res publica acquired, so to speak, a vertical position. 5

The Discovery of Verticality

At the heart of any reflection on public affairs, there are fundamental questions: what makes a community? What constitutes unity? And how to find a norm for the actions of individuals? During the last century of the Republic, the Romans did not agree on any of these questions. Could unity be achieved only through political conflict and did it require the consensus of all involved? Should the norm be external to the action of individuals or could it be just the result of the action of the citizens? The novelty was the discovery of a transcendent principle, which was able to stabilize the city: res publica, sometimes named the summa res, the highest affair, located above the citizens and embodied in discursive or even monetary allegories. What I mean by ‘the process of formalization’ is precisely the legal construction of the res publica as a norm of action, as the public authority. This conclusion helps us better discern Cicero’s conceptualization, which participated in this development. It is precisely because he was in search of a vertical and external principle that he came to define the res publica as an abstraction above the people, and to base the law on the principles of natural law. He established there a double verticality that was to be a rampart against tyranny and that allowed him also to defend the senatus-consultum ultimum. In fact, it was an announced reinforcement of conservatism, even authoritarianism, which would take peace and security under the authority of the princeps as its slogan. We understand better also the Augustan insistence on the restoration of the res publica. What was to be restored was not a Republic but the continuity of the State, of the public authority in all its aspects, including its materiality, which became the object of a broad juristic interpretation.42 This is the 41  On these exceptional features, see Thomas 1991. 42  Moatti 2018, 299–348.

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strength of the acronym SPQR, which I have been able to show from material sources, inscriptions and coins, that it was an Augustan invention, the final phase in the formalization of the res publica.43 All this sheds light on the importance of the link between res publica and princeps under the Empire. Res publica, understood as the Public, stable, distinct from the collectivity of the citizens, undoubtedly legitimated the action of the princeps, and was the testimony of his good will and of his refusal of tyranny; but it was also recognized as an external principle of action, whose maiestas reflected on the princeps, transforming his own one into an absolute. It is easy to understand how, eventually, the princeps, who was originally a delegate of the res publica, started being thought as his incarnation.

Bibliography

Arena, V. 2012. Libertas and the Practice of Politics in the Late Roman Republic. Cambridge. Bauman, R.A. 1967. The Crimen Maiestatis in the Roman Republic and Augustan Principate. Johannesburg. Bauman, R.A. 1974. Impietas in Principem: A study of treason against the Roman Emperor with special reference to the first century AD. Munich. Benveniste, E. 1970. ‘Deux modèles linguistiques de la cité’, in Pouillon, J. et Maranda, P. (eds.) Échanges et communications. Mélanges offerts à Claude Lévi-Strauss, I. Paris, 589–96. Bretone, M. 1998. I fondamenti del diritto romano. La cosa e la natura, Rome-Bari. Cloud, J.D. 1963. ‘The text of Digest XVIII.4 ad legem Iuliam Maiestatis’, ZSS 80, 206–32.
 D’Aloja, Ch. 2011. Sensi e attribuzioni del crimen maiestatis. Lecce. De Martino. 1972. Storia della costituzione romana, I. Naples (first edition 1958). Ernout, A. and Meillet, A. 1951. Dictionnaire étymologique de la langue latine. Paris (new. ed. Paris 2001). Ferrary, J.-L. 1983. ‘Les origines de la loi de majesté’, CRAI 127, 556–72.
 Ferrary, J.-L. 2014. ‘Loi Cornelia de maiestate’, in J.-L. Ferrary et P. Moreau dir., Lepor. Leges Populi Romani: http://www.cn-telma.fr/lepor/notice39/. Gruen, E. 1966. ‘Political Prosecutions in the 90’s BC’, Historia 15, 32–64.
 Hankins, J. 2010. ‘Exclusivist Republicanism and non-monarchical Republic’, Political Theory 38.4, 452–82. Heidegger, M. 1953. ‘La chose’, in Essais et conférences. Paris, 194–223. Koesterman, E. 1955. ‘Die Majestätsprozesse unter Tiberius’, Historia 4, 72–106.
 43  Id., 259–269.

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Magdelain, A. 1990. Ius, Imperium, Auctoritas. Études de droit romain, Rome. 1990. Mancini, G. 1996. Cives Romani Municipes Latini. Milan. Moatti, C. 2018. Res publica. Histoire romaine de la chose publique. Paris. Pocock, J. 1995. ‘The ideal of citizenship since Classical Times’, in Beiner, R. (ed.), Theorizing citizenship. New York, 29–55.
 Rogers, R.S. 1951. ‘The Tacitean Account of a Neronian Trial’, in Mylonas, G. (ed.) Studies Presented to D.M. Robinson in honor of his Seventieth Birthday. St Louis, 711–718. Santalucia, B. 1998. Diritto e processo penale nell’antica Roma. Rome. Skinner, Q. 1978. The Foundations of Modern Political Thought: Volume I: The Renaissance. Cambridge. Thomas, Y. 1991. ‘L’institution de la Majesté, Revue de synthèse, 112.3–4, 331–86. Thomas, Y. 2011. Les opérations du droit. Paris. Watson, A. (ed.) 2009. The Digest of Justinian, 4 volumes. Philadelphia.

chapter 7

The Consulship under the Triumvirs: a Phantom Office? Francisco Pina Polo The res publica had established libertas as core of the new political system in the fifth century and had started, according to tradition, with the creation of the consulship instead of the monarchy. Throughout the Republic, therefore, the consulship – the only office that had not experienced any change in the number of magistrates and in their basic functions at the head of the State – had acted, in close connection with the Senate, as custodian of the Republican libertas. The creation of the triumvirate as the official magistracy for the Roman government in November 43 BC radically changed the political scene: during the triumviral period, the fading republican libertas reflected on the end of the independence of the consulship on the way to the Principate. An analysis of the consulship during the triumviral period is complicated, given that the sources we have barely provide any specific information about the actions of the consuls. Our surviving accounts are mainly devoted to the wars fought during these years, which they narrate in some detail, and to the triumvirs as the great leaders of the period, whereas the internal politics at Rome occupy little space. As a consequence, we are only able to glimpse what the consuls actually did in office through unconnected pieces of information which hardly allow us to reconstruct a general picture of the consulship under the triumvirs. Our sources are almost exclusively Appian and, in particular, Cassius Dio, who has a strong interest in emphasising the breakdown of the traditional Republican order and, therefore, the exceptional operation of institutions under the triumvirs, in particular of the magistracies. Taking into account these restrictions in the ancient sources, the purpose of this paper is to determine the nature of the institutional and political role played by the consuls under the triumvirs. On one hand it is relevant to establish the institutional relationship between triumvirs and consuls, whether their imperium was put into practice on an equal footing or whether the consuls were implicitly or legally in an inferior position.1 On the other hand, it is 1  See now Vervaet 2020 and Pina Polo 2020.

© Francisco Pina Polo, 2020 | doi:10.1163/9789004441699_009

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important to define, to the extent that it is possible to do so, the behaviour and the actions performed by consuls. 1

Consulship versus Triumvirate

According to Appian, Lepidus, Antony and the young Caesar agreed in Bononia to create by law for five years a new magistracy with consular power, whose goal was to appease the civil quarrels of the time. The main functions of this new magistracy, Appian says, were the designation of the city magistrates for the following years and the distribution of provinces.2 The lex Titia was the public consequence of this private agreement: the tribune of the plebs P. Titius sponsored the law, which was passed on 27 November 43, so creating the triumvirate. When Appian refers to the passing of the law at Rome, he repeats that the triumvirs were to have the same powers as the consuls.3 In theory, therefore, the triumvirate was an extraordinary and temporary office with the same imperium as the consulship. In practice, however, it is beyond doubt that the triumvirs exercised their imperium over the consuls throughout the period, and this conclusion has been adopted by the scholarship without significant reservations.4 This does not mean at all that Appian was wrong. If the triumvirs needed a legal power to justify their dominion over Roman politics, and they did not want to be assimilated into the dictatorship, as Appian expressly asserts, the obvious option was the consular imperium. Nonetheless, in a period in which exceptionality became the rule in each and every institutional aspect, the actual superiority of the triumvirs was implicit in the creation of the triumvirate itself. It was in the best-case scenario a question of time and Realpolitik that they would impose their control. However, the triumvirs’ domination was not necessarily obvious or naturally accepted by everyone from the beginning. On the contrary, we should count on some kind of opposition on the part of the consuls, in particular in the first years of the triumvirate, as happened tenuously with Q. Pedius in 43 – in reality

2  App. BC. 4.2. 3  App. BC. 4.7. See Millar 1973, 51. 4  Fadinger 1969, 45, considered that the powers of the triumvirs were well above those of the consuls. Bleicken 1990, 37–39, accepted that formally the triumvirs had the same powers as the consuls, but he thought that, in practice, they had greater powers (48–49). Wallmann 1989, 106: ‘Staatsrechtlich war das Amt des Triumvirn dem des Konsuls übergeordnet.’ Roddaz 1992, 196 n. 40, asserted that the pre-eminence of the triumvirs is shown in the fasti of the year 37, where the triumvirs appear before the consuls. Cf. Vervaet 2010, 80 n. 5.

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just before the triumvirate was legally instituted –, and much more openly and pugnaciously with L. Antonius in 41–40. Pedius was designated consul suffectus, together with Octavian, in August 43, replacing the two consules ordinarii, C. Vibius Pansa and A. Hirtius, who had died in April as a result of the battles at Forum Gallorum and Mutina.5 The first action of Octavian and Pedius was to revoke the agreement by which the assassins of Caesar would not be prosecuted. Instead a law promoted by the consul Pedius was promulgated. The lex Pedia made the murder of Caesar a criminal act and, consequently, a quaestio was set up under its terms.6 When the lex Titia was enacted, Octavian resigned the consulship and became one of the triumvirs, and simultaneously P. Ventidius Bassus was elected consul in the place of the young Caesar for only a few weeks.7 Even before proceeding to Rome, and according to Appian’s account before the legal institution of the triumvirate, Antony, Lepidus and Octavian made a list of persons who were to be put to death, but they postponed its public announcement. Nevertheless, they sent executioners to kill without warning seventeen (or twelve) of the most prominent of those to be proscribed, Cicero being one of them.8 Some were assassinated immediately, which caused panic at Rome. The consul Pedius tried to restore calm to the city, and he suggested waiting for more accurate information. The next day the consul decided to make public the list of the seventeen condemned persons, with the purpose of reassuring the people who considered themselves at risk that these seventeen were the only ones who were to be proscribed.9 Pedius died the following night, perhaps because of the stress caused by the situation he was obliged to confront, just before the future triumvirs entered the city during the following days. As Appian makes clear, Pedius’ action in publishing the list was contrary to the intentions of the soon-to-be triumvirs, who wished to keep it secret for the moment in order to take their enemies by surprise. The consul ignored the hidden intention of the three allies, but he had obviously received the list from them as the highest magistrate at Rome in absence of the other consul, Octavian, and acted autonomously, making use of his power, either misunderstanding the instructions given by Antony, Lepidus and the young Caesar, or

5  Broughton MRR 2.336–37. 6  Welch 2012, 169–70; 2018. 7  App. BC. 4.2.7; Vell. 2.65.3; Gell. 15.4.3–4. Cf. Rohr Vio 2009, 76– 78. 8  No other source mentions this list prior to the public proscriptions, but there is no reason for questioning its veracity. Cf. Hinard 1985, 262. 9  App. BC. 4.6.

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consciously contradicting them.10 Shortly after these events the lex Titia was passed, the triumvirate was constituted, and the triumvirs issued the edict of proscriptions, in which the names of the seventeen who were previously condemned were probably included.11 Once the triumvirate was legally created, the pre-eminence of its members over the traditional Republican magistrates was evident. Appian narrates an episode which implicitly shows such supremacy.12 The implementation of the proscriptions provoked a series of outrages on the part of the soldiers who had to put the orders of the triumvirs into practice. The soldiers were conscious of how much the triumvirs were dependent on them, and some began to demand a part or the entire property of the proscribed. Others killed men who had not been proscribed, or plundered the houses of people not included in the proscriptions. To face this situation, the triumvirs published an edict that ordered the suppression of such excesses. According to Appian, one of the consuls was to be in charge of carrying out that repression. As a consequence, the edict automatically converted the consuls into subordinates of the triumvirs. Appian does not mention the name of the consul who had to obey the instructions of the triumvirs, but asserts that he did not dare to touch the soldiers, out of fear that their rage could be turned against him. As scapegoats, the consul crucified some slaves who, disguised as soldiers, were committing outrages in their company. The aforementioned lack of detail in the sources prevents us from knowing of other similar episodes showing the pre-eminence of the triumvirs over the consuls, but in 41 the agreement of Teanum and the subsequent Perusine war leave no doubt about how far that pre-eminence was felt – and contested – within Roman society.13 Once more, it is Appian who gives us the most indepth information on these events, in which the consul Lucius Antonius was

10  Dio 46.46.1 underestimates Pedius, whom he calls the subordinate of Octavian rather than his colleague in the consulship. However, Cic. Planc. 17 had described Pedius as a fortis vir in 54. 11  Hinard 1985, 229–30: the edict of proscriptions must have served as legalisation a poste­ riori of the previous purging. It should be excluded that the consul Pedius issued an edict legalising the list of seventeen proscribed, since this would actually have turned him into one of the authors of the proscriptions, and this seems contrary to Pedius’ behaviour. 12  App. BC. 4.35. 13  Augustus’ propaganda has influenced the negative light in which Lucius Antonius was seen in Antiquity, mostly as an instrument of his sister-in-law Fulvia (Dio 48.4; cf. Vell. 2.74.2) and as the culprit of the outbreak of the war. This negative view in our sources has made the scholarship consider Lucius Antonius a rather unimportant personage, which does not seem to correspond to the historical reality. See Roddaz 1988, 318–19.

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the main protagonist.14 In summer 41, the officers of the army – the veterans according to Cassius Dio – arbitrated between the consul Lucius Antonius and the triumvir Octavian in an attempt to overcome their differences peacefully. As a result, the so-called Pact of Teanum was agreed: ‘When the officers of the army were informed of these facts, they arbitrated between Lucius and Octavian at Teanum and brought them to an engagement on the following terms …’ (ὧν οἱ ἡγεμόνες τοῦ στρατοῦ πυνθανόμενοι διῄτησαν αὐτοῖς ἐν Τεανῷ καὶ συνήλλαξαν ἐπὶ τοῖσδε).15 The first of the terms of the agreement Appian enumerates was: ‘The consuls should exercise their office according to the customs of the ancestors and not be obstructed by the triumvirs’ (τοὺς μὲν ὑπάτους τὰ πάτρια διοικεῖν μὴ κωλυομένους ὑπὸ τῶν τριῶν ἀνδρῶν). All the other clauses of the agreement dealt with military issues: the land should be assigned only to those who fought at Philippi; neither Antony nor Octavian should draw soldiers from Italy by conscription hereafter; the passes of the Alps should be opened to the forces sent by Octavian into Hispania, etc. The first clause mentioned by Appian was, therefore, the only political one in the agreement, and it leaves no doubt about the clash between the power of the consuls and that of the triumvirs, and how the latter were imposing their imperium. It was clearly a demand of the consul based on his own experience and presumably that of the consuls of 42 (even though one of the consuls that year was the triumvir M. Aemilius Lepidus). Moreover, if we take into account the precise vocabulary used by Appian, it seems also to have been a demand from the wider sectors of Roman society. Indeed, in his narration of the way in which the pact was concocted Appian uses the verbs διαιτάω, with the meaning of ‘to be arbiter or umpire’, and συναλλάσσω, ‘to enter into engagements or contracts.’16 This means that the litigation between Lucius Antonius and Octavian was referred to a third party, the officers of the army, acting as arbitrators. Consequently, it should be the soldiers who made the final proposal that the litigants, Lucius and Octavian, agreed. It is not surprising that most of the clauses dealt with issues of special interest to the soldiers of both armies, but it is very notable that the clause that headed the pact – always according to 14  Appian has transmitted a philo-Antonian and anti-triumviral tradition which presents a more accurate view of Lucius Antonius’ position and motivations than that offered by Cassius Dio, who rather closely followed the Augustan propaganda. See Roddaz 1988, 321–22. 15  App. BC. 5.20. Cf. Dio 48.10. Cf. Gabba 1971, 145–46; Wallmann 1989, 105–10; Welch 2012, 218–30. Welch (218–23) argued that the triumvir Antony was aware of his brother Lucius’ actions and that it probably was a joint plan to return to republican institutions. 16  Liddell – Scott 1996, 396 and 1694 (συναλλάσσω had also the meaning ‘to reconcile’). See in this volume the contribution of C. Rosillo-López.

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Appian – was exclusively political in nature and directly interested in the way Rome was governed. Hence it is possible to infer that at least a part of society – embodied by the officers of both armies – was concerned about the way in which Rome was being ruled under the triumvirs and preferred to go back to the traditional res publica with consuls as the effective highest magistrates. However, Appian states that such a claim was not fulfilled:17 the triumvirs, and in particular the young Caesar, were not willing to accept that the consulship was, as it had been throughout the Republic, the highest magistracy with imperium competing under the same conditions with the power of the triumvirs themselves. The fact that the agreement of Teanum was not respected – obviously not only the clause about the consulship – had as a consequence the outbreak of the so-called Perusine war, in which Lucius Antonius was defeated but his life was spared. Lucius had under his command six legions ‘by virtue of his consulship’ (ὅσα αὐτὸς ἐς τὴν ὑπατείαν ἐλθὼν ἐστράτευσε), which Appian emphasises as an evident signal of institutional normality and, therefore, of the power a consul must have.18 At some point during the war, Lucius delivered a speech to the people at Rome in a contio,19 in which he declared his intention to remove the triumvirate as an illegitimate magistracy, and his willingness to punish Lepidus and Octavian. According to Lucius, his brother Mark Antony was ready to resign as triumvir and instead to become a consul. Significantly Lucius described the consulship in his speech as a lawful and constitutional magistracy (νομιμωτέραν ἀρχὴν) as opposed to the illegal and tyrannical triumvirate. Apparently, the people in Rome welcomed this discourse enthusiastically (Lucius was even saluted as imperator by the people), thinking that the rule of the triumvirs could really come to an end.20 Once his defeat was inevitable, Lucius addressed his soldiers with similar arguments: given that the triumvirate had degenerated into a tyranny, his purpose had been to restore the traditional Republic of their ancestors (τὴν πάτριον πολιτείαν) and recover the freedom of the ancient Republic (ἐλευθερία καὶ δημοκρατία); he had asked that the monarchy should be dissolved, but once it was evident his request would not be attended, he had sought to enforce it

17  Gabba 1956, 193–94: ‘questa clausola dell’accordo è rimasta lettera morta.’ 18  App. BC. 5.24. Cf. Vervaet 2010, 92: Appian wanted to indicate ‘that consular military command was highly irregular under triumviral rule.’ 19  App. BC. 5.30. Dio 48.13.5 informs us that Lucius Antonius delivered his speech to the people wearing military uniform, something nobody had done at Rome up to that moment. See a general survey of oratory during the triumviral age in Osgood 2006. 20  App. BC. 5.31. Cf. Dio 48.9.4–5. Cf. Roddaz 1988, 336–37.

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with the power inherent in his office, the consulship.21 Finally, when Appian narrates the interview between Octavian and Lucius Antonius at the moment of the surrender of the latter, he makes Lucius use the same allegations to justify his behaviour:22 the triumvirate was instituted as a temporary office, since it was clear that it was not in accordance with the law (παράνομον) as a magistracy; once the triumvirate was no longer necessary, Lucius had asked that the traditional magistracies be reactivated (ἀνακῦψαι τὰς ἀρχὰς ἐπὶ τὰ πάτρια ἠξίουν); only when his demands were not considered did he decide to use force as a citizen (πολίτης), a notable (γνώριμος) and a consul (ὕπατος).23 Lucius Antonius’ vindications can be seen as a final attempt to prevent the consulship from being subjected to the triumvirate. At the same time, they show how central the complete reinstatement of the consular authority was for the restoration of the traditional res publica against the rule of the triumvirs.24 The failure of Lucius Antonius meant, perhaps forever, the defeat of republicanism.25 It was not a question of having a different or higher impe­ rium, it was a question of who actually had the power, and it was clear that it belonged to the triumvirs. In practice it had been so from the very beginning, but from that moment on the consulship irreversibly became a subsidiary magistracy under the rule of the triumvirs. The subordination of the consuls to the triumvirs, and the subsequent depreciation of the consulship, had very much to do with the appointment of consules suffecti every year between 40 and 31.26 As a matter of fact, in 39 a permanent system of suffect consuls being nominated every year was created.27 21  App. BC. 5.39. 22  The authenticity of this speech, which would have been taken from the Memoirs of Augustus, was argued by Schwartz 1898, and accepted by Gabba 1971, 146 (cf. Gabba 1956, 197 n. 1) and more recently by Welch 2012, 229–30. Against Sordi 1985, and Lange 2009, 22–23. Gowing 1992, 321–22, argued that Appian took the gist of the actual discourse and adapted it to his narration. See also Roddaz 1988, 321. 23  App. BC. 5.43. 24  Vervaet 2010, 95. Cf. Welch 2012, 223: ‘… open elections and independent magistrates were the fundamentals of a “restored” res publica.’ 25  Roddaz 1988, 343: ‘La cause républicaine avait perdu un ultime combat;’ Lange 2009, 27: ‘There is no reason to doubt Appian’s basic assertions that he claimed to be acting as a republican and seeking to end the triumvirate;’ Vervaet 2010, 93 n. 47: ‘… L. Antonius took his role as a Roman consul fighting for the full and unconditional restoration of the traditional polity most seriously.’ See, however, the much more sceptical viewpoint of Pelling 1996, 15: ‘Perhaps we need not take their own commitment to freedom too seriously.’ For Gabba 1956, 198: Appian idealised Lucius Antonius as the champion in the defence of Republican freedom in front of Octavian. 26  See Pina Polo 2018. 27  Dio 48.35.1.

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From that moment on several consuls were designated each year, two of them ordinarii, the others suffecti. The number of suffect consuls increased to the point that there were in total six consuls in 34 and eight in 33. In practice, the consulship lost its annual character, since it became unusual during the triumviral age for a consul to remain in office for the whole year. The consuls actually stayed in office only for a few months, some of them for just a few weeks. Additionally, all the consuls, the ordinarii and the suffecti, were nominated in advance for several years by the triumvirs according to their personal interests, and were not elected by the people in comitia as had been compulsory during the Republic. Consequently, the legitimacy of the consuls no longer came from the people, but from the imperatores under whose command they had fought: making the designation of consuls dependent on the will of the triumvirs clearly emphasised the inferiority of the consulship. The consulship was therefore in the hands of the triumvirs, who used it as an instrument to reward and to gain loyalties, ultimately as a prize and a present for their devoted followers – most of them did not fulfil the legal requirements to become a consul28 –, in the same way they used the other magistracies and priesthoods.29 As a result, the consulship lost prestige, and its subjugation to the triumvirs was clearly visualised within Roman society. It is not surprising that Cassius Dio, when speaking of the institutionalisation of the suffect consulship in 39, calls the suffecti, who remained unknown for many inhabitants of the empire, ‘inferior consuls’.30 Cassius Dio certainly seems to refer to citizens who did not live in Rome, who could hardly be aware of the names of consuls following in such quick succession. However, something similar should have happened to the population of Rome itself, since they must have had the impression that those suffecti were in fact secondary consuls, at the same time that the consulship became an inferior office with respect to the triumvirate. 2

Consuls at Work during the Triumviral Period

Under these premises, we can now wonder about the specific actions carried out by consuls in office and about their level of social visibility. Nevertheless, it is essential to insist once more on the scarcity of our sources, so that the 28  In year 40 Octavian appointed Q. Salvidienus Rufus consul for 39, despite the fact that he was not even a senator at the moment (Dio 48.33.2). Salvidienus died before entering the office. He was just one of many. 29  Pina Polo 2019. 30  Dio 48.35.3.

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picture must necessarily be partial and fragmentary – in his seminal article Fergus Millar collected in just two paragraphs all known ‘scattered examples’ of consular action during the triumviral period.31 Throughout the Republic the consuls, as highest magistrates of the civitas and supreme guardians of the pax deorum, had usually performed religious tasks – in particular at the beginning of the consular year –, such as the public vows praying to the gods for the welfare of the community during the new consular year, the sacrifices in expiation of the prodigies reported in the previous months and the supervision of the Feriae Latinae celebrated at Mons Albanus, as well as the presidency over some of the games held at Rome and other occasional functions.32 It is reasonable to suppose that the consuls continued to perform the same religious tasks during the triumviral age. The consules ordinarii, who entered office on 1st January, would have been in charge of the fixed religious issues habitually carried out in the first weeks or months of the year, namely initial vows, sacrifices of expiation – when they were performed – and the Latin Festival, whereas the consules suffecti would have been in charge of other religious tasks that could emerge throughout the year, such as the celebration of games and other public sacrifices and supplicationes.33 This was the case in 40, when the consuls celebrated the games that had been vowed for the completion of the war against Brutus and Cassius.34 The festival may have been held at the end of the year, coinciding with the presence at Rome of Antony and the young Caesar.35 The suffect consuls L. Cornelius Balbus and P. Canidius Crassus should have presided over the games. We know something similar happened in 34, when the festival in honour of Venus Genetrix was held the last days of July. It was celebrated under the presidency of the suffect consuls Paullus Aemilius Lepidus and C. Memmius, who had entered office on 1st July.36 Finally, a brief notice given by Velleius Paterculus could refer to the suffect consul M. Titius in 31, who also presided over games: Titius, who according to Velleius Paterculus had become unpopular in Rome for having slain Pompey, was imprecated by the audience in Pompey’s theatre when celebrating the games he had organised.37 31  Millar 1973, 53. 32  Pina Polo 2011, 21–57 and 250–61. 33  In 29 the suffect consul Valerius Potitus carried out sacrifices in honour of Octavian when the latter entered Rome. Cassius Dio (51.21.1–2) emphasises that the consul ‘offered sacrifices, publicly and in person, on behalf of the Senate and of the people.’ There is no reason to doubt that other consuls acted similarly in previous years. 34  Dio 48.32.4. 35  Sumi 2005, 197–98. 36  Dio 49.42.1. On the date at which these consuls entered office, see Salomies 1991, 192; Pina Polo 2018, 108–109. Cf. Sumi 2005, 151. 37  Vell. 2.79.6. Cf. Millar 1973, 53.

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As for the Feriae Latinae, a text of Cassius Dio for year 43 shows that, at that moment, it continued to be compulsory for the consuls to preside over the festival before leaving Rome to take command of their army.38 According to Cassius Dio, the consuls of that year left Rome without the festival having been held, and this meant a breach of the tradition. There was no example, Cassius Dio says, of other cases when this had happened without resulting in misfortunes for the community: indeed, the result would have been the deaths of the two consuls soon afterwards. In 42, the prefect of the city presided over the Latin Festival, although this task, according to Cassius Dio, did not belong to him but, obviously, to the consuls.39 This consular function must also have existed during the following years under the triumvirs. The construction of temples, public buildings and monuments – such as columns, porticos and statues – was another civil task carried out by consuls throughout the Republic, in particular in the pre-Sullan period.40 Consular participation in the monumentalization of the Urbs was, however, very limited in the first century, when we are aware of the intervention of consuls in just a few public works.41 It was usual for some families of the Roman aristocracy to consider a monument a question of family regarding its construction, inauguration and preservation. This is the case of the Basilica Aemilia in the Forum. The censor of 179, M. Aemilius Lepidus, had taken part in the original construction of the Basilica, and throughout the first century other members of the family were in charge of its renovation, including the consul of 78 of the same name.42 He was not the only one in the family. In the second half of 34 the consul suffectus Paullus Aemilius Lepidus dedicated the rebuilt Basilica, which his father L. Aemilius Lepidus Paullus had begun twenty years earlier.43 This continued the tradition, whenever it was possible, of inaugurating a public building promoted by the same individual who performed the dedication, or by a member of his family, while he was a consul in office: it was a means of simultaneously giving prominence to his consulship and to the building itself, and of gaining popularity in Rome.44 38  Dio 46.33.4–5. 39  Dio 47.40.6. 40  Pina Polo 2011, 142–65. 41  Pina Polo 2011, 269–75. 42  Plin. NH. 35.13. Cf. Crawford RRC, nº 419/3a–b. For the archaeological identification of the building, Steinby 1987; 1993; Wiseman 1993. Cf. Pina Polo 2011, 271. 43  Dio 49.42.2. 44  Pompey sought a way to make his consulships coincide with the inauguration of public buildings promoted by him in order to magnify his prominence and popularity in Rome. This was the case for his theatre in 55 during his second consulship. Cf. Pina Polo 2011, 272–73.

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The intervention of consuls in contiones was the direct instrument of communication between them and the people at Rome. In the pre-Sullan period, the participation of consuls in popular assemblies was relatively rare, given the usual absence of the consuls from the city. The fact that they remained in Rome for the whole year, or for most of it, during the first century, changed the situation, so that then the sources very often mention the consuls as orators before the people, in either legislative or political contiones.45 The aforementioned speech delivered to the people by the consul Lucius Antonius during the Perusine war, in which he appeared, exceptionally, with military garb and was acclaimed imperator by the audience, indicates that, as expected, the consuls kept and used their potestas contionandi – as a matter of fact there is no reason to think that they ever lost their potestas contionandi.46 This is, however, the only contio of the triumviral period in which the intervention of a consul is attested.47 To this can be added the assembly, already in the year 30, in which the suffect consul M. Tullius Cicero, the son of the orator, announced to the people at Rome that Antony had died, since his death in August of that year coincided with the months when Cicero was consul.48 The text of Appian makes it clear that the consul Cicero read to the people an edict that was also publicly exposed on the Rostra. In all probability Cicero himself was the author of the edict, and this shows that, during the triumviral period, the consuls must have issued edicts as had been usual in previous years. The information about consuls at work under the triumvirs is very limited, but is sufficient to conclude that they continued to implement their traditional duties and functions in day-to-day and routine politics: in fact, we can speak of a certain institutional normality.49 Consuls had lost prestige and were certainly under the control of the triumvirs, but the consulship was not exactly a phantom office. In spite of the incessant and profuse succession of ordinary and suffect consuls, they – at least some of them – must have had a certain social visibility: the consuls issued edicts, spoke to the people in assemblies, intervened in the Senate, performed religious tasks and, perhaps, were as usual in charge of the diplomatic affairs at Rome, although we do not have evidence of this. The visibility of the consuls had surely much to do with the presence of the triumvirs at Rome. If they – or at least one of them – were at Rome, we can guess that the consuls’ activity was eclipsed. 45  Pina Polo 2011, 277–84. 46  App. BC. 5.31; Dio 48.13.5. 47  Pina Polo 1989, 312–13. 48  App. BC. 4.51; Dio 51.19.4. 49  Millar 1973, 53; Pina Polo 2020.

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Another question is to what extent the consuls had real political authority and influence, and what their political role actually was. In this respect, as we have seen, the confrontation between Lucius Antonius and Octavian had shown that a consul could in theory use his office, ultimately his imperium, as a legal instrument to promote a particular political line, even against the triumvirs. Another factor is that the triumvirs, precisely after the Perusine war, put the consulship under their service designating for the office loyal followers who were not willing to confront their power. Nevertheless, the possibility of trying to act with independence and autonomy existed, as the dispute between Octavian and the consules ordinarii Cn. Domitius Ahenobarbus and C. Sosius showed in 32. In Alexandria Antony had redistributed the oriental provinces, assigning them to Cleopatra and her children, including the children of Antony and Cleopatra.50 Antony sent dispatches to Rome, in order for his decisions – the so-called Donations of Alexandria – to be ratified. However, these dispatches were never read in public, because the consuls Sosius and Domitius Ahenobarbus, despite the pressure Octavian exerted upon them, refused to do it out of loyalty to Antony, since that information was surely going to damage Antony’s image.51 The attitude of Sosius and Ahenobarbus demonstrates that a consul still had room to manoeuvre with political autonomy. Obviously, this autonomy depended on the personality a consul could have, his prior career – both Sosius and Ahenobarbus had been respected commanders in the years previous to their consulships –, and his willingness to face the powerful triumvirs. Moreover, the episode indicates that practicalities were in the hands of the consuls as the regular highest magistrates of Rome, since they, and not Octavian, had the capacity to decide whether Antony’s resolutions must be read publicly. Nevertheless, Cassius Dio next explains that, although the consuls prevailed in this matter, Octavian won a victory by preventing any of Antony’s dispatches regarding the Armenian king from being made public, which puts us again before the struggle for real power between consuls and triumvirs.52 Cassius Dio narrates later the bitter dispute between Octavian and the consul Sosius, who already on the first day of the year,53 presumably in the usual debate in the Senate when a new year started, had dared to praise Antony and 50  Dio 49.41.1–3. 51  Dio 49.41.4. See Wallmann 1989, 298–304; Ferriès 2007, 392–97 and 470–72. 52  Dio 49.41.5. 53  The relative chronology for the year 32 is not clear. Nonetheless, the episode regarding the Donations of Alexandria must have taken place early in the year, in any case after this first debate in the Senate, at some point before the senatorial session in which

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vehemently to attack the young Caesar. Again, this shows autonomy and freedom of speech on the part of the consul. Sosius did not stop at that point, for he wanted to introduce measures against Octavian, apparently in the Senate. We do not know what kind of actions Sosius was planning, but the veto of the tribune of the plebs Nonius Balbus, prevented him from going ahead.54 Once more, the initiative of the consul and the veto of the tribune should be seen as an indication of a certain institutional normality. However, the end of this story, in turn, demonstrates who actually had the power in Rome. Octavian had preferred to stay out of the city while Sosius spoke in the Senate and tried to take initiatives against him. After reflecting on the situation, he returned to Rome and summoned the Senate, accompanied by a guard of soldiers and friends who carried hidden daggers. In the Senate the young Caesar sat down ‘upon his official chair’ (ἐπὶ δίφρου ἀρχικοῦ) ‘in the middle of the consuls’ (ἐν μέσῳ τῶν ὑπάτων),55 in this way symbolising his superiority.56 From there, he spoke at length in defence of himself and inveighed much against Sosius and Antony. The consuls did not even dare to open their mouths to answer him and left the city secretly soon after, followed by other senators.57 The consuls, in particular Sosius, had dared to confront

Octavian attacked Sosius and Antony and made the consuls leave Rome (see below). See Lange 2009, 61, with supplementary bibliography on the discussion about the chronology of 32. 54  Dio 50.2.3. 55  Augustus took in 19 the authority of consul for life. Consequently, he had the right to sit in the curule chair between the two consuls (Dio 54.10.5). 56  The legal status of Octavian in 32 BC has been long discussed. Had the triumvirate already lapsed in 33? In that case, in what capacity sat Octavian upon his official chair in the Senate? Some scholars have even spoken of a coup d’état to explain it. Recently Lange 2009, 53–60, has collected the different arguments and convincingly concluded (as Mommsen already in the nineteenth century) that ‘the triumvirate was not due to lapse at its terminal date of 31st December 33 BC, but would remain in force until its holders abdicated … they had to decide when and how they would in fact give up their powers.’ Therefore, Octavian had in all probability the status of triumvir when he intervened in the decisive senatorial session of 32, which explains his physical position between the consuls and his political pre-eminence over them. As a matter of fact, the right of Octavian to be seated on a sella curulis between the consuls is proof that, in that senatorial session, he was acting officially as a magistrate of the Roman people, as Vervaet 2010, 89, has rightly argued. See also the reasons of Vervaet 2010, 80–89, in favour of the thesis that the triumvirate had not lapsed on 31 December 33, but comprised the whole year 32 (the article of Vervaet was published in Ancient Society in 2010, but was already available in 2008 in the Lampeter Working Papers in Classics, and this latter version was utilised and cited by Lange 2009). 57  Dio 50.2.4–6. Sosius commanded a wing of Antony’s fleet at Actium (Vell. 2.85.2). After Actium he got the pardon of Octavian. Cf. Swan 2004, 331.

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Octavian. They had even achieved a small victory in their skirmishes, but the final victory belonged to Octavian. This episode is a good example of what was happening those years, and provides an appropriate point to conclude. Throughout the triumviral period the consulship kept its imperium, and the consuls continued taking decisions with respect to routine politics. However, the consulship was always, in particular after the end of the Perusine war in 40 and the institutionalisation of the suffect consulship in 39, a secondary and subordinate magistracy under the triumvirate, the office that really mattered. The position of Octavian during the meeting of the Senate, seated between the two consuls in his sella curulis while he imposed his will upon them, is a good metaphor because it allows us to visualise the Realpolitik of the period.

Bibliography

Bleicken, J. 1990. Zwischen Republik und Prinzipat. Zum Charakter des Zweiten Trium­ virats. Göttingen. Broughton, T.R.S. 1951–1952, 1986. The Magistrates of the Roman Republic, 3 vols. Atlanta GA. Crawford, M. 1974. Roman Republican Coinage. Cambridge. Fadinger, V. 1969. Die Begründung des Prinzipats. Quellenkritische und staatsrechtliche Untersuchungen zu Cassius Dio und der Parallelüberlieferung. Berlin. Ferriès, M.-C. 2007. Les partisans d’Antoine (des orphelins de César aux complices de Cléopâtre). Bordeaux. Gabba, E. 1956. Appiano e la storia delle guerre civil. Florence. Gabba, E. 1971. ‘The Perusine War and Triumviral Italy’, HSCP 75, 139–60. Gowing, A.M. 1992. The Triumviral Narratives of Appian and Cassius Dio. Ann Arbor. Hinard, F. 1985. Les proscriptions de la Rome républicaine. Rome. Lange, C.H. 2009. Res publica constituta. Actium, Apollo and the Accomplishment of the Triumviral Assignment. Leiden – Boston. Liddell, H.G. – Scott, R. 1996. A Greek-English Lexicon. Oxford. Millar, F. 1973. ‘Triumvirate and Principate’, JRS 63, 50–67. Osgood, J. 2006. ‘Eloquence under the Triumvirs’, AJPh 127, 525–51. Pelling, C. 1996. ‘The Triumviral Period’, in Bowman, A., Champlin, E., Lintott, A., (eds.) Cambridge Ancient History. Second edition. Vol 10, 1–69. Pina Polo, F. 1989. Las contiones civiles y militares en Roma. Zaragoza. Pina Polo, F. 2011. The Consul at Rome. The Civil Functions of the Consuls in the Roman Republic. Cambridge. Pina Polo, F. 2018. ‘Magistrates without Pedigree: The Consules Suffecti of the Triumviral Age’, JRS 108, 99–114.

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Pina Polo, F. 2019. ‘Los colegios sacerdotales durante la época triunviral (43–31 a.C.) como instrumento para premiar lealtades’, in Alfayé Villa, S. – Pina Polo, F. (eds.), Dioses, sacerdotes y magos en el mundo antiguo. Homenaje a Francisco Marco Simón, Madrid, 177–92. Pina Polo, F. 2020. ‘The functioning of the Republican institutions under the Triumvirs’, in Pina Polo, F., (ed.) The Triumviral Period: Civil War, Political Crisis and Socioeconomic Transformations, Zaragoza – Sevilla, 49–70. Roddaz, J.-M. 1988. ‘Lucius Antonius’, Historia 37, 317–46. Roddaz, J.-M. 1992. ‘Imperium: nature et competences à la fin de la République et au début de l’Empire’, Cahiers du Centre Gustave Glotz 3, 189–211. Rohr Vio, F. 2009. Publio Ventidio Basso. Fautor Caesaris, tra storia e memoria. Rome. Salomies, O. 1991. ‘Zu den Fasti Consulares von Tauromenium’, Zeitschrift für Papyrologie und Epigraphik 86, 187–92. Schwartz, E. 1898. ‘Die Vertheilung der römischen Provinzen nach Caesars Tod’, Hermes 33, 185–244. Sordi, M. 1985. ‘La guerra di Perugia e la fonte del L. V dei Bella civilia di Appiano, Latomus 44, 301–16. Steinby, A.M. 1987. ‘Il lato orientale del Foro Romano: proposte di lettura’, Arctos 21, 139–84. Steinby, A.M. 1993. LTUR I, s.v. Basilica Aemilia, 167–68. Sumi, G.S. 2005. Ceremony and Power: Performing Politics in Rome, Ann Arbor. Swan, P.M. 2004. The Augustan Succession. An Historical Commentary on Cassius Dio’s Roman History Books 55–56 (9 B.C.–A.D. 14). Oxford. Vervaet, F. 2010. ‘The Secret History: The Official Position of Imperator Caesar Divi Filius from 31 to 27 BCE’, Ancient Society 40, 79–152. Vervaet, F. 2020. ‘The Triumvirate Rei Publicae Constituendae: Political and Constitutional Aspects’, in Pina Polo, F., (ed.) The Triumviral Period: Civil War, Political Crisis and Socioeconomic Transformations, Zaragoza – Sevilla, 23–48. Wallmann, P. 1989. Triumviri Rei Publicae Constituendae. Untersuchungen zur Politischen Propaganda im Zweiten Triumvirat (43–30 v.Chr.). Frankfurt. Welch, K. 2012. Magnus Pius. Sextus Pompeius and the Transformation of the Roman Republic, Swansea. Welch, K. 2018. ‘The Lex Pedia of 43 BCE and its aftermath’, Hermathena 196, 137–61. Wiseman, T.P. 1993. ‘Rome and the resplendent Aemilii’, in H.D. Jocelyn (ed.), Tria lus­ tra: essays and notes presented to John Pinsent. Liverpool, 181–92.

chapter 8

Arbitration in the Res Publica: a Novel Way of Solving Internal Political Conflicts in the 40s and 30s BC Cristina Rosillo-López In Roman minds,1 the city was born of an act of mediation performed by the Sabine women between their former families and their new Roman ones;2 Coriolanus stopped his siege of Rome when Roman women, together with his own mother Veturia and his wife Volumnia, intervened.3 During the civil wars of the first century BC, there are also several instances of successful, and indeed unsuccessful, mediation. Women often played an important role as mediators during the Triumviral period: for example, Octavia at Tarentum in 37; Mucia Tertia, following popular pressure, mediated a treaty between her son, Sextus Pompeius, and the triumvirs; Iulia Antonia, mother of the triumvir, fled to Sicily, but travelled back to Italy later to negotiate a settlement between Sextus Pompeius and her son.4 Cocceius mediated between Antony and Octavian, resulting in the Treaty of Misenum.5 Horace described both Maecenas and Cocceius as adept at reconciling friends; in this case, the triumvirs.6 It was not only individuals who served as mediators. Soldiers and veterans from different legions fulfilled the role during the civil wars of the late 40s and 30s; for example, a group of soldiers volunteered to mediate in order to improve the damaged relationship between Antony and the young Octavian at the end of 44.7

1  This research has been financed by the project “El sector inmobiliario en el mundo romano: un análisis económico; s. II a.C.–s. II d.C.” (HAR2016–76882-P), Ministerio de Ciencia, Innovación y Universidades, Spain. All translations are taken from the Loeb editions. 2  Livy 1.11. 3  Livy 2.39–40. 4  Octavia: App. BC. 5.93; Plut. Ant. 35.1; Dio, 48.54; Singer 1947 (although she stated, wrongly in my opinion, that Plutarch and Cassius Dio exaggerated her role because they were ‘influenced by court tradition and clearly hostile to Antony’; p. 174). Mucia: App. BC. 5.69. Iulia Antonia: App. BC. 5.63; Dio, 48.15.16; Plut. Ant. 32. 5  App. BC. 5.60–65. 6  Hor. Sat. 1.5.27–29: huc venturus erat Maecenas optimus atque / Cocceius, missi magnis de rebus uterque / legati, aversos soliti conponere amicos. 7  Nic. Dam. 115–119; App. BC. 3.29–30.

© Cristina Rosillo-López, 2020 | doi:10.1163/9789004441699_010

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Political scientists have studied the use of ADR (Alternative Dispute Res­ olution) as a way to resolve conflicts by means other than violence; among the practices used, mediation and arbitration have taken the spotlight. They are not synonymous terms. Mediation constitutes a means by which a third party (individual, group or organisation) attempts to find a way of resolving a conflict, where the third party is a facilitator, rather an umpire or arbiter. Arbitration, by contrast, appoints the third party to judge the claims of the two parties in conflict and to make a decision on their behalf. Furthermore, in contrast with mediation, in the arbitration process the two parties agree beforehand to consider the final decision as binding, and to apply it. It is rare for both parties to agree to submit to the judgement of a judge or group of judges instead of controlling the final decision themselves. For this reason, arbitration has been much rarer than mediation, from Roman times to the present day. In modern times, the Permanent Court of Arbitration was created in 1899 during the first Hague Peace Conference, and revised in 1907 at the second Hague Peace Conference. The Tribunal consists of five arbitrators, two selected by each party to the arbitration (one of whom may be a national of the party concerned). The four arbitrators choose the fifth and presiding arbitrator. The Tribunal has arbitrated in cases between states, and between investors and states, from the beginning of the 20th century onwards. Recent cases include the Abyei Arbitration (2009), between Sudan and Sudan’s People Liberation Movement, after the Second Sudanese Civil War, and the boundary dispute between Croatia and Slovenia regarding the Gulf of Piran (2017).8 The late 40s BC, especially from March 44 onwards, constituted an exceptional moment in Roman history. The Roman political elite had to cope with, and respond to, unexpected challenges, either in the middle of a civil war or while trying to avoid a new one. It was a time in which new and imaginative solutions were proposed and carried out, although not all of them were successful. In addition, because of the exceptional political, military and socioeconomic conjuncture, and the new regime that was established once peace was reached, many of those solutions were never used again. In this paper, I will analyse an exceptional case study: acts of arbitration between two parties in a political and military conflict, with the initiative coming from outside the political elite and, even rarer, from humbler groups. I am referring to the instances in which veterans and soldiers obliged Octavian and Lucius Antonius to accept arbitration, and other occasions in which

8  https://pca-cpa.org/en/home/. Abyei arbitration in Sudan: https://pca-cpa.org/en/cases/92/. Croatia vs. Slovenia: https://pca-cpa.org/en/cases/3/.

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arbitration was at the forefront in the second half of the 40s BC. All of them have been either ignored by the historiography, or understood as instances of negotiation rather than arbitration. As we shall see, even ancient sources (non-contemporary with the events) had problems understanding them. I would like to suggest that those cases attest to a new conception of the res publica, in which a private legal procedure, arbitration, was applied both to public business and to the resolution of public conflicts. From arbitration as an extra-judicial arrangement for citizens, we have arrived at arbitration as an extra-political arrangement; furthermore, such a new concept constituted an exercise of agency and libertas on the part of the soldiers. These are two questions to which attention has only been paid in more recent years.9 Firstly, I will describe the legal procedure of arbitration, then I shall analyse the only known precedent of arbitration in the political sphere, before finally delving into the study of how arbitration was used to find a peaceful settlement to a military and political confrontation in the 40s BC. 1

Legal Background: How Did Arbitration Work, according to Roman Law?

The legal procedure of arbitration was not created with a single brushstroke; on the contrary, it was the result of hundreds of years of evolution. There were three types of arbitration in Rome: by bonus vir, by iudex and ex compromisso.10 The first attested type, arbitration by bonus vir, was a private and informal method where two parties requested a third to arbitrate in good faith in a 9  On agency, cf. Cadiou 2018, with previous bibliography; Chrissanthos 2004 on the libertas of the soldiers. 10  Cf. a corpus of all the ancient sources on arbitration (legal, literary, architecture and surveying texts, epigraphical) in Roebuck and Loynes 2004, 207–59. For the documents on papyri, ibid. p. 200–206. They often use the Latin word in Greek: kompromisson. On those papyri, cf. also Modrzejewski 1952. The papyri of Dioscorus of Aphrodito, a welleducated scion of a reputed family (ca. AD 520–590), are an especially rich source (cf. Mac Coull 1988). Mac Coull 1988, 36–47 on the arbitration cases (see p. 41–42 for the text and translation of the arbitration in P.Cair.Masp. III 67353r, dated AD 568 involving an affair with two monks, who made arrangements for their property before becoming monks). A second arbitration: P. Lond. V 1709 (AD 569, with the same formulary phrases at the beginning; the case involved a brother and sister suing their stepmother and half-sister for misappropriation of their late father’s inheritance). Mac Coull 1988, 43 with other more informal examples of arbitration. For Italy, the Tabulae Herculanenses and the Puteoli Tablets have preserved several arbitration agreements (Roebuck and Loynes 2004, 115–16; 245–47).

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dispute between them; there was no need to go to a judge.11 Anyone could be that arbiter; for instance, Queen Berenice acted as bonus vir in AD 90.12 In this variant, the state was not directly involved, therefore the penalty could not be legally enforceable. What kinds of issues were decided through this system? Among others, farming problems (to avoid going to Rome for judgement), property boundaries, family matters (e.g. dowries), and commercial disputes.13 This kind of arbitration was so common that it even had its own legal abbreviation: VBA = viri boni arbitratu.14 In contrast, arbitration by iudex, existing before the XII Tables, was arbitration by public appointment.15 The two parties went before a magistrate (from 367 BC, a praetor), who appointed a iudex, chosen from an official list (album). The two parties would agree on one of the names. In cases of disagreement in this, the praetor would decide on a name. If they still did not agree, they could go into a private arbitration with a bonus vir upon whom they had agreed. There was one main difference between a iudex and an arbiter: the first had to decide according to the formula designated by the praetor, while the second could base his or her decision in law, but was not obliged to, giving greater flexibility.16 Gellius wrote at length about his own experience of being appointed iudex.17 He read books in both Greek and Latin about the subject because he was a young man with no experience. The complicated case he had to oversee involved money handed over without witnesses or documents; in Gellius’ opinion, one of the parties was a good man of integrity, the other a fraudster. At a loss over what to decide, and wanting to help the good man despite having no evidence for his innocence, he even asked the philosopher Favorinus for help. In the end Gellius swore an oath, stating that the case was not clear to him, and excused himself from making a decision (sibi non liquere). The third type, arbitration ex compromisso, which originated around the second century BC, was created and controlled by a written agreement (compromissum) by the parties to submit their dispute to an arbitrator, who was 11  Dig. 17.2.78; Roebuck and Loynes 2004, 46–66. E.g. Plautus, Curculio 701–704; 719–722; Terent. Menedemus. Plin. Ep. 7.30 on arbitrating in small towns. 12  Quint. Inst. 4.1.19; Roebuck and Loynes 2004, 57. She acted as bonus vir in her own case, a possibility that the law also contemplated. 13  Farming: Cat. Agric. 149.1–2; boundaries: e.g. surveyors: Campbell 2000, 74, l. 9–10; 46, l. 22–33; dowries: Dig. 32.43; commercial disputes: Dig. 17.2.6; 17.2.76. 14  Probus, De notis iuris, 4.1: list of abbreviations of official and legal texts compiled by M. Valerius Probus in the second half of the first century AD. 15  Roebuck and Loynes 2004, 67–93. 16  Cf. Cic. Rosc. Com. 4.10–15, on the difference between a iudex and an arbiter. 17  Gell. NA. 14.2.1–16.

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supported by the praetor (receptum arbitrii).18 The state could now enforce the agreement through stipulatio, with a penalty for breaching it. Women could use ex compromisso, but not on behalf of third parties.19 Many different issues were decided using this method, for instance land disputes, problems about ownership of slaves, debts and breaches of contracts, and even electoral disputes (more on this last case infra).20 Several arbitration agreements have survived: in legal texts, in inscriptions, in wax tablets and in papyri.21 The compromissum was written, but the legal act itself was conducted orally before witnesses, with the hearing always taking place in private rather than in public.22 The praetor could accept the parties naming one or two arbiters (although if they did not agree, the praetor would add another arbiter).23 The penalty was a sum agreed by both parties, high enough to make them comply. If a party wanted to enforce the penalty, they applied to the praetor, who would appoint a iudex to hear the claim.24 It is interesting to note that jurisprudence on arbitration developed mainly during the Late Republic, meaning that it was a legal issue that mattered to jurists at that time.25 However, arbitration was not limited to legal or extra-legal procedures between Roman citizens. Although tangential to this study, it should be mentioned that Rome, as represented by its Senate, generals and governors, performed the function of arbiter in international disputes between independent states that were recognized by Rome.26 There are many instances, especially in the second century BC: for example, Rome arbitrated in the conflict between Antiochus III and Eumenes II in 188.27 Furthermore, Rome could arbitrate in administrative problems, such as questions within communities about boundaries, and even 18  Dig. 4.8.3.1. RE, s.v. compromissum (Leist); Roebuck and Loynes 2004, 94–113. 19  Dig. 3.1.1.5. 20  Land: Dig. 4.8.44; Tabulae Herculanenses 79; FIRA III.164 (2nd century AD inscription about an arbitration between a town in Italy (Histonium) and a private person, Tillius Sassius, with reference to a previous arbitration in AD 19). Slaves: Dig. 4.8.32.5. Debts: Dig. 4.8.52; 4.8.39 praef; Dig. 4.8.21.1. Elections: Cic. QFr. 2.15.4. 21  On the arbitration agreements, cf. Roebuck and Loynes 2004, 114–34. 22  Dig. 45.1.1. praef. Roebuck and Loynes 2004, 153–77. 23  Dig. 4.8.17.6. Roebuck and Loynes 2004, 135–52. 24  On the decision and its enforcement, Roebuck and Loynes 2004, 178–92. In the inscription in FIRA III.164 there is a decision (the previous one of AD 19). Dig. 4.8.23.2: the decision should be obeyed. 25  Ziegler 1971, 26–43. Cf. ibid, 16–24 on arbitration in Cicero. 26  Ruggiero 1893, 51–68 and 114–24; by the Senate: ibid, 136–65; by generals and governors: 165–81. On the procedure and decision: ibid. 181–231; Ziegler 1971, 47–166. 27  Polyb. 22.27.11; Livy, 38.39.17; 39.22.9. Cf. a corpus of international arbitration texts and cases in Ruggiero 1893, 232–68.

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between foreign communities.28 Thus, P. Cornelius Sulla arbitrated in the disputes between inhabitants and settlers in Pompeii in 65, although there had been a previous arbitration in 78.29 To sum up, these different types of arbitration constituted an accessible and frequently used way of resolving disputes, either with or without the intervention of a praetor. There was an organized and structured procedure, and a wholly developed jurisprudence, by the Late Republic. For the sake of this study, it should be stressed that arbitration, especially without the involvement of a magistrate, constituted the most frequent route to conflict resolution amongst the lower social classes. 2

Precedents of Arbitration in Politics

The sources have preserved only one instance of arbitration in politics prior to the cases that constitute the core of this paper. The tempestuous elections in 54 BC involved a high level of competition during a prolonged campaign, the distribution of unprecedented amounts of money (which caused high increases in interest rates, and even a liquidity problem), forgery of official documents, and collusion between several candidates.30 At that time, resorting to bribery to win elections was a condition sine qua non; a prerequisite for staying in the race. For instance, Cato the Younger, who based his public image on his respect for the old mores and his incorruptibility, failed to be elected consul in 51 because he refused to solicit votes and distribute money to the people.31 The candidates for the tribunate of the plebs decided not to play the game of electoral corruption and found a more creative solution.32 As Cicero told his brother in a letter: ‘The matter is a burning scandal. The candidates for the tribuneship have made a mutual compact (compromiserunt) – having deposited half a million sestertia each with Cato, they agree to conduct their canvass according to his direction (petere eius arbitratu), with the understanding that anyone offending against it is to be condemned by him. If this election then turns out to be pure, Cato will have been of more avail than all laws and jurors 28  Ruggiero 1893, 79–102. Corpus in ibid. 300–95. 29  Cornelius Sulla: Plut. Sull. 21, 60–61. In 78: Plut. Sull. 37.3. 30  Cic. QFr. 2.14–15; Att. 4.15; Rosillo-López 2010, 223–29. 31  Cato’s image: e.g. Sall. Cat. 54.3; van der Blom 2016, 204–47 (pp. 235–36 points out that Cato turned his electoral defeat into a reflection of his incorruptibility). Not elected consul: Plut. Cat. Min. 49. 5–6. On defeated candidates (and also the case of Cato), cf. Pina Polo 2012 and 2016; Baudry 2013. 32  Cic. QFr. 2.15; Att. 4.15.7; Plut. Cat.min. 44.7–10.

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put together’.33 The vocabulary used by the orator is very clear and unequivocal: compromiserunt, arbitratrum, which means that Cato was chosen by the candidates to act as an arbiter, to decide whether any of them was corrupt, and therefore be able to punish them. Roebuck and Loynes have stressed that ‘this is the only surviving example of an arbitration clause governing a dispute which had not yet arisen’.34 That year, Cato was praetor of the quaestio de repetundis. However, he was chosen as arbiter not because of that magistracy, but based solely on his reputation as an incorruptible man. The candidates agreed that he was the only man who could perform the role. Interestingly, his election proved controversial. In contrast with the people actually involved, some sections of the public were incensed that he could stand in judgement over who had and who had not been corrupt, as if he were a magistrate.35 That perception shows the uneasiness some people felt about applying private procedures to public matters, and explains why this is the only recorded case in the Late Republic until the late 40s BC. 3

How to Arbitrate Political and Military Conflicts

Scholars have pondered over the failure of the most common approaches to non-violent conflict resolution in the 40s and 30s BC. This section will explore the hitherto ignored instances of arbitration in the 40s, and their political implications. A caveat: our sources for these events, Appian and Cassius Dio, were written centuries later. Their accounts are confusing in places, since they themselves felt confused by the arbitration, an unprecedented development in internal politics that was very rarely used centuries later; these historians tried to conceptualise what was happening within their own frame of reference, providing a sometimes puzzling narrative. There were a number of attempts at mediation between Caesar and Pompey before and during the civil war.36 Caesar described several attempts at negotiation in his Bellum Civile, always detailing the names of the emissaries who 33  Cic. QFr. 2.14.4: Res ardet invidia. Tribunicii candidati compromiserunt, HS quingenis in singulos apud M. Catonem depositis, petere eius arbitratu, ut, qui contra fecisset, ab eo condemnaretur: quae quidem comitia si gratuita fuerint, ut putantur, plus unus Cato potuerit quam omnes leges omnesque iudices. On this case, cf. Talamanca 1958, 71–73; Ziegler 1971, 21–23; Rosillo-López 2010, 83–84; Rosillo-López 2016, 224–26. 34  Roebuck and Loynes 2004, 112–13. 35  Cic. QFr. 2.15.4; Plut. Cat. Mi. 44.7. Cf. Rosillo-López 2016 on public opinion and corruption. 36  Cornwell 2017, 57–63.

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passed along the message that he had tried several times to avoid the war, thus justifying and legitimising himself.37 However, there were no attempts at arbitration; that is, of finding a third party that both parties would have agreed upon. As we have seen, at the end of 44, soldiers and veterans tried to mediate to solve the patchy and sometimes hostile relationship between Antony and Octavian. But mediation is not arbitration; the first leaves the negotiation to the goodwill of the two parties, the latter imposes a third party who submits a decision that both parties have agreed beforehand to respect. For these reasons, the two cases of arbitration in 41 deserve our attention. In 41, the political and military situation of the triumvirs was complicated. Having defeated the Republicans at Philippi the previous year, the triumvirs distributed the Roman provinces between themselves (more on this later). In the so-called Bononia settlement, Antony was granted the East, and left Italy in order to reorganize his provinces and prepare the invasion of Parthia, which he accomplished through a policy of thorough financial exploitation of provincials and client kings.38 In the West, only Sextus Pompeius in Sicily and Cn. Domitius Ahenobarbus in the Ionian Sea remained enemies of the triumvirate. Octavian, however, had to face a greater challenge at home. Being in charge of Italy, he had to manage the task of settling the veterans of Philippi (both Caesarians and Republicans; the numbers oscillate between modern estimations of ca. 46,000 soldiers and ancient accounts of 28 legions, ca. 170,000 soldiers) and provide them with plots of land.39 As the triumvirate was short of funds, he resolved to settle the veterans in Italy, on land that would be expropriated from its owners in an initial 18 cities, although in the end at least 40 Italian cities had land expropriated.40 Understandably, Octavian’s policy of expropriation proved to be very unpopular: despite having established a minimum size for expropriated plots, veterans were taking over neighbouring land, and land belonging to senators was exempt from expropriation.41 Lucius 37  Batstone and Damon 2006, 23. 38  He also got Gallia. 39  Gabba 1973: Keppie 1983; more recently on the land issue, cf. Keaveney 2007, 62–68; Laignoux 2015. Number of legions: App. BC. 5.5. Keppie 1983, 60–61 considered the numbers an overestimation, and suggested ca. 46.000 soldiers settled in Italy. 40  App. BC. 5.49 (some cities attempted to have themselves removed from the list). Keppie 1983 with a list of the cities in which expropriation took place. The criteria were the prosperity of the city and the fertility of the lands (App. BC. 4.3). 41  App. BC. 5.13–14; Dio 48.6.8–9; 48.8. Keppie 1983 on the different sizes of the lots depending on the city. Senatorial land exempted: Dio 48.8.5. Conflicts between veterans and inhabitants: Dio 48.9.2–5; App. BC. 5.12; 5.18 (armed bands in the countryside). On the conflictivity in Italy during triumviral times, see Rosillo-López 2020.

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Antonius, brother of the triumvir and consul in 41, profited from this situation and, in connection with his sister-in-law Fulvia, channelled discontent against Octavian, even promising that his brother would leave the triumvirate and return to being a consul.42 These actions resulted in the war of Perusia.43 Scholars have debated whether Antony was aware of his brother’s actions; more recently, Welch has argued that he probably was, and that it constituted a plan devised by Lucius and Marcus to return to Republican institutions.44 In this problematic context, both Lucius Antonius and Octavian claimed that they felt menaced by one another, in order to escalate the conflict. At that precise moment, Appian and Cassius Dio set up the first arbitration, on the initiative of the officers, which would be known as the agreement of Teanum (June–July 41): ‘When the officers of the army learned these facts, they arbitrated between Lucius and Octavian at Teanum and brought them to an agreement on the following terms: that the consuls should exercise their office in the manner of the fathers and not be hindered by the triumvirs; that the land should be assigned only to those who fought at Philippi; that, of the money derived from confiscated property, and of the value of that which was still to be sold, Antony’s soldiers in Italy should have an equal share; that neither Antony nor Octavian should draw soldiers from Italy by conscription hereafter; that two of Antony’s legions should serve with Octavian in the campaign against Pompeius; that the passes of the Alps should be opened to the forces sent by Octavian into Hispania, and that Asinius Pollio should not further interfere with them; that Lucius should be satisfied with those conditions, should dispense with his body-guard and administer his office fearlessly’.45 It 42  App. BC. 5.30; 5.39; 5.43; 5.54. On L. Antonius, cf. Roddaz 1984. Wallmann 1989 gives a very negative account of his actions, and accepts most of the uncritical accounts of those sources most favourable to Octavian; cf. a commentary on the “demonization” of Lucius Antonius in Livadiotti 2013. Aigner 1975, 102–106 on the colonization and the moments of conflict in Rome. 43  Gabba 1971, 140–56 on the Perusine war as a connection of the cause of Sextus Pompeius and Lucius Antonius. On the chronology of the war: Kromayer 1894; Gabba 1970; Roddaz 1984. 44  Welch 2012, 218–23. 45  App. BC. 5.20: ὧν οἱ ἡγεμόνες τοῦ στρατοῦ πυνθανόμενοι διῄτησαν αὐτοῖς ἐν Τεανῷ καὶ συνήλλαξαν ἐπὶ τοῖσδε, τοὺς μὲν ὑπάτους τὰπάτρια διοικεῖν μὴ κωλυομένους ὑπὸ τῶν τριῶν ἀνδρῶν, μηδενὶ δὲ γῆν ὑπὲρ τοὺς στρατευσαμένους ἐν Φιλίπποις ἐπινέμεσθαι, τά τε χρήματα τῶν δεδημευμένων καὶ τιμὰς τῶν ἔτι πιπρασκομένων καὶ τὸν στρατὸν Ἀντωνίου τὸν περὶ τὴν Ἰταλίαν ἐπ᾽ ἴσης διανέμεσθαι καὶ μηδέτερον αὐτῶν ἔτι καταλέγειν ἐκ τῆς Ἰταλίας, στρατεύοντι δὲ ἐπὶ Πομπήιον τῷ Καίσαρι δύο συμμαχεῖν τέληπαρὰ Ἀντωνίου, ἀνεῷχθαι δὲ τὰς Ἄλπεις τοῖς ὑπὸ Καίσαρος πεμπομένοις ἐς τὴν Ἰβηρίαν καὶ μὴ κωλύειν αὐτοὺς ἔτι Ἀσίνιον Πολλίωνα, Λεύκιον δὲ ἐπὶ τοῖσδε συνηλλαγμένον ἀποθέσθαι τὴν φρουρὰν τοῦ σώματος καὶ πολιτεύειν ἀδεῶς.

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is interesting to highlight the mixture of political and military clauses, including the reaffirmation of the independence of the consuls from the triumvirs.46 The vocabulary used by Appian is clear: διαιτάω, to be an arbiter or umpire, and συναλλάσσω, to enter into an engagement or contract. In fact, it should be highlighted that Appian was trying to write an account that was as complete as possible, consulting specific works on the period: in the following paragraph, while trying to ascertain Antony’s involvement in the beginnings of the war of Perusia, the historian stated that he had searched for any clear account of Antony’s reply, but to no avail.47 According to Gabba, ‘Appian’s historical sources seem to go back to an independent and carefully thought out interpretation of those political events’.48 This contrasts with other historians, more dependent on Augustan historiography, in which the army is dominated by Octavian from the beginning. For Gabba, the officers who engineered these agreements came from the same social background as the soldiers, and shared their political and economic demands.49 Cassius Dio mentioned that veterans who arbitrated between Lucius Antonius and Octavian were sneeringly called, among other things, the senatus caligatus.50 Such a comment almost certainly attests to senatorial public opinion, which had lost much influence over the triumvirs and the consul. Only during their political confrontation, and before the military conflict, did Octavian resort to using senators to act as arbiters, but they were quickly left aside and substituted with the veterans.51 Despite its detailed contents, the agreement was unsuccessful, since Lucius Antonius and Octavian resumed their confrontation. On the brink of conflict, a second arbitration was planned, this time stemming from the veterans. According to Appian, the veterans of Antony and former soldiers of Caesar, 46  On the consulship under the Triumvirate, see Pina Polo 2018 (consuls suffecti) and his chapter in this volume. Cf. Wallmann 1989, 102–10 on these agreements. Wallmann 1989, 106 suggested that they were officers from the discharged legions. 47  App. BC. 5.21. 48  Gabba 1971, 139; Gabba 1970, XV–XVI; Gowing 1992, 39–54. 49  Gabba 1971, 145, with further bibliography; Cadiou 2018 for a recent treatment of the question of the socio-economic background of the soldiers; Aigner 1974, 141–45 and Augier 2016 on the officers. Mangiameli 2012, 333–37 on the communication between officers and soldiers. 50  Dio 48.12.3. Cf. Mangiameli 2012, 363–70 on the communication and performative practices between generals and their soldiers in the period of the civil wars. Cf. Pina Polo 1989, 341–45 on the military contiones of the 40s. 51  Dio 48.11.3–4. Cf. Freyburger and Roddaz 2002, 66, n. 76 and p. LXI–LXII on the chronology of the negotiations in Appian’s and Cassius Dio’s accounts. On the mediation attempts, cf. Mangiameli 2012, 187–89.

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settled in Ancona, sent ambassadors to Rome and beseeched both parties to have their dispute arbitrated: ‘The ambassadors then united with the officers of this army in a common embassy to Lucius asking him to submit his dispute with Octavian to a tribunal; and they made it plain what they would do if he should not accept the decision. Lucius and his friends accepted the proposal, and fixed the place for the trial at Gabii, a city midway between Rome and Praeneste. A council-chamber was prepared for the arbiters, and two platforms for the speakers in the centre, as in a regular trial’.52 Cassius Dio gave more detail regarding the actions of the veterans in Rome: ‘they assembled on the Capitol, and after commanding that the compact which Antony and Caesar had made should be read to them, they ratified these agreements and voted that they themselves should be made arbitrators of the differences between them. After recording this action on tablets and sealing them, they delivered them to the Vestal Virgins to keep; and they gave command to Caesar, who was present, and to the other party through an embassy, to present themselves for the trial at Gabii on a stated day.’53 The procedure described by both Appian and Cassius Dio conforms to the usual procedure in arbitration, from the summoning on an agreed day to the council-chamber (συνέδριον), since judgement was not delivered publicly. Even though the initiative was not successful and both parties started open hostilities that would end up in the war of Perusia, the agreement of Teanum and the arbitration of Gabii attest to two specific and novel cases of conflict resolution, with the initiative coming, remarkably, from outside the political elite.

52  App. BC. 5.23: συμβαλόντες οἱ πρέσβεις τοῖς ἡγεμόσι τοῦδε τοῦ στρατοῦ, κοινῇ πάντες ἐς εύκιον ἐπρέσβευον, ἀξιοῦντες αὐτὸν ἐς δίκην Καίσαρι συνελθεῖν: δῆλοί τε ἦσαν, ὃ πράξειν ἔμελλον, εἰ μὴ τὴν κρίσιν ὑποδέχοιτο. Δεξαμένων δὲ τῶν ἀμφὶ τὸν Λεύκιον, χωρίοντε ὥριστο τῇ δίκῃ Γάβιοι πόλις ἐν μέσῳ Ῥώμης τε καὶ Πραινεστοῦ, καὶ συνέδριον τοῖς κρίνουσιν ἐγίνετο καὶ βήματα ἐν μέσῳ δύοτοῖς ἐροῦσιν ὡς ἐν δίκῃ. On the colonies of Antony, cf. Gabba 1973, 459–71. Keppie 1983, 184 pointed out that we do not know the identity of the two legions installed at Ancona. 53  Dio 48.12: συνελθόντες τούτων μὲν οὐδὲν ἐφρόντισαν, ἀθροισθέντες δ᾽ ἐς τὸ Καπιτώλιον τάς τε συνθήκας, ἃς ὅ τε Ἀντώνιος καὶ ὁ Καῖσαρ ἐπεποίηντο, ἀναγνωσθῆναί σφισιν ἐκέλευσαν, καὶ ἐκείνας τε ἐπεκύρωσαν, καὶ περὶ ὧν διεφέροντο ἑαυτοὺς δικαστὰς γενέσθαι ἐψηφίσαντο. καὶ ταῦτά τε ἐς δέλτους γράψαντες καὶ κατασημηνάμενοι ταῖς ἀειπαρθένοις φυλάττειν ἔδοσαν, καὶ τῷ μὲν Καίσαρι παρόντι, τοῖς δὲ ἑτέροις διὰπρεσβείας, ἐς Γαβίους ἐν ῥητῇ τινι ἡμέρᾳ πρὸς τὴν δίκην ἀπαντῆσαι προσέταξαν. On the meeting in Gabii, cf. Gabba 1956, 195; Aigner 1975, 108– 109; Wallmann 1989 114–15. Mangiameli 2012, 187–91. Wallmann 1989, 115, n. 123 pointed out that we are not informed who decided upon the place of the meeting, since, as we can see in the previous texts, Appian described such a decision as an initiative of L. Antonius and his friends, while Cassius Dio attributed it to the veterans.

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First of all, Ancona was more than 600 km away from Rome, on the Adriatic coast, which meant that the news about the upcoming conflict did not arrive for some time, and had those settlers very worried. Both Appian’s and Dio’s account are consistent in presenting the veterans as those who had initiated the second arbitration, and who pushed the two parties to accept it for fear of a rebellion (‘and they made it plain what they would do if he should not accept the decision’). Not only that; these veterans proclaimed themselves the arbiters who would decide upon the conflict. Secondly, the two accounts in Greek used vocabulary that harked back to Latin concepts of arbitration. Thirdly, the actions of the veterans in Rome, although summarily described, were consistent with the procedure of arbitration: recording their role as arbiters (and even setting that in writing and leaving it for custody with the Vestal Virgins); giving notice to both sides as for the day and place; setting up the stage in Gabii, with a council-chamber (συνέδριον) for the arbiters. This should not surprise us: as we have seen, arbitration by bonus vir was the most common procedure in conflict resolution among people from a lower socio-economic background. The novelty was that they took the initiative in applying such a procedure to the resolution of a political and military conflict, that they considered that the res publica could also be subject to arbitration, and that they did so by exerting their own libertas. Chrissanthos has called attention to the freedom of speech of Roman soldiers, who were politically aware, and assumed that commanders were responsible for their well-being.54 In fact, few legions were conscripted in Rome, because, among other reasons, those soldiers exercised that freedom of speech, up to the point of altering the course of campaigns through mutinies or demands or refusal to attack, because they did not agree with the decision of their commander.55 During this period, we know that Roman citizens were conscripted in at least 49 and 43.56 They took their customary libertas with them into the camp. Both attempts at arbitration failed to solve the political problem. Nevertheless, they set a precedent for using arbitration as way of solving political disputes of maximum importance. In 36 BC, after defeating Sextus Pompeius in Sicily, Octavian and Lepidus clashed over who had authority over the island. Lepidus claimed that he was not treated as an equal, and demanded control over the territories that the triumvirs had agreed on years before, demanding an arbitration: ‘he [Lepidus] detailed all the slights he considered 54  C  hrissanthos 2004, 348–50. 55  C  hrissanthos 2004, 356–65. Cf. also ibid, 354: sacramentum did not include swearing against freedom of speech. 56  Caes. BC. 1.14; Cic. Phil. 10.21; Fam. 11.8; cf. Chrissanthos 2004, 350.

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that he was receiving and demanded all the rights that had been conceded to him according to their first compact, and, further, laid claim to Sicily, on the ground that he had helped to subdue it. He sent some men to Caesar with these complaints and called upon him to submit to arbitration (προκαλέω).’57 Lepidus relied upon the strength of his soldiers to force Octavian to an arbitration, but his legions defected to the young Caesar, causing his downfall.58 On what grounds did Lepidus appeal? Based on the fact that, once Antony and Octavian had divided the Roman dominions between them after Philippi, they had put the agreement into writing: ‘After making these agreements by themselves, putting them in writing, and sealing them, they exchanged co­ pies of the documents, to the end that, if any transgression were committed, it might be proved by these records.’59 Had the triumvirs done the same in Bononia in 43? Lepidus seemed to imply so. He had the legal grounds on his side, and a written testimony of the agreement. In fact, he was not the first of the triumvirs to act in such fashion: before the war of Perusia, Octavian also showed his agreement with Antony to a group of senators, in order to display his legal grounds in the confrontation with Lucius Antonius.60 A written agreement was not unusual in this kind of pact outside of institutions, and outside of senatorial control. The sources offer one precedent. In 54 BC, during the most heated and corrupt electoral campaign ever witnessed in Rome, a scandal stirred up the city: two candidates confessed to having made a pact with the consuls in order, if elected, to provide several augurs and senators who would vouch for the passing of a non-existent lex curiata, and of a non-existent senatorial decree for the ornatio of their provinces. Such a compact was put into writing: ‘The compact, which, as was stated, was not an oral one but had been entered into the account books of many persons with names and full details …’61 According to Cicero, the compact was produced in the Senate and read out loud. 57  Dio 49.11: καταλέγων πάνθ᾽ ὅσα ἐλαττοῦσθαι ἐνόμιζε, καὶ τά τε ἄλλα ἀπῄτει ὅσα αὐτῷ κατὰ τὴν πρώτην σφῶν συνωμοσίαν ἐδέδοτο, καὶ τῆς Σικελίας ὡς καὶ συγκαταστρεψάμενος αὐτὴν ἀντεποιεῖτο. καὶ ὁ μὲν ταῦτά τε τῷ Καίσαρι πέμπων τινὰς ἐπεκάλει, καὶ ἐς δίκην αὐτὸν προυκαλεῖτο. 58  Keppie 1983, 69–71; Weigel 1992, 88–93; Keaveney 2007, 88–89 on this episode and ibid, 85–92 on mutinies and desertions during the triumvirate. 59  Dio 48.2.4; App. BC. 5.12.46. 60  Dio 48.11.3. 61  Cic. Att. 4.17.2: consules flagrant infamia quod C. Memmius candidatus pactionem in se­ natu recitavit quam ipse (et) suus competitor Domitius cum consulibus fecisset uti ambo HS quadragena consulibus darent, si essent ipsi consules facti, nisi tris augures dedissent qui se adfuisse dicerent cum lex curiata ferretur quae lata non esset, et duo consularis qui se dicerent in ornandis provinciis consularibus scribendo adfuisse, cum omnino ne senatus

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In short, Lepidus might have had the law on his side, and a powerful legal (and written) argument in case of an arbitration, but something was lacking: a person or group of people who could serve in that position. Negotiation attempts to find an agreement between two parties; arbitration, on the other hand, demands that the two parties submit to the decision of a third party. In 36 BC, the political and military situation and the intentions of the soldiers were not as powerful as in 41, when they compelled a triumvir and a consul to submit to an arbitration. 4

Conclusion

Arbitration applied to politics constituted another conception of the res publica: in case of conflict, the res publica could be subject to arbitration, and a third party would decide between the demands of the two claimants. This method of conflict resolution, hitherto only applied to federal communities, foreign states and private citizens, had had its scope extended. A private procedure was applied to public matters. It is very interesting that this innovative measure was introduced on the initiative of soldiers and veterans, that is, from below. Arbitration was a procedure that they knew well, since, as the comedies of Plautus attest, it was the most common way for humble people to resolve their disputes. Chrissanthos, Mangiameli and Cadiou, from different perspectives, have highlighted the agency of the soldiers, especially in the civil wars.62 The initiative was linked to their libertas and the importance of militia as a place in which citizens could deploy their civic identity. It was an exceptional situation: in the midst of civil war, many soldiers knew what ideas and politics they were fighting for, and had to be convinced by their commanders in order to keep fighting. For these reasons, using arbitration became a very real possibility as a practical political measure, as we can see in the agreement of Teanum and the arbitration in Gabii.63 The failure of these quidem fuisset. haec pactio non verbis sed nominibus et perscriptionibus multorum tabulis cum esse facta diceretur, prolata a Memmio est nominibus inductis auctore Pompeio. Cf. Rosillo-López 2010, 223–29 on this electoral campaign and the role of electoral corruption in it. 62  Chrissanthos 2004; Mangiameli 2012, 332; Cadiou 2018, 420. 63  Keaveney 2007, 47–54 and Cadiou 2018, 420, n. 82 on politically minded soldiers (vs. e.g. Aigner 1975, 133). The sources for instance are clear on the fact that the soldiers wanted the murder of Caesar to be avenged (Bottermann 1968, 172–76). Most recently Laignoux 2016 on the material and immaterial practices of legitimation developed by the leaders of the 40s to secure the allegiance of their troops.

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arbitrations does not diminish the fact that they were put forward; on the contrary, they almost succeeded in finding a solution for Octavian’s most difficult and challenging problem of the late 40s, one which would end in the war of Perusia. In fact, it was a clever solution for a political problem: the arbiter was not bound by law, unlike a judge, and could therefore devise a more flexible solution to a political problem. The difficulty, however, lay in finding a respected and powerful figure to act as arbitrator between the triumvirs themselves, and with their political rivals. In a last attempt at negotiation in autumn 32, before the war started, Antony sneeringly pointed out this problem: ‘Who will be our arbitrator if the compact is transgressed in any way?’64 In the only previous instance of this procedure being applied, the candidates to the tribunate of the plebs had all agreed on Cato the Younger as arbiter because of his reputation of being incorruptible. However, due to the polarization of Roman political life, and the death toll in the civil wars, by the late 40s or 30s few people remained who fulfilled such prerequisites as respectability and neutrality.65 The consular L. Calpurnius Piso may have attempted to play such a role between Antony and Octavian, but without success.66 In the summer of 44, the tribunes of Antony’s guards, who had served with Caesar, played that role more successfully, cementing (briefly) the alliance between the two future contenders.67 After that moment, the res publica was in need of an arbiter, and none were considered up to the task. In those complicated times, only officers, soldiers and veterans attempted to serve in that position, developing innovative practices, and an alternative conception of the res publica. 64  Dio 50.9.6: καὶ τίς ἡμῖν δικάσει, ἄν τι παρὰ τὰ συγκείμενα πραχθῇ. Cf. Plut. Ant. 62.2–3. 65  According to the Digital Prosopography of the Roman Republic, there are only 54 senators attested who were alive in 41 BC (in comparison 193 senators in 43 BC; apart from the casualties, we have also lost Cicero as a source, which accounts for the reduced numbers, but the figures are telling anyway). The total of attested senators during the 30s oscillate between 40 and 60. 66  Van der Blom 2013 and 2016, 181–203 on Piso’s oratory. He was a respected consular who strove for peaceful resolutions to conflicts, as his actions in 44 and 43 show. According to Cicero (who had been his political enemy), he was the only consular worthy of that name in Rome (Cic. Phil. 1.14, but we should be aware of the context of such favourable comment; Piso had just spoken against Antony, Cicero’s enemy, in the senatorial session of 1st August 44). Cornwell 2017, 65–73 has called attention to the different interpretations of the concept of peace in 43: for people like Calenus, Calpurnius Piso, Plancus or Lepidus, peace was understood as the safety of all citizens, and it involved negotiating with Antony; for Cicero, there was no possibility of negotiation, thus refuting the previous definition of peace. 67  App. BC. 3.29 on the tribunes.

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Bibliography

Aigner, H. 1974. Die Soldaten als Machtfaktor in der ausgehenden römischen Republik. Innsbruck. Augier, B. 2016. Homines militares: les officiers dans les armées romaines au temps des guerres civiles (49–31 a.C.). Diss. Paris X. Batstone, W.W. and Damon, C. 2006. Caesar’s Civil War. New York. Baudry, R. 2013. ‘Stéréotypes et défaites électorales à la fin de la République romaine’ in H. Ménard et C. Courrier (ed.), Miroir des autres, reflet de soi (2): stéréotypes, politique et société dans le monde occidental (de l’Antiquité romaine à l’époque contemporaine). Montpellier, 117–43. Blom, H. van der. 2013. ‘Fragmentary speeches: the oratory and political career of Piso Caesoninus’, in C. Steel & H. van der Blom (eds.), Community and Communication: Oratory and Politics in Republican Rome. Oxford, 299–314. Blom, H. van der. 2016. Oratory and Political Career in the Late Roman Republic. Cambridge. Botermann, H. 1968. Die Soldaten und die römische Politik in der Zeit von Caesars Tod bis zur Begründung des Zweiten Triumvirats. Munich. Cadiou, F. 2018. L’armée imaginaire. Les soldats prolétaires dans les legions romaines au dernier siècle de la République. Paris. Campbell, B. 2000, The Writings of the Roman law surveyors. Introduction, text, translation and commentary. London. Chrissanthos, S.G. 2004. ‘Freedom of Speech and the Roman Republican Army’, in I. Sluiter and R.M. Rosen (ed.), Free Speech in Classical Antiquity. Leiden – Boston, 341–68. Cornwell, H. 2017. Pax and the Politics of Peace. Republic to Principate. Oxford. Freyburger, M.-L. and Roddaz, J.-M. 2002. Dion Cassius, Histoire romaine. Livres 50 et 51. Paris. Gabba, E. 1956. Appiano e la storia delle guerre civili. Florence. Gabba, E. 1970. Appiani bellorum civilium liber quintus. Florence. Gabba, E. 1971. ‘The Perusine war and triumviral Italy’. HSCP 75, 139–60. Gabba, E. 1973. Esercito e società nella tarda repubblica romana. Florence. Gowing, A.M. 1992. The triumviral narratives of Appian and Cassius Dio. Ann Arbor. Keaveney, A. 2007. The Army in the Roman Revolution. London. Kromayer, J. 1894. ‘Kleine Forschungen zur Geschichte des zweiten Triumvirats’, Hermes 29.4, 556–85. Laignoux, R. 2016. ‘Les chefs et leurs troupes: s’assurer la fidélité des soldats pendant les guerres civiles des années 44–30’, HiMA 4, 71–94. Laignoux, R. 2015. ‘Politique de la terre et guerre de l’ager à la fin de la République. Ou comment César et les triumvirs ont « inventé » des terres pour leurs vétérans’. Mélanges de l’École française de Rome-Antiquité 127.2, 397–415.

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Lawrence K. 1983. Colonisation and veteran settlement in Italy, 47–14 B.C. London. Livadiotti, U. 2013. ‘Lucio Antonio, Appiano e la propaganda augustea’, Seminari Romani di Cultura Greca, N.S. 2.1, 65–92. Mac Coull, L.S.B. 1988. Dioscorus of Aphrodito: His Work and His World. Berkeley. Mangiameli, R. 2012. Tra « duces » e « milites » : forme di comunicazione politica al tramonto della Repubblica. Trieste. Modrzejewski, J.M. 1952. ‘Private Arbitration in the Law of Greco-Roman Egypt’, Journal of Juristic Papyrology 6, 239–56. Pina Polo, F. 1989. Las contiones civiles y militares en Roma. Zaragoza. Pina Polo, F. 2012. ‘Veteres candidati: Losers in the elections in Republican Rome’, in F. Marco – F. Pina Polo – J. Remesal (eds.), Vae Victis! Perdedores en el mundo antiguo. Barcelona, 63–82. Pina Polo, F. 2016. ‘Prestige et perte de prestige des perdants dans la Rome republi­ caine’, in R. Baudry – Fr. Hurlet (eds.), Le prestige à Rome. Autour de la hiérarchie, de la différenciation et de la reconnaissance sociales entre République et Principat. Paris, 235–49. Pina Polo, F. 2018. ‘Magistrates without Pedigree: The Consules Suffecti of the Triumviral Age’, JRS 108, 1–16. Roddaz, J.M. 1988. ‘Lucius Antonius’, Historia 37, 317–46. Roebuck, D., de Loynes de Fumichon, B. 2004. Roman Arbitration. Oxford. Rosillo-López, C. 2010. La corruption à la fin de la République romaine (IIe–Ier av. JC): aspects politiques et financiers. Stuttgart. Rosillo-López, C. 2016. ‘The Workings of Public Opinion in the Late Roman Republic: the case of study of corruption’, Klio 98, 1–25. Rosillo-López, C. 2020. ‘The Socio-Political Experience of the Italians during the Triumviral Period’, in F. Pina Polo (ed.), The Triumviral Period: Civil War, Political Crisis and Socioeconomic Transformations. Zaragoza, 353–77. Ruggiero, E. de. 1893. L’arbitrato pubblico in relazione col privato presso i Romani. Roma. Singer, M. 1947. ‘Octavia’s Mediation at Tarentum’, CJ 43.3, 173–78. Talamanca, M. 1958. Ricerche in tema di “Compromissum”. Milan. Volponi, M. 1975. Lo Sfondo italico della lotta triumvirale. Genova. Ziegler, K.H. 1971. Das private Schiedsgericht im antiken römischen Recht. München.

chapter 9

The Auctoritas and Libertas of Augustus: Metamorphosis of the Roman Res Publica Frédéric Hurlet The history of the Roman res publica did not end with that of the Roman Republic. It spanned the entire imperial period, in the sense that the monarchical regime founded by Augustus presented itself, and was presented as, a res publica. This notion must therefore be studied in its historical depth, which justifies my incursion into the imperial period in the context of a book largely devoted to the Roman Republic. The long lifespan of the Roman res publica – nearly a millennium – is a well-established fact, one that has been analysed anew and expanded upon in Claudia Moatti’s recent study of the Roman history of the commonwealth,1 which demonstrates that the continuity of the res publica emerged as a subject during the first century BC. It was a genuine obsession for Romans, thus explaining its permanence during the imperial period, as well as its culmination in the idea that Augustus himself invented a tradition to which he constantly conformed.2 Another contribution of Claudia Moatti’s book is to definitively move beyond the debate on the nature of the Roman Republic (aristocracy or democracy?), by showing that this was an ‘ideo­logical formalization’ that appeared during the second century BC, one that brought the notion of forma to the forefront. This approach was born under the influence of Greek political philosophy and was systematized by Polybius through the notion of a ‘mixed constitution’, which emphasized certain institutions (the consuls, the Senate, the comitia) while neglecting others, and inevitably raises the question of which of these three institutions dominated the two others. The same analysis, mutatis mutandis, has applied and continues to apply to the Augustan ‘Principate’, whose nature has been explored by modern historians going back at least to Mommsen, sometimes underscoring the regime’s monarchical dimension, and sometimes its republican packaging. This explains the success enjoyed by analyses of the Augustan regime that stress continuity (the phenomenon of restoring the res publica) or rupture (the monarchical and dynastic character of Augustus’ powers). The problem with such 1  Moatti 2018. 2  See Blösel 2000, 85–91.

© Frédéric Hurlet, 2020 | doi:10.1163/9789004441699_011

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analyses is that, despite any attempt at formalization, the Roman res publica was always something ‘uncertain and imprecise, fluctuating and open’.3 This was without a doubt its primary characteristic and the reason for its longevity, for the Romans of the imperial period felt that they were (and had been) living in a res publica. A Polybian reading – which is to say one that is purely institutional – of the history of Rome consequently runs the risk of attaching realities to the functioning of the Roman res publica that involved only a tiny portion of reality, and that were not part of strictly Roman categories. Claudia Moatti has proposed a different analysis based on Quintilian’s definition of the res publica,4 focusing attention not on its forma but on its partes, which are more numerous than the three Polybian formae or species, and that can be defined as the innumerable and even infinite series of parts forming a whole – in this case the res publica itself.

…

Among the notions connected to the Roman res publica that can be considered as partes, two stand out for their centrality and their opposition to one another, an opposition that is mistaken given the flexibility of the Roman res publica, which actually allowed, as we shall see, for their combination and articulation. The first is auctoritas, a constituent notion of Roman political culture, which has been the subject of a conference in Nanterre in 2018.5 The second is libertas, which was used on its own to designate the Republic regime, and which we know was retained by the new regime as defined by Augustus. The objective of this study is not to extend or continue research in the tradition of Begriffsgeschichte, the best example of which is the work by Chaim Wirszubski.6 My aim is more specific, namely to show not only what Augustus and his successors retained of the notions that were intrinsically linked to the 3  Moatti 2018, 412; see also 56: ‘la nature ouverte et imprécise de la « chose publique ».’ 4  Quint. Inst. Orat. 5.10.63: Diuisione autem adiuari finitionem docet, eamque differre a partitio­ ne quod haec si totius in partis, illa generis in formas. Partis incertas esse, ut quibus constet res publica, formas certas, ut quot sint species rerum publicarum, quas tris accepimus: quae populi, quae paucorum, quae unius potestate regerentur (‘Cicero also points out that division is an aid to definition, and that it differs from partition, inasmuch as partition breaks up a whole into parts, while division breaks up a genus into forms: the number of parts (on his view) is uncertain (‘what elements make up the state?’) whereas the number of forms is certain (‘how many species of states are there? We are told there are three, namely those governed by the people, by a few, and by one man’).’) 5  David et Hurlet eds. 2020. 6  Wirszubski 1950.

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history of the Roman res publica, but also the extent and pace at which they became the foundation of the imperial regime. Auctoritas was a value that was indisputably shared by Roman citizens, to such an extent that one could say that the Romans lived under a regime of authority. It was a cardinal and versatile value that was both collective and individual, and that was exercised in varying degrees by most actors in Roman society: magistrates, priests, orators, jurists, or the Senate.7 These actors asserted the authority stemming from their status in order to be obeyed, with obedience being based not on violence or obligation – or at least not exclusively – but first and foremost on recognition of this social position by other actors in society.8 One could say that in Rome, auctoritas was based not so much on hierarchy, which after all is an unavoidable reality in any society, but on the principle that made hierarchy the first criterion for the organization of society.9 This explains why from a political point of view, this value was attached during the Republican period firstly to the Senate, which at the time was the centre of power. One gathers in these conditions that Augustus – as the princeps atop Roman society – was also bound to possess and use auctoritas, especially considering that this henceforth individual quality was an ancestral virtue, and served to inscribe its possessor’s primacy within traditional forms. However, the manner in which this notion was transferred from the Senate to the princeps, along with the pace of that transfer, have not yet garnered the attention they deserve, despite an already overwhelming bibliography on the subject at first glance. Over the last century, Augustus’ auctoritas has been the subject of innumerable works, with their starting point being a passage from Res Gestae Diui Augusti, which for a long time was not very well established. The discovery of fragments from the Latin version of Antioch of Pisidia during the 1920s helped make this notion the primary foundation of the new regime,10 for in them Augustus used the term auctoritas – and not dignitas as previously believed at least since Mommsen – in the passage from the Res Gestae,11 in which he connected his new supremacy of a moral order with respect for the republican 7  See Heinze 1925; Hellegouarc’h [1963] 1972, 295–320; Biscardi 1987; Hiltbrunner 1988; Bettini 2005; Nippel 2007; Stahl 2008; Clemente Fernández 2013; Berthelet 2015. 8  Hellegouarc’h [1963] 1972, 303: ‘L’auctoritas de l’homme d’État … ne repose sur aucune des formes extérieures et ordinaires du pouvoir mais, comme dans les cas précédents, sur la « capacité » de celui qui la possède et la reconnaissance de cette « capacité » par son entourage.’ 9  Arendt 1954a, 93. 10  Ramsay and Premerstein 1927. 11  Mommsen 1865 and 18832.

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principle of collegiality: ‘since then (= 27 BC) I have had greater authority than all, but I did not have more power than those who were my colleagues in each office’.12 The reality of the transfer of auctoritas from the Senate to Augustus and all subsequent emperors gives rise to two complementary ideas: the flexibility of this notion, which could pass from one political actor to another depending on the political context and in relation to the emergence of the princeps; and its intrinsic attachment to the res publica, which did not disappear with Augustus, and required for its proper functioning that everyone holding power of one kind or another in Rome to possess auctoritas. This analysis is simply the extension of an opinion that has been well-accepted for nearly a century, namely that auctoritas was the centre of Augustan power within a reconfigured res publica. Greg Rowe, however, has recently been sceptical of this notion, particularly with regard to its importance during the Augustan period and its use by Augustus himself.13 He develops an argument based on three time periods. He firstly and correctly points out that auctoritas was rarely associated with Augustus in sources dating from the Augustan and Tiberian periods (coins, inscriptions conserving the senatus consulta from the Tiberian period, authors favourable to the new regime such as Velleius Paterculus and Valerius Maximus). He then uses this negative – and ex silentio – argument to point out that in the passage from the Res Gestae, Augustus emphasized collegiality in the exercise of potestas more than the superiority of his auctori­ tas, and for the latter referred not to a ‘transcendental’ quality that he asserted for himself, but to a series of specific events. The crowning moment of Rowe’s demonstration is the notion that while the emphasis placed on the equality of potestas by Augustus was connected to the reestablishment in 28 BC of strict collegiality in the exercise of his sixth consulate, with Agrippa as colleague, the mention of auctoritas reminds by metonymy that Augustus had the title of princeps senatus granted to him that same year, which gave his opinion to the Senate priority. From this viewpoint, Augustus’ auctoritas must be ascribed not a moral and even less an ideological value, but rather an institutional and purely circumstantial one. This new analysis has been challenged by Karl Galinsky,14 using arguments that sometimes emphasize the weaknesses of Rowe’s study, for instance the low visibility of the title of princeps senatus during the Augustan period, although he leaves aside a number of important points, namely the small number of attestations of the term auctoritas in 12  R  GDA 34.3: Post id tem[pus a]uctoritate [omnibus praestiti, potest]atis au[tem n]ihilo ampliu[s habu]i quam cet[eri qui m]ihi quoque in ma[gis]tra[t]u conlegae f[uerunt]. 13  Rowe 2013. 14  Galinsky 2015.

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connection with Augustus, and the concrete aspects of the application of the auctoritas Augusti. In another study, I proceeded with a re-examination of this question based on analysis of epigraphic documents from the Augustan and Tiberian periods that refer to auctoritas in one form or another.15 I will now provide a broad outline of the primary conclusions that resulted. – Auctoritas was not monopolized by the princeps starting with the new regime, for the account from the Tabula Siarensis and the Senatus consultum de Cn. Pisone patre indicates that this value had always been asserted by the Senate, which made certain to specify in the contents of its senatus consulta that a decision was made ex auctoritate huius ordinis;16 even more remarkably, Augustus indicated in his Res Gestae that he himself had acted ‘by virtue of the auctoritas of the Senate’ when he had eighty-two temples belonging to the divinities restored.17 A competition subsequently emerged between the Senate, which continued to enjoy auctoritas in continuity with practices from the Republican period, and the princeps, who also asserted this quality, because from a hierarchical point of view it placed him at the very top of Roman society. The existence of inscriptions that make explicit reference to Augustus’ auc­ toritas – four in number,18 and not three as Rowe believed – leaves no doubt 15  Hurlet 2020. 16  Tabula Siarensis, frg. 1, l. 23–24: [in iis regionibus quarum]/ curam et tutelam Germanico Caesari ex auctori[tate huius ordinis ipse mandasset] (Crawford ed., RS, n° 37); Senatus consultum de Cn. Pisone patre, l. 30–3: Germanico Caesari, qui a principe nostro ex auctori­ tate huius ordinis ad / rerum transmarinarum statum componendum missus esset (AE 1996, 885 = CIL 22.5.900). 17  R GDA 20.4: duo et octoginta templa deum in urbe consul sex[tu]m ex [auctori]tate senatus refeci. 18  R GDA 34.3 (perhaps also 12.1 and 28.2?); CIL 6.4416 = ILS 4966 (Dis Manibus / collegio symphonia/corum, qui sacris publi/cis praestu (sic) sunt, quibus senatus c(oire) c(onuenire) c(olligi) permisit e / lege Iulia ex auctoritate / Aug(usti) ludorum causa); CIL 9.2845 = ILS 915 = E-J 197 (P(ublius) Paquius, Scaevae et Flaviae filius, Consi et Didiae nepos, Barbi et Dirutiae pronepos, Scaeua quaestor, decemuir stlitibus iudicandis ex s(enatus) c(onsulto) post quaes­ turam, quattuoruir | capitalis ex s(enatus) c(onsulto) post quaesturam et decemuiratum stli­ tium iudicandarum, tribunus plebis, | aedilis curulis, / iudex quaestionis, / praetor aerarii, / pro consule provinciam Cyprum optinuit, / viar(um) cur(ator) extra V(rbem) R(omam) ex s(enatus) c(onsulto) in quinq(uennium), procos iterum extra sortem auctoritate Aug(usti) Caesaris / et s(enatus) c(onsulto) misso (sic) ad componendum statum in reliquum prouin­ ciae Cypri, fetialis, / consobrinus idemque uir Flauiae Consi filiae, / Scapulae neptis, / Barbi proneptis, simul cum ea conditus); Corinth 8.2.54 = AE 1919, 1 ([L(ucio) A]quillio C(aii) f(ilio) Pom(ptina) / [Fl]oro Turciano Gallo, / [X(decem)uir(o)] stlitib(us) iud(icandis), trib(uno) mil(itum) leg(ionis) VIIII Mac(edonicae), / [q(uaestori) Aug(usti) ? pro q]uaest(ore) Cypro ex auctoritate Aug(usti), / [tr(ibuno) pl(ebis)], pr(aetori), proco(n)s(uli) prouinciae Ach[aiae], / Ti. Ti(berii), Claudi(us) Anaxilas et … / [II u]ir(i) quinq(uennales) sua pecunia [ f(ecerunt)]).

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that Augustus asserted this value beginning with the first decade of the new regime, in accordance with what Augustus already indicated in his Res Gestae (see the formula of post id tempus). Furthermore, analysis of their contents indicates that the auctoritas of the princeps was present during a session of the Senate and was ultimately validated by a senatus consultum, as demonstrated in particular by the formula pointing out that a particular senator was sent, on an exceptional basis, to Cyprus on a mission auctoritate Aug(usti) Caesaris et s(enatus) c(onsulto). This reality shows that Augustus’ auctoritas expressed itself first and foremost through interaction with senators: it had to be re­ cognized in order to be effective, primarily by those who were considered the natural possessors of this value. – The general evolution was toward a disappearance of references to the formal intervention of the Senate or the votes of senators. This is clearly indicated by the content of the inscriptions, numerous beginning with Claudius, which specify that a decision was made by virtue of the auctoritas of the prin­ ceps, without the least mention of the Senate in one form or another.19 This epigraphic reality does not necessarily mean that the Senate no longer ratified imperial initiatives through a senatus consultum, but rather that this validation was seen as a pure formality that the drafters of inscriptions did not deem necessary to emphasize. It was in a gradual and imperceptible manner that the Senate lost auctoritas, whose potential was retrieved and used by imperial power. Rowe’s study reveals itself as an excessive reaction in its conclusion that Augustus’ auctoritas was the simple equivalent of an institutional reality, but also proves useful through its principle that this notion was far from purely abstract, and more concretely connected to Augustus’ initiatives within the Senate, which conveyed the primacy of the princeps in his relations with senators. If we adapt the terminology of Quintilian used by Claudia Moatti, auc­ toritas could be defined as an integral pars of the res publica, whatever the forma taken by the latter. Embodied by individuals or groups of individuals, and expressed in their interactions, its function was to emphasize the need for hierarchy, one of the primary characteristics of the Roman res publica for as long as it lived. It was in this respect that imperial power asserted auctori­ tas from the beginnings of the new regime founded by Augustus. Yet this did not immediately result in an imperial monopoly, but in a kind of concurrency between the princeps and the Senate – or more precisely in a superposition of the auctoritas of the princeps on the auctoritas of the Senate. It was only at the 19  See Hurlet 2020.

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end of a multi-decade process that ran until the mid-first century AD that auc­ toritas became an exclusively imperial quality and was experienced as such.

…

Similar to what has been said for auctoritas, the adaptability of libertas is an obvious fact that underscores the changes made to this notion by the Augustan regime. This simultaneously individual and collective value was at the heart of the political culture of Republican Rome,20 so much so that it was asserted by the different actors in the crisis that shook the Roman Republic in the first century BC. Differing conceptions existed simultaneously depending on whether the discourse came from the populares or the optimates, or depending on the sensibility of individuals, as Brutus did not define liberty in the same way as Cassius or Cicero. A decisive stage in the evolution of this notion was the assassination of Caesar on the Ides of March, an event that made libertas the value of reference for Caesaricides: this was emphasized on wellknown coins depicting the pilleus as a symbol of libertas between two daggers, with the caption EID MART,21 or on coins minted for Brutus and Cassius in 42 BC that depict, on the obverse, the head of libertas with the caption L(E)IBERTAS.22 (fig. 1 and 2) The malleability of this other pars of the Roman res publica was such that libertas was also claimed by Augustus, the very adoptive son of Caesar, who had helped eliminate the Caesaricides by presenting himself as his father’s avenger. This is how another well-known coin, a cistophorus minted in Ephesus in 28 BC, depicts Augustus on the right-hand side with the caption of LIBERTATIS VINDEX, with the goddess Pax on the back.23 (fig. 3) Augustus himself made direct reference to this notion at the very beginning of Res Gestae: ‘At the age of 19, upon a personal decision and at my own cost, I raised an army with which I brought libertas to the res publica oppressed by the tyranny of a faction’.24 Written at the end of Augustus’ life, this phrase can be projected backward and applied to the situation of the 30s and 20s BC.

20  On libertas in the late Roman Republic, see Arena 2012. 21  R RC 508.3. For a specific and unusual reference to this coin type in the literary sources, see Dio 47.25.3. 22  R RC 498.1; 501.1; 502.1.2.3; 505. On these coin types, see recently Suspène et alii 2018. 23  R IC2 Augustus 476. 24  Res Gestae 1.1: Annos undeuiginti natus exercitum priuato consilio et priuata impensa com­ paraui, per quem rem publicam a dominatione factionis oppressam in libertatem uindicaui.

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figure 1

RRC 508.3. Denarius of L. Plaetorius Cestianus. 42 BC Ex CNG, Triton IX, 10 January 2006, lot 1356 (copyright coinarchives)

figure 2

RRC 499.1. Aureus of M. Aquinus. 42 BC Ex NAC, Auction 83, 20 May 2015, lot 488 (copyright coinarchives)

It includes a formulation that had already been used by Caesar,25 and whose meaning is clear: for Augustus this meant indicating that he had freed the res publica from the grip of Mark Antony and his ‘faction’; the reference to Pax on the back of the cistophorus from Ephesus completes the message, by reminding that Augustus’ liberation of the res publica led to the end of the civil wars 25  Caes. BC. 1.22.5: ut se et populum Romanum factione paucorum oppressum in liber­ tatem uindicaret (for a discussion of the expression ‘in libertatem uindicare’, see chapter 10 in this volume).

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RIC2 Augustus 476. Cistophorus. 28 BC Ex Roma Numismatics Ltd, Auction XVII, 28 March 2019, lot 628 (copyright coinarchives)

and the return of peace. We are not that far off from the golden age; the political programme is evident and coherent. However, the accounts of the cistophorus of Ephesus and the Res Gestae Divi Augusti are the only references in official documents to libertas under the reign of Augustus. Isabelle Cogitore has shown, in a study of literary sources, that libertas only had a minor echo in these works.26 It appears that while this value was present and had its use in the context of the new regime, it lost its ideological interest when the civil war ended following the death of Mark Antony and celebration of the victory over Mark Antony and Cleopatra, in other words after the triumph of August 29 BC: it was as though libertas was a thematic struggle that the Caesaricides led – or pretended to lead – against Caesar’s tyranny, one that Augustus in turn led against the tyranny personified by Mark Antony and his faction. For all that, the moment that Augustus no longer had an adversary, libertas stopped being visible. It continued to be a part of the constitutive values of the new regime, as underscored by Augustus’ use of the term in Res Gestae, although there was no longer a true need for its activation. As Cogitore has pointed out, ‘the term needed a moment of rest after the civil wars’.27 What was now important for the new regime was emphasizing the hierarchical primacy of Augustus in the traditional framework of the res publica, and this is why auctoritas took over in 28–27 BC; in any event this is the chronology adopted by Augustus himself when he indicated that he had 26  C  ogitore 2011, 133–36. 27  C  ogitore 2011, 134.

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prevailed over all others by virtue of his auctoritas ‘post id tempus’, that is after the honours conferred on him in January 27 BC. The analysis developed above also applies to the reigns of Tiberius and Caligula, during which reference to libertas continued to be discreet in both official documents and literary sources. The only exception involves the short period following the death of Sejanus in October AD 31, which coincided with the repression of his partisans. We know that on this occasion a statue of Libertas was erected in Rome, along with a dedication from the city of Interamna (Umbria) to the Salus perpetua Augusta and the Libertas publica populi Romani.28 The visibility regained by libertas in this and only this context shows that this value was (re)activated when the political balance was threatened, as was the case in AD 31: it did not so much positively define the res publica as refounded by Augustus, but rather showed in counter-relief the contours of a new regime that presented itself in the negative as the antithesis of tyranny. Libertas subsequently became a shared value, in the sense that it was shared by both senators and imperial power, even if the former did not define it in exactly the same way as the latter. In any event, this community of value explains why it was once again represented in official documents and literary sources emanating from the aristocracy when the behaviour of certain emperors, such as Caligula, Nero, or Domitian, made the form over collaboration between imperial authority and the Senate the central political question. The fact that the primary characteristic of libertas was to position itself through opposition is confirmed by the events leading up to the assassination of Caligula and the rise to power of Claudius, which marked a major evolution in the history of this notion. It occupied a prominent place during the events of January AD 41, as libertas was firstly the watchword chosen by the soldiers who executed Caligula,29 and was later claimed by the Senate during sessions occurring in the period of uncertainty following the emperor’s assassination.30 We know that the pure and simple restoration of the Republic was no more 28  Dio 58.12.5: κοινῇ δὲ δὴ ἐψηφίσαντο, ὡς καὶ δεσποτείας τινὸς ἀπηλλαγμένοι, μήτε πένθος τινὰ ἐπ´ αὐτῷ ποιήσασθαι, καὶ Ἐλευθερίας ἄγαλμα ἐς τὴν ἀγορὰν ἀνατεθῆναι (‘publicly they voted, as if they had been freed from a tyranny, not to hold any mourning over the deceased and to have a statue of Liberty erected in the Forum’); CIL 11.4170 = ILS 157: Saluti perpetuae Augustae / Libertatique publicae / populi Romani … Prouidentiae Ti(berii) Caesaris Augusti nati ad aeternitatem / Romani nominis, sublato hoste perniciosissimo p(opuli) R(omani) … 29  Jos. AJ 19.54; cf. Jos. AJ 19.186. 30  Suet. Cal. 60.2: senatus in asseranda libertate adeo consensit ut consules primo non in cu­ riam, quia Iulia uocabatur, sed in Capitolium conuocarent (‘The Senate was so unanimously in favour of re-establishing the liberty that the consuls called the first meeting, not in the Senate house, because it had the name Julia, but in the Capitol’); Suet. Cl. 10.7: Nam consules cum senatu et cohortibus urbanis forum Capitoliumque occupauerant asserturi

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RIC2 Claudius 113. As. AD 50–54 Ex NAC, Auction 114, 6 May 2019, lot 612 (copyright coinarchives)

than a fantasy, with all of Roman society now accepting that the Empire had to be governed by a princeps.31 In this case it was Claudius, a member of the Julio-Claudian dynasty, who had seized imperial power with the help of the praetorians, but had also drawn lessons from his predecessor’s assassination. During his reign, a type of coin appeared depicting Libertas, with the caption LIBERTAS AUGUSTA.32 (fig. 4) Moving forward, this notion was also present in official language to symbolize the understanding between imperial authority and the senators, although it was referred to as ‘Augusta,’ an indication that it was also claimed by the princeps. The month of January AD 41 was thus the origin of a scenario that revived libertas in connection with the elimination of an emperor seen as a tyrant,33 a scenario that occurred on a number of occasions during the ensuing decades in similar contexts.

communem libertatem (‘for the consuls with the Senate and the city cohorts had taken possession of the Forum and the Capitol, resolved on maintaining the public liberty’). 31  See Dettenhofer 2003. 32  R IC2 Claudius 97 and 113. On the ambivalent meaning of Augusta (Augustan and imperial), see Barrandon et alii 2010, 164–67 about the Providentia Augusta. 33  See also CIL 3.7061 = ILS 217: Diuo Aug(usto) Caesari, Ti(berio) Au[g(usto) Diui Aug(usti) f(ilio)] / imp(eratori), Ti(berio) Claudio Drusi f(ilio) [Caesari Aug(usto) Ger]manico pont(ifici) max(imo) [tr(ibunicia) pot(estate) XI] / p(atri) p(atriae) uind(ici) lib(ertatis), deui[ctori regum XI] / Britanniae, ar[cum posuerunt] / c(iues) R(omani) qui Cyzici [consis­ tunt] / et Cyziceni / curatore …

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RIC2 Galba 388. Sestertius. c. AD 68–69 Ex NAC, Auction 114, 6 May 2019, lot 627 (copyright coinarchives)

The crisis of AD 68–69, provoked by what was seen as Nero’s tyrannical behaviour toward senators, once again made libertas one of the cardinal values of imperial ideology, for it was developed and diffused in official coinage by a number of the four pretenders who succeeded one another at the head of the Empire (Galba, Otho, Vitellius, Vespasian). The first, Galba, had many types of coins struck, which depicted Libertas as a female divinity on the reverse, and used various captions to ascribe significant qualifiers to the term: libertas is presented as being publica, restituta or Augusta.34 (fig. 5) It is noteworthy that one of Galba’s successors, Vitellius, diffused the same ideological message in spite of his wish to present himself as the continuation of Nero. The existence of a monetary type struck during Vitellius’ reign depicting Libertas on the reverse, which the caption qualifies as being restituta, can be interpreted as a sign that this notion had become a necessity in the crisis caused by Nero’s death.35 (fig. 6) The definitive end of the crisis that came with Vespasian’s victory and rise to power was reflected in the increase in monetary types referring to libertas 34  R  IC2 Galba 7–9, 22–23, 37–39, 56, 68–76, 136–7, 139, 157–9, 237, 275–6, 294–6, 309–310, 318, 327–8, 347–9, 366–7, 372–3, 387–9, 423–4, 436–43, 459–61 and 479–80. See also CIL, VI, 471 = ILS, 238. See also the coinage from Spain in AD 68, which depicts the head of Libertas on the obverse and a near replica image of the reverse of Brutus’ Ides of March coin, with the legend LIBERTAS P.R. RESTITUTA (RIC2 Civil Wars 24–25 ; see also RIC2 Civil War 26–28, 57–58, 64–66, 130, 133 for other uses of libertas on the coinage produced in the west during AD 68). 35  R IC2 Vitellius 9–10, 43–4, 69, 80–1 and 104–105.

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figure 6 RIC2 Vitellius 104. Aureus. AD 69 Ex Hess Divo AG, Auction 330, 21 May 2016, lot 31 (copyright coinarchives)

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RIC2 Vespasianus 209. Sestertius. AD 71 Kunsthistorisches Museum Wien Münzkabinett, Inv: RÖ 6477

in one way or another. The founder of the Flavian dynasty qualified himself at the beginning of his reign as the ‘defender of public liberty’ on coins, whose caption suggests that this title had been attributed by the Senate and the Roman people.36 (fig. 7) Like Galba, he also had other coin types minted, which included libertas publica37 or libertas restituta.38 This analysis for the years AD 68–69 also applies to the period following Domitian’s assassination in AD 96. Condemnation of Domitian’s tyrannical behaviour was driven by the coin issues struck by Nerva, which also included references to libertas publica,39 (fig. 8) and by an official dedication to the libertas restituta.40 36  S PQR adsertori libertatis publicae, RIC2 Vesp. 35, 121–4, 207–10 and 252. Adsertor libertatis is also used on civil war coinage (RIC2 Civil Wars 130). 37  R IC2 Vesp. 63, 82, 87, 137, 141, 173–4, 237, 272, 309–10, 377, 1339, 1345–7, 1384. 38  R IC2 Vesp. 52 and 88–9. 39  R IC2 Nerva 7, 31, 36, 64–5, 76, 86. See also CIL VI, 472. 40  See CIL 6.472 = ILS 274: libertati ab Imp(eratore) Nerua Caesare Aug(usto) anno ab Vrbe condita DCCCXXXXIIX XIII K. Oct restitutae.

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figure 8 RIC2 Nerva 86. Sestertius. AD 97 Ex NAC, Auction 52, 7 October 2009, lot 403 (copyright coinarchives)

The perception of libertas outside of the imperial power generally went in the same direction, albeit with nuances arising from the sensibility of different authors. Tacitus was critical of the content of this libertas from the imperial period, which he presented as a falsa species41 or corrupt,42 thereby suggesting that it had disappeared after Augustus’ victory at Actium. Yet it was also he who positively defined the imperial regime as ideally being a ‘mix’ of principatus and libertas, consequently making the latter notion a constituent element of monarchical political culture.43 In view of the preceding considerations, this idea, which was expressed during the period of transition between the Flavian and Antonine dynasties, appears not as an original given, but as the result of a continually evolving regime that redefined itself according to the circumstances, using a particular pars of the res publica at one moment instead of another. The negative behaviour of numerous emperors toward senators and the subsequent assassination of these emperors were indisputably the ele­ments that gave libertas a visibility that it had not had since the 30s and early 20s BC. An example of the renewed topicality of libertas can be found in the writings of Seneca, which date from the reign of Nero. Seneca’s reflections on the philosophical freedom of the wise man are driven by reference to political liberty, which is itself defined as the absence of fear in the face of the powerful, and as such the antithesis of tyranny. Without going so far as to condemn Nero, or at least not before he expressed his radical opposition in the definitive form of suicide, the philosopher did not hesitate to denounce the attitude of another 41  Tac. Hist. 1.1.2: quippe adulationi foedum crimen seruitutis, malignitati falsa species liberta­ tis inest (‘for flattery is subject to the shameful charge of servility, but malignity makes a false show of independence’). 42  Tac. Ann. 1.75.1: sed, dum ueritati consulitur, libertas corrumpebatur (‘Still, while equity gained, liberty suffered’). 43  Tac. Agr. 3.1: et quamquam primo statim beatissimi saeculi ortu Nerua Caesar res olim dis­ sociabilis miscuerit, principatum ac libertatem, augeatque cotidie felicitatem temporum Nerua Traianus (‘from the first, from the very outset of this happy age, Nerva has united things long incompatible, Empire and liberty; Trajan is increasing daily the happiness of the times’). See Lyasse 2003.

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emperor who had lived not too long ago, Caligula, who was guilty of having instilled a climate of terror that fostered the most servile and most heroic behaviour.44 As a result, the two forms of liberty – collective and political on the one hand, and personal and philosophical on the other – coexisted in his work and were inseparable, the first never being far from the second. This general insistence on libertas thus flourished during the mid-first century AD, and was naturally projected on the Augustan period, all the more so as the first emperor was seen as having maintained good relations with senators, although this taste for analogy resulted in a deformation of historical reality. This is what Emmanuelle Rosso has called ‘the anamorphosis of the Augustan image’,45 a phenomenon in which Augustus’ image is adapted a posteriori to the new context, subsequently distorting it through analogy by emphasizing one tendency instead of another.

…



Conclusion: Complementarity and interdependence of libertas and auctoritas

In discussing the connections between res publica and libertas, which is central to this collective reflection, my study has opted to introduce a third notion that is also inseparable from the res publica, auctoritas. This is not a matter of uselessly complicating an already complex research subject. The central idea underpinning this comparison between libertas and auctoritas is to show, by way of contrast, the use and specificity of the first notion at a time when Augustus refounded the res publica by appropriating the supremacy of the second notion. The choice not to study libertas in isolated fashion presents at least two advantages. It takes a step backwards from this notion, which was only a constituent element – a pars – of the res publica among many others. It also prompts analysis of the relations between liberty and authority, a central question that Hannah Arendt raised by studying how these two values, far from opposing one another, actually connect. She underscored this point by specifying that ‘authoritarian government committed to the restriction of liberty remains tied to the freedom it limits to the extent that it would lose its very substance if it abolished it altogether, that is, would change into tyranny’

44  Sen. Ben. 2.12: inuenit aliquid infra genua, quo libertatem detruderet; Tr. 14.4–10. 45  Rosso 2009, 210.

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(emphasis of Arendt).46 It is worth raising this question for both Augustan and Imperial Rome – where the appropriation of auctoritas by the princeps coexisted with both the assertion of libertas by this very same princeps as well as the affirmation of the struggle against tyranny – and to attempt an answer using a traditional method. An inventory of the sources referring to Augustus’ use of these two notions reveals that both libertas and auctoritas are not frequently attested during this period. This discretion, however relative it may be for a period in which primary sources remain comparatively small in number, is nonetheless significant. The causes of this discretion also differ depending on the term, libertas or auctoritas. The first notion was activated and emphasized by Augustus in the context of a struggle between factions, namely his against that of Mark Antony, although it stopped appearing in official language in the mid-20s BC once the new regime had been established, most certainly because the res publica was now considered to be definitively ‘liberated,’ and reminders were no longer needed to for this state of facts. Augustus’ recourse to the second notion is explicitly attested during his reign, when Augustan libertas disappeared from the documentation, although only in a few instances, of which there are four to my knowledge: the primary reason for this low number of mentions is that at the outset, auctoritas was still considered a value closely linked to the Senate, with the transfer of the Senate’s auctoritas to that of the princeps being a process that took place over a number of decades. From this point of view, the years 28–27 BC, which saw the reforms following Augustus’ military victory, were a pivotal moment, one in which the assertion of libertas gave way to a long and enduring quest for auctoritas. In the end, it is not a question of revisiting the shared notion that auctoritas and libertas represent the extra-institutional foundations of the imperial regime, however it is always important to provide the context in which they were used. These two notions can be defined as partes that were both complementary to and inseparable from the res publica, which used them according to the circumstantial interests of the political actors within a particular moment in Roman history. It is in this way that Augustus laid claim to auctoritas very early on, so as to overlap with and later replace that of the Senate, and use to his advantage a traditional notion conferring primacy to the group or individual possessing it. This process ended in the mid-first century AD under the reign of Claudius, from which date the sources almost exclusively refer to auctoritas Augusti without mentioning the Senate’s intervention, which still took place, or at least mentioning it only on rare occasions. It is significant that libertas, 46  Arendt 1954a, 96; see also Brunt 1988, 322–30.

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which was defined as ‘the quintessence of the city-state and citizenship’47 as opposed to a state of servitude for society or the individual, was revived and reinvigorated after multiple decades on standby by senators following the assassination of Caligula in 41, at a time when they proposed the possibility of restoring the Republic – a possibility that was quickly abandoned. It was only after the rise of Claudius that imperial power again seized upon this notion, and made systematic use of it during the second half of the first century AD after reigns – or portions of reigns – marked by poor relations between the princeps and the Senate, which the senators experienced as tyranny. This brief imperial history of libertas shows that while this value never disappeared after and in spite of the fall of the Republic, at least in people’s minds it was a movable reality connected to the context, such that it was more visible during certain periods (the 30s BC up to 27 BC, and once again beginning in AD 41 until the late first century AD) rather than others (between 27 BC and AD 41). What subsequently emerges from the preceding remarks is that the central issue was relations between the princeps and the Senate, with the former gradually seizing upon – in accordance with the circumstances – the partes of the res publica that the latter had claimed. The Roman res publica emerges as a sufficiently malleable reality, one that could transform itself without losing its essence as long as its traditional values such as auctoritas and libertas endured, by adapting to the new circumstances arising from the birth of a new regime. It is this flexibility that helps explain its survival within a monarchical environment – and extended its lifespan by a number of centuries. As Ovid precisely pointed out in his revealingly titled Metamorphoses, written in the context of transition between the Republic and the imperial regime, omnia mutantur, nihil interit: ‘everything changes, nothing perishes’.48 It was because libertas and auctoritas transformed that they began a new life starting with Augustus, one that was as interesting in its own right and as long-lived as their first one.

Bibliography

Arena, V. 2012. Libertas and the Practice of Politics in the Late Roman Republic. Cambridge. Arendt, H. 1954a. ‘What is Authority’, in H. Arendt (ed.), Between Past and Future. Six Exercices in Political Thought. New York, 91–141. 47  Arendt 1954b, 157. 48  Ov. Met. 15.165.

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Arendt, H. 1954b. ‘What is Freedom’, in H. Arendt (ed.), Between Past and Future. Six Exercices in Political Thought. New York, 143–71. Barrandon, J.-N., Suspène A. and Gaffiero A. 2010. ‘Les émissions d’as au type Diuus Augustus pater frappées sous Tibère. L’apport des analyses à leur datation et à leur interprétation’, Revue de Numismatique 6.166, 149–73. Berthelet, Y. 2015. Gouverner avec les dieux. Autorité, auspices et pouvoir, sous la République romaine et sous Auguste. Paris. Bettini, M. 2005. ‘Auf unsichtbaren Grundlagen. Eine linguistische Beschreibung der auctoritas’, in G. Melville (ed.), Das Sichtbare und das Unsichtbare der Macht. Institutionelle Prozesse in Antike, Mittelater und Neuzeit. Cologne-Weimar-Vienne, 237–58. Biscardi, A. 1987. Auctoritas patrum. Problemi di storia del diritto pubblico romano. Naples. Blösel, W. 2000. ‘Die Geschichte des Begriffes mos maiorum von den Anfängen bis zu Cicero’, in B. Linke, M. Stemmler (eds.), Mos maiorum. Untersuchungen zu den Formen der Identitätsstiftung und Stabilisierung in der römischen Republik. Stuttgart, 25–97. Brunt, P.A. 1988. The Fall of the Roman Republic and related Essays. Oxford. Clemente Fernández, A.I. 2013. La auctoritas romana. Madrid. Cogitore, I. 2011. Le doux nom de liberté. Histoire d’une idée politique dans la Rome Antique. Bordeaux. David, J.-M., Hurlet, F. (eds.) 2020. L’auctoritas à Rome. Un élément constitutif de la cul­ ture politique. Bordeaux. Dettenhofer, M.H. 2003. ‘Das Interregnum des Senats im Januar des Jahres 41 n. Chr.’, in P. Defosse, Hommages à Carl Deroux, III – Histoire et épigraphie, droit. Brussels, 187–99. Galinsky, K. 2015. ‘Augustus’ Auctoritas and Res Gestae 34.3’, Hermes 143, 244–9. Heinze, R. 1925. ‘Auctoritas’, Hermes 60, 348–66 (= ‘Auctoritas’, in Id., Vom Geist des Römertums. Ausgewählte Aufsätze. Darmstadt, 43–58). Hellegouarc’h, J. [1963] 1972. Le vocabulaire latin des relations et des partis politiques sous la République. Paris. Hiltbrunner, O. 1988. ‘Auctoritas’, in O. Hiltbrunner (ed.), Bibliographie zur lateinischen Wortforschung, t. 3: Atrax – causa. Berne-Stuttgart, 30–65. Hurlet, F. 2020. ‘De l’auctoritas senatus à l’auctoritas principis. À propos des fondements du pouvoir impérial’, in J.-M. David et F. Hurlet (eds.), L’auctoritas à Rome. Un élément constitutif de la culture politique. Bordeaux, 351–368. Lyasse, E. 2003. ‘La notion de libertas dans le discours politique romain, d’Auguste à Trajan’, Ktèma 28, 63–69. Moatti, C. 2018. Res publica. Histoire romaine de la chose publique, Paris.

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Mommsen, Th. 1865, 18832. Res gestae diui Augusti ex monumento Ancyrano et Apol­ loniensi. Berlin. Nippel, W. 2007. ‘The Roman Notion of Auctoritas’, in P. Pasquino and P. Harris (eds.), The Concept of Authority. A multidisciplinary approach: from epistemology to the so­ cial sciences. Rome, 13–34. Ramsay, W.M. and A. von Premerstein. 1927. Monumentum Antiochenum. Die neuge­ fundene Aufzeichnung der Res Gestae Divi Augusti im Pisidischen Antiochia. Klio 19, Leipzig. Rosso, E. 2009. ‘Le thème de la ‘Res publica restituta’ dans le monnayage de Vespasien: pérennité du ‘modèle augustéen’ entre citations, réinterprétations et dévoiements’, in F. Hurlet and B. Mineo (eds.), Le principat d’Auguste. Réalités et représentations du pouvoir. Autour de la Res publica restituta. Rennes, 209–42. Rowe, G. 2013. ‘Reconsidering the Auctoritas of Augustus’, JRS 103, 1–15. Stahl, M. 2008. ‘Auctoritas und Charisma: die Bedeutung des Persönlichen in der Herrschaft des Augustus’, Potestas 1, 23–34. Suspène, A., Blet-Lemarquand, M., Hochard, P.-O., Flament, J. and Gehres B. 2018. ‘Un exemple d’enquête numismatique et archéométrique: les aurei des Libérateurs Brutus et Cassius dans le cadre du projet Aureus’, BSFN 73–6, 210–217. Wirszubski, Ch. 1950. Libertas as political Idea at Rome during the Late Republic and Early Principate. Cambridge.

chapter 10

A Great and Arduous Struggle: Marcus Antonius and the Rhetoric of Libertas in 44–43 BC Jeff Tatum Is this the part of wise men, engaged in a great and arduous struggle for liberty? Patrick Henry, Speech to the Second Virginia Convention, 23 March 1775

∵ 1

Freedom Fighters

For the Romans, civil wars were wars of liberation. Sulla was the first to say so, and, when his turn came, Caesar said likewise.1 But libertas can become anyone’s battle-cry and at Pharsalus Pompey and Caesar alike claimed to be champions of liberty.2 The expression favoured in these contests – in liberta­ tem vindicare – has been dismissed as hackneyed by Wirszubski and ridiculed by Syme as ‘a convenient term of political fraud.’3 This was nevertheless a metaphor the attraction of which did not fade. And one can see why. In li­ bertatem vindicare was the legal rescue of a free person wrongly relegated to slavery, and the vindex in this operation was a private citizen acting selflessly and on his own initiative against someone doing a bad thing.4 Caesar, by dint of his victory, preserved his and the people’s libertas, or so he insisted.5 Hence the Senate’s proclamation after Munda that he was Rome’s first Liberator – an

1  Sulla: App. BC. 1.57 (ὁ δ’ εἰπεν, ἐλευθερώσων αὐτὴν ἀπὸ τῶν τυραννούντων); cf. Caes. B.Afr. 22.2 (describing Pompey’s actions during that war). Caesar: Caes. BC. 1.22.5. 2  Caes. BC. 3.91; Dio 41.57.1–3. 3  Wirszubski 1968, 100–6. Fraud: Syme 1939, 155 (cf. p. 152: ‘Merely to accuse one’s opponent of regnum or dominatio–that was too simple, too crude.’) 4  Dig. 6.1.1.2; Gai. Inst. 1.134; cf. Kaser 1971, 114–5. 5  Caes. BC. 1.7.7; 1.22.5; cf. Tatum 2008, 140–2; Morstein-Marx 2009.

© Jeff Tatum, 2020 | doi:10.1163/9789004441699_012

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honour enhanced by legislation furnishing him with the same sacrosanctitas enjoyed by the telum libertatis, a tribune of the plebs.6 Rome’s Liberator was presently to become dictator perpetuo, a transformation that led to his assassination at the hands of men who also styled themselves Liberators.7 Before acting, however, these same men had been obliged to surmount significant moral and religious obstacles to any act of vindication that entailed doing Caesar physical harm: they were his amici; they had sworn an oath to preserve his life; they were prohibited from laying violent hands on the man. Still, these clever men found in the principles of Greek philosophy a sufficient basis on which to justify murdering their friend.8 In the aftermath of Caesar’s death, however, it quickly became clear that not everyone was persuaded by the Liberators’ casuistry – as a famous letter by Gaius Matius underlines.9 Nor was everyone convinced, as Matius certainly was not, that Caesar was a tyrant. The Liberators did not make their case only by way of philosophy or only for an audience composed of men so elite as the equestrian Matius. They were fully seized of the shock Caesar’s murder must incite among the general public, who could only be offended by the Liberators’ apparent ingratitude toward their common friend and outraged by their impiety in striking down a man protected by oath. For any man who violated the dictator’s sacrosanctitas became thereby a homo sacer, who could himself be killed with impunity – and whose presence in the city threatened the Republic with contagio, pollution and blight, until the anger of the gods was appeased.10 The sensibilities of the crowd, no less than Matius’, demanded legitimacy of a kind that could not be supplied by syllogisms. Which is why the Liberators appealed to the public through a different and complementary register, foregrounding sacred claims and symbolic gestures of a traditional and practical Roman quality. Their focus lay on tradition and religion, and they were determined to parade before the people evidence of their claim that, because he had become a tyrant, Caesar had himself become a homo sacer. This claim did not lack foundation. At the very beginning of the 6  D  io 43.44.1; cf. Weinstock 1971, 142–5; Raaflaub 2003. Caesar’s sacrosanctitas: Nic. Dam. 80; Livy Per. 116; App. BC. 2.106; 2.44; Dio 44.5.3; 50.1; cf. Mommsen StR 2.872; Weinstock 1971, 220–1. The tribunate the telum libertatis: Sall. Hist. 3.48.12M = 3.34.12McGushin.; cf. Pellam 2015. 7  Sources assembled at MRR 2.317–22. 8  Sedley 1997; Tatum 2008, 154–64; Sigmund 2014, 183–93; Tempest 2017, 78–100. 9  Gaius Matius on Caesar’s murder: Cic. Fam. 11.28; cf. Griffin 1997. 10  homo sacer: Fest. 422L; Macr. Sat. 3.7.5–8; Mommsen Strafr. 550–5; Liou-Gille 1997, esp. 75–81. contagio: Latte 1960, 47–50; Linderski 2007, 114; Lennon 2012.

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Republic, so it was believed, Lucius Brutus obliged the people to swear an oath that they would never again suffer a monarch to reign, and Valerius Publicola carried legislation that rendered the life and property of anyone plotting to seize regnum forfeit to Jupiter.11 This ancient law was, like the law protecting Caesar, a lex sacrata and its violator a homo sacer. His elimination was a sacred duty.12 Anyone who struck down any would-be rex could not be deemed guilty of parricidium.13 The apposite exemplum was Gaius Servilius Ahala, from whom M. Brutus claimed descent.14 But he was not the only pertinent precedent. Publius Scipio Nasica (cos. 138), like Ahala a private citizen, had famously or notoriously called upon his fellow citizens to join him in saving the Republic by lynching a tribune of the people – an instance in which the sacrosanctitas of a tribune was deemed by some to be trumped by his condition as a homo sacer threatening the freedom of the city.15 Romans favourable to Nasica linked him with L. Brutus on the basis of their common private initiative, deeming each in his own way a vindex libertatis.16 The death of Tiberius Gracchus, of course, was not the last time Romans killed one another in the name of freedom. A sequence of controversial conflicts, including the recent civil war, meant there was nothing recondite or far-fetched about the Liberators’ evocation of the 11  Oath of L. Brutus: Livy 2.1.9; Dion. Hal. Rom. Ant. 5.1.3; Plut. Popl. 2.2. Policola’s law: Livy 2.8.2 (cf. 3.55.7); Dion. Hal. Rom. Ant. 5.19.4; Plut. Popl. 11.2; 12.1; Dig. 1.2.2.16 & 23; Mommsen StR 2.15–6. Discussion: Liou-Gille 1997, 71–5. A high degree of legend must be associated with this law; nonetheless, by the first century it had become a fixture of Roman sensibilities. 12  Fest. 422L; Marc. Sat. 3.7.5–8; Mommsen Strafr. 550–5; Liou-Gille 1997. 13  Slaying a (would be) tyrant is (by definition) not parridicium: Fest. 422L: At homo sacer … neque fas est eum immolari, sed, qui occidit, parricidi non damnatur; nam lege tribunicia prima cavetur: si quis eum, qui eo plebei scito sacer sit, occiderit, parricida ne sit; cf. Macr. Sat. 3.7.5: … hominem sacrum ius fuerit occidi. At Phil. 1.35 Cicero describes Caesar as a man: … ut non modo impune sed etiam cum summa interfectoris gloria interfici possit. On parricidium in (early) Rome: nam parricida non utique is, qui parentem occidisset, diceba­ tur, sed qualemcumque hominem indemnatum. ita fuisse indicat lex Numae Pompili Regis his composita verbis: si dolo sciens morti duit, parricidas esto (Fest. 247L; cf. Plut. Rom. 22.4). The matter remains controversial; see Magdelain 1984; Crawford 1996, 702–3. 14  M RR 1.56. See Lintott 1970; Smith 2006. M. Brutus and Ahala: Cic. Att. 2.4.2–3; 13.40.1; Brut. 331; Phil. 2.26; RRC 455–6; Clark 2007a, 150–3; Tempest 2017, 41–2. 15  Val. Max. 3.2.17; cf. Cic. Tusc. 4.51; Vell. 2.3; App. BC. 1.68; Plut. Ti. Gracch. 19.3. 16  P. Scipio Nasica (cos. 138) and freedom: Cic. Rep. 2.46 ([L. Brutus] cum privatus esset); Brut. 212 (privatus in libertatem rem publicam vindicavit); cf. Cooley 2009, 106–7. Tribunician sacrosanctitas versus homo sacer: Badian 2004; Flower 2006, 70–6; Linderski 2007, esp. 113–4; Clark 2007b; Wiseman 2009, 185–7; Várhelyi 2011. The complications confronted by the Romans when addressing this issue are approached from a different perspective by Moatti 2018, 101–6; 109–14.

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Romans’ sacred duty to save the city from regnum. This was strong stuff. But also volatile, contentious stuff. In the din and confusion following the assassination, spectacle offered the best medium for communicating the Liberators’ case. And by way of a solemn parade through the forum and up the Capitoline the Liberators, brandishing their daggers in evocation of the statue of L. Brutus toward which they advanced, exhibited by way of pageantry an assertion of the sacred quality of their tyrannicide.17 On their own initiative, they had kept the faith and saved the Republic from servitude: they, too, were vindices libertatis, a point Cicero would later insist on (Phil. 2.30). Here we find an appeal to mos maiorum and not a justification adapting the principles of an alien wisdom. The Liberators’ variegated justifications make it clear how, in communicating the claims of libertas, it was necessary to operate in more than one register – and in reaction to rival professions of fidelity to the right Roman values. 2

Antonius a Tyrant?

The agreement of 17 March, intended to resolve all conflict over the status of Caesar and tyrannicides alike, instead perpetuated the controversy by granting official sanction to what Cicero later denigrated as a profoundly tasteless and incoherent policy.18 However statesmanlike its aspirations, the agreement, because it simply suspended contrarieties, remained unstable and therefore always vulnerable to any political pressure. Tensions, anxieties, and uncertainties 17  The Liberators’ pageant: Liberators exhibit a pilleus and invoke the oath of L. Brutus: App. BC. 2.119; cf. Nic. Dam. 92. They exhibit daggers, a reference to the statue of L. Brutus on the Capitol: Plut. Brut. 1.1 (the statue brandishes a dagger). They wrap their togas round their left arm, recalling Scipio Nasica: App. BC. 2.119 (who believes this is a measure for self-defence); cf. Nasica at Vell. 2.3.1; Val. Max. 3.2.17; Plut. Ti. Gracch. 19.3–4 (see the discussion by Clark 2007). The Ides sacred to Jupiter, with processions to the Capitol: Ov. Fast. 1.56; 1.587–8; Macrob. Sat. 1.15.14–8; cf. Wissowa 1902, 100–1 (who assembles further evidence). The significance of the Capitoline: Wissowa 1902, 110– 3; Hölkeskamp 2004, 137–68; Rhea 2007; Russell 2016, 105–10; by the late Republic there was a statue of the Athenian tyrannicides on the Capitol, probably in the temple of Fides; its origins are unclear: Flower 2006, 109–10; Pina Polo 2006, 88–92. On the symbolism of Roman processions, see Flaig 2003, 32–68; Flower 2004; Bell 2004, 34–7; Sumi 2005, 16–47; Hölkeskamp 2017, 189–236; Rosillio López 2017, 42–64. One civic ritual evokes another: Hölkeskamp 2017, 227–30 (eine Art ,Supra-Syntax’); Tatum 2018, 32–7. 18  17 March agreement: Cic. Att. 14.11.1; 14.6.1–2; 14.2; Phil. 1.4.3; 2.89; App. BC. 2.126ff.; Dio 44.22.2–34.1. Its solecistic qualities: quid enim miserius quam ea nos tueri propter quae illum oderamus? … nihil enim tam σόλοικον quam tyrannoctonos in caelo esse, tyranni facta defindi (Cic. Att. 14.6.2).

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naturally persisted. Antonius, because he was the consul who brokered the agreement, was at first praised for his devotion to concord, but by April attracted disapproval and by June was denigrated as a tyrant.19 His unexpected clout and the overweening manner in which he exercised it rendered him objectionable to some, and his sleazy profiteering from public office attracted numerous detractors. Amidst the nervousness of the post-Ides period, when Antonius secured by plebiscite an extraordinary command over the two Gauls, he made it easy for his opponents to decry his apparently autocratic designs.20 Cicero certainly did, and in the Philippics Antonius becomes an existential threat to republican freedom. It was not enough, however, to depict Antonius as a menace. Cicero also supplied a defence for the Liberators – and for Antonius’ adversary the young Caesar. One of his key arguments, as Valentina Arena has demonstrated, consisted in the elevation, by way of Stoic elaboration, of the privatum consilium of defenders of libertas like L. Brutus or Scipio Nasica to a rational principle predicating libertas on individual virtue enacted in the service of the Republic – service sometimes untethered from official institutions.21 Thus Brutus and Cassius rightly become their own senates (Cic. Phil. 11.26–7) and their own lawgivers (Cic. Phil. 11.28), and any unsanctioned or constitutionally questionable actions on the part of D. Brutus or Octavian find legitimacy in their necessity as a means of liberating Rome.22 In this way, Cicero continues the discourse of freedom that animated the Liberators and so makes the case that resisting Antonius is of a piece with the tyrannicide that initiated the struggle which is the subject of the Philippics. Now Arena’s take on Cicero’s arguments admirably describes the Third Philippic and elucidates numerous other passages from these speeches. At the same time, it must be observed, traditional Roman values also retain a secure place in Cicero’s rhetoric. Even the Third Philippic concludes with a proposal to furnish D. Brutus and Octavian with the traditional legitimacy of a senatus con­ sultum (Phil. 3.37–9). And throughout the Philippics the orator insists that his side stands for leges, iura, iudicia – all good traditional things (e.g. Phil. 8.8;12; cf. Phil. 13.1). But, of course, he does: preserving the traditional Republic is the real work to which Cicero puts his philosophising. Modern critics of Cicero have sometimes objected to these inconsistencies, but it surely makes better sense to recognise how, in making the case for his and his allies’ defence of 19  Antonius worrying: Cic. Att. 14.12.1 (22 April). Antonius a tyrant: Vell. 2.61.1; Plut. Ant. 15.4; cf. Cic. Phil. 3.29; 3.34; 5.44; 12.14–5. 20  Antonius’ Gallic command (June 44): MRR 2.316. 21  Arena 2007; Arena 2012, 261–6. 22  See, for instance, Cic. Phil. 3.5: qua peste rem publicam privato consilio – neque enim fieri potuit aliter – Caesar liberavit.

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libertas, Cicero is operating in more than one register, as the Liberators had done before him. Though his arguments may vary, their purpose is always the same: to isolate Antonius. In this crucial sense, the man is a very stable genius. It is amid and against this discourse that Antonius was finally obliged to repel accusations of tyranny and articulate an account of his own arduous struggle for libertas. This was self-fashioning that took place gradually and required of Antonius both that he modify and jettison positions taken by him in the immediate aftermath of Caesar’s death. Not every phase of this development can be recovered, of course, and here I will focus mostly on Antonius’ public letter to Hirtius and Octavian preserved in Philippics 13. In discussing this document, I will also adduce reports of Antonius’ oratory and actions in Cicero’s correspondence and in Philippics 2, 5, and 8. 3

Antonius’ Letter to Hirtius and Caesar: parricidium

By the beginning of 43 Antonius, prosecuting his legal claim on the administration of Gaul, was besieging the recalcitrant D. Brutus in Mutina.23 In Rome Cicero led the opposition to Antonius, not without some success. Young Caesar and the consul Aulus Hirtius, dispatched by the Senate to relieve Brutus, were soon encamped nearby. Military action, however, was postponed by a senatorial embassy to Antonius and subsequent debates over its result. A significant slice of the Senate continued to desire peace, and on the day Cicero delivered his Thirteenth Philippic (not later than 20 March) letters had reached the Senate from Antonius’ associates, L. Munatius Plancus (cos. 42) and M. Lepidus (cos. 46), which urged the body to reach a settlement.24 Antonius’ letter was also circulating by this time. This letter, ostensibly personal but plainly a specimen of public propaganda, pretends to appeal to Hirtius and Octavian to abandon Cicero and the Liberators in order to join in punishing Caesar’s murderers.25 Now the word libertas does not appear anywhere in this letter, an absence perhaps marked by the presence of liberare in an amusing if 23  Sources assembled at MRR 2.342–3. 24  Cic. Fam. 10.6; Fam. 10.27; Phil. 13.7–21; 13.49. 25  A reconstruction of Antonius’ letter (too long to reproduce here) built from the excerpts cited in Cicero’s speech is furnished by Lintott 2008, 445–7 (with English translation). Discussions include: Drumann-Groebe 1899, 213–5; Frisch 1946, 256–66; Rossi 1959, 92–3; Botermann 1968, 67–71; Cugusi 1979, 274–83; Huzar 1982, 644; Ortmann 1988, 335–7; Novielli 2002, 24–31; Matijević 2006, 260–8 (on Antonius’ Caesarian stance at Mutina generally); Lintott 2008, 400–1; Pasquali 2009, 109; Halfmann 2011, 86; van der Blom 2016, 275; Hodgson 2017, 208–10.

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unsavoury expression.26 Still, Antonius’ letter participates, pointedly, even aggressively, in a contest over libertas centring round Caesar, his assassination, and supervening events. Cicero took Antonius’ letter so seriously that he designed the whole of his Thirteenth Philippic around it. It is the latter part of this speech, with its detailed dismemberment and gainsaying of Antonius’ letter, that preoccupies many modern readers, to the point that one distinguished scholar has argued that the true purpose of Cicero’s confrontation with the letter is largely epideictic, a long-distance contest of eloquence.27 This approach unfortunately distracts from the letter’s political significance. Nor do I find it convincing. Altercatio, admittedly necessary in the cut and thrust of senatorial debate and a crucial forensic technique in the examination of witnesses, was excluded by serious authorities on rhetoric – including Cicero – from the highest elements of the orator’s art; instead it was generally deemed a superficial tactic.28 Which was not the medium in which an orator like Cicero was likely to want to test his eloquence. In reality Cicero engages with the substance of Antonius’ letter throughout his speech, from its introductory condemnation of civil war and praise of peace to its aggressive ingratiation of Lepidus even to its conclusion’s laudatory notice of Sex. Pompeius – all issues adduced in reaction to Antonian claims in this letter. Even at a line-by-line level, Cicero frequently rewrites and rebuts Antonius’ position. For instance, early in his speech Cicero strikes a live-free-or-die posture: aut enim interfectis illis fruemur victrice re publica aut oppressi – quod omen avertat Iuppiter! – si non spiritu at virtutis laude vivemus (Cic. Phil. 13.7: ‘either they shall perish and we shall enjoy a triumphant republic or, should we be defeated – may Jupiter avert the omen – we shall live, not with breath but with glory’). This asseveration is clearly a proleptic retort to Antonius’ revenge-Caesar-or-die stance in his letter: si me rectis sensibus euntem di immortales, ut spero, adiuverint, vivam libenter. Sin autem me aliud fatum manet, praecipio gaudia suppliciorum vestrorum (Cic. Phil. 13.45: ‘if the immortal gods, as I hope, aid me as I go forward, correct in my grasp of things, I shall live happily. But if another fate awaits me, I take pleasure in anticipating the punishment in store for you’). Examples of this brand of response could be multiplied, and that is where the real artistry of this speech lies.

26  Cic. Phil. 13.24: et ut venefica haec liberetur obsidione. 27  Contest of eloquence: Ramsey 2010. On Antonius’ oratory, see Mahy 2013; van der Blom 2016, 249–79. 28  Altercatio is artless: Cic. Flacc. 22–3; Quint. 5.7; 6.4. On the (relatively unimportant) role of cross-examination in Athenian courts, see Todd 1990.

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Antonius’s letter commences and concludes with the issue of vengeance (Cic. Phil. 13.22 and 13.46), notwithstanding an important coda aimed at the Senate. And in a recent unpacking of this letter by Louise Hodgson in her close study of the complexities of the idea of res publica in republican Rome, the letter’s significance is reduced exclusively to the theme of vengeance. On that basis it is deemed conceptually impoverished in contrast with the loftier and more elevated rhetoric of libertas voiced by Cicero or the tyrannicides.29 It will soon be clear that I read Antonius’ letter differently, and I believe his contemporaries did too. Although Antonius wraps his epistle by way of appeals to vengeance, in it he advances a broader, bolder claim. The circumstances of 43, he insists, reprise, or rather continue, the conflict of 49. The Liberators and those who enable them are effectively united by the same hostility against Caesar that defined the Pompeians of the civil war, a parallel Antonius elaborates by rehearsing themes and redeploying language from that time. In the end, as Antonius’ readers knew well, Caesar was obliged to fight for prestige and for freedom. For Antonius and those who agree with him, this struggle persists. Now Antonius complained elsewhere, correctly, that D. Brutus’ refusal to hand over his province was an unconstitutional rejection of the people’s will.30 An issue of libertas was clearly raised by this standoff, but Antonius does not mention it in his letter, perhaps because it was too obvious a point to make under the circumstances. Instead he justifies his siege of Mutina on the basis of his desire to avenge Caesar’s murder. From the start, at least according to Appian, Antonius had rejected the tyrannicides’ claim that in rejecting Caesar’s sacrosanctitas they acted correctly and justly (BC. 2.124), and it is clear, whatever version of Caesar’s funeral we prefer, how in his oration Antonius drew attention to the oaths and sacred safeguards that ought to have protected the dictator from assassination, thereby foregrounding in the popular mind the religious culpability of the Liberators.31 By September 44 Antonius had begun in earnest a campaign aimed at undermining their legitimacy, notwithstanding the pardon granted them by the amnesty of 17 March. In his Second Philippic Cicero responds to Antonian assertions, perhaps advanced in his speech of 19 September, that the so-called Liberators were in fact were parricides (Phil. 2.30–1). Antonius had not yet broken with the amnesty, a point Cicero stresses (Phil. 2.31–2), and so the orator demands that the consul make 29  Hodgson 2017, 208–10. 30  App. BC. 3.49; 3.62–3. 31  Competing versions are furnished by Suet. Iul. 84 and App. BC. 2.144–7 (cf. Plut. Ant. 14.6– 8; Brut. 20.4). The crowd’s violent reaction to Antonius’ speech is underlined by Cicero (Phil. 2.91; Att. 14.10.1). Dio 44.36–49 is a transparent fiction.

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up his mind over the Liberators’ standing. He does so by way of offering him a dilemma: … utrum illi qui istam rem gesserunt homicidaene sint an vindices libertatis (Phil. 2.30) … those who committed this deed are either murderers or restorers of freedom confiteor eos, nisi liberatores populi Romani conservatoresque rei publi­ cae sint, plus quam sicarios, plus quam homicidas, plus etiam quam par­ ricidas esse, si quidem est atrocius patriae parentem quam suum occidere (Phil. 2.31) I confess that these men, unless they are liberators of the Roman people and deliverers of the Republic, are worse than assassins, worse than murderers, worse even than parricides, for it is indeed a more terrible thing to slay the father of one’s country than one’s own father. Here the tyrannicides must be vindices libertatis or parricidae. And if the latter it must be owing to their murder of Rome’s patriae parens, a forceful albeit metaphorical charge against them that may originate with Antonius.32 The connection between parens and parricidium is an obvious one, but we must not forget how, in view of the Liberators’ assertion that, owing to his tyranny, Caesar was homo sacer, parricidium had by this time become a word charged with political provocation. Here, too, the word conjures its ancient definition and the Liberators’ claim that the killing of Caesar did not render them parricidae. By October, Antonius was aggressively pursuing his claim that the Liberators were indeed parricides, as Cicero informs Cassius in a letter written in early October. Antonius, he complains, was isolating the Liberators, and perhaps Cicero along with them, through official public gestures and searing oratory:

32  Caesar as patriae parens: Weinstock 1971, 200–5; Crawford 1974, 494–5; Stevenson 2015, 139–52. It appears that Caesar was remembered immediately after his death as patriae parens on a denarius, the design of which Antonius soon appropriated in order to represent his grief at Caesar’s assassination: RRC 480.19 (Caesar as parens patriae); 480.22 (Antonius grieving). On parricidium in metaphor, see Isid. Etym. 5.26.13: et dictum par­ ricidium quasi parentis caedem.

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auget tuus amicus furorem in dies. primum in statua quam posuit in rostris inscripsit ‘parenti optime merito’, ut non modo sicarii sed etiam parricidae iudicemini. quid dico ‘iudicemini’? iudicemur potius. vestri enim pulcher­ rimi facti ille furiosus me principem dicit fuisse. […] consilium omne autem hoc est illorum ut mortem Caesaris persequantur. (Fam. 12.3.1–2). Your friend grows madder every day. In the first place, the statue he erected on the rostra he has inscribed with: ‘deservedly dedicated to the best father’, which means you are now condemned not only as assassins but parricides as well. But why am I saying you are condemned? Rather, we are condemned. For that madman says that I took the lead in that noble deed of yours … These men’s only design is to avenge Caesar’s death. The consul and his associates, Cicero believes, are truly determined to avenge Caesar’s death, a conclusion that draws our attention to parricidium in the opening of Cicero’s letter. Antonius’ association of parridicium with the death of Caesar the father of his country is an unmistakeable repudiation of the Liberators’ claim that Caesar was a tyrant. For it is unquestionably the case that the honorific patriae parens was always intended to signal the preservation of republican liberty. This connection is made clear by Cicero, also hailed as father of his country: C. Marium … vere patrem patriae, parentem … vestrae libertatis atque hu­ iusce rei publicae possumus dicere (Rab. perd. 27) Truly we can call Gaius Marius the father of our country, the parent … of your freedom and of this Republic. me non ut crudelem tyrannum sed ut mitissimum parentem … vident (Dom. 94) They see me not as a savage tyrant but as a gentle parent. non eros nec dominos appellabant eos quibus iuste paruerunt, denique ne reges quidem, sed patriae custodes, sed patres, sed deos (Rep. 1.64) They called those men whom they justly obeyed neither masters nor lords, nor even kings, but rather protectors of the fatherland, fathers, gods.

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hic est enim dominus populi quem Graeci tyrannum vocant; nam regem illum volunt esse qui consulit ut parens populo (Rep. 2.47) For this is the kind of master over a people whom the Greeks call a tyrant; for they prefer to call him king who looks after the interests of his people as if he were a father. As we have seen, the conflict over Caesar’s murder entailed religious controversy, which the Liberators had sought to close down by way of an appeal to traditional, sacred safeguards against regnum. Antonius, again as we have seen, challenged this claim immediately. But it was during his negotiations with the Senate over the siege of Mutina that Antonius both rejected any assertion that Caesar was a tyrant or king and finally repudiated the amnesty of 17 March. He instead pledged to purge Rome of the sacred contagion represented by Decimus Brutus (App. BC. 3.62–3). Antonius’ rejection of the Liberators’ sacred justification, it is obvious, constituted a rejection of their status as Liberators.33 All of which is pertinent to Antonius’ letter, which he begins with rejoicing over Trebonius’ death at Dolabella’s hands, a righteous punishment for par­ ricidium and proof of the power of the gods’ will (Phil. 13.22). Again Caesar is patriae parens (Phil. 13.23). Antonius laments that Servius Galba is serving alongside Hirtius and Caesar, still wearing the dagger he employed in murdering Caesar (Phil. 13.33), an obvious reference to the Liberator’s pageantry on the Ides. He also ridicules the exertions devoted by Hirtius and Octavian to the liberation of Decimus, another snipe against his enemies’ version of libertas, As for himself, he is willing to spare everyone in Mutina except the one man who deserves to die (Phil. 13.35). He concludes his letter by appealing to his readers to join him – and to join Dolabella and Lepidus and Plancus – in avenging the death of Caesar (Phil. 13.38–40). Parricidium remains Antonius’ catchword for concentrating hostility against the Liberators and for undermining their legitimacy. He conjures its ancient definition and its sacred significance in the conflict over Caesar’s status – Liberator or tyrant – in a disagreement that was finally settled only when the Ides of March were declared the Parricidium (Suet. Iul. 88). Cicero, 33  The sacred controversy recurs in our principal sources. The Liberators’ pollution is emphasised by Appian (Welch 2015, 280–5) and Plutarch registers the religious disquiet provoked by Caesar’s assassination (Pelling 2011, 482; Moles 2017, 131–3). In the formulations preserved by Josephus, Antonius was pressing these same points even after Philippi whenever he denounced the Liberators: Joseph. AJ 14.309 (oaths violated and τὸ ἐπὶ Καίσαρι μύσος).

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for his part, resisted Antonius’ appropriation of these highly charged word: more than once in his Thirteenth Philippic he accuses Antonius of parricidium – in the metaphorical sense of attacking one’s patria. And he concludes his dissection of Antonius’ letter by designating it proof of omnia … eius parricidia (Phil. 13.48). The effectiveness of Antonius’ attack on the Liberators is clear from Cicero’s reaction to it. Antonius could scarcely be more explicit in his rejection of the Liberators’ claim to follow in the footsteps of L. Brutus, Servilius Ahala, or even Scipio Nasica. And this letter’s profuse insistence on friendship’s bonds perhaps evokes the feelings of men like Matius, for whom amicitia trumped any of its philosophical evasions. But if Brutus and Cassius and Cicero are not Liberators, what, then, is their correct denomination? 4

Antonius’ Letter to Hirtius and Caesar: partes

Antonius signals vengeance as the right rallying point for anyone who had been Caesar’s friend or ally. But it must be observed that devotion to Caesar was not a necessary condition for being appalled at the Liberators’ treachery and impiety. The obligation to punish his killers was a sacred one – literally. Revenge, Antonius insists, is an issue that must divide the political universe into two categories, one of which he labels, almost certainly unexpectedly, as Pompeian. And here we find a second and equally crucial theme of this letter. Antonius recalls and in doing so imposes on his opposition the description castra Pompeii (Phil. 13.26).34 He employs the adjective Pompeianus (Phil. 13.32; 38) and he refers to the conflicting sides in this struggle as partes, one of which now seeks to avenge Trebonius, the other Caesar (Phil. 13.38). Antonius’ side – partes again – he defines as the one which Pompeius hated (Phil. 13.42), another reprisal of the situation of 49. Antonius’ exposition here is more remarkable than is usually appreciated. Modern historians, after all, tend to explain the events of 44 and 43 in terms of a Caesarian party that frayed apart after Caesar’s death. In which case it can only have been natural for the Romans to speak of partes and Caesariani even after the Ides of March. And yet, as Christian Meier and Peter Brunt demonstrated long ago, it is a mistake to analyse republican political strife in terms of enduring alliances predicated on ideology or even on enduring family 34  Antonius had previously criticised Cicero for his behaviour when serving under Pompeius in the civil war (Phil. 2.37: castra mihi Pompeii … obiecisti), but at that time Antonius’ focus was on Cicero’s inappropriate conduct during wartime.

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alliances.35 This was true in 50 and 49, and it was true in 44 and 43, at least up to a point. In 49, when he was deliberating whether to join Pompeius or Caesar, Cicero recognised how personal a matter it was and appreciated the very different circumstances confronting his brother when making his own decision (Att. 9.6.4). His fellow Pompeians, it is clear, were no more than a temporary coalition of senators brought together by envy or enmity of Caesar or, in some instances, simply by the sudden outbreak of civil war.36 Matters were not radically different on Caesar’s side. Caelius Rufus fought with Caesar because he believed Caesar would win (Fam. 8.14.3), and Asinius Pollio joined Caesar’s camp in order to find a safe haven from his enemies (Fam. 10.31.3). In victory Caesar was able to expand his influence vastly through his benefactions and friendship. Still, the reality of the assassination is itself sufficient for demonstrating the absence of any kind of party loyalty. And nothing in the aftermath of the Ides suggests any kind of Caesarian unity survived the dictator’s death – apart from resentment or even hatred of the Liberators. Lepidus feared plots against his life (Att. 14.8.1). L. Antonius clashed with Dolabella (Att. 14.8.1). Pansa distrusted Antonius (Att. 14.19.2; 15.1.3; 15.22.1). Hirtius fell out with Antonius (Att. 15.6.1– 2) but at the same time remained suspicious of the Liberators (Att. 15.6.2–3). Octavian was suspicious of Hirtius and Pansa (Att. 15.12.2). D. Brutus disapproved of Octavian, even when Cicero endorsed him and Decimus needed him (Fam. 11.7.2).37 The animosity between Antonius and Octavian can hardly require elaboration. Even the many small-fry senators who in 44 owed their elevation to their relationship with Caesar were too motley a crew to have had much in common after the benefactor’s death.38 The temporary quality of even the firmest alliances is reflected in Latin usage. Partes, like factio, does not signal anything like a faction or a party in English political discourse. This is well known. Although they are occasionally deployed in tandem (e.g. Caes. BG. 6.11–12; Sall. BJ. 41.1), partes, unlike factio, is rarely pejorative. The word is usually introduced simply for the sake of clarification: this side and not that one, true even in a senatorial division. This is commonest in descriptions of battles or the manoeuvring of troops. Pertinent to Antonius’ letter, however, is the employment of partes to indicate a side 35  Meier XXXII–XLIII; 163–90; Brunt 1988, 443–502; Mouritsen 2017, 145–5; cf. Seager 1972. 36  Wrong place wrong time: Q. Ligurius claimed that he joined the Pompeians because he happened to be in Africa, which was held by the Pompeians, when the war began (Cic. Lig. 4–5). 37  On this point, see Lintott 2008, 386. 38  On the so-called Caesarian Senate: Bane 1971; Jehne 1987, 392–406; cf. Brunt 1988, 492–3, 501.

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associated with a military or political leader. When put to work this way, the word designates such a leader and his followers, but, in republican usage, only so long as the leader is alive.39 Matters are perhaps less straightforwardly specific when partes signals divisions between so-called populares and optimates, but there is no longer any justification for viewing this binary along the lines of anything like competing social movements or even political ideologies.40 Admittedly things change in later writers, but it is this republican pattern that obtains in Cicero and in the commentaries of Caesar and in his continuators. There we find Caesariani and, in varying shapes, Caesaris partes, as well as Pompeiani in all their proper partes.41 At least so long as Pompeius was alive. But that was then. After the Ides of March fresh alignments were inevitable, especially in an environment so fraught with uncertainty and danger. As for partes, if the expression was be used at all the natural expectation will have been that any partes designated Pompeian must refer to Sex. Pompeius and his adherents, while Caesaris partes or any similar formulation should indicate the associates and supporters of young Caesar. But this is not what one finds. Instead, during this period we spy fresh adaptations of the traditional republican sense of partes. Indeed, Antonius’ letter is an important document for this transition. That political contentiousness should arise should surprise no one – political contentiousness was natural to republican politics – and these struggles had now to be configured along new lines, and movements between these lines remained fluid. We can spy this dynamic illustrated, on a modest scale, by Cicero’s nephew Quintus. In the aftermath of the Ides he became a fierce devotee of Caesar’s memory and a faithful follower of Antonius (Att. 14.19.3; 14.20.5). Soon, however, the two men fell out, so Quintus joined, not Hirtius or Pansa, which one might perhaps expect on the basis of Quintus’ Caesarism, but rather Brutus, to whom he alleged that Antonius had aspirations of becoming dictator (Att. 15.19.2; 15.21.1). It is obvious how, by the time of the conflict in Mutina, other political figures had followed similarly personal trajectories through the political strife dominating the Roman scene.

39  Typical instances are: Rhet. Her. 2.43; Caes. BG. 6.11; BC. 1.35; Cic. Quinct. 69; Rosc. Am. 137; Verr. 2.1.38; B.Afr. 87; see, further, TLL 10.475–6; Hellegouarc’h 1963, 111–4; Lapyrionok 2008, 37–47. 40  Examples include Cic. Rep. 1.31; Sall. Iug. 41.1–5. On populares and optimates, see Meier 1965; Seager 1972; Achard 1982; Tatum 1999, 3–16; Robb 2010; Mouritsen 2017, 112–23. 41  Partes used of the two sides in the civil war: Caes. BC. 1.35.3–4; cf. Cic. Fam. 8.14.3. Pompeianus: Cic. Fam. 8.17.2; B.Afr. 23; cf. B.Afr. 87–8. Caesarianus and Caesaris partes: B.Afr. 7; 13; 14; 24; 28; 52; 53; 66; 87.

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For Cicero, Antonius’ use of partes was an unnatural one. In his Fifth Philippic he complains that the man persists in banging on incomprehensively about partes: nam nunc quidem partium contentionem esse dictitat. quarum partium? alteri victi sunt, alteri sunt e mediis C. Caesaris partibus (Phil. 5.32) For now he keeps going on about conflict between parties. What parties? One has been defeated, the other comes from the midst of those who were Gaius Caesar’s supporters. And in his response to Antonius’ letter, Cicero returns more than once to what he insists is Antonius’ peculiar use of this word and he makes the point that the partes Antonius talks about no longer exist. ‘et partibus utilius’. ‘partes’ furiose, dicuntur in foro, in curia … istas tu partis potius quam a populo Romano defectionem vocas? (Phil. 13.39) [quoting Antonius] ‘And more useful to the party’. ‘Party’, you madman, is what one says [in describing sides] in speaking in the forum, in voting in the Senate … Do you call that following of yours a party instead of a revolt against the Roman people? quod si partium certamen esset, quarum omnino nomen exstinctum est, Antoniusne potius et Ventidius partis Caesaris defenderet quam primum Caesar, adulescens summa pietate et memoria parentis sui, deinde Pansa et Hirtius, qui quasi cornua duo tenuerunt Caesaris tum cum illae vere partes vocabantur? (Phil. 13.47) But if this were a struggle between parties, the very names of which no longer exist, would the party of Caesar be championed by Antonius or Ventidius instead of, in the first place, Caesar, a young man motivated by an unexcelled sense of familial devotion and the memory of his own father, or in the second place, Pansa and Hirtius, who held the two horns, so to speak, of what was Caesar’s party when the expression party was apposite. He also refutes Antonius’ introduction of the adjective Pompeianus. He goes on to try to muddle Antonius’ message by adducing the flesh-and-bone reality of the still very much alive Sex. Pompeius, the only possible centre of any group

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that could be dubbed Pompeian (Phil. 13.9–12). And yet when Cicero raises the possibility of Sex. Pompeius’ giving offense to the veterans of Caesar serving at Mutina, he scrupulously avoids even a hint of Antonius’ partisan semantics; Cicero refuses to designate these soldiers as Caesarian veterans but instead they are veterans pure and simple (Phil. 13.13). As for any threat from Sextus, that is out of the question: owing to the exertions of Lepidus, Cicero claims, that old civil war is over: bellum civile confecerat (Phil. 13.9: ‘he brought the civil war to a conclusion’). 5

Antonius’ Letter to Hirtius and Octavian: When the Past is Present

Antonius endeavours to cast the contemporary situation of 43 as a replay of the politics of 50 and 49. Hence his emphasis on the menace represented by the partes Pompeiani. Now he does not have in mind Sex. Pompeius – Sextus is of negligible concern to him, as his letter makes clear. For Antonius the par­ tes Pompeiani and therefore the partes Caesariani have become something not entirely unlike parties in a modern sense: they are sides which exist even without their dear leaders. Indeed, if anyone in Antonius’ letters is the leader of the Pompeians it is Cicero: victum Ciceronem ducem habuistis (Phil. 13.30: ‘you have that loser Cicero as your leader’). This is, so far as one can tell, a novel use of partes in a context of this kind.42 Notwithstanding Cicero’s complaints, however, Antonius’ innovation trended quickly. By April 43 Cicero, in a letter to M. Brutus, refers to animi partium Caesaris, by which he means the feelings of those who share Antonius’ negative view of the Liberators. But he clearly dislikes this newfangled expression for he goes on to say, with unmistakeable distaste, quo modo etiam nunc appellantur (ad Brut. 2.4.5: ‘as they are nowadays called’). And by June Asinius Pollio, writing to Cicero, can speak of Antonius and his forces without further qualification with the words Caesaris partium (Fam. 10.33.1). In Antonius’ letter, although the destruction of D. Brutus is the immediate objective, he is not the true danger. Instead, Antonius points to the men he designates Pompeians, and in the absence of Pompeius himself Antonius defines them not through their relationship to any leader or even to one another but by their common hostility to Caesar and his memory. This definition, and this is important, was by no means original to Antonius: it was operational 42  Important observations on Antonius’ use of partisan language by Botermann 1968, 68 n. 2; cf. Matijević 2006, 261; Antonius’ novel employment of Pompeianus is noted by Welch 2002, 9–15; Welch 2012, 142–3.

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in Caesar’s Bellum Civile and presumably played a part in the rhetoric of the time.43 Consequently, for Antonius, the Liberators and their enablers continue the Pompeian opposition to Caesar. Throughout his letter, Antonius reinforces his contraposition of Caesarians and Pompeians by way of complaints and assertions that reprise the controversies of the civil war and therefore conflate the circumstances of 43 with those of 49.44 This was not the first time such parallels had been drawn, nor, we can be sure, was this the first time Antonius expressed himself along these party lines.45 But in Antonius’ letter these echoes come fast and furious. As was the case in 50 and 49 so here and now friendship and fidelity lie at the heart of things, a connection that animates Antonius’ asseveration of loyalty to his loyal friends – and to Caesar’s memory.46 Hirtius and Octavian, by contrast, aid and abet the Pompeians, including, in Hirtius’ case, by neglecting the terms of his own law and its application to the old Pompeian side (Cic. Phil. 13.32; cf. Dio 42.20.1). The two of them, Antonius complains, hardly fall short of Pompeius or Sex. Pompeius in their allegiance to this cause (Cic. Phil. 13.34). As was the case in the civil war, the Pompeians fortify the east and hold Africa (Cic. Phil. 13.30). Furthermore, and like before, they deem Pompeius’ camp the true Senate (Cic. Phil. 13.26), a perverse equation that takes up not merely the rhetoric of the civil war (e.g. Dio 41.43) but also Cicero’s startling, philosophical insistence that Brutus and Cassius have rightly become their own senates (Cic. Phil. 11.27).47 Antonius attributes aggression and arrogance to the Pompeians, as did Caesar.48 Even in his complaint about parricidum, Antonius recalls antiPompeian rhetoric from the civil war (Cic. Lig. 18). Like Caesar, and in despite of his pacific inclinations, Antonius will not tolerate contumelia – against

43  See, for instance, Caes. BC. 1.2.8; 1.3.4; 1.4.4; 1.7.1; 1.7.7; 3.46.4. On animosity against Caesar and its role in the BC., see Batstone and Damon 2006, 43–51. 44  Many of the particulars of Antonius’ grievances in this letter recycle Antonius’ previous demands, some of which are reported by Cicero in his Eighth Philippic: Phil. 8.25–7; cf. Fam. 12.4; see Manuwald 2007, 997–1–17; Lintott 2008, 393. 45  Atticus saw parallels but his view was rejected by Cicero: Att. 15.3.1. Antonius compared Sex. Pompeius with his father as a victor who would show no quarter: Att. 15.22. Cicero likened Octavian to Pompeius: Phil. 5.42–5. 46  Cic. Phil. 13.42–4; compare e.g. Caes. BC. 1.4.4; 1.7.1. Amicitia in Caesar’s BC.: Grillo 2012, 141–9. Amicitia and libertas: Brunt 1988, 329. At Phil. 5.6 Cicero actually complains that Antonius’ supporters appeal to traditional bonds like friendship, kinship, and favours. 47  On the claims of Pompeius’ camp to represent the Republic and Caesar’s responses, see Hodgson 2017, 169–71; 184–6. 48  E.g. Caes. BC. 1.1–2. Dangerous Pompeians in Caesar’s BC.: Grillo 2012, 151–7; cf. Cic. Fam. 7.3.2 (nihil boni praeter causam).

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himself or his friends.49 Nor will he forsake the side which Pompeius hated, in which cause he is willing to die (Cic. Phil. 13.42). At the same time, again like Caesar, Antonius prefers to be reasonable (Cic. Phil. 13.46, addressed to all who will join in avenging Caesar; compare e.g. BC. 1.2.3). Like Caesar, Antonius had offered to resign and withdraw if his enemies would do the same,50 a ploy that lies behind his complaint in this letter that his reasonable proposals have been rejected (Phil. 13.36). And like Caesar Antonius prefers to negotiate, even if his enemies, like the Pompeians of the past, despise negotiations.51 Indeed, the last words of his letter signal his willingness to make peace (Phil. 13.47). Antonius’ design, it seems clear, is the construction not of an Antonian but a Caesarian cause that transcends the individual circumstances of its membership by uniting each of them in a commitment to their friendship with Caesar and their oaths obliging them to defend his life – and to punish anyone who takes it. Hence his emphasis not only on vengeance but on the bonds of loyalty that should unite Caesar’s friends against his assassins and those who enable them. And hence his reprisal of the old struggle.52 This is a very different take on the struggle for libertas from the one advanced by Cicero or by the Liberators. Not that the idea of avenging Caesar’s murder was original to Antonius. Lepidus and Balbus argued for punishing the Liberators on 16 March, and the young Caesar insinuated himself into public life largely by way of protestations of pietas and the moral obligations of his Caesarian inheritance.53 For Antonius, however Caesarianism becomes something more than a family affair. It is about right and wrong in civic terms – and about Caesar’s status as Liberator. Antonius’ repudiation of the Liberators’ assertion that Caesar was a tyrant and therefore homo sacer is anything but subtle, and in rejecting their legitimacy Antonius delivers a clear judgment on their claims regarding libertas. Caesar, not his assassins, remains the true Liberator. Antonius reminds his readers, by way of reprising the civil war of 49, that Caesar fought in defence of digni­ tas and libertas. This, we must remember, was a natural combination in any 49  Cic. Phil. 13.13.42–4; compare e.g. Caes. BC. 1.7.7; 1.9.1–2; on dignitas and libertas in Caesar’s BC., see Krebs 2018, 36–41; Cicero anticipates this complaint at Phil. 13.20, where he insists that Antonius respects neither dignitas nor maiestas. 50  Cic. Phil. 7.2–4; 8.25; compare e.g. Caes. BC. 1.9.3; 1.9.5. 51  Pompeius and his supporters refuse to negotiate: Caes. BC. 1.32.8; Plut. Pomp. 60; App. BC. 2.143; Dio 41.12.2. 52  These parallels were not lost on Cicero, who occasionally responds to Antonius’ Caesarian intertextualities: e.g. he insists … rem publicam … quae mihi vita mea semper fuit carior (Phil. 13.7); cf. Caes. BC. 1.9.2: sibi semper primam fuisse dignitatem vitaque potiorem. 53  Lepidus and Balbus: Nic. Dam. 106; App. BC. 2.124. Young Caesar: Syme 1938, 116–20; Galinsky 2012, 28–31; Welch 2012, 304–8.

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aristocrat’s conception of freedom and one which, as Robert Morstein-Marx makes clear, the Roman people found compelling enough to make possible their acceptance of Caesar’s victory over his enemies.54 No Roman needed reminding that it was in defence of Antonius’ tribunate that Caesar had crossed the Rubicon.55 By folding the conflict at Mutina into the conflict of 49, Antonius transforms his arduous struggle into a continuation of Caesar’s arduous struggle for liberty. This is why, in the opening of Cicero’s Thirteenth Philippic, the orator is at pains to separate the past from the present: peace was at least a theoretical possibility in the case of past civil wars – but the present moment is radically different.56 Antonius is uninterested here in philosophizing or even debating the technicalities of constitutional law. His case against Hirtius and Octavian – and Cicero – combines traditional Roman values together with the version of libertas which Caesar’s enthusiastic following had proved all too willing to embrace.57 The Liberators, like Pompeius, were the true enemies of freedom. And like Pompeius they were losers.58 A better sort of Roman, Antonius claims here, could – and should – rally to the Caesarian cause. In this way Antonius, by subverting the Liberators’ standing in language clear to everyone and by recalling in unmistakeable terms the stakes that led to the civil war, puts Caesar’s reputation to work in order to fashion himself – and not Cicero or Brutus or Cassius – a true defender of freedom. Like Caesar before him, Antonius will stand up to the Pompeians as an authentic vindex libertatis. 6

Aftermath

Now it is obvious that Antonius did not write in order to persuade Hirtius or Octavian. His letter was intended for wide circulation, like a modern tweet, and it aimed at influencing Romans of any class, including veterans and the legions, who might be induced to rally round the old cause and round avenging Caesar. Antonius’ message was coordinated with communications from

54  D  ignitas and libertas: Brunt 1988, 328. The popular appeal of Caesar’s combination of dig­ nitas and libertas: Morstein-Marx 2009. 55  Sources for the actions and the flight of Antonius and his fellow tribune, Q. Cassius Longinus, are assembled at MRR 2.258–9. 56  Cic. Phil. 13.1–2; cf. Moatti 2018, 229. 57  Dignitas and libertas: Brunt 1988, 328. The appeal of Caesar’s combination of dignitas and libertas: Morstein-Marx 2009. 58  Cic. Phil. 13.30 (victum Ciceronem ducem); 13.38 (Pompeianorum causa totiens iugulata).

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Lepidus and Plancus, each of whom made a case for peace,59 and attractive is Ruggero Fauro Rossi’s suggestion that a principal purpose of Antonius’ letter was to persuade an anxious public that responsibility for the almost certain conflict lay with Cicero, Hirtius, and Octavian.60 Although the conflict at Mutina was not to be determined by propaganda, it is nonetheless true, as Arena makes clear, that championing libertas was a meaningful, influential means of achieving legitimacy.61 In the short run, Antonius’ letter failed to match the effectiveness of Cicero’s oratory. After Antonius’ defeat, however, the young Caesar suddenly found cooperation with D. Brutus and even Cicero intolerable, as he had been urged to do by Antonius’ letter. His impetuous coup d’état quickly gave way to an alliance with Lepidus and Antonius that can fairly be deemed, in the light of Antonius’ letter, Caesarian. The proscriptions of 43, ordered by this Caesarian alliance, were grounded in an argument for avenging the fallen Liberator. So, too, the war against Brutus and Cassius. Which is why Cassius and Brutus, commanding Roman soldiers in the east, recurred again and again when issuing their coins to the goddess Libertas, whom they linked with Apollo and his oracle at Delphi.62 According to legend, Lucius Brutus, the father of the Republic, before he delivered Rome from tyranny, sought and won the aid and approval of Apollo during a pilgrimage to Delphi.63 On this basis, the Liberators claimed the blessing of Apollo, further foregrounding their assertion of having acted in accordance with mos maiorum and correct religious practice. The triumvirs naturally rejected this presumption: before departing for Greece, Antonius vowed before the Senate that in victory he would restore the damaged temple of Apollo at Delphi, a clear appeal to the god and to anyone animated by hopes of preserving the god’s favour. And at Philippi, the triumvirs made Apollo their watchword. After the defeat of Cassius and Brutus, Antonius made his

59  Cic. Fam. 10.6.1; 10.8.1; Phil. 13.7–9; Dio 45.17.3; cf. Fam. 10.31.4. 60  Rossi 1959, 92–3. Matijević 2006, 263 & 267, views Antonius’ championing of Caesar as a means of winning over soldiers in the provinces and rallying supporters in Rome. Bottermann 1968, 69–71, and Halfmann 2011, 86, suggest the letter was aimed specifically at the soldiers. Drumann-Groebe 1899, 213 and Huzar 1978, 107–7 treat the letter as a genuine communication the message of which is addressed specifically to Hirtius and Octavian. 61  Arena 2012, 244–57. 62  R RC 498, 499, 500, 501, 502, 503, 504, 506; cf. RRC p. 741; Hollstein 1994; Rowan 2019, 66–71. On the Liberators’ appeal to Apollo, see also Moles 1983; Gosling 1986. 63  Livy 1.56.7–12; Dion. Hal. Ant. Rom. 4.69.2–4.

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promised journey to Delphi, thereby demonstrating to all Romans that it was the victorious triumvirs and not the assassins who stood for libertas.64 It has not gone unobserved how, in the opening lines of his Res Gestae, Augustus appropriates key elements of this conflict over libertas: annos undeviginiti natus exercitum privato consilio et privata impensa comparavi per quem rem publicam a dominatione factionis oppresssam in libertatem vindicavi (RGDA 1.1). When I was nineteen years old, relying on my personal resolution and at my personal expense I assembled an army which I used to restore the freedom of the republic at a time when it was dominated by the tyranny of a faction. Augustus boasts that he acted, in the tradition of liberators past, privato consilio – as Cicero claimed he did – but also that he carried on the war of liberation begun by Caesar, as Antonius had urged (RGDA 1). It is perhaps understandable, then, that the specific sense of Augustus’ a dominatione factionis remains less than totally clear. His Greek translator perceived a reference to the tyrannicides.65 For Velleius Paterculus, however, it was obvious that Augustus had Antonius in mind.66 By then, of course, Antonius and the Liberators had alike shown themselves to be enemies of Augutus’ version of libertas.67 During their triumviral competition, however, Antonius’ uncompromising championship of Caesar at Mutina, in contrast to Octavian’s complicity in Decimus’ cause, remained a live issue and, for the young Caesar, an embarrassment. For this reason, his apologists crafted a version of events in which Antonius’ posture was merely a pretext for seizing possession of Gaul and in 64  Antonius’ promise to the Senate and his subsequent pilgrimage to Delphi: Plut. Ant. 23.4. Apollo as watchword is attributed both to Brutus (Plut. Brut. 24.7) and the triumvirs (Val. Max. 1.5.7), but Moles 1983, 250–1, makes a strong argument for preferring Valerius Maximus. 65  R GDA 1: ἐτῶν δεκαε[ν]νέα ὢν τὸ στράτευμα ἐμῆι γνώμηι καὶ ἐμοῖς ἀν[αλ]ώμασιν ἡτοί[μασα], δι’ οὗ τὰ κοινὰ πράγματα [ἐκ τῆ]ς τ[ῶ]ν συνο[μοσα]μένων δουλήας [ἠλευ]θέ[ρωσα]. 66  Vell. 2.6.1: … oppressa dominationi Antonii civitas. 67  In RGDA 1, factio must refer to Antonius: Wirszubski 104–5; Woodman 1983, 126; cf. Cooley 2009, 108. Factio susceptible to other interpretations: Canfora 1972, 134; Hellegouarc’h and Jodry 1980, 815. On Augustan multiplicity of meaning, see Galinsky 1996, esp. 146–50; Havener 2016, 151–92, with the qualifications of Rich 2016. By 28, Octavian had assumed the mantle of libertatis vindex: RPC 1.2203. For Augustus’ appropriation of the claim of libertatis vindex, see Hurlet’s paper in this volume.

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which the man was all too ready to join forces with the assassins in pursuit of power.68 But all that came later. We find a different form of gloating in the triumviral thirties, when Horatian satire spoofed the solemn language of libertas advanced by the Liberators and their supporters. In Serm. 1.7 we witness the destruction of a king: P. Rutilius Rex (pr. 43), a senator proscribed in 43 and therefore, for our purposes, a Pompeian. His adversary was a certain Persius, a semi-Greek businessman. The episode took place in Asia before the tribunal of no less a figure than M. Brutus. But this story, Horace insists, is a staple of Roman barber shops: proscripti Regis Rupili pus atque venenum hybrida quo pacto sit Persius ulto, opinor omnibus et lippis notum et tonsoribus esse (Sat. 1.7.1–3) How the half-breed Persius exacted vengeance from that pus and poison that was the proscribed Rupilius Rex is a tale I believe is well-known to everyone with diseased eyes and to all the barbers. … – Bruto praetore tenente ditem Asiam, Rupili et Persi par pugnat … (Sat. 1.7.18–9) … – when Brutus was praetor and was governor of rich Asia, there was a clash between Rupilius and Perius Here Horace recounts an episode which, in his telling of it, rehearses the common man’s take on the recent past and on Brutus’ claim to have liberated Rome. In this poem Horace lampoons Greek sophistry along with Brutus’ sacred status as a tyrannicide. He also demonstrates how easily the arguments legitimising the Liberators could be put to work for self-seeking purposes by anyone against anyone, even by a lowlife like Persius in his pursuit of a private case against a distinguished Pompeian loyalist: at Graecus, postquam est Italo perfusus aceto, Persius exclamat: per magnos, Brute, deos te oro, qui reges consueris tollere, cur non hunc Regem iugulas? operum hoc, mihi crede, tuorum est (Sat. 1.7.32–5). 68  D  io 46.35.2 (pretext); Vell. 2.654.1 (willingness to join the Liberators); cf. Metijević 2006, 265–6.

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But the Greek Persius, after he was drenched with Italian vinegar, cried out: by the great gods, Brutus, you who have made it your habit to do away with kings, who don’t you cut the thoat of this Rex? Believe me, this is your kind of work. At the end of this satire, the poet leaves Brutus frozen in silence. But there was really nothing for him to say. On the topic of libertas, there could no longer be any serious contribution from the Pompeian side.69

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Huzar, E.G. 1982. ‘The Literary Efforts of Mark Antony’, ANRW II.30.1, 639–57. Jehne, M. 1987. Der Staat des Dictators Caesar. Cologne. Kaser, M. 1971. Das römischen Privatrecht, vol. 1. Munich. Krebs, C.B. 2018. ‘More Than Words. The Commentarii in their Propagandistic Context’, in L. Grillo and C.B. Krebs (eds.), The Cambridge Companion to the Writings of Julius Caesar. Cambridge, 29–42. Lapyrionok, R. 2008. Consensus Bonorum Omnium: Untersuchungen zur politischen Terminologie der späten römischen Republik. Bonn. Latte, K. 1960. Römische Religionsgeschichte. Munich. Lennon, J. 2012. ‘Pollution, religion and society in the Roman world’, in M. Bradley and K. Stow (eds.), Rome, Pollution and Propriety: Dirt, Disease and Hygiene in the Eternal City from Antiquity to Modernity. Cambridge, 43–58. Linderski, J. 2007. Roman Questions II: Selected Papers. Stuttgart. Lintott, A. 1970. ‘The Tradition of Violence in the Annals of the Early Roman Republic’, Historia 19, 12–29. Lintott, A. 2008. Cicero as Evidence: A Historian’s Companion. Oxford. Liou-Gille, B. 1997. ‘Les leges sacratae: esquisse historique’, Euphrosyne 25, 61–84. Magdelain, A. 1984. ‘Paracidas’, in Du châtiment dans la cité. Supplices corporels et peine de mort dans le monde antique. Rome, 549–70. Mahy, T. 2013. ‘Antonius, Triumvir and Orator: Career, Style, and Effectiveness’, in C. Steel and H. van der Blom (eds.), Community and Communication: Oratory and Politics in Republican Rome. Oxford, 329–44. Manuwald, G. 2007. Cicero, Philippics 3–9. Berlin. Matijević, K. 2006. Marcus Antonius, Consul – Proconsul – Staatsfeind: die Politik der Jahre 44 und 43 v.Chr. Rahden. Meier, C. 1965. ‘Populares’, RE Suppl. 10. Stuttgart, 540–615. Meier, C. 1980. Res Publica Amissa: Eine Studie zq Verfassung und Geschichte der späten römischen Republik, 2nd ed. Wiesbaden. Moatti, C. 2018. Res publica: histoire romaine de la chose publique. Paris. Moles, J. 1983. ‘Fate, Apollo, and M. Junius Brutus’, AJPh 104, 249–56. Moles, J. 2017. A Commentary on Plutarch’s Brutus, with additional notes by C. Pelling. Newcastle. Morstein-Marx, R. 2009. ‘Dignitas and res publica. Caesar and Republican Legitmacy’, in K.-J. Hölkeskamp (ed.), Eine politische Kultur (in) der Krise! Die ‘letzte Generation’ der römischen Republik. Munich, 115–40. Mouritsen, H. 2017. Politics in the Roman Republic. Cambridge. Novielli, C. 2002. La retorica del consenso. Commento alla tredicesima Filippica di M. Tullio Cicerone. Bari. Ortmann, U. 1988. Cicero, Brutus und Octavian – Republikander und Caesarianer: ihr gegenseitiges Verhältnis im Krisenjahr 44/43 v. Chr. Bonn.

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Pasquali, J. 2009. Marcus Antonius: Todfeind Ciceros und Rivale des Octavianus. Bochum. Pellam, G. 2015. ‘Sacer, Sacrosanctitas, and Leges Sacratae’, ClA 34: 322–34. Pelling, C. 2011. Plutarch: Caesar. Oxford. Pina Polo, F. 2006. ‘The Tyrant Must Die: Preventative Tyrannicide in Roman Political Thought’, in F. Marco Simón, F. Pina Polo, and J. Remesal Rodíguez (eds.), República y Ciudadanos: modelos de participación cívica en el mundo antiguo. Barcelona, 71–101. Raaflaub, K. 2003. ‘Cicero the Liberator? Factional politics, civil war, and ideology’, in F. Cairns and E. Fantham (eds.), Caesar against Liberty? Perspectives on his Autocracy, Papers of the Langford Latin Seminar 11. Cambridge, 35–67. Ramsey, J. 2010, ‘Debate at a distance: a unique rhetorical strategy in Cicero’s Thirteenth Philippic’, in D.H. Berry and A. Erskine (eds.), Form and Function in Roman Oratory. Cambridge, 155–74. Rhea, J.A. 2007. Legendary Rome: Myth, Monuments, and Memory on the Palatine and Capitoline. London. Rich, J. 2016. Review of W. Havener, Imperator Augustus. BMCR 11.49. Robb, M.A. 2010. Beyond populares and optimates. Political Language in the Late Republic. Stuttgart. Rossi, R.F. 1959. Marco Antonio nella lotta politica della tarda repubblica rosmana. Trieste. Rowan, C. 2019. From Caesar to Augustus (c. 49 BC–AD 14): Using Coins as Sources. Cambridge. Seager, R. 1972. ‘Factio: Some Observations’, JRS 62, 53–8. Sedley, D. 1997. ‘The Ethics of Brutus and Cassius’, JRS 87, 41–53. Sigmund, S. 2014. ‘Königtum’ in der politischen Kultur des spätrepublikanischen Rom. Berlin. Smith, C.J. 2006. ‘Adfectio regni in the Roman Republic’, in S. Lewis (ed.), Ancient Tyranny. Edinburgh: 49–64. Stevenson, T. 2015. Julius Caesar and the Transformation of the Roman Republic. London. Syme, R. 1939. The Roman Revolution. Oxford. Tatum, W.J. 1999. The Patrician Tribune: Publius Clodius Pulcher. Chapel Hill. Tatum, W.J. 2008. Always I am Caesar. Oxford. Tatum, W.J. 2018. Quintus Cicero: A Brief Handbook on Canvassing for Office. Oxford. Todd, S.C. 1990. ‘The Purpose of Evidence in Athenian Courts’, in P.A. Cartledge, P.C. Millett, and S.C. Todd (eds.), Nomos: Essays in Athenian Law, Politics, and Society. Cambridge, 19–40. Várhelyi, Z. 2011. ‘Political murder and sacrifice: from the Roman Republic to Empire’, in J.W. Knust and Z. Várhelyi (eds.), Ancient Mediterranean Sacrifice. Oxford, 125–41. Weinstock, S. 1971. Divus Julius. Oxford. Welch, K. 2002. ‘Both sides of the coin: Sextus Pompeius and the so-called Pompeiani’, in A. Powell and K. Welch (eds.), Sextus Pompeius. Swansea, 1–30.

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chapter 11

Res Publica, Libertas and Free Speech in Retrospect: Republican Oratory in Tacitus’ Dialogus Henriette van der Blom 1

Introduction

Res publica, libertas and ‘free speech’ have been associated with the Roman Republic, most often in retrospective analyses and discussions of the political conditions under the republican system of government.1 However, the nature of and relationship between these concepts, in both the republican period and in the imperial reception of the Republic, are highly complex as shown in recent scholarship on the imperial engagement with the republican past and on the concepts of libertas and res publica.2 Central to discussions of the concepts libertas and res publica stands public oratory as the medium through which ideas about the state, political institutions and practitioners, rights and freedoms of individuals could be communicated, negotiated and manipulated. Although libertas could mean much more than free speech and res publica was not solely associated with the republican form of government,3 it is this framework between public speech, libertas and res publica which has allowed the link between ‘the Republic’ and ‘free speech’ to be forged, in ancient sources and modern scholarship, by contrast to the less free public discourse allegedly experienced under the emperors. The senator, advocate and historian Tacitus (AD c. 56–post 117) has been seen as one, if not the, exponent of this argued link between the Republic and free speech.4 His first work, the Agricola, opens with a description of the conditions 1  Ancient: Suet. Claud. 10.3 on the senatorial proposal to restore the libertas, i.e. republican government, in AD 43; Dio 63.22.1; Suet. Galb. 9.2; Plin. HN 20.160 on Vindex’ rebellion against Nero in AD 68 under the rallying cry of restoring libertas. Modern scholarship: Wirszubski 1950, 5; Gowing 2005, 1–27; Gallia 2012, 14. 2  Imperial reception of Republic: Eder 1990; Sion-Jenkis 2000; Gowing 2005; Gallia 2012; Galinsky 2014. Libertas: Wirszubski 1950; Arena 2012; Strunk 2017. Res publica: Hodgson 2017; Moatti 2017 and 2018 and related to this Straumann 2016. 3  Roller 2015, 11–14. 4  Wirszubski 1950; Syme 1958, 547–65; Vielberg 1987, 150–68; Brunt 1988, 281–350; Oakley 2009; Mellor 2011, 78–92.

© Henriette van der Blom, 2020 | doi:10.1163/9789004441699_013

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of free speech under the emperors and the hope for better times offered by Nerva and Trajan, in which libertas is related to politics and in which Tacitus references both the republican past and the imperial past and present.5 Tacitus mentions the famous opponents of Nero and Vespasian, Thrasea Paetus and Helvidius Priscus, and the fate of both them and their biographers as examples of the quelling of the vox populi Romani, libertas senatus and conscientia ge­ neris humani (‘the voice of the people’, ‘the freedom of the Senate’ and ‘the conscience of mankind’).6 His Histories begins with similar themes of libertas and freedom of speech: historians chronicling the period before Actium wrote with equal eloquentia and libertas, and now again – under Nerva and Trajan – writers are allowed to think what they want and say what they think.7 In his Annales, Tacitus laments an assumed decline in free speech and senatorial li­ bertas after Augustus’ accession to power.8 In these works, and most explicitly in the prefaces, Tacitus circles around the term libertas, its meanings (freedom to think and to say what you think, freedom from slavery, the libertas of the Senate) and its extent depending on the nature of political power, from the republican period to Tacitus’ time of writing.9 However, it is in Tacitus’ Dialogus de oratoribus that we get the most extended engagement with the notion of libertas as free speech in both republican and imperial periods. This work presents a multifaceted, even confusing, comparison between republican and imperial public oratory within a dialogic framework debating the perceived limitation on free speech. The Dialogus therefore offers a different case study for early imperial conceptions of public oratory within the republican res pu­ blica characterised by libertas and free speech. A close reading of Tacitus’ use of the terms and notions of res publica and libertas in the Dialogus therefore promises a retrospective viewpoint of what these two concepts might have meant in the republican period, and an imperial perspective on the ways in which these concepts might have developed in the first century under the monarchic rule of emperors. 5  Tac. Agr. 1–3. Much discussed in scholarship, including Balmaceda 2017, 160–72; Strunk 2017, 23–30, 35–36. See also the detailed commentary on this passage in Woodman & Kraus 2014 with Lavan’s detailed review. 6  Tac. Agr. 2.1–2. 7  Tac. Hist. 1.1 with discussion in Haynes 2003, 34–41; O’Gorman 2020, Introduction. 8  Tac. Ann. 1.2.1, 1.7.1, 1.74.5, 1.75.1, 1.77.3 (simulacra libertatis), 1.81.4, 2.87, 3.65.1–2, 16.11.1; Agr. 2.3, 3.1; Hist. 1.1. For similar views of a decline, see Sen. Controv. 1 pref. 6–10; Vell. Pat. 1.16–18 and Luce 1993, 13 for further references. For libertas as the Republic, see Tac. Ann. 1.1.1, 1.4.2, 1.32.2, 2.82.8, 3.27.2, 13.50.3, 15.52.15, 16.11.5; Hist. 1.16.1, 2.38.9, 3.72.2. 9  O’Gorman 2020 discusses the parameters of senatorial speech under the emperors as seen through Tacitus’ oeuvre.

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Given the complex nature of Tacitus’ work, the analysis focuses on disentangling the different applications of the terms libertas and res publica in relation to the notion of free speech across the different temporal frameworks represented in the work. Simplistically put, Tacitus operates with the republican past, the time of the dialogue setting, the time of writing the dialogue, and the future, and the ways in which his interlocutors play around with these frameworks provide revealing, even if intricate, glimpses into Tacitus’ presentations of libertas, res publica and free speech under the emperors as well as in the republican past. The prevalence of these terms means that the discussion will be more on libertas as ‘free speech’ in the Dialogus than about res publica or other meanings of libertas.10 Nevertheless, some of the interlocutors associate libertas with the republican period, its political system and the possibilities for free speech allowed within it. Therefore, the res publica in the meaning ‘political system’ is relevant to Tacitus’ outlook on the conditions of public speaking in the republican and imperial periods. The discussion focuses on Tacitus’ depictions of free speech under the emperors and in the republican period as a lens through which to understand imperial-period notions of the conditions of free speech in the republican period and the extent to which these notions were linked to ideas about the political conditions under the republican political system. This analysis forms part of a larger investigation into the imperial reception of republican oratory, and the ultimate aim is to situate Tacitus’ discussion of libertas, res publica and free speech within wider imperial-period notions about republican public oratory, even if this goes beyond the scope of this chapter. After an initial and brief presentation of scholarship with direct relevance to the main question about the imperial understanding of libertas and res publica in the republican period and its representation in Tacitus’ Dialogus, Tacitus’ usage of the terms libertas, res publica and licentia in the Dialogus shall be analysed in order to trace patterns in his usage and assess the representativeness of Tacitus’ ‘Republic’. The analysis then moves to the ways in which Tacitus uses the terms res publica and libertas to connect with his discussion of ‘free speech’ in order to compare his presentation of the republican past with the impression we get from republican sources. Finally, the analysis focuses on the negative sides of libertas and the ways in which Tacitus uses republican exem­ pla to illustrate his depiction of republican outspokenness. From this analysis, 10  Other meanings of libertas, including those explored in other chapters of this volume, include freedom from slavery, legal protection from arbitrary treatment, the sovereignty/ independence of a state, and a personal and philosophical quality.

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it becomes clear that Tacitus’ presentation of republican notions of libertas is based not only on republican sources but also on early imperial versions of the republican past, and that this presentation is tailored to support contemporary concerns about freedom of speech rather than conveying a truthful picture of republican public speech. 2

Libertas and Free Speech in Scholarship

Before I begin my analysis of the Dialogus, it is necessary to give a brief outline of the scholarly discussions of libertas and free speech in early imperial literature and especially in the Dialogus, because some of my observations and conclusions engage with these discussions. In his classic study of libertas as a political idea, Wirszubski concludes that Tacitus saw libertas under the emperors as ‘the courage to preserve one’s selfrespect in the face of despotism and amidst adulation’, because the presence of the emperor made it impossible to apply the republican-period meaning, defined as ‘the freedom of the citizen to determine his own destiny and the destiny of his country’.11 This observation was based on all of Tacitus’ extant works, not just the Dialogus, but Wirszubski explicitly used this work to emphasise Tacitus’ critical attitude towards the strife and unrest of the Republic, as expressed by his interlocutor Maternus.12 This is not incorrect; however, there is more to Maternus’ expressions than simply criticism.13 Bartsch has provided one alternative reading of Maternus’ criticism of republican libertas and strife, namely that this criticism in Maternus’ final speech must be read together with the presentation of Maternus at the start of the dialogue (§§2–4) as someone warned against transgressing the boundaries of speaking out against the powerful. When read together, Bartsch argues, it becomes clear that the views expressed by Maternus are not ironic – as some scholars had argued – but present ‘double-speak’ in which two different meanings are presented to two different audiences at the same time.14 In this way, Bartsch agrees that Tacitus criticises the imperial system of limiting libertas and free speech, but reads the Dialogus as addressing several audiences with different messages for which Tacitus’ description of libertas in the imperial period is highly relevant. 11  Wirszubski 1950, 166, discussion of Tacitus’ use of libertas pp. 160–67. 12  Tac. Dial. 27–33. 13  Luce 1993 summarises views on this in earlier scholarship and offers own perspective. 14  Bartsch 1994, 98–125, summarised p. 115.

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Roller’s analysis of imperial autocracy goes against earlier scholarship in rejecting the notion that libertas constituted a ‘political idea’ and arguing instead that the social and legal term of libertas, that is, not being a slave, was used metaphorically by Romans to express a fear of suffering corporal punishment – like a slave.15 In this reading, libertas understood as freedom of speech only works if those complaining of a lack of libertas experienced a risk of such punishment. Although not using Tacitus’ Dialogus directly, Roller’s argument has some mileage in the reading of the dialogue, and it is also picked up by Rutledge, who combines the political and social meanings of libertas: complaints about limitations in libertas were both a concern about not being able to speak one’s mind or act freely in politics, and about perceived infringements of individuals’ social status, whether coming from the emperor, social peers or people of lower status.16 Similar to Rutledge, Gallia accepts the fundamental meaning of libertas as freedom from slavery but rejects Roller’s argument that libertas is not a political concept.17 He also rejects Bartsch’s idea of ‘doublespeak’ and instead suggests that we read Maternus’ opposition to the regime through his dramas as a philosophically formulated rather than politically formulated opposition.18 Gallia emphasises the strong republican associations of libertas, alongside the meaning of ‘freedom from domination.’19 Arena, in her influential work on libertas in the late Republic, analyses libertas as nondomination in legal and political terms and shows that the metaphorical use of the term was widespread in the republican period. Arena does not discuss libertas as ‘freedom of speech’, which suggests that this meaning was less relevant in the late Republic than it became in the imperial period.20 Strunk also finds Roller’s definition of libertas as ‘too absolute’ and instead operates with the dual definition of freedom from domination and freedom to participate in the politics of a free state.21 Finally, significant for my analysis is van den Berg’s argument that Tacitus separates free speech, libertas, from good speech, eloquentia, and that this elo­ quentia can be employed not only in public oratory but also in other genres 15  16  17  18 

Roller 2001, 213–87 for the full analysis, 228–32 for the central argument. Rutledge 2009. Gallia 2012, 16. Gallia 2012, 169–71. Gowing 2005, 109–20 (esp. 109 and 117) finds that the Dialogus ‘connects the demise (…) of oratory with the loss of libertas,’ but also that Maternus reconfigures libertas as a personal ideal associated with the Stoic notion of rising above fortuna. 19  Gallia 2012, 13–46. 20  Arena 2012, 6, 14–29 (juridical meaning of libertas), 46–47 (metaphorical meaning), 73 (political meaning summed up), 261–66 (change in the concept of libertas in the 40s BC). 21  Strunk 2017, 23.

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such as poetry and history.22 He goes on to argue that the association between good oratory (eloquentia), the free Republic and free speech is a Ciceronian (and modern) assumption which is not necessarily true, and that Tacitus does not endorse the idea of a decline in oratory under the emperors but rather distinguishes between good, moral orators and mediocre advocates. Finally, van den Berg suggests that Tacitus might be a better witness to the late Republic than modern scholars because he understood the limitations of free speech and ‘the limitations of the world in which Cicero could rise to the top of Rome’s political and rhetorical traditions.’23 And with that encouragement, I shall move on to discuss Tacitus’ Dialogus as a window into imperial notions of republican libertas and free speech, although I shall not endorse this particular view. 3

Libertas and Free Speech in the Dialogus

The Dialogus de oratoribus presents a discussion between leading orators of the early Flavian period, set in ca. AD 75, some decades before Tacitus’ composition (ca. AD 102).24 Tacitus introduces the work as a response to his dedicatee’s question about the contemporary decline in eloquentia – good oratory – and in oratores – good orators, as opposed to practitioners of less skilled and less ethically founded public speech in the law courts and the Senate.25 The scene is set by the congregation of friends at the house of the interlocutor Maternus, who has just recited his new tragedy Cato, wherein some passages seem to have caused offence among ‘powerful people’ (potentes).26 His friends Secundus and Aper arrive and start debating the role of oratory in three sections. In the first section, Aper and Maternus discuss whether writing poetry or delivering oratory is a better occupation within the constraints of a state governed by an emperor (§§5.3–13.6); in the second, Messalla and Aper 22  Van den Berg 2014, 117–21, 299–300. 23  Van den Berg 2014, 297–300. 24  Beck 2001 argues for AD 77–78, but scholarly consensus is still AD 75 and the precise date of setting has no impact on the argument put forward here. Dating is discussed by Brink 1994; Mayer 2001, 22–27; van den Berg 2014, 31–35; the date of composition is unclear and also debated in scholarship: Keeline 2018, 232–35 offers a summary. 25  Tac. Dial. 1.1. Gallia 2012, 146 emphasises the decline in a certain kind of speaker, not a general decline in oratory. 26  Tac. Dial. 2–3; see general discussion of this framework in Mayer 2001, 92–3, and a detailed discussion of the meaning and identity of the potentes in Gallia 2009. For a discussion of the development of the meaning of potentes from the republican period into late antiquity, see Schlumberger 1989.

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discuss the merits of past and present oratory (§§15.1–26.8); while in the third and final section, Maternus and Messalla discuss the education of orators in the past and present and the impact of education and political situation on oratorical qualities (§§28–41.5). In the following analysis of Tacitus’ use of the terms libertas, res publica and the question of free speech, I shall focus on what his usage tells us about imperial notions of these terms and questions, and compare this with what we know from republican sources. Van den Berg has shown that the specifics of Tacitus’ depiction of imperial decline in public speaking does not hold up against the reality we know from other sources.27 My question is whether this also holds true for his depiction of republican oratory with regards to libertas and public speech within the republican res publica. In terms of approach, the dialogue lends itself naturally to analysis of the individual interlocutors’ views in order to arrive at more or less coherent depictions of the state of oratory. However, I shall focus on themes across the interlocutors in order to break out of the thinking that Tacitus speaks through one interlocutor rather than them all, and in order to shine the light on liber­ tas, res publica and free speech in the work. In the Dialogus, several interlocking meanings of libertas are on display. One is libertas as lack of slavery, which most scholars regard as the fundamental meaning of the term.28 The context is public speech, which links it with the other meaning represented in the Dialogus. Alongside the explicit connection between libertas as absence of slavery, we find libertas as outspokenness or the ability to speak out without the fear of physical danger. This meaning is much more frequent in the Dialogus, which 27  Van den Berg 2014, 72–86. 28  Tac. Dial. 13.4: In his first of two speeches, Maternus argues against Aper’s view of advocacy as the best bulwark against danger; rather, he argues, advocates are caught in a web of obligations to such a degree that they can never be seen as servile enough to the powerful or independent enough to intellectuals such as Maternus and his fellow interlocutors (quod adligati omni adulatione nec imperantibus umquam servi videntur nec nobis satis liberi). Maternus picks on two particular advocates mentioned by Aper, who were famous delatores (advocates specialised in prosecution for material gain), because it makes his point clearer: forensic orators under the imperial system are slaves, not free. Indeed, Tacitus makes Maternus use exactly these words, servi and liberi, before rubbing it in by comparing the power wielded by this type of advocate with that of the imperial freedmen. Although not using the term libertas directly, the use of servus and liber show that we are here dealing with liberty as opposed to slavery. For discussion see Roller 2001, 228–32; Rutledge 2009. See also Arena 2012 on libertas in the republican period; Mouritsen 2011, 10–11 on the clear distinction between libertas and servitus. For Tacitus’ tendency to juxtapose libertas with servitium/dominatio, see Strunk 2017, 25 with n. 51: there are 26 such juxtapositions in Tacitus’ extant works.

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is unsurprising given the overall topic of public speech. Less obvious but more important for our question, however, is the fact that Tacitus develops libertas as ‘outspokenness’ over the course of the work from a relevant factor to describe public speech in the context of imperial government to public speech in the context of republican government. This oblique development is linked to the way in which the dialogue discussion moves forward: from a discussion of oratory versus poetry under the emperors to two discussions comparing imperial and republican orators and education. But the use of libertas as ‘outspokenness’ seems also to develop into something increasingly complex in ethical value and in application, and in this way it becomes intrinsically connected with the Republic as represented by the interlocutors. In the first speech of the dialogue, Aper places libertas firmly in an imperial context by suggesting that orators speaking in defence of friends in the courts and thereby offending powerful people should be commended for their fides (loyalty) and excused on the grounds of libertas.29 Maternus rejects the idea that eloquence protects against danger and instead argues that only innocen­ tia (uprightness) can protect the status (personal standing) and securitas (uprightness/safety) of someone. Although Maternus does not agree with Aper’s view about what constitutes protection against the wrath of the powerful (innocentia as opposed to fides towards a friend and tolerance of libertas), there is no doubt that libertas here means the ability to speak out against the powerful under the emperors. When Aper speaks again, he employs flattery to persuade Messala, Secundus and Maternus of his views by praising their oratorical talents: Aper says that Messala’s style imitates the richness of earlier (read republican) orators, while Secundus and Maternus display a long array of seemingly praiseworthy oratorical qualities, including restraint in libertas. Libertas must here mean outspokenness because Aper discusses the ways in which Secundus and Maternus speak in public, and because his restraint in libertas is his reaction to spite and ill-will in his audience. As a compensation for their restrained outspokenness, Aper suggests that although their contemporaries may not appreciate the qualities of their speech, posterity (posteri) will.30 Aper thereby presents self-imposed censorship as a virtue in contemporary imperial public life, even if not valued sufficiently in any particular speech situation, and his comment about future appreciation is, of course, realised by Tacitus himself writing about these orators.31 In spite of this or these imperial contexts – if Tacitus is 29  Tac. Dial. 10.7–8. 30  Tac. Dial. 23.6. 31  Also noted by van den Berg 2014, 76.

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posterity, then he and his readers know that the nature and necessity of selfcensorship continues under the emperors – Aper’s description of his fellow interlocutors’ oratory comes at the end of a speech comparing republican with imperial orators, especially in terms of style.32 It is as if Tacitus wants to make his reader compare the use of outspokenness under the emperors with its use in the republican past. The following discussion seems to support this interpretation. During the brief interval between Aper’s and Messala’s speeches, Maternus picks up Aper’s main point that the positive development of oratorical style from ‘ancient’ to contemporary orators goes against the idea of a decline in oratory. In Maternus’ view, the question is not whether oratory has declined – it has – but rather why oratory has declined. The following exchange between Messala and Maternus then puts libertas at the heart of their discussion: “Non sum” inquit “offensus Apri mei disputatione, nec vos offendi decebit, si quid forte aures vestras perstringat, cum sciatis hanc esse eius modi sermonum legem, iudicium animi citra damnum adfectus proferre.” (3) “Perge” inquit Maternus “et cum de antiquis loquaris, utere antiqua libertate, a qua vel magis degeneravimus quam ab eloquentia.” “I am not offended by my dear Aper’s discourse,” Messalla replied, “and no more must you be offended, if something happens to grate upon your ears. For you know that it is the rule in talks of this kind to express one’s innermost convictions without prejudice to friendly feeling.” (3) “Go on,” said Maternus, “and when you speak about the ancient (orators) be sure to employ the old-fashioned outspokenness, from which we have fallen away even more than from eloquence.”33 Libertas is evidently ‘outspokenness’, because the topic here is speaking one’s mind, but libertas is now employed within various settings or levels at the 32  Van den Berg 2014, 137, n. 39 observes that Aper ends his two speeches with the term libertas. 33  Tac. Dial. 27.2–3; all translations are mine unless otherwise indicated. Gallia 2012, 149 reads this passage in light of the dialogue’s setting (Maternus’ Cato as an example of Maternus’ libertas) and the argued lack of good orators as a result of good men choosing to write poetry rather than deliver oratory. Van den Berg 2014, 117 rightly argues that Maternus’ mention of antiqua libertas foreshadows his equation of libertas with licentia in the (late) republican period. Müller 2013, 340–41 reads this passage as part of the construction of the dialogue setting and an expression of the lack of practice of free speech among the interlocutors.

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same time: Messala speaks of the expected outspokenness in discussions between intellectuals as the context in which Aper’s provocative statements must be understood. With this remark, Tacitus not only shows his knowledge of dialogic conventions but also suggests, firstly, that he is simply reporting this dialogue and therefore cannot be blamed for any outspokenness and, as a result, moreover suggests that there is a kind of freedom allowed to authors writing about potentially contentious issues as long as the discussion is framed in dialogic mode. In short, libertas can be enjoyed in intellectual conversation and in writing about such intellectual conversation. Maternus both confirms the validity of these claims and provides the origin for the term and notion of libertas, which he and his fellow interlocutors have been debating: libertas is antiqua, that is, it originates in the old, republican past. We of course know that libertas is a concept inherited from the republican period, and Tacitus’ readers knew this. But it is only at this, rather late, point in the dialogue that Tacitus lets his interlocutors say it outright, thereby allowing the discussion of the conditions of public speech to fall into place. This is clear because Maternus continues to argue that this libertas, outspokenness, has now disappeared even more than eloquentia, good oratory, but that Messala in his speech can revive the libertas to say what he really thinks about the ‘ancient’ (republican) orators. Tacitus lets his interlocutors suggest that this republican libertas has disappeared from imperial public speech but that it can be revived within intellectual conversation and within literary works seemingly reporting such conversation. 4

Res publica, libertas and licentia in the Republican Period

Maternus’ part in positioning a central concept within its republican origin is repeated for the term res publica. While Tacitus lets Aper use the term to describe Augustus’ government of the state (divus Augustus rem publican rexit) and Vespasian pleasing the country (Vespasianus rem publicam fovet),34 it is not until Maternus’ second and final speech that res publica is used to describe both the republican and the imperial state: the ‘composita et quieta et beata re publica’ under the emperors and the res publica torn apart by republican competition for power.35 Although the meaning of res publica differs slightly from passage to passage – be it ‘country’, ‘state’, ‘government of the state’ or ‘political

34  Tac. Dial. 17.3, 17.4. 35  Tac. Dial. 36.2, 36.4.

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system’36 – it is the connection between res publica and the republican period and the republican usages of the term, which are important here. The term and notion of res publica, like libertas, is shown to grow out of the Republic and by using these terms Tacitus highlights the current system’s connection with the republican past. But what republican past? Maternus is the interlocutor providing the fullest and most detailed description of the republican past.37 Maternus conjures up a time before the emperors in which oratory flourished and free speech was the norm: the constant competition for the support of the common people (the errantus populus – ‘unstable populace’38), through popular legislation, endless contiones, incessant and hostile trials against criminals and political enemies, and the never-ending struggles between the Senate and the plebs forced politicians to perfect their oratory but also tore the res publica apart.39 Indeed, Maternus continues, the courts provided a better training ground then because there was no limitation on speaking time, the cases were of higher importance for the state, and people cared so much about the trials that they turned up in throngs.40 Maternus’ next point, that in the republican period it was not only possible but normal to publicly criticise the most powerful men of the state, leads him to describe the nature of oratory as ‘a foster-child of licence, which the stupid call libertas, a companion of sedition, a spur on the unrestrained people, without deference, without discipline, defiant, reckless, arrogant, and which does not derive from well-regulated societies’ (alumna licentiae, quam stulti libertatem vocitant, comes seditionum, effrenati populi incitamentum, sine obsequio, sine severitate, contumax, temeraria, adrogans, quae in bene constitutis civitatibus non oritur).41 Maternus’ equation between libertas and licentia makes clear that libertas is not necessarily, or not only, a positive term, and that the republican set up is not considered uniformly good in terms of public life. In his presentation, the freedom to say what you think – libertas – can be considered a licence to speak without restraint and without respect for individuals, norms and rules – licentia – and the boundary between libertas as a positive and licentia as a

36  Further usages at Tac. Dial. 37.6, 41.4. 37  His description is famously at odds with his own role as author of an offending play about Cato, but I am here not concerned with the internal logic of Maternus’ views. 38  Tac. Dial. 36.2. 39  Tac. Dial. 36.1–4. 40  Tac. Dial. 39–40. 41  Tac. Dial. 40.2. For intertextual references to Cicero’s treatises De oratore, De re publica and Brutus, see Whitton 2018, 38–39; Keeline 2018, 270–73.

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negative characteristic of the Republic is blurred.42 Indeed, Maternus’ Republic is characterised by competition, violence, strife, licentia masked as libertas, a situation in which lives and reputations are at stake, and in which politicians and advocates have to be excellent orators in order to thrive. The passion of Maternus’ speech puts on display his message of excellent oratory under challenging circumstances; it is almost compelling. His depiction of republican oratory is an argument constructed to be persuasive but not necessarily to be truthful to the republican past. It might not even reflect the knowledge of elite Romans at the time of the dialogue setting or Tacitus’ composition, because they seem to have had access to much more information about republican oratory than we do, and what we have does not align fully or even well with Maternus’ depiction. First of all, the libertas Maternus describes as equalling licentia may be true to some extent because there were no known laws against libel and defamation, and consequently invective was a thriving element of public speech.43 Nevertheless, there was also considerable self-regulation among the senatorial elite afraid of losing face or losing political friends and connections.44 The higher the stakes, the more circumspect a politician or advocate had to be, and it was not necessarily possible to address the powerful with frankness.45 The fact that Cicero disregarded this concern for self-preservation in his Philippic Speeches, leading to his murder, was the reason for his initial posthumous reputation as the voice of the public against Marcus Antonius’ violence.46 His outspokenness against the powerful was unusual and its result famously dramatic, indeed fatal. 42  On this boundary and especially the (less negative) depiction of licentia in the Rhet. Her., see Hilder 2015, 131–39. See also Quint. Inst. 3.8.48 on the difference between libertas and licentia depending not only on the political situation but also on the public standing of the speaker. 43  Powell 2007; Arena 2007. The one exception is the report of a charge of iniuria in Rhet. Her. 1.14.24. 44  Hall 2009 analyses this self-regulation as expressed within Cicero’s correspondence with friends and political connections. Cicero’s speeches also display such self-regulation, for example his avoidance of criticising Sulla’s proscriptions in his defence of Roscius of Ameria (Rosc. Am.), or his lack of criticism of Caesar and Pompey after his return from exile in, e.g., Pro Sestio and De provinciis consularibus. 45  For strategies of addressing the powerful in late republican Rome, see van der Blom (in preparation). 46  Sen. Suas. 6.25–26 with degl’Innocenti Pierini 2003, 15 n. 60, 37–41 for the context of the notion of Cicero as the publica vox; see also Sen. Suas. 6 and 7 for further (probably Augustan-period) declamatory material on Cicero, indicating the themes by which he was understood in this period.

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Another claim of Maternus seems rather polemical, too. There was certainly much competition in republican politics and courts of law, but this competition did not always lead to violence. The works of Cicero appear to have influenced this depiction because Maternus mentions that Cicero’s oratorical skills were honed on Catiline, Milo, Verres and Antonius, not on Quinctius and Archias.47 Certainly, the speeches against Verres, Catiline, Antonius and for Milo all highlight some aspects of republican competition and high-quality oratory, as well as violence in relation to political activity. These were also the speeches most widely known in the early imperial period.48 But to say that Cicero did not hone his skills in the speeches for Quinctius and Archias is not entirely true. In fact, speeches in defence were exactly the way in which Cicero built up his experience as an orator in his early career. The Pro Quinctio is the earliest of Cicero’s extant speeches and therefore possibly the first speech he decided to circulate in written form.49 The implication is that Cicero thought this speech good enough to advertise his skills as orator and advocate. The black-and-white portrait of republican competition and of development of good oratory helps Maternus drive home his point, but it does not reflect all the aspects of republican public oratory. Finally, and most importantly, Maternus’ point that this republican situation of competition and strife bred excellent oratory which, therefore, was necessary for a successful political career,50 is tailored to hammer home his message but not to convey the multi-faceted circumstances of public speech and public career-making in republican Rome. Certainly, there were excellent orators and Tacitus has his interlocutors single out what seems to be an imperial canon of outstanding republican orators, including Cicero and Caesar.51 But there were also mediocre orators who made it in republican politics and even bad orators performing in public.52 In fact, the claim that oratorical excellence was a necessity for a successful public career in late republican Rome is a 47  Tac. Dial. 37.6. 48  Van der Blom 2017a, 90–93; 2018, 268–75 on the spread of Cicero’s speeches in the first century AD. Keeline 2018, 267–68 emphasises Maternus’ point about the change in forensic setting and that Cicero’s oratory was honed in public cases, but this overlooks the fact that the speeches against Catiline and Antonius were not delivered in a court. 49  Cicero mentions in the Pro Quinctio that he acted as advocate in other cases before the defence of Quinctius, but we have no further details. See the chronological list of Cicero’s forensic speeches in Powell & Paterson 2004, Appendix p. 417. 50  Tac. Dial. 36.4–8, 37.3. 51  On the imperial canon of excellent republican orators and the position of Tac. Dial. within this, see van der Blom 2017b. 52  On a family of mediocre orators, see Rosillo-López 2013 and on the mediocre orator Piso, see van der Blom 2013; on bad orators, see Wisse 2013.

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fallacy based on Cicero’s own career and his continued efforts to communicate this claim as fact.53 Studies of non-Ciceronian orators and politicians in the late Republic show that oratory was one of several means to promote a public career but also that it was possible to enjoy a highly successful career without being known to possess or display brilliant oratorical skills.54 Maternus’ depiction of public speech in the republic does not accord fully with what we know from other sources, neither does his depiction of the parameters of oratory in the imperial period. In fact, Tacitus appears not to have been concerned about providing a truthful picture but rather with putting forward questions regarding the interplay between public speech and power, including the meanings of libertas and res publica.55 Where does this leave the interpretation of a republican libertas in the Dialogus? 5

A Republican libertas?

Strikingly, Tacitus builds up the notions of libertas and res publica from being relevant in the imperial setting to increasingly related to the republican past, especially its political culture. In this way, Tacitus makes his interlocutors suggest that these terms originated in the republic, even if they are still used and debated, which makes especially Maternus’ depiction of the republican situation much more significant as a backdrop to imperial understandings of liber­ tas and res publica. One of the ways in which Tacitus uses the republican backdrop to promote an imperial-period view is in the description of libertas as the ability to speak out against the powerful. Aper’s initial mention of imperial-period orators defending friends and offending powerful people as an exercise of libertas first moves on to Messala’s and Maternus’ discussion of libertas as the freedom of interlocutors and author to debate political topics among intellectuals without the risk of prejudice, and then ends with Maternus’ description of the republican ability to offend the powerful. This arc has moved us from an openly imperial public setting, via an almost timeless literary or intellectual setting to a 53  On Cicero’s communication of this claim in general, see van der Blom 2016, 1–2; on Cicero’s attempt to write the history of oratory into mainstream Roman history, see van der Blom 2017c. 54   Rosillo-López 2013 studies the Scribonii Curiones; van der Blom 2016 provides six case studies. 55  See Gowing 2005, 120 and Keeline 2018, 270–73 who argue that Maternus’ speech shows Tacitus’ message to be that eloquence and the republican political system died with Cicero in 43 BC.

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firmly republican setting.56 The reader gets the impression that libertas meant the ability to publicly criticise the powerful as much in the republican past as it does to the imperial-period interlocutors and author, and that this ability could be termed libertas when used in an ethical way and licentia when used in an unethical way. However, I suggest that this depiction of republican libertas and licentia was inspired less by the republican past – as I hinted at in my deconstruction of Maternus’ portrait of republican oratory – and more by early imperial versions of the Republic, such as those of Valerius Maximus and Plutarch. I base my suggestion on an analysis of Maternus’ use of republican exempla to support his argument about republican outspokenness. Maternus brings forward three republican examples to illustrate public criticism of the powerful – P. Scipio, Sulla and Cn. Pompeius – but without providing any contexts for these examples.57 This leaves the reader of the Dialogus guessing at which situations of republican outspokenness is hinted. For the purposes of our question regarding the imperial understanding of republican libertas, we need to consider the ancient reader of Tacitus’ work and which republican figures might have been meant by Tacitus. The modern commentator on the Dialogus, Roland Mayer, is probably right in pointing to Valerius Maximus’ collection of outspokenness against Pompey as a source, but I doubt his suggestion that Tacitus was thinking of the Scipionic trials of the 170s BC or a prosecution of Sulla in 92 BC in his mention of ‘P. Scipio’ and ‘Sulla’.58 In fact, there is little concrete extant evidence of frank speech at these trials, while there is evidence of such speech at other occasions involving a Scipio and Sulla. The chapter in Valerius Maximus on libere dicta aut facta (‘Freely spoken and freely done’), in which we find the stories of public criticism aimed at Pompey,59 contains, in the section immediately preceding, the story of Scipio Aemilianus (termed ‘P. Africanus’ by Valerius Maximus) responding to tribune Cn. Carbo’s insinuating question about the killing of Tiberius Gracchus, Scipio’s brother-in-law.60 It is clear that Scipio is being put on the spot in a hostile contio and that Carbo expects him to either condemn the killing or to make himself extremely unpopular with the people. However, Scipio manages to scold the assembled people into silence by implying that they included recently freed captives from the provinces. The precise 56  Tac. Dial. 10.7–8, 27.2–3, 40.2. 57  Tac. Dial. 40.1. 58  Mayer 2001, 210–11: Val. Max. 6.2.4–8. Valerius Maximus wrote under the emperor Tiberius (AD 14–31). 59  Val. Max. 6.2.4. 60  Val. Max. 6.2.3.

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details matter less than the fact that Carbo’s public criticism of the returning victor from Numantia, Scipio, serves as an illustration of free speech to Valerius Maximus.61 It therefore seems as if Tacitus has been inspired by Valerius’ chapter on free speech in his selection of republican exempla to put into the mouth of Maternus. It would have been very neat if Sulla, too, was included in this chapter in Valerius, but he is not. Nevertheless, there was an anecdote circulating in the first century AD about Sulla being exposed to free speech. Plutarch (ca. AD 45– 120) relates the story about a Gaius Metellus asking Sulla in the Senate when the proscriptions would end and whether Sulla could make clear whom he wished to proscribe.62 The context is clearly shortly after Sulla’s victory at the Colline Gate but before the formal proscriptions were in place, that is, late 81 or early 80 BC. There are other stories about Senate meetings under Sulla’s dictatorship resounding with the cries of slaughtered enemies,63 but not this exact story. Nevertheless, this example of addressing the powerful must have been sufficiently well known for Plutarch to pick it up. Tacitus probably could not have picked it up from Plutarch (if the dates of composition are correct) but Plutarch’s mention documents that the story existed at the time of Tacitus’ composition.64 The story about Metellus’ intervention fitted nicely with the other stories about Scipio and Pompeius facing public criticism in a way which Tacitus’ interlocutor Maternus suggested was highly republican. Most noteworthy, however, is Tacitus having Maternus mention Pompey as a republican powerful criticised in public, because Tacitus seems to have borrowed not only the stories of this criticism from Valerius Maximus but also the language: Valerius opens his sequence of Pompey stories by generalising that 61  The story is also found, in a shortened version, in the near-contemporary historical account of Velleius Paterculus (2.4.4). The Fragments of the Roman Republican Orators, based on Beness and Hillard 2012, links the story in Val. Max. and Vell. Pat. with another, yet similar story, in Ps.-Acro Serm. 2.1.72. 62  Plut. Sull. 31.1–3. On the identity of this Gaius Metellus, the Fragments of the Roman Republican Orators suggests C. Caecilius Metellus (RE 71). 63  Plutarch’s account of Gaius Metellus’ intervention comes just after he narrated the horrible experience of the Senate meeting in the temple of Bellona shortly after Sulla’s victory at the Colline Gate (1 Nov. 82 BC) at which the cries of the captured from Antemnae (6000) slaughtered in the circus in Rome reached the senators in the temple and scaring them (30.1–3). For this meeting, see also Sen. Clem. 1.12.2, Prov. 3.7. 64  Jones 1966, 69 dates the Lysander-Sulla biographies of Plutarch to the period ca. AD 104– 114; Jones’ chronology has not, to my knowledge, been seriously questioned. Another means of addressing the powerful, also under the emperors, was ‘figured speech’ for which see Quint. Inst. 9.2.69–72 with discussions in Ahl 1984; McHugh 2003 and, with a late-republican context, Tempest 2013; Dugan 2013.

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Pompey often struggled with libertas because his poker face in situations of public criticism seemed to further invite licentia.65 Maternus moves straight from Pompey to making the claim that libertas equalled licentia in the republican past. Moreover, Valerius opens his entire chapter on libere dicta aut facta by comparing libertas with licentia, and adding an ethical criterion to distinguish between the two, which has similarities with the ways in which Tacitus lets his interlocutors discuss libertas and licentia in both republican and imperial periods.66 The story about Sulla’s questioning by Gaius Metellus is only found in Plutarch. A shorter version of the anecdote about Scipio Aemilianus is also found in Velleius Paterculus although he does not emphasise the element of outspokenness.67 An even briefer mention in Cicero’s De oratore similarly reports Scipio’s first answer (that the killing was justifiable) but not the wider exchange or the element of outspokenness.68 Valerius’ version is thus the only extant source to use the exchange between Scipio and Carbo as an example of libertas/licentia. The fact that there are several stories about outspokenness against Pompey in Valerius Maximus makes the impression of Valerius’ sources and reception more varied, but there are still some patterns with relevance for our question: some of Valerius’ stories about Pompey are found in one other source, including Cicero, Plutarch, Dio Cassius, Ammianus Marcellinus, but the verbal attacks by Cn. Piso and Helvius Mancia are unique to Valerius Maximus.69 This, together with the extant mentions of the stories about Sulla and Scipio, suggests that Valerius may have picked some material from Cicero, shared some material with Plutarch and possibly influenced the accounts of Dio and Ammianus Marcellinus. This impression fits with larger studies into Valerius’ sources which underline his debt to Cicero and Livy.70 65  Val. Max. 6.2.4. 66  Val. Max. 6.2.praef. For a brief discussion of this preface, see Bloomer 1992, 54–56. 67  Vell. Pat. 2.4.4. 68  Cic. De or. 2.106: Cicero’s purpose for bringing forward this anecdote is to illustrate the need to identify the question at hand in preparation of a forensic speech (the question was not one of truth–whether or not Tiberius Gracchus was killed–but of the nature of the question or of definition–whether the killing was justifiable or not). 69  Cic. Att. 2.19.3 reports on Diphilus’ attack on Pompey (Val. Max. 6.2.9); Plut. Cat. Min. 48 on Cato’s attack on Pompey (Val. Max. 6.2.5 on which see Bloomer 1992, 189–90); Dio 39.28.4– 5 on Marcellinus’ attack on Pompey (Val. Max. 6.2.6); Amm. Marc. 17.11.4 on Favonius’ attack on Pompey (Val. Max. 6.2.7). Val. Max. 6.2.4 (Cn. Piso), 6.2.8 (Helvius Mancia, on which see Steel 2013). 70  Bloomer 1992, 59–146 provides the best discussion of Valerius’ sources; Lawrence 2018 includes discussion of Valerius’ debt to Cicero in exempla relating to oratory; while

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Tacitus had clearly read Cicero, too, and he did borrow heavily from Cicero’s rhetorical treatises (especially De oratore and Brutus) when writing the Dialogus.71 He may also have read Plutarch, or shared a source with Plutarch for the Sulla example. Nevertheless, the overlap in language, theme and examples strongly indicates that Tacitus read and used Valerius Maximus’ presentation of outspokenness in the republic when writing his Dialogus and putting the republican examples of such behaviour into the mouth of Maternus. On this basis, I suggest that Tacitus built his version of the Republic not only on republican sources – especially Cicero – but also on early-imperial potted histories about freedom of speech and its abuses;72 stories, which were already eroding some of the nuance of the republican reality and changing the emphases – also regarding the meaning of libertas.73 6

Conclusions

For Tacitus, the republican past was clearly important and in several ways. Nevertheless, in the Dialogus he seems to subtly manipulate republican realities around public speech and notions about libertas and licentia towards a depiction that supports his overall message. The republican past is a convenient and persuasive backdrop for his message about the conditions of public speech under the emperors because his republican past suggests that his concerns about these conditions were as relevant in the republican period as they are to Tacitus and his contemporaries, and that they therefore have powerful precedents for their concerns and some support in their expression of these concerns. This is not a problem for reading Tacitus as a window into his own period (unless when he has been proven wrong, as mentioned above), or as an example of imperial-period views of republican oratory. But it is a problem for using Tacitus’ Dialogus as a window into republican oratory or republican notions Langlands 2011 and 2018 offer discussion of Valerius’ debt to Cicero’s De officiis and his position within the wider Roman exempla culture. 71  Van den Berg 2014, 58–66, 74–75, 84–86, 208–40, 243–44, 270–75 (and throughout). 72  For an early imperial preference for ‘potted histories’ and compilations of exempla over longer historical narratives, see Kraus 2005. Langlands 2018, 234–57 argues against the underlying idea of a decline in exempla usage in the imperial period. 73  Lawrence 2018 argues for Valerius’ distinctive shaping of well-known republican episodes. For a possible Horatian parallel to this manipulated use of ‘republican’ libertas, see Hor. Sat. 1.7 and the analysis in Jeff Tatum’s chapter in the present volume; I am grateful to Jeff for pointing out the parallel.

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of libertas and res publica, because his presentation seems skewed towards his own agenda. Scholars have always been wary of reading Tacitus at face value, and I do not suggest that this contribution is the first to raise concerns about Tacitus’ veracity regarding the republican past. Nevertheless, in light of Tacitus’ importance for our understanding of notions of libertas and free speech in general and the central place his Dialogus holds in discussions of public speech in both Republic and empire, it is crucial to understand the ways in which Tacitus lets his interlocutors, so very eloquently, transpose imperial concerns with libertas and free speech into the republican period. For the imperial elite of the first and early second century AD, the legal meaning of libertas was still current, but in their thinking and writing about public and political life, libertas first and foremost meant the freedom to address the powerful without fear of punishment. Tacitus lets his interlocutors in the Dialogus present a republican past in which this meaning of libertas was predominant as well as one of the reasons for the destruction of the res publica as they knew it. Tacitus was not alone in this attempt to rewrite republican libertas – he built on the works of earlier authors – but his presentation of republican libertas says as much about contemporary concerns of speaking to those in power as it does about the conditions of republican public speech and notions of libertas and res publica.

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Index Aemilius Lepidus, M. (triumvir) 139–140, 142–143, 147, 164–166, 194–195, 199, 201, 204, 206, 208 Aemilius Lepidus, Paullus 46, 112–113, 146–147 Africa 205 agreement 6, 11, 114, 139–140, 156–157, 162–163, 165–166, 193 of Teanum 141–143, 161, 163, 166 of 17 March 44 BC 192–193, 199 Alexandria 87, 149 altercatio 195 ambassador(s) 89, 163 Ammianus Marcellinus 232 amicitia/amicus 84, 93, 98–99, 190, 200, 205n46, see also friendship Anneo Seneca, L. 183 Antiochus III, king of Syria 87, 157 Antonius, L. 140–144, 148–149, 154, 161–163, 165, 201 Antonius, M. (triumvir) 11, 133, 139–140, 142–143, 146, 148–151, 153, 160–162, 165, 167, 177–178, 185, 189, 193–200, 202–210, 227–228 Antony, see Antonius M. Apamea, peace of 88 Apollo 58n15, 62, 208 Appian 23, 87, 96, 138–144, 148, 159, 161–164, 196, 199n arbiter/arbitrator 11, 142, 154, 156–157, 162–164, 167 arbitration 10–11, 88, 153–160, 162–167 (see also mediation) by bonus vir 155–156, 164 by compromissum 155–157 by iudex 155–156, in Gabii  163–164, 166, in elections 158 in political disputes 160 Arena, Valentina 7, 9, 47, 193, 208, 220 Aristophanes 36–37 Asia minor 92 Asinius Pollio, C. 161, 201, 204 Astymedes 89 Athens/Athenian 21, 36, 41, 48, 88, 96, 98, 195n28

auctoritas 11, 86, 170–172, 175, 176, 179, 184 of Augustus 173–175, 178, 185–186 of the princeps 172–175, 185 of the Senate 173–175, 185 Augustine 57–61, 64–65, 77, 105, 109, 121n10 Augustus 1, 6–7, 11, 27, 40, 51, 109n7, 134–135, 150n54, 170–179, 183–186, 209, 217, 225 Aulus Gellius, see Gellius Aulus autonomia 71, 115 battle of Beneventum 74 of Heraclea 49 of Munda 189 of Mutina 140, 194, 196, 199, 202, 204, 207–209 of Pharsalus 189 of Philippi 142, 160–161, 165, 199n, 208 of Pydna 46, 85, 87–88, 94, 96 of Sentinum 74 Berenice, queen 156 Caecilius Metellus, G. 231–232 Caelius Rufus, M. 201 Calpurnius Piso Caesoninus, L. 167 Carthage 40, 109 Carthaginians 40, 42, 50, 74, 90 Cassius Dio 138, 142, 145, 147, 149, 153n4, 159, 161–164, 232 Cassius Longinus, G. 146, 176, 193, 197, 200, 205, 207–208 Catiline 134, 228 Catilinarian debate 87, 98 census 23, 120 Cincinnatus 40 citizenship 5, 8, 15, 18–23, 42, 75, 104, 116–117, 119n6, 123, 133, 186 Cleopatra 149, 178 Cocceius Nerva, M. 153 coins 42n, 74, 79n, 173, 176, 180, 182, 208 comedy Latin 35, 37, 39, 41, 45 New 36 Old 36 comitia 20, 23, 27–28, 145, 170 contagio 190, 199

264 contio 119n6, 143, 148, 162n50, 226, 230 consilium 193, 209 constantia 6 constitution 71, 123n18 mixed 126–127, 170 consul 10, 19, 122, 126, 138, 148, 150–151, 158, 161–162, 165–166, 170, 193, 196, 198 ordinarius 145–146, 149 tasks of 145–148 subordinate to the triumvirs 139, 141, 144, 148, 150 suffectus 140, 144–146, 151, 162n46 consulship 10, 19, 34, 138–140, 143–145, 147–149, 151 subjected to triumvirate 144–145, 148, 151 Coriolanus 153 Cornelius Balbus, L. 146, 206 Cornelius Dolabella, P. 199, 201 Cornelius Scipio L. 113, 115 Cornelius Scipio Aemilianus, P. 48, 50, 106–111, 115, 230–232 Cornelius Scipio Africanus, P. 113 Cornelius Scipio Nasica, P. 48, 191, 193, 200 Cornelius Sulla, P. 132–133, 158, 189, 227n44, 230–233 decemvirs/related to 4, 21 Delos 88 Delphi 208–209 democracy/democratic 9, 47, 96, 105, 110, 113, 120–121, 125, 170 Demosthenes 9, 84–85, 96–100 On the Liberty of the Rhodians 9, 96 detrimentum 127, 129–131 devotio 120 dialogue (literary genre) 218–220, 222–223, 225, 227 dictator/dictatorship 40, 133, 139, 190, 196, 201–202, 231 Digest 8, 15–16, 24, 26, 133–134 dignitas 86, 107, 172, 206, 207n54 dominatio 2, 5, 33, 189n3, 222n28 Domitius Ahenobarbus, Cn. 149, 160 Eleutheria (deity) 45 eleutheria 85, 96, 98, 115 eloquentia 217, 220–221, 224–225 embassy(ies) 21, 88, 163, 194

Index emperors Caligula 179, 184, 186 Claudius 95n37, 175, 179–180, 185–186 Domitian 179, 182 Galba 181–182 Hadrian 95 Nero 179, 181, 183, 217 Nerva 182, 183n43, 217 Otho 181 Tiberius 179, 230n58 Trajan 183n43, 217 Vespasian 181, 217, 225 Vitellius 181 empire 8–9, 70, 104–106, 108–111, 113, 118, 121n10, 124n, 128, 131, 136, 145, 180–181, 234 republican 104, 106, 115–117 Ennius 8, 35, 47–50, 62 Annales 48–49 Erechtheus 48, 51 Phoenix 48–49 Eumenes II 157 exemplum/exempla 191, 218, 230–231, 232n70, 233n72 fabula palliata 36, 41, 45, 48 fabula praetexta 48 factio 51, 130, 176–178, 201, 209n67 familia 76–77 Favorinus 156 fides 6, 192n17, 223 Florentinus 8, 24–26, 28 foreign people 36, 43 policy 85, 99, 116 power 9 forum 19, 41, 45, 62, 64–66, 70, 78, 147, 192, 203 freeborn 4, 35, 38, 43, 45, 49, 51, 74 freedman 19, 23n63, 39, 41–42, 44–45, 49–50, 56, 74, 86, 95 freedom 2–3, 12, 24, 35, 44, 47–48, 51, 99, 104–105, 107–109, 111–112, 114–116, 184, 191, 193, 207, 209, 225 of non-Romans 9, 46–47, 50, 84–85, 87, 91–92, 94–96, 99–100, 108, 113–115 political, see libertas political

265

Index friend/friendship 43, 48, 65, 84, 86, 93, 95, 97–98, 114–115, 150, 153, 163, 190, 198, 200–201, 205–206, 221, 223, 227, 229, see also amicitia Fufius Calenuns, Q. 167n66 Fulvius Nobilior, M. 48 Gellius, Aulus 85–87, 90–91, 94, 95n37, 98–101, 156 Noctes Atticae 85–86 gradatio 107, 110 greed 87n16, 90, 93n32 Greek culture 36, 41, 46, 49, 68, 76, 96–97, 100, 123n18, 126, 170, 190 Hannibal 37 Herakleia 113, 115 Hirtius, A. 140, 194, 199–205, 207–208 homo sacer 190–191, 197, 206 Horace 153, 210 Hume, D. 25 hybris 97n, 98 (see also superbia) imperator 112–113, 143, 148 imperium 10, 84, 92, 94, 104, 107–112, 114–115, 124n22, 132–134, 138–139, 142–144, 149, 151 iniuria 128, 227n43 Isidore of Seville 107–108, 110 isonomía 46 Iulia Antonia 153 Iulius Caesar, G. 11, 98, 126, 133–134, 159, 162, 167, 176–178, 189–190, 195–196, 200–208, 227n44, 228 as tyrant 190, 197–199, 206 death 190, 194, 198–199 Iulius Caesar Octavianus, G. (young Caesar)  7, 11, 139, 140, 142–144, 146, 149–151, 153–154, 160–165, 167, 193–194, 199, 201–208 (see also Augustus) Iunius Brutus, D. 193–194, 196, 199, 201, 204, 208–209 Iunius Brutus, L. 4, 19, 34, 146, 191–193, 200, 208 Iunius Brutus, M. 42n47, 176, 191, 193, 200, 202, 204, 207–208, 210 ius alieni 18

auxilium 5, 23, 73 civile 116–117 civitatis 123 imperii 132 intercessionis 73 privatum 111 provocationis 73, 133 publicum 111 suffragium 73 Johnson, Robert 110 Jupiter 40, 59, 62, 65, 69, 72, 74–75, 191, 195 Justinian 15, 24, 106, 124n22 king(s) 1–3, 7, 19, 34, 46–47, 49, 95, 105, 115, 124n22, 149, 160, 198–199, 210–211 law civil 115 natural 15, 135 public 15, 112 Roman 8, 15–16, 18n18, 24, 69, 105, 113, 123n20, 155 letter(s) 86–87, 100, 113, 158, 190 from Antonius 11, 194–196, 199–208 from Cicero 158, 197–198, 204 lex Appuleia frumentaria 130 Appuleia de maiestatis minutione 129 Cornelia de maiestate 132–135 curiata 165, de capite civium 127 de maiestatis 119, 127, 131 de provocatione 4, 5, 23, 44 iudiciorum publicorum 133 Iulia de maiestate 133–135 Laetoria 38 Lutatia 128n27 Pedia 140 Poetelia Papiria 18, 21, 23 Porcia de provocatione 44, 47 Porcia de tergo civium 44 repetundarum 106 sacrata 191 Titia 139–141 Liber (god) 9, 20, 55, 62–64, 66, 75–79 etymology 55, 58–61, 63, 68–69, 71–72 god of fertility 58, 60, 62, 65–67, 75, 77

266 Liber (god) (cont.) releaser of masculine seeds 55, 59–60, 62, 71, 77 wine and 60–61, 71 liber 4, 19, 20, 47, 71, 76, 222n28 Libera 20, 59–60, 75–78 Liberalia 20, 63, 65–68, 78 Liberator(s) 11, 19, 46, 50, 55, 189–194, 196–201, 204–210 Libertas (divinity) 45, 72, 75, 181, 208 statue of 179, temple of 23, 42, 74, 75 libertas 1–4, 6–7, 105, 109–111, 124, 178–179, 183–185, 195–196, 199, 210 aequa 46–47, 51 amissa 51 as catchword 5, 8, 12, 179, 189 as civic rights 15, 46–47, 52, 56, 73, 93, 106, 115, 117, 220 as faculty 8, 16, 24, 25, 72 as freedom of speech 5, 11–12, 44, 56, 106, 150, 164, 216–226, 229–230, 232–234 as non-domination 5, 8, 16, 20, 33, 35, 38–39, 48, 51–52, 72–75, 79, 92, 104–105, 108, 124n22, 220, 222–223 as safety/protection 5, 15, 44, 52, 71, 218n as self–determination 33, 47, 92, 219 as self-fulfilment 56, 67, 72, 78–79, 110 Augusta 180–181 economic 56, 73, 75 fatherland and 38–40, 43, 48, 51 from physical or emotional constraints  9, 25–26, 51, 75 imperial 185, 217, 219, 222, 230, in coins 176, 180–182, 208 in Tacitus 183, 216–234 internal/moral 48–49, 51, 183–184 juridical 8–9, 35, 49–50, 56, 68–68, 71–72, 75 legal 16, 22, 24–26, 42, 50, 220, 234 orationis 33, 36, 44, 51 (see also as freedom of speech) political 4–5, 7–9, 15, 19, 23, 33–35, 42, 44, 46–47, 50–52, 73, 75, 79, 109, 118, 138, 143, 171, 183–184, 193–194, 206–209, 211, 217–220, publica 19, 27, 179, 181–182

Index republican 198, 219, 225–226, 229–230, 234 restituta 51, 181–182 senatoria 44, 217 variety of meanings/adaptability 5–6, 34, 56, 79, 176, 186, 217, 218n, 222 vindex 11, 51, 176, 189, 191–192, 197, 207, 209 liberty 1–3, 5, 7, 15, 56, 66, 74, 176, 184, 207 neo-Roman theories of 104–106, 108, 112 libido dominandi 109 licentia 218, 224n33, 225–227, 230, 232–233 litigation 123, 142 Livy 2–3, 5, 19, 33–34, 40, 44, 46, 50, 84, 87, 89, 95, 111, 116, 120, 124n22, 232 Ab Urbe Condita 2 Lucilius 47 Lucretius 61 ludi 37, 63 Maecenas, C. 153 Maelius 40 Macedonia 94–95 Machiavelli, N. 105, 109 maiestas 114, 129, 130n31, 131–132, 136 (see also lex de maiestate) populi 114, 130–132 rei publicae 132 mancipatio 18 Manius Iuventius Thalna 88 manumission 23, 41, 42n49, 72, 95 Marius, G 131, 198 Mark Antony, see Antonius M. Marsyas 69–71 Matius, C. 190, 200 Mausolus 96 mediation/mediator 87–88, 153–154, 159, 169 metus 26, 84n2 minutio 127, 130–131 Moatti, Claudia 2n8, 3, 7, 10–11, 170–171, 175 moderatio 6 monarchy/monarchical 2, 11, 19, 34, 111, 116, 118, 125, 138, 143, 170, 183, 186, 191, 217 republican 110, 116 mos maiorum 121, 158, 192, 208 Mucia Tertia 153 Munatius Plancus, L. 194, 199, 208

267

Index Naevius, Cn. 35–36, 48n88 Agitatoria 35 Tarentilla 36 neutrality 88, 92, 167 nexum 18, 21–23 Octavia 153 Octavian (see Iulius Caesar Octavianus, C.) optimates 46, 129–131, 133, 176, 202, 211 oratory 11–12, 107, 194, 197, 208, 221–224, 226, 228 (see also rhetoric) public speech 216–218, 220, as free speech 11–12, republican 217–218, 222–223, 227, 229, 233 imperial 217, 223, 229 Osteria dell’Ossa 16–17 Ovid 48, 64, 66, 77, 186 parricidium 11, 191, 194, 196–200 paterfamilias 18, 20 pater patriae (parens patriae) 197–199 patria potestas 20 Paul (Iulius Paulus Prudentissimus) jurist  24–26, 128 Pedius, Q 139, 140, 141n11 perduellio 127, 129, 133n37 Perseus, king of Macedon 46, 85, 87–88, 91–92, 94 Persius (character in Horace’s Satires)  210–211 Pettit, P. 1n2, 72n82 Philip V, king 37 pietas 40, 41, 206 pilleus 41–42, 56, 73–75, 95, 192n17 pirates 92 Plautus 8, 35–38, 41–43, 45–47, 51, 85, 92, 120, 166 Amphitruo 39 Bacchides 38, 44, 51 Captivi 37, 42–43, 51 Epidicus 41 Miles Gloriosus 37, 41, 51 Mostellaria 36, 44 Poenulus 40, 42, 51 Pseudolus 38 Rudens 38, 45

Stichus 37 Plutarch 96, 153n4, 199n, 230–233 Pocock, J. 109–110, 116, 123n18 politeia 118, 121, 126 political thought 2n8, 6n26, 7–8, 12, 93, 104, 108 Polybius 88–89, 95, 105, 126, 170 Pompeius, Cn. 146, 147n43, 159, 189, 200–202, 205, 206–207, 227n44, 230–232 Pompeius, Sex 153, 160–161, 164, 195, 202–205 Pompey see Pompeius Cn, popularis 47, 130–132, 176, 202 populus 3, 27, 120, 121n10, 124, 128n27, 129–130, 133–134, 226 Romanus 130, 179, 217 (see also Roman people) Porcio Cato the Elder, M. 9, 44, 46, 48, 50, 84–101, 105, 111, 121n10, 124 De falsis pugnis 93 De Macedonia liberanda 94 Origines 85, 89, 98, 100 Pro Rhodiensibus 9 Porcio Cato the Younger, M. 158 as arbiter 159, 167 potestas 20, 134, 148, 173 praetor 26, 41, 45, 88, 131, 156–159, 210 princeps 1, 133n138, 134–136, 172–175, 180, 185–186 senatus 173 Principate 6, 11, 15, 106, 117, 123n17, 124n22, 135, 138, 170 Priscian 100 Proculus 106, 114 proscriptions 132, 141, 208, 231 provocatio, (see also lex de provocatione) ad populum 133 Prusias II, king of Bithynia 95 Pyrrhus, king 49 Quintilian 101, 125–126, 171, 175 Quintus Axius 86 Quintus Minucius Thermus 93 recte 128–129 regnum 2–3, 5, 33–34, 40, 47, 191–192, 199

268 republic 106, 114, 118, 135, 143, 145, 179, 186, 191–193, 196, 198, 218, 221, 223, 226–227, 230, 233–234 archaic/early 1, 19, 24, 190 democratic 110 late 5, 7, 9, 15, 24, 27–28, 34, 43, 46, 49, 51, 56, 58, 61–62, 65–67, 74–80, 105, 125, 133, 135, 157–159, 220–221, 229 political system 118, 124n22, 171, 218 Roman 1–2, 7, 12, 40, 55, 73, 170, 176, 186, 208, 216 res 116, 119–120, 122–123 civitatis 123n17 divinae et humanae 121–122, 130n31 familiaris 123n17 pars/partis 11, 126 populi 3 privata 123n17 summa 135 Res Gestae Divi Augusti 27, 41n39, 51, 172–176, 178, 209 res publica 1–3, 6–7, 10, 33, 42, 52, 111, 122, 123n18, 124, 127–129, 131–135, 138, 143, 153, 155, 166–167, 170, 173, 178–179, 216–218, 222, 225, 229, 234 as public thing 3, 121, 125, 136 as commonwealth 4, 40, 113, 118, 121, 170 causa 128 conflicting meanings 119, 121, 126, 129, 196 cura 5 forma 126, 170, 171, 175, libera 124n22, 177, 185, non-specificity 118, 119, 121, 123, 171, 186, 225 pars/partis 171, 175–176, 183–186 princeps and 40, 136 restituta or restored 170, 186 salus 128 translation 119, 121 rhetoric 8, 11, 86, 88, 91, 193, 195, 196, 205 (see also oratory) Rhodes/Rhodians 9, 50, 84–101, 111 rights 5, 15, 21, 23, 25, 33, 42, 45, 47, 56, 73, 78–79, 93–94, 106, 131, 165, 216 (see also ius) Roller, M. 4, 220, 222n28

Index Roman citizen 42, 44, 47, 50, 52, 73, 78, 108, 115, 117, 157, 164, 172 morality 36, 38, 39, 46, 108, 172 people 1–2, 10, 33, 41, 50, 70, 97, 108, 112–116, 120, 131, 134, 182, 197, 203, 207 power, critical view of 94, 105, 113 Rutilius Rex, P. 210 sacrosanctitas 190, 191, 196 Sallust 33, 87, 98, 105, 110 Sempronius Gracchus, G. 127–128 Sempronius Gracchus, T. 23, 74–75, 106–108, 110, 127, 135, 191, 230, 232n68 sedition 10, 125, 127, 131–132, 134, 226 Senate 9, 41, 51, 70, 84, 86, 88–89, 96, 99, 112–113, 123n16, 126–127, 128n27, 129, 130n31, 131–132, 135, 138, 148–151, 157, 165, 170, 172–175, 179, 182, 185–186, 189, 194, 196, 199, 203, 205, 208, 217, 221, 226, 231 senatus-consultum 128–129, 173–175, 193 de Bacchanalibus 122 de Cn. Pisone Patre 174 ultimum 127, 129–131, 135 Servilius Ahala, C. 40, 191, 200 Servius 68–71, 75, 118n2, Servius Tullius, see Tullius, Servius servitus 5, 34, 36, 92, 98, 222n28, servus 4, 19, 222n28 (see also slave) Skinner, Q. 1n2, 72n82, 118 slave 4–5, 8, 16, 18–23, 35–39, 41–45, 47, 51, 94–95, 113, 141, 157, 220 slavery 2, 16–24, 26, 33, 36, 38, 48, 73, 75, 92–95, 98, 104, 111, 189 soldier(s) 11, 50, 74–75, 141–143, 150, 160–161, 165–166, 179, 204, 208 as arbiters 153–154, 160, 166, libertas of 155, 164, 166, sovereignty 85, 113, 127, 130n31, 131, 218n SPQR 41, 136, 182 superbia 5, 84, 87n14, 89n25, 90, 93n32, 95n37, 98–99 Tacitus 6, 8, 12, 19, 33, 34, 105, 116, 183, 216–234 Agricola 216 Annales 6, 19, 217

269

Index Dialogus de Oratoribus 8, 12, 217–222, 233–234 Aper 221, 223–225, 229 Maternus 219–23 Messalla 221–225, 229 Secundus 221, 223 Historiae 217 Tarquinius the Elder 18 Tarquin the Proud 1, 19, 33, 49, 55, 118 Terence 8, 35, 39, 46, 51, 61 Adelphoe 46, 51 Andria 39 Tiro, see Tullius Tiro toga praetexta 65–66 toga virilis 65–67, 78 Trebonius, C. 199–200 tribune of the plebs 4–5, 7, 23, 44, 73, 127–128, 130–132, 139, 150, 190–191 triumvirate 10, 138–141, 160–161 as illegal 143–144 legally created 141 triumvirs 10, 138–145, 147–149, 153, 160–162, 164–167, 208–209 Tullius Cicero, M. 3–4, 7–8, 11, 24–25, 27, 33, 46, 48, 61, 75–77, 84, 86–87, 105–106, 113–115, 119–120, 124n22, 127–128, 132– 135, 140, 158, 165, 167n66, 176, 192–198, 200–209, 221, 227–229, 232–233 Paradoxa Stoicorum 24–25 Philippics 11, 133, 193–194, 196, 200, 203, 207, 227 rhetoric 193, 208, 228, 233 Tullius Cicero, M. (filius) 148 Tullius Cicero, Q. (filius) 202 Tullius Tiro 86–87, 91, 96–97, 99–100 Tullius, Servius (king) 19, 21 Twelve Tables 16, 18–22, 35n12, 122, 156 tyranny 2, 10, 46, 110, 135–136, 143, 176, 178–179, 183–186, 194, 197, 208–209 tyrannicide(s) 11, 134, 192–193, 196–197, 209–211

tyrant 3, 33, 180, 190, 192–193, 198–199, 206–207 Ulpian 26, 105–106, 133 Valerius Maximus 173, 230–233 Valerius Publicola, P. 191 value 6 moral 6, 39, 192, 193, 207, 223 political 6, 12, 172–173, 175–176, 178–179, 181, 184, 186 Varro 58–59, 62–66, 77, 120 Velleius Paterculus 124n22, 146, 173, 209, 231n61, 232 Ventidius Bassus, P. 140, 203 vestal virgins 64n43, 163–164 veterans 88, 142, 153–154, 160, 162–164, 166–167, 204, 207 Veturia 153 Vibius Pansa, C. 140, 201–203 vindicta 19, 23 violence 24–27, 94, 154, 172, 227–228 Virgil 62, 64–65, 68 virtue 40, 51, 105, 108, 109, 110, 172, 193, 223 virtus 42, 62, 110 and libertas 6, 39–40, 48–51, 109 Volumnia 153 war civil 10, 40, 153–154, 159, 166–167, 177–178, 189, 191, 195–196, 200n, 201, 204–207 first Punic 16 Perusine 141, 143, 148–149, 161–163, 165, 167 second Punic 37, 48, 50 second Macedonian 37 social 79 third Macedonian 46, 47, 85, 95 with Pyrrhus 49