Provincial Allocations in Rome: 123-52 BCE 3515121196, 9783515121194, 9783515121248

Table of contents :
PREFACE
NOTE ON TERMINOLOGY
TABLE OF CONTENTS
INTRODUCTION
CONSUL KALENDIS IANUARIIS HABERE PROVINCIAM DEBET
IMPERIUM
PROVINCIA
THE SULLAN GRAND DESIGN
THE STRUCTURE OF THE BOOK
CHAPTER 1: LEGITIMATION: MAGISTRATUS TO IMPERATOR
1.1 INAUGURATION AND THE FERIAE LATINAE
1.2 THE LEX CURIATA
1.3 PROFECTIO PALUDATUS
1.3.1 A constitutional requirement
1.4 CONCLUSION
CHAPTER 2: GAIUS GRACCHUS’S ADMINISTRATIVE SYSTEM
2.1 THE LEX SEMPRONIA DE PROVINCIIS CONSULARIBUS
2.2 SECONDARY PRAETORIAN PROVINCES
2.2.1 Quaestiones perpetuae from 122
2.2.2 The urban praetorian provinciae
2.2.3 Attested secondary praetorian provinciae, 122–91
2.3 CONCLUSION
CHAPTER 3: THE SENATE’S FLEXIBILITY
3.1 THE DISTINCTION BETWEEN CONSULAR AND PRAETORIAN PROVINCIAE
3.2 EMERGENCY RE-ASSIGNMENT
3.3 PROROGATION
3.4 CONCLUSION
CHAPTER 4: SORTITIO
4.1 CONSULAR DISTRIBUTION
4.2 PRAETORIAN SORTITIO
4.2.1 The mechanics of praetorian sortitio
4.2.2 Evidence
4.2.3 Sortitio for praetores designati
4.3 CONCLUSION
CHAPTER 5: ORNATIOI
5.1 PRACTICALITIES
5.2 TIMING AND EVIDENCE
5.3 ORNATIO AS A POLITICAL WEAPON
5.4 CONCLUSION
CHAPTER 6: DEPARTURE AND TRADITIO
6.1 CONSULS
6.2 PRAETORS
6.2.1 The praetors of 63
6.2.2 The praetors of 62
6.2.3 Other examples
6.3 TRADITIO IMPERII
6.4 CONCLUSION
CHAPTER 7: REFUSING PROVINCIAL COMMAND
7.1 PROTESTATIONS OF VIRTUE
7.2 STRUCTURAL IMPLICATIONS
7.3 THE PROCESS OF REFUSING
7.4 CONCLUSION
CHAP TER 8: THE LEX POMPEIA DE PROVINCIIS
8.1 THE IMPERATORS AND THEIR STATUS
8.1.1 Imperium
8.1.2 Auspicium
8.2 THE NEW ALLOCATIONS PROCESS
8.2.1 The policy of M. Marcellus (cos. 51)
8.2.2 Selection procedure
8.3 IMPLICATIONS
CONCLUSION
APPENDIX A
A1. INTRODUCTION
A2. 122–91
A3. CONSULAR PROVINCES 81–52
A4. PROCONSULAR AND PRAETORIAN IMPERATORS 80–52
A5. DATA ANALYSIS AND CONCLUSIONS
APPENDIX B. SCAEVOLA IN ASIA
APPENDIX C. CRETE AND CYRENE
APPENDIX D. THE LEX DE PROVINCIIS PRAETORIIS
APPENDIX E. CAESAR BCIV. 1.6
BIBLIOGRAPHY
GENERAL INDEX
INDEX LOCORUM

Citation preview

David Rafferty

Provincial Allocations in Rome 123–52 BCE

Alte Geschichte Franz Steiner Verlag

Historia – Einzelschriften 254

David Rafferty Provincial Allocations in Rome

historia

Zeitschrift für Alte Geschichte | Revue d’histoire ancienne |

Journal of Ancient History | Rivista di storia antica

einzelschriften

Herausgegeben von Kai Brodersen, Erfurt |

Mortimer Chambers, Los Angeles | Mischa Meier, Tübingen | Bernhard Linke, Bochum | Walter Scheidel, Stanford Band 254

David Rafferty

Provincial Allocations in Rome 123–52 BCE

Franz Steiner Verlag

Bibliografische Information der Deutschen Nationalbibliothek: Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist unzulässig und strafbar. © Franz Steiner Verlag, Stuttgart 2019 Druck: Hubert & Co., Göttingen Satz: DTP + Text Eva Burri, Stuttgart Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany. ISBN 978-3-515-12119-4 (Print) ISBN 978-3-515-12124-8 (E-Book)

PREFACE This project, which began life as a doctoral thesis completed at the University of Melbourne in 2016, has accumulated many debts. Giving thanks for them now is the happiest of duties. I owe the most to my Doktorvater Frederik Vervaet, who supervised the thesis, read over the book manuscript, and has at every stage been a fountain of advice, support, expertise and goodwill. I also owe a great debt to Kit Morrell, who read and commented on the entire manuscript; her suggestions have significantly improved it. My thesis examiners Francisco Pina Polo and Fred Drogula saved me from some notable errors, as did the anonymous reader for Franz Steiner Verlag; any that remain are my own. Kai Brodersen has been a helpful facilitator at every stage and I thank him, Andrea Hoffmann and Simone Zeeb for making the publishing process as smooth as possible. Brad Jordan and Sheira Cohen read over some chapters, while Andrew Turner was repeatedly helpful in resolving philological conundrums. The late Martin Stone inspired much of the material on praetorian provinces by way of an offhand remark in his article on Crassus’s praetorship; unfortunately I was not able to convey my appreciation in person before he passed away. That I was even remotely capable of completing this project is due to the teaching of Ron Ridley in my undergraduate years. More general support and encouragement has been forthcoming from colleagues past and present and among the wider Australasian Roman history fraternity. I must single out here Han Baltussen, Jacqueline Clarke, Anastasia Bakogianni, Jeremy Armstrong and Kathryn Welch. For obvious reasons, my family deserves more gratitude than I can convey in words. So, above all, this is for my wife Annie and daughter Emily.

NOTE ON TERMINOLOGY There are several terms in this book which are used with more precision than is usual in scholarship or which for some other reason need to be defined:

•

• •

•

•

•

1

2

imperator. This is the normal republican term for a holder of independent imperium auspiciumque. It stands in place of “commander” or “governor” (which are occasionally used for stylistic variation). “Imperator” does not, however, encompass those who held delegated imperium. provincia and province are used completely interchangeably and always in the Latin sense (i. e. a responsibility given to a magistrate or imperator). territorial province. An extra-urban provincia which was continually assigned to an imperator. There were seven territorial provinces in 122 (Sicily, Sardinia, Hispania Citerior, Hispania Ulterior, Africa, Macedonia and Asia), to which several more had been added by the end of our period. The importance of a territorial province is that we may assume an imperator was present every year even if one is not attested. secondary praetorian provincia. This has a technical meaning. It corresponds to what Brennan refers to as ex praetura assignment: a territorial province which was assigned to a praetor who had already held an urban provincia. The praetor therefore departed Rome to take up this secondary provincia near the end of his magisterial year and in practice governed this provincia the following year as a promagistrate.1 consular and praetorian provinces/provinciae. These did not have any sort of ongoing difference in status. A consular province was one which the Senate assigned to a consul and a praetorian province was one which it assigned to a praetor, for whatever reason. Depending on circumstances, the same provincia could be praetorian one year and consular the next. privatus cum imperio. While this term is technically contradictory, its meaning in the scholarship is well understood.2 It refers to an imperator who did not derive his imperium from a magistracy, but rather had it specially bestowed by a lex. Pompeius spent most of his career as a privatus cum imperio.

Some justification is needed for this decision. The term ex praetura would not be helpful in this book, because the important distinction is between provinciae held during and after the magisterial year. Ex does not convey this meaning, as it refers to a line of causality (see Hurlet 2010, 56 and the extended discussion at section 2.2 below). Nor would it be helpful simply to refer to territorial provinces or provinciae militiae, as it would not be clear when these provinces were taken up. Therefore, “secondary praetorian provinciae” has been adopted to make this difference clear. It is important to note that such provinces were secondary in time, not in importance. See the discussion in Vervaet 2014, 81 n. 43.

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Note on terminology

Unless otherwise indicated, translations of Greek and Latin are from the most recent Loeb edition. Latin texts are the PHI versions (http://latin.packhum.org) and Greek texts are from the TLG (http://stephanus.tlg.uci.edu). Translations from other languages are my own.

TABLE OF CONTENTS Preface...............................................................................................................

5

Note on terminology .........................................................................................

7

Table of Contents ..............................................................................................

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Introduction ....................................................................................................... Consul Kalendis Ianuariis habere provinciam debet ................................ Imperium ................................................................................................... Provincia ................................................................................................... The Sullan grand design ............................................................................ The structure of the book ..........................................................................

11 13 19 22 24 25

Chapter 1. Legitimation: magistratus to imperator........................................... 1.1 Inauguration and the feriae Latinae .......................................................... 1.2 The lex curiata .......................................................................................... 1.3 Profectio paludatus ................................................................................... 1.3.1 A constitutional requirement ........................................................... 1.4 Conclusion.................................................................................................

27 31 34 40 43 45

Chapter 2. Gaius Gracchus’s administrative system ......................................... 2.1 The lex Sempronia de provinciis consularibus ......................................... 2.2 Secondary praetorian provinces ................................................................ 2.2.1 Quaestiones perpetuae from 122 .................................................... 2.2.2 The urban praetorian provinciae ..................................................... 2.2.3 Attested secondary praetorian provinciae, 122–91 ......................... 2.3 Conclusion.................................................................................................

47 49 51 52 55 57 59

Chapter 3. The Senate’s flexibility .................................................................... 3.1 The distinction between consular and praetorian provinciae .................... 3.2 Emergency re-assignment ......................................................................... 3.3 Prorogation ................................................................................................ 3.4 Conclusion.................................................................................................

61 61 64 69 71

Chapter 4. Sortitio ............................................................................................. 4.1 Consular distribution ................................................................................. 4.2 Praetorian sortitio ...................................................................................... 4.2.1 The mechanics of praetorian sortitio............................................... 4.2.2 Evidence .......................................................................................... 4.2.3 Sortitio for praetores designati ....................................................... 4.3 Conclusion.................................................................................................

73 76 79 79 82 85 86

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Table of Contents

Chapter 5. Ornatio ............................................................................................ 5.1 Practicalities .............................................................................................. 5.2 Timing and evidence ................................................................................. 5.3 Ornatio as a political weapon ................................................................... 5.4 Conclusion.................................................................................................

87 88 90 94 99

Chapter 6. Departure and traditio ..................................................................... 6.1 Consuls ...................................................................................................... 6.2 Praetors...................................................................................................... 6.2.1 The praetors of 63 ........................................................................... 6.2.2 The praetors of 62 ........................................................................... 6.2.3 Other examples................................................................................ 6.3 Traditio imperii ......................................................................................... 6.4 Conclusion.................................................................................................

101 101 103 106 110 114 118 121

Chapter 7. Refusing provincial command ........................................................ 7.1 Protestations of virtue ............................................................................... 7.2 Structural implications .............................................................................. 7.3 The process of refusing ............................................................................. 7.4 Conclusion.................................................................................................

122 124 127 130 132

Chapter 8. The lex Pompeia de provinciis ........................................................ 8.1 The imperators and their status ................................................................. 8.1.1 Imperium ......................................................................................... 8.1.2 Auspicium ........................................................................................ 8.2 The new allocations process...................................................................... 8.2.1 The policy of M. Marcellus (cos. 51).............................................. 8.2.2 Selection procedure ......................................................................... 8.3 Implications ...............................................................................................

133 135 136 137 140 142 146 148

Conclusion ........................................................................................................ 152 Appendix A ....................................................................................................... A1. Introduction ........................................................................................ A2. 122–91 ................................................................................................ A3. Consular Provinces 81–52.................................................................. A4. Proconsular and praetorian imperators 80–52 .................................... A5. Data analysis and conclusions ............................................................ Appendix B. Scaevola in Asia .......................................................................... Appendix C. Crete and Cyrene ......................................................................... Appendix D. The lex de provinciis praetoriis................................................... Appendix E. Caesar BCiv. 1.6 .......................................................................... Bibliography ..................................................................................................... General Index .................................................................................................... Index Locorum ..................................................................................................

155 155 158 172 192 204 210 214 217 220 222 233 239

INTRODUCTION In early August 54, the consular candidate C. Memmius revealed to the Senate the worst electoral scandal Rome had ever known.1 Memmius and his fellow candidate Cn. Domitius Calvinus had entered into a pactio with the current consuls Ap. Claudius and L. Domitius Ahenobarbus whereby they provided the consuls with ten million sesterces for bribing the centuria praerogativa to ensure the candidates’ election. If elected, Memmius and Calvinus would then provide three augurs who would swear they had been present at the passage of a (fictional) lex curiata and two consulars who would swear they had assisted in drawing up a senatus consultum de provinciis ornandis voting troops and money for the consular provinces. Not only had no such decree been passed, but the Senate had not even met to discuss the question.2 If Memmius and Calvinus failed to produce these forgeries, they would owe the consuls forty (or four: the text is uncertain) million sesterces. Clearly, then, the lex curiata and ornatio decree were important for the two consuls – important enough that, not only were they prepared to risk exposure, but they preferred them to the ten million denarii offered as compensation. What were these fabulous prizes? And why had the consuls been unable to obtain them through regular channels? This study aims to answer both those questions and thus to explain how Roman magistrates came to govern their provinces as well as the ways politics in Rome could interfere with this process. Specifically, this book describes the system for allocating both consular and praetorian provinces which existed between the passage of the lex Sempronia de provinciis consularibus in 123 and the lex Pompeia de provinciis in 52, with a particular focus on the better-documented period after Sulla. It aims to explain how and why the system in this period differed from that in the middle Republic. Following Pina Polo’s approach to the consulship, my intention is to gather the evidence and from that infer what actually happened in practice, rather than deducing the reality from the theory.3 This also requires exploring the logical consequences of practices as they are attested. This is not a study of late-republican provincial administration. Nor is it an account of the super-provinciae of the extraordinary imperators of this period, or of the evolution of imperium. Those questions continue to receive attention from scholars. Rather, my focus is on the annual decisions the Senate took about staffing Rome’s various territorial provinces; this study is about the ordinary, not the ex1 2 3

All dates are BCE unless noted otherwise. Sumner 1982, 133–35; Cic. Att. 4.15.7, 4.17.2, QFr. 2.15.4, 3.1.16. Pina Polo 2011a, 3: “this monograph intends to have an entirely empirical rather than a theoretical approach. My primary objective is to determine which functions were assigned to the consulship in political practice, with the preserved ancient sources taken as reference material. In short, it is an attempt to study the consuls ‘at work’, in their actual activities during their term of office.” Pina Polo explicitly contrasts his approach to Mommsen’s.

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Introduction

traordinary. Each year the Senate decided which provinces were to be consular and which praetorian, which current governors were to be prorogued and which recalled, and how many troops and how much money each provincial imperator was to receive. New imperators needed to be matched to available provinces. The various legitimating departure rituals needed to be performed. And all of this had to take place, every year, in an atmosphere of political jockeying among the various interested parties. Provincial allocations were thus both a complicated administrative burden for the Senate and the occasion of much of what Christian Meier calls “routine politics.”4 To my knowledge there has been no monograph written on the provincial allocations process. The last substantial treatment was in Willems’ Le sénat de la République romaine, which was published in 1883.5 While (of course) Mommsen touches on the matter in the Römisches Staatsrecht, his discussion is brief and scattered; in the Römische Geschichte he describes the evolution of the provincial system from the mid-second century but says little about the method of allocating provinces.6 More recently there have been treatments of the magistracies (Brennan, Pina Polo) and the provincial system (Lintott, Schulz, Rivero Gracia, Dalla Rosa, Díaz Fernández) which touch upon the allocations system without discussing it at length.7 There is a need for an up-to-date treatment of the problem. The principal findings of the study are these. The phenomenon of secondary praetorian provinciae (i. e. praetors who held urban provinciae during their magistracy before being prorogued and sent to territorial provinciae the following year; the phenomenon Brennan labels “ex praetura provinces”) cannot have been instituted by Sulla. It was necessary by the last years of the second century and must have been standard practice throughout the nineties. Quite often, there were too many available outgoing praetors to staff the available provinces, which is the opposite of what the standard scholarly account would lead us to expect. This in turn means that the phenomenon of praetors refusing territorial (secondary) provinciae was neither an indulgence by Sulla nor (necessarily) evidence of laziness, but was instead logically inherent in the system from late in the second century. There is thus no reason to think Sulla made any deliberate change at all to the system of provincial allocation. Even his law creating two additional praetors – whatever its other effects within the political system – was not primarily concerned with provincial administration and did not dramatically alter it. The individual steps in the provincial allocation process, which in the period covered by Livy took place close together, had become spread out by the first century. This was true for both consular and praetorian allocations. The lex Sempronia only covered consular provinces, and praetors increasingly received secondary provinciae; thus, the two processes operated on separate timelines. The essentially static nature of much of the empire in the first century – with imperators serving 4 5 6 7

Meier 1980, 16–17, 40–41: regelmäßige Politik. Willems 1883. Mommsen 1865, 364–67, 1878, 1.635–42, 2.199–203 3.1095–99. Brennan 2000; Pina Polo 2011a; Lintott 1993; Schulz 1997; Rivero Gracia 2007; Dalla Rosa 2014; Díaz Fernández 2015.

Consul Kalendis Ianuariis habere provinciam debet

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more as administrators and garrison commanders than conquering generals – meant there was little pressure on the Senate to take decisions swiftly. As long as someone was in charge of the province, it did not much matter to SPQR who it was. All this conspired to make provincial allocations one of the main objects of politics in the late Republic, particularly in the fifties. This was to the detriment of good government and contributed substantially to political dysfunction in Rome. We can thus read two additional motives into the lex Pompeia de provinciis of 52, beyond those which scholars have already identified. First, to return consular and praetorian provincial allocations to a single timetable at the discretion of the Senate, allowing a coherent, empire-wide policy of provincial government. Second, to remove many of the political roadblocks which connected magistracy to provincial command, thus streamlining the system of allocating provincial commands and removing the immediate structural dependence of consuls on tribunes. When we remove Sulla’s dictatorship from the central position it holds in scholarship (on provincial matters, at least), we see that the period 123–52 constitutes a unit, with the lex Sempronia and lex Pompeia serving as bookends.8 The difference between this period and that covered by Livy is that provincial allocations had become a process rather than an event – and often a long, drawn-out, highly contested process at that. Because this point is fundamental to the argument presented here, and because it has not been adequately appreciated in the existing scholarship, a brief justification is needed. CONSUL KALENDIS IANUARIIS HABERE PROVINCIAM DEBET Cicero tells us in section 36 of his speech De provinciis consularibus that “a consul ought to have a province on the Kalends of January”: consul Kalendis Ianuariis habere provinciam debet. Cicero’s meaning seems straightforward, while the phrase’s relevance to provincial allocations is obvious. But its importance to the longstanding scholarly debate on the Rechtsfrage means some quite tortuous meanings have been extracted from it.9 As is well known, Mommsen asserts the existence of a Sullan law depriving consuls of the right to exercise their imperium militiae in a province. He uses the passage in which this phrase appears to suggest that, once a province had been decreed consular, the current governor operated under the auspices of the consul for whom the province was destined, even though that consul could not set foot in the province until the end of his consulship. Balsdon regards such an argument as “the height of the ridiculous” and thoroughly disproved by the history of the late Republic.10 Rather, Balsdon thinks Cicero means only that the 8 9 10

Dalla Rosa 2014, 64, 83 The Rechtsfrage is the debate over the date on which Caesar’s Gallic command legally ended. It draws its name from Mommsen’s 1857 paper on the topic (reprinted as Mommsen 1906, 92–145), in which Mommsen’s theory described here is largely set out. Balsdon 1939a, 61 (the claim is ascribed to Cicero but Balsdon clearly agrees with it). Giovannini 1983, 82, who rightly regards Mommsen’s argument as awkward, thinks “Mommsen est très embarrassé par ce texte.”

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Introduction

consular sortitio was normally conducted on the consuls’ first day in office.11 This suggestion has been picked up and repeated by several later scholars.12 Cicero’s orations are never straightforward, but his situation and objectives in this speech were particularly complicated.13 The circumstance was a determined effort by some senators to recall Caesar by allocating one or both of his Gallic provinces to the following year’s consuls; Cicero’s overall aim was to prevent this. In Elaine Fantham’s words, “the political situation required skilful selection of Cicero’s arguments to manipulate different partisan groups in his senatorial audience.”14 So to be able to use this speech, we need to understand his rhetorical strategy, the way he frames questions, and what he does not say. For example, the speech is Cicero’s sententia in the senatorial debate to decide the provinces for the following year’s consuls and yet Cicero frames the debate as being about which current governors should be recalled. For him, the real question is the Senate’s judgement on the conduct of the governors already in place: those who have fallen short of the mark should be prevented from doing any more damage.15 But this is not the only way the question could be considered. In deciding where to send the consuls, the Senate might do better to consider where in the Roman world there was a risk of war – that is, which provinces might need consular attention? This is certainly how Livy represents the way consular provinces were decided in the previous century.16 But putting the question in such a way would not suit Cicero’s purpose. Similarly, in section 3, Cicero points out that there are four provinces which have been suggested so far, and therefore the Senate must choose two of these four provinces as consular. Such a framing suits his goal, which is to present any attack on Caesar as support for Gabinius and Piso, the duo vulturii paludati.17 But Cicero is being intentionally elusive here: the Senate had a free choice of any provinces which had not been legally reserved (e. g. as Cisalpine Gaul and Illyricum were under the lex Vatinia). So in any attempt to glean information from this speech we must understand that Cicero (as usual) is not telling us the whole truth. The passage in which our original quote occurs provides much to the historian, but it is more problematic than it first appears: Nam illae sententiae virorum clarissimorum minime probandae sunt, quorum alter ulteriorem Galliam decernit cum Syria, alter citeriorem. qui ulteriorem, omnia illa de quibus disserui paulo ante perturbat; simul ostendit eam se tenere legem quam esse legem neget, et, quae pars 11 12 13 14 15 16 17

Balsdon 1962, 139. Note however, that Balsdon’s language hardly suggests certainty: Cicero’s statement “may well indicate that 1st January was the day on which the sortitio normally took place.” So Allen 1952, 238 n. 8; Stockton 1975, 234 (implicitly); Giovannini 1983, 83 n. 25; Stewart 1998, 28 n. 42; Lintott 1999, 106 n. 53. For general discussions of the De provinciis consularibus and Cicero’s circumstances, see Fantham 2004, 214–19; Lintott 2008, 205–08; Grillo 2015, 9–20. Fantham 2004, 214. See particularly sections 1–3. See Pina Polo 2011a, 81 on the importance of foreign policy in determining the consular provinces; cf. Giovannini 1983, 66; Vervaet 2006, 630–31. See also chapters 2 and 3 below, where I argue this was still important in deciding consular provinces in this period. Cic. Sest. 71. This is noted by Fantham 2004, 214–15.

Consul Kalendis Ianuariis habere provinciam debet

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provinciae sit cui non possit intercedi, hanc se avellere, quae defensorem habeat, non tangere; simul et illud facit, ut, quod illi a populo datum sit, id non violet, quod senatus dederit, id senator properet auferre. alter belli Gallici rationem habet, fungitur officio boni senatoris, legem quam non putat, eam quoque servat; praefinit enim successori diem. mihi nihil videtur alienius a dignitate disciplinaque maiorum quam ut, qui consul Kalendis Ianuariis habere provinciam debet, is ut eam desponsam non decretam habere videatur. fuerit toto in consulatu sine provincia cui fuerit, ante quam designatus est, decreta provincia. sortietur an non? nam et non sortiri absurdum est, et quod sortitus sis non habere. proficiscetur paludatus? quo? quo pervenire ante certam diem non licebit. Ianuario, Februario provinciam non habebit: Kalendis ei denique Martiis nascetur repente provincia. For we ought by no means to accept the proposals of some distinguished men, of whom one assigns to the consuls Transalpine Gaul with Syria, the other Cisalpine Gaul. The assignment of Transalpine Gaul upsets all the plans of which I have just spoken. At the same time it reveals the proposer as upholding that law which he claims to be no law; as depriving Caesar of that portion of his province the detachment of which is immune from veto, but disregarding that portion which has a champion to defend it; with the result, too, that the proposer does not lay hands on what was given to Caesar by the People, but is eager, a senator though he be, to deprive him of what was given him by the Senate. The other proposer takes the Gallic War into consideration, performs the duty of a good senator, and respects a law which he does not regard as such, for he fixes a day for Caesar’s successor. Yet nothing seems to me more at variance with the authority and practice of our ancestors than that a consul who ought to enter upon his province on the first day of January, should seem to have it promised only, not definitely assigned. Assume that throughout his consulship he will have been without a province, although a province was assigned to him before he was elected consul. Will he draw lots for it or not? For to refrain from drawing lots and to be denied possession of what has been allotted are alike absurd. Is he to leave Rome wearing his general’s cloak? What is his destination? A place where he will not be allowed to present himself before a fixed day. During January and February he will have no province; all at once, on the first day of March, a province will be found for him. (Cic. Prov. Cons. 36–37)

Evidence can be found here for or against many coherent accounts of consular imperium and provincia (as Mommsen found to his embarrassment). Detailed attention to Cicero’s language and to the implications of his claims points to provincial assignment more as a process than a single event. Cicero constructs three possible outcomes, based on what has already been proposed: 1. That Caesar should keep Cisalpine Gaul but be replaced in Transalpine Gaul; 2. That Caesar should keep Transalpine Gaul but a consul should receive Cisalpine Gaul (with certain special conditions); and 3. That Caesar should retain both Gallic provinces and the consuls be sent to Macedonia and Syria. Proposal 3 is Cicero’s preferred solution and he argues for it vigorously throughout the speech. But he is also concerned to discredit the first two proposals and must do so in different ways, since Caesar’s tenure in Cisalpine Gaul was established by law (the lex Vatinia of 59) whereas he only held Transalpine Gaul at the pleasure of the Senate. So Cicero first (in section 36) attacks Proposal 1 politically by claiming that it gives away what is bestowed by the Senate while respecting the gift bestowed by the People. That is, Cicero claims “the proposal is a bad proposal partly because its

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Introduction

author shows himself, in making it, to be a bad senator.”18 Moreover, although this point is rarely raised in the scholarship, it was highly unusual by this period for the Senate to contemplate recalling a successful commander in the middle of a war.19 Cicero thus had a good strategic case in his efforts to defend Caesar’s tenure of the Transalpine province. Cicero next criticises Proposal 2. It must be emphasised that he describes a situation which is wholly unusual: Cisalpine Gaul had not been assigned to Caesar by the Senate as an annua provincia, but by the People for a legally defined term. Thus the proposal to deprive him of that province could not be as simple as any other, but had to respect the lex Vatinia while also working around it. Its complexities are best summarised by Stockton:20 The proposal was that one of the consuls for 55 be assigned Cisalpine Gaul on condition that he should not assume his governorship until the expiry of Caesar’s own term as governor under the lex Vatinia. And the date specified was 1 March 54.

For our putative consul of 55, as Balsdon says:21 During January and February, 54 B. C., he will be, constitutionally, in a highly anomalous position. He will have imperium as a proconsul and yet be legally debarred from entering his province, where alone he can exercise his imperium.

Cicero’s weapon against such a proposal is ridicule. Nothing, he claims, could be more ridiculous and contrary to dignitate disciplinaque maiorum than for a consul to have-but-not-have his province in this way, and he evokes (and exaggerates) the problems such a course of action would create.22 In doing so, he provides us with useful evidence about the nature of provincial assignments in this period. But we need to read the passage closely to extract it all. The relevant section of the text is reproduced below, with the two key terms (habere and decreta) underlined: Quamquam mihi nihil videtur alienius a dignitate disciplinaque maiorum quam ut, qui consul Kalendis Ianuariis habere provinciam debet, is ut eam desponsam non decretam habere videatur. Fuerit toto in consulatu sine provincia cui fuerit, ante quam designatus est, decreta provincia. Sortietur an non? Nam et non sortiri absurdum est, et quod sortitus sis non habere. proficiscetur paludatus? quo? quo pervenire ante certam diem non licebit. Ianuario, Februario provinciam non habebit: Kalendis ei denique Martiis nascetur repente provincia.

These two words (habere and decreta) demonstrate Cicero’s ambiguity and the multiple uses to which his evidence can be put. They have slightly different mean18 19 20 21 22

Balsdon 1939b, 167. Cf. Hantos 1988, 102–03. The attempts to recall L. Lucullus (cos. 74) only gained traction when he seemed to disregard the war he was sent to fight, while the replacement of Q. Metellus (cos. 109) by C. Marius (cos. I 107) in Numidia was not the work of the Senate. Stockton 1975, 233. The italics are his. Balsdon 1939b, 168. Note that in this article Balsdon did not think this was the case, although he later realised his mistake (1962, 140). Balsdon 1962, 140: “The suggestion that the proposal would have been unworkable – for instance, that there could have been no sortition between the consuls in 55 is nonsense … the proposal, in respect of Cisalpine Gaul, though unusual and contrary to the intention of the lex Vatinia, was, procedurally at least, perfectly sensible and perfectly workable.”

Consul Kalendis Ianuariis habere provinciam debet

17

ings at each occurrence. To look initially at decreta: a province has been decreed for the consul prior to his election (ante quam designatus est, decreta provincia). In the normal course of events, he should “have” his province on 1 January 55, his first day in office (qui consul Kalendis Ianuariis habere provinciam debet). Indeed, it is contrary to dignitate disciplinaque maiorum that he should not “have” (habere) a province on 1 January, but instead have it merely “promised” (desponsam) and not “decreed” to him (decretam). Note the two different meanings Cicero attaches to the concept of a provincia decreta: it is both the province decreed by the Senate for the (as yet unknown) consuls before their election, and the province the consul has as his own after he assumes office. Thus we are not able to assign one clear meaning to the phrase provincia decreta: it does not refer only to one stage of the process. A similar ambiguity comes from habere. If we leave aside the idiomatic phrase habere videatur, the word occurs three times in the passage, and each time it is both meaningful and used in a different sense. The most quotable phrase comes first, qui consul Kalendis Ianuariis habere provinciam debet. That is, a consul should have a province on 1 January. Yet from what we know of late-republican practice, which required holding the feriae Latinae, which required a decree for ornatio, and which normally required holding the consular elections, habere here cannot mean “possession.”23 Since a consul on 1 January could not legitimately travel to his province (and thus physically take over its command) and could not legitimately issue orders to its current holder, we must interpret habere here in the sense of a consul knowing which province he has a right to. The second instance is nam et non sortiri absurdum est, et quod sortitus sis non habere. That is, it is absurd not to draw lots for a province and absurd not to “have” the province for which one has drawn lots. This implies the normal procedure is that once a consul has drawn lots, and so a province has fallen to him, he “has” that province in some sense. But, again, this does not mean he immediately takes full and effective control over the province, but only that at some point he will. That is, as a result of the sortitio a consul has the right to a particular province (and no longer merely the right to a province in general) – but the previous governor is still in charge, for the moment. The third instance is proficiscetur paludatus? quo? quo pervenire ante certam diem non licebit. Ianuario, Februario provinciam non habebit: Kalendis ei denique Martiis nascetur repente provincia. That is, the consul in question might be expected to depart Rome as an imperator, but he has nowhere to go. All through the January and February (after his consulship has ended) he is not to have a province, but he will have it in March. That is, he may only legally enter his province – he only “has” it – from 1 March. The language here clearly requires habere in the sense of possession: the consul only “has” his province when he may legally possess it and displace its previous holder. So if in these few short lines Cicero can change his meaning so much, we are surely entitled to ask: how precisely should we understand the phrases provincia

23

The steps in the process of provincial allocation are dealt with in detail in chapters 4–6.

18

Introduction

decreta and provinciam habere? When precisely does a consul (or praetor, for that matter) “have” his province and when can we say it is “decreed” for him? One way of answering these questions is by comparing the situation Cicero describes with normal procedure, as described in this book. Normally, the consuls would be elected and enter office knowing which were to be the two consular provinces – as is the case here. Normally, consuls went through a series of steps before they actually arrived in their province and took control: should our imagined consul of 55 take these steps? Cicero gives two parts to this. First, should he draw lots (sortietur an non)? In a normal situation, the drawing of lots would make the province “his” in the sense (it seems to me) that it would be known he would command there. And that is also the case here: if our putative consul had drawn lots, then he would have known that Cisalpine Gaul would be his from 1 March 54, and could prepare accordingly (as could Caesar, who at this stage, several years before the Rubicon, could only be expected to comply). Second, should he depart Rome in uniform (proficiscetur paludatus)? Technically, he would need to do so, in order to retain imperium beyond the end of his magistracy.24 And nothing prevented the consul in question from performing the ceremony of profectio and then remaining for a time on the Campus Martius, as was frequently done in the late Republic. One might, without too much of a stretch, compare our imagined consul’s situation to that faced by the praetors of 62, who were still waiting for their secondary (militiae) provinces in February 61.25 So while this proposed situation was indeed anomalous, it was certainly not impossible, despite Cicero’s efforts to paint the whole idea as ridiculous. Close examination of the passage reveals that Consul Kalendis Ianuariis habere provinciam debet is less an answer than the prompt for a series of questions. The remainder of this book is dedicated to answering those questions, to tracing the steps consuls and praetors needed to take before they actually exercised command in their provinces. This process had changed dramatically by the late Republic from that described in books 21–45 of Livy. In Livy, the decision as to which provinces are to be consular and praetorian, the sortitio (or comparatio) to distribute them among the relevant magistrates, and the decrees de ornandis provinciis were all frequently undertaken at a single Senate meeting on the first day of the consular year.26 After the passage of the lex Sempronia de provinciis consularibus and after it became usual for consuls to depart for their provinces late in the consular year, the stages in the process of choosing and distributing provinces became spread out over time. It was difficult to identify a single point at which a consul “had” his province. The same holds true for praetors, although the different demands on the praetorship in the late Republic meant that the process for praetorian provinces was separate and somewhat different.

24 25 26

On profectio, see Mommsen 1878, 1.63–65; Hurlet 2010; Pina Polo 2011a, 215–18. See also section 1.3 below. A comparison made by Balsdon 1939b, 168 n. 5. See below, section 6.2.2. Pina Polo 2011a, 18–20, who also notes that circumstances often complicated the simplified picture given here.

Imperium

19

IMPERIUM This book has a great deal to say about the concepts of imperium and provincia as they operated in the late Republic. Since the way scholars understand these concepts is debated and has changed substantially in recent decades, a brief discussion is in order. The starting point must always be Theodor Mommsen: his account of Roman public law is still widely accepted.27 Mommsen’s explanation will be familiar to many readers: imperium was the power of the kings of old, inherited by the consuls. It was divided into two types, with imperium domi operative within the pomerium and imperium militiae beyond it. Imperium was a conceptually unlimited power to act in the name of the state (particularly in the realm of military command), until such time as it was hedged about with restrictions such as provocatio. The decisive change in the history of imperium was the lex Cornelia de provinciis ordinandis, passed by Sulla as dictator, which stripped the consuls and praetors of their imperium militiae, leaving them only their imperium domi. Henceforth they were civil magistrates in Rome during their year in office and only as promagistrates did they acquire imperium militiae and use it to govern Rome’s provinces. It should not be thought that Mommsen’s version easily carried the day; Heuss and Bleicken, among others, mounted robust challenges.28 But the most comprehensive attack came in Giovannini’s Consulare Imperium.29 First, Giovannini proposed a different understanding of the domi/militiae divide: these referred not to place but to function. Imperium was an indivisible concept, with imperium domi meaning imperium exercised in civilian life and imperium militiae referring to its operation in military life and over non-Romans. But, most importantly, Giovannini demolished Mommsen’s case for the lex Cornelia. No such law ever existed and the consuls retained their ability to command in war at least into the triumviral period. However, the lex Cornelia has proved the Rasputin of scholarship on Roman public law: despite several attempts, it has been very hard to kill.30 There is a further relevant account: that presented by Fred Drogula in his 2007 article “Imperium, potestas, and the pomerium in the Roman republic.”31 Drogula argues that imperium was strictly the power of military command, while civilian magisterial power was comprised only of potestas. While I disagree with Drogula’s argument, it is both surprising and disappointing that it has not, as yet, received serious engagement from scholars. My own position is developed from Giovannini’s and particularly from work by Jean-Louis Ferrary, Frédéric Hurlet and Frederik Vervaet. Imperium as a concept 27 28 29 30

31

Mommsen 1878. Heuss 1944; Bleicken 1998. Giovannini 1983. See the account in Pina Polo 2011a, 225–29. I can only concur with Pina Polo’s statement: “I believe it has been sufficiently proved that Mommsen’s thesis is wrong, and it is not worth debating it once again. In this respect I refer readers to the book by Giovannini, whose thesis I substantially agree with” (p. 229). Drogula 2007; the question sits more in the background in Drogula 2015.

20

Introduction

changed greatly over the course of the Republic and, whatever its origins, in the period covered by this book it had a definite and reasonably well-understood meaning. It was not, as Drogula argues, opposed to potestas, but was the strongest form of it. In Vervaet’s words, “while not every official potestas was an imperium, every lawful imperium was a public potestas.”32 It was bestowed by the People or plebs, whether through election in the centuries or through a plebiscite (as was Pompeius’s command in 67 and, so Ridley argues, Scipio Africanus’s in 210).33 The lex curiata, whatever it may have done (which is disputed), did not confer imperium: imperium came from the People. Its physical manifestation (for in a society such as Rome, possession of imperium had to be visible) was the fasces carried by lictors. While lictors themselves might be assigned to ambassadors, lower magistrates or as an occasional honour, lictors cum fascibus were restricted to holders of imperium.34 The laying down of fasces is repeatedly represented as the gesture by which an imperator gave up power (e. g. App. BCiv. 1.65–66, 1.104; Caes. BCiv. 2.32.9). By the late Republic there were at least two genera imperii (praetorium and consulare) and, exceptionally, three (dictatorium), although this may be a relatively late development, since the nature and significance of the reforms of 367 are disputed. The relationship between them was expressed as maius/minus and was made visible by the differing numbers of lictors: praetors had six (at least militiae), while consuls had twelve and dictators, twenty-four (Plut. Paul. 4.2; Plin. HN 11.190; cf. Cic. Pis. 38). So much is clear, but it is uncertain what precisely possessing imperium maius quam allowed a higher imperator to do to a lower – an uncertainty which has only increased with Vervaet’s clarification of the summum imperium auspiciumque as a separate principle for deciding hierarchies of command.35 That is, while a consul’s maius imperium may have ensured he received the high command over a praetor in the same (militiae) province, he then gave orders to the praetor by virtue of his summum imperium auspiciumque, not by virtue of his maius imperium. Moreover, examples of consuls in the City of Rome giving orders to praetors are conspicuous by their absence (with only Val. Max. 7.7.6 arguably demonstrating this). In this sense, Drogula is correct to emphasise the relationship between magistrates cum imperio as largely being one of prestige rather than (military) rank.36 Prestige was perhaps also the main motivator for the phenomenon of praetorian proconsuls: it is hard to see how precisely Rome benefitted from one of its commanders having consular rather than praetorian imperium, or whether there was any functional (as opposed to relational) difference between the two. The exercise of imperium in the militiae sphere was (largely) restricted to a provincia, which was bestowed by the Senate or (occasionally) People (Cic. Att. 7.7.4). Each imperator, whatever his rank, was king (or, rather, summus imperator) within his own provincia, although the picture was more complicated when it came to overlapping provinciae. Imperators on their way to or from their 32 33 34 35 36

Vervaet 2014, 21. Ridley 1981, 281. Vervaet 2014, 7 n. 12. See also Ov. Fast. 1.81. Vervaet 2014. Drogula 2015, 223–24.

Imperium

21

provincia were not supposed to exercise their power to its full extent, although it is by no means clear that they were as restricted as their successors under the Empire (Dig. 1.16.1–2). Within Rome, some magistrates held provinciae, although it seems unlikely that exercise of imperium was curtailed in the same way. There was not any separation between imperium domi and imperium militiae: imperium was a unitary power, and domi and militiae qualify its meaning, indicating in which sphere imperium was being exercised. The difference was that there were many more restrictions on an imperator in the sphere domi, notably the provocatio laws. Giovannini’s argument – that the distinction between domi and militiae was that between civilian and military life – is convincing, although Vervaet notes that, in practice, the exercise of imperium in and around Rome would usually be domi, while away from Rome it could be either domi or militiae.37 Imperium could only validly be exercised militiae if the imperator had assumed the paludamentum and departed Rome with ritual propriety.38 The vast majority of imperators derived their imperium from their magistracy. Yet this imperium was not coeval with that magistracy: once an imperator had departed Rome paludatus, he retained his imperium (and the capacity to exercise it both domi and militiae) until he returned to the City, even if his magistracy expired in the meantime. This is clear from the lex de provinciis praetoriis, which reinforces Ap. Claudius’s (cos. 54) claim that lege Cornelia imperium habiturum quoad in urbem introisset (Cic. Fam. 1.9.25).39 That promagistrates exercised imperium in civil affairs has been doubted, but the evidence of the lex de provinciis praetoriis is clear.40 Two caveats are necessary, however. First, it is not certain how late the automatic extension of imperium beyond magistracy became the rule: there are suggestions in Livy’s narrative of the Hannibalic War that the Senate decreed the temporary prorogation of imperium even for those commanders who were shortly to be replaced.41 Second, persistence of imperium beyond tenure of a magistracy was not the same as extension of command in the provincia, a question which remained at the Senate’s discretion. The only legal guarantee an imperator had (as imperator, not as commander of a provincia) was immunity from prosecution.42 Finally, I concur with Ferrary and Hurlet that there is no reason to think the consuls’ ability to exercise their imperium in the sphere militiae was ever removed by law.43 Rather than being abolished by Augustus, the consuls’ military power withered away.

37 38 39 40

41 42 43

Vervaet 2014, 21. On this, see chapter 1. Crawford 1996 no. 12, Cnidos col. IV, ll. 31–39. Dalla Rosa 2014, 86–88 persuasively connects this persistence of imperium with persistence of the military auspices. See below Appendix D for a more detailed discussion. Drogula 2015, 62 and 290 suggests this may be an innovation, although it seems unlikely that the legal capacities of promagistrates had not been clarified long before when they had been a regular feature of administration for a century. See discussion at Vervaet 2014, 55–58. As in the lex repetundarum (Crawford 1996 no. 1), l. 8. Ferrary 2001; Hurlet 2011.

22

Introduction

PROVINCIA While imperium was a central constitutional concept, in the militiae sphere it could not normally be exercised without a provincia. As is well known, the term provincia does not directly equate to the modern English “province”: as Badian writes, “its basic meaning is the sphere in which a magistrate (perhaps originally a magistrate with imperium) is to function”, although by the second century it had begun to acquire its normal meaning of an overseas territory under permanent administration (without ever losing the original meaning).44 Lintott and Kallet-Marx each explore the implications of this view.45 But three recent monographs have gone beyond this, greatly clarifying the history of provincia as an administrative concept under the Republic. First, John Richardson’s 2008 book The Language of Empire traces the changing meanings of imperium and provincia from the middle Republic to the early Empire.46 He notes that, before the early first century, provincia usually means the task assigned to an imperator, with or without geographical overtones. In Cicero’s works this is still the main meaning, although the word can also refer to a territorial province as an ongoing entity (even in the absence of an imperator) or (especially) to the community of people which lives there. In Caesar’s work, by contrast, we meet for the first time the concept in provinciam redacta, which Richardson implicitly ties to Pompeius’s rearrangement of Anatolia in the late sixties. Moreover, Richardson is very perceptive on how the changing demands of empire shaped the Senate’s task:47 Whereas the earlier pattern had depended on a predetermined number of individuals with power to whom a flexible number of responsibilities might be given, by the end of the republic the position was on the way to being effectively reversed: the provinciae were the (more or less) fixed set, and the problem was to find a pool of individuals from which those who were to take control of them might be drawn.

This explains the context of (for example) the lex Pompeia de provinciis of 52 very well. Alejandro Díaz Fernández builds on Richardson’s arguments. There was no conceptual difference for republican Romans between provincia-as-task and provincia-as-territory; the main distinction which the Romans saw (and only because it dictated the Senate’s business) was between temporary and permanent provinciae.48 Indeed, he emphasises the hodgepodge nature of the republican empire and the very different tasks facing imperators in different provinces. It was only in hindsight and looking at the empire as a whole that order emerged.49 This variability in the provinces was matched by a frequently unmethodical approach to provin44 45 46 47 48 49

Badian 1996. Lintott 1993, 22–32; Kallet-Marx 1995, 18–29. Richardson 2008. Richardson 2008, 109. Díaz Fernández 2015, 17–18. A point also emphasised in the useful article by Freeman 1998.

Provincia

23

cial matters in Rome.50 Díaz Fernández recognises praetors and consuls could serve wildly varying terms for very different reasons and he properly understands this as a state of affairs common to the early second century, the immediate preSullan years and the better-attested post-Sullan period.51 As he says, the constant ability to adapt to circumstances is what best characterises the late-republican provincial system.52 Fred Drogula takes a rather longer view in his monograph and focuses close attention on the early years of permanent provinciae in the third century.53 He accepts that provinciae were originally tasks, usually a named enemy to be fought. But the creation of permanent praetorian provinciae from c. 227 changed that: these provinces were inherently geographically defined (since they could not be defined as the enemy to be subdued) and the task could not be completed. They were, in effect, large garrison posts, which through their own internal logic became much more administrative assignments than military ones. Roman thinking about the nature of provinciae lagged behind this reality, but the thinking eventually caught up. By the later second century, as Drogula’s excellent analysis makes clear, the Romans recognised a difference in kind between consular and praetorian provinces.54 This recognition underlay the lex Sempronia de provinciis consularibus of 123, which explicitly affected only the consular provinces. Yet the consequence of this law was to make the consular provinces more like the praetorian ones: as the Senate needed to decide earlier where consular armies were likely to be required, the tendency became to name restless (permanent) provinces rather than particular enemies. The consequence of this, in turn, was that consular campaigning after 123 became more discretionary, although the difference in expectations between the two offices suggests that consuls would be more likely to act aggressively in their province (and be encouraged to so act). Yet even consuls were bound within an empire which was increasingly an ongoing entity to be administered rather than a field of potential conquest. The system put in place by the lex Sempronia encouraged this: the advanced planning and deferred decision-making are marks of a system which was not set up for major emergencies, but for ongoing management (although one assumes the Senate always retained the ability to more narrowly define the mandata when it became clearer what circumstances the new imperator would walk into). That did not, of course, stop major emergencies from occurring, particularly those of the Cimbri and Mithridates. Yet Drogula’s formulation does clarify the situation facing many consular commanders in the first century: the lack

50 51 52 53 54

Díaz Fernández 2015, 49: “A decir verdad, da la sensación de que la política romana no siempre se conducía por unos cauces demasiado metódicos en lo tocante a las cuestiones de carácter provincial.” Díaz Fernández 2015, 79–85. Díaz Fernández 2015, 583–84. Drogula 2015, especially ch. 5. It should be emphasised that consular provinces were only those which the Senate assigned to consuls, and the same land area could be a consular province one year and a praetorian province the next.

24

Introduction

of urgency in consuls going to their provinces was at least partly due to the discretionary nature of any fighting they would face there. THE SULLAN GRAND DESIGN As noted above, one of this book’s arguments is that there was no significant Sullan reform to the process of provincial allocation. There are two reasons for this: first, there is no direct evidence of any Sullan law on the matter and, second, in many aspects of the provincial allocations process there is reason to believe that the postSullan system was already in place by the nineties at latest. This is not to say, however, that the system operated in the same way after Sulla as before. As Carney argues for the generation before Sulla, and as Ferrary and Hurlet argue for the triumvirate and the early period of Augustus’s rule, the political situation in which an institution operates limits what it is politically possible for an incumbent of that institution to do.55 The post-Sullan Republic was a very different political system to that in which Marius won his consecutive consulships.56 And Sulla passed other reforms, in other areas, which affected the way the provincial allocations system operated. For instance, the creation of two additional praetors – although Steel has convincingly argued that this was done for the benefit of the quaestiones perpetuae – relieved some of the pressure to find governors for territorial provinces and again made it possible for some of the praetors to be passed over.57 Bringing elections forward to July – if this is indeed to be attributed to Sulla – also necessarily affected the operation of the lex Sempronia. In Roman political history, there are two periods for which we have plentiful sources: the period covered by books 21–45 of Livy (218–167) and the post-Sullan Republic. In my opinion, scholars have tended to assume that if a political or administrative practice is different in the second period than it was in the first, this is because Sulla as dictator changed it. Yet for provincial allocations, there is good reason to think this is untrue. I argue this in detail throughout the book but, for instance, Sulla made no change to the operation of the lex Sempronia. The system whereby all praetors served their magistracy in Rome before governing a territorial province as a promagistrate was in place by (at latest) the nineties. Not all former praetors had their imperium upgraded to consular and moreover, as Vervaet has argued, by the first century such grants had a long history.58 Even the lex Cornelia de maiestate was probably mostly tralatician: we see many of its known provisions in the lex Porcia of the late second century. Yet these earlier laws which we know of do not seem to be directly concerned with the crimen maiestatis and it is probable that the lex Cornelia was the first time the relevant actions fell within the purview of a quaestio publicum.59 55 56 57 58 59

Carney 1959; Ferrary 2001; Hurlet 2011. Flower 2010; Steel 2014. Steel 2014; cf. Hurlet 2010, 50–51. Vervaet 2012, 67–77. Sherwin-White 1969 (contra Bauman 1967); cf. Cloud 1992, 520. See also Drogula 2011 who in his extended (and valuable) discussion of the lex Porcia does not specify whether infractions

The structure of the book

25

Most importantly, the oft-repeated equation of the ten magistrates cum imperio with ten territorial provinces was entirely irrelevant to provincial allocation. As is shown in detail in Appendices A2 and A5, in the years c. 114–106 not all outgoing praetors would have been required to take territorial provinces, as not enough provinces were available. However, after that, the increasing demand for praetors to hold urban provinciae meant that all praetors would soon have been required to proceed from an urban provincia to a secondary, territorial, provincia which they would (in practice) hold as a promagistrate. This remained true down to the Social War. However, in the seventies, Rome was maintaining so many armies in different provinces commanded by former consuls (and men, such as Pompeius, commanding on a level of parity with former consuls) that relatively few provinces were available to the outgoing praetors. This again ensured that some outgoing praetors would, arithmetically, not be required for provincial command. There simply were not enough provinces to go around. This situation remained the case for about half of the years between 80 and 52, which has implications for the phenomenon of refusing provinces and for the way in which the sortitio must have taken place, implications which are explored in detail in this book. But it also means that the prospect of an orderly, annual transition of governors, with each former praetor and consul serving one year in a province, was a chimera. It never even approached reality during the late Republic and nor could it have, given the situation Rome was in. The implications of this for how the system of provincial allocation worked are examined throughout the book. But overall it appears that what scholars think of as the Sullan grand design, the New Republic, melts away to not very much at all – at least as regards provincial allocations. THE STRUCTURE OF THE BOOK In chapter 1 I ask what rendered an imperator a legitimate military commander and argue for a process of legitimation comprising several ceremonies (election, inauguration, lex curiata, profectio paludatus) which individually were necessary but not sufficient conditions. The meaning of each ritual was understood by means of (usually negative) exempla yet, in the late Republic, was often still contested. Chapters 2 and 3 form a pair. In chapter 2 I describe the increasing constraints on senatorial decision making: the lex Sempronia de provinciis consularibus of 123 and the growing practice of secondary territorial provinciae for praetors. In chapter 3 I focus on the flexibility the Senate nonetheless still enjoyed: the lex Sempronia did not much affect its ability to react to the unexpected and, even when it did, the Senate was able to reassign provinces and prorogue incumbents as necessary. Chapters 4, 5 and 6 explain the later stages of the allocations process in detail. Chapter 4 explores the use of the lot (sortitio) to allocate provinces and shows how this worked differently for consuls and praetors. Chapter 5 concentrates on ornatio, of that law fell within the purview of a permanent court, although he places the law within the context of earlier repetundae legislation.

26

Introduction

the vote of funds and troops, showing how this became a recurring political issue. In chapter 6 I focus on the structural factors which influenced when consuls and praetors could leave for their provinces and outline the procedure for the transfer of command on the ground (traditio). Chapter 7 uses all this information to offer a new explanation for the phenomenon of magistrates declining provincial command in the late Republic. Chapter 8 explores the end of this arrangement, the lex Pompeia de provinciis of 52, showing the light it can cast on the previous system. A conclusion then explores a few of the implications of my argument for current debates on the late Republic. At the end are a series of appendices. The first of these is large and provides the data for the year-by-year choices facing the Senate about who to send to which province. This data underpins many of the arguments elsewhere in the book. Following this are a series of smaller appendices analysing particular problems which were not suitable for discussion in the main text.

CHAPTER 1 LEGITIMATION: MAGISTRATUS TO IMPERATOR C. Claudius (cos. 177) exemplified the Claudian reputation for superbia. According to Livy, when, as a new consul, Claudius heard that his predecessors were winning successes in his province of Histria, he feared that he would have nothing left to do. Consequently he: Non votis nuncupatis, non paludatis lictoribus, uno omnium certiore facto collega, nocte profectus, praeceps in provinciam abiit. Without announcing his vows or clothing his lictors in uniform, notifying only his colleague of everything, set out by night and went off at headlong speed to his province. (Livy 41.10.5)

When he arrived there, he insulted the commanding proconsuls (both consuls the previous year) and ended his rant by ordering them to leave the province. They replied: Consulis imperio dicto audientes futuros esse dicerent, cum is more maiorum, secundum vota in Capitolio nuncupata, lictoribus paludatis profectus ab urbe esset. They would obey the command of a consul at such time as he set out from the City in the manner of their forefathers, after public proclamation of his vows on the Capitoline and with his lictors in uniform. (Livy 41.10.7)

The army backed its imperators and Claudius was forced to return to Rome. C. Claudius was a lawful consul of the Roman People, created, indeed, by one of the imperators he was now berating. The provincia of Histria had been properly allotted to him. Yet the army refused to accept his right to command them, because he had failed to perform the necessary rituals. In modern terms, they denied his legitimacy. Legitimacy as a descriptive rather than normative concept originates with Max Weber, who famously distinguished three types of legitimate Herrschaft (domination, rule): traditional, rational-legal and charismatic. The applicability of his ideas to the Roman world has been much disputed.1 More recently, Egon Flaig and others have engaged with the overlapping problem of “Gehorsam”, the willing obedience which ordinary Roman citizens offered to the aristocracy.2 Both approaches seek to identify 1

2

Finley 1986, 99 claims that Weber’s three types of Herrschaft cannot usefully be applied to the Greek polis or republican Rome: they simply do not fit. Lendon recognises that Weber saw them “as ‘pure types’ (reine Typen) in a Kantian sense: not boxes into which to place regimes, or even aspects of regimes, but transcendental categories, tools with which to think” (2006, 54); he believes historians have misused the types. Lendon also usefully distinguishes the idea of legitimacy (which, he argues, a regime either does or does not have) from the woollier “strategies of legitimation”, of which (he forcefully argues) there is no sign under the emperors; cf. Flaig 2010, 275–82. However, Hatscher 2000 is an attempt to apply Weberian categories to the late Republic. Flaig 2003 (with the helpful review by Flower 2003). See also the overview of this and related questions by Hölkeskamp 2010, 44–52.

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why those below obeyed those above. Yet, crucially, both are concerned with “the ruler(s)” as an abstraction, an ongoing entity. When studying the Republic, it was not the aristocracy as such which ordinary citizens obeyed and perceived as legitimate, but (as Flaig says) those individuals who, for a limited time and on the basis of institutionalised procedures, held the powers of the res publica.3 Hence, my concern is explaining how individual imperators came to be accepted as legitimate by those who obeyed them, as well as the consequences if their legitimacy was disputed. What were the grounds of individual imperatorial legitimacy? A distinction can usefully be made between substantive and ritual grounds, with the caveat that the Romans would have had difficulty recognising such a distinction. Substantively, legitimacy derived from popular election. Polybius famously claimed (6.14.9) that the people’s role was to give office to the deserving; Cicero told the people (Leg. Agr. 2.17) that potestates and imperia should flow only from them. Modern scholars have similarly recognised that election by the people conferred substantive legitimacy on magistrates.4 This much seems comprehensible to a modern audience. But it is only half the story: C. Claudius in 177 was elected by the people and his status as a consul was never in doubt. It was his right to command the army which was disputed. The other half, conspicuous in the source record, is the suite of rituals which magistrates performed after they had been chosen by the voters. Here I confine my attention to those which directly affected military (i. e. provincial) command: the inaugural rituals at the beginning of the consular year and the rituals surrounding departure from Rome. It was these rituals which could not only render a magistrate iustus, but transform him into a legitimate military commander. Recent scholarship has attempted to bridge this gap. Morstein-Marx, using ideas developed by political sociologist David Beetham, has sought to move beyond the simple fact of election to explain willing obedience to leaders, which Beetham claims comes from three sources:5

3 4

5

Flaig 2004, 525: “Die Aristokratie herrschte nicht als Ganze, sondern nur diejenigen Personen, welchen man auf Grund institutionalisierter Verfahren für eine begrenzte Zeit bestimmte Herrschaftsbefugnisse zuerkannte.” E. g. Mommsen 1878, 3.301: “Aber der Magistrat empfängt jetzt seine Amtsgewalt von der Gemeinde und es entwickelt sich der Begriff der Magistratur dahin, dass jeder Magistrat und nur Magistrat ist, wer unmittelbar von der Bürgerschaft ein Mandat empfängt” (“But the magistrate now receives his official authority from the citizen body, and the concept of the magistracy is developed in that all magistrates, and magistrates alone, receive a direct mandate from the citizenry.”); Kunkel and Wittmann 1995, 11: “Die Volkswahl verlieh den Magistraten ihre Gewalt über die Bürger und ihre Legitimation, für die Gesamtheit der Bürger, d. h. für den Staat zu handeln. Die politische Doktrin der Römer sah in ihr ein spezifisch demokratisches Verfassungselement” (“Popular election gave the magistrates their power over the citizens and their legitimacy, to act for the whole of the citizens, that is, for the state. The Roman political doctrine saw in it a specifically democratic constitutional element.”); Lintott 1999, 14: “The magistrates … owe their position to the people in an assembly.” Morstein-Marx 2011, 276–77; cf. Beetham 2012. It is important to note that, in transferring Beetham’s framework to the Roman context, Morstein-Marx situates religious legitimation in each of these three sources.

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Legality (adherence to the established law or custom), normative justifiability (adherence to central political values and beliefs) and what he calls in a quasi-technical sense legitimation (that is, confirmation and affirmation by public acts of consent, such as elections).

This approach has more explanatory power, especially for those occasions when soldiers and citizens were faced with two groups making competing claims to legitimate authority. Magistrates could appeal to their soldiers on this basis during civil wars: Morstein-Marx convincingly reads Cinna’s speech to the army in Appian (BCiv. 1.65) in this way.6 But to my mind Morstein-Marx still underplays the importance of procedure and ritual in the Roman context. Hölkeskamp presents an alternative method of explaining the problem. For him, the rational-instrumental aspect of the political system should not be isolated from the ceremonial aspect, at least when seeking to explain legitimacy. Rather, it is together that these two aspects “underwrite, permanently reproduce, and renew the legitimacy of the political system on the ‘surface’ and ensure its acceptance by assuring its ‘meaning’ and sense.”7 Using Hölkeskamp’s approach, we can say it was the repetition of public rituals over centuries which produced the legitimacy of the system as a whole, rather than a particular legal or religious validity attached to them.8 This is the first level at which ritual worked. To relate it to C. Claudius: for centuries imperators had departed for war after making vows to Jupiter on the Capitol (a ceremony crucially performed in public), and such a ceremony was specific to imperators and specific to departure to take up military command (and not to departure for other reasons). Because this ceremony had been repeated for centuries, it simply was how imperators behaved; an imperator could not be an imperator if he did not perform it. The association of these rituals with official command in the eyes of the citizen body is what gave them constitutional and legitimating power.9 Similarly, the lex curiata may have had the concrete effect of making the imperium of a magistrate iustum, but this did not by itself render a consul who received it legitimately able to command troops.10 Rather, the consul’s legitimacy was accepted after he obtained a lex curiata (and fulfilled his other ritual requirements) precisely because all the previous consuls, stretching back centuries, had acted in this way. That is, the rituals’ importance lay in the fact that they had been performed by every previous imperator. By playing their role in these rituals, consuls assimilated themselves to previous 6 7 8

9 10

Morstein-Marx 2011, 266–71. Hölkeskamp 2010, 56. Hölkeskamp 2011 (especially pages 166–67 on the rituals of consular inauguration) and, more abstractly, Hölkeskamp 2010, 69–71. Compare Beck 2005, 97–98 on the role of the pompae in connecting different facets of Rome’s long, unbroken history to the present moment in which they are evoked: “Jedesmal, wenn sich eine Parade formierte, formierte sich die Geschichte Roms … Mit den verschiedenen Prozessionstypen wurden somit unterschiedliche Facetten der Vergangenheit ins Gedächtnis gerufen, wobei jede einzelne von ihnen die lange Dauer dieser Vergangenheit, ihre bruchlose Kontinuität und ihre Verbindlichkeit für die Gegenwart herausstrich.” Cf. Muir 1997, 229–38. On the concept of iustum (augurally correct) see Livy 10.8.9–11; Gell. NA 13.15.4; van Haeperen 2012, 82–84; Vervaet 2014, 308–10; Berthelet 2015, 103–06, 131–37.

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holders of the office and situated themselves in the proper relationship to other elements in the Roman community (such as the Senate, fellow citizens and Jupiter himself).11 Thus we see the two essential conclusions: imperators performed their legitimacy through ritual, and the audience for this performance, the audience whose collective opinion actually constituted their legitimacy, was their fellow citizens. But while Hölkeskamp explains why ritual is powerful, his account does not help us in situations where legitimacy is disputed. That is, what did the ritual do? This is the second level at which ritual worked and which needs to be explained. I am not simply asking how it would be classified by a historian of ritual: in Edward Muir’s terminology, for instance, most of the Roman rituals I am concerned with function as “mirrors.”12 Rather, by saying that ritual was how an imperator performed his legitimacy, we lose sight of a vital fact: the Romans understood that these rituals did something, that they each had a particular legal effect, in some way altering an imperator’s status or what he was entitled to do. Yet (and this is the crucial point), the Romans often seem doubtful about what this legal effect was. This doubt has passed on to modern scholars. So, for instance, the current consensus among scholars studying the lex curiata is that it made a magistracy iustus in some way, but they disagree on just what that meant. This disagreement arises because our sources themselves disagree on what it meant. This confusion, among both ancients and moderns, exists because the legal effect of these rituals – the second level – was a consequence of the first level. Imperatorial legitimacy came from the ritual, and the ritual’s meaning came from it being repeated for centuries. Imperators were legitimated by their rituals because imperators had always performed them, and so Romans could not conceive of an imperator being an imperator if he did not perform the rituals. That fact had two consequences. First, it enabled the augural college to interpret (that is, create) the constitutional meaning and effect of rituals – at least for those rituals which had at one time prompted an authoritative ruling from the college.13 But, until quite late in the republican period, that constitutional meaning and effect was not abstracted from the ritual, as it increasingly was, for instance, in private law by means of the formulary system.14 So, even for those rituals about which there were clearly understood augural rulings, there was no way to achieve the constitutional effects save 11 12

13

14

This role-playing terminology is deliberate: Hölkeskamp places great emphasis on metaphors of staging and theatricality. Muir 1997, 5: “Mirrors … present the world as it is understood to be. They have a declarative character: I am the king in a coronation, you are my enemy in a challenge to a duel, she is my wife in a wedding … A king who performs the rituals of rulership without challenge becomes, in effect, the king whether he is entitled to be or not.” From (at latest) the later second century there existed a genre of learned commentaries on public law which touched on such matters, but to my mind these were not seen as authoritative in the way augural rulings were (although augurs themselves might use them in making decisions, as we see in Messalla’s reference to Tuditanus at Gell. NA 13.15.4). See Moatti 2015, 111 and n. 70. That is, Roman private law developed over time so that the same legal effect could be produced by a different (and much simpler) ritual framework.

1.1 Inauguration and the feriae Latinae

31

through the ritual. Second, and because of this, blocking the rituals offered a way for political opponents to obstruct and delegitimise imperators. That, in turn, forced the augurs and others to begin trying to abstract the legal function from the ritual itself – to create a constitutional-legal principle explaining the ritual – which is something we see particularly in the fifties and forties. Two examples can demonstrate this. First, when in 49 Caesar wanted a praetor to hold consular elections, the augurs felt strongly that this was unconstitutional (as we see in Cicero Att. 9.9.3 and 9.15.2 and in Messalla as quoted by Gellius, NA 13.15.4: rogari iure non potest). But they struggled to express why it was unconstitutional, other than that consuls had always been required to elect consuls and praetors.15 Second, in 54 when Ap. Claudius wanted to depart for his province without a lex curiata, he created a legal argument justifying this highly irregular idea – an argument which Cicero plainly did not accept, but which he does not actually refute (Cic. Fam. 1.9.25; see the detailed discussion below). Moreover, Ap. Claudius was able to do this because there was no ruling from the augural college on the matter. What we should take from this is that abstracting the legal effect of any one ritual is a highly artificial exercise and one the Romans themselves only attempted quite late. It is thus not a useful method for us to understand the “real” meaning. 1.1 INAUGURATION AND THE FERIAE LATINAE The magistrates’ entry into office was accompanied by a suite of rituals. Yet the meaning attached to these – and the implications if they failed to be performed – differed considerably. Here I study the inaugural rituals and the celebration of the feriae Latinae, before examining the best-known case when these rituals were omitted: the short-lived second consulship of C. Flaminius in 217. “The taking of office of the new consuls was always accompanied by a series of rituals, ceremonies, and public events, which seem to have been maintained for centuries without significant changes.”16 The familiarity and repetition of this suite of rituals constituted their power and meaning, as Hölkeskamp notes:17 Like rituals in general, it follows a specific normative order with a particular pattern, structure and imagery encoding its particular semantics of symbolic meanings that need to be recognizable for, and actually recognized by, actors and audience – in this case, the special status, the public role and the particular ‘power’ of a holder of imperium.

15

16 17

Messalla offers no augural precedent, only vague nods to the past (“as indeed we have learned from our forefathers, or from what has been observed in the past”) and references to Tuditanus’s Commentarii. It is presumably from the latter that he derives the principle that a lesser colleague cannot propose a greater, but even this is a fairly empty statement. Cf. Straumann 2016, 54–56, who grounds these augural objections in a developing concept of iure which is constitutionally “higher” and Moatti 2015, 110–14, who focuses on the politically contested environment in which Tuditanus (and others like him) wrote. Pina Polo 2011a, 17. See also Hölkeskamp 2011, 166: “the very first day of that year is invariably filled with the highly ritualized spectacle of the consuls solemnly taking office.” Hölkeskamp 2011, 167.

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The ceremonies themselves are attested by a variety of sources.18 The incoming consul held a vigil at night and then took the auspices at dawn on his first day in office (Dion. Hal. Ant. Rom. 2.5–6). These auspices were taken at his own house, ex tripudiis.19 He then donned the toga praetexta and left his house escorted by his new lictors, their fasces raised for the first time. Then, in a very public procession which included senators and other friends, the two consular groups wended their way to the Capitol (Ov. Pont. 4.4.27–80).20 Once on the Capitol, each consul sacrificed a (white) ox to Jupiter in fulfilment of the vows made exactly a year before by the previous consuls and then made the same vow for the safety of the res publica over the coming year.21 Vervaet plausibly suggests that it was now that the two consuls (and the praetors?) normally carried their lex curiata.22 Immediately afterwards, they convened a meeting of the Senate in the Temple of Jupiter Optimus Maximus. It was perhaps after that, in the late Republic, that the provincial sortitio was conducted, and the day ended with a feast. In the weeks following their inauguration, the consuls’ religious duties took on great importance. In the period for which we have Livy, the consuls were responsible for the expiation of prodigies which had been reported to (and accepted by) the Senate over the previous year.23 However, their best-known religious duty was to preside over the feriae Latinae on the Alban Mount (and an associated ceremony at Lanuvium held soon afterward) and Livy tells us several times (e. g. 38.44.8, 43.15.3, 44.22.16) that the consuls could not depart for their provinces until after these ceremonies had been performed. This sometimes affected policy, as in 168 when the Senate wanted the consul who drew Macedonia to set out urgently and so ordered that the feriae Latinae be held as soon as possible (Livy 44.17.7–8).24 The festival itself required the presence of both consuls and indeed all of Rome’s magistrates, so the City was left in the care of a specially-appointed prefect. The festival certainly continued to be celebrated in the first century and throughout the imperial period, as shown by Catulus and Lepidus’s disagreement over whom to appoint prefect in 78 (Sall. Hist. 1.54 Maur = 1.47 McGushin) and the inability of the 18 19

20 21 22 23 24

See, in detail, the sources collected by Mommsen 1878, 1.615–18. The following account is taken from Mommsen, but also from Scullard 1981, 52–54, Hölkeskamp 2011, 166–67 and Pina Polo 2011a, 17–18. Van Haeperen 2012, 74–76 argues that ὀρνιθοσκόποι at Dion. Hal. Rom. Ant. 2.6.2 refers to pullarii rather than augures, as usually translated. Scullard 1981, 52 suggests that these auspices were taken on the Capitol on the grounds of convenience (since the later formalities also took place on the Capitol), but this seems unlikely as the movement of the day was from the consul’s house to the Capitol. There may have been two auspications: the first at home at dawn, and the second on the Arx before the sacrifice and vows. Pina Polo 2011a, 17 suggests that the two consular parties met at a convenient spot, perhaps on the Via Sacra, before proceeding to the Capitol. It is likely the incoming praetors performed a similar ceremony, although the consular ceremonial probably took precedence. Although Orlin 2002, 37 doubts whether the sacrifice was in fulfilment of the previous consuls’ vows, arguing instead it was to obtain favourable auspices. Vervaet 2014, 340–41; cf. Bleicken 1998, 314. Pina Polo 2011a, 23–30. Cf. Pina Polo 2011a, 33.

1.1 Inauguration and the feriae Latinae

33

consuls of 50 to achieve anything beyond setting a date for the feriae Latinae (Cic. Fam. 8.6.3). There is no suggestion in the sources that holding the feriae Latinae itself empowered a consul to command in war or conferred any special status on him, although it was numbered among the compulsory religious rituals which Flaminius omitted in 217. That is, a consul could command in war after he had presided over the festival but not because of that fact. Nevertheless, consuls’ failure to hold the feriae Latinae was held to be unlucky, probably by association with Flaminius. There are no other known omissions before the civil wars. So when the consuls of 43 were unable to conduct the festival, Cassius Dio was able to say (46.33.4) that such situations had never turned out well for the Romans. Indeed, the festival seems to have held more importance for the consuls in their role as civil magistrates and keepers of the pax deorum than as a prerequisite for military command.25 While these rituals were annually repeated, Romans of the late Republic were not able to pinpoint the constitutional role each of them played in transforming an elected consul into a legitimate military commander. This can be shown by examining Livy’s account of C. Flaminius taking up his consulship in Ariminum in 217 and the Senate’s reaction to it:26 Ob haec ratus auspiciis ementiendis Latinarumque feriarum mora et consularibus aliis impedimentis retenturos se in urbe, simulato itinere privatus clam in provinciam abiit. ea res ubi palam facta est, novam insuper iram infestis iam ante patribus movit: non cum senatu modo sed iam cum dis immortalibus C. Flaminium bellum gerere. consulem ante inauspicato factum revocantibus ex ipsa acie dis atque hominibus non paruisse; nunc conscientia spretorum et Capitolium et sollemnem votorum nuncupationem fugisse, ne die initi magistratus Iovis optimi maximi templum adiret, ne senatum inuisus ipse et sibi uni inuisum videret consuleretque, ne Latinas indiceret Iovique Latiari sollemne sacrum in monte faceret, ne auspicato profectus in Capitolium ad vota nuncupanda, paludatus inde cum lictoribus in provinciam iret. Believing, therefore, that his enemies would falsify the auspices and make use of the feriae Latinae and other means of hindering a consul, to detain him in the City, he pretended that he had to take a journey, and departing, as a private citizen, slipped away secretly to his province. This behaviour, when the truth came out, aroused fresh indignation in the breasts of the already hostile senators: C. Flaminius, they said, was waging war not only with the Senate, but this time with the immortal gods. He had formerly been a consul inauspicato factus, and though both gods and men had sought to recall him from the very battle-line, he had not obeyed; now, conscious of having spurned them, he had fled the Capitol and the vows that were regularly undertaken, that he might not, on the day of entering upon his office, approach the temple of Juppiter Optimus Maximus; that he might not see and consult the Senate, which hated him and which he alone of all men hated; that he might not proclaim the Latin Festival and offer the accustomed sacrifice to Juppiter Latiaris on the Alban Mount; that he might not, after taking the auspices, go to the Capitolium to make his vows, and thence proceed, in the paludamentum and accompanied by lictors, to his province. (Livy 21.63.5–11)

It is notable, in this disapproving tirade against Flaminius, that no particular omission is singled out as determining his illegitimacy to command. It is not omitting a crucial detail which renders him an illegitimate consul, but rather bypassing the 25 26

Marco Simón 2011; Pina Polo 2011b. Loeb translation, slightly modified.

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Chapter 1. Legitimation: magistratus to imperator

entire suite of ceremonies which consuls were required to perform before setting off for their provinces.27 Livy contrasts Flaminius’s current, second consulship with his first. That had also been flawed, but the flaw was a straightforward ritual one: in 223 he had been a consul inauspicato factus and so was expected to abdicate his consulship according to the augural law.28 The importance of the entirety of the consular rituals, rather than of any one of them in particular, is reinforced a little later in Livy’s narrative:29 Duos se consules creasse, unum habere; quod enim illi iustum imperium, quod auspicium esse? magistratus id a domo, publicis privatisque penatibus, Latinis feriis actis, sacrificio in monte perfecto, votis rite in Capitolio nuncupatis, secum ferre; nec privatum auspicia sequi nec sine auspiciis profectum in externo ea solo nova atque integra concipere posse. They had chosen two consuls, they said, but had only one; for what iustum imperium or right of auspices did Flaminius possess? Magistrates, they urged, carried with them this prerogative when they set out from home – from their own and the nation’s hearth – after celebrating the feriae Latinae, sacrificing on the Alban Mount and duly offering up their vows on the Capitol; but a private citizen could neither take the auspices with him, nor, if he had left Rome without them, receive them new from the beginning on foreign soil. (Livy 22.1.5–7)

The importance of the consul having the correct auspices is clear, but it is also clear that the other ritual prerequisites were not separated.30 That is, none of them were isolated as being solely responsible for the consul’s inability to legitimately command. Rather, they were important because they had always been performed together. 1.2 THE LEX CURIATA As part of the general political dysfunction of the late Republic, increasingly these rituals could not be performed and the meaning of this omission was contested. The best attested and most controversial case is the lex curiata, on which there is a large scholarly literature.31 This law, which in the first century was passed in the assembly of thirty lictors, appears to date from Rome’s early history. Its original function is not my concern; I am interested rather in its function and significance in the late Republic. I use the words “function” and “significance” deliberately: scholars have focused largely on what the ritual did, what legal and/or religious change in the 27

28 29 30 31

Scheid 2011, 117–18 also speaks generally rather than specifically about Flaminius bypassing the customary rites, although he presents Flaminius as being in radical opposition to traditional religion. However, Feig Vishnia 2012, 31 suggests the motif of the irreligious Flaminius originates with his enemy Fabius Pictor; it is conspicuously absent from Polybius’s account. Linderski 1986, 2162–64. This shows that the legal implication of a ritual omission could be clear–but only if the augural college made a ruling on it. Loeb translation, slightly modified. Berthelet 2015, 133–34 is rather more definite in linking Livy’s emphasis on iustum imperium in this passage with Messalla’s discussion of iustum imperium in Gell. NA 13.15.4. He therefore emphasises the lack of a lex curiata as the decisive factor in Flaminius’s disregard of religion. See Vervaet 2014, 301–04 for a recent survey of the scholarship, to which may be added Berthelet 2015, 104–41.

1.2 The lex curiata

35

status of magistrates it brought about, and it appears that this function can best be approached from an augural point of view. It is apparent that it did nothing so straightforward as “confer” imperium or auspicium on magistrates; rather, it rendered the magistrate in some sense iustus. The “in some sense” is where the disagreement lies: Vervaet believes that what was rendered iustum was the magistrate’s imperium (and hence the magistracy itself), while Berthelet argues that it was his auspicium and van Haeperen says the law was not strictly necessary but conferred a surplus of legitimacy.32 Moreover, it is not clear exactly what iustus means in this context, beyond “correct” or “in conformance with augural law.”33 The law was politically important because of this augural meaning, and political disputes over it could only take place within the parameters which public law established.34 But to properly understand the lex curiata’s constitutional significance in the late Republic we need to know what happened when it was not passed. According to Cicero (Leg. Agr. 2.30), this was a frequent occurrence: tribunes often prevented consuls from carrying the law. The best example we know of is 54, when the consuls’ lack of a lex curiata was a major political issue. Neither Ap. Claudius nor L. Domitius Ahenobarbus, the two consuls of 54, had been able to obtain a lex curiata at the beginning of the year and so together they embarked on a scheme to remedy this. This scheme was the infamous pactio with C. Memmius and Cn. Domitius Calvinus, two of the consular candidates for 53, which was probably made (in writing) in the first half of July.35 Cicero mentions it (obliquely) in a letter of mid-July (Att. 4.15.7), but gives the fullest explanation in a letter sent at the beginning of October:36 Consules flagrant infamia quod C. Memmius candidatus pactionem in senatu recitavit quam ipse suus competitor Domitius cum consulibus fecisset, uti ambo HS |XXXX| 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 quidem fuisset. The Consuls are in the thick of a tremendous scandal. The candidate C. Memmius read out in the Senate the text of a compact which he and his fellow candidate Domitius had made with the Consuls providing that, if they were themselves elected, they would furnish three Augurs who would state that they had been present at the passing of a lex curiata which had never been passed, and two Consulars who would state that they had witnessed a senatorial decree making provision for the consular provinces, though the Senate had not even met; failing this, they were both to forfeit the sum of HS 4,000,000 to the Consuls. (Cic. Att. 4.17.2–3)

Once Memmius made his revelation, any chance that the consuls would receive their real lex curiata or ornatio went out the window. L. Domitius seems to have given up at this point, but not his colleague. By late October Appius had conceived the idea of 32 33 34 35 36

Vervaet 2014, 286 n. 18, 309–10; Berthelet 2015, 133–34; van Haeperen 2012, 84: “la lex curiata confère au magistrat préalablement élu un surplus de légitimité, le rend magistratus iustus.” See also Dalla Rosa 2011 and Humm 2011. So Vervaet 2014, 308. So, rightly, Fanizza 2014, 56. Sumner 1982, 133. On the date of Memmius’s revelation, see Sumner 1982, 136–37.

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going to his province anyway, sine lege suo sumptu (Cic. Att. 4.18.4).37 This was apparently unprecedented since the days of C. Flaminius, and prima facie illegal. Yet, as Cicero reported to Lentulus Spinther (cos. 57 and the incumbent proconsul of Cilicia) in December, Appius had managed to create an argument (of sorts) to justify it, a last throw of the dice in his attempt to legitimise his provincial command: Appius in sermonibus antea dictitabat, postea dixit etiam in senatu palam, sese, si licitum esset legem curiatam ferre, sortiturum esse cum collega provinciam; si curiata lex non esset, se paraturum cum collega tibique successurum, legemque curiatam consuli ferri opus esse, necesse non esse; se, quoniam ex senatus consulto provinciam haberet, lege Cornelia imperium habiturum quoad in urbem introisset. ego quid ad te tuorum quisque necessariorum scribat nescio; varias esse opiniones intellego. sunt qui putant posse te non decedere quod sine lege curiata tibi succedatur; sunt etiam qui, si decedas, a te relinqui posse qui provinciae praesit. mihi non tam de iure certum est, quamquam ne id quidem valde dubium est, quam illud, ad tuam summam amplitudinem, dignitatem, libertatem, qua te scio libentissime frui solere, pertinere te sine ulla mora provinciam successori concedere, praesertim cum sine suspicione tuae cupiditatis non possis illius cupiditatem refutare. ego utrumque meum puto esse, et quid sentiam ostendere et quod feceris defendere. Appius was in the habit of saying in private, and later said publicly in the Senate, that, if passage was given to a curiate law, he would draw lots for a province with his colleague; but if there was no curiate law, he would come to an arrangement with his colleague and supersede you. A curiate law, he contended, was something a Consul should have, but did not absolutely need. Since he had a province by decree of the Senate, he would hold military authority under the lex Cornelia until he reentered the city boundary. What your various friends may write to you I do not know – I understand that opinions differ. Some think you have the right to stay in your province because you are being superseded without a curiate law; others that, if you go, you are entitled to leave a governor in charge. For my part, I am less certain of the legal position (though even that is not so very dubious) than of the advisability of your handing over the province to your successor without delay. Your high standing and prestige, your independence, in which I know you take especial satisfaction, are involved, particularly as you cannot rebuff Appius’ exorbitance without incurring some suspicion of a similar fault. I regard myself as no less bound to tell you my sentiments than to defend whatever course you adopt. (Cic. Fam. 1.9.25)

Cicero’s report here is clearly only a summary of what must have been a fairly lengthy justification of his position by the senior consul in the Senate – a consul, moreover, who had prepared the ground in advance. To begin with, it shows L. Domitius had no interest in taking a province without a lex curiata, but was still interested if one could be passed. It shows Appius still held out some hope that the law might be passed, although such hope was probably unfounded. What was Appius’s position on the legal substance of the matter? We can surely guess much of it, beyond what Cicero tells us. Appius was a consul auspicato factus – it was probably Pompeius who presided at his election, and there was no hint of impropriety at the comitia which saw Cato and L. Domitius elevated to high office. As an elected consul, who had properly performed the inaugural ceremonies, he held imperium. Since he was a consul and consular provinces had been decreed (Cilicia and an unknown second province, perhaps Macedonia), he had a right to a province and as 37

Drogula 2015, 107–09 argues that the controversy over C. Pomptinus’s triumph, which also took place at this time, arose from his disputed lex curiata. This is not the case and Pomptinus’s triumph is not relevant to the lex curiata. See pp. 107–09 for a full discussion.

1.2 The lex curiata

37

a consequence of that fact could validly exercise his imperium in that province.38 For those who pointed to his lack of a lex curiata, he claimed that it was preferable for a consul to have such a law but not absolutely essential: whatever had been the case previously (which presumably Appius did not go into), Sulla’s lex Cornelia de maiestate now allowed (under Appius’s interpretation) that whoever had been decreed a provincia and departed Rome paludatus should retain his imperium until he re-crossed the pomerium. Essentially, he was arguing that while his imperium might not be iustum, he still held imperium, which was all that the lex Cornelia de maiestate referred to.39 We do not possess the text of the lex Cornelia de maiestate, but a passage of the lex de provinciis praetoriis has the same force as Appius’s argument (as represented by Cicero):40 ἐὰν οὗτ[ο]ς ὁ στρατηγός, ὧι τῆς Ἀσίας Μακεδονίας τε ἐπαρ[χ]ε̣ί̣α ἐγένετο, τῆς ἀρχῆς αὑτὸν ἀπείπηι ἢ ἀπείπηται ὡ̣ς̣ ἐ̣ν ἐπιταγῆι, ἐξουσία πάντων πραγμά– vacat των ἐ̣[π]ιστροφήν τε ποιεῖσθαι, κολάζειν, δικαιοδοτεῖν, κρείνε̣ι̣[ν, κ]ριτὰς ξενοκρίτας διδόναι, ἀναδόχων κτημάτων ΤΕ[.]Γ̣ΑΡΟΔΟΣΕΙΣ ἀπελευθερώσεις ὡσαύτως κατὰ τὴν δικαιοδοσίαν ἔστω καθὼς ἐν τῆι ἀρχῆι ὑπῆρχεν· οὗ[τ]ός τε ὁ ἀνθύπατος ἕως τούτου ἕως ἂν εἰς πόλ̣[ι]ν̣ Ῥ̣ώμην ἐπανέλθηι ἔστω. Vacat If the praetor to whom the province of Asia or Macedonia shall have fallen abdicates from his magistracy, as described in his mandata, he is to have power in all matters according to his jurisdiction just as it existed in his magistracy, to punish, to coerce, to administer justice, to judge, to appoint iudices and recuperatores, ‹registrations› of guarantors and securities, emancipations, and he is to be proconsul until the very moment of his return to the city of Rome.

Ap. Claudius was thus appealing to a constitutional principle which had existed since at least 100: it was not a Sullan novelty. The lex Cornelia was simply the most recent and authoritative statement of the constitutional truth that a former magistrate in the field imperium habiturum quoad in urbem introisset. Needless to say, Appius’s interpretation of his position did not go unchallenged: varias esse opiniones intellego.41 Cicero’s phrasing is polite, although he makes it 38 39

40

41

Sumner 1982, 136 suggests Macedonia as the other province. See also Drogula 2015, 108, who euphemistically describes Appius’s interpretation of public law as “highly imaginative.” Fanizza 2014, 60–66 argues that the lex Cornelia dealt with magistrates who had been unable to obtain a lex curiata, but there is no reason to think so. Cicero tells us (Leg. Agr. 2.30) the lex curiata was most often blocked by tribunes, which presumably was not envisaged by the dictator who so savagely cut tribunician power. Sulla’s law probably referred only to magistrates cum imperio, perhaps in the way the lex repetundarum did (l. 8). Crawford 1996 no. 12, Cnidos copy, col. IV, ll. 31–39 (translation by Vervaet 2012, 67–68); Fanizza 2014, 65 n. 49. Note that Giovannini and Grzybek 1978, 38, 43 and Drogula 2015, 290 believe this passage refers rather to the period after a promagistrate has been relieved of his provincia and while he is returning to Rome; I follow Ferrary 1977, 634 in thinking them incorrect. See the detailed discussion in Appendix D. Fanizza 2014, 50 suggests the participants in this debate were the senators, experts and magistrates who were most involved: “la questione si chiarisce nei termini di un vero e proprio

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clear to the reader that Appius is not on solid ground.42 And it was at precisely this period that Cicero was writing De re publica, in which he deals explicitly with the lex curiata.43 Cicero used antiquarian sources such as Varro for this work (and for the De legibus, which was perhaps being worked on at the same time) and so in late 54 would have been one of the best-informed men in Rome on early constitutional history (Cic. Att. 4.14.1).44 Yet, if the tone of the letter to Lentulus Spinther is any guide, Cicero was reluctant to take too strong a stand against the consul. Indeed, the passage in question makes clear that, whatever the technical merits of Appius’s position, Cicero believed that it was not on technical grounds that the matter would be decided. It is often forgotten that, politically, Ap. Claudius largely won the argument: he was permitted to depart for his province (although the Senate probably refused to vote his ornatio) and even had the audacity to sue for a triumph upon his return in 51 (Cic. Fam. 3.10.1).45 Moreover, the lack of a lex curiata did not prevent either consul from carrying out the normal civilian duties of their consulship, including holding elections for their successors.46 Nor would it have prevented them from conducting a sortitio to distribute the consular provinces between them, had L. Domitius been willing to do so.47

42

43 44 45 46

47

dibattito istituzionale che si svolge tra coloro che avevano l’autorità per discuterne, i senatori, gli esperti di diritto, i detentori di imperium.” It is possible that Cicero subtly expressed his attitude to Appius in other ways. Three years after these events, Cicero wrote a series of letters to Appius to manage the transfer of authority in Cilicia. And in the very first sentence of the first letter we find the phrase ut mihi cum imperio in provinciam proficisci necesse esset (Fam. 3.2.1: “I am obliged to set out for a province with imperium”). The language of obligation (necesse esset) seems an unnecessary and deliberate reference to Appius’s self-justification as consul. Moreover, these letters are full of references to the lex Cornelia (e. g. 3.6.3, 3.6.6, 3.10.6, 3.11.2), and suggestions to Appius about what he should do to comply with it. It does seem as though Cicero is commenting on Appius’s reliance on that law to justify his Cilician provincial command. The De re publica was being written in mid-54 (QFr. 2.13.1) and was published before mid-51 (Fam. 8.1.4). The lex curiata is discussed at Rep. 2.25. See Rawson 1972, 35–39 on Cicero’s use of the annalists and antiquarians in these two dialogues and Dyck 2004, 5–7 on the date of De legibus (arguing that the dialogue was worked on for several years). Cf. Vervaet 2014, 336. Cic. Att. 4.15.7–8 (dated July 54) discusses the upcoming elections. Although Cicero thinks they might be delayed (as in fact happened), this is due to heavy bribery, with no hint that the consuls are constitutionally incapable of holding them. Similarly, QFr. 3.2.3, written well after the scandal of the coitio broke, does not hint at any constitutional impediment to the elections going ahead, but only political problems (contra Vervaet 2015b, 220–22). Moreover, Att. 4.17.3 shows the Senate urging the consuls to hold elections soon. For detailed discussion see Sumner 1982 and Morrell 2014a, 669–73. Cf. Vervaet 2015b, 220–22, Berthelet 2015, 109 (who also sees nothing to prevent the consuls holding elections). On the comparable situation of the consuls of 49 in Thessalonica see below. My reading of Cic. Fam. 1.9.25 is that L. Domitius was more scrupulous than Ap. Claudius about the presence or absence of a lex curiata and would not take a provincial command without one. Therefore, if a lex curiata was passed, both consuls would receive a province and so a sortitio would be necessary. However, if it were not passed, then Ap. Claudius would choose whichever province (of the two available) he wanted. This second scenario is what in fact happened.

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39

This raises two possibilities. Either the stricter modern interpretations of what the lex curiata enabled (and hence, what was forbidden to magistrates who did not obtain one) are wrong, or else senators did not know or care enough about the augural issue to override Ap. Claudius’s political authority and determination. The latter is the preferable explanation. This is not to say that the governing class was unaware that a lex curiata rendered a magistracy iustus, but rather that iustum imperium was not a matter of overwhelming importance to its members. There may have been relatively little religious fear of imperators commanding sine auspiciis, if Cicero’s laments about neglegentia nobilitatis are taken seriously.48 Furthermore, if Cicero was being truthful rather than simply polite in saying varias esse opiniones intellego, many senators would have been swayed by Ap. Claudius’s own stature as, not only a patrician Claudius, but someone deeply learned in the augural law: he produced some books on this subject over the succeeding few years, although the overall project may have remained unfinished (Cic. Fam. 3.4.1, 3.9.3, 3.11.4). His pronouncements on procedure doubtless carried considerable auctoritas.49 On this score, it is notable that, in a dispute about the augural law, there was no attempt to obtain a ruling from the augural college. Nor could there have been: Appius was one its senior members, while the consular candidate M. Valerius Messalla was another. The ability of the augural college to make authoritative rulings on constitutional/ritual matters was increasingly doubtful.50 That said, this controversy and others of the period do suggest a vague apprehensiveness about an imperator without the lex curiata commanding in war.51

Cic. Nat. D. 2.9 (Loeb translation, slightly modified): Sed neglegentia nobilitatis augurii disciplina omissa veritas auspiciorum spreta est, species tantum retenta; itaque maximae rei publicae partes, in is bella quibus rei publicae salus continetur, nullis auspiciis administrantur, nulla peremnia servantur, nulla ex acuminibus, nulli viri vocantur ex quo in procinctu testamenta perierunt tum enim bella gerere nostri duces incipiunt cum auspicia posuerunt. “But owing to the carelessness of our nobility the augural lore has been forgotten, and the reality of the auspices has fallen into contempt, only the outward show being retained; and in consequence highly important departments of public administration, and in particular the conduct of wars upon which the safety of the state depends, are carried on without any auspices at all; no taking of omens when crossing rivers, none when lights flash from the points of the javelins, none when men are called to arms (owing to which wills made on active service have gone out of existence, since our generals only enter on their military command when they have laid down the auspices).” 49 See Linderski 1986, 2212 on the auctoritas of an individual augur pronouncing on a matter. It is worth noting that L. Iulius Caesar (cos. 64) and M. Valerius Messalla (cos. 53, and thus a man deeply involved in this controversy), both augurs, also produced books on augural matters in this period (as did Cicero, an augur from 53), although these may have been published later. There was evidently a variety of opinions on the discipline within the college. 50 Compare the situation in 49 when Caesar wanted a praetor to conduct the consular elections. Cicero cynically expected him to obtain the augural ruling he wanted, but also made it clear (Att. 9.9.3) that such a ruling would have no moral authority, having been passed by a college packed with Caesar’s supporters and with his opponents outside Italy. Linderski 1986, 2181– 84. 51 So Bleicken 1998, 314–15. 48

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The other late republican evidence for the lex curiata is contradictory and cannot be combined to create a coherent account.52 Indeed, most of the late republican passages in question are noticeable for their tendentiousness and for the lack of clarity about what a lex curiata actually enabled. Cicero argues in his second speech De lege agraria in 63 that a lex curiata was concerned with magistrates’ auspicium and that a magistrate without one should not be concerned with res militares.53 Cassius Dio records (41.43.1–4) that it was owing to their lack of a lex curiata that the consuls of 49 did not create their successors in camp at Thessalonica at the end of the year.54 In all of these cases the truth of the matter is a distant second to the propaganda element. Cicero is trying to persuade his contional audience that Rullus’s proposal is constitutionally unprecedented.55 Dio seems to reflect Republican self-justification: the consuls could concede their lack of a lex curiata to distract attention from the wholly unprecedented proposal (which had evidently been seriously considered in camp) to elect new magistrates while outside Italy.56 1.3 PROFECTIO PALUDATUS The final constitutionally important ritual step in taking up military command was the ceremonial departure from the City (profectio paludatus). To take our earlier example, the army of C. Claudius (cos. 177) refused to obey him because he had not correctly performed this ceremony, and so he was forced to return to Rome and repeat it (Livy 41.10.5–13). Later, Cicero alleges Verres (pr. 74) had returned across the pomerium after performing the ritual, so legally ending his tenure of imperium (Verr. 2.5.34). A magistrate’s ceremonial departure from Rome, his metamorphosis from a purely civilian officer into a military commander, was a significant moment which has attracted attention among modern scholars.57 It is important to note that this ritual was only necessary when leaving the City to take up military command; it was not needed for any ordinary departure. An imperator could not validly assume command of a Roman army unless he had performed the profectio ceremony as a whole and therefore had correctly carried out each individual ritual which comprised it. It is certain that departing imperators 52 53 54 55 56

57

Van Haeperen 2012, 72–73 points to scholars being cavalier with evidence which does not support their own explanations; cf. Giovannini 1983, 49. See the detailed discussion by Vervaet 2014, 310–18. Vervaet 2014, 337–38 and nn. 111, 112 argues that Caes. BCiv. 1.6.6–7 refers to the consuls departing Rome without having secured their lex curiata, claiming “Caesar is choosing his words most carefully.” See Appendix E for a detailed discussion of this passage of Caesar. On Cicero see Lintott 2008, 137–42. Camillus’s speech at the end of Livy Book 5 is clear enough proof that it was felt to be impossible that the consular elections, to say nothing of the various rites of inauguration, could take place anywhere but at Rome. Moreover, electing new consuls in Thessalonica, without the input of the populus Romanus, would have confirmed all of Caesar’s propaganda about his enemies and robbed these new consuls of any political legitimacy in the eyes of the general public. For example, Mommsen 1878, 1.63–64; Rüpke 1990, 125–43; Hurlet 2010.

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41

took the auspices on the day of departure, but the nature of this auspication is not always agreed.58 As Konrad notes parenthetically, “there could be no ‘taking the auspices’ in the abstract; in each instance, the procedure sought Iuppiter’s permission for a specific act, or series of acts, later in the day: and the act intended must be clearly named in the request.”59 Konrad continues that, as the acts the magistrate would perform that day were the vows and crossing the pomerium, it is logical that he sought auspices for them alone. However, it is more likely that this auspication sought Jupiter’s approval for the entire military command which began on that day, until the return to Rome, together with approval for all subsequent auspications carried out militiae.60 Once the imperator had received favourable auspices, he mounted the Capitol to offer sacrifice and make vows to Jupiter for the success of his command, promising the god the larger victims.61 If successful, this vow was fulfilled at the triumph.62 Caesar (BCiv. 1.6.6) tells us this departure ceremony continued to be performed in the late Republic, even under circumstances of great urgency. Having performed his vows, the imperator was, religiously, now fully equipped to command. He climbed down from the Capitol with his lictors and crossed the pomerium, accompanied by the sound of trumpets. The imperator’s transformation from a civilian magistrate into a military commander was symbolised (and at the same time made concrete to all who beheld him) by changing into his general’s cloak, the paludamentum. His lictors also donned the cloak.63 It is uncertain whether this occurred on the Capitol or after crossing the pomerium. However, it was probably only when they reached the pomerium that the imperator’s lictors inserted the axes into their fasces, making it clear the imperator was now able to exercise his imperium in the sphere militiae.64 On one level, profectio was a civic ritual, a ceremonial departure to complement the ceremonial return of the triumph or adventus.65 But while triumphs were rare events, the profectio was common, with several taking place each year.66 More58 59 60 61

62 63

64 65 66

Mommsen 1878, 1.63; Giovannini 1983, 16. Konrad 2004, 172 n. 5. For the circumstances of auspication see the clear explanation in Linderski 2007a, especially 9–11. This is the natural implication of the ritual of repetitio auspiciorum as defined by Serv. Aen. 2.178; cf. Berthelet 2015, 165–67. Ziolkowski 2011, 465–67, based on Livy 21.63.9, believes that as Flaminius in 217 should have set out for the Capitol already being auspicato, the auspication must have taken place elsewhere. This is adequately answered by Berthelet 2015, 119 n. 94, who points to the double summit of the hill: the auspication probably took place at the auguraculum on the Arx before the magistrate proceeded to the vicinity of the Capitoline Temple. Berthelet here refines Magdelain 1990, 209, for whom all elements of the process take place on the Capitol. Livy 45.39.10–12. Cf. Rüpke 1990, 131–32. Varro Ling. 7.37: ideo ad bellum cum exit imperator ac lictores mutarunt vestem et signa incinuerunt, paludatus dicitur proficisci. “When the general goes forth to war and the lictors have changed their garb and have sounded the signals, he is said to set forth paludatus ‘wearing the paludamentum’.” Hurlet 2010, 46 n. 3 argues that while it is uncertain where the mutatio vestis occurred, the axes probably only appeared once beyond the pomerium. Sumi 2005, 35–41. So Hurlet 2010, 47–48 and n. 13.

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over, the ritual “retained its attraction as national drama for the Roman crowds”: it was undertaken in public, the imperator was accompanied by his friends and wellwishers, and sources frequently refer to the crowds of people who would come to watch.67 They did not simply come to enjoy a show. In what Hölkeskamp calls “a surprisingly sensitive, if highly imaginative passage” of Livy, the Roman historian emphasises the tension in the occasion, the uncertainty about whether the general departing for war would meet with victory or disaster:68 Per hos forte dies P. Licinius consul votis in Capitolio nuncupatis paludatus ab urbe profectus est. semper quidem ea res cum magna dignitate ac maiestate agitur; praecipue convertit oculos animosque, cum ad magnum nobilemque aut virtute aut fortuna hostem euntem consulem prosecuntur. contrahit enim non officii modo cura, sed etiam studium spectaculi, ut videant ducem suum, cuius imperio consilioque summam rem publicam tuendam permiserunt. subit deinde cogitatio animos, qui belli casus, quam incertus fortunae eventus communisque Mars belli sit; adversa secundaque, quae inscitia et temeritate ducum clades saepe acciderint, quae contra bona prudentia et virtus attulerit. quem scire mortalium, utrius mentis, utrius fortunae consulem ad bellum mittant? triumphantemne mox cum exercitu victore scandentem in Capitolium ad eosdem deos, a quibus proficiscatur, visuri, an hostibus eam praebituri laetitiam sint? During these days, as it happened, the consul Publius Licinius, after announcing his vows on the Capitol, set out from the city in military dress. Such a departure is always indeed conducted with great solemnity and pomp; it particularly draws the eyes and minds of men when they escort a consul going against an enemy great and famous either for bravery or for good fortune. For not only care in paying their respects, but also eagerness for the spectacle brings crowds to see their leader, to whose command and wisdom they have entrusted the whole welfare of the state. Thereupon there steals over their minds a thought of the calamities of war, and how uncertain is the outcome of fortune and how impartial the god of war – a thought of reverses and successes, of what disasters have often occurred through the ignorance and rashness of leaders, of what gains, on the other hand, prudence and courage have produced. What mortal knows, men think, which kind of mind and fortune belongs to this consul whom we are sending to war? Shall it be in swift triumph, as he climbs the Capitol with a conquering army toward those gods from whom he now takes his leave, that we shall see him, or are we to give that joy to the enemy? (Livy 42.49.1–6)

The profectio ritual is thus a highly charged symbolic moment. In Hölkeskamp’s favoured Geertzian terms, it is “a specific ‘ensemble’ whose ‘text’ is focused on the crossing of the sacral borderline between domi and militiae.”69 The magistrate takes the power of the Republic (present both in the soldiers under his command and the favour of Jupiter which he has just requested) from the centre of the City to the distant battlefield, “where, if he has been successful, that power will manifest itself in Roman victory.”70 This was particularly the case for a consul setting off for a major war, but in principle the same was true for all imperators. Apart from the desire of the populus Romanus to see the imperator as he departed, there was the imperative for his friends to demonstrate their support for him, as well as to be seen by the urban populace to be demonstrating that support. We even find a casual reference in Cicero 67 68 69 70

Marshall 1984, 121–22 (quote is from page 122). Hölkeskamp 2011, 173. Hölkeskamp 2011, 173. Feldherr 1998, 9–10. See more generally Pina Polo 2011a, 213–18.

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(Fam. 13.6.1) to him accompanying a departing imperator. The theatre of the ritual could also be evoked negatively, as in the famous scenes of tribunician curses which accompanied Crassus’s profectio in November 55.71 1.3.1 A constitutional requirement The lex Cornelia de maiestate enshrined the principle that an imperator retained his imperium – and thus his legal capacity to command an army and province – from the moment he departed the City paludatus to the moment of his return.72 The crucial act was crossing the pomerium, which both began and ended his command. This was not a new provision: it is present in the lex de provinciis praetoriis but was probably true in practice for some time before this.73 However, that did not mean he had to go directly to his province: constitutionally, it was perfectly acceptable to linger in the suburbs. All this is shown powerfully in Cicero’s account of Verres’ profectio, late in his urban praetorship in 74:74 Alterum quod, cum paludatus exisset votaque pro imperio suo communique re publica nuncupasset, noctu stupri causa lectica in urbem introferri solitus est ad mulierem nuptam uni, propositam omnibus, contra fas, contra auspicia, contra omnis divinas atque humanas religiones! The other is that, having already left the city in his paludamentum, and already made the vows on behalf of his term of office and the general welfare of his country, he repeatedly had himself carried back into the city after nightfall in a litter, to gratify his adulterous passion for a woman who was one man’s wife but at all men’s service; thus violating the law of God, violating the auspices, violating every principle of religion and morality. (Cic. Verr. 2.5.34)

Like P. Licinius Crassus in 171, Verres performed all the elements of the profectio ritual: the auspication, the vows, and the mutatio vestis. Cicero does not attack him for this: so far, Verres has acted correctly. Nor does Cicero attack him for remaining near Rome: constitutionally, that was not a problem and in no way affected Verres’ legal standing as imperator. Rather, Cicero directs his ire against the secret returns into Rome, since by (allegedly) crossing the pomerium back into the City Verres had given up his imperium. All this underscores the idea that we should not treat profectio purely as a ceremonial departure for war: it was an obligatory constitutional requirement.75 Its obligatory status should be seen as a consequence of the C. Claudius affair in 177, with which we began this chapter. The outcome of that confrontation was Plut. Crass. 16.3–5; Cass. Dio 39.39.5–7. Cf. Cic. Pis. 31 for similar (if less dramatic) ill wishes accompanying Piso’s departure in 58, although there is a good chance Cicero invented these. 72 Cic. Fam. 1.9.25: lege Cornelia imperium habiturum quoad in urbem introisset. Cf. Cic. Att. 7.7.4. 73 Lex de provinciis praetoriis (Crawford 1996 no. 12): Cnidos copy, col. IV, ll. 31–39. See above, p. 37 and below, Appendix D. The experience of, for example, Ti. Claudius Nero in 201 shows that, as early as the Hannibalic War, an imperator’s imperium remained active beyond his magistracy (if he was in the field at that point), even if his provincia was not extended. See Livy 30.39.3–4; Giovannini 1983, 37–44; Vervaet 2014, 56. 74 Loeb translation, slightly adapted. 75 Giovannini 1983, 17. 71

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that Claudius’s attempt to bypass profectio was defeated and the importance of the ritual reaffirmed. We have no record of it being neglected again for the remainder of the Republic. But the fact that it had to be performed in order to legitimately command troops made it a potential roadblock, since only a magistrate could perform the ritual successfully. The initial auspication (presumably at dawn, like most auspications) took place within the pomerium: the imperator was thus required to possess the auspicia urbana.76 Therefore, even imperators who were proceeding to their provinces at the end of their year in office needed to perform the profectio ceremony while still magistrates, as their possession of the auspicia urbana (and thus their capacity to auspicate intra pomerium) expired on the last day of December. As we have seen, once the departing magistrate had exited the City paludatus, he retained his imperium (and the accompanying auspicium) until he re-crossed the pomerium into Rome, at which point they lapsed.77 Hence an imperator in the field did not lose his official authority (including the right to consult the gods on behalf of the state) at the expiration of his magistracy, as he would have had he remained in Rome. He did not have to dismiss his lictors at that point, but it is uncertain whether he was required, as he would have been in Rome, to state on oath that he had obeyed the laws, or whether that was a further requirement upon his return to the City.78 If only magistrates could depart paludatus, what then of privati cum imperio, who again became a regular feature of provincial government in the first century? Frédéric Hurlet has addressed this question in detail.79 For him, they required a different departure ceremony, since privati cum imperio did not possess the auspicia urbana and were correspondingly unable to take the auspices on the Capitol or (presumably) make their vows there.80 A privatus cum imperio possessed only the auspicia militaria and thus (presumably) needed to begin his journey from outside the pomerium. For Rich, this inability to make the customary vows to Jupiter explains why there was such resistance to the idea of these commanders triumphing.81 It was Pompeius in 81 who, by a show of strength, overrode this resistance.82 He repeated the feat of triumphing as an extraordinary promagistrate in 71.83 Hence, as Hurlet argues, in the late Republic personal political opposition to Pompeius was 76 77

78 79 80 81 82 83

Berthelet 2015, 165. The issue of whether promagistrates possessed auspicium is much debated. Cic. Div. 2.76 seems to say they did not, but there is considerable evidence elsewhere that they did, e. g. Tac. Ann. 3.11.1 and 3.19.3, with discussion at Vervaet 2014, 85. See now the comprehensive discussion at Berthelet 2015, 157–68. In view of the religious elements of the triumph, capacity to take the auspices was clearly a necessary condition of being able to triumph (Vervaet 2014, 82–90 with references). Vervaet 2012, 68 n. 102. Cf. Appendix D. Hurlet 2010, especially 48–55. Berthelet 2015, 161–67. Rich 2014, 224 and n. 132, 226, and 236. Despite Sulla’s objection that, according to nomos, only consuls and praetors were able to triumph: Plut. Pomp. 14.1. Cic. Leg. Man. 62 highlights both the fact that Pompeius triumphed twice as an eques (and thus contrary to custom) and the fact that these triumphs were approved ex senatus consulto.

1.4 Conclusion

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bound up with ritual/constitutional objection to the use of privati cum imperio.84 In the realm of public law, the key distinction regarding profectio was thus between magistrates and non-magistrates; whether a magistrate departed early or late in his year in office was immaterial. It was only the lex Pompeia in 52 which broke the temporal and auspical continuity between magistracy and provincial government.85 1.4 CONCLUSION The process by which a magistrate was transformed into an imperator – by which he became able to legitimately command Roman armies – was a ritual process. Magistrates did not require any extra power or capacity (such as imperium) in order to become imperators; nor was this accomplished by any individual ritual. There was no “active ingredient,” no precise moment at which a non-imperator became an imperator. Rather, we can observe the holistic process of a series of rituals being performed correctly. Nor did these individual rituals each have a precise and clearly-understood meaning: we should not think of the process as one where many small changes in status added up to a large change. None of them, by themselves, was indispensable. Profectio is an exception: the affair of C. Claudius established (or reinforced) the precedent that an imperator who did not depart Rome correctly could not legitimately command troops. But a brief re-examination of that situation shows just how this precedent-setting worked.86 It was the previous commanders of the army who first refused to recognise Claudius’s right to command. Then, when Claudius issued orders to the proquaestor to arrest the two proconsuls, he too refused the order. This man was presumably much younger than Claudius, and lacked the par imperium that buttressed the proconsuls’ stand against the consul, but Livy says it was the soldiers’ support for their old commanders (the soldiers being clearly unimpressed at this display of Claudian superbia) which emboldened the proquaestor to refuse obedience. Whatever the clarity of the constitutional situation, personal behaviour and personal relationships helped to determine which constitutional principles would be rigorously enforced. The outcome of this confrontation helped to ensure that profectio was a ritual which was never again bypassed by departing imperators. We can contrast this with the political struggle over Ap. Claudius’s lex curiata in 54. That had the potential to serve as a “test case” for the lex curiata in the same way that 177 had done for profectio. But the political circumstances were very different. No one was able to stand up to Ap. Claudius effectively; crucially, the augural college was unable to give a ruling which might have proved authoritative. But the public doubt over Appius’s actions (which is evident in Cicero’s letters) meant that no clear precedent was established either way. Appius won the contest in the 84 85 86

Hurlet 2010, 53. Hurlet 2010, 72: “La continuité temporelle et auspiciale entre magistrature et gouvernement provincial constitua la pratique ordinaire jusqu’au vote de la lex Pompeia sur les provinces en 52 av. J.-C.” On precedent in Roman public life see Nippel 2009; Lundgreen 2011.

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short term, but without carrying the larger point about the lex curiata and so creating his own clear precedent. The two controversies, 123 years apart, show the degree to which public law was malleable, the extent to which it was the outcome of political contests – and the fact that it often only appears in our source material precisely when it is being contested.

CHAPTER 2 GAIUS GRACCHUS’S ADMINISTRATIVE SYSTEM When the new consuls entered office on the Ides of March 188, Livy tells us, “they consulted the senate regarding the general policy and regarding the provinces and armies” (38.35.7).1 The Senate upheld its recent decision to prorogue the previous year’s consuls in Asia and Aetolia and decreed Pisa/Liguria and Gaul to be the new consular provinces. The size of the armies the new consuls were to command were also decreed. These consular provinciae, together with the regular praetorian responsibilities, were then distributed by lot. In the same session, the Senate shuffled around Rome’s existing armies and fleets, proroguing or recalling praetorian commanders as it saw fit and requesting new allied troops. Soon afterwards, upon the completion of various religious matters, the magistrates departed for their provinces. This is just one example of the detailed record Livy gives us in books 21–45 of the procedure for allocating provinces.2 In Livy, responsibility for provincial matters lay with the Senate, and decisions about how to employ the imperators and resources at Rome’s disposal were normally taken as soon after the beginning of the consular year as practicable. Often, this was on the first day, but sometimes religious and diplomatic matters caused a slight delay.3 These decisions appear to have formed a coherent policy. The Senate decided which were to be the two consular provinces (normally a major war and/or overall command of Italy), which the praetorian provinces (the two urban iurisdictiones, the permanent territorial provinces and, often, less critical military commands) and which promagistrates were to be continued in their provinciae.4 Once the provinces had been settled, the consuls and praetors cast lots to distribute them among themselves. The Senate then voted the funds and troops to be attached to each provincia, again frequently during this first meeting of the consular year. If new troops were to be raised, the process for this was begun. Finally, after certain religious obligations had been fulfilled (most notably attendance at the feriae Latinae), those magistrates holding militiae provinces departed Rome. The whole process was coherent and concentrated in time: the aim was to best deploy the available magistrates to do the work which Rome needed to be done. The essential difference between the allocations process in Livy and that in the late Republic is that the process became fragmented. In the first century, consular and praetorian allocations worked differently from each other and the steps in each 1 2 3 4

De re publica deque provinciis et exercitibus senatum consuluerunt. This is a summary of the process; for detailed accounts, see Willems 1883, 2.521–652; Brennan 2000, 239–46; Pina Polo 2011a, 18–20; Drogula 2015, 131–42, 200–03. Pina Polo 2011a, 11–82; Willems 1883, 2.532–62. Willems 1883, 2.544–45 emphasises the Senate’s flexibility in this.

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process were spread out over time. Praetors now normally received two provinces; consuls received only one, but in practice (often) took theirs up late in the year. Both consuls and praetors could decline militiae provinces. In this chapter, I argue that all of these developments can be traced back to Gaius Gracchus. They are logical consequences of two Gracchan laws: the lex Sempronia de provinciis consularibus and the repetundae law known from the Tabula Bembina. These consequences worked themselves out in the last two decades of the second century so that the post-Sullan allocations system was present, in its essentials, before the Social War. To begin with, the lex Sempronia clearly marks a change from mid-republican practice. The Senate needed to decide which would be the two most important (military) problems Rome would face in the coming year and decree those as provinciae for the future consuls. However, this need not be done as part of a comprehensive disposition of Rome’s magistrates: the provinciae to be given to praetors, and which existing promagistrates would be prorogued or recalled, were decisions which could now be made separately. Importantly, while the lex Sempronia made no reference to the nature of the provinciae themselves, it reflected a distinction in the minds of senators between tasks appropriate for a consul and those appropriate for a praetor. This distinction was never enshrined in law but is perceptible in the choices the Senate made.5 The repetundae law worked differently. It created the first new urban praetorian provincia in more than a century; now three of the six praetors needed to be retained in the City. More such provinciae soon followed in the shape of new quaestiones perpetuae so that, well before the Social War, at least five (and probably all six) of each year’s praetors were required in Rome. These praetors then had to be prorogued and sent to govern territorial provinces (a phenomenon I call “secondary praetorian provinciae”); without them, there was no source of new imperators. This requirement for praetors to do double duty also contributed to the separation of consular and praetorian allocations: only one sortitio was needed for consuls, whereas praetors underwent a double sortitio. This is not how scholars have previously understood the change from the midrepublican to the late-republican process. Willems, in his survey of the Senate’s control over the provinciae, devotes thirty pages to the middle Republic and eighteen to the period after Sulla, but only eight pages to the period from the lex Sempronia to Sulla’s dictatorship – and he spends much of those eight pages describing how little things had changed from the account in Livy.6 For Willems, the significant change came with Sulla’s dictatorship. It was Sulla who reestablished the accord between the number of magistrates with imperium and the number of overseas provinces and who ensured that provincial governors were now invariably promagistrates. Similarly, Brennan points to Sulla’s dictatorship as a turning point. Often repeated in his chapters on the late Republic is the phrase “the Sullan system” which appears to Brennan as a coherent, methodical and rational system for provincial administration. 5 6

This is a point well made by Drogula in his discussion of the evolution of provinciae in the second century (2015, 232–94). Willems 1883, 2.532–80.

2.1 The lex Sempronia de provinciis consularibus

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Once appointed dictator, he claims, “Sulla set out on an ambitious legislative program to reform (among other things) Roman administrative practice.”7 For Brennan, the characteristic features of the late-republican provincial system – governors being promagistrates, the ability to refuse provincial government, and the normal presence of praetors pro consule – were all conscious Sullan policies. This is the case even when Brennan explicitly quotes his mentor Badian saying that secondary praetorian provinciae were normal by the nineties. He must still say that Sulla “institutionalized” the practice, without ever making it clear how that could be done; indeed, he specifically states that Sulla did not accomplish this by legislation.8 The problem, as Hurlet has recognised, is the continuing influence of Mommsen. Although neither Willems nor Brennan accept Mommsen’s account of the supposed lex Cornelia de provinciis ordinandis, each remains (in Hurlet’s words), a “prisoner of Mommsen’s scheme.”9 That is, each finds himself addressing the question within the parameters which Mommsen established. But this will not do: as Hurlet has argued, it is necessary to free oneself from these parameters and address the issue afresh, based on an examination of the sources independent of any pre-established system.10 Such an examination points to a great deal of continuity between the provincial allocation system after Sulla and that which had already emerged by the nineties of the first century, even if it is more visible in the later period due to our better evidence.11 Hence my preference to treat the period 123–52 as a unity. 2.1 THE LEX SEMPRONIA DE PROVINCIIS CONSULARIBUS The lex Sempronia de provinciis consularibus, passed probably in 123, established a new process for decreeing the consular provinces. Rather than being debated and decreed on the first day of the consular year, as was normally the custom in the period for which we have Livy, the consular provinces were now to be decided before the election of the consuls concerned. If the debate took place before the con7 8 9

10

11

Brennan 2000, 388. Badian 1979, 794; Brennan 2000, 396. Cf. Hantos 1988, 110, who says much the same thing as Brennan. Hurlet 2010, 50 (“prisonnier du schéma mommsénien”). Hurlet here refers to Brennan and Giovannini, but his criticism is equally applicable to Willems and, indeed, to the other significant treatment, that of Schulz 1997. Explicitly rejecting Mommsen’s account: Willems 1883, 2.578–79; Brennan 2000, 396. Hurlet 2010, 51: “Il est nécessaire de ne plus se laisser influencer directement ou indirectement par le schéma mommsénien, qu’il faut se résoudre à abandoner dans sa globalité. Il faut donc reprendre le problème du gouvernement des provinces de rang prétorien à la base, c’est-à-dire à partir d’une enquête qui se fonde sur un examen des sources indépendamment de tout système préétabli.” So Ferrary 2001, 104: “There is on the other hand an incontestable evolution in the allocation of provinces, which moreover began before Sulla, even if it appears more clearly (in part because we possess considerably more information) in the postsullan period.” [“Il y a en revanche une incontestable évolution dans l’attribution des provinces, qui a d’ailleurs commencé avant Sylla, même si elle apparaît plus clairement (en partie parce que nous possédons un nombre beaucoup plus considérable d’informations) dans la période postsyllanienne.”]

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sular elections, the resulting SC de provinciis consularibus was to be immune from tribunician veto. In a comprehensive study, Vervaet has argued that the law did not positively order the Senate to decree the provinces before the elections, nor did it prevent that body from subsequently altering its decision. Rather, the law established that the tribunes could not veto any decree passed before the elections.12 Apart from its basis in the evidence, this position makes sense: the lex Sempronia created a permanent condition, rather than ordering a single action, and so it could not reasonably order recurring action by the Senate, but only prevent certain actions (such as tribunician vetoes) under certain conditions. Ferrary has subsequently questioned whether the law had the precise scope that Vervaet suggests, arguing that, while the Senate did indeed revise the consular provinces on several occasions in the late Republic, there is no proof that it ever forewent decreeing them before the consular elections.13 However, this does not significantly affect Vervaet’s position. In any event, the lex Sempronia provided an incentive for the Senate to decide consular provinces before the elections. Subsequently, this became normal practice. The lex Sempronia does not seem to have been an anti-senatorial law: indeed, it limited tribunician veto and enshrined senatorial control of provincial allocation.14 Modern scholars normally interpret it as a measure for good government, by removing the influence of the consuls in the debate on their provinces.15 Livy’s narrative has several examples of consuls attempting to sway the debate on the consular provinces for their own reasons and without a view to the greater good of the res publica.16 It could be difficult to resist the influence of a sitting consul. More interesting is the clear implication of the lex Sempronia that there was now a meaningful difference between consular and praetorian provinces. C. Gracchus’s law made no reference to the praetorian provinces and, as Cicero was later to note (Prov. Cons. 17), the tribunes could veto the decree de provinciis praetoriis irrespective of when it was passed. Why make this distinction? Why did Gracchus not extend this tribunician ban to praetorian provinces as well? It may be that only consuls had attempted to sway the Senate in the past and so Gracchus was simply fixing a known problem. This suggestion adds support to Drogula’s argument that, by the second century, there was a fixed roster of praetorian (territorial) provinces and so no scope for praetorian manoeuvring.17 But whatever the reasoning, this distinction between consular and praetorian provinces led, via the lex Sempronia, to different processes for assigning each.18 12 13 14 15 16 17 18

Vervaet 2006, 632–42. Ferrary 2010, 40. Schulz 1997, 42 denies that the law had any political effect. See the references collected by Vervaet 2006, 650 n. 87, to which may be added Ferrary 2010, 40. Collected by Vervaet 2006, 630–32 and Drogula 2015, 298 n. 4. Drogula 2015, 232–94. Brennan 2000, 241 suggests the lex Sempronia was a tradeoff to allow C. Gracchus to create a new urban praetorian provincia. This is entirely possible, although to my mind Brennan overstates the administrative crisis of the 100s and 90s through an unwillingness to believe that (what he calls) ex praetura commands had already become a general part of the system.

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2.2 SECONDARY PRAETORIAN PROVINCES In this section I aim to demonstrate how what Brennan calls ex praetura commands became a central feature of the provincial system between 122 and 81, as the growth of the quaestio system ensured more praetors were needed in the City. Rather than Brennan’s phrase, I prefer the term “secondary praetorian provinciae.” Brennan uses “ex praetura” (a term found reasonably often in late republican sources) for a praetor receiving a second, territorial, provincia after having held an urban provincia during his magistracy. For Brennan, ex has the force of post; that is, it denotes a command held after the praetorship. At various places he uses the forms ex praetura, ex magistratu and even ex consulatu.19 This is in keeping with Livy’s use of the term, which usually refers to actions after a magistracy.20 However, I follow Giovannini in understanding ex to mean “arising from;” Hurlet describes it as introducing a causal link.21 Hurlet indeed criticises Brennan for a muddled and inconsistent position: Brennan provides ample testimony to the many occasions on which praetors left Rome during their praetorships to take up (secondary) territorial provinces, yet he also accepts le schéma mommsénien which declares this impossible. The distinction between praetors who left Rome late in their magistracy and those who left after its end might seem unimportant. Yet as Hurlet rightly emphasises, this distinction embodies vital constitutional issues. Only as a magistrate could a praetorian imperator depart Rome while still possessing imperium and auspicium, and so be permitted to hold the military auspices. If a prospective imperator found himself still intra pomerium at the expiration of his magistracy, then he would need to be specially authorised to hold imperium (and take the auspices) by a lex, as was the case with the imperators appointed under the lex Pompeia.22 But the larger issue is that of the connection between magistracy and promagistracy. Provincial government in the late Republic did not follow after the magistracy as some sort of additional office, which is how Mommsen and his followers have imagined it. Rather, it was intrinsic 19 20 21

Hurlet 2010, 51 and 56 n. 45; cf. Brennan 2000, 27, 242–43, 394–96, 557. For example, Livy 4.31.1, 27.34.3, 40.1.7, 40.25.1. Giovannini 1983, 79. Hurlet 2010, 56: “Cette preposition a pour fonction d’introduite un lien de causalité et doit être en conséquence traduite en français par le préposition ‘en vertu de’ ou ‘à partir de’. Son emploi pour ex praetura signifie que le gouvernement provincial ainsi désigné découle de l’exercice de la préture.” Cf. Hantos 1988, 100, who entirely agrees with Giovannini. Only once in Cicero is ex praetura used in the sense of “after a praetorship” as opposed to during one: at Cic. Att. 15.11.1, when Cicero reports he has advised the current praetor M. Brutus atque ut omnino neque nunc neque ex praetura in provinciam ires. More often it is clearly contrasted with ex consulatu; that is, it points to an action or province arising from a person’s praetorship rather than their consulship. See, for example, Cic. Mur. 15 (cum amplissime atque honestissime ex praetura triumphasset), Leg. 1.53 (quom pro consule ex praetura in Graeciam venisset), and Caes. BCiv. 1.22.4 (quod provinciam Hispaniam ex praetura habuerat). Most often, however, in late-republican and imperial writers (other than Livy), the force of ex is not clear (e. g. Cic. Brut. 318; Caes. BCiv. 1.31.3; Vell. Pat. 2.31.1; Asc. 18C, 85C; Suet. Iul. 71, Aug. 3). 22 On the constitutional importance of this, see more detailed discussion in sections 1.3.1 and 8.1.2.

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to the magistracy itself, and the imperium held by all provincial governors was derived from their magistracy. Praetors underwent a double sortitio for defining their praetorian responsibilities, and departed Rome paludatus to take up their secondary provinciae while still magistrates.23 2.2.1 Quaestiones perpetuae from 122 The first quaestio perpetua (de repetundis) was created by a lex Calpurnia in 149.24 In (probably) 122, it was remodelled by C. Gracchus and was for the first time made a praetorian provincia, the first urban praetorian provincia created in more than a century. This Gracchan law survives in large part on the Tabula Bembina.25 The history of the repetundae court is relatively secure from that date on: it appears that the president was always a praetor, and we do not see multiple repetundae courts running in parallel (as did happen, for instance, with the quaestio de sicariis on at least one occasion). The Gracchan repetundae law assigned the initial creation of the jury list to the praetor peregrinus, but in subsequent years the court was to be supervised by a new praetor repetundis. This has been doubted, but the arguments of Crawford and Brennan are persuasive.26 Much about the quaestio system is unclear, but our attention here is focused on when the quaestiones perpetuae became praetorian provinciae. It is likely that, as Cloud argues (contra Jones), multiple quaestiones had been established by the time of C. Gracchus, but that does not necessarily mean that these other courts formed separate praetorian provinciae from the start. Cloud’s argument is based on the unambiguous text of Cic. Brut. 106, which tells us that more quaestiones perpetuae were created during the life of C. Papirius Carbo (d. 119):27 On the double sortitio, see below, section 4.2. There are many modern accounts of the history and development of the quaestio system. See for instance Kunkel 1962, Jones 1972, ch. 2 and Cloud 1992, 505–30. For the political background see Gruen 1968 and Gruen 1995 (especially chs. 6–8). Several additional discussions are cited by Drogula 2015, 280 n. 137. 25 See Crawford 1996, 39–112 for text, translation and a summary of earlier discussions. The law in question has often been identified as the lex Acilia mentioned in Cicero, but in the past halfcentury that identification has been doubted. I follow Cloud, Ferrary and others in simply accepting the epigraphic law of the Tabula Bembina as a lex repetundarum of the Gracchan era. That the court established by L. Calpurnius Piso in 149 was not made a new praetorian provincia is clear from the fact that the Gracchan law made no reference to such a provincia; so Jones 1972, 48. 26 Brennan 2000, 351 n. 116. The text of the law (in Crawford 1996, 65–94 including apparatus and translation) makes a clear distinction between the praetor peregrinus who is to create the jury list within ten days from the passage of the law (l. 12) and the new praetor “who shall investigate according to this statute” in later years (e. g. ll. 26, 28, 72). This praetor is to be distinguished from the iudex who might preside at the actual trial (ll. 61–4): see commentary by Crawford at p. 100, cf. p. 107. The phrase praetor repetundis never appears in this statute, and nor is the court referred to as a provincia. However, the elogium of C. Claudius Pulcher (pr. 95) refers to him as having been praetor repetundis (see Brennan 2000, 351 n. 117 and 769 n. 61): InscrIt 13.3.70. On the repetundae court as a provincia, see below. 27 Loeb translation, slightly modified; Cloud 1992, 505–06, contra Jones 1972, 54–55. 23 24

2.2 Secondary praetorian provinces

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Hic optimus illis temporibus est patronus habitus eoque forum tenente plura fieri iudicia coeperunt. nam et quaestiones perpetuae hoc adulescente constitutae sunt, quae antea nullae fuerunt; L. enim Piso tribunus plebis legem primus de pecuniis repetundis Censorino et Manilio consulibus tulit. He was accounted the best advocate of his time. During his supremacy in the forum there was a marked increase in the number of cases coming to trial. This was due in part to the establishment in his youth of the standing courts for criminal cases, which had not existed before; – for it was Lucius Piso who as tribune of the people first passed the law of procedure in cases of maladministration and extortion, in the consulship of Censorinus and Manilius.

Which quaestiones could these be? Cloud suggests the quaestio ambitus, on the plausible grounds that the legislation passed on this topic earlier in the century suggests a continuing concern. We also know that C. Marius was acquitted of ambitus in a quaestio trial in 116, and there are three other (seemingly unconnected) ambitus trials recorded in the same year, which points to an ongoing court. So the quaestio ambitus existed by 116 at the latest and it is plausible that it had been created a couple of decades earlier. If this is correct, as Cloud believes, then it is possible that the quaestio ambitus was a praetorian provincia by 116.28 The accumulation of evidence suggests that the Gracchan repetundae law served as a model in establishing praetorian presidency of the permanent courts. Other plausible candidates for early quaestiones are the quaestio de veneficiis, based on the aristocratic poisonings in 152, and conceivably the quaestio de sicariis, although this is more contested. There certainly was such a court before Sulla, because it is mentioned by Cicero (Inv. 2.59–60).29 Cloud makes a very tentative case for L. Cassius Longinus presiding over such a court, but no weight can be placed upon the passages he discusses; the most that can be said is that they do not rule out the court being a quaestio perpetua.30 The case of Q. Fabius Maximus, convicted in an assembly trial c. 103 of murdering his own son (Oros. 5.16.8), does not count against the existence of the quaestio de sicariis at that date: as Jones emphasises, sicarii were professional killers rather than simply murderers (although the court later evolved into something closer to a simple murder court) and Fabius’s crime may well not have fallen within the purview of the relevant statute prior to Sulla’s law.31 Sulla combined the two courts into one quaestio de sicariis et veneficiis, which demonstrates that they previously had been separate entities. This is reinforced by the elogium of C. Claudius Pulcher (pr. 95), which records his service as iudex quaestionis veneficiis.32 This indicates that by c. 100, the poisoning court was a separate entity, and perhaps sometimes a (praetorian) provincia by itself. 28

Cloud 1992, 515–16. Jones 1972, 56 thinks that the trials of 116 were the work of a special commission (similar to that set up by the lex Mamilia in 109), and that the first permanent quaestio ambitus was created by Sulla. While this is not impossible, the trial of M. Antonius for ambitus in 97 or 96 (Alexander 1990 no. 83) is additional support for the trials of 116 having taken place in a quaestio perpetua. 29 Cf. Jones 1972, 55. 30 Cloud 1992, 521–22; contra Jones 1972, 55. The sources are Asc. 45C and Auct. ad Her. 4.47. 31 Jones 1972, 56. 32 InscrIt 13.3.70.

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A permanent quaestio de maiestate was created by L. Appuleius Saturninus in either 103 or 100; here at least we have a secure date, and a court which probably formed a praetorian provincia from the start.33 Lastly, a quaestio peculatus certainly existed by 86 or 85, as the young Pompeius was prosecuted in it with the iudex quaestionis P. Antistius presiding.34 By the beginning of Sulla’s dictatorship there existed, therefore, six quaestiones perpetuae: repetundae, maiestas, ambitus, peculatus, inter sicarios and de veneficiis.35 The existence of these courts, each of which required a president (who would both chair the court and before whom charges could be laid), placed enormous pressure on Rome’s reserves of senior magistrates. One way to relieve this pressure was by using the iudex quaestionis, described by Greenidge as a “quasi-magisterial position.”36 It is first attested c. 98, when C. Claudius Pulcher (aed. 99) is described as iudex quaestionis veneficiis in his elogium.37 Two further iudices quaestionis are known before Sulla’s dictatorship: P. Antistius in 86 and M. Fannius (who chaired the quaestio de sicariis both as iudex quaestionis, perhaps in 85, and then as praetor in 80).38 After Sulla, we see the office invariably being held immediately after the aedileship and this is generally supposed to have been true from the beginning; C. Claudius Pulcher’s tenure of the office is noted in his elogium between his aedileship and praetorship. The office was used as a replacement or adjunct to the praetorship in order to provide more presidents of quaestiones. We do not know whether iudices quaestionis were elected or appointed: Mommsen supposes the office to follow as a matter of course after the aedileship, but Greenidge is unsure.39 Brennan is similarly uncertain, but suggests that iudices quaestionis were appointed by the praetor urbanus.40 Similarly, we do 33 34 35

36 37 38 39 40

See Broughton 1951, 1.563. Alexander 1990, no. 120. One trial which bears upon this question is that of C. Carbo (cos. 120) in 119, under the (praetorian) presidency of Q. Fabius Maximus Eburnus (Alexander 1990, no. 30). It is impossible to ascertain in which quaestio Carbo was tried, as all arguments depend on assumptions about the number of quaestiones perpetuae existing at the time. The nature of the trial is little help: as Gruen has shown (Gruen 1968, 107–11), the trial was likely a political attack on a vulnerable politician in the wake of C. Gracchus’s death, and it was in the nature of Roman trials that a great deal of irrelevant material was brought in to blacken the defendant (in this case, his alleged involvement in the death of Scipio Aemilianus). Both Gruen and Alexander believe he was tried for repetundae. Brennan refuses to take a position, but makes a telling point: that Carbo chose suicide in the wake of his conviction suggests the charge was capital (Brennan 2000, 368). This is not certain: if we accept the political reading offered by Gruen, any conviction may have meant Carbo’s political destruction, rendering his suicide unsurprising. Yet repetundae was not then a capital crime: the Gracchan law only stipulated a penalty of double restitution of the amount at issue. No possible solution is convincing given the state of our evidence, so I prefer to leave the question open. Greenidge 1901, 517. InscrIt 13.3.70. Brennan 2000, 771 nn. 74 and 75. Mommsen 1878, 2.590; Greenidge 1901, 433. See the discussions by Greenidge 1901, 431–33 and Brennan 2000, 368–69 (with notes). The appointment of iudices was normally a magisterial prerogative: see Crawford 1996 no. 12, Cnidos copy, col. IV, ll. 31–39.

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not know when the office was introduced. Although C. Claudius Pulcher is the first attested, Greenidge implies that the language of the Gracchan repetundae law (which refers to he “who shall investigate according to this statute,” and not specifically to a praetor) suggests someone other than a praetor might preside over this court. If accepted, this would bring the origin of the office potentially back to the 120 s.41 However, no iudex quaestionis is ever known to have presided over the repetundae court, which renders this conclusion unlikely. Indeed, iudices quaestionis are only ever attested in control of the courts de sicariis et veneficiis, peculatus, and later of the quaestio de vi. The reasons for this need not be considered here. 2.2.2 The urban praetorian provinciae Greenidge has shown that the presidency of a quaestio perpetua was a provincia which was normally held by a praetor.42 However, the evidence he adduces is entirely post-Sullan. Brennan does discuss the pre-Sullan situation briefly, although he admits that the evidence is “not plentiful.”43 While we are occasionally informed about praetors (named or unnamed) presiding over quaestiones perpetuae, only the elogium of C. Claudius Pulcher provides useful information. Claudius is named as praetor repetundis, which clearly refers to a provincia. Nor is it explicitly attested in this period that quaestiones were assigned by means of sortitio. This is attested in the post-Sullan period and reference to sortitio was certainly included in the lex Cornelia de sicariis et veneficiis, but sortitio had been the normal method of distributing praetorian provinciae since at least the Hannibalic War and we should regard it as being used in the absence of any indication to the contrary.44 An aim of this chapter is to show that, by the nineties, the number of praetorian provinciae had grown to the point where it was almost impossible for any praetors to be spared for (territorial) provincial government. An obvious objection to this thesis is the idea that urban provinciae could be combined and this objection needs to be met. Yet there are very few instances of this practice occurring. We have an inscription which records L. Cornelius Sisenna (pr. 78) holding the provincia urbana and provincia peregrina in May 78.45 There is no obvious reason for this: Damon and Mackay speculate that Sulla’s expansion of the quaestio system led to a shortage of praetors, but Brennan has objected to this, cogently asking how likely it was that the Senate would combine these two provinciae to supply a president for e. g. the quaestio de sicariis et veneficiis.46 He thinks it was rather more likely that events outside Rome (such as the revolt of Faesulae) had called away the praetor

41 42 43 44 45 46

Greenidge 1901, 431 and n. 5. Greenidge 1901, 428–33. Brennan 2000, 367–68 (quote is from 367). E. g. Cic. Mur. 42: quid tua sors? tristis, atrox, quaestio peculatus. Cf. Mos. Col. 1.3.1. Sherk 1969 no. 22. Damon and Mackay 1995, 52 n. 65. They appeal to the precedent of Sisenna to support their suggestion that M. Lucullus held both provinciae in 76; Brennan 2000, 444–45.

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who had originally received the provincia peregrina, and consequently that Sisenna only held the provincia as a stand-in for part of the year.47 While it was common to combine the urban and peregrine jurisdictions during the Hannibalic War, Sisenna is the sole known instance of this practice between 184 and the end of the Republic.48 It would be tempting to conclude that this meant the practice was rare, but there is only one occasion during the period 146–122 when we can be certain the provinciae were not combined (Cn. Cornelius Scipio Hispanus in 139), while we do not know the name of any praetor peregrinus after 76.49 We could just as easily conclude that the practice was common. The truth is that we simply do not know. The conclusion (tentatively) adopted here is that, while the provincia urbana and provincia peregrina may have been combined when an emergency arose requiring an extra praetorian commander in the field, it was not resorted to as a normal part of the administrative system. That is, it is assumed that in each year a praetor urbanus and a praetor peregrinus were chosen, even if circumstances later required one of them outside Rome. During the fifties, we have evidence for a slightly different practice: that of praetors operating across multiple courts. This is not the same as combining provinciae. For instance, both Cn. Domitius Calvinus and M. Aemilius Scaurus heard cases de vi in 56, while Domitius was also president of the ambitus court (Cic. Cael. 32, Sest. 101, 116, QFr. 2.3.6). Greenidge interprets this as a sign that the quaestiones were not rigidly assigned, but rather there was a certain fluidity from year to year and perhaps also within years regarding which praetor could preside over which court. Yet there is also evidence from the post-Sullan period that charges under a particular law could only be laid before one praetor (Cic. Clu. 148). A solution to this lies beyond my scope, but the problem does not affect the conclusions offered here about the pre-Social War period. By now we can see the scale of the problem which confronted Rome by 91. Each year six praetors were elected. From them had to be chosen a praetor urbanus, a praetor peregrinus and presidents for (at least) the repetundae, maiestas and ambitus courts. That is, five of the six praetors were accounted for by urban provinciae. And this is a minimum figure: it assumes that there was as yet no peculatus court, and that the quaestio sicariis and quaestio veneficiis were each year presided over by a iudex quaestionis, which was probably not the case. In many or most years, it is likely that all six praetors would need to be retained in Rome for the duration of their magistracy. This is a relatively simple conclusion, which has generally not been noticed in the literature. Badian did note this state of affairs in passing but did not seek an

Sherwin-White 1972, 86–87 believes that combination of city provinciae must have been common, particularly after 105, citing Rome’s heavy administrative burden. He suggests that the provincia peregrina and the repetundae court may frequently have been combined. While this is certainly not impossible, it seems to me unlikely; certainly C. Claudius served only as praetor repetundis. 48 Brennan 2000, 242. 49 Brennan 2000, 242, 590.

47

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57

explanation.50 Brennan treats at length Rome’s growing administrative burden, but looks elsewhere for explanations. So, for instance he asks:51 One wonders how many senators of the later second and early first centuries thought or cared about the larger questions of imperial administration: it is hard to fathom how they thought the Roman system could take on those extra permanent responsibilities while leaving the number of magistrates untouched.

Yet he leaps to the wrong conclusion: “in the era 122–91, the Senate used prorogation as a panacea for its ailing administrative system.”52 But praetors could not be prorogued in urban assignments and so prorogation could have no relevance to solving this particular problem (although it was of course essential in territorial provinces: see below). Brennan’s focus on praetors as territorial governors and military commanders seems to have prevented him seeing the problem of finding enough praetors to staff the urban assignments. There are many implications which flow from this deduction, some of which I explore elswhere in this book. But the principal conclusion is this: if by the nineties Rome could not spare any praetors to govern territorial provinciae during their magistracy, then new governors could only come from praetors who had already held one of the urban provinciae and who were subsequently prorogued and sent to a territorial province. 2.2.3 Attested secondary praetorian provinciae, 122–91 The earliest known recipient of a secondary praetorian provincia is C. Marius who, after holding one of the urban provinciae as praetor in 115, was prorogued and sent to Hispania Ulterior. The evidence is from Plutarch’s biography: after detailing Marius’s difficult election to the praetorship and his narrow escape from an ambitus conviction, Plutarch summarises his actual tenure of the office: Ἐν μὲν οὖν τῇ στρατηγίᾳ μετρίως ἐπαινούμενον ἑαυτὸν παρέσχε. μετὰ δὲ τὴν στρατηγίαν κλήρῳ λαβὼν τὴν ἐκτὸς Ἰβηρίαν, λέγεται καθᾶραι λῃστηρίων τὴν ἐπαρχίαν, ἀνήμερον οὖσαν ἔτι τοῖς ἐθισμοῖς καὶ θηριώδη, καὶ τὸ λῃστεύειν οὔπω τότε τῶν Ἰβήρων οὐχὶ κάλλιστον ἡγουμένων. Well, then, for his praetorship Marius got only moderate commendation. After his praetorship, however, the province of Farther Spain was allotted to him, and here he is said to have cleared away the robbers, although the province was still uncivilized in its customs and in a savage state, and robbery was at that time still considered a most honourable occupation by the Spaniards. (Plut. Mar. 6.1)

Plutarch’s record of Marius’s secondary province has been doubted, but is now generally accepted.53 While Marius is the first attested example of such a practice, this is probably a matter of chance: provincial government (even in Hispania Ulte50 51 52 53

Badian 1979, 794. Brennan 2000, 583. Brennan 2000, 583. Brennan is not referring to secondary praetorian provinciae here. Broughton 1948a, 328 n. 31; Badian 1979, 794; Richardson 1986, 192; Brennan 2000, 498, 846 n. 200.

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rior) could be a lucrative opportunity, while everything the sources tell us about Marius at the time of his praetorship suggests his political influence was small. He is thus unlikely to have received a special political favour. Moreover, Plutarch presents this as a routine appointment. C. Marius was not alone in this period in being prorogued from an urban provincia to a territorial one: there are more instances before the Social War. L. Licinius Lucullus held one of the city praetorships in 104 (Diod. 36.2.5) and was sent against the slaves in Sicily in 103 (Diod. 36.8.1). L. Sulla was praetor urbanus in 97 and was then prorogued to Cilicia, while C. Valerius Flaccus was (probably) praetor urbanus in 96 and then received Asia as a secondary provincia.54 In 94, C. Sentius was praetor urbanus and L. Gellius was praetor peregrinus; in 93 they were sent to Macedonia and either Asia or Cilicia respectively.55 There is one other candidate for a secondary praetorian assignment prior to the Social War: C. Iulius Caesar, the father of the dictator. This depends on Broughton’s reconstruction of one of Caesar’s elogia, which definitely names him as [pro]COS IN ASIA. Broughton restores the missing space before this, and after PR(aetor) (at the end of the previous line) with [inter cives et peregrinos], although he believes that some variation on repetundis might also fit.56 Thus, if we accept the restored text, Caesar was praetor peregrinus before taking up the proconsulship of Asia, and he should be added to the roster of praetors holding secondary provinciae. This brings the number of known cases to seven. On the other hand, there is very little testimony for praetors receiving territorial provinces at the beginning of their magistracies in this period. This is not unexpected, in view of the types of evidence we have, and is certainly not proof that it did not happen. After all, as Badian notes:57 We have virtually no evidence on the status of most earlier governors after C. Gracchus – the time when courts began to keep praetors busy in the city – since words like praetor (demonstrably) are used as often of a promagistrate (in our literary sense) as of a praetor in the technical sense.

There are two possible examples which are in the event not borne out by the evidence. Broughton, following Münzer, dates Cn. Cornelius Scipio’s refusal (as praetor) to take an Iberian command c. 109, but while this is plausible, it is not required by the text.58 Moreover, Valerius Maximus’s language (6.3.3b) does not require Scipio to be a praetor at the beginning of his magistracy. Sallust (Iug. 104.1) calls L. Bellienus “praetor” in Africa in 105, but he also refers to Marius as “consul” in the same passage, at a time when Marius was strictly proconsul; no weight should be placed on this regarding whether Bellienus was in his magisterial year. 54

Sulla: Badian 1964, 157–78. For Flaccus’s urban praetorship see Broughton 1951, 2.9. His tenure as proconsul in Asia is proved by an inscription at Claros (SEG 29.1129): see Ferrary 2000b, 334–37. 55 See Broughton 1951, 12, 15. Díaz Fernández 2015, 448–49 places Gellius in Asia. 56 Broughton 1948a, 328. The two elogia are InscrIt. 13.3.7 and 13.3.75. Broughton’s language in this article indicates he thinks secondary provinces were normal by this time. 57 Badian 1974, 422. 58 Broughton 1951, 1.546.

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2.3 CONCLUSION The evidence shows several examples in the generation before the Social War of praetors receiving a secondary, territorial provincia having already held an urban provincia as magistrate. This correlates with the growth of the system of quaestiones perpetuae which, as we have seen, kept praetors in office in Rome for the bulk of their magisterial year. It is clear, then, that this change in the way praetors were used was not born of Sulla’s dictatorship, but was already established. Sulla did raise the number of praetors to eight and did reform the system of quaestiones perpetuae by (among other things) creating or amalgamating courts. Yet these reforms made no impact on the need for all of the praetors each year to remain in Rome to preside over these courts, or for Rome to use many of those praetors after that year to govern its territorial provinces. This practice of praetors receiving two provinciae required a double sortitio (the implications of which are explored in Chapter 4). Similarly, the way consular provinces were allocated was changed by the lex Sempronia de provinciis consularibus and later (in the eighties) consuls also started departing for their provinces near the end of the year, a change which is examined in Chapter 6. The steps in the allocations process were becoming spread out. None of this was Sulla’s doing. And while the secondary praetorian provincia was a significant administrative innovation, it involved little constitutional change. That is, we must recognise what was not happening. Provincial government was not becoming a separate office, dissociated from the magistracy. This was never the case until (arguably) the lex Pompeia, because political office in Rome was inseparably bound up with the fact of popular election. In the Roman mind of the late Republic, secondary provinciae were still held by virtue of the magistracy. For instance, in 54, the consul Ap. Claudius Pulcher argued that if he left Rome to take over a province, then according to the lex Cornelia he would retain imperium until he re-entered the City (Cic. Fam. 1.9.25). We might mistakenly regard this as a Sullan innovation if the lex de provinciis praetoriis did not record much the same information: “if the praetor to whom the province of Asia or Macedonia shall have fallen abdicates from his magistracy … he is to have power in all matters according to his jurisdiction just as it existed in his magistracy.”59 And as Hurlet has noted, an imperator only retained imperium “as it existed in his magistracy” if he performed the necessary ceremonial departure (profectio) while actually a magistrate and remained extra pomerium beyond the expiration of his term.60 Otherwise he would require a new authorising lex. Therefore, from a constitutional and auspical point of view – that is, from a Roman point of view–there was very little difference between a praetor who proceeded to a

59 60

Crawford 1996 no. 12, Cnidos copy, col. IV, ll. 31–39. Translation by Vervaet 2012, 68 n. 101. See the detailed discussion of this passage in Appendix D. Hurlet 2010, 52–53 (concentrating on the legitimacy of the imperator’s auspices). However, there may have been exceptions to this rule in the late Republic: see below 6.2.2.

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provincia in the sphere militiae in the January of his magistracy or the December. What mattered was that he held lawful imperium and a properly allocated provincia.61

61

Cf. those early-republican examples of magistrates who campaigned, returned to Rome, triumphed, and then departed again on a second campaign, all within their magisterial year (Drogula 2015, 141).

CHAPTER 3 THE SENATE’S FLEXIBILITY The previous chapter detailed the increasing pressure on the Senate’s ability to manage the empire after 122; this chapter is about the flexibility it still retained for that purpose and deals with the period down to 52. The lex Sempronia meant that consular provinces should be chosen in advance. This might lead us to think the Senate was hamstrung in responding to crises (as non-urban praetorian provinciae were normally fixed and continuous, crises were less relevant to the praetors). But this was not the case: the Senate could always change the provincial arrangements if necessary. It could reassign imperators from one province to another and prorogue incumbent governors. But, as we shall see, such changes were not made only for strategic reasons. Internal politics could also decide who was prorogued or recalled. But if the late-republican Senate could be flexible, could its policy for managing the empire also be coherent? In Livy’s account (in books 21–45), we find a pool of imperium-holders, both magistrates and promagistrates, among whom the Senate allocated the decreed assignments. At the beginning of the consular year, the Senate decided what those tasks were to be: the consuls got the most important ones, with the remainder distributed among praetors and promagistrates. Such a coherent approach is not in evidence in the post-Sullan period. The logic of the situation made it impossible: early consular elections, consuls remaining in Rome for much of the year and the general use of secondary praetorian provinciae meant that consular and praetorian provinces were managed on different timelines. This is argued in detail in later chapters. We do not know if this incoherence was already the case in the years before the Social War; we have no evidence either way. But the structural situation was similar in both periods. The fact that the lex Sempronia applied only to the consular provinces is also suggestive: it shows that by 123, a consular provincia was thought to be fundamentally different to that given to a praetor. 3.1 THE DISTINCTION BETWEEN CONSULAR AND PRAETORIAN PROVINCIAE In Livy’s narrative, the consuls invariably receive Rome’s most important military assignments and are perceived as Rome’s senior military commanders. Throughout Hannibal’s stay in Italy, except during the dictatorships of 217–216, it was always a consul who was assigned to shadow him. Later, Livy neatly demonstrates the Roman understanding of what consuls were for, when he writes that in 184 “the Ligurians were decreed to the consuls, since there was war nowhere else” (39.28.1).1 1

Consulibus Ligures, quia bellum nusquam alibi erat, decreti.

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This was already true before the Hannibalic War, since “it seems that in each of the years 263 through 243 both consuls fought overseas.”2 Even if Rome’s senior magistrates were less militarily active from the mid second century on (as Rich and Cornell have argued), they were still publicly perceived as military commanders first and foremost.3 In his (fictionalised) speech against Pompeius’s pirate command, Catulus asks the Roman People why they should bother electing consuls and praetors if these men are not to fulfil the basic duty of their office by commanding armies (Cass. Dio 36.33.1–3). And Cicero, albeit tendentiously, claims that “it is generals, and not interpreters of words, who are elected at the consular comitia” (Mur. 38).4 But beyond a generalised expectation, it seems clear that consuls had a presumptive right to the most important military commands available, and that it was quite unusual for this to be denied. This can be observed in Livy’s narrative: P. Scipio’s friends had to work very hard in 202 and 201 to retain for him the command in Africa against the claims of the consuls (Livy 30.27.1–3, 30.40.7–41.9). Similarly, the Senate insisted on annual rotations of command for most of the wars in Greece and Asia in the early second century (Flamininus’s command being an exception), despite the obviously negative effects of this policy on the behaviour of the commanders in the field. Cicero asks rhetorically (of Pompeius being sent against Sertorius in 77), “what so unprecedented as that, though there were available two distinguished and valiant consuls, a Roman eques should be sent pro consule to a great and perilous war?” (Leg. Man. 62).5 But this expectation can be most dramatically observed in 88. Mithridates’ activity meant that Asia was one of the consular provinces for that year, and the consul L. Cornelius Sulla received it in the sortitio (Vell. Pat. 2.18.3: Sorte obvenit Sullae Asia provincia). So P. Sulpicius’s law to give that provincia to the aged privatus C. Marius was:6 A procedure for which there was no precedent at the time and that was arguably illegal, as Diodorus happens to call it. Scholars sometimes cite as a precedent the transfer of the Numidian command to Marius in 107, but this is a false analogy that misses the central point. By the lex Manlia of 107 a sitting consul had been given command of the most important war then underway at the expense of a proconsul, thus from a traditional perspective receiving exactly his due; in 88, however, a sitting consul was deprived of the major command already entrusted to him to the advantage of a privatus who held no official position whatsoever. Sulpicius’s plebiscite can therefore be seen, and surely was in fact seen by Sulla and many in his army, as a direct offense against the traditional prerogative of the consulship and its war-making role, which the lex Manlia had actually reaffirmed.

As Meier also recognises, it was highly unusual to re-assign a provincia before its holder had even left Rome, but to remove a consul from the command and replace 2 3 4 5 6

Brennan 2000, 79. Demilitarisation: Rich 1993, 47–53; Cornell 1993, 154–60; cf. Blösel 2016, 80–81. Imperatores enim comitiis consularibus, non verborum interpretes deliguntur. Loeb translation, slightly modified: Quid tam inusitatum quam ut, cum duo consules clarissimi fortissimique essent, eques Romanus ad bellum maximum formidolosissimumque pro consule mitteretur? Morstein-Marx 2011, 263.

3.1 The distinction between consular and praetorian provinciae

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him with a private citizen was wholly contrary to mos maiorum.7 If there was a war on offer, tradition dictated it should go to a consul. Some scholars have suggested the lex Sempronia made it more difficult to assign to the consuls any war which might break out suddenly and unexpectedly.8 But the nature of Rome’s empire from the mid-second century–an ongoing entity to be managed more than a field of potential conquest – meant this was not a serious problem. Rome was less often at war, and those wars were proportionately less serious (with a few obvious exceptions).9 While unexpected war might seem to be a problem, in practice it was not: Rome’s major wars in the late Republic were normally seen coming. The Cimbri were recurrently the objects of consular campaigns; Mithridates’ attack in 89 resulted in Asia being declared a consular provincia for 88; even the Third Mithridatic War probably began with two consular armies already in Anatolia. Moreover, as I argue below (following Vervaet), the Senate was able to respond to crises, by reassigning provinces. Drogula provides a different answer, suggesting the Senate hedged against the possibility of crises after the lex Sempronia. Since the Senate could not foresee so far ahead of time where the empire’s trouble spots might be, he argues, consuls were much more often assigned territorial provinciae which might be the launching pads for aggressive wars, rather than the task-based provinciae which are more common in Livy’s narrative.10 However, the lex Sempronia did not mean the Senate was deciding consular provinces very much earlier (at least as long as the elections continued to be held late in the year) and I think Drogula misdates this change and so mistakes its cause.11 The decreased frequency of task-based provinciae after the Macedonian wars has other origins. Put simply, Rome’s wars in this later period were much more defensive than they had been in the early second century. Large consular wars were in defence of existing provinces (as in Macedonia) or of Italy itself (to the extent that Transalpine Gaul is regularly assigned as a provincia in the last decade of the second century), with the obvious exception of the Jugurthine War – although even here, the consular provincia of Numidia included Africa as a staging post. So while consuls were, like praetors, still normally decreed territorial provinces in our period, these were the territorial provinces which carried the greatest military risk and the greatest opportunity for glory.

7 8 9 10 11

Meier 1980, 139–40. Balsdon 1939a, 64–65; Steel 2012, 91; Drogula 2015, 299. Rich 1993, 47–53. Drogula 2015, 299–302. Drogula compares the incidence of territorial consular provinciae in the periods 200–124 and 122–53 and finds many more in the later period. To my mind the more useful starting date would be 166, following the conclusion of the Macedonian wars. Moreover, since his argument is that after 123 the Senate tended to send the consuls to territory which Rome permanently defended and where campaigning was possible (and thus discretionary) but not certain, he should count Italy as a territorial (or in his terms, permanent) provincia, which would rather alter the figures.

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3.2 EMERGENCY RE-ASSIGNMENT On those occasions when Rome really was confronted by a military emergency – which in the post-Sullan period was most often within Italy (and thus a situation which, in any event, would not have figured in the debate de provinciis) – the Senate was able to respond quickly. It is important to remember that the lex Sempronia did not detract from the Senate’s capacity to reassign the consular provinciae later if it was deemed necessary. However, because provincial re-assignments after the elections were vulnerable to veto, such re-assignments had to be demonstrably in the national interest, as Cicero argued that Marius’s Gallic provincia was at Prov. Cons. 19.12 We have four certain and two probable examples in our period of the consular provinciae being reassigned by the Senate due to a military emergency (those occasions when a consular province was assigned by plebiscite are outside our scope). The certain examples are the years 78, 74, 63 and 60, with the probable examples being 77 and 72.13 The consuls of 78 were M. Lepidus and Q. Catulus. We know nothing of Catulus’s original provincia. Appian tells us that Lepidus was assigned the provincia of Transalpine Gaul by lot: this reference to allotment could only mean that Transalpine Gaul was the provincia assigned to him in the regular sortitio at the beginning of the year (App. BCiv. 1.107).14 Some time later, the town of Faesulae in Etruria expelled its Sullan veteran colonists with violence. As a result both consuls were decreed the new (joint) provincia of Etruria, with each being given an army. Both Sallust and Granius Licinianus agree that the assignment of armies and the consuls’ departure for Etruria were the result of a decree of the Senate.15 In 74, L. Lucullus had been allotted Cisalpine Gaul at the beginning of the year, so clearly the province had been decreed according to the lex Sempronia (Plut. Luc. 5.1). M. Cotta was eventually sent to Bithynia, although we do not know if it was his original provincia.16 But when news of the death of L. Octavius (cos. 75, now proconsul in Cilicia) reached Rome, Lucullus managed to have himself transferred to that now-vacant provincia, and eventually he also received Asia (although perhaps not during his consulship) and the war against Mithridates. Plutarch’s account makes it clear that it was the Senate which ordered the reassignment, something we would have expected in any case (Plut. Luc. 5–6; cf. Cic. Mur. 33). In 64, the Senate chose Cisalpine Gaul and Macedonia as the consular provinciae for the following year, but C. Antonius was assigned the command against Catiline in October or November 63, while Cicero was given the task of protecting the city (Sall. 12 13 14 15

16

Cf. Vervaet 2006, 642–7. See briefly on these Schulz 1997, 59–62. For a more detailed discussion see Appendix A3 and Rafferty 2017, 160–62. Sall. Hist. 1.66 Maur = 1.58 McGushin: Uti Lepidus et Catulus decretis exercitibus maturrime proficiscerentur; Gran. Lic. 36.44 Criniti: Et consules dato … in Etruriam profecti sunt … sed quom arma eodem comportarentur. This is stronger evidence as Granius Licinianus makes it clear that, although he has read Sallust, he has a low opinion of him as a factual historian. Cobban 1935, 109–10 argues that it was.

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Cat. 36.3).17 We do not know the provinciae assigned to the consuls of 60 under the lex Sempronia, and there is no reason why they should not have been decreed in 61. But in March 60, the threatened migration of the Helvetii meant a reassessment: Senatus decrevit, ut consules duas Gallias sortirentur, dilectus haberetur, vacationes ne valerent, legati cum auctoritate mitterentur, qui adirent Galliae civitates darentque operam, ne eae se cum Helvetiis coniungerent. The Senate has decreed that the Consuls should cast lots for the two Gauls, that a levy should be held with all exemptions cancelled, and ambassadors with full powers sent to visit the Gallic communities to stop them making common cause with the Helvetii. (Cic. Att. 1.19.2)

So much for the certain cases. But there are two further probable cases when a change in the military situation meant that the Senate altered the consular provinciae. The year 77 opened with no consuls having been elected: M. Lepidus, who had been ordered by the Senate to hold the elections, had refused to return to Rome. Perhaps no consular provinces had been decreed either. The situation in late 78 – when both consuls were sitting in Etruria with armies which they had shown a willingness to use against each other – meant that if consular provinciae for 77 were decreed, they would probably have been Italian. However, the situation altered after Lepidus was crushed, as Manlius’s defeat by Sertorius in Hispania Citerior now required a response.18 The command against Sertorius was offered to both consuls, but they refused (Cic. Leg. Man. 62, Phil. 11.18). Presumably this means that a single provincia was separately turned down by each man, rather than a joint provincia being created for both consuls. Thus, it is possible that in this instance the provinciae decretae were altered by the Senate due to a changed military situation in Italy and in the Iberian peninsula. The second possible alteration to consular provinces occurred in 72, when both Cn. Lentulus and L. Gellius were assigned the war against Spartacus as their provincia. The relevant text is from Plutarch: Оὐκέτ’ οὖν τὸ παρ’ ἀξίαν καὶ τὸ αἰσχρὸν ἠνώχλει τῆς ἀποστάσεως τὴν σύγκλητον, ἀλλ’ ἤδη διὰ φόβον καὶ κίνδυνον ὡς πρὸς ἕνα τῶν δυσκολωτάτων πολέμων καὶ μεγίνον ὡς πρὸς ἕνα τῶν δυσκολωτάτων πολέμων καὶ μεγί στων ἅμ’ ἀμφοτέρους ἐξέπεμπον τοὺς ὑπάτους. It was now no longer the indignity and disgrace of the revolt that harassed the Senate, but they were constrained by their fear and peril to send both consuls into the field, as they would to a war of the utmost difficulty and magnitude. (Crass. 9.6)

This strongly suggests that the war had not been the consuls’ original provincia, but that Spartacus’s repeated defeats of junior commanders forced the Senate’s hand. We do not, however, know what the provinciae decreed under the lex Sempronia might have been: one may have been Cisalpine Gaul.

It is uncertain whether we should term Cicero’s task a provincia in the technical sense; if so, it has implications for Drogula’s thesis regarding the nature of imperium and the senatus consultum ultimum (Drogula 2015, 121–25). Sallust does not use the word provincia here. Pompeius’s role in early 52 is comparable. 18 See Vervaet 2009, 413 for the chronology.

17

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We should note Plutarch’s phrasing here, that the Senate’s proper response to “a war of the utmost difficulty and magnitude” was assigning the consuls to wage it. The specific military emergencies which caused the reassignment of consular provinciae deserve our attention: what was the strategic situation in each case? In 78, 72 and 63, the Senate was faced by open revolt within Italy. The action of Faesulae in expelling the Sullan colonists may not have been a significant threat by itself, but the choice of Etruria as the consular provincia and Philippus’s statements in Sallust’s Histories demonstrate that the unrest was not seen to be confined to a single town but was much more widespread.19 Spartacus’s insurrection began in 73 and by the following year he had defeated two praetors and amassed a sizeable army; clearly, this was a serious threat to Roman Italy. In 63, as long as the unrest was confined to bandits like Manlius, it could be dealt with by unoccupied proconsuls such as Metellus Creticus and Marcius Rex and praetors such as Metellus Celer. But once Catiline put himself at the head of the rebels, Rome was again threatened by a significant armed uprising. The response, in both 72 and 63, was to put the consuls in command of the war. In each case, it is notable that both consuls were deployed: even in 63, when Antonius alone was sent after Catiline, Sallust is clear that Cicero was given the separate task of protecting the City. In 74, what provoked the change in a consular provincia was the death of the incumbent proconsul, in what was an important region at a sensitive time. Lucullus’s desire to be given a command in the East was no doubt another important factor. While the chronology of the Third Mithridatic War is a debated topic, it is likely that, by the early part of 74, the Senate thought war with the Pontic king was imminent.20 Considering Rome’s history with Mithridates over the previous twenty years, this was another situation where the presence of two consuls was necessary. The change in Lucullus’s provincia, which put both consuls in Anatolia, demonstrates how seriously the Romans took the Mithridatic threat. The situation in 77 was somewhat different. That Sertorius was seen as a serious problem is shown by the dispatch of Metellus Pius with a consular army in 80. But the defeats of Domitius Calvinus and Manlius in 79 and 78 showed that Metellus was unable to deal with the situation by himself.21 After the danger from Lepidus had passed, Sertorius was the prime threat to Roman power and so again a major response was necessary: the war in Hispania was offered to each consul. Nearly two decades later, it is somewhat easier to understand the panicked reaction to the Gallic scare in March 60 recorded in Cicero’s letter to Atticus. The threat of a Gallic invasion of Italy always provoked a panic: memories of the Cimbri and Teutones, not to mention the Allia, were never far from the surface. So we can see why the Senate found it necessary to alter the consular provinciae in times of emergency and they certainly always retained the capacity to do so. However, we need to consider the flow-on effects. What did the Senate need to rearrange to compensate for these changes? After all, the originally decreed provinces 19 20 21

Sall. Hist. 1.77.8 Maur = 1.67.8 McGushin: praeterea Etruria atque omnes reliquiae belli arrectae. Seager 1992, 213; Sherwin-White 1992, 233–34. On these defeats see Broughton 1951 under the relevant years.

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still needed governors. The evidence is ambiguous, although much seems to have depended on the desires of the consuls in question. For instance, L. Lucullus had been allotted Cisalpine Gaul at the beginning of 74, much to his chagrin. That provincia was currently held by C. Cotta, the consul of the previous year, who had only recently arrived.22 By the time Lucullus’s provincia was changed to Cilicia, he had made no move to take over Cisalpine Gaul, so it was easy for the Senate to prorogue C. Cotta for another year, during which he earned a triumph (Cic. Pis. 62; Asc. 14C). We should note, however, that the Senate then decided on Cisalpine Gaul as a consular provincia for the following year (Plut. Crass. 9.7), showing it felt C. Cotta did need to be replaced soon. But the alteration of Lucullus’s provincia did not cause extensive disruption: the incumbent in Cilicia was dead, while C. Cotta continued for another year in Cisalpine Gaul. The scale of Lucullus’s operations is a likely factor in C. Cotta’s prorogation; there was no possibility of Lucullus finishing his assignment in Cilicia in a timeframe which would allow him to take over Cisalpine Gaul. The situation in 63 was rather different. The consuls had arranged between themselves for C. Antonius to receive Macedonia. Yet in November, Catiline departed from Rome and assumed command of the rebel forces, which meant that Antonius was given the new provincia of defeating this insurgency.23 He had not yet taken up his post in Macedonia. The previous proconsul, L. Manlius Torquatus, had returned to Rome sometime in the second half of 63 and was definitely present in the Senate on the Nones of December (Cic. Pis. 44, Att. 12.21.1). Broughton has suggested that L. Plaetorius Cestianus was his replacement for late 63 and early 62, but this is based on tenuous evidence; in any case, the important point is that the provincia was not currently occupied by C. Antonius.24 Catiline was defeated and the rebellion suppressed in a decisive battle very early in 62 (Cass. Dio 37.39.1).25 Antonius then proceeded to Macedonia and took over that provincia. We see here a strong contrast with the case of L. Lucullus. For Lucullus, Cilicia was a replacement provincia for Cisalpine Gaul whereas, for Antonius, the Catilinarian war simply delayed him getting to Macedonia. Why the different outcome in each situation? Part of the explanation is surely one of time: Lucullus’s task in Cilicia and against Mithridates could be confidently expected to last several years, whereas a war in Italy against a ragtag army of bandits was likely to be short (as indeed it was), which freed Antonius to take up Macedonia afterwards. Another relevant point is the wishes of the two men: Lucullus was evidently annoyed at being given Cisalpine Gaul, whereas Antonius desperately wanted Macedonia.26 Yet the war against Catiline was concluded by 22 23 24 25 26

Sall. Hist. 2.45 Maur = 2.42 McGushin tells us both consuls of 75 were still in Rome shortly before the praetorian elections. Therefore, it is likely that C. Cotta only left Rome in the last few months of the year. There are many modern accounts of the Catilinarian war. For a useful narrative which clarifies the chronology, see Wiseman 1992b, 353–60. Broughton 1951, 2.169; cf. Syme 1955b, 129–30. Sumner 1963. Plut. Luc. 5.1; Cic. Pis. 5: ego Antonium conlegam cupidum provinciae, multa in re publica molientem patientia atque obsequio meo mitigavi.

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Antonius as proconsul, not as consul; Livy Per. 103 is clear on this. Our sources suggest that Antonius proceeded directly to Macedonia after his defeat of Catiline, and did not remain to settle the situation (Obseq. 61a).27 It is interesting to speculate whether Antonius was initially authorised to proceed to Macedonia once the Catilinarians were defeated. We are not informed but, if so, the special mandate of C. Octavius to help Thurii on his way to Macedonia two years later is comparable (Suet. Aug. 3.1). We will examine one last case of the reassignment of a consular provincia, which is more debatable. In July 61, Cicero wrote to Atticus (Att. 1.16.8): Pisonem consulem nulla in re consistere umquam sum passus, desponsam homini iam Syriam ademi.28 What precisely Cicero meant by this has long been contested. The use of desponsam shows that Piso had been promised this provincia, but did not yet possess it. As shown in the Introduction, there were many steps necessary before a consul could actually take up the province which he had been decreed, so perhaps desponsam merely means that this process was not complete. Balsdon thinks it very unlikely that Syria had been assigned lege Sempronia in 62 for the consuls of 61, as the Senate was still opposed to the ratification of Pompeius’s eastern acta.29 This is a strong argument, although not a conclusive one. Giovannini interprets this passage as meaning Piso had been allocated Syria lege Sempronia but that Cicero put the province into the praetorian sortitio.30 There are however problems with this: the letter was written in July and seems to refer to events in May, but the praetorian sortitio had already occurred in March, with Q. Cicero receiving Asia (Cic. Att. 1.15.1).31 Moreover, it is possible that the Senate had not decreed any consular provinces according to the lex Sempronia in 62: Pompeius’s intentions upon his imminent return to Italy were still unclear, and the likely success of his legate M. Piso in the consular elections further complicated the delicate strategic situation. Many senators may have preferred to keep their options open in the later months of 62. However, once Pompeius’s peaceful intentions became apparent (after his landing at Brundisium in December 62), the situation changed. Soon afterwards the Bona Dea scandal preoccupied the Senate. So if there were no consular provinces decreed for the consuls of 61, then Piso’s situation becomes explicable. L. Philippus (pr. 62) had already received Syria in March 61 and had presumably departed immediately. On this interpretation, the (informal) “promise” made to M. Piso was probably that he would be sent as Philippus’s replacement towards the end of his consulship. It is clear Syria would be a suitable consular provincia: Appian (Syr. 51) emphasises the amount of fighting its praetorian governors had to do in these years, something he associates with consular governors. However, Cicero stymied this arrangement in May. We do not know what (if anything) Piso eventually 27 28 29 30 31

C. Antonius procos. cum in agro Pistorensi Catilinam devicisset, laureatos fasces in provinciam tulit. Shackleton-Bailey renders this as, “I drove Consul Piso from pillar to post, and deprived him of Syria, which had already been pledged to him.” Balsdon 1962, 140. Giovannini 1983, 87 n. 36. See below, section 6.2.2.

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received as his new provincia, or what his consular colleague Messalla had, but Cisalpine Gaul is a strong possibility (especially as its previous governor returned to stand for the consulship of 60). It is clear, then, that irrespective of the lex Sempronia the Senate retained the freedom to change provinces as necessary, in the light of a changing strategic or political situation. 3.3 PROROGATION The Senate’s indispensable tool in such reassignments, and in managing the empire more generally, was prorogation. As has long been clear, the creation of Macedonia and Africa as permanent territorial provinciae in 146 meant that prorogation was arithmetically necessary, a routine instrument of administration. But this overlooks a complication. As Drogula points out, by the later second century consuls were frequently assigned territorial provinces as their provinciae.32 Also, after Sulla they were not normally assigned Italy. This meant that the same territorial province might be praetorian one year and consular the next. But since, as we have seen, consuls and praetors were conceived of as fulfilling different functions (with consuls sent to fight major wars or at least expected to act more aggressively), then we would expect that there would be different reasons for proroguing them. And, indeed, the evidence supports this intuition. Looking at the period after 123, why were consular imperators (i. e. imperators who held their province as a result of their consulship) prorogued or recalled? First, there was the simple belief that the proconsul had been in place too long. When Cicero discusses why L. Lucullus was replaced by Glabrio in 67, he refers to the Roman People following tradition by setting a limit to his tenure (Leg. Man. 26).33 Similarly, in his speech against Pompeius’s pirate command in Cassius Dio (36.31.3–32.3), Catulus begins his argument by pointing to the dangers of allowing men such as Marius and Sulla to hold command for a long period. Second, a proconsul could also expect to be recalled when his war was over; conversely, he might expect to be prorogued so he could “finish the job.” Both of these reasons are visible in Cicero’s speech De provinciis consularibus, and Balsdon has argued stridently (although in my view incorrectly) that this expectation was also built into the lex Vatinia, and that Caesar was expected to give up his province if the purpose for which he was assigned it (in Balsdon’s view, wars against the Helvetii and Ariovistus) was achieved.34 Third, a proconsul might be recalled if the Senate thought he was sufficiently incompetent and someone else would do better; this is a large part of Cicero’s argument for Piso and Gabinius being recalled in 56, while he also uses it (rendered suitably inoffensively) to justify why Pompeius should be given the 32 33

34

Drogula 2015, 299–301. Hic in illo ipso malo gravissimaque belli offensione L. Lucullus, qui tamen aliqua ex parte eis incommodis mederi fortasse potuisset, vestro iussu coactus qui imperi diuturnitati modum statuendum vetere exemplo putavistis, partim militum qui iam stipendiis confectis erant dimisit, partim Glabrioni tradidit. Balsdon 1939b, 170–72, citing Cic. Prov. Cons. 29, 32, 34.

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Mithridatic command (Cic. Leg. Man. 5). Lastly, there were occasions when a consular imperator was prorogued because his planned successor was unable to take over the provincia. Cn. Cornelius Dolabella (cos. 81) was detained in Macedonia because Ap. Claudius (cos. 79) fell ill at Tarentum on his way to the province, late in his consulship.35 Claudius was only able to replace Dolabella some way into 77, more than a year after he was scheduled to. Similarly, C. Aurelius Cotta (cos. 75) was due to be replaced by L. Licinius Lucullus (cos. 74) in Cisalpine Gaul.36 However, when Lucullus was reassigned to Cilicia, Cotta was kept on in Cisalpine Gaul for another year; he was eventually replaced by C. Cassius (cos. 73). It is interesting that in both these cases, the Senate did not decide to send a praetor instead. Once the situation in a province was judged serious enough for a consul, consular imperators would be kept on where possible.37 While some of these criteria might apply to praetorian imperators, their situation was rather different. The decree of the Gauls to the consuls in March 60 shows that if the military situation suddenly worsened, a praetor might be deprived of his province (Cic. Att. 1.19.2; C. Pomptinus (pr. 63) was the incumbent praetorian governor of Transalpine Gaul). But the ongoing and largely administrative nature of praetorian provinces meant that a praetorian imperator was not likely to be recalled because he had completed his task. As a rule, praetorian provinces were not tasks which could be completed.38 Theoretically a praetorian governor could be recalled if he was thought to be doing a bad job, but this is not something we see in practice: while many praetorian governors were prosecuted once they returned to Rome, the sources do not suggest this was (ostensibly) a reason the Senate gave for their recall.39 Rather, the primary reason, from the point of view of SPQR, was a desire not to allow individual governors too long a spell in their provinces if it could be avoided; Brennan has suggested there were particular provinces (Sicily and Asia above all) which the Senate preferred to rotate annually, and he also detects patterns of two- or three-year terms at different times.40 The flip side of this was the possibility that there might not be sufficient replacement praetors available in Rome, and so a praetorian imperator might need to be prorogued in order not to leave the province sine imperio.41 35 36 37

38 39 40 41

See Appendix A3 under 79. See Appendix A3 under 74. Compare Brennan’s theory of a persistence of consular or praetorian imperium (2000, 670): “the presence of a consular commander accompanied by twelve lictors in a bellicose provincia was perceived to have an important psychological effect on the enemy, which translated into a Roman military advantage. Once the enemy was used to consular commanders, experience showed that it was inadvisable to send praetorian commanders in their stead.” The separate timelines for consular and praetorian allocations meant that assigning a praetor may have caused administrative headaches. See the relevant discussion in Drogula 2015, 255–63. Cicero’s oratory in De provinciis consularibus suggests that personal attacks would certainly feature in the debate. However, the Senate as a whole was unlikely to want to officially censure individuals for incompetence. Brennan 2000, 583–88, 591–95. The arithmetic of this is argued in detail in chapters 4 and 7 and Appendix A.

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But there was an additional issue which could affect praetorian prorogations: the consular elections. Each former praetor was potentially a consular candidate, and it could be expected that any praetorian imperator would contest the next consular elections after he returned to Rome. Therefore, influential men in Rome would try to ensure that particularly strong candidates would not be in a position to stand for consul at the same time as their own friends. We can, on occasion, detect this taking place, most obviously in the Pro Scauro. Cicero, concerned to keep on friendly terms with the consul Ap. Claudius, notes that the latter’s brother C. Claudius was potentially a consular candidate in the same year as the defendant M. Aemilius Scaurus. As patricians they could not both be elected. So, in order to explain Appius’s assistance to the prosecution, Cicero says that Appius was simply trying to remove his brother’s competitor from the elections (33–35). But, says the orator, the brother is not now a candidate. Why? Because he has been prorogued in his province of Asia, although Cicero represents this as a voluntary action on C. Claudius’s part, yielding to the demands and pleasures of the province (35).42 However, that is not how prorogation worked: the decision must have been made in Rome. And since Cicero represents it as an unexpected development – C. Claudius had been expected to be a candidate – it is very probably an outcome of Pompeius’s support of Scaurus.43 His potential competitor has been removed from the competition. 3.4 CONCLUSION The Senate enjoyed great flexibility in managing provincial assignments. It could decree the consular provinces separately to the praetorian ones, prorogue or recall imperators as needed (for a variety of reasons) and reassign provinces if circumstances warranted. The lex Sempronia therefore was not an impediment to the smooth running of the empire. Yet a system which worked reasonably well for decades ran into severe difficulties in the fifties – not because of problems with design, but because the Senate itself was increasingly held hostage to internal infighting. A system which relied for its smooth running on senatorial decision-making ceased to work well when the Senate was often prevented from making any decisions, by political manoeuvring, a lack of magistrates, and urban anarchy. As 42

43

At enim frater iam non petit. Quid tum? Si ille retentus a cuncta Asia supplice, si a negotiatoribus, si a publicanis, si ab omnibus sociis, civibus exoratus anteposuit honori suo commoda salutemque provinciae, propterea putas semel exulceratum animum tam facile potuisse sanari? (“‘Yes’, it may be objected, ‘but his brother is not now a candidate’. What of that? If he found himself tied to the spot by the prayers of all Asia, and if in deference to the appeal of the men of business, the tax-farmers, and of all men, allies and citizens alike, he preferred the advantage and welfare of the province to his own promotion, is that a reason why you should think that feelings once embittered could so easily have been appeased?”) On Pompeius’s support of Scaurus, see Cic. Att. 4.15.7. See also Asc. 19–20C, who remarks that “in that trial Pompeius failed to extend him any enthusiastic support”; apart from anything else this shows that Pompeius’s support had been effective before the trial. It is surely relevant that Ap. Claudius was consul; he would presumably have tried his utmost to have his brother recalled.

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subsequent chapters show, the political incentives built into this system of provincial allocation led many interested parties to block provincial assignments. The allocation system itself was a powerful spur to the deadlocks of the fifties.

CHAPTER 4 SORTITIO When holding forth on Verres’ management of the Sicilian grain supply, Cicero addresses the consul-designate Q. Hortensius: Quam ob rem quid agis, Hortensi? Consul es designatus, provinciam sortiturus es. Take care, then, Hortensius. You are consul elect; you will soon be drawing lots for your province. (Verr. 2.3.222)

At least, sortiturus is Clark’s OCT reading. But, in the apparatus criticus, Clark points to alternatives in the MSS: sortitus or sortiere. These obviously change the meaning. Willems believed that sortitus was the correct reading and so argued that the consuls-designate could draw lots for their provinces.1 In view of Clark’s preference for sortiturus, but also his uncertainty, I do not think we can accept that reading.2 But it nonetheless poses some of the questions this chapter aims to answer. When did consuls and praetors draw lots for their provinces? Was Cicero’s confidence that Hortensius would do so (if we accept sortiturus as the reading) justified? It proved to be in this case (Cass. Dio 36.1a). More precisely: Cicero was confident both that Hortensius would receive a province and that he would receive it by sortitio (the drawing of lots) rather than by any other method. Sortitio sits in the background of Roman public life, an often-used but poorly understood mechanism. The mechanics of provincial sortitio as a public ceremony have been studied by Taylor and Stewart.3 The best evidence we have for the procedure comes, strangely enough, from Plautus’s Casina, which suggests a familiarity in the audience (and indeed in the poet) with the way sortitio worked in practice. The Roman procedure was much more straightforward than that known from Athens, as it involved only the lots themselves (each called a sors or occasionally pila) and the water-filled jug from which they were poured or drawn (called variously a sitella or urna). The sortes were of wood: in the tribal assemblies they were probably inscribed with the three-letter abbreviation for each tribe, but in provincial allotment they carried the names of the provinciae which had been decided on. This fact has been established.4 In assembly allotment it was the presiding officer who 1 2

3 4

Willems 1883, 2.577 n. 6. It is not clear whether Crete, the known consular province for 69, was assigned lege Sempronia or only after Lentulus Spinther vetoed peace with the Cretan envoys (probably early in 69). In any event, we would expect some consular provinces to have been decreed in 70, before the elections, so this issue has no bearing on the MS reading in question. See also Appendix A3 under 69. Taylor 1966, 72–73; Stewart 1998, 13–122. See also Bunse 2002. Stewart 1998, 29–30; Brennan 2000, 182–85 (making the point that Livy is inconsistent and often wrong in the names he gives for provinciae); Morrell 2017, 229–32 (very detailed on the language used to describe the process).

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conducted the ceremony; this was also the case in the Senate (sometimes, at least), although that opens the problem of the presiding consul both conducting the allotment and participating in it.5 The logical (although unattested) solution to this problem is the same that Cicero implies for the assemblies (Leg. Agr. 2.22): the presence of witnesses to ensure the procedure was performed fairly. This (obviously) did not always work: Cicero hints at the consul C. Antonius rigging a sortitio he conducted for praetorian provinces (Fam. 5.2.3). We learn from the passage that this particular allotment was not held in the Senate, as Cicero summoned that body immediately afterwards. Like meetings of the Senate, the sortitio must take place in a templum and after an auspication: this fact alone made it subject to the jurisdiction of the augurs, even if the allotment itself was not directly their concern.6 It is unlikely that the person conducting the sortitio was required to hold the auspices optima lege (and thus have obtained a lex curiata): Asconius (39C) suggests that the sortitio for jurors could be conducted by a quaesitor who probably did not possess auspicium.7 Most subject to dispute is whether the result of the sortitio (i. e. which magistrate received which provincia) showed the will of the gods: Rosenstein argues strongly that it did not, whereas Stewart argues that “the lot was an auspical permission.”8 However, while Stewart shows that the sortitio ceremony had to be conducted with auspical propriety, she fails to separate the religious nature of the procedure from a putative religious meaning of its outcome. Rosenstein is surely correct that the outcome of an allotment did not reflect the will of Jupiter, although the god was of course interested that the ceremony, taking place within an inaugurated space, was conducted properly. This did not of course prevent those favoured by the lot claiming it as ominous. In the period for which we have Livy the assignment both of consular and praetorian provinces normally took place either when magistrates entered office on 15 March or shortly afterwards.9 When the first day of the consular year was changed to 1 January (in 153), we would expect the date of provincial assignment to change too. If, as Taylor suggests, this change in the calendar took place to allow more time for commanders to conduct military operations overseas (particularly in Hispania), then the sortitio would also need to have been brought forward for this to have any 5 6

7 8 9

Stewart 1987, 59–62; however, provincial sortitio seems to be somehow separate from a Senate meeting. The precise involvement of the augurs in sortitio is disputed. The principal passage involved is Livy 41.18, in which the consul Q. Petilius disregarded a vitium while conducting a sortitio on campaign. Linderski 1986, 2173–75 postulates that the vitium (the reality of which was established after an augural investigation) had to do with the consul’s prior auspication and not with the sortitio as such, a conclusion supported by Rosenstein 1995, 57 n. 49, but disputed by Stewart 1987, 38–39, who concentrates on the requirement for all relevant action to take place within a templum. On optima lege as an augural concept, see Cic. Leg. Agr. 2.29. Rosenstein 1995; Stewart 1998, 38–51 (quote comes from page 51). Pina Polo 2011a, 19 and n. 48, where he cites several passages to show that the allotment of provinces was usually the first question dealt with. As Pina Polo makes clear, however, diplomatic activity–which was also the consuls’ responsibility–could sometimes delay a decision on the provinces.

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practical benefit.10 Typically, we do not know where the provincial sortitio was held, or even whether there was a single location. The Senate meeting on the consuls’ first day in office was traditionally held in the Temple of Jupiter Optimus Maximus and so Stewart has emphasised the connection with this temple.11 However, “for occasions when allotment was temporally separated from the day of formal entry into office, evidence for location is at best inconclusive.”12 Given the process’s connection to Senate meetings, it seems likely that its location was as flexible as that of the Senate itself. Modern authorities have focused on the mechanics of provincial sortitio in Livy, and have not systematically investigated the process in the Ciceronian period. Recently, Morrell has established that the procedure used after the lex Pompeia de provinciis of 52 differed from that shown by Livy. In Livy, the sortes bore the names of the provinciae to be assigned.13 However, this was reversed under the lex Pompeia: now it was the names of the ex-praetors which were inscribed on the sortes, to be drawn out and matched to provinciae.14 Morrell believes that this change came with the lex Pompeia, noting that “Cicero’s language, while less explicit on mechanical aspects, shows that the same method was used in the late Republic [as in Livy].”15 Yet as she admits, Cicero’s language is consistent with the Livian process but does not require it. For instance, Morrell observes that as a rule “Cicero prefers obtigere to Livy’s more literal evenire,” and later notes that “obvenire often means simply ‘be assigned (to)’,” that is, it does not by itself suggest whether it was the name of the provincia or the man which was written on the sors.16 The process under the lex Pompeia, whenever it was introduced, “created the possibility of including more names in the urn than there were provinces to be assigned … introducing an element of chance as to whether a given individual would receive a province at all.”17 While praetors always received their provinces by sortitio, consular provinciae could be distributed by the consuls concerned coming to an arrangement (parare or comparare) or allocated to a named individual by decision of the Senate or People (which is called assignment nominatim or sine sorte).18 Attested examples and the testimony of Cicero do, however, support the idea that sortitio was the default 10

11 12 13

14 15 16 17 18

Taylor 1962, 22; contra Vervaet 2006, 627 n. 9. Richardson 1986, 132, after noting that consuls continued to arrive late to Hispania over the next few years, remarks “if the change of entrydate for the consulship introduced in 153 was to enable consuls to reach the peninsula early in the year, it was a signal failure.” Stewart 1998, 26. Stewart 1998, 32. Morrell 2017, 229: “An individual lot can be referred to as sors accompanied by an adjective or genitive, such as peregrina sors (Liv. 24.44.2) or sors iuris dicundi (Cic. Mur. 42), or simply by the name of the provincia it represented, such as ‘Africa’ or ‘Sicilia’. These are said to be ‘thrown into the lottery’ (in sortem coicere) and to ‘come out’ for (evenire), or ‘fall’ to (obvenire), a magistrate in the dative case.” Morrell 2017, 230–33. Morrell 2017, 230. Morrell 2014b, 329 and 331 n. 320. Morrell 2017, 232. Mommsen 1878, 1.56–57; Schulz 1997, 57–61.

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method.19 No source explains the different procedures for consuls and praetors, but the reason is surely practical: it was entirely possible for two consuls to agree on the most suitable arrangement, but too difficult for six (later eight) praetors to do so. 4.1 CONSULAR DISTRIBUTION Scholars disagree on whether the lex Sempronia ensured that the consular sortitio would now take place on 1 January: Balsdon and Stewart believe it did, while Vervaet does not and Willems is noncommittal.20 The evidence is varied. We do, however, have two examples of the provinces being distributed before the consuls’ entry into office. The consuls of 109, Q. Metellus and M. Silanus, came to an agreement while still designati.21 Such agreements could of course be reached at any time after the provinces had been decided (which, if they were decreed lege Sempronia, meant any time after the consuls’ election), and they may have been common. The second example is more oblique. In a letter written in December 58, during his exile, Cicero criticised a political manoeuvre by Atticus and his other supporters in Rome to sponsor a senatus consultum granting ornatio to the incoming consuls (of 57): Cicero notes that such a decree has never been passed for designati (Att. 3.24.2).22 Based on the logic of the process, and the attested order of events on other occasions, we would expect the distribution of the provinces to have taken place before this ornatio. However, we do not know whether the distribution took place by means of sortitio or comparatio; Cass. Dio 39.12.3 is unclear on this issue. Two pieces of evidence from the post-Sullan period relate to when the consular provinces were distributed. We have already discussed the uncertain passage at Cic. Verr. 2.3.222. The end of Pompeius’s letter to the Senate in the second book of Sallust’s Histories is also helpful:23 Hae litterae principio sequentis anni recitatae in senatu. Sed consules decretas a patribus provincias inter se paravere. Cotta Galliam citeriorem habuit, Ciliciam Octavius. Dein proximi consules L. Lucullus et M. Cotta … omni modo stipendium t supplementum paravere. This dispatch was read in the senate at the beginning of the following year. But the consuls arranged between themselves the provinces decreed by the senate: Cotta had Hither Gaul, Octavius Cilicia. Afterward, the succeeding consuls, Lucius Lucullus and Marcus Cotta … used every means to provide pay for the troops and reinforcements. (Sall. Hist. 2.98.11 Maur = 2.82.11 McGushin) 19

20 21

22 23

See Stewart 1998, 137–81 for the most thorough recent treatment of comparatio, although her study is centred on the fourth century BCE. Such agreement was still available to consuls in the first century: Cic. Fam. 1.9.25; Sall. Hist. 2.98.11 Maur = 2.82.11 McGushin. On sortitio as the default, see Cic. Prov. Cons. 37. Cf. Willems 1883, 2.538–39. Balsdon 1962, 139; Stewart 1998, 28; Vervaet 2006, 648 and n. 81; Willems 1883, 2.565. Sall. Iug. 43.1: Metellus et Silanus consules designati provincias inter se partiverant, Metelloque Numidia evenerat. The procedure here is rather confused: inter se partiverant clearly means that the consuls agreed the provinces between themselves, but the verb evenire normally refers to a formal sortitio: Morrell 2017, 229. See below, section 5.3 for a detailed discussion of this passage. See further detailed discussion of this issue in Appendix A3 (75).

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Sallust clearly links the reading of the letter with the assignment of the provinciae and separates both of these from what happened next by dein. Most scholars have placed the reading of the letter at the beginning of 74 (on the basis that a triennium had elapsed since Pompeius went to Hispania) and so believe that Octavius and C. Cotta only chose their provinces after this (i. e. after the end of their consulship).24 However, while Pompeius refers to his Iberian command lasting for a triennium, there is no reason to think the letter was written at the end of that period. Since he complains that he had been given supplies only for a year, and had subsequently exhausted his own resources, Vervaet is certainly correct to place the letter late in 76, and thus read in the Senate at the beginning of 75.25 This in turn raises the possibility that no action was taken on Pompeius’s behalf until the beginning of the following year (i. e. 74), when the new consuls Lucullus and M. Cotta took office. However, Lucullus and M. Cotta could have taken the lead in senatorial debate as consules designati (and thus sponsored aid to Pompeius) at any time after their own election (probably in July 75).26 The important conclusion is that Octavius and C. Cotta arranged their provinces between themselves, probably early in their consulship but after Pompeius’s letter was read, and so not at the very beginning of January. Finally C. Marius was decreed the Gallic war nominatim for several years running, which is an example of the Senate short-circuiting the sortitio process by making its wishes clear (Sall. Iug. 114.3; Cic. Prov. Cons. 19). However, this was rare: usually the Senate allowed the consuls to decide for themselves who would receive which province. We have evidence for many years which indicates, with varying degrees of certainty, whether the consuls came to an agreement or resorted to sortitio. Consular provinces assigned by plebiscite are outside our scope, while those reassigned later in the year due to an emergency are discussed elsewhere.27 Cicero regarded sortitio as the normal means by which consular provinces were allocated (Prov. Cons. 36) and he seems to have been correct in this belief. Beyond the examples of 75 and 57, which we have already seen, Appian suggests (BCiv. 1.97) that in 80 Sulla sent Metellus Pius sine sorte to Hispania Ulterior to fight Sertorius, although these were unusual circumstances. There was clearly no chance of the dictator himself going there, considering he was about to retire from public life. Appian also explicitly tells us (BCiv. 1.107) that, in 78, M. Lepidus received Transalpine Gaul by lot.28 For 74, Plutarch says (Luc. 5.1) that L. Lucullus was originally allotted Cisalpine Gaul, an outcome which frustrated him; this response is enough to tell us this was a case of sortitio.29 Q. Hortensius was allotted the Cretan war in 69 but resigned that province to his colleague and remained in Rome (Cass. Dio 36.1a). 24 Hillman 1990, 446; Konrad 1995, 162; Seager 2002, 33–34. 25 Vervaet 2009, 419–22. 26 On the prominence of designati in the first century see Pina Polo 2013, 434–47. 27 See above, section 3.2. 28 See the detailed discussion on this point in Appendix A3. 29 However, Vell. Pat. 2.33.1 says of Lucullus that ex consulatu sortitus Asiam Mithridati oppositus erat magnasque et memorabiles res ibi gesserat. Possibly Velleius refers here to Asia in the wider sense, but this fragment contradicts our other evidence for Lucullus’s consulship.

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The case of Cicero and C. Antonius in 63 is well attested: Cicero originally received Macedonia by sortitio, swapped it with Antonius for Cisalpine Gaul, and then renounced that province in a contio (Cic. Pis. 5; Cass. Dio 37.33.4). M. Piso being deprived of Syria in 61 – a province he may not have received in any official way – is discussed in detail above, pp. 68–69. The case of 60 is more interesting. When news came in March that the Helvetii were on the warpath, Rome panicked: Senatus decrevit, ut consules duas Gallias sortirentur, delectus haberetur, vacationes ne valerent, legati cum auctoritate mitterentur, qui adirent Galliae civitates darentque operam, ne eae se cum Helvetiis coniungerent. The Senate has decreed that the Consuls should cast lots for the two Gauls, that a levy should be held with all exemptions cancelled, and ambassadors with full powers sent to visit the Gallic communities and try to stop them making common cause with the Helvetii. (Cic. Att. 1.19.2)

Giovannini argues that the two Gauls had been properly assigned to the consuls lege Sempronia but that the Senate simply expedited their departure.30 If true, this would mean that by March, the consuls had not yet decided who was to have which province. However, Cicero clearly implies that this is an emergency, and thus it is quite unlikely that the Gauls had been chosen the previous year under the lex Sempronia.31 This case has no implications for the normal date of sortitio. We therefore have four post-Sullan years in which sortitio was definitely used to allocate the consular provinces: 78, 74, 69 and 63. Only twice can we be sure that the consular colleagues came to an agreement, and in one of those cases it was to swap what the lots had given them. Of course, often in the seventies and sixties we can suspect the use of sortitio, but we have little hard evidence. Still, what evidence we do have backs up Cicero’s suggestions in the In Verrem and De provinciis consularibus that sortitio was the default mechanism for allocating the consular provinces. While we have no explicit testimony to support Balsdon and Stewart’s claims that this sortitio was normally held on 1 January, we do have definite indications that it continued to be held early in the year, and 1 January was a logical date. However, the disruption to political life in the fifties affected this area of administration also. In many years, consular provinces were not able to be allocated, and we have seen that in 54 the question of whether the consuls would be able to go to their provinces, and which consul would take which province, was still undecided in the December of their year. We should, however, note that there is no indication anywhere of the sortitio itself being the victim of tribunician veto.32 The Romans preferred either to find other ways of allocating commands or else to override the lot if the outcome proved unsuitable.33 30 31 32

33

Giovannini 1983, 87 n. 37. So, correctly Vervaet 2006, 640–42, who adduces further convincing arguments against this notion. E. g. Cicero reports (Fam. 1.9.25) that Ap. Claudius declared “that if he were allowed to get a law through the comitia curiata he would cast lots with his colleague for their respective provinces.” There is no implication that the sortitio was at risk; the difficulty lay in obtaining the lex curiata. See the examples collected by Rosenstein 1995, 50–55.

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4.2 PRAETORIAN SORTITIO By contrast with the consular process, praetorian allotment was quite complex, with praetors undergoing a double sortitio. The main reason for this – the growth in the quaestio system and the need for praetors to take secondary provinciae – has been analysed in chapter 2 above. The present section includes a detailed examination of the logical constraints of this double sortitio, to better understand the way it worked in practice. Two periods will be examined: the late second century, when the system was still incomplete, and then after Sulla. For the first period I have chosen c. 105 as an approximate halfway point, as by then many but not all praetors would be required in Rome itself. I argue that the practices of the post-Sullan system grew out of this period. 4.2.1 The mechanics of praetorian sortitio By c. 105, Rome had eight territorial provinciae which required the permanent presence of an imperator (Hispania Citerior, Hispania Ulterior, Transalpine Gaul, Sardinia, Sicily, Africa, Macedonia and Asia) and four urban praetorian provinciae which required a new praetor every year (urbana, peregrina, and the repetundae and ambitus courts). Essentially, the Senate needed to make three distinct decisions about these provinciae: 1. Which were to be the two consular provinciae? 2. Which urban provinciae would be assigned to the incoming praetors? 3. Which territorial provinciae would receive new imperators, and in which would the current governors be prorogued? The first two decisions were relatively straightforward. The consuls had a legitimate expectation of commanding in the major wars being waged (see above, section 3.1), while the lex Sempronia had removed much of the politics from debates on the consular provinces. Similarly, the number of urban provinciae was essentially fixed by the legislation establishing new quaestiones. The third decision was more complex. Judgements had to be made on the incumbent governors, with political, strategic and moral factors probably all playing a part. Moreover, any new praetorian governors would come from two sources: the incoming praetors who did not receive urban provinciae and the outgoing praetors who had held urban provinciae. This can be made clearer by creating a hypothetical example. Let us suppose that before the consular elections the Senate decrees Transalpine Gaul and Italy as the consular provinciae. It seems likely that the Senate made decisions about consular proconsuls based on the strategic situation, so let us also suppose that the consular proconsuls holding Macedonia and Hispania Ulterior are prorogued, but the consular proconsul holding Hispania Citerior is recalled. The other four regular provinces are held by governors of praetorian rank who might potentially be prorogued, but as yet the Senate has not reached a decision about them. That leaves five regular territorial provinciae which potentially could receive new praetorian governors (and Hispania Citerior certainly must receive one). There are six available

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praetors: the two leftover incoming praetors who have not received urban provinciae and the four outgoing praetors who did hold urban provinciae, and might now be prorogued to a second province. So the Senate decrees, for whatever reason, that the current praetorian governor of Africa will be prorogued and new praetorian governors will be sent to Hispania Citerior, Sicily, Sardinia and Asia. This scenario – some version of which must have been the rule in the late second century – creates a problem for the two praetorian allotments which must take place (for the urban and territorial provinciae): there is not a match between the number of available provinciae and the number of available praetors, which means that the sortitio procedure as recorded in Livy cannot take place. In the first instance, the six incoming praetors must be matched to four urban provinciae, and in the second instance a total of six praetors must be matched to four territorial provinciae (and, since the two incoming praetors must receive a province, two of the four outgoing praetors will not receive one). How were these problems resolved? Several solutions seem possible, based on parallels with similar situations: 1. The Senate chose two of the regular territorial provinces which were to receive new governors and added them to the sortitio for the incoming praetors. In this scenario, the inscribed sortes for the incoming praetors would be the four urban provinciae plus (for instance) Sardinia and Asia. This neatly solves the first part of the problem but still leaves a problem for the outgoing praetors. 2. The incoming praetors conducted a two-stage sortitio: in the first, four of them were selected by lot (or possibly even chosen nominatim) to then be matched to the four urban provinciae, the two remaining incoming praetors subsequently drawing lots for two of the territorial provinciae. This solution is comparable to that attested at Livy 39.45.4, when the praetor who was flamen dialis was required to stay at Rome for religious reasons, and so he drew from an urn which only contained the urban sortes.34 However, this still leaves the most difficult part of the problem, which was how the Senate would match the two remaining territorial provinces to the four outgoing praetors who had held urban provinciae.35 There are three possible solutions to this: 1. The names of the outgoing praetors were inscribed on the sortes and matched to a province; this is the process which Morrell has identified for the lex Pompeia and would have been the most equitable solution. The Ciceronian evidence is equally consistent with this interpretation: instances where the sortes unambiguously bore the names of provinciae are restricted to urban provinciae.

34 35

Vervaet 2006, 636 n. 45 mistakenly regards this as an example of double sortitio in the laterepublican sense, although it is clear that Livy refers only to the incoming praetors. Cf. Stewart 1998, 29. It is certain that this was by means of sortitio, as we have the evidence of Plutarch on Marius in 114: Plut. Mar. 6.1: μετὰ δὲ τὴν στρατηγίαν κλήρῳ λαβὼν τὴν ἐκτὸς Ἰβηρίαν.

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2. The same number of sortes as available praetors were placed into the urn, but some of them were left blank (on the model of the practice, attested by Livy, of reserving a praetor for a task quo senatus censuisset).36 3. The number of available outgoing praetors was reduced to the number of available territorial provinciae and then a sortitio was conducted for the remaining candidates. If the Senate used the third method, it might do so simply by choosing the praetors it wanted. However, this would have been an insult to those passed over, since there was no possible criterion other than the relative merit of the praetors involved. It would necessarily be an exercise in rank and influence. If this was the method used, then one might expect the likely losers to “give up” (deponere) the option to receive a secondary province before this point, in order to avoid humiliation. Such a scenario at this time helps to explain the complaint which Sallust puts in the mouth of the tribune Mamilius (Iug. 31.20), that among other things the pauci potentes controlled all the provinces.37 Indeed, Linderski has suggested that the lex Pompeia used just such a method to ensure there was the right number of consulares and praetorii to be allotted to the available provinces, although his argument is flawed.38 A final point on this process: the necessity for the incoming praetors who received territorial provinciae to go to them early in the year, as well as the involvement of some of the incoming praetors in both allotments, suggests that this entire process would likely have taken place over a short period of time, either at the beginning of the consular year or late the previous year, after the praetorian elections. By the period after Sulla’s dictatorship, all eight praetors held urban provinciae during their magistracies and were eligible for secondary, territorial, provinces afterward. The Senate’s decisions about provincial arrangements were affected by elections now normally being held in July: the one certain date we have for the debate on the consular provinces (in 56) was shortly before the elections were expected to be held, that is, between mid-June and mid-July.39 It is unclear whether the praetors’ (secondary, territorial) provinces were chosen along with the consuls’. 36 37 38

39

As suggested by Morrell 2014b, 328 n. 305. However, in this case a blank lot would mean the drawer received no provincia. It also echoes Caesar’s complaint about the selection of consular governors in 49 (BCiv. 1.6.5): two of the four potential governors were excluded from the allotment privato consilio. See also chapter 7 on the tradition of refusing provinces. Linderski 2007b, 153–54 and n. 175. He argues from Cic. Fam. 3.2.1 and Cicero’s statement that he was chosen to govern Cilicia against his expectations (praeter opinionem) that there was not a larger pool of consulars from which to choose the governors of Syria and Cilicia, although Cicero’s words suggest exactly that. Moreover, Linderski misunderstands Fam. 8.8.8, and thinks that if insufficient praetors (from five years before) were available, then the Senate could keep choosing from further back, that is, in reverse order of seniority. Actually, the passage suggests that the eligible praetors were any who had held the office five years or more ago, and if not enough of these men could be found then the Senate should choose those who had held the office later, year by year. So, correctly, Shackleton Bailey 1977, 405–06. See below, section 8.2. Grillo 2015, 12–13. There are no grounds for Balsdon’s assertion that the consular provinces were normally decided in March (1939a, 66–67).

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Cicero (in De provinciis consularibus) recommends making Macedonia and Syria praetorian provinces, which suggests they were. Yet no other praetorian provinces are mentioned. Indeed logically the consular provinces, the urban provinciae for the incoming praetors and the territorial provinces for the outgoing praetors were all now completely separate. There was no need to decree them together. Since none of the incoming praetors now received territorial provinces, only the outgoing praetors and the incumbent governors had an interest in them. However, while the timetable for the allocations process was now less constrained, there still remained the problem of matching the number of outgoing praetors to the number of territorial provinciae. This was not a problem with the incoming praetors: since all of them remained in the City, the Senate needed merely to decree the eight provinciae and have any other courts assigned to iudices quaestionis. The incoming praetors could thus draw lots for their urban provinciae soon after their election (which they often appear to have done: see below). However, there would only coincidentally be the same number of available outgoing praetors as available territorial provinces. There were more praetors after Sulla (eight), but also more provinces: eleven by 74, and twelve by 61. Thus the Senate might be faced with the problem of there not being enough outgoing praetors willing to govern a territorial province, in which case some incumbent governors might be prorogued simply due to a lack of replacements. This has long been recognised. But the Senate might also face the opposite problem: there might be too many willing outgoing praetors for the available territorial provinces, in which case one of the three possible solutions noted above would be required: either the Senate chose which of these outgoing praetors would go into the sortitio, blank lots were added to the urn, or the process of sortitio was reversed, with the names of the praetors being inscribed on the sortes and drawn out to match a provincia. The existence of this problem is demonstrated in Appendix A5. 4.2.2 Evidence Morrell notes several Ciceronian passages where the language used points to the sortes being inscribed with the names of provinciae rather than the men who were to hold them.40 While all the passages are consistent with this interpretation, she also notes that Cicero is less mechanically precise with his language than Livy. Most of these passages simply refer to provinciae being assigned by lot without it being clear whether the men’s names or the provinciae were inscribed on the sortes.41 If the interpretation advanced above is correct (about the multiple possible solutions to the problem of more praetors in an allotment than available provinces), then Cicero’s language does not strictly support any solution, especially when we differentiate between the passages where he refers to urban praetorian provinciae and those where he refers to secondary, territorial provinciae. The change in procedure 40 Morrell 2017, 229–30 and various notes, citing Cic. Att. 1.15.1, Mur. 42, Verr. 2.2.17, 2.2.127. 41 In addition to the passages Morrell notes, one could also add Cic. Att. 1.13.5, Mur. 41, QFr. 1.1.27 and Verr. 2.1.104.

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evident after 52 could have come with the lex Pompeia, or it could already have been in place in the second century. Cicero is particularly enlightening on secondary praetorian provinciae in the Pro Murena and in Verrem; a detailed examination of both is necessary. In the Pro Murena Cicero compares the praetorships of the prosecutor Ser. Sulpicius and the defendant L. Murena in 65. To begin with, Cicero (addressing Sulpicius) discusses the respective urban provinciae the two men held during their praetorships: Quid? in ipsa praetura nihilne existimas inter tuam et huius sortem interfuisse? huius sors ea fuit quam omnes tui necessarii tibi optabamus, iuris dicundi; in qua gloriam conciliat magnitudo negoti, gratiam aequitatis largitio; qua in sorte sapiens praetor qualis hic fuit offensionem vitat aequabilitate decernendi, benivolentiam adiungit lenitate audiendi. egregia et ad consulatum apta provincia in qua laus aequitatis, integritatis, facilitatis ad extremum ludorum voluptate concluditur. quid tua sors? tristis, atrox, quaestio peculatus ex altera parte lacrimarum et squaloris, ex altera plena accusatorum atque indicum. But would you then go on to maintain that in your respective praetorships there was no difference between what you and Murena were assigned? Murena was allotted the post which all your friends wanted for you, that of civil jurisdiction. This is a post in which the importance of the task wins one glory, and the dispensing of justice wins one gratitude; in this office a wise praetor, such as Murena was, avoids causing offence by judging impartially, and attracts goodwill by listening to the litigants sympathetically. It is an excellent job to get, and one which fits the holder for the consulship: it enables him to win a reputation for fairness, honesty, and helpfulness, and all this is ultimately crowned by enjoyable public games. And what were you allotted? Dismal and grim, the embezzlement court. On the one side you find nothing but tears and filth, on the other accusers and informers. (Mur. 41–42)

Note how Cicero explicitly calls Murena’s urban praetorship a provincia, and refers to each assignment, separately, as a sors. There is no indication here of the date at which either allotment took place, but it is clear, first, that the urban provinciae were allocated by sortitio and, second, that each individual lot (sors) bore the name of the provincia to be assigned.42 Immediately afterwards Cicero, still addressing Sulpicius, says “you refused to take a province,” here evidently referring to a secondary provincia. This passage is also worth quoting in full: Postremo tu in provinciam ire noluisti. non possum id in te reprehendere quod in me ipso et praetore et consule probavi. sed tamen L. Murenae provincia multas bonas gratias cum optima existimatione attulit. habuit proficiscens dilectum in Umbria; dedit ei facultatem res publica liberalitatis, qua usus multas sibi tribus quae municipiis Umbriae conficiuntur adiunxit. ipse autem in Gallia ut nostri homines desperatas iam pecunias exigerent aequitate diligentiaque perfecit. tu interea Romae scilicet amicis praesto fuisti; fateor; sed tamen illud cogita non nullorum amicorum studia minui solere in eos a quibus provincias contemni intellegunt. Lastly, you refused to take a province. Having done the same myself when I was a praetor and again in my consulship, I am in no position to criticise. All the same, Lucius Murena’s province won him many useful favours and a glorious reputation. On his way out, he raised troops in Umbria; the political situation gave him the opportunity to show generosity, and this allowed him to acquire the support of the many tribes which are made up of Umbrian towns. Then, 42

As noted by Morrell 2017, 229 with regard to the evidence as a whole: “an individual lot can be referred to as sors accompanied by an adjective or genitive.”

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Chapter 4. Sortitio while in Gaul, by his sense of fairness and his dedication to the task he enabled our men to recover debts which they had previously written off. You, meanwhile, were at Rome and, naturally, were helping your friends. I do not deny it. But just think for a moment: the support of friends does sometimes tend to become less enthusiastic when they see those they have been supporting turning down provinces. (Cic. Mur. 42)

There is no indication of the date at which Murena left Rome for Gaul, but it is instructive that Cicero again refers to a provincia which Murena has received, and another which Sulpicius has declined. There can be no explanation for this other than that praetors had the option to take (or decline) a secondary, territorial provincia after completing their initial provincia in Rome, which in turn must have shaped the sortitio (see chapter 2). The mechanics of the praetorian double sortitio are also made clear at various places in the Verrine speeches. Verres was allotted the urban praetorship while still designatus, as Cicero implies (but does not clearly state) at two points. At 2.5.38 he says that Verres received the task ius dicere by sortitio (cum tibi sorte obtigisset uti ius diceres) and places this immediately after his election. At 2.1.104 Cicero is clearer:43 Nam ut praetor factus est, qui auspicato a Chelidone surrexisset, sortem nactus est urbanae provinciae magis ex sua Chelidonisque quam ex populi Romani voluntate. For as soon as he became praetor he rose, after taking his auspices from the embraces of Chelidon, to receive the city praetorship as his department, a result of the lot that was more gratifying to him and Chelidon than it was to the Roman nation.

At 2.2.17, Cicero refers to Verres receiving Sicily as his province by lot: Qui simul atque ei sorte provincia Sicilia obvenit, statim Romae, ab urbe antequam proficisceretur. No sooner had the lot given him Sicily as his province than he proceeded, while still in Rome, before he left the city.

This was clearly while he was still praetor, because elsewhere Cicero places his actual departure from the City during his magistracy:44 Alterum quod, cum paludatus exisset votaque pro imperio suo communique re publica nuncupasset, noctu stupri causa lectica in urbem introferri solitus est ad mulierem nuptam uni, propositam omnibus, contra fas, contra auspicia, contra omnes divinas atque humanas religiones. The other is that, having already left the city in his commander’s cloak, and already made the vows on behalf of his term of office and the general welfare of his country, he repeatedly had himself carried back into the city after nightfall in a litter, to gratify his adulterous passion for

43

44

Pseudo-Asconius, commenting on this passage (247 Stangl), confuses Verres being elected with Verres entering into office, but Cicero clearly places this event prior to Verres giving his edict: auspicare dicuntur ineuntes magistratus, et quia chelidon, id est hirundo, urbem frequentat, facete urbanam provinciam Chelidonis auspicio meretricis dicit esse susceptam. Cf. Stewart 1998, 39, who emphasises the augural language being used by Cicero, particularly surrexisset. See section 1.3.1 above for a discussion of the constitutional requirements of profectio. Cf. Brennan 2000, 486–87.

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a woman who was one man’s wife but at all men’s service; thus violating the law of God, violating the auspices, violating every principle of religion and morality. (Verr. 2.5.34)

Cicero is thus clear that there were two separate provinciae for praetors, with two distinct allotments: one urban and the second territorial. Furthermore, there was a double sortitio for the two separate praetorian provinciae and these were separate events. 4.2.3 Sortitio for praetores designati Balsdon asserts that “the praetors might cast lots for their judicial ‘provinciae’ before entering office.”45 Brennan treats this as a feature of “the Sullan system,” taking place soon after the praetorian elections.46 The possibility of the praetorian sortitio taking place before formal entry into office was not new: Livy (43.15.2) records at least one instance when circumstances dictated this, but offers only the weak explanation nam praetores propter iurisdictionem maturius sortiti erant.47 Some modern scholars (mistakenly) characterise it as “une procédure relativement rare” in the subsequent period.48 Yet as far as we can see, in the Ciceronian period it was the rule rather than the exception for praetors-designate to undergo a sortitio for their urban provinciae. Hantos suggests this was to allow the incoming praetors to familiarise themselves with their new jobs and so hit the ground running in January, which is an attractive suggestion.49 There are three certain examples of early sortitio. The case of Verres receiving the urban praetorship while still designatus in 75 has been dealt with above. The next date we have is 70, when Cicero himself tells us (Verr. 1.31) that the actio prima of the in Verrem was delivered on 5 August, while Pseudo-Asconius (212 Stangl) says the consular elections were conducted on 27 July. Between these two dates the praetorian and aedilician elections as well as the sortitio for the newlyelected praetors took place (Cic. Verr. 1.21–25). In 58, on 4 September, Cicero wrote a letter to Atticus from Thessalonica and was already aware that the praetordesignate Ap. Claudius Pulcher had been allotted the quaestio de repetundis (Cic. Att. 3.17.1). In view of the travel time, the sortitio must have taken place by midAugust at the latest. On the other hand, there is no certain example in this period of praetors casting lots for their urban provinciae after they had entered office, an entirely different procedure to that known from Livy. 45 46 47

48 49

Balsdon 1962, 139. Brennan 2000, 395. ”For the praetors had drawn lots more promptly to secure the administration of justice.” Stewart 1987, 34 n. 13 can only suggest that Livy here “perhaps gives insight into first-century procedure and attitudes regarding [early sortitio]. The administrative requirements of the judicial jurisdictions may have necessitated the early sortition of provinciae to designati in the first century, but the procedure was nonetheless considered improper.” No justification is offered for this conclusion. Ferrary 1977, 622 n. 14; cf. Lintott 1976, 82; Vervaet 2006, 627 n. 15 (with Livian examples). Ferrary indeed suggests that it became wholly exceptional after the beginning of the consular year was moved to 1 January from 153. Hantos 1988, 106

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Known election dates can also provide a terminus post quem. Elections for the magistracies of the People were conducted in descending order of importance: consular, praetorian, aedilician and quaestorian.50 Praetorian elections normally seem to have followed close on the consular ones; once the praetors were elected, there was no barrier to holding their allotment. The consular elections in 63 were postponed briefly but still probably held in the July of that year.51 The elections in 61 were (briefly) delayed until 27 July and we have no reason to think they were delayed again (Cic. Att. 1.16.13). The consular elections in 59 were held certainly no earlier than 18 October, as Cicero tells us (Att. 2.20.6), and Taylor is probably correct when she suggests that they took place on that date and under Caesar’s presidency.52 4.3 CONCLUSION Sortitio was in some respects the most straightforward step in the provincial allocations process: there is no record of it being vetoed, it was designed to be non-contentious and it could take place with a minimum of fuss. Yet, at least for praetors (both incoming and outgoing), it could also be very complex. The mismatch between the number of imperators and the number of provinciae, together with the requirement for a double sortitio, meant that the Senate needed to complicate its procedures in order to allot provinces without creating unnecessary invidia. The fact that by the post-Sullan period (and probably by the nineties) all incoming praetors were kept in Rome would actually have simplified this process, by removing the need to split the incoming praetorian college between urban and territorial provinciae. This in turn gave the Senate more flexibility about when each sortitio could take place. Yet the sortitio process also gives us more evidence for that separation between consular and praetorian allocations which the lex Sempronia enshrined in law.

50

51

52

Taylor and Broughton 1968, 169 n. 15, noting evidence from the third and second centuries. They also point to Pompeius’s consulship in 55, when he conducted successively the praetorian and aedilician elections after his own elevation to the consulship; see Plut. Cato min. 42.1, Pomp. 52.2; Cass. Dio 39.32.1–2. On the postponement, see Cic. Mur. 51. On the date of the elections, the arguments for July given by Benson 1986 are more convincing than the alternatives. Cic. Sull. 42 refers to M. Messalla as a candidate for the praetorship (M. Messalam, qui tum praeturam petebat) at the time the Allobrogian informers were questioned in early December; however Caesar’s presence as a praetor-designate at the debate on the Nones of December confirms the praetorian elections had already been held. Messalla was presumably a prospective candidate for the following year. Cf. Brennan 2000, 924 n. 430. Taylor 1968, 188–89.

CHAPTER 5 ORNATIO In 107, despite having been raised to the consulship and voted command of the Jugurthine War in the teeth of senatorial opposition, C. Marius still needed senatorial approval for the army he intended to recruit and take to Africa: Interim quae bello opus erant, prima habere: postulare legionibus supplementum … neque illi senatus, quamquam advorsus erat, de ullo negotio abnuere audebat. ceterum supplementum etiam laetus decreverat, quia neque plebi militia volenti putabatur et Marius aut belli usum aut studia volgi amissurus. sed ea res frustra sperata: tanta lubido cum Mario eundi plerosque invaserat. Meanwhile, he made the needs of the war his highest priority; he demanded reinforcements for the legions … the senate, although it was hostile to him, did not dare to withhold authorization for any of his measures. In fact, it even took delight in decreeing reinforcements because it was thought that military service was unpopular with the commons and that Marius would lose either resources for the war or the devotion of the masses. (Sall. Iug. 84.2–3)

The vote of troops and money for a provincial command is called ornatio provinciae in modern scholarship, despite the abstract noun ornatio being rather rare in republican texts. Forms based on the verb ornare were the usual means of expressing the concept; the gerund ornandi(s) is particularly common (Cic. Att. 3.24.1, QFr. 2.3.1, Pis. 5; Suet. Iul. 18.1). The authorisation of troops and funds naturally belonged to the Senate by virtue of its management of foreign affairs (Polyb. 6.15). In Livy’s narrative, the ornatio frequently occurs at the beginning of the year, as a part of that process by which the Senate made Rome’s strategic decisions for the year just begun and put them into effect. It normally takes place immediately after the decision about which provinciae would be created and which imperators would be assigned to them. As Willems makes clear, these decisions logically belonged together.1 To this round of decrees belonged the larger question of how many legions were to be raised, which would be recalled, and which kept in the field. The number of troops required of the socii was also fixed at this time and the requests sent to allied communities. A good example of the process is the beginning of the war against Antiochus, when as part of the settlement of general strategy Livy reports (36.1–2) quite detailed decisions on which armies were to return, which would be kept in place and sometimes supplemented with a given number of fresh recruits, whether these were to be Roman or allied, and who was to command in each provincia.2 The evidence from 1

2

Willems 1883, 2.621: “Au début de chaque année le Sénat arrêtait le nombre des légions et les contingents des socii, et il les répartissait en autant d’armées qu’il avait créé de provinces militaires italiques et extra-italiques, assignant une armée au commandant dechaque province;” cf. Livy 23.25, 27.7. Cf. Willems 1883, 2.621–29 for a good general overview (with copious sources) for this procedure. See also Pina Polo 2011a, 19–20 on why Livy is accurate in placing these notices at

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Sallust is consistent with this picture: in 111, for instance, the historian tells us that first the consular provinces were decided lege Sempronia, second that they were assigned to Bestia and Scipio Nasica by sortitio, and finally that an army was enrolled and funds voted (Iug. 27.3–5).3 There is no reason here to think the ornatio was significantly delayed; everything may well have been decided at the one meeting. In the late Republic, however, these steps became separated and the process stretched out. Consular provinces were now decided before the consular elections; praetors were subject to a double sortitio, both stages of which were divorced from the consular timetable. Ornatio was also treated separately. I lay out the evidence for this below, but we should consider the reasons for it, and its implications. The distribution of provinces (whether by agreement or allotment) was the responsibility of the magistrates; the Senate was not normally concerned with it (although on occasion it did decide who was to receive a particular province) and it does not appear ever to have been vetoed. However, ornatio required a senatorial debate and decree. In the late Republic it was the stage in the provincial allocations process which was most subject to political interference; specifically, it seems to have been regarded as a stick with which to beat the consuls. This naturally led to delay. Similarly, the ornatio for praetorian provinces (and for proconsuls who were retaining their command) was normally decided separately from the consular ornatio, and all of these decisions about the tools commanders would have to do their jobs were made separately from the decisions about what those jobs were to be and who was to do them. The increasing separation of decisions which logically belonged together (from the point of view of competent policy making) led directly to a reduction in the quality of foreign policy. The lex Pompeia of 52 can be regarded as a reaction against this fragmented approach (as discussed in chapter 8). 5.1 PRACTICALITIES The practical aspects of ornatio evolved in the second and first centuries, particularly after the Social War. We gain an idealised picture of the early levy (dilectus) from Polybius, particularly 6.19–21. His account, supplemented by details from Livy, is the main source for modern scholars who describe the republican dilectus.4 According to the Polybian-Livian account, the consuls announced in a contio (and by means of edicta) the date on which citizens eligible for military service should present themselves in Rome, where the military tribunes would select the required

3

4

the beginning of the consular year. Sed ubi senatus dilicti conscientia populum timet, lege Sempronia provinciae futuris consulibus Numidia atque Italia decretae; consules declarati P. Scipio Nasica, L. Bestia Calpurnius; Calpurnio Numidia, Scipioni Italia obvenit. deinde exercitus, qui in Africam portaretur, scribitur; stipendium aliaque, quae bello usui forent, decernuntur. See, e. g. Nicolet 1980, 96–102, where none of his examples are from later than the Numantine War. However, see also Brunt 1971, 626–27, who finds it impossible to credit the picture Polybius gives.

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men (Polyb. 6.19–21; Livy 34.56.4–5).5 Those men were then ordered to muster on a set date at the starting-point for the campaign. However, for various reasons, Willems does not see this system being necessary after Sulla’s dictatorship. One effect of the enfranchisement of Italy was that the Senate no longer had to send troop requests to allied communities: any recruitment within Italy was now recruitment of Roman citizens by means of the dilectus.6 The stationing of what amounted to permanent garrison armies in some provinces, and the multi-year campaigns necessary in others, meant that regular annual recruitment no longer fit the actual pattern of war-making.7 While consuls did continue to recruit and lead out large forces against Rome’s enemies, the more common scenario was for the recruitment of supplementa for provincial armies. These supplementa were necessary to make good losses from battle or disease, as well as to replace those soldiers dismissed by the previous commander.8 Therefore, we should expect more than one levy to be held in any one year as a matter of course, as new provincial imperators recruited the men they needed to take out with them.9 Our sources strongly suggest that most recruitment in the late Republic was carried out regionally, rather than centrally, through recruiting officers known as conquisatores.10 If this was the case, we would expect each magistrate to be given a different region in which to recruit, although the sources do suggest the procedure could vary. For instance, Murena’s levy in Umbria was held while he was already on the road, and Umbria was the territory he was passing through on the way to his province. Caesar in 61 recruited ten cohorts when he arrived in Hispania Ulterior because he was unwilling to wait in Italy for his ornatio (although it is uncertain 5 6 7 8

9

10

Brunt 1971, 625–34; Pina Polo 2011a, 84–86. Willems 1883, 2.645. Willems 1883, 2.646: “Mais ce nouveau classement des provinces eut encore pour conséquence de rendre les armées d’occupations peu à peu permanentes et de mettre un terme aux décrets annuels du Sénat sur la permutation des différentes armées.” A good example is Sall. Hist. 2.47.6 Maur = 2.44.6 McGushin, where Pompeius and Metellus Pius in Hispania “are demanding pay for their troops, reinforcements, arms, and grain” (stipendium, milites, arma, frumentum poscunt). See also Willems 1883, 2.647–49, followed by Smith 1958, 47–50 and explored in more detail by Brunt 1971, 425–26, 635–38 and Cadiou 2008, 7.17. On the (regular) dismissal of soldiers by their commanders in the late Republic see also Gruen 1995, 379–80. Only magistrates with imperium could legally recruit troops: App. BCiv. 3.47; cf. Mommsen 1878, 3.1071–72, Smith 1958, 48 n. 1. On levies for multiple commanders see Brunt 1971, 453–55 (M. Cotta and L. Lucullus in 74). To this may be added 67, when C. Piso very probably commanded 3 or 4 legions (Brunt 1971, 465) in Cisalpine and Transalpine Gaul in the same year as Pompeius’s massive recruitment for the pirate war. The locus classicus is L. Murena (pr. 65) on the way to his province of Transalpine Gaul, Cic. Mur. 42: habuit proficiscens dilectum in Umbria. This is supported by Cic. Att. 7.21.1, nullum usquam dilectum. nec enim conquisitores φαινοπροσωπεῖν audent cum ille adsit, where the use of usquam clearly implies that a dilectus is normally place-specific. It is also supported by [Caes]. BGall. 8.54, describing the two legions summoned for the prospective Parthian war in 51: Nam Cn. Pompeius legionem primam, quam ad Caesarem miserat, confectam ex delectu provinciae Caesaris, eam tamquam ex suo numero dedit. Hirtius specifically says that the legion in question was recruited in Caesar’s province, i. e. in Cisalpine Gaul.

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whether the troops were citizens or auxiliaries).11 Both of these examples, when contrasted with the Polybian picture, show that departing commanders were not always in a position to wait for a more conventional dilectus, a process which usually took a considerable period of time. Thus, we can say that recruitment in the late Republic was still normally by dilectus, but was regularly conducted regionally rather than centrally, and always under the authority of a commander with imperium. It could not normally take place rapidly if large forces were to be raised.12 Money was rather easier to arrange quickly. Commanders departing for their province were allocated a significant sum through the ornatio, funds normally given to their quaestor.13 It is uncertain how funds were transmitted, but it is unlikely that bulk transfer of coinage was common.14 The funds were to be used primarily for the payment of their troops (stipendium), but also to support the lifestyle of the general and his entourage to an appropriate level (vasarium). The Verrines give a good idea of the types of things money would be spent on in an army: Verres as quaestor to C. Carbo “spent, for pay to the soldiers, for corn, for the legates, for the proquaestor, for the praetorian cohort, sixteen hundred and thirty-five thousand four hundred and seventeen sesterces” (Cic. Verr. 2.1.36).15 5.2 TIMING AND EVIDENCE The evidence for ornatio in the late Republic has not previously been considered together. It reveals a fragmented pattern, in which troops and funds were voted (or blocked) for different magistrates at different times, depending on a range of factors sometimes now lost to view. We are, however, able to see the parameters within which the politics of ornatio took place. Cicero tells us explicitly that the consular ornatio (that is, the SC de ornandis provinciis consularibus) was never passed for designati (Att. 3.24.2: neque enim umquam arbitror ornatas esse provincias designatorum); that is, it only occurred after the consuls took office. This provides us with a clear parameter, at least for the period of Cicero’s political career. Note also the terms of the infamous pactio in 54 (Cic. Att. 4.17.2): the candidates promised they would, if elected, provide two consulars to swear that they had helped draft an SC de provinciis ornandis for the 11 12

13 14 15

Smith 1958, 48 nn. 7 and 8. Crassus’s swift recruitment of a large army in late 72 to take on Spartacus would seem to constitute an exception to this. However, the likelihood that Crassus personally advanced the soldiers’ pay would have considerably eased recruitment, while in view of the military emergency (with both consuls having been defeated) the Senate may have treated the situation as a tumultus. See Vervaet 2015a, 426–27. Willems 1883, 2.421: “Le droit d’arrêter les budgets annuels des commandants militaires et des gouverneurs provinciaux fut une des attributions les plus importantes du Sénat.” However, see now the picture of ad hoc Roman financing painted by Bleckmann 2016. See Hollander 2007, 39–57 on the variety of financial instruments available to late-republican Romans for the transfer of funds. Dedi stipendio, frumento, legatis, pro quaestore, cohorti praetoriae HS mille sescenta triginta quinque milia quadringentos decem et septem nummos.

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current consuls. This pactio was revealed to the Senate, probably in August, yet the sortitio had clearly not yet taken place, since it was still being contemplated by the consuls in December.16 Detailed discussion of the consular grants for 63, 57 and 54 will be reserved for the next section, as they demonstrate the importance of ornatio as a political issue. Finally, Cicero’s various descriptions of renouncing his province during his own consulship in 63 combine to suggest that the ornatio took place somewhat later in that year. Twice Cicero proclaims that he gave up the province of Gaul despite it being ornata, yet in the meeting of 1 January he announces his intention not to take a province if he can reasonably avoid one, due to the potential for tribunician interference (Cic. Pis. 5, Phil. 11.23; cf. Leg. Agr. 1.25–26). This, in combination with the evidence of Att. 4.17.2, strongly suggests that the necessary political manoeuvring meant the consular ornatio was not normally resolved in early January. Sallust and Granius Licinianus both record how the consuls of 78 were each given an army when they were assigned the province of Etruria after Faesulae’s rebellion.17 In 74, the consul L. Lucullus was initially assigned Cisalpine Gaul by sortitio, but later received Cilicia and the bellum Mithridaticum as his provincia. In this allocation (which was again unusual, as it was a provincial assignment sine sorte), the Senate met to decide the resources which Lucullus would need in order to defeat Mithridates. Apart from the troops already in Anatolia, they decreed that an extra legion should be raised in Italy and sometime later (when Lucullus had already left Rome) that three thousand talents could be taken to raise a fleet, a sum which Lucullus declined (Plut. Luc. 7.1, 13.4).18 Finally, the Gallic emergency of 60 led the Senate to decree that “the Consuls should cast lots for the two Gauls [and] that a levy should be held with all exemptions cancelled,” indicating that the ornatio was voted at the same time as the provinciae were assigned (Cic. Att. 1.19.2).19 Apart from these grants to consuls, there are examples in this period of grants for secondary praetorian provinciae. The example of Caesar in early 61 is discussed more fully below (section 6.2.2). Cicero casually mentioned in a letter to his brother in February 56 that the normal February business of hearing embassies had been postponed to the Ides, with the Senate instead considering the allocation of quaestorian provinciae as well as the praetorian ornatio (Cic. QFr. 2.3.1). The quaestorian elections had only been held in late January (due to the delay in aedilician elections), so it is reasonable that the Senate would wish to allocate the quaestors to provinces as soon as possible.20 This passage may point to a logical connection between the 16 17 18 19 20

On the date of Memmius’s revelation, see Sumner 1982, 137–38. Provinces still undistributed in December: Cic. Fam. 1.9.25. Sall. Hist. 1.66 Maur = 1.58 McGushin: uti Lepidus et Catulus decretis exercitibus maturrime proficiscerentur; cf. Gran. Licin. 35 Criniti: et consules dato Etruriam , ut scitum. The decree for a fleet must have come after Lucullus left Rome because he replied to it by letter. Senatus decrevit, ut consules duas Gallias sortirentur, dilectus haberetur, vacationes ne valerent. Cic. QFr. 2.2.2 notes the aedilician elections were due to be held on 20 January, and presumably the quaestorian elections followed immediately after.

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quaestors and praetors: each praetorian governor took a quaestor with him and, since we know that consuls could request quaestors by name, perhaps praetors could too (Dig. 1.13.1.2).21 The funds voted in the ornatio were normally paid to the quaestor. While Cicero’s tone suggests that this debate on the praetorian ornatio would normally have been held earlier, it is not clear whether the consuls’ ornatio had already been voted. Indeed, the consuls of 56 may not have received an ornatio decree, as Philippus (certainly) and Lentulus Marcellinus (probably) did not take provinces, and they may already have made this known. In describing Verres’ quaestorship under C. Carbo in 84, Cicero tells us that “money was voted, was paid; he went as quaestor to the province; he came into Gaul, where he had been for some time expected, to the army of the consul with the money” (Cic. Verr. 2.1.34).22 This is an unusual circumstance, of course, because Carbo had not departed from Rome as consul, but stayed with the army until he returned to hold elections for a suffectus (App. BCiv. 1.78). Later, Cicero describes a certain Marius as the successor to the province of Syria in 50, but he was delayed by a senatus consultum ordering that he must not travel to the province without the legions (Cic. Fam. 2.17.5).23 Broughton calls Marius a quaestor, which is the likely option considering the troubles the Senate had in assigning provincial commanders in 50 and the parallel failure of Cicero to be relieved in Cilicia.24 Proconsuls also required decrees de ornandis provinciis if they were prorogued. Sallust records how Pompeius wrote to the Senate on behalf of himself and Metellus Pius to request additional support (Sall. Hist. 2.98 Maur = 2.82 McGushin). This letter gives us several clues to the nature of support from Rome for ongoing campaigns in this period (even if there is good reason to think that the letter as we have it is largely Sallust’s creation). First, that rather than simply money or troops, the Roman armies needed support from Italy, primarily food, owing to the devastation of Hispania Citerior and a poor harvest in Transalpine Gaul (section nine). Second, it tells us Pompeius had been sent into Hispania with enough money to maintain his army for a year, but had not received any further grants, despite being given the provincia for a triennium (section three); this reinforces the a priori idea that pecuniary grants would normally be for a year, with the question being revisited the following year. Lastly, although the letter was read at the beginning of 75, Pompeius’s request was not answered until (at least) the second half of that year (section eleven).25

21 22 23 24 25

Harris 1976, 105. Cic. QFr. 1.1.11 might imply this. Pecunia attributa, numerata est: profectus est quaestor in provinciam: venit exspectatus in Galliam ad exercitum consularem cum pecunia. On the date of Verres’ quaestorship (which Broughton believes stretched as a proquaestorship into 82) see Broughton 1951, 2.61 and n. 3. Marium quidem successorem tarde video esse venturum, propterea quod senatus ita decrevit ut cum legionibus iret. Broughton 1951, 2.250. Sall. Hist. 2.98.11 Maur = 2.82.11 McGushin: hae litterae principio sequentis anni recitatae in senatu. sed consules decretas a patribus provincias inter se paravere; Cotta Galliam citeriorem habuit, Ciliciam Octavius. dein proxumi consules, L. Lucullus et M. Cotta, litteris nuntiisque Pompei graviter perculsi, cum summae rei gratia tum ne exercitu in Italiam deducto neque laus sua neque dignitas esset, omni modo stipendium et supplementum paravere, adnitente maxime

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The best attested example of grants to proconsuls already in the field is the senatorial decree of mid-56 for the stipendium of Caesar’s army in Gaul. Cicero connects this senatus consultum to others at the same time: the dispatch of decem legati to Gaul, and the decision not to replace Caesar lege Sempronia (Cic. Fam. 1.7.10).26 Interestingly, Cicero presents (Prov. Cons. 28) his arguments for the grant. He says that while there is no great necessity for the money (the booty being adequate to support the army), the Senate should show their support for the general and his victorious troops by paying them. Interestingly, there is no suggestion in Cicero’s speech of grants to other proconsuls being discussed. Perhaps they were not decided at this time, or perhaps they were raised but were uncontroversial. Finally, Pompeius in 52 was voted one thousand talents per year to maintain his forces, presumably for each year of his five year term. Yet only a few months later, in July 51, Caelius reports that a debate was held in the Senate concerning the pay for Pompeius’s soldiers (Plut. Pomp. 55.7; cf. Cic. Fam. 8.4.4). At first glance, these sources are difficult to reconcile. Perhaps there had been difficulties in actually arranging the pay. But in view of what Caelius mentions next – that in the debate, there was discussion of the legion which Pompeius had himself raised but then lent to Caesar – it seems more likely the purpose of the debate was to establish precisely which troops fell under Pompeius’s control and therefore should be paid through his grant. Speaking generally, this would have been important to clarify, particularly in wars where there was more than one commander serving in a theatre (such as Pompeius and Metellus Pius in Hispania). At the same time, it is symptomatic of the final years of the Republic that the Senate should be unsure who was actually in command of a legion. The final example of proconsular ornatio comes from Cicero’s sojourn in Cilicia in 51/50. His letters from this period are replete with discussions of the soldiers and funds which he was to have, as well as the means by which he received them, although we should note that the lex Pompeia of 52, by virtue of which Cicero held his unwanted proconsulship, changed the conditions of provincial command in ways that are still disputed.27 When he and Bibulus were assigned the provinces of Cilicia and Syria, it was in the expectation that a Parthian war was imminent. The proquaestor C. Cassius had been holding Syria with the remains of Crassus’s army for more than a year, while Ap. Claudius (cos. 54) commanded a relatively small number of troops in Cilicia. A majority in the Senate believed that reinforcements were necessary and that the departing proconsuls should hold a levy, but this was blocked by the consul Ser. Sulpicius Rufus, and Cicero and Bibulus were instructed to go east at once (Cic. Fam. 3.3.1). Senatorial decrees were sent ahead of them, instructing the commanders already on the ground to maintain their forces to a suitnobilitate, cuius plerique iam tum lingua ferociam suam et dicta factis sequebantur. See pp. 76–77 above. 26 Nam et stipendium Caesari decretum est, et decem legati, et, ne lege Sempronia succederetur, facile perfectum est. Cf. Cic. Balb. 61: idem in angustiis aerari victorem exercitum stipendio adfecit, imperatori decem legatos decrevit, lege Sempronia succedendum non censuit; Cass. Dio 39.25.1. 27 Marshall 1972; see below (chapter 8) on the lex Pompeia.

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able level; in his letter (Fam. 3.3.2), Cicero expects that Appius will already have received the senatus consultum in question. Later in Cicero’s proconsulship, when the threat of a Parthian invasion again flared up, the Senate ordered Pompeius and Caesar to each allocate one of their legions to the war, and the two legions had made it as far as Campania when news arrived that the Parthians had withdrawn. The legions remained in Italy, as Cicero had expected they would (Cic. Fam. 2.17.5; cf. Plut. Ant. 5; [Caes.] BGall. 8.54–55).28 Cicero, having brought no new troops out and with Ap. Claudius having dismissed a part of his already-diminished force, conducted a levy of Roman citizens in the province (Cic. Att. 5.18.2). Cicero seems to have departed for his province before the SC de ornandis provinciis had been passed, because his letters from this period show some anxiety about the matter.29 Yet authorisation clearly had been decreed (and Cicero had learned of it) by the time he reached the province, as a letter to Appius (Fam. 3.5.4) mentions his intention to receive money based on this authorisation when he entered the province at Laodicea.30 Those letters written at Brundisium may suggest that the matter had been settled, although they contain no clear allusion to Cicero’s funding. The first of Caelius’s letters, written in June, says nothing of the matter – which, considering Caelius himself writes that he had promised to keep Cicero fully informed, strongly suggests that the issue had already been dealt with (Cic. Fam. 3.3, 3.4, Att. 5.8; cf. Fam. 8.1.1). At the end of his year in office, Cicero still held a significant sum, as he not only left adequate support for his quaestor C. Coelius but returned a million sesterces to the treasury (Cic. Att. 7.1.6). 5.3 ORNATIO AS A POLITICAL WEAPON No provincial commander could be expected to achieve military success without both troops and the money to pay them (and to support himself). Therefore, he needed the ornatio decree to be passed before he was able to depart for his province: it formed a practical barrier. Caesar’s experience in departing for his praetorian provincia of Hispania Ulterior at the beginning of 61 is the exception that proves this rule. Suetonius tells us explicitly that Caesar departed for his province before receiving his ornatio (Suet. Iul. 18.1: ante quam provinciae ornarentur, profectus est). Suetonius connects this with Caesar’s urgent need to pacify his credi28 29 30

The passage from Ad familiares indicates that the Senate still held out hope that the legions would eventually reach Syria: Marium quidem successorem tarde video esse venturum, propterea quod senatus ita decrevit ut cum legionibus iret. Cic. Att. 5.4.2, written 12 May 51 from Beneventum, shows that the decree had not yet been passed, with Cicero worried that opponents in the Senate would block what was otherwise a routine matter. Pr. Kalendas Sextiles puto me Laodiceae fore; perpaucos dies, dum pecunia accipitur, quae mihi ex publica permutatione debetur, commorabor. Permutationes were a recognised means of transferring money over long distances, used by men of senatorial rank in both their private and public capacities, although it is likely the term covered a variety of arrangements: Cic. Att. 5.13.2; 5.15.2; 11.1.2; 15.15.4. See also Crawford 1985, 242 n. 3; Hollander 2007, 40–44.

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tors, as does Plutarch (Plut. Caes. 11.1–2, Crass. 7.6). Detailed examination (in section 6.2.2) shows the politics at play here. Yet this is the only late republican evidence we have for the praetorian ornatio being overtly politicised. There is, by contrast, plentiful evidence for tribunes (in particular) playing games with consular ornatio. Why the difference? A few reasons can be postulated. First, the praetors whose ornatio was in the balance were outgoing praetors, either near the end of their magisterial year or already out of office. Their ability to bargain their way out of any difficulty was limited, and anyone blocking their ornatio could obtain little from men whose power in the City was ending. Second, since ornatio seems normally to have been voted en bloc, all the praetors would have been affected, which would drive up the political cost for damaging them. Third, praetorian governors might not miss their ornatio, as only minor sums would often have been required for peaceful provinces and the opportunities for enrichment lay elsewhere. But this was not true of consuls: for them, ornatio was a serious hurdle which had to be cleared. One of Cicero’s letters to Atticus constitutes excellent evidence for the political nature of this issue. The letter was sent from Dyrrhachium on 10 December 58, when Cicero was keeping a nervous eye on the political realignments in Rome at the end of Clodius’s tribunate and was fearful that he would not be recalled from exile. It is worth quoting the relevant sections in full: Antea quom ad me scripsissetis vestro consensu consulum provincias ornatas esse, etsi verebar quorsum id casurum esset, tamen sperabam vos aliquid aliquando vidisse prudentius; postea quam mihi et dictum est et scriptum vehementer consilium vestrum reprehendi, sum graviter commotus, quod illa ipsa spes exigua quae erat videretur esse sublata. nam si tribuni pl. nobis suscensent, quae potest spes esse? ac videntur iure suscensere, cum et expertes consili fuerint ei qui causam nostram susceperant, et vestra concessione omnem vim sui iuris amiserint, praesertim cum ita dicant, se nostra causa voluisse suam potestatem esse de consulibus ornandis non ut eos impedirent sed ut ad nostram causam adiungerent; nunc si consules a nobis alieniores esse velint, posse id libere facere; sin velint nostra causa, nihil posse se invitis. nam quod scribis, ni ita vobis placuisset, illos hoc idem per populum adsecuturos fuisse, invitis tribunis pl. fieri nullo modo potuit. ita vereor ne et studia tribunorum amiserimus et, si studia maneant, vinclum illud adiungendorum consulum amissum sit. accedit aliud non parvum incommodum quod gravis illa opinio, ut quidem ad nos perferebatur, senatum nihil decernere ante quam de nobis actum esset, amissa est, praesertim in ea causa quae non modo necessaria non fuit sed etiam inusitata ac nova (neque enim umquam arbitror ornatas esse provincias designatorum), ut, cum in hoc illa constantia quae erat mea causa suscepta imminuta sit, nihil iam possit non decerni. iis ad quos relatum est amicis placuisse non mirum est; erat enim difficile reperire qui contra tanta commoda duorum consulum palam sententiam diceret. fuit omnino difficile non obsequi vel amicissimo homini Lentulo vel Metello qui simultatem humanissime deponeret; sed vereor ne hos tamen tenere potuerimus, tribunos pl. amiserimus. When you and my other supporters wrote to me that the grants for the consular provinces had been authorized with your consent, I had my misgivings about the consequences but I hoped that at some point or other you had seen further than I. Later I was told, both orally and in writing, that your tactics were coming in for strong criticism. I was deeply disturbed, because it looks as if even the faint ray of hope that existed has been extinguished. For if the Tribunes are annoyed with us, what hope can there be? And apparently they have fair reason for annoyance, since those of them who had undertaken to help our cause were not consulted and, through a concession on our part, have lost all the power of their prerogative – more especially as they

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Chapter 5. Ornatio say it was for our sake that they wanted the Consuls’ grants to be under their control, not in order to make difficulties for them but to attach them to our cause. They point out that if the Consuls should now choose to take an unfriendly attitude towards us they are free to do so; whereas, should they be well disposed, they can do nothing against their (the Tribunes’) wishes. As for your argument that if you had not agreed the Consuls would have carried their point through the Assembly, that would have been out of the question if the Tribunes had been in opposition. So I am afraid we may have lost the support of the Tribunes and, supposing that remains, I fear the hold we might have had over the Consuls has been let slip. A further and not negligible disadvantage is that the firm impression (or so it was reported to me) that the Senate was not passing any decrees before my case had been dealt with has been let go by the board, and that for a purpose not merely unnecessary but contrary to custom and precedent (I don’t think provincial grants have ever been authorized for Designates). Thus there is nothing to stop any decree, now that the line determined in my interest has been breached in this instance. As for those friends of mine to whom the question was put, it is not surprising that they spoke in favour. It would have been difficult to find anyone prepared to raise his voice publicly against a proposal so much to the advantage of the two Consuls. No doubt it was difficult to refuse such a good friend as Lentulus, or Metellus either when he was so handsomely waiving his grudge against me. But I suspect that we could have held them all the same and that we have lost the Tribunes. (Cic. Att. 3.24.1–2)

There is much to take from this. First, the evidential parameters. Cicero tells us explicitly that, in his memory, ornatio has never been passed for designati, which allows us to state that, at least for the previous few decades, such decrees were only ever passed after the consuls had taken office. Second, we know that consular provinces had already been decreed, since logically the Senate could not assign troops and funds to provinces which were unknown. Third, if Cicero in Dyrrhachium knew of the decrees on 10 December, they had probably been passed a few weeks before. More broadly, Cicero reveals to us the structural nature of ornatio as a political issue. The decree furnishing them with soldiers and funds was something which the consuls required for their provincial commands. The tribunes had the power to veto these decrees, which gave them political leverage over the consuls and allowed the possibility of a trade-off. In this instance, because the consuls-designate had already been given their ornatio, this leverage had gone, which upset the tribunes: they felt as if an intrinsic right of their office had been given away. This aspect of ornatio as a structural political issue – one that could be expected to recur every year – is an example of what Christian Meier (echoed by Peter Brunt) usefully describes as regelmäßige Politik (“routine politics”).31 It is an intrinsic contest between institutions, in this case the tribunate and the consulship, with a structural asymmetry of power. The consuls here depend on the tribunes, because the tribunes are in a position to deprive them of what they need. However, this is not a purely one-sided affair, as Cicero makes clear in his letter. When in this instance the decree was proposed and passed in the Senate to award the ornatio to next year’s consuls before they had even taken office, nobody would have been ignorant of the political nature of the action. Cicero does not accuse Atticus of ignorance, but rather of a misjudgement of the political balance: the orator believes they could 31

Meier 1980, 17–23; Brunt 1988, 448 and n. 6.

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have held the consuls without possibly losing the tribunes from his cause. The factor on the other side of the equation was the consuls’ gratitude to anyone who helped them in this situation, and the reluctance of senators to speak against something which would be to the consuls’ benefit. Consuls, after all, could be unpleasant enemies, and consuls with the certainty of a provincial command to go to (with all this entailed in terms of opportunities for patronage, immunity from prosecution, and the simple avoidance of political controversies in Rome) were in quite a comfortable position. Presumably, in this instance, Lentulus Spinther and Metellus Nepos had made it clear that while they were willing to help Cicero, they also expected those working in his interest to help them overcome the potentially tricky issue of ornatio. Not every consul was in this position and it is certainly no coincidence that in every case where a provincial command was assigned by plebiscite from 67 onwards, the ornatio provinciae was included in the law.32 We have another good example of ornatio as a structural political issue, during Cicero’s consulship in 63. In later reflections on his consulship, one point that Cicero makes repeatedly is that, at an uncertain time after the consular elections, he “in the public assembly renounced the province of Gaul, fully equipped and well appointed with an army and with funds by the authority of the Senate” (Cic. Pis. 5).33 He pays particular attention to the fact that the provincia was already ornata when he renounced it, which suggests it was more praiseworthy to reject it in that state. That is, such a province was more valuable than one that was not yet ornata. Well before the provincial assignment had reached this stage, in the peroration to his very first consular speech (the first speech De lege agraria made to the Senate on the Kalends of January), Cicero declares his intention not to take a province if he can avoid it. What is particularly interesting is the reason Cicero gives for this declaration: Cum vero scelera consiliorum vestrorum fraudemque legis et insidias quae ipsi populo Romano a popularibus tribunis plebis fiant ostendero, pertimescam, credo, ne mihi non liceat contra vos in contione consistere, praesertim cum mihi deliberatum et constitutum sit ita gerere consulatum quo uno modo geri graviter et libere potest, ut neque provinciam neque honorem neque ornamentum aliquod aut commodum neque rem ullam quae a tribuno plebis impediri possit appetiturus sim. dicit frequentissimo senatu consul Kalendis Ianuariis sese, si status hic rei publicae maneat neque aliquod negotium exstiterit quod honeste subterfugere non possit, in provinciam non iturum. sic me in hoc magistratu geram, patres conscripti, ut possim tribunum plebis rei publicae iratum coercere, mihi iratum contemnere. But when I have revealed the wickedness of your designs, the cunning fraud of your law, and the snares which are set by the popular tribunes for the Roman people itself, then, I suppose, I shall be afraid that I shall not be permitted to take a firm stand against you before a public meeting, especially as I have decided and made up my mind to carry on my consulship in the only manner in which it can be carried on with dignity and freedom. I will never seek to obtain a province, any honours, any distinction or advantage, nor anything that a tribune of the people can prevent me from obtaining. Your consul, on this 1st of January, in a crowded Senate de32 33

Cf. Vervaet and del Hoyo 2007, 32. Ego provinciam Galliam senatus auctoritate exercitu et pecunia instructam et ornatam … in contione deposui reclamante populo Romano. Cf. Cic. Phil. 11.23: qui instructam ornatamquea senatu provinciam deposui.

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Chapter 5. Ornatio clares that, if the Republic continues in its present state, and unless some danger arises which he cannot honourably avoid meeting, he will not accept the government of a province. I will so conduct myself in this office, conscript fathers, that if a tribune of the people falls out with the Republic, he may find control, and, if with me, contempt. (Cic. Leg. Agr. 1.25–26)

Cicero declares here that he intends to preserve his political freedom of action by voluntarily foregoing the normal consular prizes that are within the control of the tribunes. In this way, he intends to leave himself the ability to oppose the tribunes if necessary. Provincia is the only explicitly stated honos, although at the end of the year, speaking in retrospect, he emphasises what he has given up: imperium, exercitus, provincia, triumphus and even clientela (Cic. Cat. 4.23).34 Therefore, the connection is clear. The tribunes are structurally able to block Cicero’s departure to his province. They could not block the assignment of the province, because that had been decided the previous year under the lex Sempronia. As noted in the previous chapter, there is no sign that the sortitio was ever vetoed. And in Livy, restrictions on magistrates departing for their assigned provinciae were usually religious in nature and the responsibility of the Pontifex Maximus.35 So, if the tribunes could not block the choice of consular provinciae or the allocation of them to particular consuls, Cicero was presumably foreseeing their attempts to prevent the voting of men and money. In thus announcing that he intended not to take a province, he asserted his freedom from having to compromise with the tribunes. This was therefore an alternative way out of the structural problem each incoming consul faced, of how to manage the passage of the SC de ornandis provinciis consularibus. Cicero’s action here seems to have been replicated by Metellus Celer in 60. That consul was harassed and imprisoned by tribune L. Flavius, who threatened that unless Metellus withdrew his opposition to the tribune’s land bill, Flavius would not allow him to depart Rome for his province (Cass. Dio 37.50.4). However, by this time Metellus Celer was no longer interested in going to his province, rendering Flavius’s weapon ineffective.36 It is uncertain how Flavius intended to keep Metellus in Rome, but from what we have seen, the common tactics were blocking the ornatio or blocking the lex curiata. We have one final example of a consul facing this problem: Ap. Claudius in 54. His difficulty with ornatio has been generally overlooked because of his larger difficulty with obtaining a lex curiata (which is discussed in detail in section 1.2). However, his situation is useful for us, as it presents yet another means by which a consul might try to overcome opposition to this decree. This was the infamous pactio with two consular candidates, made probably in early July 54: Quae cum ita sint, pro imperio, pro exercitu, pro provincia, quam neglexi, pro triumpho ceterisque laudis insignibus, quae sunt a me propter urbis vestraeque salutis custodiam repudiata, pro clientelis hospitiisque provincialibus, quae tamen urbanis opibus non minore labore tueor quam comparo, pro his igitur omnibus rebus, pro meis in vos singularibus studiis proque hac, quam perspicitis, ad conservandam rem publicam diligentia nihil a vobis nisi huius temporis totiusque mei consulatus memoriam postulo. 35 See Livy 37.51.1–6 (189); 39.45.4–5 (183); cf. Rosenstein 1995, 51 nn. 28 & 29. See also section 1.3 above on profectio. 36 Broughton 1948b, 73–76.

34

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C. Memmius candidatus pactionem in senatu 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 quidem fuisset. The candidate C. Memmius read out in the Senate the text of a compact which he and his fellow candidate Domitius had made with the Consuls providing that, if they were themselves elected, they would furnish three Augurs who would state that they had been present at the passing of a lex curiata which had never been passed, and two Consulars who would state that they had witnessed a senatorial decree making provision for the consular provinces, though the Senate had not even met; failing this, they were both to forfeit the sum of HS 4,000,000 to the Consuls. (Cic. Att. 4.17.2)

This novel idea – that the consuls should simply bypass opposition by forging the relevant senatus consultum – was wrecked by Memmius’s revelation, and soon Cicero was reporting that “Appius thinks of going to Cilicia without a law, and at his own expense” (Cic. Att. 4.18.4: Appius sine lege suo sumptu in Ciliciam cogitate). In the event, we do not know whether any SC de ornandis provinciis consularibus was passed (although it seems unlikely), but Appius certainly took up his post in Cilicia, where he commanded approximately two legions. If he maintained these “at his own expense,” then his notorious rapacity is more comprehensible.37 Vervaet suggests that this incident demonstrates the Senate would refuse to pass a decree de ornandis provinciis for consuls who had not obtained their lex curiata.38 There are arguments both for and against this suggestion. On the one hand, Vervaet is correct that consuls who were unable to take the auspices optima lege in their provinces, perhaps before major battles in which the fate of Rome could be decided, would always cause great nervousness in the Senate – whatever the precise legitimating effect of a lex curiata, it is clear that it was held to be of importance in military matters. On the other hand, the Senate had just urged these same consuls to hold elections, after their lack of a lex curiata had become obvious to all (Cic. Att. 4.17.3).39 Moreover, while the scheme Memmius laid out would give the consuls both their ornatio and their lex curiata, there is no suggestion in this passage (Cic. Att. 4.17.2) that the one was logically dependent on the other. 5.4 CONCLUSION After the lex Sempronia, the decree de ornandis provinciis consularibus was no longer passed at the same time as the consular provinces were decided and distributed. By the Ciceronian period, it seems in practice to have been passed much later in the year, if at all. The practicalities of organising troops and funds were not the reason for this. Recruitment was time consuming, but the enfranchisement of Italy 37 38 39

See Cic. Att. 5.15.1: Cicero describes himself as having two understrength legions, and as we have seen, he brought no new troops when he replaced Appius in 51. Vervaet 2014, 333–34. See Vervaet 2015b, 220–22, who argues the consuls were unable to hold elections due to their lack of a lex curiata.

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meant that all soldiers were citizens recruited by the dilectus. No longer did the Senate have to approach each individual allied community with a demand for troops, meaning there was less need for a coherent annual recruitment strategy. And in emergencies (such as 74 and 60), the Senate showed it could still move rapidly. Rather, the delay in ornatio was due to the politics around the authorising decree. Consuls departed later in the year, meaning there was less pressure for the decree to be voted by an early date. The reverse of this might also be true: the ornatio decree was difficult to pass, meaning consuls could not depart as early as they wished. And ornatio seems to have been a political problem mainly for consuls: praetorian ornatio was tied to a different schedule, which was highly unpredictable (as we will see in the next chapter). The lex Sempronia may have been passed to take the politics out of the Senate’s decision on the consular provinces, but this had the paradoxical effect of moving the political contest to ornatio. Why was that? The consuls’ longer stay in Rome, and their role as political leaders, meant it was important for other actors to have leverage over them. The tribunes had this leverage. They could block any ornatio decree, just as they could block the lex curiata, and by the late sixties this seems to have given them a sense of ownership over the consular provinces, as Cicero informs us on two separate occasions. The prospect of a consul going out to his province suo sumptu, as Ap. Claudius contemplated, was not attractive.40 The result was that the consuls were structurally dependent on the tribunes for ornatio and so the tribunes could extract political concessions from them. This is what Cicero tried to avoid in 63, this is what Flavius tried to exploit in 60, and this explains the whole tenor of Clodius’s relations with the consuls in 58. Moreover, this is precisely what Meier means by regelmäßige Politik: a structural political conflict which could be expected to recur every year. One effect of the lex Pompeia de provinciis in 52 was to remove this dependence, which implies that it was recognised as a problem of the existing system (see chapter 8). But in the meantime, it was a problem consuls had to deal with it and they found a number of ways to do so: giving up provincial command as not worth the price, coming to a deal with the tribunes, even blatant forgery. This dynamic in the relationship between consuls and tribunes was an important part of politics after the restoration of tribunicia potestas in 70 and proved bad both for politics in the City and for the good government of the empire.

40

Compare Pompeius in Spain in 76, who complained about exhausting his own resources (Sall. Hist. 2.98.2 Maur = 2.82.2 McGushin).

CHAPTER 6 DEPARTURE AND TRADITIO Early in the Bellum Civile, Caesar criticises his enemies for disregarding mos maiorum in their rush to assign provinces, an act which pro-Caesarian tribunes had been blocking for a year:1 Provinciae privatis decernuntur, duae consulares, reliquae praetoriae. Scipioni obvenit Syria, L. Domitio Gallia. Philippus et Cotta privato consilio praetereuntur, neque eorum sortes deiciuntur. in reliquas provincias praetores mittuntur. neque exspectant–quod superioribus annis acciderat–ut de eorum imperio ad populum feratur, paludatique votis nuncupatis exeunt. consules–quod ante id tempus accidit numquam–ex urbe proficiscuntur […] lictoresque habent in urbe et Capitolio privati contra omnia vetustatis exempla. Provinces – two consular, the rest praetorian – are decreed to privati. Syria falls to Scipio, Gaul to L. Domitius. Philippus and Cotta are passed over by private arrangement and no lots are cast for them. To the rest of the provinces praetors are sent. Nor do they wait – as had been the habit in previous years – for their imperium to be brought before the People, but they assume military uniform, make their vows and depart. The consuls – which has never previously happened – depart the city […] privati have lictors in the city and the Capitol, contrary to all former examples. (Caes. BCiv. 1.6.5–7)

While the text is problematic – many emendations have been proposed – it demonstrates the way in which issues of public law governed the departure of magistrates for their provinces.2 The question of when magistrates departed has been discussed in scholarship before, but that discussion has neglected structural factors. This chapter examines consular and praetorian departures in light of the structure of the political year, before finally analysing the actual transfer of command in the province. 6.1 CONSULS In Livy’s narrative, the normal pattern is for consuls to be assigned their provinces immediately after taking office and then receive embassies, expiate prodigies and preside over the feriae Latinae before they are able to leave Rome.3 Livy frequently represents the consuls as being “liberated” to go to their provinces by the completion of the feriae Latinae.4 However, by the late Republic, this was no longer the case. Very few consuls left Rome to take up their provinces early in their tenure; those that 1 2 3 4

This is a modification of Damon’s OCT text and translation; for detailed argument, see Appendix E. Mouritsen 2017, 1–2 emphasises how this remained true even in the crisis of civil war. See, for example, Livy 32.29. See also Pina Polo 2011a chs. 1–4; Marco Simón 2011, 116–32. Marco Simón 2011, 130 and n. 27.

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did were usually responding to an emergency.5 Mommsen asserts that this shift was the result of a Sullan law formally separating consulship and proconsulship, so that consuls were debarred from going to a province until the end of their year.6 This notion was convincingly rebutted by Balsdon in his 1939 articles, and then finally exploded by Giovannini in 1983. There was no such law, and there was no legal change whatsoever in the imperium of consuls, at least under the Republic.7 So we are left with a difficulty: once they had fulfilled their customary civic and religious obligations in Rome (which in the period for which we have Livy’s testimony normally took two or three months at most), there was nothing stopping laterepublican consuls from going to their provinces. Yet they tended to remain in Rome for most of the year. The normal time of departure may well have been November, but there was no real consistency on this score, and for most consuls we have no information.8 However, Caesar is the only consul who we know both took a province and stayed near Rome beyond the end of his consulship (Suet. Iul. 23.1, Nero 2.2; Cic. Sest. 41; Schol. Bob. 130, 146 Stangl). As I have argued elsewhere, there is no single reason for this delayed departure, but three recent suggestions add something to the debate.9 Pina Polo situates the problem in a longer timescale, noting the frequent disruption to political life beginning with the tribunate of Tiberius Gracchus and suggesting that over the following half-century the Senate came to prefer the consuls remain near the city as an authoritative presence to deal with any unrest.10 The SCU was always addressed to the consuls, showing that they were normally in or around in the City at times of crisis. Moreover, Pina Polo associates this development with the greater involvement of the consuls in lawmaking, particularly from the last decade of the second century. This latter reason is developed by Ferrary, who links the consuls’ greater presence in Rome specifically to Sulla’s hamstringing of the tribunes.11 In the following decade, the consuls were at the forefront of domestic political action. Drogula focuses more on the situation in the provinces. He notes that after the lex Sempronia:12

5 6 7

8 9 10 11

12

Giovannini 1983, 83–90 proves this by examining all the consuls between 80 and 53. See also Pina Polo 2011a, 229–40. See the summary of Mommsen’s position, largely laid out in his early work on the Rechtsfrage, by Balsdon 1939a, 58. Giovannini 1983, 118–19 argues that the fundamental change by which the consuls lost their imperium militiae came in the constitutional settlement of 27. This is disputed by Ferrary 2001, 102–03, who argues that even under Augustus the position of the consuls was the same. See also Hurlet 2011, 319–35, who largely supports Ferrary’s position. Giovannini’s broader conclusions are supported by Pina Polo 2011a, 225–48. November: Balsdon 1939a, 67; Pina Polo 2011a, 237–39. Rafferty 2011. Pina Polo 2011a, 225–48. Ferrary 2001, 104 n. 12: “La restriction (et même selon moi la suppression) par Sylla de l’activité législative des tribuns a sans aucun doute influé en ce sens, jusqu’en 70 du moins, dans la mesure où les fonctions législatives et administratives retenant les consuls à Rome s’en sont trouvées renforcées.” Drogula 2015, 315.

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Most consular provinciae became opportunities to win military glory through discretionary campaigning from permanent provinciae rather than active wars in enemy territory that required immediate military action. As a result, consuls could afford to delay taking up their commands until the end of their terms in office, since, for most of them, any fighting would be discretionary and could be initiated if and when the commander chose.

The more discretionary nature of consular campaigning also meant that there was less risk for consular imperators that their predecessors would bring the war to a close before they arrived, which further reduced the urgency. And from the point of view of the Senate – since consuls tended to succeed other imperators in permanent territorial provinciae – as long as there was an imperator present in the province, it did not much matter who it was. Hence there was, usually, no strong reason for the Senate to urge the consuls to depart quickly. None of these reasons preclude the others: rather, each should be seen as a contributing cause. Routine political and constitutional factors should not be ignored. The issue of the ornatio provinciae, particularly, could be a difficult obstacle for the consuls to overcome. Also, scholars have not paid enough attention to the question of the elections. As Messalla the augur noted (and Gellius reported: NA 13.15.4), only consuls could creare other consuls: it was necessary for one of them to preside over the consular elections. Those elections were frequently held in July after Sulla (again, a change that has yet to be convincingly explained) and so a consul would now have to conduct them before departing to his province, rather than returning from his province for that purpose. After all, in the late Republic Italia was not normally a province, so it was not practicable for consuls to return for the elections.13 Moreover, frequent political disruption, or simple politicking, meant that the elections were often delayed, which would itself postpone the consuls’ departure.14 So first-century consuls’ longer stays in Rome were the result of weaker institutional push factors and stronger political pull factors. There were certainly reasons to prevent or discourage consuls from leaving Rome early. Yet when these reasons were absent, or when emergencies occurred (as in 78 or 74), those hurdles could be overcome. 6.2 PRAETORS While several scholars have examined when consuls normally departed Rome, praetors have not received the same attention. We have a great deal of evidence regarding post-Sullan praetors, but almost nothing for the preceding generation. Therefore, this section will focus on the years after 80. Our evidence points to late departure mostly resulting from delays to the different steps in the allocations process, particularly the dates of the sortitio for secondary provinciae. What is most

13 14

A point noted by Giovannini 1983, 90 n. 38. As demonstrated below in Appendix A2, the only time we know of a consul returning from a non-Italian province to hold the elections, he held Africa and/or Numidia–a short journey by sea. See for instance the continual delays to the consular elections in 54: Morrell 2014a.

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interesting is that these change wildly from one year to the next, which points to the Senate’s lack of concern with any regular transfer of power. This section collects and examines the evidence bearing on when praetors were assigned or departed for their secondary provinciae. Three passages in the Verrines are relevant in determining when C. Verres (pr. 74) was allotted Sicily as his province. The allocation of provinces took place by sortitio while the praetors of 74 were still in Rome (i. e. before profectio: Cic. Verr. 2.2.17). Hurlet argues convincingly that Verres’ profectio took place in the second half of December 74, based on Cicero’s language (Verr. 2.1.149): nemo Habonio molestus est neque Kalendis Decembribus neque Nonis neque Idibus; denique aliquanto ante in provinciam iste proficiscitur quam opus effectum est.15 Although this passage appears to refer to his actual departure from the environs of Rome, that is unlikely. First, the context of the statement is Verres’ activities as praetor urbanus, which he was evidently performing until shortly before his profectio. He was thus clearly still within the pomerium. Second, we know from another passage that Verres remained near Rome after he had assumed the paludamentum and crossed the pomerium, because Cicero makes a great point about him secretly returning into the City (and thus theoretically losing his imperium) to visit his mistress (Cic. Verr. 2.5.34). Brennan is thus likely correct when he places Verres’ departure for Sicily in early 73.16 And Verres was not the only praetor to remain near Rome after his profectio. Cassius Dio refers (36.41.1–2) to the praetor urbanus L. Lucceius giving up the province of Sardinia due to the corruption of other governors.17 Lucceius was evidently chosen by lot (the verb used is λαγχάνω) and the Greek strongly implies that this allotment took place after the ending of his praetorship.18 However, we 15 16 17

18

“Nobody made any trouble for Habonius either on the 1st of December, or a week later, or a fortnight later: in fact Verres had left for his province some time before the work was completed.” Hurlet 2010, 64. Brennan 2000, 486. Although the manuscripts read “L. Lucullus,” this is usually (and correctly) emended to L. Lucceius (pr. 67) (see Broughton 1951, 2.143). L. Lucullus’s praetorian province was Africa, not Sardinia, and the passage also refers to the praetor’s chair being destroyed by M’. Glabrio because he refused to rise from it when Glabrio passed. In an effort to save the manuscript reading, Monique Dondin argues that the incident occurred during Glabrio’s otherwiseunattested tribunate in 78. This is possible, in and of itself, but makes no sense in the context of the passage: it is Lucullus/Lucceius who links the two anecdotes, not Glabrio, and the naming of Sardinia as the province in question renders it impossible that the passage refers to Lucullus (whose praetorian province was Africa). Moreover, the precedent Dondin cites for a tribune destroying the chair of a praetor is Saturninus (in 103 or 100), who did so because the praetor in question was conducting legal business while the tribune was holding a contio. This is a very different matter from not rising to greet him: the maiestas being impugned in the Saturninus case is that of the populus Romanus, not of the tribune. See David and Dondin 1980, 199–205. Λούκιος δὲ δὴ Λούκουλλος τὴν μὲν στρατηγίαν τὴν οἴκοι διῆρξε, τῆς δὲ δὴ Σαρδοῦς ἄρξαι μετ’ αὐτὴν λαχὼν οὐκ ἠθέλησε, μισήσας τὸ πρᾶγμα διὰ τοὺς πολλοὺς τοὺς οὐδὲν ὑγιὲς ἐν τοῖς ἔθνεσι δρῶντας. (“Lucius Lucullus, on the other hand, after finishing his term of office as praetor urbanus, and being chosen by lot thereafter to serve as governor of Sardinia, declined the province, detesting the business because of the many whose administration of affairs in foreign lands was anything but honest.”)

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should not place undue weight on this implication, which may only mean that Lucceius received the province by lot and that he would have governed it in the year after his praetorship. Cicero tells us that in February 58 Clodius awarded provincial commands in Macedonia to L. Piso and Cilicia to A. Gabinius. Gabinius’s province was later changed to Syria by a second lex Clodia, with Cilicia being given to a praetor out of the regular order (Dom. 23).19 The fact that this assignment was made by a plebiscite for an individual praetor and was explicitly extra ordinem means it can tell us little about normal practice. But it matters who the praetor was. Syme, Broughton and Brennan have all argued (based on a disputed MS reading of Cic. Fam. 3.7.5) that he was L. Ampius Balbus, praetor in 59 and governing Asia in 58.20 In their reconstruction, Cilicia was decreed a consular province for 57 lege Sempronia (and thus before the consular elections, which in 58 were held in July), and so Clodius needed a stopgap before the new consular governor could be expected to arrive, near the end of 57. Hence Ampius. If this is true, then it has no relevance for any praetor of 58. But the identification of Ampius is quite tenuous, especially when we consider the simpler alternative: that on the model of Cicero’s suggestion in De provinciis consularibus, Cilicia could be assigned to a praetor of 58 and also a consul of 57. That praetor would then hold the province for up to a year. Nor was it unprecedented for a plebiscite to name a particular province as praetorian: the lex de provinciis praetoriis had done exactly that. So it remains a possibility that Cilicia was, by this lex Clodia, added to the praetorian sortitio for late 58 and held by an unknown praetor, who was in turn relieved by Lentulus Spinther (cos. 57). In the Pro Scauro, part of Cicero’s argument is that the Sardinian witnesses were lying on behalf of the consul Ap. Claudius, who had wanted (the patrician) M. Scaurus out of the running for the consulship to aid his own brother C. Claudius (who was also a patrician candidate). However, C. Claudius was unexpectedly prorogued in Asia (although Cicero presents the situation as the province itself begging him to remain) and therefore was not a candidate in 54 (Cic. Scaur. 35). The date of this prorogation is difficult to determine. The prosecution of M. Scaurus took place between July and September 54, and it would fit for C. Claudius to have been prorogued at about this time, especially if there was a general assignment of provinces (as was discussed in 56). The consular elections in 54 were originally scheduled for 28 July, as we saw above. However, it is impossible to be sure when any decree de provinciis was passed, or even whether C. Claudius’s prorogation was part of a general settlement of provinces. He is, after all, the only prorogued governor we know of in 53.21 19 20 21

Cui quidem cum Ciliciam dedisses, mutasti pactionem et Ciliciam ad praetorem item extra ordinem transtulisti: Gabinio pretio amplificato Syriam nominatim dedisti. Syme 1955b, 130; Broughton 1986, 15; Brennan 2000, 568, 573. There was a senatus consultum de provinciis c. June 54 (Cic. Att. 4.16.5), but this may have been a general decree on provincial government rather than one assigning provinces. Also, according to Plut. Cato min. 45.3, M. Cato (pr. 54) declined a province after his praetorship. It is not clear whether this was in relation to a sortitio, or whether Cato simply made plain his intention not to take a province.

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6.2.1 The praetors of 63 There is a great deal of evidence for the praetors of 63. Most of them were still in Rome when the Catilinarian conspirators were arrested, because several played active parts in that process. Yet their territorial provinces had been decided some months before. Cicero gives us enough evidence to determine roughly when but, in view of the conflicting scholarship on this matter, a full discussion is necessary. The consular provinces for 63 were decreed lege Sempronia to be Cisalpine Gaul and Macedonia, and in the sortitio of (probably) early January 63 Cicero drew Macedonia and C. Antonius drew Cisalpine Gaul.22 At a later date the consuls swapped provinces and, later still, Cicero publicly renounced any claim to govern Cisalpine Gaul in a contional speech (Cic. Pis. 5, Phil. 11.23, Att. 2.1.3). The province was then decreed praetorian and allotted (with some help from Antonius, who conducted the sortitio) to Q. Caecilius Metellus Celer (pr. 63) (Cic. Fam. 5.2.3). The fact that there was a sortitio tells us that all (or at least several of) the territorial praetorian provinciae were decided and allotted together. Allen argues that Cicero’s speech of renunciation took place in May or June 63, but his reasoning is erroneous, as Badian recognises.23 For Allen, the situation in 63 parallels that in 56 (for which we have Cicero’s speech De provinciis consularibus) and in 56 the consular and (at least some of the) praetorian provinces were debated together. But this was not always the case, as Allen himself realises. Moreover, Allen believes that one of Cicero’s goals was to avoid the possibility of Catiline obtaining Cisalpine Gaul, in which case the consul was hardly likely to resign the province (and so create this possibility) before he knew that Catiline would not become consul. Rather, Brennan is certainly correct in placing the decree de provinciis praetoriis and consequent sortitio after the consular elections.24 Those elections were probably held in late July, as we have seen.25 However, Metellus Celer (and the other praetors) did not leave immediately for their territorial provinces: he and Q. Pompeius Rufus were still present in Rome at the end of October, because it was then that they were dispatched to Picenum and Capua respectively (Sall. Cat. 30.5). Therefore, the decree and praetorian sortitio took place between late July and late October. Any attempt to decide when they fall within this period is dependent on reading the tone of illud dico, me, ut primum in contione provinciam deposuerim, statim, quemadmodum eam tibi traderem, cogitare coepisse (Cic. Fam. 5.2.3).26 Cicero’s use of statim suggests they fall earlier rather than later. Apart from this, there is one other mystery regarding Metellus Celer’s provincial assignment. The beginning of Cic. Fam. 5.2.4 reads as follows:

22 23 24 25 26

See the summary at Allen 1952, 233–35. See also Rafferty 2017, 162–64. Allen 1952, 236–39; Badian 1966, 914 n. 3. Brennan 2000, 581. Cf. Schulz 1997, 56, who mysteriously places the praetorian sortitio in March. See above, p. 86. “What I do say is, that having announced the relinquishment of my province at a public meeting, I lost no time in planning how to transfer it to you.”

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Iam illud senatus consultum quod eo die factum est ea praescriptione est ut, dum id exstabit, officium meum in te obscurum esse non possit. And now we come to that decree of the Senate passed on the same day [as the praetorian sortitio], the preamble of which is such, that so long as that decree is extant, there can be no possible doubt as to my kindness to you.

What was the nature of this officium? Spielvogel has suggested that it was the elevation of Metellus’s imperium to consular, which he regards as a purely honorific act, unrelated to the military requirements of the provincia.27 This is probably correct, although praetors pro consule were hardly an innovation and, as most previous governors of Cisalpine Gaul had been of consular rank, it was appropriate for Metellus Celer also to hold consulare imperium.28 The other praetors remained in the City until very late in the year. Apart from Metellus Celer and Pompeius Rufus, who had been sent away, five of them are named as present in Rome during the events of early December: P. Cornelius Lentulus Sura (executed on the Nones after abdicating his office), C. Pomptinus, L. Valerius Flaccus (both of whom participated in arresting the Allobroges), C. Sulpicius (who discovered weapons in Cethegus’s house) and C. Cosconius (who kept a record of evidence given by the informers).29 As we know that both Pomptinus and Flaccus took provinces (Pomptinus in Transalpine Gaul and Flaccus in Asia), their profectio must date after early December, and it is logical that they also participated in the sortitio which awarded Cisalpine Gaul to Metellus Celer.30 However, it is relevant here that Pomptinus’s triumph in 54 was a matter of controversy. This has caused some modern scholars to argue that Pomptinus’s imperium had been incorrectly obtained in 63. For instance, Drogula thinks that the issue was Pomptinus’s lex curiata, as:31 Pomptinus clearly had not followed the traditional manner of receiving a lex curiata, but whatever steps he took met the minimum legal requirement in Cicero’s eyes, although several prominent magistrates believed that the irregularity disqualified Pomptinus from celebrating a triumph.

He bases this on Cicero’s language in a passage which is worth giving in full: Pomptinus vult a. d. iiii Non. Nov. triumphare. huic obviam Cato et Servilius praetor ad portam et Q. Mucius tribunus. negant enim latum de imperio, et est latum hercule insulse. sed erit cum Pomptino Appius consul. Cato tamen adfirmat se vivo illum non triumphaturum. Id ego puto ut multa eiusdem ad nihil recasurum. Appius sine lege suo sumptu in Ciliciam cogitat. Pomptinus wants to celebrate his triumph on 2 November. Praetors Cato and Servilius are stopping him at the city gate with Tribune Q. Mucius. They say that no enabling law has been brought in, and it’s true that the manner of its bringing in was less than tactful. But Consul

27 28 29 30 31

Spielvogel 1993, 245. Vervaet 2012; Hurlet 2012. Broughton 1951, 2.166–67. Hurlet 2010, 58–61. Drogula 2015, 107. Staveley 1956, 89 and Bleicken 1998, 313–14, 316 n. 45 independently support this interpretation.

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For Drogula, this shows there was reasonable doubt about the way Pomptinus obtained his lex curiata during his praetorship in 63, even if Cicero thought his claim was valid. That is, Drogula believes that negant enim latum de imperio refers to the lex curiata. For him, this in turn explains Ap. Claudius’s support: the consul was concerned about his own lack of a lex curiata and so championed Pomptinus’s claim as a precedent for any future triumphal claim of his own.32 On balance, however, the evidence points the other way. It is true that there was already a religious cloud hanging over Pomptinus’s provincial command in 59. The first mention of this comes in Cicero’s speech In Vatinium, where the orator lambasts Vatinius for wearing a toga pulla to Q. Arrius’s feast, probably in about April 59 (Cic. Vat. 30). The ostensible reason, as both Cicero and the Bobbio Scholiast point out, was Vatinius’s public disagreement with the vote of a supplicatio for Pomptinus’s recent victories over the Allobroges. While Cicero gives no reason, the scholiast indicates Vatinius pointed to a religious impediment (Schol. Bob. 150 Stangl).33 This shows the supposed flaw in Pomptinus’s triumphal claim was already an issue in 59 and did not originate later. As Pomptinus was (very probably) still holding the province of Transalpine Gaul at the time, the flaw must date either from his praetorship or from his period in Gaul. Some indirect arguments can indeed be made that the flaw was related to Pomptinus’s lex curiata. To begin with, one can imagine how the lex curiata might have been blocked in the political circumstances of late 63. Metellus Nepos, who entered upon his tribunate on 10 December 63, is the obvious candidate: he was happy to veto Cicero’s end-of-year speech in contione, and so we can presume he would also have been happy to penalise those magistrates who were closely identified with Cicero’s suppression of the Catilinarian conspirators (Cic. Fam. 5.2.7–8, Pis. 6–7). That still leaves the issue of why the lex curiata had not been passed at the beginning of the year, as was customary.34 Yet here, too, a reason can be found: Cicero’s second speech De lege agraria, delivered in January 63, focuses heavily on the lex curiata, and he goes so far as to say the law was often blocked by the tribunes.35 Indeed the text of Rullus’s law, as Cicero represents it, seems also to anticipate the lex curiata (to be carried by a praetor) being blocked (Cic. Leg. Agr. 2.27, 29–30). This raises the possibility that the leges curiatae for the magistrates of 63 had already been 32 33

34 35

Drogula 2015, 107–09. Igitur ne Vatinio hoc prodesset, idcirco se atratum fuisse, ne supplicationes nomine C. Pomptini ratas habuisse et festa facie religiosas probasse videretur, occurrit e diverso Tullius non oportuisse etiam illo convivii tempore a ceterorum habitu dissentire, ne coetus epulantium unius veste lugubri contaminaretur. Van Haeperen 2012, 93 suggests that the lex curiata was normally passed on the day magistrates entered into office. Kunkel and Wittmann 1995, 599 note that there is no evidence prior to this speech of the tribunes actually doing this, but go on to say we should believe Cicero (“wir haben gleichwohl keinen Anlaß, der Angabe Ciceros zu mißtrauen”).

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blocked by the tribunes, or that this was in prospect when Cicero delivered his speech. On the other hand, we might well ask why there is no indication of a blocked lex curiata for any of the other magistrates in this year, the best-documented year in the whole of ancient history. Apart from Cicero’s own provincia (which, we might remember, was ornata when he gave it up), C. Antonius and L. Valerius Flaccus both governed territorial provinces and were later defended in court by Cicero.36 If Pomptinus did not receive his lex curiata, then we might expect a similar fate to have befallen his colleagues, and some hint of it to appear in our sources. This is not the case: there is no hint in the Pro Flacco of the prosecution raising any problem with the legality of Flaccus’s command, which is especially interesting when that prosecution took place after Vatinius’s stunt.37 However, it is unlikely the problem with Pomptinus’s triumph had anything to do with his lex curiata. The evidence comes from Cassius Dio 39.65.1–2: Κἀν τούτῳ καὶ ὁ Πομπτῖνος ὁ Γάιος τὰ ἐπινίκια τὰ τῶν Γαλατῶν ἔπεμψεν: ἐς γὰρ ἐκεῖνο τοῦ χρόνου, μηδενός οἱ διδόντος αὐτά, ἔξω τοῦ πωμηρίου διέμεινε. καὶ τότε δ᾽ ἂν αὐτῶν ἥμαρτεν, εἰ μὴ ὁ Γάλβας ὁ Σέρουιος συστρατευσάμενος αὐτῷ, κρύφα καὶ ὑπὸ τὴν ἕω στρατηγῶν τὴν ψῆφόν τισι ῾καίπερ οὐκ ἐξὸν ἐκ τῶν νόμων πρὶν πρώτην ὥραν γενέσθαι ἐν τῷ δήμῳ τι χρηματισθῆναἰ ἔδωκε. καὶ διὰ τοῦτο τῶν δημάρχων τινὲς ἀπολειφθέντες τῆς ἐκκλησίας ἐν γοῦν τῇ πομπῇ πράγματα αὐτῷ παρέσχον, ὥστε καὶ σφαγὰς συμβῆναι. At this time Gaius Pomptinus celebrated a triumph over the Gauls for as no one granted him the right to hold it, he had up to that time remained outside the pomerium. And he would have missed it then, too, had not Servius Galba, a praetor, who had made the campaign with him, granted as praetor to certain persons secretly and just before dawn the privilege of voting – this, in spite of the fact that it is not permitted by law for any business to be brought before the people before the first hour. For this reason some of the tribunes, who had been left out of the assembly, caused him trouble in the procession, at any rate, so that there was some bloodshed.

It is clearly Galba’s law to which M. Cato and his friends were opposed: the manner of its passage as described by Dio perfectly fits with Cicero’s description of it as insulse. Thus the Pomptinus affair has nothing to do with his lex curiata, but rather with Galba’s enabling law which either authorised the triumph (as Stasse argues) or more probably, in view of the negant enim latum de imperio in Cicero, authorised Pomptinus to retain his imperium within the pomerium on the day of the triumph (as Beard, Osgood and Rich maintain).38 Indeed, these may have amounted to the same thing in practice. This still leaves the problem of the nature of the religious flaw which Vatinius highlighted in 59. This problem cannot be solved: there was almost no limit to the number of religious offences a Roman magistrate or promagistrate could commit. Perhaps the likeliest solution is that Pomptinus failed to correctly take the auspices before one of his battles against the Allobroges and that this had become known in Rome by early 59. That would account for his imperium still being valid but his claim for a triumph (and a supplicatio) being invalid. It might also (partly) explain why the Senate was more comfortable in March 60 entrusting the feared Gallic war to the consuls (Cic. Att. 1.19.2–3). 36 Cicero’s provincia being ornata: Cic. Pis. 5, Phil. 11.23. 37 Alexander 2002, 78–97. 38 Stasse 2005, 380 n. 27; Beard 2007, 202–03; Osgood 2014, 158–59; Rich 2014, 237.

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6.2.2 The praetors of 62 The praetors of 62, including Caesar and Q. Cicero, did not receive their territorial provinces until early March 61, as is shown by three of Cicero’s letters to Atticus. The provinces had not been decided on 25 January (which Cicero reports in a tone of some surprise) and the Senate decided in early February that they would not be discussed until the issue of a jury to try Clodius over the Bona Dea scandal had been resolved.39 Finally, in a letter dated the Ides of March (Att. 1.15), Cicero quickly reports that the provinces have just been allocated and that his brother Quintus has received Asia, clearly implying that the law for Clodius’s trial has been passed.40 Suetonius informs us separately of C. Caesar’s provincial posting to Hispania Ulterior, in circumstances which are interesting and frequently overlooked: Ex praetura ulteriorem sortitus Hispaniam retinentes creditores interventu sponsorum removit ac neque more neque iure, ante quam provinciae or[di]narentur, profectus est: incertum metune iudicii, quod privato parabatur, an quo maturius sociis inplorantibus subveniret. Being allotted the province of Farther Spain after his praetorship, Caesar got rid of his creditors, who tried to detain him, by means of sureties and contrary both to precedent and law was on his way before the provinces were provided for; possibly through fear of a private impeachment or perhaps to respond more promptly to the entreaties of our allies for help. (Suet. Iul. 18.1)

Additional details (largely in agreement) are provided by Appian and Plutarch: both authors emphasise that Caesar was detained in Rome by his creditors (App. BCiv. 2.8; Plut. Caes. 11.1–2, Crass. 7.6). Plutarch adds that it was Crassus who went surety for Caesar’s debt for a massive amount: Ἀλλ᾽ ὕστερόν γε φιλικῶς ἀλλήλοις προσεφέροντο: καί ποτε τῷ Καίσαρι μέλλοντι μὲν εἰς Ἰβηρίαν ἐξιέναι στρατηγῷ, χρήματα δ᾽ οὐκ ἔχοντι τῶν δανειστῶν ἐπιπεσόντων καί τῆς παρασκευῆς ἐπιλαμβανομένων ὁ Κράσσος οὐ περιεῖδεν, ἀλλ᾽ ἀπήλλαξεν ὑποθεὶς αὑτὸν ἔγγυον τριάκοντα καί ὀκτακοσίων ταλάντων. But afterwards, at least, they were on friendly terms with one another, and once when Caesar was on the point of setting out for Spain as praetor, and had no money, and his creditors descended upon him and began to attach his outfit, Crassus did not leave him in the lurch, but freed him from embarrassment by making himself his surety for eight hundred and thirty talents. (Plut. Crass. 7.6)

Yet Caesar was also being detained in Rome by the Bona Dea affair. Cicero’s language in a letter from January 61 is worth reporting in full here: Credo enim te audisse, cum apud Caesarem pro populo fieret, venisse eo muliebri vestitu virum, idque sacrificium cum virgines instaurassent, mentionem a Q. Cornificio in senatu factam (is fuit princeps, ne tu forte aliquem nostrum putes); postea rem ex senatus consulto ad virgines

39

40

(Cic. Att. 1.13.5, VI Kal. Febr.): provincias praetores nondum sortiti sunt. Hurlet 2010, 57 emphasises how nondum indicates Cicero’s surprise. See also Cic. Att. 1.14.5: senatus et de provinciis praetorum et de legationibus et de ceteris rebus decernebat ut ante quam rogatio lata esset ne quid ageretur. Mamoojee 1977, 81 persuasively suggests that the provincial allocation had taken place very shortly before the letter was written, as the letter is short and wholly devoted to that news.

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atque pontifices relatam idque ab iis nefas esse decretum; deinde ex senatus consulto consules rogationem promulgasse; uxori Caesarem nuntium remisisse. I expect you have heard that at the national sacrifice in Caesar’s residence a man in woman’s clothes got in, and that after the Vestals had repeated the ceremony Q. Cornificius (he took the lead, in case you think it was one of us) raised the matter in the Senate. It was then referred back by senatorial decree to the Vestals and College of Pontiffs, who pronounced that the occurrence constituted a sacrilege. Then by senatorial decree the Consuls promulgated a bill. And Caesar sent his wife notice of divorce. (Cic. Att. 1.13.3)

Cicero presents the senatorial events very much as a unity. Johnson makes two relevant points on matters referred to the pontifical college by the Senate. First, that it is likely the Senate formally instructed a magistrate to consult the pontifices rather than addressing them directly and, second, that rather than the college being consulted as a body, this request was given to the Pontifex Maximus, who then instructed the pontifices to assemble.41 Generally, the pontifices present in the Senate might have reached their decision and provided their responsum then and there, rather than having to leave and report back, but in this instance, as the matter was referred both to the pontifices and to the Vestals (who were, of course, under the discipline of the Pontifex Maximus), there must have been an external meeting.42 Nevertheless, this need not have required delay: the Pontifex Maximus – Caesar, in this case – could easily have assembled the Vestals and those pontifices present in Rome, probably at the Regia, and provided a responsum to the Senate either that same day or soon afterwards. Presumably the senatus consultum instructing the consuls to promulgate a bill followed immediately on the pontifical response, as did Caesar’s divorce. There is one problem: when all this took place. Balsdon dates it either to late December or early January, but for our purposes it matters greatly which it was.43 If the investigation is placed in late December, then there is no immediate problem: Caesar was still praetor and thus probably present within the City. But if Cornificius only raised the issue in January, then Caesar would presumably be outside the pomerium with imperium as a promagistrate, and unable to re-enter the City without laying down that imperium. And it does seem likely that all this came in early January: Cic. Att. 1.12, written on the Kalends of January, mentions the scandal but not it being raised in the Senate.44 Yet there is additional evidence that Caesar was definitely inside the sacred boundary in 61. Appian, Plutarch and Suetonius all report that Caesar was summoned as a witness at Clodius’s trial (in March?), and was questioned, although he refused to support the evidence given by his mother and sister that Clodius had been present in his house (App. BCiv. 2.14; Plut. Caes. 10.8– 9; Suet. Iul. 74.2). This was the occasion of the famous statement that Caesar’s wife 41 42 43 44

Johnson 2007, 145–47. Johnson 2007, 147–48. Balsdon 1966, 67. So Lacey 1974, 86. Other evidence is more ambiguous. While the Senate directed the new consuls to introduce a bill for Clodius’s trial, this does not require a January date for the pontifical responsum: at Cic. Fam. 8.8.5, in a decree passed in September 51, the Senate instructs the following year’s consuls by name.

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must be above suspicion. Cicero’s evidence proves that the trial took place in the Forum (Cic. Att. 1.16.5: pleno foro servorum). If Caesar was inside the pomerium for the trial, there is no reason why he could not also have been inside it for the earlier pontifical investigation. Caesar’s imperium is thus a problem, one to which there are several possible solutions. The first is that he did not depart paludatus at the end of 62 but instead remained in Rome and lost his imperium. However, if the pontifical investigation mentioned above came in January 61 rather than December 62, there is no reason for him to have done this. The second is that he re-entered the City in early 61 (whether to conduct the pontifical investigation or to give testimony in Clodius’s trial) and so forfeited his imperium, but subsequently received a special grant as (strictly) a privatus cum imperio when he departed for Hispania. The third option is that the Senate specially authorised him to re-enter the City without forfeiting his imperium. The third is perhaps the most likely option, despite the prominence of Caesar’s enemies in the Senate.45 The praetorian sortitio was then held in early March, but it is unclear whether the Senate also decreed at this time which provinces would be praetorian, or whether that had long ago been decided and the provinces were now only allotted. However, it does appear that the ornatio was delayed even after this, and that this was an unexpected delay. As Mamoojee observes, Cicero noted (in the letter to Atticus dated the Ides of March) that he intended to send a follow-up letter with Quintus himself, in a tone implying this would happen quite soon. But Quintus does not appear to have left Italy until May or June, and travelled in quite a leisurely manner.46 Such a delay requires explanation. It is very likely that Quintus received his full ornatio as governor, as Cicero often refers to his brother’s large entourage: Quintus was not the sort of man who would support such an entourage from his own pocket (Cic. QFr. 1.1.10–13).47 And we know from Suetonius that Caesar departed for his province of Hispania Ulterior without his provincial ornatio, which the biographer describes as neque more, neque iure (Suet. Iul. 18.1). However, Plutarch also says that Caesar’s creditors tried to seize his baggage (παρασκευή), baggage which according to Suetonius had not been voted when Caesar departed (Plut. Crass. 7.6, cf. Caes. 11.1). This is a puzzle at first glance, but a reconstruction is possible. First, we may discount the explanation found in Suetonius, that Caesar left precipitately to avoid a lawsuit or to help the allies. The presence of incertum shows this is Suetonius’s own speculation and is not found in his sources. But the language used by all sources, that Caesar’s creditors were attempting to seize his property, suggests a civil law procedure, where the seizure of property in dispute was often a way to initiate a court action. The difference here is that the property in question was that voted by SPQR to a legally appointed proconsul (as Plutarch’s language in 45

This does not rule out the idea, floated by Schulz and Osgood, that Crassus was behind the (suspiciously fortuitous) allocation of Hispania Ulterior to Caesar. Any manipulation of the sortitio would be performed by the consul conducting it, irrespective of the wishes of the Senate as a whole. See Cic. Fam. 5.2.3; Schulz 2002, 266–68; Osgood 2014, 150–52. 46 Mamoojee 1977, 81–82. Mamoojee bases this assertion on the dates of Att 1.16 and 1.17. 47 This passage, full of praise for Quintus’s conduct, gives no hint he had declined his ornatio.

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the Life of Crassus makes clear), while it was an established point of Roman law that a magistrate or imperium-holder could not be summoned to court.48 The best explanation is that Caesar’s creditors (probably encouraged by his powerful enemies such as Q. Catulus (cos. 78)) made it known that when the ornatio was voted, they intended to take possession of this money as part payment of Caesar’s massive debts. This might be legally doubtful, but would be highly embarrassing to Caesar. His way out of this conundrum was twofold. First, Crassus came to his rescue by standing surety to allow him to leave at all, and second (as Suetonius tells us) he forewent his provincial grant to avoid it being seized, intending to make his own arrangements. A slightly different possibility is that he forewent his own vasarium but still accepted the army’s stipendium. But the legally unprecedented threat to a proconsul’s ornatio makes it difficult to confidently embrace any one solution to the problem. Such a reconstruction fits what we know. Moreover, it explains why the Senate decided that the best way to show they were serious about the Bona Dea incident was to delay the praetorian provincial assignments which were already overdue; there is not an obvious connection between these two actions. But it allowed the boni, who were largely Caesar’s enemies, to happily marry together two political issues at a stroke. This does not explain why the praetorian provinces had not already been assigned before January, but it is likely that the general uncertainty about what Pompeius would do when he returned to Italy (he landed at Brundisium in December 62) meant that the Senate preferred to keep holders of imperium close at hand, particularly those, such as Caesar and Q. Cicero, who could not be trusted in the event of a showdown with Pompeius. Moreover, there is the issue of the date at which the Senate could legally reassign Pompeius’s provinces. The lex Gabinia had assigned him the war against the pirates for a triennium, but there is no explicit term given for his command under the lex Manilia.49 Girardet has suggested, plausibly, that the command was quoad debellatum esset, which then creates the problem of when it could be argued the war was finished.50 It may be that the Senate only felt comfortable to reassign Pompeius’s provincia once the general had landed at Brundisium (which may explain why the other praetorian provinces were delayed, as the Senate would wish to consider them all together). There is one further relevant issue: Cicero’s boast that he deprived the consul M. Piso of Syria: Pisonem consulem nulla in re consistere umquam sum passus, desponsam homini iam Syriam ademi (Cic. Att. 1.16.8).51 While it has been argued (notably by Giovannini) that Cicero had the province assigned to L. Marcius Philippus (pr. 62), whom Appian tells us governed Syria for two years (Syr. 51), this is

48 49 50 51

Dig. 2.4.2: in ius vocari non oportet neque consulem neque praefectum neque praetorem neque proconsulem neque ceteros magistratus, qui imperium habent, qui et coercere aliquem possunt et iubere in carcerem duci. Cf. Dig. 47.10.32; Weinrib 1971. Triennium: Cass. Dio 36.23.4. Girardet 1992a, 182–83. “I drove Consul Piso from pillar to post and deprived him of Syria, which had already been pledged to him.”

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very probably not the case.52 Philippus would have participated in the sortitio with the other praetors back in late February or early March, whereas Cicero’s letter is from May 61 and refers to events which had just taken place. As argued above (p. 68), the likelihood is that the promise to Piso was that he would be Philippus’s replacement. 6.2.3 Other examples Other evidence throws light on the situations of the praetors of 59, 57 and 56. There are two sources for the praetors of 59. In the first, a letter to his brother, Cicero mentions that Quintus is preparing to leave his province of Asia (Cic. QFr. 1.2.8).53 It is clear that Quintus already knows who his successor is (although that man is not named), implying this had been mentioned in another recent letter. The date of Cicero’s extant letter can be established reasonably well: section 16 indicates that the magistrates have been elected, but that the tribunes have not yet entered office. Lily Ross Taylor argues that the elections in 59 probably began on 18 October, which was the date set for them by Bibulus.54 Therefore, the letter was sent between late October and early December. But it is not clear how long before the letter the praetorian sortitio had taken place. The other source is the Pro Flacco: Tu, T. Vetti, si quae tibi in Africa venerit hereditas, usu amittes, an tuum nulla avaritia salva dignitate retinebis? You, Titus Vettius, if a legacy comes to you in Africa, will you lose it from another man’s use of it, or will you keep it as your own without any taint of rapacity or loss of your good name? (Cic. Flacc. 85)

This shows the sortitio for the praetors of 59 had taken place by the date the speech was delivered, and T. Vettius had drawn Africa.55 But when was the Pro Flacco delivered? Certainly by the time Att. 2.25 was written, since in that letter Cicero tells how Hortensius, in his own speech for Flaccus, praised Cicero and the defendant for their actions in 63. Oost makes the reasonable point that a man of Cicero’s vanity “would have conveyed the news of Hortensius’ praise of the annus mirabilis to Atticus by the first letter he wrote after he heard Hortensius speak.”56 However, dating Att. 2.25 is itself quite difficult. Shackleton Bailey (in his Cambridge and Loeb editions) dates it to September, for no apparent reason. Taylor dates it to be52 53 54 55

56

Giovannini 1983, 87 n. 36. Nunc tamen decedens, id quod mihi iam facere videris, relinque, quaeso, quam iucundissimam memoriam tui. successorem habes perblandum; cetera valde illius adventu tua requirentur. Cf. Willems 1883, 2.573 n. 1. Taylor 1968, 188. Willems 1883, 2.573 n. 1 asserts that the letter dates from November, which is probable but not certain. Hurlet 2010, 60 n. 62 raises the possibility that the praetors of 59 had both their urban and territorial provinciae allotted before they entered office, in order to explain this passage. However, he then points to the evidence from 63 (see above, section 6.2.1) which renders this highly unlikely. Oost 1956, 22.

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tween 20 and 28 August (and thus dates the Pro Flacco to shortly before this), on the grounds of the probable time taken by Atticus to reply to Att. 2.20.57 This is approximate at best, as we know of the frequent difficulty Cicero had in finding reliable messengers to carry letters. Presumably Atticus, in Epirus, had even greater difficulty (which Taylor does in fact allow for, although to my mind not enough). Finally, Oost prefers what he calls the conventional dating of the letter to October, but he bases his disagreement with Taylor on his belief that the tribunician elections were, like the curule, delayed until that month.58 However, Taylor is surely right to note that Bibulus’s “Archilochian” edict which delayed the elections had no effect on the tribunician elections since, as consul, Bibulus had no authority over the officers of the plebs.59 Therefore, it appears that the Pro Flacco was delivered probably sometime in late August or early September, and so the praetorian sortitio must have taken place some time before that. Another question is the relationship between this sortitio and Caesar’s receipt of Transalpine Gaul. The latter took place probably in June, as it was after the passage of the lex Vatinia which most scholars place in May (but which may have taken place as early as February), but it is rarely discussed. In view of the parameters already established for the praetorian sortitio in 59, the possibility exists (although it is no more than a possibility) that the award of Transalpine Gaul to Caesar was simply one part of a general provincial settlement and that the praetorian sortitio came immediately afterwards. As noted above (p. 98), the usual view that Metellus Celer (cos. 60) held Transalpine Gaul, and thus that it was his death which allowed the province to be assigned to Caesar, was disproved by Broughton.60 There is thus no external reason why the province should have been assigned to Caesar at this particular juncture, unless it was part of just such a general provincial settlement. However, this is not very likely. The language of the sources, although not explicit, instead supports Gelzer’s hypothesis that Pompeius proposed an individual assignment for Caesar’s benefit and thus that the other provinces were not assigned at this time.61 Regarding the praetors of 57, the key passage is from Cic. QFr. 2.3.1: Interim reiectis legationibus in Idus referebatur de provinciis quaestorum et de ornandis praetoribus; sed res multis querelis de re publica interponendis nulla transacta est. Meanwhile the deputations having been put off until the 13th, the question of assigning provinces to the quaestors and of supplying the praetors with the proper officers and forces was brought before the house; but so many complaints of the state of public affairs were interposed, that nothing was settled.

This letter is dated mid-Febuary 56, and shows that the praetors of 57 had not yet received their provincial ornatio, making it unlikely they had yet left Rome. This suggestion receives some support from two apparently conflicting pieces of 57 58 59 60 61

Taylor 1950, 48. Oost 1956, 25–6. Taylor 1968, 189. Broughton 1948b, 73–76. Gelzer 1968, 87; Suet. Iul. 22.1; Cic. Att. 8.3.3.

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evidence. Plutarch tells us that Ap. Claudius (pr. 57) was governor of Sardinia and was present at Luca, while Cicero records in a letter of March 56 that Appius had not yet returned from visiting Caesar (Plut. Caes. 21.5; Cic. QFr. 2.4.6). Leaving aside the illegality of an imperator leaving his province with the intention of returning (which Plutarch also claims of Metellus Nepos in Hispania Citerior), Plutarch implies that after the meeting, Appius would return to Sardinia, but Cicero is clear that he is expected to return to Rome. Normally, we would think that Plutarch has his facts wrong, but in light of the above passage from Cicero’s letter to Quintus, it is rather more likely that Appius had not yet left for his province in March 56; this may mean that the ornatio had not yet been voted, or perhaps that Appius was just unusually dilatory. Some (slight) additional support may be found in another of Cicero’s letters addressed to Q. Valerius Orca as proconsul in Africa. Here, Cicero mentions accompanying Valerius Orca as he left the Capitol paludatus, and says that postea he spoke with him at length about future letters of recommendation (Cic. Fam. 13.6a.1).62 If Valerius Orca was still present near Rome (and thus available to speak to Cicero) after he had donned the paludamentum, then there must have been a delay before he actually departed for his province. The occasion of Cicero’s speech De provinciis consularibus in 56 was a senatorial debate on which provinces should be decreed to next year’s consuls, yet the speech also makes recommendations about provinces being declared praetorian. When Cicero rose to deliver his sententia, it is evident that four previous proposals had been made. One was that both the Gauls be made consular, another that Syria and Macedonia be made consular and the third and fourth that one of the Gauls and either Syria or Macedonia be made consular. Cicero suggests these last suggestions also entailed both Syria and Macedonia being made praetorian, thus showing that at least some of the praetorian provinces could be decided at this time (Cic. Prov. Cons. 17).63 It is clear that the Gauls were not declared consular, as Caesar continued in his command. But if we could link this speech with the known provinces which the praetors of 56 eventually took up, we would have further evidence of when these provinces were decided (if not actually allotted). The four known praetors of 56 are M. Aemilius Scaurus, Q. Ancharius, C. Claudius Pulcher and Cn. Domitius Calvinus.64 We do not know whether Domitius took a province, but C. Claudius received Asia and was prorogued there. M. Scaurus governed Sardinia, whence he returned to be prosecuted de repetundis and defended by Cicero in an extant (if fragmentary) speech in 54. This speech offers Credo te memoria tenere me et coram P. Cuspio tecum locutum esse cum te prosequerer paludatum et item postea pluribus verbis tecum egisse ut, quoscumque tibi eius necessarios commendarem, haberes eos in numero meorum necessariorum. The force of item postea is clearly “at a later date,” rather than “later on the same day.” I am grateful to Andrew Turner for guidance on this issue. 63 Atqui duas Gallias qui decernit consulibus duobus, hos retinet ambo; qui autem alteram Galliam et aut Syriam aut Macedoniam, tamen alterum retinet in utriusque pari scelere disparem condicionem facit. ‘Faciam,’ inquit, ‘illas praetorias, ut Pisoni et Gabinio succedatur statim’. 64 Broughton 1951, 2.208.

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nothing for our purpose, save Asconius’s bare statement that Scaurus ex praetura provinciam Sardiniam obtinuit (Asc. 18C). However, Q. Ancharius replaced L. Piso in Macedonia, and two passages of the in Pisonem give some clue about the process. In this speech (delivered between July and September 55, after Piso’s return), Cicero mentions first that Piso learned Macedonia had been declared praetorian, but that Gabinius in Syria had not been so replaced.65 Shortly afterwards, he refers to a rumour which reached Piso that Q. Ancharius was not going to succeed him (Pis. 88, 89). Cicero does not provide any context for dating either of these items absolutely or relative to each other. The first passage might indicate that his speech De provinciis consularibus in June 56 was at least partially successful, and that Macedonia was declared praetorian (but Syria was not) at that time.66 It remains unclear whether all praetorian provinces were decided then. As argued above (p. 79), just because the consular provinces were decided did not require that the rest be praetorian, as the Senate could later decide to prorogue some imperators. Interestingly, Cicero’s language does not rule out Syria being declared consular in June 56. Piso’s supposed anguish was due to being replaced by a praetor at the beginning of 55 (rather than later). As for Gabinius, even if Syria had been made consular in June 56, he could only expect to be replaced late in 55 or sometime in 54 (as in fact happened). We can also derive evidence for the date of departure from those times when praetors are attested as active at Rome late in the year, which gives us a terminus post quem. As it happens, all such dates relate to court cases. In Att. 2.3.1, Cicero tells us of the acquittal of an unknown Valerius on an unknown charge in December 60.67 This can only tentatively be used as evidence for praetorian presence: as we do not know the court, we cannot know whether a praetor or iudex quaestionis was in charge. The following year, Cicero mentions in a letter to his brother that C. Cato was unable to prosecute Gabinius for ambitus as the praetors could not be approached for several days (Cic. QFr. 1.2.15).68 This letter is dated between 25 October and 10 December 59. Since Cicero mentions “several days” over which Cato could not approach the praetors, we can probably place multiple praetors still in Rome around the start of November 59, in a year when we know their territorial provinces had been allotted by early September. It is unsurprising that we see ambitus prosecutions running so late in the year: for obvious reasons these would not normally occur before the elections, and we might presume that in years when the elections were delayed the praetor holding the ambitus court as his provincia would be detained in Rome until the very end of the year. Morrell also argues that the trials of Manilius in 66 and Rabirius and Gabinius in 54 were held at the very end of the year, suggesting a change in judicial procedure since Verres’ trial.69 The fact that 65 66 67 68 69

Date: Nisbet 1961, 201. As Lintott 2008, 210 believes. Valerius absolutus est Hortensio defendente. id iudicium Auli filio condonatum putabatur. Cato, adulescens nullius consili sed tamen civis Romanus et Cato, vix vivus effugerit quod, cum Gabinium de ambitu vellet postulare neque praetores diebus aliquot adiri possent vel potestatem sui facerent. Alexander 1990 no. 248. Morrell 2017, 165–71.

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Augustus ended the custom of trials in November and December (Suet. Aug. 32.3) further supports this. 6.3 TRADITIO IMPERII Provinces in the late Republic were usually continuous entities, and so a consul or praetor leaving Rome to go his province needed to take it over from its previous holder. This transition of command (traditio imperii) was the end point in the process of provincial assignment that we have been studying.70 When did it take place? This is not as straightforward a question as it appears: Mommsen believed that from the moment a consul was allotted his provincia, it was his, and the incumbent served as a sort of deputy until the new consul physically arrived there.71 There are, moreover, certain controversies in the late Republic which can only be seen in their proper light if we correctly understand traditio. At the centre of Giovannini’s argument in Consulare Imperium is the idea that consuls possessed their provinces from the beginning of their consulship and could proceed there as soon as convenient. He states so explicitly:72 Cicéron a donc dit la vérité: de son temps, comme dans les siècles précédents, les consuls devaient avoir une province le jour de leur entrée en charge et prenaient possession de cette province pendant leur consulat, en leur qualité de consuls. Ils ne pouvaient le faire qu’après avoir accompli leurs obligations en ville de Rome, comme par le passé; ils devaient avoir du Sénat l’autorisation de partir, comme par le passé; mais ils avaient dès le début de leur mandat autorité sur leur province, que le gouverneur sortant ne continuait de commander qu’en sa qualité de suppléant.

This is simply wrong. As was made clear in the Introduction, the question of when a consul might be said to “have” his province is not a straightforward one. But the incoming imperator could not issue orders to the incumbent until he had physically arrived there – whether “there” meant simply within the boundaries of the province, or at the army camp, or at least somewhere in the vicinity. Vervaet has summoned several examples to demonstrate this.73 But additional evidence can be found. In 71, the praetor L. Caecilius Metellus was allotted the provincia of Sicily and, while still in Rome, sent letters to the Sicilian cities (Cic. Verr. 2.3.44).74 Cicero makes it clear that it was unusual for him to do so, as his predecessor C. Verres still held the pro70 71 72

73 74

On the term, see Vervaet 2014, 65. Mommsen 1906, 130–31; cf. Balsdon 1939a, 58. Giovannini 1983, 90: “Cicero therefore spoke the truth: in his time, as in previous centuries, the consuls were to have a province on the day of their assumption of power, and took possession of that province during their consulship, in their capacity as consuls. They could do so only after they had fulfilled their obligations in the City of Rome, as in the past; they should have permission from the Senate to leave, as in the past. But from the very beginning of their mandate they had authority over their province, which the outgoing governor continued to command only as a deputy.” Cf. Crook’s perceptive review of Giovannini (Crook 1986, 287). Vervaet 2014, 65–66. Vervaet discusses in this connection the succession of L. Scipio to M’. Glabrio in 190, as well as Pompeius’s succession to L. Lucullus in 66. Drogula 2015, 145–46.

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vincia: Metellus, in Cicero’s words, sent the letters ante tempus. Clearly it was highly improper for the next governor of a province to interfere there before he had physically arrived and taken command. This is dramatically illustrated by Lucullus, Glabrio and Pompeius in 67–66. The first lex Gabinia in 67 transferred the province of Bithynia-Pontus and Lucullus’s command against Mithridates to M’. Acilius Glabrio (cos. 67). It also ordered the discharge of part of Lucullus’s army (Cic. Man. 26; Sall. Hist. 5.13 Maur = 5.11 McGushin) and may have set a time limit on Glabrio’s command.75 Glabrio left Rome early in the year, soon after the law’s passage: in Cassius Dio’s account (36.14.4–15.1) news of Glabrio’s approach is almost simultaneous with Q. Marcius Rex’s (cos. 68) arrival in his province of Cilicia, while Plutarch also suggests that the consul’s arrival in Bithynia and the effect this provoked in Lucullus’s camp belong to the spring or early summer (Plut. Luc. 35.1–5). Dio says that only when he arrived in Bithynia did Glabrio appreciate the true situation: Lucullus’s army in Cappadocia was mutinous and inactive, while Mithridates had almost destroyed a sizeable Roman force under Triarius, and now rampaged at will in Pontus (Cass. Dio 36.17.1).76 The consul had probably brought very few troops with him, as he came to end the war rather than fight it. Once in Bithynia, he made no attempt to take over from Lucullus or to assert his authority in person; contrast his behaviour with Pompeius’s the following year, who sent letters to the army ordering it to meet him (Plut. Luc. 35.7). Yet Glabrio’s proximity – and what would appear to the troops as an imminent change of commander – created an ambiguous situation. The Valerian troops withdrew from Lucullus’s camp (Cass. Dio 36.15.3), while the rest treated Lucullus with contempt, “as being already a mere private citizen” (36.14.4).77 Yet the army, as disaffected as it was (expecting its discharge under the lex Gabinia), remained Lucullus’s to command, not Glabrio’s. Glabrio might have been physically in his provincia, but had not taken up the war against Mithridates. We can well understand why Cicero described him as “slothful and negligent” (Brut. 239). Consequently, when, a year later, the lex Manilia gave Pompeius command in that war, it was Lucullus rather than Glabrio whom he replaced. The personal meeting, whereby the army passed from one imperator to the next, was between these two (Plut. Luc. 35.7–36.4; Cass. Dio 36.46.1). Nothing could more clearly illustrate the physical nature of the traditio imperii. When an army was involved, the transfer of command required the new imperator to physically be in the province and act to take command. The army was the source and instrument of Roman power: the traditio imperii in a province required the army to recognise its new imperator and swear the sacramentum to him. The requirement for the new imperator to be physically present is also the subtext to the best-documented case of traditio imperii we have: Cicero’s supersession of Ap. Claudius (cos. 54) in Cilicia in 51. The clear implication of several phrases 75 76 77

Vervaet 2011, 278–79. Williams 1984, 226 paints a vivid picture of the situation in Anatolia at this time. Ἐν γὰρ ὀλιγωρίᾳ αὐτὸν ὡς καὶ ἰδιωτεύοντα ἤδη.

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in Cicero’s letters of this period (Fam. 3.2 to 3.6) is that the actual transfer of power will take place when Cicero physically enters the province. Thus, Cicero makes it clear to Appius by which route he intends to enter and on which date he expects to arrive, and after he does arrive he expresses dismay at the rumours that Appius is still exercising his authority in Tarsus even though his successor has arrived at Laodicea and is on his way to Iconium (Cic. Fam. 3.2, 3.3.1, 3.5.4, 3.6.4). It is possible that the clear rules Cicero alludes to about the circumstances under which Appius should cease exercising his authority and defer to his successor were new and included within the lex Pompeia, but Cicero also refers to a provision of the lex Cornelia (de maiestate?) that Appius should depart from the province within 30 days of Cicero’s arrival in it (Cic. Fam. 3.6.3). All this throws new light on an important episode in late-republican history which often goes unnoticed by historians: the interference by C. Calpurnius Piso (cos. 67) with Pompeius’s recruitment for the pirate war in Transalpine Gaul. Cassius Dio records that Piso used his officers in Transalpine Gaul “which he then governed” (ἧς ἦρχε) to obstruct Pompeius’s recruitment while Plutarch tells us (Pomp. 27.1) that Piso interfered with Pompeius’s logistical arrangements in Italy and discharged his crews.78 Both are surely referring to the same events, for the consequence is the same: Gabinius prepares a bill to strip Piso of imperium and depose him from office. The problem with this passage is what precisely Dio means by ἧς ἦρχε. Later, Piso definitely governed both Transalpine and Cisalpine Gaul, but equally definitely he had not yet left Rome when this affair occurred. There had not, as yet, been any traditio.79 By what authority, then, did Piso presume to issue orders in Transalpine Gaul? Vervaet supposes that Piso was here stretching beyond his consular prerogative in response to what he saw as an overwhelming threat to the res publica.80 That is certainly plausible, and explains Gabinius’s response from a legal perspective.81 More recently, Vervaet has suggested that in view of the Pompeian threat, Piso was authorised, as the bulwark of senatorial opposition, to hold his province through legati pro praetore until he himself arrived.82 In any event, Giovannini is wrong to interpret Piso’s action here as “tout à fait normal,” and as exercising (through legates) the same sort of authority as Pompeius exercised over his Iberian provinces from 55.83 Even if he was authorised to send legates – as a temporary measure, not a long-term arrangement like Pompeius in 55 and after – Piso was challenging the lex Gabinia by obstructing Pompeius’s recruitment. The 78 79 80 81 82 83

Cass. Dio 36.37.2: ἄλλως τε καὶ ἐπειδὴ τοῦ Πίσωνος μὴ ἐπιτρέψαντος τοῖς ὑπάρχοις καταλόγους ἐν τῇ Γαλατίᾳ τῇ Ναρβωνησίᾳ, ἧς ἦρχε, ποιήσασθαι δεινῶς ὁ ὅμιλος ἠγανάκτησε· καὶ εὐθύς γ’ ἂν αὐτὸν ἐκ τῆς ἀρχῆς ἐξήλασαν, εἰ μὴ ὁ Πομπήιος παρῃτήσατο. It should be noted that it is unclear whether the previous governor of Transalpine Gaul was still in place or had returned to Rome. If he had returned, and the province was sine imperio, then clearly the situation was rather different. Vervaet 2011, 287–88. Vervaet’s focus here is explaining why Piso was assigned these particular provinces. Cf. Gabinius’s own behaviour when, as proconsul in Syria, he refused to be replaced by Crassus’s legate but only by Crassus himself: Cass. Dio 39.60.4. Vervaet 2014, 222 n. 23. Giovannini 1983, 90.

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consul came near to plunging Rome into civil war again by this overreach. Clearly, then, magistrates in office did not normally have the right to interfere in provinces, even provinces which had been allotted to them, before they had physically arrived there to take control. 6.4 CONCLUSION Both consuls and praetors could be the victims of a long, drawn-out process of provincial assignment. All stages of this process – the decree of the territorial provinces, the sortitio which assigned them to individual magistrates (or ex-magistrates), and finally the decree de ornandis which authorised troops and money – could take place at widely varying dates. Consuls had the advantage of time: the lex Sempronia ensured they normally entered office knowing which two provinces were consular and could arrange their distribution at leisure. But this left the hurdle of the ornatio and the necessity to conduct the elections, which tripped up many a consul. If any pattern can be determined for praetors, it is that the Senate was content to keep them waiting for provinces long after the expiration of their magistracy: this happened to the praetors of 62 and again to those of 57, without evoking anything more from Cicero than mild surprise. Yet even on those occasions when the allocations process was completed early (as probably happened in 63 and 59), the magistrates in question did not leave immediately. Evidently a delay in replacing provincial imperators was not regarded as the collapse of empire, which in turn suggests that as long as someone was in command of a province, the Senate did not much care who it was. Importantly, the precise date at which any stage in the process took place had no implications for the actual transfer of command: that only happened when the new governor physically arrived in his provincia. In all this, it is perhaps the very lack of a pattern which is so illuminating, although there seem to be signs of increasing dysfunction in the fifties. If there was a preferred time of year for assigning praetorian provinces – which is what we might expect – it is difficult to trace it. Internal politics seems routinely to have trumped the interests of imperial administration.

CHAPTER 7 REFUSING PROVINCIAL COMMAND In a sweeping judgement on their failure, Ernst Badian claimed:1 The post-Sullan oligarchy had no sense of mission. Even outside the selfish ambitions of the men who finally tore it apart, this can be demonstrated. Between 78 and 59, when ordered government may be said to have ceased, twenty-one consuls (over half) are not attested in provincial government … There were men who did not want to leave the excitement of the city, or the pleasures of their villas, for the duties of service abroad. We all know Cicero’s disgust when, in 52, the Senate exerted pressure on men like him to make them at last face their responsibilities. And although here we are even less well informed, we can be sure that there were praetors too who felt and acted like this … Sulla, looking at his own time and his own career, had seen it as his duty to provide against excessive ambition, against over-eagerness to command armies and govern provinces. He had apparently failed to think of inertia and irresponsibility. Yet it was these petty vices that helped to ruin his system.

Badian is correct that a significant minority (at least) of consuls and praetors between 78 and 59 did not hold provincial command.2 And most modern scholars who discuss this phenomenon see it as characteristic of the post-Sullan era.3 I argue below that it has an earlier origin, but the problem remains: why did eligible magistrates avoid provincial command? The question of the aristocracy’s lack of mission is one we can (temporarily) put to one side, but that still leaves a paradox: it seems counterintuitive for a Roman politician to refuse any chance for military glory and personal enrichment. Yet closer inspection shows provincial government offered little chance of either. Those peaceful provinces normally held by praetors were essentially glorified garrisons, with little scope for military achievement.4 And their governors were tightly controlled: “the publicans and the local elites had divided the profit margins in minute detail during the, usually long, period of Roman rule” and any attempt by a governor to elbow his way to a large personal share was likely to lead to a repetundae prosecution.5 Nor was there much prospect of impressing the voters with a record of steady administration: as Blösel shows, praetors who declined provincial government had a significantly better record at the consular elections than those who 1 2 3 4 5

Badian 1970, 30–31. See Brennan 2000, 400–02 and especially the data assembled by Blösel 2016, 68–74. See also the discussion in Appendix A5. See e. g Hantos 1988, 111–13; Schulz 1997, 49; Brennan 2000, 400–01; Ferrary 2001, 104–05 (although Ferrary also sees its origins in the nineties). Blösel 2016 restricts his (excellent) discussion to the period 80–50, without giving a reason for this choice. Drogula 2015, 235–55. Blösel 2016, 74–75 argues that outgoing praetors in the sixties and fifties had a better chance of establishing a military reputation by serving as a legatus to Pompeius or Caesar than by governing a backwater province in their own right. Blösel 2016, 77.

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accepted it.6 In the Pro Plancio, Cicero tells us why this was the case: as a young quaestor, he had returned from his year of service in Sicily only to find that his friends did not realise he had been away. The lesson he drew was that “the people of Rome had deaf ears, but very sharp and active eyes” (Cic. Planc. 66) and that great achievements in the provinces counted for less than living in the public eye in Rome itself.7 It is tempting to generalise from Cicero and believe that those magistrates who declined territorial provinciae did so in order to focus on politics in the city and to keep themselves always in the public gaze.8 The problem with such explanations is that they are essentially private: they explain only why individual magistrates found it convenient not to go to a territorial province from their magistracy. But these private reasons could not serve as public justifications, and such justifications would surely have been necessary. Magistrates were, after all, elected to perform the duty they were assigned by the Senate. Declining to govern a province which the Senate assigned them would therefore seem to amount to a dereliction of that duty. This is particularly true of consuls: what was a consul for, if not to lead armies against Rome’s enemies?9 We do occasionally find traces of this attitude in the late Republic, as when the consuls of 77 were each offered (and declined) the command against Sertorius in Hispania. It was then offered to the young Pompeius, and the aged consular Philippus famously quipped that Pompeius was to be sent “not in place of a consul (pro consule), but in place of (both) the consuls (pro consulibus).”10 The implication that the consuls were not living up to their responsibilities is plain. Yet, oddly enough, such criticism is rare in the late Republic. The sources usually represent a magistrate’s decision to refuse a province either positively or neutrally. This fact presents an additional problem, because it contradicts what we would expect in a political system in which the governing class was so oriented towards public service. Three levels of explanation are therefore necessary. We have already seen the first level, which is private: why magistrates really desired to avoid holding a territorial province. The second level is public: how they justified and represented their decision to others. We will detect two main streams here: ethical (the idea that provincial exploitation is wrong and a good man will avoid it) and strategic (the idea that the magistrate can better serve Rome in other ways). The third level is structural: how was it conceivable that SPQR could allow magistrates not to do their jobs? How was it not a major inconvenience? As we will see, the answer arises from the logic of secondary praetorian provinces in the late second 6

Blösel 2016, 75–76: 9 out of 20 praetors (45 %) who are known to have declined a praetorian province went on to the consulship; 17 consuls had held a praetorian province as against 35 who certainly or probably had not. 7 Nam postea quam sensi populi Romani auris hebetiores, oculos autem esse acris atque acutos. 8 See also Cic. Mur. 42, where it is implied that Sulpicius thought his consular campaign was best served by remaining in Rome to help his friends. 9 See pp. 61–63 above on the fact that the consuls were still presumed to be Rome’s natural military leaders in the first century. See also Catulus’s speech against the lex Gabinia: Cass. Dio 36.31–36. 10 Cic. Leg. Man. 62. The story is repeated with slightly different wording at Phil. 11.18. Cf. Plut. Pomp. 17.4, where the insult to the consuls is more evident.

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century and is not a Sullan innovation. Finally, while we know (or can infer) that many consuls and praetors did not hold territorial provinces, it is not necessarily the case that this was voluntary. We have evidence of political contests over allowing magistrates to depart for their territorial provinces (like those over the ornatio decree, discussed in chapter 5), and some indication that these contests could prevent provincial command altogether. It is thus likely that at least some of the non-governors on record were not able to clear the necessary political hurdles.11 In this chapter, I will first discuss the public justifications which must have been offered for refusing provincial command and then look at the impact of this refusal on Rome’s process of provincial allocation (and vice versa). Finally, I will seek to determine if there was a process for refusing a province. 7.1 PROTESTATIONS OF VIRTUE First, the consuls. Only four are known to have declined provincial command in the first century.12 Three of them – Q. Mucius Scaevola in 95, Pompeius in 70 and Q. Hortensius in 69 – are known to us from a single reference, while the example of Cicero in 63 is widely attested in his writings. Scaevola’s case is dealt with in detail in Appendix B. Velleius Paterculus (2.31.1) records that Pompeius as consul in 70 “made the laudable promise, which he also kept, that he would not go from that office to any province.”13 We learn from Cassius Dio (36.1a) that Q. Hortensius was allotted Crete as his provincia in 69 but gave it instead to his colleague and remained in Rome. It is also probable that Q. Metellus Celer in 60 gave up his provincial command under pressure; this is treated in more detail above.14 Cicero’s refusal of a provincia in 63 is well documented. The consular provinciae chosen the previous year were Macedonia and Cisalpine Gaul. The sortitio in early January gave Macedonia to Cicero and Cisalpine Gaul to C. Antonius. Yet even now Cicero showed his reluctance, stating in the Senate that unless circumstances obliged him to, he would not take a provincia (Leg. Agr. 1.26).15 He then swapped provinciae with Antonius, giving Macedona to his more ambitious colleague, while at some point the decree for ornatio was passed. Then Cicero resigned (deponere) Cisalpine Gaul in contione, causing it to be assigned to a praetor

11 12

13 14 15

Therefore, fewer examples are given here than in Brennan’s very useful list, which covers all praetors who did not go to a province for any reason (2000, 792 n. 90). Blösel 2016, 68 and n. 4 lists fourteen consuls “who are explicitly attested as declining” a province. He offers no evidence in support and it is not clear where this list derives from; it is not the same as the lists offered by Balsdon 1939a, 63 n. 46 or Badian 1970, 30 n. 81 (of consuls who did not take up a province for any reason). While Blösel explicitly bases his data on Brennan, Brennan does not give a list of consuls (as opposed to praetors) who declined a province. Qui cum consul perquam laudabiliter iurasset se in nullam provinciam ex eo magistratu iturum idque servasset. Broughton 1948b, 73–76; see also p. 98 above. See pp. 97–98 above.

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for the only known time in our period (Cic. Pis. 5, Fam. 5.2.3).16 It is worth noting the justification Cicero offered. On the first of January, he told the Senate that he wanted to be free of any potential interference from tribunes of the plebs: Praesertim cum mihi deliberatum et constitutum sit ita gerere consulatum quo uno modo geri graviter et libere potest, ut neque provinciam neque honorem neque ornamentum aliquod aut commodum neque rem ullam quae a tribuno plebis impediri possit appetiturus sim. I have determined and resolved so to conduct myself in my consulship … as neither to desire any province, nor honour, nor dignity nor advantage nor anything whatever which can have any hindrance thrown in its way by any tribune of the people. (Cic. Leg. Agr. 1.25)

That tribunician interference in ornatio provinciae was a realistic threat has already been shown (see chapter 5). Therefore we have no reason to doubt the plausibility of Cicero’s argument in January 63 that he wanted to preserve his consular freedom of action by avoiding the usual game of supporting tribunician initiatives in exchange for a guaranteed ornatio provinciae. Later in the year, when his provincia was already ornata (and thus free from any tribunician interference), Cicero justified his renunciation of it by the Catilinarian threat and his determination to protect the res publica (Cic. Pis. 5, Phil. 11.23); he implied he was better able to do so in Rome than in the field. Yet privately he admitted that he had refused his provincia for essentially personal reasons (Cic. Fam. 5.2.3). Four praetors are known to have voluntarily declined their secondary (territorial) provinciae. L. Lucceius (pr. 67) refused the province of Sardinia because of the dishonesty of those normally involved in provincial government (Cass. Dio 36.41.1).17 M. Tullius Cicero (pr. 66) refused a province, as did Ser. Sulpicius Rufus (pr. 65): no reason is given, and Cicero represents the decisions neutrally (Mur. 42).18 Given his situation, he could not do otherwise. Lastly, M. Porcius Cato (pr. 54) declined a praetorian province, although Plutarch (Cato min. 45.3) does not give his reasons. Yet the placement of this statement in Plutarch’s narrative – when Cato is pointing to his own virtue compared to Pompeius’s corruption – makes it clear that Cato regarded his refusal as a virtuous act. Clearly, then, whatever the private reasons why a magistrate might not wish to go to a territorial province (such as a fear of weakening his relationships in Rome in his absence, or of prosecution on his return, or a simple lack of enthusiasm to perform a disagreeable task) he could publicly present the refusal as an act of virtue. The continentia of such an action is clear from those occasions when Cicero discusses his refusal of a consular province. His language is of a provincia as a reward: for him it is one of the “badges of honour” (laudis insignibus) which he has given up in order to resist Catiline. The others are an army, imperium and provincial clients (Cic. Cat. 4.23). We gain an insight here into the different ways in which ethical ideas influenced how some in the governing class thought about Rome’s empire in the first century.19 16 17 18 19

See pp. 106–07 for details. See p. 104 above. Postremo tu in provinciam ire noluisti. Non possum id in te reprehendere quod in me ipso et praetore et consule probavi. Fantham 2013, 143 says that “here Cicero is on delicate ground.” See Morrell 2017, particularly 5–10 and 98–100.

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Two currents of thought can be discerned, both of which focus on the exempla provided by Q. Mucius Scaevola (cos. 95). The first comes from Asconius: for him, Scaevola’s refusal of a consular provincia in 95 showed his contempt for the petty triumph-hunting of his colleague L. Crassus (14–15C).20 This is almost the first opposition we see to the intense desire for gloria through conquest later exemplified by the dynasts such as Pompeius and Caesar, the symbol of which was the triumph. Such a reaction was only ever a minority position; the picture of the Romans painted in Harris’s War and Imperialism in Republican Rome remains largely true. But it can be detected on a number of levels. Cornell and Eckstein have argued that, from the mid-second century, Rome’s military threats were mostly minor and low-intensity.21 The great wars of conquest which dominate the narrative were departures from the norm and it was as obvious to the ancients as it is to moderns that these wars were fought primarily for the gloria and benefit of the great commanders.22 The success of these men was certainly greeted with extravagant honours. But it also provoked a reaction, obviously political (in the trenchant opposition of many to Pompeius and then Caesar) but also moral and prudential. Cicero and Sallust could certainly see the damage which such an unhinged desire for gloria was doing to the res publica.23 And, when it suited him, Cicero was able to portray this cupiditas triumphae as ridiculous: witness his description in the in Pisonem of L. Crassus and C. Cotta combing the Alps, spear in hand, searching for enemies to triumph over (Pis. 62). But similar reservations are detectable much more widely. Sulla (and perhaps earlier lawmakers) took steps to prevent unnecessary warmaking: the lex Cornelia de maiestate forbade imperators to make war on their own initiative (Cic. Pis. 50). When Lucullus’s Mithridatic command began to be dismantled, one of the justifications was that he was prolonging the war for his own benefit (Cass. Dio 36.2.1). One element in anti-Caesarean propaganda in the fifties focused on his excessive ambition, which had caused him to conquer Gaul for no other reason than a desire for gloria.24 But the classic example is the reaction to M. Crassus’s Parthian project. Plutarch’s account of his departure for the East (Crass. 16) brings all these elements together: Crassus is setting out to make war on peoples who have done no wrong to Rome but who are bound by treaty, and he is starting this war purely to outdo Lucullus and Pompeius. We are a long way here from Harris. The second current responded to Scaevola’s exemplary (praetorian) governorship of Asia. Morrell has recently argued that an improvement in the standard of provincial government was at the heart of Pompeius’s project as consul in 70.25 20 21 22 23 24 25

Ferrary 2000a, 164 suggests that Scaevola’s province may have been Liguria, connected with Crassus’s war. If that is the case, then Scaevola’s refusal was also a comment on the Senate’s priorities. On the dates of Scaevola’s provinciae, see Appendix B. Cornell 1993, 154–60; Eckstein 2006, 582–84. Hence Caesar’s concern, in the Bellum Gallicum, to justify his conquest; see Riggsby 2006, 157–90. Long 1995, 216–17 and n. 11. See especially Cass. Dio 38.35.2, but also Plut. Caes. 22.4 and Cato min. 51.1–2, which emphasise the irreligion of Caesar’s warmaking. Morrell 2017, 22–56.

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Ethical provincial administration on the Scaevolan model was an active political programme in the late Republic, one which appears to have enjoyed widespread support. The Stoic Cato, for one, took the problem very seriously but most aristocratic Romans had received some philosophical education and thus would be aware of (for example) Panaetius’s teachings on this matter. But the flip side of a concern with high standards was the depressing realisation that many governors did not live up to them. Indeed, for Romans without direct experience of the provinces, the repetundae court provided a steady stream of reprobates. Much of the public image of the provincial governor as a type would have been formed in this court; certainly every repetundae trial involved a prosecutor out to blacken the defending governor’s behaviour. Hence an alternate way of signalling one’s Scaevolan virtue was to disclaim any interest in such a sordid matter as provincial command. Lucceius displays this most clearly – his justification, according to Cassius Dio (36.41.1), was that he wanted no part of such a dishonest business as governing a province, alluding to the many examples of rapacious governors in recent decades. It is also detectable in Pompeius’s refusal in 70.26 For a man who had already celebrated two triumphs, his declaration was a way of showing that he sought nothing more. Moreover, he cultivated a reputation, particularly around this time, as the sole Roman princeps who was honest in all his dealings and uninterested in plundering the provinces.27 Similarly, Cicero later boasted that any reputation he had for integrity flowed as much from his rejection of provinces as from his successful administration of Cilicia (Fam. 2.12.3). And Cato’s refusal, as noted above, did not preclude him from taking an active part in improving provincial government in the late fifties. Thus we see how standing apart from the dirty business of provincial exploitation could be presented as a virtuous act. 7.2 STRUCTURAL IMPLICATIONS Structurally, it is not obvious why SPQR should allow its magistrates to avoid the provincial commands they were assigned to, no matter how virtuous it might make those magistrates appear. Rome needed imperators in its provinces and Livy’s narrative shows that, in the 170s, attempts to evade provincial service were not easily approved.28 Brennan supposes that this stringency remained the case until Sulla’s dictatorship and that the subsequent laxity was a conscious part of “the Sullan system.”29 Yet he seems at a loss to explain it, only observing that all attested cases 26

Vervaet 2010, 146–47 argues strongly that this promise “had been utterly broken before it was made.” 27 See especially the picture painted by Cicero: Leg. Man. 13 and 39–41. Morrell 2017, 57–61 argues that the Pro lege Manilia presents Pompeius as Pompeius wished to be presented, while she also highlights the similarities to the Ciceronian image of Scipio Aemilianus. 28 Livy 41.15.6–10; cf. Brennan 2000, 401. 29 Brennan 2004, 48 (referring to the lex Pompeia), “Pompey also attempted to fix a curious built-in structural flaw of the Sullan system. Oddly, Sulla had allowed that an ex-consul or expraetor could refuse a territorial province after he had drawn a lot for it in the mandatory

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followed Sulla’s enactments in 81. This is incorrect, and based on Brennan’s supposition that Scaevola’s refusal was actually his early return from Asia. Badian penetrates closest to the heart of the matter during his discussion of the absence of a “sense of mission” in the post-Sullan aristocracy, observing in a footnote that “the formal reason for the change in practice was presumably that by the first century each praetor had already had a prouincia in the city and could claim that he was not liable to serve again ex praetura.”30 This rightly diverts responsibility away from Sulla. Rather, the practice originated in the use of secondary praetorian provinciae, which as we have seen existed by (at the latest) 114.31 As demonstrated in Appendix A2, in the period 114–106 there were too many territorial provinces available for all outgoing praetors to be required to take one, so this period is likely to be when provincial refusals began. The logic of how secondary praetorian provinciae affected the provincial sortitio was explored in detail in chapter 4. To summarise: when the Senate considered which territorial provinces to allocate to praetors and which existing imperators to prorogue, there would often be too many outgoing praetors (i. e. praetors at the end of their magisterial year, who had already held an urban provincia) for the number of available provinces, meaning that some of these outgoing praetors would miss out. It is important to note that there was no good reason to discriminate between these outgoing praetors: they were all equally qualified for the available provinces. In section 4.2.1, I offered three scenarios for how the outgoing praetors might be matched to provinces. In each of them, the possibility existed of certain individuals being deliberately excluded. We see this (in comparable circumstances) in the provincial decrees of January 49, about which Caesar says that Philippus et Cotta privato consilio praetereuntur, neque eorum sortes deiciuntur (Caes. BCiv. 1.6.5).32 However, such machinations could create invidia, and those who lost out by them would appear weak if not humiliated. It would be to the advantage of the Senate (which had a standing interest in the fairness of the allotment process) for some praetors voluntarily to remove themselves from consideration. Moreover, as Badian points out, the fact that the praetors in question had already served in a provincia probably carried weight. If the end result was that there was the same number of available imperators as available provinces, then Rome’s administrative requirements were met. However, this is not a complete picture: politics still intervened in decisions about which incumbent praetorian imperators would be prorogued. After all, that decision affected which candidates would be available to contest the consular elections, an issue in which many in the Senate had a close interest. Also, once the principle was accepted that some praetors could refuse territorial provinces, then the option was open to all, not just to those who were surplus to requirements.

30 31 32

sortition. Pompey reversed the “voluntary” aspect of Sulla’s system and compelled previous refuseniks, such as Cicero (consul in 63 B. C.), to fill vacant provincial slots.” See also Brennan 2000, 400. Sense of mission: Badian 1970, 30; already served in urban provincia: 31 n. 82. See above, section 2.2. ”Philippus and Cotta are passed over by private arrangement and no lots are cast for them.”

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Potentially too many praetors could withdraw, meaning that some incumbents would have to be prorogued just to ensure the provinces had governors. Even if this suggestion about the Senate’s attitude to praetors renouncing their secondary provinces is correct, we should understand its limited importance. It does not explain why some praetors would refuse to take territorial provinces, nor how they would justify their refusal publicly. It only explains why the Senate would not object to elected magistrates refusing to do what would otherwise appear to be their duty. Over time, as praetors regularly declined provinces, their reasons for doing so will have seemed equally applicable to consuls. But consuls could call on other justifications for not leaving Rome. For instance, during the second and early first centuries Italy was frequently a consular provincia.33 Quite often, it will not have been necessary for the consul decreed that province to depart Rome paludatus.34 To take one example, in 105 P. Rutilius Rufus’s province was Italy, while Cn. Mallius Maximus confronted the Cimbri. For the bulk of the year, Italy was protected by the two armies active in Gaul, so there was no reason for Rutilius to leave Rome. It was only in October that the catastrophe of Arausio happened. There is no indication of Rutilius rushing north in response; that task was left to the next consul C. Marius, whose election in absentia Rutilius presided over. Thus a consul could exercise his leadership of the res publica without leaving the City, as it appears the consuls of 100 did also. In the first century, with Rome and Italy frequently restless, a consul might often argue that the safety of the res publica was best served by him remaining in Rome (as Cicero did in late 63). The Senate might well agree.35 Also relevant is Drogula’s argument that, after the lex Sempronia led the Senate to decree as consular provinciae areas with the potential for military action rather than ongoing wars:36 Most consular provinciae became opportunities to win military glory through discretionary campaigning from permanent provinciae rather than active wars in enemy territory that required immediate military action. As a result, consuls could afford to delay taking up their commands until the end of their terms in office, since, for most of them, any fighting would be discretionary and could be initiated if and when the commander chose.

From this it was only a short step to giving up the province altogether. Finally, Pina Polo makes the excellent observation that several of the powerful consuls in the eighties did not depart from Rome at all during their consulships: Cinna was consul continuously from 86–84, and only assumed command of an army in the third year. Carbo was consul 85–84, again only going to his army in the second year, while 33 34

35 36

See Appendix A2. Rich 1993, 52–53 suggests that many second-century consuls whose actions are unrecorded may have spent time on garrison duty in the north. Perhaps, but this ignores those occasions when both consuls remained in Italy (and only one would be needed to go north) or when the situation was particularly quiet. Pina Polo 2011a, 243–48 focuses on consuls remaining in Rome for longer before departing for their provinces; his arguments are equally applicable to consuls who refused provincial command altogether. Drogula 2015, 315 (italics his).

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Sulla (in 80) did not take up his consular province of Cisalpine Gaul at all.37 This must have created a powerful precedent to which later consuls who did not want a province could appeal. 7.3 THE PROCESS OF REFUSING The actual process of refusing a province is unclear. We know that L. Lucceius in 67 took part in the provincial sortitio, because he knew that Sardinia was the province he was passing up. As Brennan says, this may have been as much because of the unhealthiness of Sardinia’s climate as his own uprightness.38 Brennan has extrapolated from this incident that “all ex-consuls and ex-praetors must have had to participate in the promagisterial sortition.”39 Yet this is unlikely on general grounds. Pompeius (in 70) and Cicero (in 63) made clear their intention not to take a consular province probably before the sortitio. Those praetors who anticipated being passed over could also save face by withdrawing early. And as shown in chapters 4 and 6, the timing of the sortitio for secondary praetorian provinciae was highly uncertain. Moreover, many different factors could induce a praetor or consul not to take a province. It seems safer to conclude that, as with so many aspects of provincial administration in the late Republic, flexibility was the rule. The uncertainty must have made life difficult for imperators already in provinces: often they would not know if they would be prorogued or recalled, or when this decision might be made, or even if it might later be reversed. The annoyance Cicero expressed at the beginning of his first letter to his brother (Cic. QFr. 1.1.1–2) must often have been repeated. As noted in section 5.3, Cicero makes it clear that tribunes held a number of structural advantages over consuls in the late Republic: they could block the ornatio provinciae and the lex curiata. Without these, consuls could not depart for their provinces. It is thus very possible that some consuls followed Cicero’s path (as outlined in the first speech De lege agraria; see above) and decided that provincial command was not worth the price demanded by the year’s tribunes.40 In fact, Dio tells us precisely this about Metellus Celer in 60 (37.50.4): the tribune Flavius threatened that unless Metellus allowed the passage of the proposed agrarian law, he would not be allowed to go to his province. So Metellus decided to stay in Rome.41 This is probably also what happened to L. Domitius in 54: neither consul had obtained his lex curiata, and (unlike his colleague Ap. Claudius) Domitius was scrupulous enough about public law to accept this meant he could not hold a pro37 38 39 40

41

Pina Polo 2011a, 245–46. Brennan 2000, 402. Brennan 2000, 401. That Pompeius in 70 both swore that he would not take a province and kept his oath (Vell. Pat. 2.31.1) implies that some magistrates reneged on this promise. One possible reason for doing so is tribunician relations: a magistrate might renounce a province to avoid doing deals with tribunes and then accept one late in the year when the political situation had settled down. Broughton 1948b, 73–76.

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vincial command. Such situations should not fall under the heading of consuls “refusing” a province, since they are not really voluntary. Yet they do explain why consuls might not be able to take a province. It is also noticeable that the phenomenon seems much more prevalent after the restoration of tribunician power in 70. There are two final issues to discuss. First, Brennan makes the point that “since the habit of turning down promagisterial provinciae had grown so frequent, it is not too much to suppose that by this point the public speech of refusal had developed into a genre all its own.”42 This is quite plausible, although such speeches were probably more a convention rather than a requirement. They allowed the magistrate to demonstrate that his renunciation was voluntary and for him to claim noble motives for his decision; to make such a speech was entirely in his interest.43 Second, Pina Polo argues that the decision that a magistrate would not hold a province must have been taken by the Senate as a whole, on the basis that:44 It seems unthinkable that a consul could independently take the decision of renouncing his province without having received the senate’s authorization. In Cicero’s particular case, his speech at the contio was no doubt the public announcement of a decision that must have been previously discussed and authorized by the senate.

However, if my reconstruction is accepted, there is no reason to think so. While most consuls and praetors would no doubt have justified their decision in the Senate, it does not appear from our evidence that the Senate had any greater role in this process than hearing the magistrate out. Cicero had stated at the outset of his consulship that he had no intention of going to a provincia and in all his subsequent accounts of this renunciation, he always emphasises that it was his own decision, based on what he thought best for the res publica (and this from a man who always paraded his submission to the will of the Senate). Similarly, in all the other examples we have looked at, the individual magistrate is presented as making the decision alone (although sometimes under pressure). If, as Pina Polo thinks, senatorial authorisation was necessary for a consul to renounce his provincia, then presumably such authorisation could be refused or blocked by veto; there is no shortage of examples of senatus consulta suffering this fate in our period. This authorisation would be a bargaining chip for dealing with consuls. Yet Cicero is explicit that he will not take a provincia precisely to avoid this type of bargaining. Moreover, the whole tenor of senatorial relations with consuls in the first century is against this idea of strict control, which belongs more to the political scene we know from Livy. The Senate would not, for instance, have been able to compel Flavius to allow Metellus Celer to depart from Rome, any more than it was able to compel Clodius in 58 or Curio in 50. We must conclude that magistrates decided for themselves whether or not they would take a provincia, and simply communicated that decision to the Senate and People of Rome.

42 43

Brennan 2000, 401. As Brennan 2000, 401 notes, Cicero lists the speech where he resigned his province (cum provinciam in contione deposui) as one of the more important of his consulship: Att. 2.1.3. 44 Pina Polo 2011a, 240–41.

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7.4 CONCLUSION Our traditional picture of the Roman nobility as obsessed with war and opportunities for personal glory needs modification. SPQR continued to need its magistrates to serve in the provinces, but recent research has shown that those who refused the call of duty performed better, politically, than those who answered it. For many, staying in Rome was also more congenial. The refuseniks could clothe their stance in the language of virtue: the repetundae court created an association in the public mind between provincial government and corruption, allowing men like L. Lucceius to win favour by avoiding such a grubby business altogether. The exemplum of Q. Mucius Scaevola was also often trotted out. But such explanations do not account for the disruption to Rome’s administration. Provincial governors were, after all, still needed. Here the phenomenon of secondary praetorian provinciae becomes relevant. As explained in chapter 2, by the final years of the second century, not all former praetors were required for provincial command. This created the problem of how to accommodate those who were passed over; allowing them to withdraw before the decision was made meant no loss of face. Moreover, as Cicero would show in 63, there were many ways to serve the res publica – or to claim that one was doing so. Finally, we have little evidence about the actual process of refusing a province. The likelihood is that here, as in so many areas of late-republican administration, flexibility was the watchword.

CHAPTER 8 THE LEX POMPEIA DE PROVINCIIS In the middle part of 52, after Milo’s trial but before Metellus Scipio was appointed to the consulship, the sole consul Cn. Pompeius Magnus passed the lex Pompeia de provinciis.1 This law abrogated the lex Sempronia de provinciis consularibus and completely altered the system of provincial allocation. It is therefore essential that we understand it correctly. At least partly, it was created to solve the manifest problems with provincial government and the deleterious effects these were having on politics at Rome. So, if we can form an accurate picture of the provisions of this lex Pompeia and the circumstances in which it was passed, we go a long way to understanding what the senatorial aristocracy perceived as the problems with provincial allocation in the fifties. Our best source for the law is Cassius Dio. Dio tells us (40.46.2) that Pompeius’s law originated in a senatus consultum passed by the consuls of 53. That decree’s substance was that no praetor or consul should hold a provincial command until five years after his magistracy. A little later, when discussing the legislation Pompeius enacted in his third consulship to restore the health of the Republic, Dio records (40.56.1–2) that Pompeius confirmed this senatus consultum in a law, but at the same time extended his own command in Hispania for another five years. Both directly and indirectly, Dio emphasises that the law was passed to set a limit on electoral competition, pointing to the intense rivalry for office and the lengths to which candidates would go to get elected. Indirectly, situating the decree in his account of the anarchic conditions in Rome before Pompeius took control of the City – conditions which he explicitly blames on greed for office – reinforces this conclusion.2 Apart from Dio, Caesar and Cicero provide useful information on the lex Pompeia. Caesar complains bitterly about it in a famous passage (BCiv. 1.85, cf. 1.6): he says it was passed to attack him. Cicero’s provincial command in Cilicia in 51–50 was created under the law. Cicero makes no direct comment about the law’s purpose, noting only that after its passage the Senate wanted that those men should now hold provinces who had not previously done so (Cic. Fam. 2.15.4, Att. 6.6.3). However, as he makes this comment about himself being sent to Cilicia it need not be read as a comment on the new provincial system generally. Furthermore, it is likely there were significant differences between how the law was envisaged to work in the long term and the policy in the five-year interim period.3 1 2 3

Morrell 2017, 211 and n. 52 for the date. See also Cass. Dio 40.30.1; cf. Steel 2012, 84: “this part of his [Dio’s] history is strongly teleological and emphasises domestic disorder (particularly that arising from Clodius’ death) and the role of Pompeius.” Morrell 2017, 225–27 suggests that in 51 (at least) the Senate had a policy of selecting “responsible and upright governors” (p. 225) and that the desire to avoid provincial service was

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As Marshall notes, modern scholars have generally followed the ancients in explaining the goal of the law: it was either a means to break the nexus between electoral corruption and provincial administration, or a privilegium directed against Caesar, or alternatively it was an attempt by the Senate to reassert control over the assignment of provinces after a decade in which they had been assigned by the comitia more often than not.4 Since Marshall, there have been five major contributions to the debate, by Giovannini, Ferrary, Steel, Dalla Rosa and Morrell. Giovannini argues that the lex Pompeia did not abrogate the lex Sempronia at all and in fact only applied to praetorian provinces, not consular ones.5 While he exploits inconsistencies in the previous accounts of the law, his explanation is convincingly countered by Ferrary and Steel, who together make it clear that the consular provinces were affected. Ferrary also accepts Dio’s explanation of the reason for the law: it was passed with the aim of countering bribery.6 Steel, in a very interesting article, turns the focus to the relationship between the lex Pompeia and the praetorship and proposes three new aims for the law:7 First, it helped to ensure a sufficient supply of qualified men to take charge of Rome’s empire. Secondly, it separated the pursuit of the cursus honorum from provincial imperium, and thus prevented the prospect and tenure of overseas commands from disrupting domestic politics. Thirdly, it freed the Senate’s strategic activity from the tyranny of the lex Sempronia, by enabling decisions about the allocation of resources and experience to be implemented immediately.

While I largely agree with Steel’s conclusions, they should be seen as a complement to Dio’s explanation, not a replacement. Dalla Rosa’s attention is on the status of the new governors: as Caesar complained, the law removed the People’s ability to select provincial governors, but this was deliberate. The aim was to break the practice of military commands being assigned by demagogues without senatorial involvement.8 Finally, Morrell has made a detailed study of some of the mechanics of the law and the new provincial system it created.9 While she accepts Dio’s account, she also places the law in the context of the longstanding desire by Cato, Pompeius and others for a better standard of provincial governance. She argues that by reasserting the Senate’s close control of who would receive provincial command, unworthy governors could either be excluded or quickly recalled. While my study builds on these scholars’ work (particularly on Steel and Morrell), I have a different focus: placing the lex Pompeia in the context of late-republican

4 5 6 7 8 9

perceived as evidence of uprightness. This agrees with my understanding of provincial refusal; see pp. 125–27 above. Marshall 1972, 891. See also Wiseman 1992a, 413 and Gruen 1995, 456–57, who follow Dio’s basic explanation. Giovannini 1983, 114–19. Ferrary 2001, 105: “dans le but proclamé de lutter contre la brigue.” Steel 2012, 93. Dalla Rosa 2014, 83–85; he correctly points out that, lacking imperium, the new provincial governors needed an authorising lex. To my mind this ignores the importance of the People’s right to choose who would exercise imperium in elections. Morrell 2017, 214–36.

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provincial assignment. In this chapter, I will first examine the changed status of imperators, and second the details of the new allocations process, before finally exploring some of the implications which the lex Pompeia has for this study and for laterepublican provincial administration generally. This law has much to tell us. 8.1 THE IMPERATORS AND THEIR STATUS The lex Pompeia applied both to consuls and to praetors. Dio states clearly that both former strategoi and former hypatoi were affected while, as Ferrary has shown, there is no sign of the continued operation of the lex Sempronia and every sign that the situation for consuls was different to the past. In a wholly convincing argument, the French scholar disposes of Giovannini’s suggestion that the lex Pompeia only applied to praetorian governors.10 Ferrary’s argument has several points: the dispatch of Bibulus and Cicero as provincial governors in 51 was unprecedented and can have no other explanation; the failure of Caesarian tribunes to veto the first decree of 29 September 51 (Cic. Fam. 8.8.5) does not illustrate the continued operation of the lex Sempronia as the decree was passed after the consular elections; if the consuls could be sent to face the Parthians in November 51 (Cic. Fam. 8.10.2– 3) this was because the lex Pompeia only modified the regular means of assigning provinces and did not prevent the Senate from responding to emergencies as they arose. Beyond Ferrary’s arguments, Curio’s continued veto over all provincial assignments throughout 50 (and not just the question of Caesar’s succession) would have been impossible had the lex Sempronia still been in operation, as that law prevented tribunician veto on provincial assignments made before the consular elections.11 Ferrary’s point that the lex Pompeia did not modify magisterial imperium but only the way it could be exercised (by means of reforming the way provinces were assigned) might seem minor, but it is crucially important.12 In the short term it explains why the law which extended Pompeius’s command in Hispania did not violate the letter of the lex Pompeia (although it was wholly contrary to its spirit): while Pompeius was consul, his imperium was no different to that of his colleague Metellus Scipio (who did not receive a province). He was simply the recipient of a lex which allowed him to exercise his existing imperium in a provincia, whereas Metellus Scipio was not. But Ferrary’s point is also important in the long term. The date at which consuls lost the capacity to exercise their imperium in the sphere militiae has long preoccupied scholars: Mommsen, of course, held that Sulla’s lex Cornelia de provinciis ordinandis was responsible, while Giovannini preferred to date this change to 27 and Girardet even later, to 19/18.13 It is true that, in practice 10 11 12 13

Ferrary 2001, 105–07; Giovannini 1983, 114–19. On the lack of evidence for continued operation of the lex Sempronia, see also Steel 2012, 86. Ferrary 2001, 107: “la loi Pompeia, sans rien modifier à l’imperium consulaire ou prétorien, en avait seulement modifié l’exercice par une réforme de l’attribution des provinces.” This issue is discussed generally by Pina Polo 2011a, 228 n. 20; cf. Girardet 1992b, 219–20; Hurlet 2008, 231–32. See above p. 102.

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at least, Augustan consuls did not hold military commands during their consulship. Yet Ferrary has rightly questioned whether there was any specific enactment which deprived consuls of their imperium (militiae), even under Augustus.14 Whether or not we accept Ferrary (although his argument is compelling), the existence of this question necessarily affects how we perceive the lex Pompeia in the wider context of the constitutional relationship of the early Principate to the late Republic. 8.1.1 Imperium At least since Sulla, most (but not all) imperators in territorial provinces held consulare imperium, whether they held their provinces ex consulatu or ex praetura.15 However, under the lex Pompeia, those former praetors who governed provinces did so with praetorium imperium. This is shown by another senatus auctoritas of 29 September 51 quoted by Caelius in his letter to Cicero, which mentions in Ciliciam provinciam in VIII reliquas provincias quas praetorii pro praetore obtinerent (Cic. Fam. 8.8.8). At this stage Cilicia was held by Cicero as proconsul, while all but eight of the other provinces were also held with consulare imperium (Syria by Bibulus, the two Iberian provinces by Pompeius and the two Gauls by Caesar). Hence all those provinces governed by former praetors (praetorii) were held pro praetore, i. e. with praetorium imperium.16 Why this return to praetorium imperium for governors of praetorian rank? The evidence is not explicit but there are two reasonable, perhaps overlapping, possibilities. The first was to avoid conflicts with other imperators. Although each governor was summus imperator in his own provincia, irrespective of the level of his imperium, Pompeius had previously experienced difficulties with governors ignoring his orders in overlapping provinciae.17 There may have been similar problems for himself or his legati in the exercise of his cura annonae after 57. Messius’s proposal in 57 to get around this difficulty by granting Pompeius maius imperium had been politically unacceptable. Reducing most provincial governors to praetorium imperium reached the same result via a different route; the difference in the genus imperii was an older, much more common distinction and one visually apparent in the different numbers of lictors. It thus had more force for Romans. This was not simply a matter of closing an old loophole for Pompeius; if, as seems likely, he saw civil war as at least a realistic medium-term possibility in 52, then several features of the lex Pompeia de provinciis can be explained as Pompeius ensuring he would have a free hand if war broke out.

14 15 16 17

Ferrary 2001. See the excellent summary of the question by Hurlet 2011, 323–24. See Vervaet 2012, 71–77 and Hurlet 2012 on Sicily and Sardinia often but not always being governed by imperators holding praetorium imperium in the late Republic. Cf. Cic. Fam. 2.18, 13.55 and 13.61: in all these letters (sent while Cicero was in Cilicia), the recipient is addressed as “PRO PR.” E. g. Metellus Creticus in 67; compare the catastrophic conflict between Cn. Mallius and Q. Caepio before Arausio in 105. On the principle of the summum imperium auspiciumque see Vervaet 2014; on Pompeius’s difficulties in 67 see Hurlet 2006a, 472–73.

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The second possibility is to reinforce status distinctions between imperators. The lex Pompeia provided for a gap, probably of five years, between tenure of a magistracy and tenure of a territorial province. As Steel argues, this will have driven many ambitious men to seek the consulship before that time and without the resources a province could bring to the contest.18 But would those who won the consulship in the interim then hold a praetorian province? Steel does not answer the question, but Morrell is surely correct that “those who reached the consulship within five years would not hold a praetorian province at all; the concept of a consular governing pro praetore is hardly acceptable.”19 This meant that only eight imperators each year would become available, but that was still probably a marked improvement on the previous situation. Consulars would also be conscious of their rank relative to Pompeius and Caesar. With Pompeius’s Iberian command now extended until the mid-40s, the gulf in status between him and regular consular imperators was clear. The move to standardised praetorium imperium may have been a way of asserting the superiority of these consular imperators over mere praetorian imperators. 8.1.2 Auspicium Imperators appointed to hold provinces under the lex Pompeia were constitutionally quite distinct from previous governors, whose imperium flowed from their magistracy. Those of the new type were much closer to Pompeius in his various extraordinary commands.20 Like Pompeius in his first consulship, they would end their magistracies in Rome on the last day of December and then revert to being privati. But scholars disagree about their status (particularly their auspical status) when, several years later, they were appointed to a new provincial command. Privati cum imperio (as commanders appointed under the lex Pompeia were) were not magistrates and, as such, they did not possess the auspicia urbana. This made them fundamentally different to magistrates in augural terms.21 Scipio Africanus had been the first privatus cum imperio, in 210, but after him the institution was used only sparingly and with reservations. But now, with the lex Pompeia, the governors of every province in the empire would be of this type. By 52, there was no religious impediment to such imperators triumphing: Pompeius had triumphed in similar constitutional circumstances in 81, 71 and 61 and Cicero (who was nothing if not a stickler for augural propriety) long held out hopes for his

18 19

20 21

Steel 2012, 89–90. Morrell 2017, 217 n. 92. The senatus auctoritas in 51 quoted by Caelius (Cic. Fam. 8.8.8) specifically refers to praetorii holding praetorian provinces, and former consuls would never be referred to by that term. Moreover, if one goal of the law was to break candidates’ hopes of a lucrative province to pay their election expenses, then it makes little sense for consuls to be eligible for a praetorian province within a year or two of their consulship. A point made by Steel 2001, 221–23. Berthelet 2015, 165 and, more stridently, Hurlet 2001, 160–62. See also Dalla Rosa 2014, 85– 94.

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own triumph ex Cilicia.22 Clearly, then, their auspical competence was no longer in doubt. Whatever the private beliefs of individual Romans, it seems very unlikely that Rome would routinely send military commanders into harm’s way without Jupiter’s approbation.23 Rather, the problem of the auspical status of privati cum imperio resolves itself into two separate questions: what was the nature of their auspices, and how did they depart Rome paludatus? The first question has occasioned much scholarly argument, but is relatively straightforward. It is true that privati cum imperio were, in augural terms, different to magistrates – but so were regular promagistrates by prorogation. The key difference, as Varro tells us, was that only magistrates could auspicate by watching the skies (auspicari de caelo).24 But magistrates as well as promagistrates (of both types) could auspicate by tripudium, which seems to have been the normal method in the field (and perhaps also in Rome).25 This is entirely as expected: both classes of promagistrates possessed auspicium as a natural corollary to holding imperium.26 Their military auspices could be renewed, if needed, in the ager Romanus outside the City: there was no need to return to Rome, at least by the first century.27 Hence, contrary to Berthelet’s characterisation, promagistrates by prorogation and privati cum imperio were, by the first century, effectively identical in augural terms. This explains the lack of any direct attack by either Cicero or Caesar on the augural status of imperators appointed under the lex Pompeia. The major difference between prorogued magistrates and privati cum imperio lay rather in their method of departure. As noted above (section 1.3), the normal profectio paludatus (for a magistrate still in office) required the departing commander to auspicate on the Arx before making his vows to Jupiter in front of the Capitoline Temple. After crossing the pomerium he donned the paludamentum while his lictors inserted the axes into their fasces. Yet privati cum imperio did not possess the auspicia urbana and so could not validly auspicate within the pomerium. Thus it would appear that they could not perform this ceremony in the same way magistrates could. Hurlet has suggested that, instead, they took the auspices of departure on a specially designated templum just outside the pomerium.28 He bases this suggestion on the practice under Augustus, when proconsuls departed from the Temple of Mars Ultor, not the Capitol (but, like it, within the pomerium) and assumed their insignia imperii immediately after crossing the pomerium (Cass. Dio 53.13.3–4). For Hurlet, all aspects of the departure took place in this extra-pomerial templum, including the auspication and vows. This is possible, as neither Dio nor 22 23 24 25 26 27 28

Vervaet 2014, 346 n. 139; Dalla Rosa 2014, 85. Dalla Rosa 2011 helpfully places the augural position of privati cum imperio in an historical context. Berthelet 2015, 162: “Il paraît cependant difficile d’imaginer qu’un général romain ait pu mener des combats sans consulter les dieux par des prises d’auspices régulières.” Varro apud Nonium, 131 Lindsay: eo die cis Tiberim redeundum est, quod de caelo auspicari ius nemini sit praetere magistratum. This passage of Varro is wrongly used by Humm to show that “only magistrates had the right of auspices.” Humm 2011, 68 n. 50. Cf. Cic. Phil. 2.81. Cic. Div. 2.71; Kunkel and Wittmann 1995, 31 and n. 85; Vervaet 2014, 283–84. See Vervaet 2014, 78–93 on the connection between imperium and auspicium. Serv. Aen. 2.178; Tac. Ann. 3.11.1, 3.19.3. See the discussion by Vervaet 2014, 88 and n. 59. Hurlet 2006a, 174 and n. 199; cf. Dalla Rosa 2011, 249–52 and Berthelet 2015, 167 n. 110.

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Suetonius explicitly mentions vows in connection with departing from the Temple of Mars Ultor, although both associate the Temple with the dedication of spoils by returning victorious commanders (Cass. Dio 55.10.2–3; Suet. Aug. 29.2). Also, Vervaet speculates that, on the model of Rullus’s proposed agrarian law, either the lex Pompeia or the consular enabling law in 51 might have specified that those imperators appointed under it would hold their imperium and auspices optima lege, even without a lex curiata.29 Clearly, then, the way in which imperators appointed under the lex Pompeia departed from Rome was more complicated than, and different from, regular magistrates. Yet the details elude us. In this context, how should we understand Cicero’s laments about the neglect of auspices at Nat. D. 2.9 and Div. 2.76–77? The passage in De natura deorum may be passed over, as Cicero’s complaint there is that those who have the right to take auspices do not take them seriously. But De divinatione highlights that Rome herself has been neglecting the auspices:30 Bellicam rem administrari maiores nostri nisi auspicato noluerunt; quam multi anni sunt, cum bella a proconsulibus et a propraetoribus administrantur, qui auspicia non habent! Itaque nec amnis transeunt auspicato nec tripudio auspicantur. Ubi ergo avium divinatio? quae, quoniam ab iis, qui auspicia nulla habent, bella administrantur, ad urbanas retenta videtur, a bellicis esse sublata. Our ancestors would not undertake any military enterprise without consulting the auspices; but now, for many years, our wars have been conducted by proconsuls and propraetors, who do not have the auspices. Therefore they have no tripudium and they cross rivers without first taking the auspices. What, then, has become of divining by means of birds? It is not used by those who conduct our wars, for they have not the auspices. Since it has been withdrawn from use in the field I suppose it is reserved for city use only!

In recent years, scholars have disagreed over who precisely Cicero is talking about, for how long this had been a problem and how seriously we should take his complaints. Vervaet believes Cicero is referring to the period from 67 on and particularly to those proconsuls who had not secured a lex curiata (e. g. Ap. Claudius in 54 and the consuls of 49). Regarding the propraetors, he points to the extensive use of legati pro praetore after the lex Gabinia and above all to Caesar’s legates in the 40s.31 Dalla Rosa instead sees this passage as evidence of differing opinions within the augural college, suggesting the existence of a very conservative viewpoint which denied that any promagistrates properly held the auspices.32 But even if it existed, this viewpoint had little impact on political practice. Finally, Berthelet concentrates on the auspical status of privati cum imperio, which he believes was very different to those who acquired their imperium through magistracy but which he does not think matches what Cicero says.33 Berthelet also endorses the idea, which Dalla Rosa ascribes to Giovannini and Hurlet as well, that Cicero here represents an

29 30 31 32 33

Vervaet 2014, 346 and n. 140. Loeb translation, slightly modified. Vervaet 2014, 348–49. Dalla Rosa 2014, 89–92 Berthelet 2015, 161–65.

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ultra-conservative viewpoint within the augural college.34 This is possible, especially if we follow Vervaet’s suggestion that the lex Pompeia legitimated imperators in much the same way Rullus’s agrarian bill had; Cicero had staunchly opposed just this feature of the agrarian bill. But the bigger problem is that this passage contradicts much else of what Cicero tells us about late republican practice. Perhaps, in view of the tone and the general nature of Cicero’s complaints, it is better to read this passage as the lament of an old man for the days when Rome treated auspices seriously. Cicero was in his late teens when P. Sulpicius proposed sending C. Marius to fight Mithridates, and that was the first command given to a privatus cum imperio for more than a century. Since then, he had seen (and often supported) extensive experimentation with imperium, which necessitated the stretching and reinterpretation of the augural law. If this is correct, then Cicero is merely complaining in general terms that military commanders these days do not have “proper” auspices like the maiores did. That is, the legal innovations of the first century have led to (and reflected) a disregard of and cynicism towards such matters which is not in keeping with the ancestral Roman attitude toward the gods. 8.2 THE NEW ALLOCATIONS PROCESS Marshall argues that Cicero’s term in Cilicia ran for exactly “one calendar year to be calculated from the day on which he happened to enter his province.”35 He further argues that Cicero (and presumably other governors appointed under the law) were expected to cease their official activities in the province at the end of that year and leave it even if their successor had not arrived.36 This might seem revolutionary (and indeed dangerous, especially in restless provinces), but as we have seen, the phenomenon of provincial commanders returning to Rome ante tempus was a wellestablished one and not cause for criticism. It also prevented imperators remaining beyond their term until their successor had arrived. Under the lex Pompeia, an imperator in this situation had to leave the province in the hands of a legate, and indeed Cicero agonised over whom he should appoint.37 This did not of course render it impossible for such imperators to be prorogued; indeed, Cicero’s great fear was that he would be prorogued.38 Brennan suggests that prorogation was conceived from the start as a necessary requirement of the lex Pompeia, as there would be fourteen provinces and only ten imperators each year.39 This would be the case after 34 35 36

Berthelet 2015, 163; Dalla Rosa 2011, 251 and n. 34. Marshall 1972, 897. Marshall 1972, 897–99. Brennan 2000, 403 argues that this is absurd: the Senate cannot have expected imperators to leave their province in the middle of a campaign. He argues that Cicero admitted he could have remained in his province beyond the expiry date, but the passages he cites (Cic. Att. 6.6.3 and 7.3.1) do not have the force he gives them. 37 Marshall 1972, 908. 38 Morrell 2017, 228 n. 160 cites Cic. Fam. 3.8.9 and 8.10.5 and Att. 5.9.2, 5.13.3, 5.17.5, 5.18.3 and 6.2.6. 39 Brennan 2000, 403. As argued above (p. 137) there would only be eight available imperators each year.

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the interim period (see below), but in the meantime the situation was more complex. Pompeius’s tenure in Hispania was guaranteed down into the mid-40s, which would reduce the need for prorogation. It does seem that all governors in 51 (except Pompeius and Caesar) had been appointed that year, while the Senate tried to decree nine praetorian governors for 50 (Cic. Fam. 8.8.8).40 But there were many reasons why an imperator might be prorogued and the Senate seems to have actively considered proroguing Cicero and perhaps other imperators as well. In the event, Curio’s continuing veto over all provincial discussions removed the question from its control. Thus, as Marshall has shown, by the end of 50 every province (with the exception of Pompeius and Caesar’s provinces) was being governed by legates.41 And, since Pompeius remained near Rome and Caesar was by that stage at Ravenna, in practice Cisalpine Gaul was the only Roman province which actually had an imperator present. Dio tells us (40.46.2, 40.56.1–2) the lex Pompeia ordained that no magistrate should hold a provincial command until a five-year interval had elapsed. Since the law ceased to operate after January 49, it never had time to reach the point at which the magistrates of 52 would receive their provinces. Instead, “the first five years would also have to be covered by special interim arrangements before the transition from city magistracy to promagistracy could run regularly on the quinquennium system.”42 We can reconstruct some of these interim arrangements, with varying degrees of certainty. But their relationship with how it was envisaged the system would eventually operate is not always clear. That said, it does appear that the interim arrangements also involved a gap between magistracy and provincial command. Morrell believes that the five-year gap was counted inclusively (from the start of one office to the start of the next). She argues this from the fact that, with the exception of Metellus Scipio (cos. 52) in 49, none of the imperators appointed under the law can be shown to contradict this rule.43 However, inclusive reckoning is unlikely, on the model of the biennium between magistracies required by the leges annales. That said, Metellus Scipio does indeed stand out as an anomaly as, not only had he been consul in 52, but alone of the known imperators appointed under the lex Pompeia he had governed a province before (after his praetorship) and even won a triumph. To account for his command in 49, Morrell suggests there may have been a shorter interval for consuls (perhaps two or three years), or that the lex Pompeia only stipulated that there be some interval, leaving the details to the Senate.44 The latter is the preferred solution, although it is also worth pointing out that the Senate was confronted by very different situations in 51 and 49. In the first case, it could follow a policy for the greater good of the empire. In the second, it expected an armed attack by a proconsul. 40 41 42 43 44

Morrell 2017, 234–35. Marshall 1972, 900. Marshall 1972, 892 n. 20. Morrell 2017, 219–22. For instance, L. Domitius and M. Cato, who were appointed to command in 49, were both magistrates in 54. Cf. the Augustan practice, the starting date of which Hurlet is unable to pinpoint: Hurlet 2006a, 28–30. Morrell 2017, 222.

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Steel similarly points to the irregularity of appointments in 49. For her, the main purpose of the lex Pompeia was ensuring enough provincial commanders, and so “if this hypothesis is accepted, then the position of Scipio and Domitius in 49 B. C., during an emergency, ceases to be a difficulty.”45 This statement is unexplained, and we must guess its meaning. The key words are “in an emergency,” and the reasoning appears to be: Scipio and Domitius were two former consuls who had not held provinces after their consulships. There was currently need for provincial commanders who could be relied on not to support Caesar. Hence they could be called upon. Similarly, when confronting Metellus Scipio’s appointment, Marshall argues that “we cannot infer regular features of the lex Pompeia from an irregular decision which ignored it in important respects to meet the crisis of civil war.”46 However, Linderski shrewdly notes that Caesar does not attack the legality of Metellus Scipio’s appointment (although he criticises it as partisan), which suggests the Senate enjoyed some freedom in this matter.47 There are, in turn, difficulties with Linderski’s interpretation, especially as Caesar’s tone in these sentences is quite restrained. In short, there is no certain solution to the problem of Metellus Scipio’s eligibility although, given Caesar’s tendentiousness, evidence from BCiv. 1.6 should not be pressed too far. 8.2.1 The policy of M. Marcellus (cos. 51) The best evidence we have for the allocation process under the lex Pompeia is the (vetoed) senatus auctoritas of September 51 recorded by Caelius. A close reading of this passage (Cic. Fam. 8.8.8) is necessary to make explicit its meaning:48 Itemque senatui placere in Ciliciam provinciam in VIII reliquas provincias quas praetorii pro praetore obtinerent eos qui praetores fuerunt neque in provincia cum imperio fuerunt, quos eorum ex s. c. cum imperio in provincias pro praetore mitti oporteret, eos sortito in provincias mitti [placere]; si ex eo numero quos s. c. in provincias ire oporteret ad numerum non essent qui in eas provincias proficiscerentur, tum, uti quodque collegium primum praetorum fuisset neque in provincias profecti essent, ita sorte in provincias proficiscerentur; si ii ad numerum non essent, tum deinceps proximi cuiusque collegi qui praetores fuissent neque in 45 Steel 2012, 92. 46 Marshall 1972, 892 n. 20. 47 Linderski 2007b, 154 n. 76, referring to Caes. BCiv. 1.6. 48 Morrell’s translation. While Shackleton Bailey’s translation is perfectly serviceable, Morrell’s is preferred in the text as it makes clearer the logical structure of the decree. Shackleton Bailey’s translation reads: “It is likewise the Senate’s pleasure as touching the province of Cilicia and the eight remaining provinces now governed by former Praetors with propraetorian rank that such persons as have held the office of Praetor but have not previously held command in any province, and who further are eligible under the Senate’s decree for dispatch to provinces with propraetorian rank, shall be dispatched to the aforesaid provinces as by lot determined. If the number of persons qualified under the Senate’s decree for such appointment be less than the number required to proceed to the aforesaid provinces, then persons having been members of the Board of Praetors standing next in order of seniority, such persons not having previously held provincial office, shall proceed to provinces as by lot determined. If their number be insufficient, then members of each Board of Praetors in succession, not having previously held provincial office, shall be admitted to the lot until the requisite number be completed.”

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provincias profecti essent in sortem coicerentur quoad is numerus effectus esset quem ad numerum in provincias mitti oporteret. si quis huic s. c. intercessisset, auctoritas perscriberetur. It is likewise the senate’s will regarding the province of Cilicia and the remaining eight provinces which praetorii hold pro praetore that those who have been praetors and have not been in provinces with imperium, such of them as it is proper according to the senate’s decree to send with imperium to provinces pro praetore, be sent to provinces by drawing of lots. If, of this number, those who ought to go to provinces according to the senate’s decree are less than the total required to go to these provinces, then, whichever college of praetors was first, those of them who have not gone to provinces should go to provinces in this way by lot; and if they are not sufficient in number, then in turn those of whichever college is next who have been praetors and have not been to provinces should be added to the lottery until the number is achieved that ought to be sent to provinces. If anyone vetoes this SC, let an auctoritas be recorded.

The subject of the decree is Cilicia and the eight other provinces currently held pro praetore by praetorii. That is, nine provinces, for which nine governors must be found. These nine governors are to be chosen from among those who have been praetor but not previously held a province cum imperio. Yet, within this group, a second category is identified: those who were eligible (under an earlier decree) to be sent to a province pro praetore.49 Who were the men in this second category? They must belong to praetorian colleges from before a cutoff date (which may or may not be the five years which Dio mentions), because if there are not enough men from within this category, praetors from later colleges may be called on. Presumably, those who had held the consulship would not be eligible, for the reasons given earlier: a former consul could not be expected to command pro praetore. So while there was a clear preference for older praetorii, more recent ones would be used if necessary.50 The vetoed decree at Fam. 8.8.8 is best understood in the context of the other three decrees which Caelius records in this letter. On 29 September, the consul M. Marcellus referred to the Senate the question of the provinces. This is shown by the prescripts to the decrees: quod M. Marcellus cos. v. f. de provinciis consularibus before the successful decree recorded at 8.8.5 (that the consular provinces should be debated the following February) and quod M. Marcellus cos. v. f. de provinciis before the first of the vetoed decrees at 8.8.6 (that blocking this future debate should be considered contra rem publicam). This strongly implies that the consular and praetorian provinces were initially raised as a single issue, and that it was the progress of the debate which ensured the four separate motions were presented as they were. The outcome of the debate (leaving aside the motions recorded at sections 6 and 7) was that the praetorian provinces should be decided (and allotted) now but the consular provinces should be referred again to the Senate on or after 19 February. The problem, of course was the lex Pompeia Licinia of 55, under which

49 50

As Morrell recognises, “the relationship between the two groups is defined by quos eorum.” Morrell 2014b, 321 n. 259. See also the detailed discussions of Gelzer 1968, 152 n. 6, Steel 2012, 86 and Morrell 2017, 224.

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(according to Pompeius, in public at any rate) ante Kal. Mart. non posse sine iniuria de provinciis Caesaris statuere (Cic. Fam. 8.8.9).51 It is also worthwhile speculating how the allocation of provinces would have proceeded if Caesar’s command had not been a factor, as this helps us understand the new ways in which senatorial debates de provinciis could take place under the lex Pompeia.52 This is best attempted by analysing the policy of M. Claudius Marcellus (cos. 51). Marcellus spent months trying to tie the issue of Caesar’s command to the general issue of the provinces. He had indeed moved on 1 June that Caesar should be recalled, but his motion was heavily defeated.53 As Caelius implies, the consul’s policy was to treat the Gauls as among the provinces which the Senate could decide about, but he was unsuccessful in this through the middle part of the year. This lack of success was the result of, variously, tribunician veto, Pompeius’s absence and the inability to form a quorum.54 This last is interesting, as it shows the lex Pompeia required a senatorial quorum (of what size is unknown) to pass valid decrees de provinciis.55 Marcellus’s policy also shows, indirectly, that in the absence of Caesar’s command as a political issue all provinces would have been discussed and decided together. This can be shown by a careful reading of Caelius’s letter of mid-September:56 Accedit huc quod successionem futuram propter Galliarum controversiam non video. tametsi hac de re puto te constitutum quid facturus esses habere, tamen, quo maturius constitueres, cum hunc eventum providebam, visum est ut te facerem certiorem. nosti enim haec tralaticia: de Gallis constituetur; erit qui intercedat; deinde alius exsistet qui, nisi libere liceat de omnibus provinciis decernere senatui, reliquas impediat. sic multum ac diu ludetur, atque ita diu ut plus biennium in his tricis moretur. Si quid novi de re publica quod tibi scriberem habere, usus essem mea consuetudine, ut diligenter et quid actum esse et quid ex eo futurum sperarem perscriberem. sane tamquam in quodam incili iam omnia adhaeserunt. Marcellus idem illud de provinciis urget [et] neque adhuc frequentiam senatus efficere potuit. Furthermore, I do not see any prospect of your being relieved because of the controversy about the Gallic provinces. Although I expect you have settled in your own mind what you are going 51 52 53

54 55 56

”Before the Kalends of March [of the following year, 50] he could not in fairness take a decision about Caesar’s provinces.” As Steel 2012, 92 n. 40 recognises. Suet. Iul. 28.2–3 says that Marcellus announced his policy both in an edict and in the Senate, and clearly differentiates the edict from the relatio. Caelius writes in late May (Cic. Fam. 8.1.2) that Marcellus had not yet referred the Gallic provinces to the Senate but intended to do so on 1 June, with the implication of a significant delay. Marcellus definitely presented his motions to the Senate, as Suetonius tells us, because Hirtius says (BGall. 8.53) they were heavily defeated in a frequens senatus and no other known session for the year fits those circumstances. Gruen 1995, 463 and n. 50 places this heavy defeat sometime in September, which is possible, but which interrupts the otherwise neat connection between Metellus Scipio’s motion at Fam. 8.9.5 and the senatus consultum reported at Fam. 8.8.5. Furthermore, my reconstruction makes better use of the logical connection between Suetonius and Hirtius. Cf. Gelzer 1968, 173 and n. 3, who implies an early date for the rebuff Hirtius mentions. Cic. Fam. 8.2.2, 8.4.4, 8.9.2, 8.5.2–3. Willems 1883, 2.167. This may not have been an innovation. On the date (which has been disputed), see Shackleton Bailey 1977, 396.

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to do in this contingency, I thought that, since I see it coming, I ought to inform you, so that you take your decision the further ahead. You know the routine. There will be a decision about Gaul. Somebody will come along with a veto. Then somebody else will stand up and stop any move about the other provinces, unless the Senate has free licence to pass decrees on all of them. So we shall have a long, elaborate charade – so long that a couple of years or more may drag by in these maneuvres. If I had anything fresh to tell you about the political situation, I should follow my usual practice and describe in detail both what had happened and what consequences I expected to follow. The fact is that everything has stuck in a kind of trough. Marcellus still goes on pressing his point about the provinces, but so far he has not succeeded in getting a muster of the Senate. (Cic. Fam. 8.5.2–3)

We see clearly here that the (ostensible) desire of some in the Senate was to decide about all the provinces together (nisi libere liceat de omnibus provinciis decernere senatui) – that is, not just the consular or praetorian provinces – which is a far cry from the system as it had worked in recent decades. This meant in turn that repeated vetoes (as Caesar’s friends kept up) would prevent any senatorial action, meaning Cicero would not receive a replacement. But it does show that the way provinces were decreed under the lex Pompeia was considerably more unified and straightforward than before, although the law still allowed for separate consular and praetorian decrees if convenient. What is not clear is when the provinces would have been decreed in the absence of the Gallic issue. The senatus consultum and lex which sent Cicero to Cilicia were passed early in 51, perhaps in February.57 Assuming that this was also true of the other provinces allocated under the lex Pompeia (and we have no reason to assume any delay), the earliest at which any governors appointed in 51 would be replaced was around March 50. Cicero’s term did not finish until the end of July 50, while Bibulus’s was even later. So it seems rather unlikely that, if Caesar was not a factor, Marcellus would have been pressing for a new round of provincial appointments to be made in mid-51, a year or more before some of the new governors would need to arrive in their provinces. What is clear is that such variability in the date at which provinces were decreed was not a significant problem. Now that the Senate did not have to worry about current magistrates’ continuity of imperium, or about the lex Sempronia’s window for deciding consular provinces before the consular elections, there was much more flexibility in when provincial decisions could be made. Yet while the law gave flexibility to the Senate, it also gave certainty and consistency to imperators in the field. We may interpret this change as a modification of the principle of the annua provincia. As Balsdon identifies, prior to the lex Pompeia:58 An ‘annua provincia’, an appointment ‘in annum’, did not for the Romans mean anything so exact and specific as a command which was to be exercised for a year, but that the ‘annus’ was the year between the making of one series of provincial appointments at Rome, and the next.

In the early second century this had indeed been, reliably, a calendar year, as the Senate normally decided these questions within a few days of the consuls taking office. But this was increasingly not the case in the late Republic, as we have seen. 57 58

Marshall 1972, 893. Balsdon 1939a, 70.

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This must have been frustrating for provincial governors already in the field, as they did not know when their tenure might end or when they might receive word they had been prorogued. The lex Pompeia allowed the Senate to retain this freedom about when to make decisions while also making it clear to governors when their terms would end. Indeed, with the ability to decide consular and praetorian provinces at the same time, and with a clear idea of when the changeover of governors would happen, the Senate was once again in a position to make coherent policy. 8.2.2 Selection procedure Morrell has argued that the lex Pompeia changed the method of sortitio. Whereas previously men had drawn sortes which bore the names of provinciae, now the names of the eligible men were written on the sortes, which were then drawn to be matched to a province.59 She suggests the reason for this change was that “it created the possibility of including more names in the urn than there were provinces to be assigned. In fact, it must have been contemplated that some men would miss out as a matter of course.”60 This is interesting, since as we have seen above it was precisely this possibility which had led to some praetors refusing territorial provinces in the late second century.61 Yet it is unlikely the lex Pompeia allowed chosen candidates to refuse service. If we accept Steel’s argument that securing enough provincial commanders was one of the goals of the law, then it makes sense that provincial service would be compulsory for those privati selected. Certainly, as Steel points out, the decree at Cic. Fam. 8.8.8 does not allow for refusal, while Cicero certainly represented his Cilician command as a compulsory service.62 In arguing for the possibility of entering more men into the urn than would be drawn out, Morrell rightly points out that the eligibility mechanism described in Fam. 8.8.8 would only coincidentally deliver the correct number of praetorii. This echoes Caesar’s complaints about his opponents rigging the provincial allotment in 49 (Caes. BCiv. 1.6.5–6, my translation): Provinciae privatis decernuntur, duae consulares, reliquae praetoriae. Scipioni obvenit Syria, L. Domitio Gallia. Philippus et Cotta privato consilio praetereuntur, neque eorum sortes deiciuntur. In reliquas provincias praetores mittuntur. Provinces – two consular, the rest praetorian – are decreed to privati. Syria falls to Scipio, Gaul to L. Domitius. Philippus and Cotta are passed over by private arrangement and no lots are cast for them. To the rest of the provinces praetors are sent.

Linderski says of privato consilio that “here the phrase has a sinister ring. Its precise meaning, if any, is not easy to gauge. We do not know enough of the procedure envisaged by the lex Pompeia.”63 It is true that we must be wary of how Caesar 59 60 61 62 63

Morrell 2017, 229–34. Morrell 2017, 232. See pp. 79–81 above. Cf. Hurlet’s speculations on the early years of Augustus’s reign (2006b, 36–49). Steel 2012, 91 and n. 38. Linderski 2007b, 153.

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presents the Senate’s actions at this point: Linderski rightly says that the procedure might be legal under the lex Pompeia while also being manipulated by the factio. To elucidate this passage, Linderski turns to an earlier letter by Cicero, in which he says cum et contra voluntatem meam et praeter opinionem accidisset ut mihi cum imperio in provinciam proficisci necesse esset (Cic. Fam. 3.2.1):64 Linderski argues that this shows the Senate must have chosen the candidates eligible for provinces nominatim, and then matched them to the provinces:65 If the law had prescribed that the two consular governors were to be selected by lot from all available former consuls (i. e., from those former consuls who had not yet held a provincial command) Cicero may well have asserted that his appointment happened contra voluntatem, perhaps contra spem, but hardly praeter opinionem (“quite unexpectedly”) for he certainly could not exclude the possibility of the sors with his name coming out.

To my thinking, this argument is not strong. Essentially, Linderski is arguing that Cicero thought it was “quite unexpected” that he be chosen nominatim by the Senate, but he could not think it “quite unexpected” if he was chosen by lot from among exactly the same pool of possible candidates. In any case, Cicero’s tone here (in the first sentence of his first letter to Ap. Claudius in this period) is much more general. He is saying that, at his time of life (twelve years after his consulship), he did not expect (or want) to find himself governing a province.66 Cicero says he received his command in Cilicia by means of a senatus consultum and a lex.67 Marshall’s discussion of this is clear and convincing, although he does not cover all points.68 As he recognises, the senatus consultum and lex in question could not be those of 53 and 52 respectively, but must date from early 51. This is shown by Cicero’s letter to the consul M. Marcellus (Cic. Fam. 15.9.2), in which the orator ascribes responsibility for these measures to the consul. The likely procedure can thus be reconstructed, based on analogy with the failed debate de provinciis reported in Cic. Fam. 8.8. With Marcellus presiding, the Senate passed a decree de provinciis, naming the provinces to be assigned to consuls and praetors, ordering a sortitio to distribute them and recommending that the consul propose a law to put this into effect. That law served two functions. First, it ordered that Cicero should hold the provincia of Cilicia for a calendar year, calculated from the day he entered the province and assumed command of it (which we may take as being, in the eyes of the law, the traditio imperii).69 Second, it bestowed on him the necessary consulare imperium. Marshall is correct that this was a regular law of the populus and not a lex curiata: Cicero did not already possess imperium which the lex curiata would render iustum. Indeed, constitutionally he was in the same position as Pompeius in 64 65 66 67 68 69

“Contrary to my own inclination and quite unexpectedly, I find myself under the necessity of setting out to govern a province.” Linderski 2007b, 153–54. See also Steel 2001, 221 n. 97, who emphasises Cicero’s politeness: “since Appius presumably had hoped for a third profitable year in post, Cicero would be keen to avoid appearing complicit in his supersession.” See the list of references at Marshall 1972, 892 n. 21. Marshall 1972, 892–95. That the time limit was set by law is clear from Cic. Fam. 15.9.2 and 15.14.5.

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67: a privatus on whom a law (tribunician in 67, consular in 51) conferred imperium and a particular provincia for a set period. The only differences were that Cicero was identified by name (whereas the lex Gabinia merely specified an election from among the consulars: Cass. Dio 36.23.4) and also that the lex Claudia in 51 presumably empowered all the consular and praetorian imperators together; it would be cumbersome and unnecessary for the consul to pass a separate law for each imperator. It is also uncertain whether Cicero and other imperators appointed under the lex Pompeia received an additional lex curiata (presumably passed by the consuls). As Vervaet has suggested, either the lex Pompeia itself or else M. Marcellus’s enabling lex Claudia may have contained provisions similar to those in Rullus’s rogation (in 63) which were so bitterly criticised by Cicero; namely that in the absence of a lex curiata the imperium of those appointed under the law should be held optima lege.70 As Vervaet says:71 It is … highly unlikely that this historic and comprehensive statute would have neglected to make some definitive and, at the very least in conservative circles widely accepted, arrangement as regards the quality of the imperium auspiciumque of those to be appointed under its terms.

Finally, the law in question did not cover Cicero’s ornatio, as he was still waiting for a decree de ornandis after he left Rome (Cic. Att. 5.4.2). 8.3 IMPLICATIONS The lex Pompeia de provinciis was one of the more farsighted pieces of legislation passed in the late Republic and it is appropriate to trace some of its implications. To begin with, it did not significantly affect the operation of other laws governing the empire. In his letters to Ap. Claudius (cos. 54) in this period, Cicero speaks several times about the provisions of the lex Cornelia de maiestate, showing that it continued to govern, for instance, the traditio imperii from the old to the new imperator (Cic. Fam. 3.6.3, 3.6.6, 3.10.6, 3.11.2; see above, section 6.3). The lex Iulia de repetundis also clearly continued to operate and restricted, among other things, the depredations of Cicero’s staff.72 So the legal framework covering imperators in the field was altered little, if at all. Yet the manner of assigning provinces was entirely overhauled. The lex Pompeia abrogated the lex Sempronia de provinciis consularibus; that law was now entirely unnecessary and there is no trace of its operation after 52.73 This had two significant consequences in subsequent years. First, and most dramatically, it removed the Senate’s ability to assign consular provinces without the possibility of tribunician veto. This allowed Curio’s veto against 70 71 72 73

Vervaet 2014, 346 and n. 140, 348 n. 144. Vervaet 2014, 348 n. 144. Marshall 1972, 918. Such clauses had existed (in some form) in earlier legislation such as the lex Porcia: see the lex de provinciis praetoriis, Cnidos copy, col. III, ll. 1–15; Drogula 2011, 96. So Ferrary 2001, 105–07.

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provincial assignments to be kept up throughout 50 and then taken up by the new Caesarian tribunes when his term finished. Nor was this a surprise: Caelius had foreseen the possibility as early as September 51 (Cic. Fam. 8.5.2). Second, it removed the pressure for the Senate to assign consular provinces before a particular date which, as noted above, provided flexibility in managing the empire.74 So the Senate could assign provinces in February 51 and then look at the following year’s assignments already in the September of that year. The clause which set a firm limit of one calendar year to an imperator’s tenure of a province (unless prorogued) was clearly an attempt to prevent debates like that over the succession to Caesar, which would consume the next two years of politics and lead directly to civil war. While the clause may have placed frontier provinces in the hands of relatively inexperienced legati or (pro-)quaestors, as happened in 50, it removed the incentive for provincial governors to seek to block senatorial decisions on their replacement, because the absence of a senatorial decision would see their tenure automatically end. Marshall is surely right to suggest that every governor in the empire (except for Caesar and Pompeius) was in Cicero’s situation in 50: no replacement governors were appointed due to Curio’s veto, and so every one of them was required to leave his province in the hands of a deputy when his own term ran out.75 Two notable implications flow from this. First, Curio’s motion late in the year that both Pompeius and Caesar should give up their provinces was less facetious than it might otherwise appear (Cass. Dio 40.62.3–4; App. BCiv. 2.30). Second, since those holding delegated imperium did not possess auspicium, after Caesar crossed the Rubicon and left his province on 10 January 49, the entirety of the Roman empire outside Italy was governed by legati who could not themselves consult the gods.76 Pompeius and Caesar had been the only imperators possessing auspicium before that date, and now neither of them were physically in their provinciae. Clearly a concern with Roman politics was foremost in the minds of those who framed the law. Many scholars have noted the effect the lure of provincial wealth had on consular candidates. Yet as Steel has recognised, it was not only the behaviour of consular candidates which had proved problematic, but the behaviour of consuls once in office.77 Issues associated with consular provinces had dominated the consuls’ politics at various stages through the fifties: the reassignment of the provinces by plebiscite (in 59, 58 and 55), the struggle for consuls to obtain their ornatio provinciarum (realised in 59 and 58, threatened in 57, and a problem serious enough in 54 to prompt the consuls to enter into a pactio with two of the consular candidates), and the vexed issue of the lex curiata which had so troubled the consuls of 54. All of these problems placed the consuls politically at the mercy of the tribunes, and promoted deals between consuls and tribunes at the expense of the Senate: the relationship of Clo74 75 76 77

A point emphasised by Gruen 1995, 457. Steel 2012, 91 also points to the Senate’s new ability to respond immediately to emergencies rather than be hamstrung by the lex Sempronia, although this overlooks emergency responses such as those in 74 or 60 (see above, section 3.2). Marshall 1972, 912. Berthelet 2015, 167–68. Steel 2012, 92–93.

150

Chapter 8. The lex Pompeia de provinciis

dius with Gabinius and Piso in 58 is an excellent example of this. By divorcing the consulship as a political office from provincial command, the lex Pompeia raised the prospect of freeing the consuls from their structural dependence on the tribunes, and so re-orienting them back towards the Senate.78 Apart from its effect on the consuls’ political behaviour, the law also removed many of the incentives for various interested parties to interfere with provincial assignment and thus promised a much smoother process in future.79 This removal of politics from government is what Hantos argues was one of the aims of the Sullan constitution, so it is interesting to see the same concerns within the political class a generation later.80 The law did not remove consuls’ imperium or their ability to exercise it militiae. As we have seen, centuries of tradition meant that consuls were still seen as Rome’s natural military commanders. Hence the suggestion, late in 51, that the consuls might be sent to confront a Parthian invasion.81 Rather, as Ferrary has emphasised, the lex Pompeia altered only the method of assigning provinces.82 Effectively, the consuls were never deprived of their capacity to command armies, but were simply denied the practical opportunity to do so. This invites us to take a broader view and to situate the lex Pompeia de provinciis within the question of the evolution of imperium in the late Republic and early Principate.83 The similarity of the lex Pompeia to the eventual Augustan system has often been noted, yet it would be wrong to see the one as necessarily leading to the other in a smooth evolution.84 Two decades of civil war intervened, which dramatically altered the way Romans viewed their political system and which created many new precedents. If we are to view the lex Pompeia de provinciis as a marker or turning point, we would do better to look at the separation of magistracy from provincial government. This is by no means a new observation. In Hantos’s words:85

78 79

80

81

82 83 84 85

It is notable that, in the politics of 50, Curio had no other weapon against the consul C. Marcellus except his veto. See generally Gruen 1995, 459: “Overseas administration, as well as management of the electoral process at home, would benefit. The measure fits suitably within the context of Pompeian legislation in 52, designed to effect smoother and more efficient governmental operations.” Hantos 1988, 31: “Auch minderte der Automatismus den Gegenstandsbereich möglicher Kontroversen innerhalb der Aristokratie und mehrte tendenziell die Geschlossenheit des Senatorenstandes.” (“Moreover, automatism diminished the scope of possible controversies within the aristocracy and tended to increase the unity of the senatorial order.”) Cic. Fam. 8.10.2–3; cf. Ferrary 2001, 107: “ce texte montre seulement que les consuls n’avaient pas été privés de l’imperium militiae, et que rien en principe n’empêchait donc le sénat de leur confier une mission militaire exceptionnelle.” (“This text only shows that the consuls had not been deprived of their imperium militiae, and that nothing in principle therefore prevented the Senate from entrusting them with an extraordinary military command.”) Ferrary 2001. There is a wide literature on this issue: see Girardet 1992b, Girardet 2001, Ferrary 2001 (most of which is translated as Ferrary 2009), Hurlet 2008 and Hurlet 2011 among others. Hurlet 2006a, 26–27. Hantos 1988, 116. (“Whereas the automatic link between magistracy and promagistracy was broken in 52, the conception of the governorship as a promagistracy was preserved. The

8.3 Implications

151

Während der Automatismus zwischen Magistratur und Promagistratur 52 aufgegeben wurde, blieb die Auffassung der Statthalterschaft als Promagistratur erhalten. Der Trennungsstrich, den Sulla zwischen Magistratur und Promagistratur im Hinblick auf die verschiedenartigen Geschäftsbereiche gezogen hatte, wurde durch die lex Pompeia akzeptiert und bestätigt.

Hantos places too much trust in the idea of a major Sullan reform, but her judgment of the lex Pompeia is convincing. Similarly, Morrell’s evaluation of the law’s wider significance is correct:86 These changes served to redefine provincial command as something like a magistracy in its own right, with a fixed hierarchy, limited duration, and mandatory interval between offices, rather than an ‘appendage’ (or perquisite) to praetorship or consulship.

Had Rome enjoyed another decade or two of peace, then such developments may have been more obvious. Alas, that was not to be. Civil war intervened. Yet on this reading the lex Pompeia supports Gruen’s interpretation that the political class mounted “a genuine effort to grapple with problems that the late Republic had brought to the fore.”87 As the Romans recognised, the system of provincial allocation was crucially important in politics at Rome.

86 87

distinction which Sulla had drawn between the magistrate and promagistrate in various spheres was accepted and confirmed by the lex Pompeia.”) Morrell 2017, 218. Gruen 1995, 3; cf. p. 212: “the image of hidebound conservatives reacting in reflex against every suggestion for change does not correspond to the evidence.”

CONCLUSION In much of Roman public life, Sulla’s dictatorship and the years of warfare in Italy which preceded it serve as a watershed: the Republic of Cicero was very different from the Republic of Scaurus the princeps senatus. Yet this is not true in the realm of provincial allocation. If we look at the sixties BCE and compare it to the nineties, continuity is much more in evidence than radical change. There was no Sullan revolution in provincial allocation. The significant changes in this area came with the laws which bookend our period: the lex Sempronia de provinciis consularibus in 123 and the lex Pompeia de provinciis in 52. The lex Sempronia inaugurated a period in which consular provincial allocation was handled very differently to praetorian, to the extent that they were entirely separate processes running on different timelines. Consular provinces appear in the sources as a more politically charged matter than praetorian provinces, although it may be that the politics is just more visible. However, it is hard to say that this separation was entirely the result of the lex Sempronia. The use of secondary provinciae for praetors, which is first recorded in 114 but which was probably older, suggests that the separation of consular from praetorian provinces, and the separation of senatorial decision-making, may have happened anyway. One feature of the post-Sullan Republic which has often been noticed is the relatively casual view which many senators took of provincial service. At least one of the causes for this was the mathematical requirement for some (but not usually all) praetors to govern a territorial province after holding an urban provincia, which was demonstrably true by the late second century. Yet it was not the only cause and there is a real difficulty in determining how seriously the senatorial aristocracy took the duties of running an empire and matters of public law. It is true that Cicero’s Philippics serve as an extended meditation on constitutional issues, but the same Cicero was capable, as we saw in the vital passage of a letter to Lentulus Spinther (Fam. 1.9.25), of advising his correspondent to ignore the legal situation and bow to political expediency by giving up his province. The centrality of political questions in the Senate can also be seen in another area. This study has shown that, particularly for praetorian imperators, there must have been a great deal of uncertainty about whether they would be replaced, when such a decision might take place and even whether it might later be reversed. The Senate seems to have shown no displeasure towards imperators who simply left their provinces in the hands of legati and returned to Rome. The process of allocating new imperators was stretched, uncertain, and always open to political interference. This in turn suggests that the Senate was not greatly bothered about ensuring an efficient and orderly transition of power in the provinces. As long as there was some figure of Roman authority there – whether that be the old imperator, a legatus left in command pro praetore or the new imperator – it did not much matter in Rome who he was. This in turn has implications for how we should understand, for instance, Pompeius holding his Iberian provinces by means of legati after 55.

Conclusion

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Finally, the lex Pompeia in 52 serves as a coda to the provincial allocations system in the late Republic. It was a reaction to the prevailing system, one of the more farsighted and intelligent pieces of legislation in a period characterised by efforts at reform. Like all such efforts, it did not avert the collapse of the Republic. But it does serve as a commentary on what some contemporaries perceived as the problems with the way the whole provincial system functioned, and so allows us to better understand that system. The law appears to treat the provincial governor as a separate institution to the urban magistrate, and so might lead us to think that its framers perceived the same problem Montesquieu did eighteen hundred years later: that the institutions of a city-state were inadequate for running an empire. But we should be cautious of that conclusion. The problem was not that Rome was running the empire badly – Pompeius and Caesar were extending its boundaries and there was no armed challenge (except the Parthians) either internally or externally worth talking about. Rather, the provinces and the issues they raised were doing damage to the political institutions of the Republic, and the attempt to separate magistracy from promagistracy was an attempt to protect the res publica from itself.

APPENDIX A A1. INTRODUCTION This appendix sets out the evidence for which provinces the Senate decreed to imperators (both consular and praetorian) in the period 122–52. These were not necessarily the provinces they eventually held; my focus is on the Senate’s decision making rather than the reality on the ground. Therefore, this appendix is not identical with the lists of provincial governors given in Brennan 2000 and Díaz Fernández 2015, although it does build on their work. The starting point is 122 because it was probably in that year that C. Gracchus’s lex Sempronia de provinciis consularibus began operation. 52 is the end point because the lex Pompeia de provinciis of that year fundamentally changed the way provinces were assigned. The evidence presented here underpins several arguments made in the main text. The evidence is set out year-by-year from 122 to 91 (A2) and again from 80 to 52 (A3 and A4). I have avoided treating the years from 91 to 80 for several reasons. First, for much of this period open war in Italy meant that few imperators could be spared for provincial command. Second, even during the years 86–84 when Italy was at peace, it is doubtful that the Romans we find in possession of the provinces were in any meaningful way sent by the home government. This uncertainty means that the period is quite useless in detecting “normal” patterns of provincial assignment. Statistically, the two periods 122–91 and 80–52 are treated differently. This is partly due to the greater availability of evidence after 80, but more due to differences in practice. Between 122 and 52 consular provinces were normally assigned lege Sempronia (i. e. before the consuls were elected). Prior to the Social War, the evidence suggests it was normal for consuls to campaign during their consulship. Hence, in my statistical analysis of the pre-Social-War period, I count consular provinces under the consuls’ magisterial year. There is some evidence, from c. 100 on, of consuls remaining in Rome for their entire year and then not taking a province. But there is no evidence before the Social War of consuls first departing Rome to go to a province late in their year. While we are relatively well informed about consuls, we have very little evidence about individual praetors, particularly about whether they held territorial provinces during or after their magisterial year. Hence no differentiation is made between known praetors in office and prorogued praetors. By contrast, after Sulla there is plentiful evidence for consuls only leaving Rome to take up their provinces near the end of their magisterial year.1 Indeed, this seems to be the normal practice. Therefore, consular provinces after Sulla are counted in the year following the consuls’ magistracy. However, this complicates matters. To demonstrate how, let us take as an example the consuls of 75. Sometime 1

See the evidence collected by Giovannini 1983, 83–90; cf. Pina Polo 2011a, 225–48.

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Appendix A

in 76, the Senate decreed Cisalpine Gaul and Cilicia would be the provinces which the consuls of 75 would take up (statistically) for 74. Yet the decree about who would govern all the other provinces in 74 was probably only made late in 75–a year or more later. That is, consular provinces were discussed and decreed under a different process to other provinces. For this reason there are two sections on the post-Sullan period: the first (Appendix A3) is on consular provinces and the second (Appendix A4) on praetorian provinces and prorogations. The evidence collected here is used for some simple statistical analysis in Appendix A5. Therefore, the data must take regular form, with regular terminology. The relevant terms are: 1. As elsewhere in this book, a territorial province is an extra-urban (i. e. militiae) province which is continually assigned. That means we may assume the presence of an imperator even if none is attested. The territorial provinces in 122 numbered seven: Sicily, Sardinia, Hispania Citerior, Hispania Ulterior, Africa, Macedonia and Asia. Transalpine Gaul is counted as territorial from 109, as it was assigned as a consular province every year until 101. The date of Cisalpine Gaul’s status as a territorial province is more debatable, and so it is only counted as such from 80.2 Cilicia is counted from 102, Bithynia from 73 and Syria from 61.3 Illyricum, Crete and Cyrene are not counted as territorial provinces at all in this period, as it is unlikely they were regularly or even frequently assigned to imperators.4 2. A consular province is one decreed to the consuls of the year. As discussed above, prior to the Social War consular provinces are counted under the magisterial year of the consuls in question (i. e. the provinces for the consuls of 103 are discussed under 103). In the post-Sullan period, they are counted under the following year (i. e. the provinces for the consuls of 65 are discussed under 64). 3. A consul refers strictly to a consul in office. 4. A consular proconsul is an imperator holding a province (whether territorial or temporary) he was allocated for his consulship, but who has been prorogued and is counted in a later year. Pompeius’s various extraordinary commands are also included in this category. 5. A consul or consular proconsul is the statistical category encompassing both consuls and consular proconsuls. Since we may assume the presence of an imperator in each territorial province, provinces not held by consuls or consular proconsuls were (potentially) held by praetorian imperators. 6. A praetorian province is a territorial province allocated to an imperator as a result of his praetorship. The term is used in these appendices irrespective of whether the province in question is held during or after the praetor’s magisterial year. 2 3 4

Rafferty 2017, 148–53. It is uncertain whether Cilicia remained an ongoing provincia after the return of M. Antonius (pr. 102). The text of the lex de provinciis praetoriis and Sulla’s long command suggest it did: see Ferrary 2000a, 167–70. See Appendix C on Crete and Cyrene.

A1. Introduction

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7. The term praetorian imperator refers to an imperator holding a territorial province which he has been assigned as a result of his praetorship. It does not distinguish between praetors in office and promagistrates and is used irrespective of whether the imperator held praetorium imperium or consulare imperium. In section 3.1 above, I argue that consuls had a presumptive right to the major military commands on offer (i. e. the most stragetically important provinces). This means the Senate decided which provinces would be consular before it turned to praetorian provinces. The language of Caes. BCiv. 1.6.5 and Cic. Fam. 8.8.8 – in which praetorian provinces are labelled reliquae provinciae – supports this interpretation.5 A few logical assumptions derive from this, which underpin the analysis below: 1. Consular proconsuls held provinces which were (or had been) of strategic importance, because those provinces had been assigned during their consulships. Therefore, the Senate decided whether to prorogue or recall consular proconsuls before it decided about praetorian provinces. 2. If the Senate decided to recall a consular proconsul, it would not later reverse this decision because not enough praetorian imperators were available. However, if he was to be replaced by a consul, and this consul suddenly became unavailable, then the incumbent consular proconsul might be prorogued (as happened to C. Cotta in 74). 3. A praetorian imperator already governing a territorial province might have to be prorogued because there were no candidates to replace him. There are four further sections in Appendix A. Section A2 covers all provincial assignments 122–91. Section A3 covers consular provinces 81–52. Section A4 covers all prorogued imperators and praetorian imperators 80–52. Section A5 gives the important data in tabular form and presents the key conclusions. The main source for this information is Appendix A to Brennan’s The Praetorship in the Roman Republic. Brennan relied heavily on Broughton’s Magistrates of the Roman Republic, but also on numerous detailed studies of individual problems, many of them by Badian, which appeared in the decades after MRR was published. Brennan’s work on provincial governors should thus be considered a revision and improvement of Broughton’s. However, while in general I have followed Brennan’s lists, I have on occasion disagreed with him. Most importantly, I place Q. Mucius Scaevola’s Asian governorship in 97 after his praetorship rather than in 94 after his consulship. This requires a substantial revision of Brennan’s lists of governors of Asia in the nineties and I have generally followed here the list provided by Ferrary 2000a. I also take note of the recent list of provincial governors created by Díaz Fernández. While also using Brennan as a starting point, Díaz Fernández often presents convincing alternative reconstructions. Detailed discussion for all years is signalled in the text and footnotes.

5

Drogula 2015, 260–61.

158

Appendix A

A2. 122–91 122-Cn. Domitius Ahenobarbus (20) and C. Fannius (7)6 No province is known for Fannius and he was active in opposing C. Gracchus throughout his consulship. He probably presided over the consular elections, which at this stage were (probably) still being held near the end of the year. This is based on his edict expelling all non-citizens from the City and on Cn. Domitius being prorogued in his province into 121 (Plut. C. Gracch. 11–12; App. BCiv. 1.23). That province was Transalpine Gaul, where the consul succeeded C. Sextius Calvinus (cos. 124). Two consular proconsuls were prorogued for 122. L. Aurelius Orestes (cos. 126) triumphed on 8 December 122 from Sardinia; a date so late in the year means he must have held the island for that year, especially given Sardinia’s proximity to Rome. Q. Caecilius Metellus (cos. 123) triumphed over the Balearic islanders sometime in 121. Brennan argues tentatively that Metellus’s provincial base for this war was Hispania Citerior and that he held that province for the duration of the war: that is, for 123 and 122.7 Broughton, however, gives Metellus’s province simply as the Balearic war, which would require another governor for Hispania Citerior. There is no strong reason to decide between these alternatives. Therefore, since Transalpine Gaul was not a territorial province at this time, only two (or perhaps only one) of the territorial provinces were reserved for consuls or consular proconsuls: Sardinia and Hispania Citerior. One praetorian imperator is known: C. Atinius Labeo in Asia, who issued a coin at Ephesus between September 122 and September 121.8 He may have been governor in either 122 or 121, or indeed both. 121-L. Opimius (4) and Q. Fabius Maximus (110)9 No province is known for Opimius, and his activity in Rome (crushing C. Gracchus, but also the subsequent construction of the temple of Concord and his trial) suggests he did not take one. His province may have been Italy (which did not necessarily require his departure from Rome), but that is only speculation. Opimius probably held the consular elections. His colleague Q. Fabius Maximus joined Cn. Domitius (cos. 122) in Transalpine Gaul, where he defeated the Allobroges and (like Domitius) triumphed sometime in 120. Thus Domitius was prorogued for 121 in a provincia permixta with the current consul.10 For this year, Brennan gives two praetorian governors: M’. Valerius Messalla in Asia and Sex. Pompeius in Macedonia.11 Both are very tentative. Thus none of the territorial provinces had consuls or consular proconsuls.

6 7 8 9 10 11

Broughton 1951, 1.516–20; Brennan 2000, 360–62 and 714. Numbers in parentheses are RE numbers. Brennan 2000, 181. Brennan 2000, 547 and 872, citing Stumpf 1985. Broughton 1951, 1.520–23; Brennan 2000, 714 and 361–62. See Vervaet 2014 ch. 6 on provinciae permixtae Brennan 2000, 521–22, 547, 704, 714.

A2. 122–91

159

120-P. Manilius (14) and C. Papirius Carbo (33)12 We know nothing of any provinces for the consuls of this year; possibly one of them held Italy. In view of the regular campaigning beyond the Alps in this period, we should not assume that either of the provinces the consuls were assigned was territorial. No consular proconsuls are noted, other than Q. Fabius (cos. 121) and Cn. Domitius (cos. 122) who triumphed in this year from Transalpine Gaul. Again, none of the territorial provinces were held by consuls or consular proconsuls. Brennan lists three praetorian governors: Q. Mucius Scaevola in Asia and (tentatively) M. Aemilius Scaurus in Africa and Sex. Pompeius in Macedonia.13 Broughton dates Scaurus’s praetorship to 119.14 119-L. Caecilius Metellus (Dalmaticus) (91) and L. Aurelius Cotta (99)15 L. Metellus campaigned in Illyricum and was prorogued there. Appian (in a confused passage) notes L. Cotta campaigning alongside him against the Segestani, but both the Alexandrian historian and Livy record Metellus alone continuing into the second year and winning a triumph in Dalmatia (App. Ill. 10–11; Livy Per. 62). If Appian’s account is to be believed, Cotta’s province may have been Italy, or both consuls may have been assigned Illyricum. In any case, Cotta probably held the consular elections and does not seem to have received a territorial province. Thus no consuls or consular proconsuls are recorded for the territorial provinces. The only praetorian governor listed is Sex. Pompeius (pr. 121?) in Macedonia, who was killed in this year. I agree with Brennan that Pompeius had probably been prorogued in annum for 119, but his death in battle required sending a replacement, who is likely to have been Cn. Cornelius Sisenna (pr. 119?), a praetor who we see holding Macedonia in 118.16 118-M. Porcius Cato (13) and Q. Marcius Rex (91)17 M. Cato died in his province of Africa; Gellius (the only source) does not explicitly say that he perished while still consul.18 Q. Marcius campaigned in Liguria and was prorogued there as he triumphed in December 117. The name of his province is uncertain: Brennan lists it as Cisalpine Gaul but it was more likely simply Italia. If, as likely, M. Cato died during his consulship, Q. Marcius must be added to the list of consuls who conducted the consular elections while still technically on campaign. As noted above, L. Metellus (cos. 119) was prorogued in Illyricum for this year (he triumphed de Delmateis in 117). Thus Cato was the only consul or consular proconsul in a territorial province. 12 13 14 15 16 17 18

Broughton 1951, 1.523–25. Brennan 2000, 521–22, 547, 704, 714. Broughton 1951, 1.526–27. Broughton 1951, 1.525–27. Brennan 2000, 521–22. Broughton 1951, 1.527–28; Brennan 2000, 259, 529, 704, 714. Gell. NA 13.20.10: consul cum Q. Marcio Rege fuit inque eo consulatu in Africam profectus in ea provincia mortem obit. Rich 1993, 52 n. 1 suggests he may have been on a diplomatic mission to Numidia.

160

Appendix A

117-L. Caecilius Metellus Diadematus (93) and Q. Mucius Scaevola (21)19 Nothing is known of the consular provinces, although the presumed prorogation of Q. Marcius (cos. 118) in Liguria suggests that Italy may not have been one of them. Thus no consuls or consular proconsuls are recorded for the territorial provinces. Of the praetorian imperators, Badian suggests C. Porcius Cato held Sicily in about this year, but (as Prag points out) the evidence is too flimsy to accept his suggestion.20 116-C. Licinius Geta (88) and Q. Fabius Maximus Eburnus (111)21 No consular provinces are known, nor are those of any consular proconsuls. Cn. Papirius Carbo is recorded as praetorian imperator in Asia; the fact itself is very probable, although the date is conjectured from the requirements of the leges annales. 115-M. Aemilius Scaurus (140) and M. Caecilius Metellus (77)22 M. Scaurus triumphed as consul de Galleis Karneis (an Alpine tribe); his province was thus probably Italy. M. Metellus held Sardinia and was prorogued. No consular proconsuls are known. Thus one consul or consular proconsul is known for the territorial provinces. Three praetorian provinces are known, although in all cases the year is approximate at best. Brennan places L. Calpurnius Piso in Asia and C. Servilius Vatia in Macedonia.23 Díaz Fernández reasonably suggests that Q. Fabius Lameo held Hispania Citerior, on the basis of two milestones discovered near Ilerda.24 114-M’. Acilius Balbus (28) and C. Porcius Cato (15)25 C. Cato’s province was certainly Macedonia as he was defeated there and prosecuted for repetundae on his return. M’. Acilius’s province is unknown; in view of Scaurus’s triumph the previous year it may have been Italy. One consular proconsul is known: M. Metellus (cos. 115) in Sardinia. Thus two consuls or consular proconsuls are known for the territorial provinces. C. Marius had been praetor in 115 (holding one of the urban provinciae) and received Hispania Ulterior as his secondary province for 114. This is the first certain instance of a praetor’s secondary provincia.26 Broughton also lists M. Papirius Carbo as praetor in Sicily, although the date is speculative. 113-C. Caecilius Metellus Caprarius (84) and Cn. Papirius Carbo (37)27 Metellus’s province was Macedonia and he campaigned in Thrace. Carbo fought the Cimbri in Noricum (unsuccessfully); Brennan gives his province as Transalpine Gaul, but that is highly unlikely given where he actually campaigned. His province 19 20 21 22 23 24 25 26 27

Broughton 1951, 1.528–30. Badian 1993 (followed by Brennan 2000, 477); Prag 2007, 300. Broughton 1951, 1.530–31; Brennan 2000, 547 and 714. Broughton 1951, 1.531–33; Brennan 2000, 476 and 705. Brennan 2000, 547, 705, 714. Díaz Fernández 2015, 358–59, 538. Broughton 1951, 1.533–35; Brennan 2000, 522 and 705. See the discussion by Broughton 1948a, 328 n. 31. See also pp. 57–58 above. Broughton 1951, 1.535–38; Brennan 2000, 362, 522, 705, 714.

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may have been Illyricum (as the Periochae suggest) or perhaps simply Italy.28 One consular proconsul is known: M. Metellus (cos. 115) in Sardinia. Thus consuls or consular proconsuls are known in two territorial provinces. No praetorian imperators are known. 112-M. Livius Drusus (17) and L. Calpurnius Piso Caesoninus (88)29 M. Drusus’s consular province was Macedonia, although it is uncertain when he departed Rome. The previous governor, C. Metellus (cos. 113), triumphed in July 111, which would suggest that he was prorogued for 112. However, C. Metellus seems to have delayed his triumph to share the occasion with his brother M. Metellus, who triumphed ex Sardinia on the same day. This in turn suggests that C. Metellus returned early to Italy but waited outside Rome for a year or more until his brother’s return. That is Brennan’s opinion, but the fact that C. Metellus’s triumph is listed as ex Thraecia while Drusus’s was de Scordisceis Macedonibus raises the possibility that C. Metellus remained in Macedonia alongside Drusus, but conducted a parallel campaign against a different enemy. L. Piso’s province is unknown, while another consular proconsul is known: M. Metellus (cos. 115) in Sardinia. That means consuls or consular proconsuls are known in two territorial provinces. One praetorian imperator is listed: Ser. Cornelius Lentulus in Asia, although the date is only approximate. 111-P. Cornelius Scipio Nasica Serapio (355) and L. Calpurnius Bestia (23)30 Sallust informs us explicitly that the consular provinces for 111 were decreed lege Sempronia and that they were Italy and Numidia (Sall. Iug. 27.3). P. Scipio Nasica received Italy but died in office, meaning Bestia, who was conducting the war against Jugurtha, needed to return to Rome to hold the consular elections. Brennan makes a convincing case that the commanders of the war against Jugurtha held Africa as their province as well as Numidia, especially as we do not hear of any separate imperator in Africa until the very end of the war.31 One consular proconsul is known: M. Livius Drusus was prorogued in Macedonia for 111, and triumphed in May 110. Therefore consuls or consular proconsuls are known for two territorial provinces. Two praetorian imperators are recorded: L. or Q. Hortensius in Sicily (very doubtful) and either L. Calpurnius Piso Frugi (Brennan) or, after his death, his replacement Ser. Sulpicius Galba (Broughton) in Hispania Ulterior.32 110-M. Minucius Rufus (54) and Sp. Postumius Albinus (35)33 Both consular provinces are known. M. Minucius received Macedonia, where he was prorogued for several years, while Sp. Albinus received Numidia, presumably including Africa. He also conducted the consular elections, famously leaving the 28 29 30 31 32 33

Brennan 2000, 362 and 714; Livy Per. 63: Cimbri, gens vaga populabundi in Illyricum venerunt. ab his Papirius Carbo cos. cum exercitu fusus est. Broughton 1951, 1.538–39; Brennan 2000, 522 and 705. Broughton 1951, 1.540–43; Brennan 2000, 540 and 705. Brennan 2000, 869 n. 121. Broughton 1951, 1.540, 543; Brennan 2000, 398 and 705. Broughton 1951, 1.543–44; Brennan 2000, 523, 540–41, 705.

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province under the command of his brother. There are no known consular proconsuls, leaving two territorial provinces under consuls or consular proconsuls. Ser. Sulpicius Galba’s praetorian tenure in Hispania Ulterior may have continued in this year; both Brennan and Broughton list him, although Broughton supposes he had succeeded L. Piso Frugi in 111.34 Finally, Broughton places M’. Sergius in Hispania Ulterior at about this time; the date is quite uncertain.35 109-Q. Caecilius Metellus (Numidicus) (97) and M. Iunius Silanus (169)36 Metellus received Numidia/Africa as his province, while Silanus fought against the Cimbri in Gaul. Yet it is doubtful whether these were the provinces assigned under the lex Sempronia. As has long been recognised, the chronology of Metellus’s assumption of the Numidian command is confused.37 Sallust tells us that Sp. Postumius Albinus (cos. 110) returned to Rome late in 110 to hold the elections, leaving his brother and legate Aulus in command pro praetore. However, the elections were delayed “for the whole year,” and the next sentence refers to Aulus marching out on an expedition mense Ianuario (Sall. Iug. 37.2–3). When the new consuls were elected (which date is precisely the problem), Sallust refers to them as consules designati (Sall. Iug. 43.1). Sallust appears to make a mistake here: the question is, what is he mistaken about? If the consular elections were delayed into 109, those elections would need to be conducted by an interrex (of whom there is no mention) and we would expect the newly elected consuls to enter into their consulship immediately, without any period in which they were designati. But we should not let our assumptions about Roman practice overrule Sallust’s explicit testimony unless we have specific reason to distrust that testimony, and in this case we do not, Syme’s barb about Sallust being “defective on chronology” notwithstanding.38 This is particularly the case when Sallust places the creation of the Mamilian commission between Aulus’s disaster and the new consuls entering into office. Yet if there is a real difficulty over when the consuls entered into office, our interest focuses on their provincial arrangements. Here the key fact is that Sp. Albinus returned to the army in Africa after his brother’s disaster and was replaced some months later by Metellus, who had spent much of the intervening time obtaining more troops and materiel. What does this tell us of the provincial arrangements for the Jugurthine war and how they changed? Clearly Sp. Albinus could not retain command of the war after his brother’s disaster (a defeat for which he as commanding general was condemned), but he was certainly prorogued until Metellus relieved him (i. e. he was probably explicitly prorogued to command the army until relieved by the new consul). That is despite the probability that Sp. Albinus was still outside Rome when news of the defeat broke; he was preoccupied with the delayed elections and the army had been placed in winter quarters before his return to Italy. 34 35 36 37 38

See above under 111. Broughton 1951, 1.543–44; Díaz Fernández 2015, 358–59 places him c. 105. Broughton 1951, 1.545–48; Brennan 2000, 523, 705. See Mommsen 1866 and Syme and Mellor 2002, 142–43 with notes on earlier discussions. Syme and Mellor 2002, 142.

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But does this tell us whether the Senate had originally intended to send one of the new consuls to Numidia, or whether the original dispositions were changed after Aulus’s defeat? We cannot be certain. Even if Numidia had already been decreed to the new consuls, Sp. Albinus could legitimately expect to return to the army after the election in order to await his replacement.39 The information we have does not indicate whether the Senate’s original intention was to prorogue Sp. Albinus or send one of the consuls of 109 to take command. It is also possible, in view of the delayed elections, that the Senate did not decree the consular provinces lege Sempronia before Aulus’s defeat. It is therefore uncertain whether another territorial province had been decreed to the consuls of 109. The other consul M. Iunius Silanus was defeated by the Cimbri in Gaul. I count (Transalpine) Gaul as a territorial province from this year, as consuls were sent against the Cimbri every year for the rest of the decade and normally fought beyond the Alps. Badian’s argument that Rome could not allow (Transalpine) Gaul to remain unsupervised after the Cimbric war is also convincing, although his belief that the Transalpine and Cisalpine provinces formed a unit before the Social War is not.40 Apart from the consular provinces, one consular proconsul is known: M. Minucius Rufus (cos. 110) in Macedonia. There were thus three consuls or consular proconsuls in the (now eight) territorial provinces. One praetorian imperator is recorded: Q. Servilius Caepio in Hispania Ulterior.41 108-Ser. Sulpicius Galba (59) and L. Hortensius (2) (suff. M. Aurelius Scaurus (215))42 No consular provinces are known. Three consular proconsuls are recorded: Q. Caecilius Metellus (cos. 109) in Numidia and Africa, M. Iunius Silanus (cos. 109) in Transalpine Gaul and M. Minucius Rufus (cos. 110) in Macedonia.43 Therefore, three of the eight territorial provinces were controlled by consuls or consular proconsuls. One praetorian imperator is known: Q. Servilius Caepio (pr. 109) in Hispania Ulterior, who would triumph late the following year.44 107-L. Cassius Longinus (62) and C. Marius (14)45 L. Cassius’s province was Gaul and he died in battle beyond the Alps. We do not know what the Senate had originally decreed as the other consular province. It certainly was not Numidia, because Sallust says explicitly that Q. Metellus (cos. 109)

39

40 41 42 43 44 45

See Pina Polo 2011a, 218 on consuls who returned to Rome to conduct elections and then returned to the army. See also Mommsen 1866, 429–30. Mommsen thinks that Sp. Albinus had returned to Rome intending to give up the command but then tried to use the delayed elections to arrange his own prorogation. Badian 1966, 907. Brennan 2000, 499 and 705. Broughton 1951, 1.548–50. Brennan 2000, 362, 523, 705, 715. Brennan 2000, 499 and 705. Broughton 1951, 1.550–52; Brennan 2000, 362, 541, 706, 715.

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had been prorogued (Sall. Iug. 73.7), and the lex Manlia would have been unnecessary had Marius received the province from the Senate. One consular proconsul is known: M. Minucius Rufus in Macedonia. Therefore, with C. Marius’s original province unknown, three territorial provinces were held by consuls or consular proconsuls. Regarding the praetorian imperators, there are two possibilities. Brennan lists T. Albucius in Sardinia at this time, and dates his trial (at which his former quaestor Cn. Pompeius Strabo tried to prosecute him) in 105.46 Second, Q. Servilius Caepio (pr. 109, cos. 106) triumphed from Hispania Ulterior on 28 October.47 This probably indicates he was prorogued, although it is possible he was relieved early in the year and only triumphed at the most electorally opportune moment. Regarding his election, Cassius’s death meant Marius must have returned to Rome to hold the consular elections, but no source has any indication of this. Nor, however, is there any indication of an interrex. 106-Q. Servilius Caepio (49) and C. Atilius Serranus (64)48 No province is known for C. Atilius. Q. Caepio received the province of Gaul, and campaigned in the area around Tolosa. C. Marius (cos. 107) in Numidia and (perhaps still) Africa is the only known consular proconsul, as M. Minucius Rufus’s (cos. 110) triumph on 1 August 106 suggests he was not prorogued for this year.49 Therefore, only two territorial provinces were held by consuls or consular proconsuls. Regarding praetorian imperators, Brennan places T. Albucius (pr. 107?) in Sardinia again for this year, while T. Aufidius held Macedonia.50 105-P. Rutilius Rufus (34) and Cn. Mallius Maximus (13)51 P. Rutilius’s province was Italy, while Cn. Mallius received Gaul. Of the consular proconsuls, C. Marius (cos. 107) was prorogued in Numidia (although probably not in Africa, where a praetor is attested) and Q. Caepio (cos. 106) continued in Gaul under the command of the consul Mallius; it was his refusal to accept Mallius’s authority which was partly responsible for the disaster at Arausio.52 Thus one of the territorial provinces was under the control of (two) consular imperators. L. Bellienus is attested as praetor in Africa; Broughton suggests his gentile name was Annius while Bellienus was a cognomen, as against Klebs in RE (followed by Brennan) who thinks Bellienus was the nomen.53

46 47 48 49

50 51 52 53

Brennan 2000, 476–77. Degrassi 1954, 107. Broughton 1951, 1.553–55; Brennan 2000, 362, 715. Sallust attests a praetor at Utica in (probably) 105, L. Bellienus (Iug. 104.1). Both Broughton and Brennan take him to be the regular governor of provincia Africa in that year. Brennan suggests, on the balance of probabilities, that there may have been a separate (praetorian) governor of Africa, at least after 109 (2000, 541); this is certainly possible. Aufidius: AE 2001, 1778; Amela Valverde 2010. Broughton 1951, 1.555–58; Brennan 2000, 362, 715. Cn. Mallius held the supreme command in the war: Vervaet 2014, 157–60. RE “Bellienus” no. 5; Brennan 2000, 541.

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104-C. Marius II (14) and C. Flavius Fimbria (87)54 Marius was voted the province of Gaul (extra ordinem) every year until the final victory at Vercellae in 101.55 C. Fimbria’s province is uncertain; we might suppose it was Italy, given P. Rutilius’s province in 105 and the gravity of the Cimbric threat. We know Fimbria was prosecuted for repetundae at some stage; Alexander places this trial after his praetorship, which is more likely than after his consulship.56 Thus there is no reason to think Fimbria must have held an overseas province as consul. Indeed, he must have held the consular elections, as Marius was elected to his third consulship in absentia (Livy Per. 67). No consular proconsuls are known in this year; hence one territorial province was held by a consul or consular proconsul. Two praetorian imperators are certain: P. Licinius Nerva in Sicily and L. Caesius in Hispania Ulterior. There is also M. Cosconius, praetorian proconsul in Asia at an uncertain date. Díaz Fernández suggests this year, which is as likely as any other possibility.57 103-C. Marius III (14) and L. Aurelius Orestes (181)58 C. Marius held Gaul. No province is recorded for L. Orestes, who died in office (probably near the end of the year, as no suffect is recorded). No consular proconsuls are known, and therefore only one territorial province was held by a consul or consular proconsul. Two praetorian imperators are known. L. Licinius Lucullus (pr. 104) certainly held Sicily as his secondary praetorian province, having held an urban provincia the previous year.59 C. Memmius was praetorian governor in Macedonia either in 104 or 103; there is no strong reason to prefer either year.60 102-C. Marius IV (14) and Q. Lutatius Catulus (7)61 C. Marius held Gaul again. Q. Catulus’s province is uncertain, but on the balance of probabilities was Italy with a mandate to defend the north against the Cimbri. It is just possible, however, that Catulus’s actions in the north all belong to his proconsulship in 101. The relative chronology of the key events is fairly secure: Marius is victorious at Aquae Sextiae (certainly in 102), he is elected consul for 101 in absentia, he learns of Catulus’s retreat from the Alps, he returns to Rome and postpones

54 55

56 57 58 59 60

61

Broughton 1951, 1.558–62; Brennan 2000, 362, 715. Cic. Prov. Cons. 19: quis plenior inimicorum fuit C. Mario? L. Crassus, M. Scaurus alieni, inimici omnes Metelli: at ii non modo illum inimicum ex Gallia sententiis suis non detrahebant, sed ei propter rationem Gallici belli provinciam extra ordinem decernebant. See also Vervaet 2006, 638–39. Alexander 1990 nos. 60 and 61. Díaz Fernández 2015, 557 n. 198, based on AE 2007, 1432 Broughton 1951, 1.562–66; Brennan 2000, 362, 715. Broughton 1951, 1.559, 562, 564. Broughton 1951, 1.564; Brennan 2000, 523. Díaz Fernández 2015, 388–89 and 543 n. 122 places this Memmius in Hispania Ulterior (on the basis of AE 2000, 726). While this does create an unknown Memmius to be accounted for, the inscription is more likely to date from early in the second century (so Rivero Gracia 2007, 254–55). Broughton 1951, 1.567–80; Brennan 2000, 362, 715.

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his triumph over the Teutones, and finally he sets out again to join Catulus in the north. There are two difficulties in placing these events. First, Livy’s epitomator describes Catulus as proconsul. This can be dealt with: as Lewis points out, the relevant sentence is tortuously constructed and deals primarily with events in 101, when Catulus was proconsul.62 It is thus unsurprising that the epitomator keeps the same title for Catulus throughout the sentence. But a greater difficulty lies in Marius’s election in absentia, which is recorded both by the epitomator and by Plutarch (Livy Per. 68; Plut. Mar. 22.3). Two possibilities exist: either Catulus conducted the election before rushing north to confront the Cimbri (in which case the election could have been held well before its normal date), or the election was conducted by an interrex at the beginning of 101.63 The first of these is preferable, and if Catulus was absent in Rome conducting the consular elections, then Sulla’s independent action as his legate is explicable (Plut. Sull. 4.3). On this reading, Catulus had been active in the north, reconnoitring the Alpine passes for news of the approaching Cimbri, before returning to Rome to hold the elections and then immediately returning to the army. This was by no means unusual: several examples of such an action can be found.64 But this reconstruction means that Catulus’s consular province was probably Italy. No consular proconsuls are known, meaning that only one territorial province was held by a consul or consular proconsul. Four praetorian imperators are known, with some confidence. C. Servilius held Sicily, while M. Marius’s tenure in Hispania Ulterior probably begins in this year. There was a praetorian imperator in Macedonia, although Brennan is unsure whether it was C. Billienus or C. Memmius.65 Lastly, the praetor M. Antonius was sent to Cilicia.66 From this date on, Cilicia is counted as a territorial province due to the multiple commanders attested there down to Mithridates’ invasion. 101-C. Marius V (14) and M’. Aquillius (11)67 Marius held Gaul, while Q. Catulus (cos. 102) continued there as proconsul under Marius’s supreme command.68 M’. Aqullius’s province was Sicily with responsibility for ending the slave war. Apart from Catulus, no consular proconsuls are known, meaning that two of the now nine territorial provinces were held by consuls or consular proconsuls. Three praetorian imperators are recorded by Brennan: M. Marius (pr. 102), who retained Hispania Ulterior, M. Antonius (pr. 102) in Cilicia, 62 63

Lewis 1974, 91. Lewis’s assertion that the consular elections for 101 were conducted by a praetor is clearly wrong (1974, 92). 64 See Pina Polo 2011a ch.10, especially 206–07. 65 Brennan 2000, 523. 66 See Broughton 1946, 35–40; Ferrary 2000a, 167–70. See also, however, Drogula 2011, 106– 15, who mounts a strong argument that M. Antonius’s provincia was Asia. If this is correct, then Cilicia’s creation can be downdated to 100. This does not affect my statistical deductions. 67 Broughton 1951, 1.570–73; Brennan 2000, 362, 479–480, 706, 715. 68 Vervaet 2014, 161–62.

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and T. Didius in Macedonia. However, Ferrary lists M. Plautius Hypsaeus as governor of Asia at about this time.69 100-C. Marius VI (14) and L. Valerius Flaccus (176)70 No consular provinces are known, and it is probable that both consuls remained in Rome throughout the year. Both were certainly present during the disturbances in December which resulted in the deaths of Saturninus and his associates. M’. Aquillius (cos. 101), who was prorogued in Sicily to complete the slave war, is the only known consular proconsul. Therefore, one territorial province was held by a consul or consular proconsul. By contrast, four praetorian imperators can be named with some confidence. M. Antonius (pr. 102) was probably prorogued in Cilicia: he was (as Broughton showed) outside Rome waiting to triumph in December 100.71 L. Cornelius Dolabella can be placed in Hispania Ulterior, while T. Didius (pr. 101) retained Macedonia. Finally, C. Iulius Caesar held Asia at about this time.72 99-M. Antonius (28) and A. Postumius Albinus (36)73 No consular provinces are known, and it is likely that M. Antonius, at least, did not take one as he was available in Rome to be elected censor early in 97. Brennan tentatively suggests M’. Aquillius (cos. 101) was prorogued in Sicily, but his ovation almost certainly belongs to this year, making that unlikely.74 Therefore, no consul or consular proconsul is known for any territorial province. Two praetorian imperators are listed. L. Cornelius Dolabella (pr. 100) was prorogued in Hispania Ulterior for this year, and triumphed from there on 26 January 98. Brennan also lists C. Iulius Caesar as governor of Asia in this year, which was probably the second year of a two-year stint. 69

70 71 72

73 74

Ferrary 2000a gives a detailed critique of the available evidence for Roman governors in Asia and Cilicia between 122 and 88 and presents the results in a table on pages 191–93. He is to be preferred to Brennan in this period as he accepts Scaevola’s governorship of Asia was praetorian rather than consular (discussion pp. 163–65). By contrast, Brennan records Scaevola as a consular governor of Asia in 95–94 (wrongly, in my view), which distorts his Asian fasti for the nineties (see Brennan 2000, 549–52 for discussion of Scaevola’s governorship). However, Ferrary’s reconstruction is quite tentative, with many approximate dates and possible ranges; he also lists several men in the mid and late-nineties who may have held either Cilicia or Asia. Therefore, my reconstruction here, while largely based on Ferrary, does not follow him precisely. For instance, Ferrary lists M. Plautius Hypsaeus as governor of Asia “c. 100” (p. 192). Broughton 1951, 1.574–78. Broughton 1946, 35–40. Rich 2014, 233–34 tentatively suggests Antonius’s reward may have been an ovation as he fought against pirates. Ferrary 2000a, 192 lists Caesar under “102, plutôt que la fin des années 90.” However, if we accept that his son the dictator was born in 100, then Caesar père could not have been away from Rome in late 101: there is no ancient speculation that the dictator was illegitimate. I have preferred a two-year stint in Asia (see Ferrary 2000a, 175–79 for a detailed discussion of I.Priene 111) which is allowed but not required by the epigraphic evidence. Broughton 1951, 2.1–4. Brennan 2000, 707. Brennan does not discuss a possible prorogation in the text at p. 479.

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98-Q. Caecilius Metellus Nepos (95) and T. Didius (5)75 T. Didius received Hispania Citerior as his province; no province is known for Metellus Nepos. There are no known consular proconsuls. Therefore one territorial province was held by a consul or consular proconsul. M. Iunius Silanus held Asia as a praetorian imperator.76 97-Cn. Cornelius Lentulus (178) and P. Licinius Crassus (61)77 P. Crassus’s province was Hispania Ulterior, but no province is known for Cn. Lentulus. T. Didius (cos. 98) in Hispania Citerior is the only known consular proconsul and it appears that the next few years were characterised by hard fighting in both Iberian provinces. Two territorial provinces thus were held by consuls or consular proconsuls. L. Domitius Ahenobarbus was a praetorian governor of Sicily, probably in this year. Q. Mucius Scaevola held Asia as his praetorian province, with Q. Rutilius Rufus (cos. 105) as his senior legate.78 Finally, C. Coelius Caldus held Macedonia in about this year (although 96 is possible if held after an urban provincia in 97).79 96-Cn. Domitius Ahenobarbus (21) and C. Cassius Longinus (57)80 No consular provinces are known. P. Crassus (cos. 97) and T. Didius (cos. 98) held both Iberian provinces as consular proconsuls, meaning that consuls or consular proconsuls held two of the territorial provinces.81 L. Cornelius Sulla held Cilicia as his secondary praetorian province from this year, having been praetor urbanus in 97. 95-L. Licinius Crassus (55) and Q. Mucius Scaevola (22)82 Q. Scaevola’s province is unknown, but he refused it without leaving Rome. L. Crassus campaigned against Alpine tribes and his province was probably Cisalpine Gaul. Two sources attest this. Valerius Maximus (3.7.6) tells us that nam cum ex consulatu provinciam Galliam obtineret, while Cicero (Inv. 2.111) relates how L. Licinius Crassus consul quosdam in citeriore Gallia nullo inlustri neque certo duce neque eo nomine neque numero praeditos. The juxtaposition of these two passages 75 76 77 78 79

80 81 82

Broughton 1951, 2.4–6; Brennan 2000, 500–02, 707. Ferrary 2000a, 192 lists Silanus as governor “c. 100 ou peu après.” Broughton 1951, 2.6–9; Brennan 2000, 500–02, 707. See Appendix B on Scaevola’s governorship. I prefer Díaz Fernández’s (2015, 552 n. 174) identification of Macedonia as Coelius Caldus’s praetorian provincia rather than the more common Hispania Citerior. The case for either rests on the interpretation of RRC 437. This has Caldus’s head, a boar and (in some variants) a faintly-legible HIS on the obverse, while the reverse carries trophies, Celtic weaponry (alluding to his consular victories in Gaul) and a Macedonian shield (which Crawford 1974, 459 says alludes to “an otherwise unattested military success in the East”). If the coin is intended to create an association with Caldus’s military victories then it seems to me much more likely that this is done through the Macedonian shield on the reverse, juxtaposed with trophies, than through any image on the obverse. Therefore, a command in Macedonia is a better choice than one in Hispania Citerior. Broughton 1951, 2.9–11. Brennan 2000, 500–02, 707. Broughton 1951, 2.11–12. See the detailed discussion of Scaevola’s province in Appendix B.

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with Asconius’s testimony that Scaevola blocked Crassus’s request for a triumph while they were colleagues (i. e. during their consulship) has caused some confusion: Badian for instance made sense of ex consulatu by suggesting that “Crassus may have returned to ask for a triumph at once and gone out again after his year of office had expired.”83 However, if we follow Giovannini and Hurlet by interpreting ex consulatu as meaning “as a result of his consulship” rather than “after his consulship,” then this difficulty evaporates: we can place Crassus’s entire campaign within his consular year.84 More interesting is the location of his activity. Valerius Maximus specifically names the provincia as Gaul, while Cicero tells us only that Crassus operated in nearer Gaul, without any reference to his provincia as such. In Livy books 21–45, Gallia frequently appears as a province (usually consular), but only when Italia was one of the other provinces.85 That is, in Livy’s account provincia Gallia is only specified when there were multiple provinciae within Italy; otherwise the consul who received Italy as his province often campaigned in the north. If we believe (following Brunt) that this situation persisted after Livy’s account breaks off, it suggests that the consular provinces for 95 were Italy and Gaul.86 However, there is reason to doubt this. First, there had been multiple occasions during the previous decade when both consuls campaigned outside Italy (e. g. 107 and 101). Second, there is Asconius’s wording when discussing the veto of Crassus’s request for a triumph. The crucial passage (15C) reads idem provinciam, cuius cupiditate plerique etiam boni viri deliquerant, deposuerat. Kallet-Marx has persuasively argued that Asconius’s (and Cicero’s) focus here is on the desire for a triumph, and therefore that Scaevola’s renunciation of a provincial command demonstrated his (to a Roman, highly unusual) indifference to triumphal honours.87 Kallet-Marx suggests that this ruled out Asia as the province being talked about, but linguistically, there is no requirement in the Latin for Asconius to be referring to a particular province. It is possible to read Asconius as meaning “many men desired this particular province, but Scaevola did not,” but the preferred reading is “many men desired to govern a province, but Scaevola did not.”88 The upshot is that while it is likely that the other consular province was not Italy, it is possible that it was. Indeed one possible scenario is that Scaevola renounced his province before the sortitio, meaning that Crassus received Gaul by default and that no imperator was required for Italy.89 Two consular proconsuls are known: T. Didius (cos. 98) in Hispania Citerior and P. Crassus (cos. 97) in Hispania Ulterior. Thus, two territorial provinces were in the hands of consuls or consular proconsuls. L. Cornelius Sulla (pr. 98) continued in Cilicia, and C Valerius Flaccus held Asia. 83 84 85 86 87 88 89

Badian 1956, 107. Badian allows that this issue was not a major problem. See Note on Terminology. Brunt 1971, 167 n. 1. Brunt 1971, 567. Kallet-Marx 1989, 309. I owe thanks to Dr Andrew Turner for guidance on this point. See also Ferrary 2000a, 164, who suggests that Scaevola’s province may have been Liguria or something similar, and that the two consuls were supposed to work together in the north.

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94-C. Coelius Caldus (12) and L. Domitius Ahenobarbus (26)90 No consular province is known for L. Domitius. C. Coelius was the subject of an erratic if brilliant reconstruction by Badian, who (convincingly) identifies the consul of 94 (about whom very little is otherwise known) with the victor over the Salluvii in 90. This man is variously called C. Caelius and C. Coelius in the manuscripts (Livy Per. 73).91 Thus the consul C. Coelius can (with some confidence) be assigned to Transalpine Gaul. Badian speculates that he was sent there after his consulship, based (presumably) on his confidence that L. Crassus was prorogued in provincia Gallia for 94. As there is no reason to believe in Crassus’s prorogation, we can only suppose that Coelius went to his province during his consulship (as Crassus is certain to have done the previous year). In the less convincing part of his reconstruction, Badian suggests that Coelius also held authority in Cisalpine Gaul, based on the presence of a P. Coelius holding the important town of Placentia in 87. But just as there is no reason to believe that Crassus in 95 operated in Transalpine Gaul, so there is no reason to think that Coelius held authority in the Cisalpine province. The Periochae specifically locate the Salluvii in Transalpine Gaul, while it is too large a stretch to assume that P. Coelius, although probably a relative of C. Coelius, must have been his legate. This is particularly true when P. Coelius is attested as having received his command from the consul Cn. Octavius (Val. Max. 4.7.5). C. Coelius can be safely regarded as holding Transalpine Gaul down to at least 90, but there are no grounds for a wider or longer command than that. T. Didius (cos. 98) and P. Crassus (cos. 97) continued to hold the Iberian provinces, meaning that three territorial provinces were held by consuls or consular proconsuls. L. Sulla (pr. 98) probably completed his term in Cilicia in this year. 93-C. Valerius Flaccus (168) and M. Herennius (10)92 By the early eighties C. Flaccus was holding both Iberian provinces: the question is whether this was the case from the start. We need to accommodate the Nasica mentioned by Obsequens under 94 (Obseq. 51). Both Broughton and Badian make him a praetor, and the father of Metellus Scipio. By their reckoning, he must have held Hispania Ulterior in 93, as P. Crassus’s triumph de Lusitaneis in June 93 strongly implies he was prorogued there for 94.93 This then puts C. Flaccus in the nearer province only, until he presumably took over Hispania Ulterior when the Social War began, after which no new governors could be sent. Brennan, however, prefers to believe Obsequens and so makes Nasica a legatus of either Didius or P. Crassus. He then places C. Flaccus over both Iberian provinces from the start.94 Both of these are possible, but there are two factors, admittedly quite weak, supporting Broughton and Badian’s position. First, it is unlikely that in a source such as Obsequens, concerned as he was with religious phenomena, a commander would be re90 91 92 93 94

Broughton 1951, 2.12–14; Brennan 2000, 363 and 715. C. Caelius in Gallia Transalpina Salluvios rebellantes vicit. Badian 1964, 90–93 (“Notes on Provincial Governors from the Social War down to Sulla’s Victory”). Broughton 1951, 2.14–17; Brennan 2000, 502 and 707. Badian 1964, 88; Broughton 1951, 2.15. Brennan 2000, 501–02.

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corded who did not operate under his own auspices. Second, App. Hisp. 100 records that C. Flaccus was sent to Hispania in response to a Celtiberian revolt. If there is any truth to this, it seems unlikely he would be given both provinces if there was an expectation of serious fighting to be done in one of them. However, this note of Appian should not be regarded as suggesting that Flaccus’s command in the Iberian peninsula was an emergency response to the revolt and that he had earlier been assigned a different province. The commands of T. Didius and P. Crassus show that warfare was to be expected in the Iberian provinces in the nineties. Thus, the balance of probabilities is that C. Flaccus was initially assigned only Hispania Citerior and that Hispania Ulterior was held by P. Cornelius Scipio Nasica. No province is recorded for M. Herennius. C. Coelius Caldus likely continued as consular proconsul in Transalpine Gaul, meaning that two territorial provinces were in the hands of consular governors. Brennan records L. Sempronius Asellio as praetorian governor of Sicily, tentatively in this year. The date is dependent on him being later than Q. Mucius Scaevola’s tenure of Asia, which as we have seen is best placed in 97 rather than 94 (as favoured by Brennan).95 However, there is no particular reason to prefer a different year for L. Asellio. C. Sentius Saturninus is more securely placed in Macedonia, which was his secondary province after being praetor urbanus in 94. L. Gellius certainly held either Asia and Cilicia as his secondary province in this year, but there is no clear reason to choose between them. 92-C. Claudius Pulcher (302) and M. Perperna (5)96 We have no evidence for any consular provinces. Two consular proconsuls are known: C. Coelius Caldus (cos. 94) in Transalpine Gaul and C. Valerius Flaccus (cos. 93) in Hispania Citerior. Therefore consuls or consular proconsuls held two of the territorial provinces. Three praetorian imperators are known: C. Sentius (pr. 93) in Macedonia and P. Sextilius Rufus in Africa. Brennan (following Badian) also lists P. Servilius (the later cos. 79) as praetorian imperator in Sardinia.97 While it is probable that he held Sardinia, it is unlikely to be from this year. L. Cornelius Lentulus held either Cilicia or Asia in this year.98 91-L. Marcius Philippus (75) and Sex. Iulius Caesar (151)99 Neither consular province is known and in view of the crisis surrounding M. Livius Drusus’s tribunate and the outbreak of the Social War, it is likely that both consuls remained in Rome throughout the year. C. Coelius Caldus (cos. 94) and C. Valerius Flaccus (cos. 93) continued as consular proconsuls in Transalpine Gaul and Hispania Citerior respectively. Therefore two of the territorial provinces were held by consuls or consular proconsuls. Of the praetorian imperators, C. Sentius (pr. 94)

95 96 97 98 99

Brennan 2000, 480. Broughton 1951, 2.17–20. Badian 1964, 82 (“Notes on Provincial Governors”); Brennan 2000, 477. See Ferrary 2000a, 179–82. The date is quite approximate. Broughton 1951, 2.20–25.

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continued in Macedonia and P. Sextilius Rufus (pr. 92) in Africa. L. Lucilius may have begun a two-year governorship of Asia in this year.100 The outbreak of the Social War late in 91 meant that any semblance of normal provincial administration vanished for several years. Therefore I have not attempted to trace the normal succession of governors; as Badian showed, there was no normal succession down to Sulla’s dictatorship.101 A3. CONSULAR PROVINCES 81–52 As noted in Appendix A1, the decrees about consular provinces in the post-Sullan period are here treated separately from the decrees about praetorian provinces and prorogations. Appendix A3 deals with the post-Sullan consular provinces and Appendix A4 with the praetorian provinces and prorogations. However (for reasons discussed in A1) an individual year in A3 equates to the following year in A4. For example, 75 here corresponds with 74 in A4. 81-M. Tullius Decula (34) and Cn. Cornelius Dolabella (134)102 M. Decula’s province is unknown. Cn. Dolabella received Macedonia; we do not know when he reached the province, but Brennan has suggested there was a strong need for a new commander on the spot, so it is likely Dolabella arrived there some time during his consulship. Giovannini does not discuss this year. The only evidence of Dolabella’s activities in Macedonia is the inscription of a letter he sent to the Thasians during 80.103 Since Sulla held supreme command over Rome’s possessions and decided which magistrates would go where, normal procedures for provincial allocation did not apply.104 80-L. Cornelius Sulla (392) and Q. Caecilius Metellus Pius (98)105 Q. Metellus was sent to Hispania to confront Sertorius sometime during 80 (App. BCiv. 1.97). According to Konrad’s chronology of the Sertorian War, Sertorius only returned to the Iberian peninsula from Mauretania in that year, and then defeated the Roman commanders Cotta and Fufidius, with Domitius Calvinus losing to Hirtuleius.106 It was these defeats which prompted the dispatch of a consular army under Metellus. The operations of the first few years of war seem to have been centred on Baetica and Lusitania, and it is entirely probable that Metellus’s prov100 Ferrary 2000a, 192 records Lucilius simply “probablement fin des années 90.” His discussion of I.Priene 111 demonstrates that Lucilius could not have been Caesar’s direct successor in Asia (contra Brennan 2000, 553–54); again, a two-year command is allowed but not required by the inscription. 101 Badian 1964, 71–104 (“Notes on Provincial Governors”). 102 Broughton 1951, 2.74; Brennan 2000, 528–30, 709. 103 Sherk 1969 no. 21. 104 Vervaet 2004, 56–58. 105 Broughton 1951, 2.79; Brennan 2000, 506–07, 709. 106 Konrad 1995, 157–58; cf. Brennan 2000, 505–07.

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ince was explicitly Hispania Ulterior. The probability that Metellus was sent out there only because Sertorius had returned and defeated the existing governors (in 80) makes it highly unlikely that Metellus should have been assigned this province lege Sempronia. Indeed, in the circumstances of 81, we may well doubt whether such normal practices were in operation. Sulla very probably retained his dictatorship through 80 and so had the power to decide which imperators should go to which provinces, without reference to the Senate.107 According to Granius Licinianus (36.24 Criniti), Sulla was assigned Cisalpine Gaul as his consular province in 80.108 The wording suggests that this may be an assignment sine sorte, but as this fragment stands alone and without context, it is difficult to interpret. In any case, Sulla certainly did not go to his province, but remained at Rome until after the consular elections in 79 (Plut. Sull. 34.5). He is the first consul whose province is explicitly Cisalpine Gaul, if we do not take Cicero’s description of L. Licinius Crassus in 95 as a reference to his province (Cic. Inv. 2.111).109 Cisalpine Gaul was an unusual province in the late Republic; in this, as in many other ways, Sulla acts as a precedent.110 79-P. Servilius Vatia (93) and Ap. Claudius (296)111 P. Servilius was sent to Cilicia ex consule, and left Italy during his term of office. However, all his actual campaigning seems to have been conducted as proconsul.112 Cilicia was currently held by Cn. Cornelius Dolabella (pr. 81), who had clearly needed to do some fighting, as demonstrated by the fact that he lost his quaestor C. Malleolus in battle (Cic. Verr. 2.1.41). However, the situation was stable enough for Dolabella to go to the rescue of his proquaestor C. Verres in Lampsacus on the Propontis (Cic. Verr. 2.1.73). Brennan has suggested, on the basis of a reference in Plutarch, that Dolabella’s imperium remained pro praetore when other praetorian governors were receiving imperium pro consule.113 However, this does violence to 107 On the contentious question of when Sulla resigned his dictatorship see Vervaet 2004, 60–68 (with discussion of earlier views); cf. Hinard 1999 (reprinted in Hinard 2011, 57–62). 108 Data erat et Sullae provincia Gallia cisalpina. 109 See above (Appendix A2 under 95) for extended discussion. 110 Rafferty 2017. 111 Broughton 1951, 2.82; Brennan 2000, 530, 572, 709, 717. 112 Eutr. 6.3: ad Ciliciam et Pamphyliam missus est P. Servilius ex consule, vir strenuus. By contrast, Ap. Claudius is described as being sent to Macedonia post consulatu in the previous paragraph, and we know he remained near Rome until at least 77. Sallust Hist. 1.127 Maur = 1.115 McGushin describes Servilius as leaving “his ill colleague” behind at Tarentum while he crossed the sea, which places his departure during their consular year; otherwise, Claudius would not have been described as a colleague: itaque Servilius aegrotum Tarenti collegam prior transgressus. Livy Per. 90 and 93 describe the conquest of the Isauri as being carried out by “P. Servilius procos.” However, see Suet. Iul. 3, which mentions that Caesar served briefly under Servilius in Cilicia before he returned to Rome when he heard of Sulla’s death. As Sulla’s death took place relatively early in 78, this suggests that Servilius may have at least reached his province in 79. 113 Brennan 2000, 572 solidly argues that the ναυαρχία in question is the “naval” province of Cilicia; cf. Plut. Comp. Lys. & Sulla 2.4: Σύλλας δὲ καὶ Πομπηΐου περιέκοψε τὸ στρατιωτικὸν φθονήσας, καὶ Δολοβέλλα τὴν ναυαρχίαν ἐπεχείρησε δοὺς ἀφελέσθαι.

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the natural meaning of Plutarch, which is that Sulla tried to take the command away from Dolabella, not diminish it. Assuming that Brennan is correct in assigning this reference to the praetorian Dolabella rather than his consular namesake, it may refer to an early supersession by Servilius rather than to the level of Dolabella’s imperium. The dispatch of Servilius marks the first time Cilicia was assigned as a consular province, and Servilius’s attentions while there were turned away from the sea and towards the mountains. Livy records campaigns against the Cilicians (initially, in book 90) and later against the Isauri who lived inland from Pamphylia (book 93); geographically, these are widely separated areas. Notably, Eutropius describes Servilius’s province as “Cilicia and Pamphylia.” Kallet-Marx regards the Senate decreeing Cilicia to a consul (which decree in the normal course of events would have been passed sometime in 80) as evidence of Roman anxiety about the attitudes of Mithridates and Tigranes towards Cappadocia, although by the time Servilius arrived in the area the danger was less acute.114 Ap. Claudius was the second of four consuls sent to Macedonia between 81 and 73. Clearly, the Senate thought the province required a major and sustained military effort, so no great explanation is needed for its assignment. However, it is useful to examine the circumstances under which Claudius actually took over the command from Cn. Dolabella (cos. 81). As we have seen, Claudius set out for Macedonia while still consul but was obliged to stop at Tarentum due to ill health (Sall. Hist. 1.127 Maur = 1.115 McGushin). He evidently remained in Italy for a considerable period of time, because we next meet him being named interrex in a speech by L. Philippus (cos. 91) early in 77 (Sall. Hist. 1.77.22 Maur = 1.67.22 McGushin).115 This speech was an exhortation by Philippus for the senatus consultum ultimum to be passed against Lepidus. Such decrees were always directed at those with imperium, and Claudius is explicitly named here as both interrex and imperator. Clearly, then, he performed his role as interrex while outside the pomerium and hence retained his imperium (as did Catulus). After the bellum Lepidanum was over, Claudius was able to set out from Rome again and reached Macedonia sometime in 77. His predecessor Dolabella probably returned to Rome in this year and triumphed, before being prosecuted by the young C. Iulius Caesar.116 While the choice of Macedonia as a consular province for 79 may not surprise us, what does require explanation is the fact that both consuls were assigned eastern provinciae. This was the first time that had happened since the Aetolian War of 189–188.117 In the immediate aftermath of civil war, with Sertorius on the loose in Hispania and Italy still unsettled, we might have expected one consul to have remained near Rome with an army. Kallet-Marx recognises this as an anomaly and explains it by the size of the task which Rome faced in the eastern Mediterranean. 114 Kallet-Marx 1995, 296: “Mithridates’ mere presence, despite the absence of hostile moves, demanded the maintenance in Asia Minor of a consular army.” 115 Uti Ap. Claudius interrex cum Q. Catulo pro consule et ceteris, quibus imperium est. 116 See Broughton 1951, 2.89. 117 Kallet-Marx 1995, 293. Both consuls were assigned to the Third Punic War in 149: Livy Per. 49; Polyb. 36.5; App. Pun. 75.

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However, I think we can detect political overtones as well. Sulla was ensuring that he remained the dominant figure in Italy by sending Metellus, Servilius and Claudius elsewhere to fight major wars. Having resigned his province (and his dictatorship probably from early 79), he would no longer possess imperium, but he wanted to ensure he possessed the greatest auctoritas by disposing of anyone who might rival him – at least in the short term. The tradition has so clearly emphasised the trope of Sulla retiring into private life after resigning his power that we are apt to forget the dangers of hindsight. We have no way of knowing at what time Sulla knew he was dying; he may have expected to live for several more years. He clearly took an active interest in Roman politics at least until the consular elections in 79 (for 78). 78-M. Aemilius Lepidus (72) and Q. Lutatius Catulus (8)118 The original provinciae for these two consuls appear to have been assigned regularly, i. e. under the lex Sempronia. Appian explicitly tells us that Lepidus was assigned Transalpine Gaul by sortitio (App. BCiv. 1.107), but we have no information on Catulus’s province. Yet when Faesulae revolted, both Catulus and Lepidus were assigned Etruria as a joint provincia, each being given an army and sent into the field. The earlier award of Transalpine Gaul may have been cancelled, or the command may have been held in abeyance until matters in Etruria had been settled – on the model of Ap. Claudius (cos. 79) and C. Antonius (cos. 63), both of whom eventually proceeded to commands in Macedonia after a delay. In the event, this was not to happen; Lepidus kept his army in Etruria and the Apennines throughout 78, refusing to return to Rome to hold the consular elections, before marching on the City early in 77, when he was defeated (Gran. Lic. 36.38–44 Criniti; Livy Per. 90; Plut. Pomp. 15–16; App. BCiv. 1.107; Flor. 2.11). This is a different reconstruction to that commonly adopted by scholars and it is true that Appian (BCiv. 1.107) places Lepidus being allotted Transalpine Gaul in the latter part of 78, after Sulla’s death.119 However, Appian’s account betrays his limited knowledge of the Lepidus affair and his clumsy attempts to explain it. Appian’s chronology in this passage is as follows: Sulla dies, the consuls quarrel in the City, Lepidus (in a bid to win extra support) proposes to give the Italians back their land, the Senate makes both consuls swear not to settle their differences by war (the word is πολέμῳ) and then Lepidus refuses to come back to Rome for the elections because he wants to use his army the following year. What is lacking here is any mention of the revolt in Etruria (which Appian clearly knows nothing about) and of the consuls being sent with armies to suppress it. So Appian needs to account for Lepidus being away from Rome and in command of an army, and hence in a position to wage war on Catulus. Hence the mention of his province of Transalpine Gaul, which Appian has clearly taken straight from his source, because it is not mentioned elsewhere in his account. The assignment of Transalpine Gaul is best

118 Broughton 1951, 2.85. See also the discussion in Rafferty 2017, 260–62. 119 See Burton 2014, 404 n. 1 for an overview of the scholarly consensus. Burton refers to Lepidus in early 77 as “proconsul of Transalpine (and probably Cisalpine) Gaul” (404).

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placed at the beginning of 78, before the revolt of Faesulae. That revolt caused the consular provinces to be changed to Etruria.120 Badian has argued that Lepidus was also assigned Cisalpine Gaul, and that we see here the first instance of the combination of these two provinces which was to recur in the sixties and fifties.121 This argument rests entirely on short references in Plutarch and the Livian Periochae which refer to M. Brutus (tr. pl. 83) holding Cisalpine Gaul on Lepidus’s behalf. There are several problems with this interpretation. First, the provincial assignments of the consuls of 78 were completely revised by the revolt in Etruria, so we have no reason to think that Lepidus had originally been assigned Cisalpine Gaul even if he were later shown to be operating there. Second, Lepidus is never shown to have set foot north of the Apennines: all sources which refer to the disturbances of 78–77 place them in Etruria.122 Only Plutarch (Pomp. 16.2) mentions Lepidus in connection with Cisalpine Gaul, and he refers to Brutus as Lepidus’s instrument.123 The question then becomes, in what capacity was Brutus commanding in Cisalpine Gaul? The Periochae specifically say that M. Brutus, qui cisalpinam Galliam obtinebat, a Cn. Pompeio occisus est. In this context, obtinere normally refers to the provincial assignment which an official receives from the Senate, whether sortitus or sine sorte, which in turn suggests that M. Brutus had been regularly assigned an independent command in Cisalpine Gaul, probably as a secondary province. Broughton’s statement that “there is no evidence that he had been praetor, an office he could hardly have held before 78,” is not a sufficient objection in view of the Livian language.124 Contra Badian and others, Cisalpine Gaul was never decreed to Lepidus as a province, but was held by Brutus as his regularly assigned secondary praetorian provincia (although we do not know whether that was from the start of 78 or only from 77).125 120 In this connection note also Gabba’s commentary on this passage (1958, 293–94). Gabba’s account is confused because his only understanding of consular provinces is that put forth by Mommsen, that only proconsuls could govern provinces, and so he reads Appian in this light and accepts that Lepidus went to hold Transalpine Gaul. Indeed he specifically refers to the supposed lex Cornelia de provinciis ordinandis. This is despite his recognition in the same passage that Lepidus’s support during his revolt was entirely based in Etruria: “Questo spiega il favore acquistato da Lepido in Etruria, che è concordemente data come la base della sua azione nel 77 a. C. Alla notizia dei discorsi sediziosi del console (Sall. hist. I 55 Maur.) si ebbero subito in Etruria, per es. nella zona di Faesulae, massacri di coloni sillani” (1958, 293). 121 Badian 1966, 910–11. 122 Sallust Hist. 1.77.8 Maur = 1.67.8 McGushin and Granius Licinianus both place the revolt in Etruria, as does Florus 2.11 and Exsuperantius 38 (although Exsuperantius also has Pompeius defeating Lepidus). 123 Προσθεὶς δὲ τοῖς ἀρίστοις ἑαυτὸν ἀπεδείχθη στρατεύματος ἡγεμὼν ἐπὶ τὸν Λέπιδον ἤδη πολλὰ τῆς Ἰταλίας κεκινηκότα καὶ τὴν ἐντὸς Ἄλπεων Γαλατίαν κατέχοντα διὰ Βρούτου στρατεύματι. 124 Broughton 1986, 3.112. On this point, Brennan attempts to show that “obtinere can be used of a subordinate” with reference to Cn. Piso in Hispania Citerior in 65, although his argument is entirely circular: Brennan 2000, 888. 125 On a related point, Brennan states that “Lepidus seems to have operated in Cisalpina already while consul, perhaps aiming to score a triumph over some Alpine tribe” (Brennan 2000, 575). He bases this on a very corrupt fragment of Granius Licinianus which refers to Lepidus leading his army in ontes (36.35), but this is not a tenable reconstruction. As we have seen, all

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Brunt proposes a different solution: that Cisalpine Gaul was part of the provincia of C. Cosconius, who was operating at this time in Dalmatia.126 He bases this suggestion on the fact that Caesar combined both provinces in 59, but the two situations are not comparable. Cosconius’s main achievement as commander in Illyricum was the capture of Salonae. While a campaign in this area would have involved transit through Cisalpine Gaul, there was no need for Cosconius to combine both provinces.127 77-D. Iunius Brutus (46) and Mam. Aemilius Lepidus (80)128 These two consuls were not elected until early in 77, since consular elections were not able to be held in 78. All that we know of their consular provinces is that Pompeius was sent to fight Sertorius in Hispania non pro consule, sed pro consulibus (Cic. Leg. Man. 62), which clearly implies that the Iberian command had been previously offered to the consuls but they had declined.129 This was presumably a single command which was separately refused by each consul, rather than a command for both, but the question then becomes when this Iberian command was first decreed. Although no consular elections were held in 78, nothing prevented the Senate from assigning the consular provinces for 77 under the lex Sempronia. However, considering the situation in Italy, with the real possibility of civil war, it is probable that if consular provinces had been assigned lege Sempronia, they would have been in Italy. Only after Lepidus’s defeat did the situation in Hispania become the focus of attention.130 Therefore, it was at this point, when the defeat of Manlius by Hirtuleius had become known (and thus the necessity for reinforcements for Hispania), that the Senate decided on sending another consular army. In the event, of course, the consuls refused and the command was given to Pompeius. 76-C. Scribonius Curio (22) and Cn. Octavius (10)131 We do not know which province was assigned to Cn. Octavius. However, since he was quite painfully ill throughout his consulship, it seems unlikely that he actually went to a province (Cic. Brut. 217; Sall. Hist. 2.26 Maur = 2.24 McGushin). C. Curio was sent to Macedonia after word came back that the incumbent Ap. Claudius had died (Eutr. 6.2). While this might suggest that Curio had not originally been

126 127 128 129 130

131

explicit references to the location of Lepidus’s military operations place them in Etruria, and what we know of the political situation in late 78 suggests that Lepidus was engaged in manoeuvring with the Senate and the rebels in Etruria–and thus not in a position to go off gratuitously hunting a triumph in the Alps. Rather, in ontes is more likely to refer to Lepidus’s military manoeuvres in the Apennines in relation to Catulus’s forces. Brunt 1971, 464–65. On Cosconius’s campaign see Dzino 2010, 67–69. Broughton 1951, 2.88; Brennan 2000, 575–76 and 717. Cf. Gruen 1995, 18–19. Konrad 1995, 185. There is one error in Konrad’s reconstruction: he suggests that Pompeius’s siege of Mutina began in December 78, but this is very unlikely, as at that stage no senatus consultum ultimum or hostis-declarations existed to authorise such an action. A date sometime in the second half of January is more likely. Broughton 1951, 2.92; Brennan 2000, 530–31 and 710.

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decreed the province, we should not jump to this conclusion. After all, by the time Curio would normally expect to arrive (late 76), Claudius would have been in the province for eighteen months and holding imperium since his consulship in 79, which was a sufficiently long period to be replaced. Considering that Macedonia had been assigned previously as a consular province in 81 and 79, and would be again in 73, there is no reason to think that Curio did not receive the province lege Sempronia. Rome was clearly committed to a serious military effort in the Balkans and Thrace. Curio proceeded to his province at some point in 76, presumably soon after word reached Rome that Claudius had died; the Senate would not have wanted to leave this important military province sine imperio.132 75-C. Aurelius Cotta (96) and L. Octavius (26)133 At the conclusion of Pompeius’s letter to the Senate, Sallust tells us explicitly that the consuls decided between themselves the division of provinces, which had clearly been decreed by the Senate under the lex Sempronia: Hae litterae principio sequentis anni recitatae in senatu. Sed consules decretas a patribus provincias inter se paravere; Cotta Galliam citeriorem habuit, Ciliciam Octavius. Dein proximi consules, L. Lucullus et M. Cotta, litteris nuntiisque Pompei graviter perculsi, cum summae rei gratia tum ne exercitu in Italiam deducto neque laus sua neque dignitas esset, omni modo stipendium et supplementum paravere, adnitente maxime nobilitate, cuius plerique iam tum lingua ferociam suam et dicta factis sequebantur. This dispatch was read in the senate at the beginning of the following year. But the consuls arranged between themselves the provinces decreed by the senate: Cotta had Hither Gaul, Octavius Cilicia. Afterward, the succeeding consuls, Lucius Lucullus and Marcus Cotta, having been gravely dismayed by Pompey’s letter and envoys, both on account of the seriousness of the matter and for fear that they would have no renown and standing if the army returned to Italy, used every means to provide pay for the troops and reinforcements. And they were aided especially by the nobles, most of whom were already even then displaying their customary arrogance in speech and not following up their words with deeds. (Sall. Hist. 2.98.11 Maur = 2.82.11 McGushin)

132 Although Eutr. 6.2 says that Curio was sent to succeed Claudius post consulatem, Frontin. Str. 4.1.43 says he quelled a mutiny near Dyrrachium as consul: C. Curio consul bello Dardanico circa Dyrrachium, cum ex quinque legionibus una seditione facta militiam detractasset securturamque se temeritatem ducis in expeditionem asperam et insidiosam negasset. Since Curio’s victories were won against the Dardani, who dwelt around Mt Rhodope (i. e. nowhere near Dyrrachium), the likelihood is that Curio arrived too late in the campaigning season of 76 to do more than restore discipline. His campaigns to subdue the Dardani, in the course of which he became the first Roman general to penetrate to the Danube, thus took place between 75 and 73. This reconciles the testimony of the Periochae books 92 and 95, together with Eutr. 6.2, which says that Curio put an end to the war within three years. We should also note in this connection Sall. Hist. 2.80 Maur = 2.60 McGushin: eodem anno in Macedonia Gaius Curio, principio veris cum omni exercitu profectus in Dardaniam, a quibus potuit, pecunias Appio dictas coegit. Since Sallust represents the invasion of Dardania as occurring at the beginning of the campaigning season, and as a follow-up to Claudius’s campaign, this fragment should be placed in relation to operations in 75. It further demonstrates that Curio had already made all necessary preparations, which reinforces the conclusion that he had arrived late in the previous year. 133 Broughton 1951, 2.96; Brennan 2000, 530–31, 572, 710, 717.

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The passage is largely straightforward: the consular provinces, as decreed by the Senate (decretas a patribus provincias), were Cilicia and Cisalpine Gaul. Neither province is a surprise: P. Servilius had been in Cilicia since 79 and was certainly due to be relieved, while the dispatch of a consular replacement is explicable in terms of the continued danger presented by Mithridates to Cappadocia and Cilicia. Cisalpine Gaul was regularly decreed a consular province throughout the late Republic.134 In this instance, the consuls decided between themselves that Cotta should take Cisalpine Gaul and Octavius Cilicia, as shown by the verb paravere. The only major difficulty this passage presents is chronological. Sallust makes three clear statements. First, that Pompeius’s letter was read in the Senate at the beginning of the next year (i. e. the year after it was sent, presumably). Second, that the consuls of 75 distributed their provinces and, third, that the following pair of consuls considered the letter. It has normally been held that principio sequentis anni must refer to the beginning of 74, as Pompeius states that he has been in Hispania for three years (i. e. three campaigning seasons), and he was sent in 77: therefore, it cannot refer to 75.135 But this creates a difficulty with the natural meaning of Sallust’s text. Consuls normally distributed their provinces early in their year of office, yet on this reading, C. Cotta and Octavius only took this step at the beginning of the following year. However the usual interpretation can be set aside as a close reading shows that Pompeius does not imply that he was sending the letter after he had been in Hispania for three years, but that he had been given a three year command and only supplies for one year. There is no need (in Sallust’s version) for the letter to have been sent after Pompeius’s third campaigning season.136 The conjunction sed and the adverb dein complicate this somewhat. Sed implies that the consuls of 75 proceeded to the allocation of their provinces rather than respond to Pompeius’s letter and (as shown by dein) it was therefore left to the consuls of 74 to respond. However, even here we should note that they need not have waited until they entered upon their consulships: Appian (BCiv. 2.5) makes the point that consuls-designate were invited to speak first in the Senate because they would probably need to put into operation any senatorial decrees passed after their election and so it is entirely possible that the action taken by Lucullus and M. Cotta was taken soon after the consular elections and after the consuls of 75 had left the city.137 C. Cotta stayed in Cisalpine Gaul until 73 and was even awarded a triumph by the Senate, although Cicero (Pis. 62) characterises his campaign as a desperate and ridiculous attempt to find enemies in the Alps sufficient to warrant such an honour. Cotta died before being able to celebrate his triumph (Asc. 14C). L. Octavius, how-

134 See Rafferty 2017. 135 See e. g. McGushin 1992, 198, 247. 136 See Vervaet 2009, 419–23 for a discussion of Pompeius’s letter and the situation which prompted him to send it. Vervaet argues that the letter was sent late in 76 and received at the beginning of 75. 137 See also Pina Polo 2013, especially 424–25. C. Cotta certainly left Rome while still consul, as Cic. Brut. 318 says that his and Cicero’s absence from the city left Q. Hortensius as the dominant orator, as argued by Giovannini 1983, 80 and 85.

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ever, died in Cilicia early in 74 and his province passed to L. Lucullus (Plut. Luc. 6.1).138 74-L. Licinius Lucullus (104) and M. Aurelius Cotta (107)139 Plutarch is explicit that L. Lucullus received Cisalpine Gaul as his consular province by lot and was displeased with the outcome (Plut. Luc. 5.1). Therefore, Cisalpine Gaul had been one of the provinces assigned under the lex Sempronia. What was the other? We know that M. Cotta was eventually sent to Bithynia, but it is unclear whether that was the province originally decreed in the previous year. If Konrad’s interpretation of the date of outbreak of the Third Mithridatic War is correct, that is that Nicomedes died in 75 and Mithridates’ invasion came fairly early in 74, then it is just possible that it was.140 However, the balance of probability is against it, as are the sources. Plutarch closely connects the consular sortitio at the beginning of 74 with senatorial debates on the best response to Mithridates and places the decision to send Cotta to Bithynia at the same time as the decision to make Lucullus general in the war (Plut. Luc. 6.5). The assignment of Bithynia as a consular province can only have come after word reached Rome of the death of Nicomedes (at which point it would have been clear that there was a serious risk of war with Mithridates, even if the king of Pontus had as yet made no aggressive move), which even on the earliest interpretation cannot have occurred before quite late in 75. We have no reason to think the consular elections in 75 were seriously delayed and so they probably took place in July or August. The strong probability is thus that Bithynia was not the consular province decreed lege Sempronia. Plutarch divides Lucullus’s provincial struggles into two phases. The first is at the beginning of his consulship, when there is talk of a renewed Mithridatic war and when Lucullus is therefore displeased at obtaining Cisalpine Gaul because it gives no opportunity for great achievements. This strongly implies that the other possible province was one where there was a good chance of fighting Mithridates. Plutarch then describes Lucullus’s enmities with Cethegus and L. Quinctius, before recounting the death of L. Octavius (cos. 75) in Cilicia and Lucullus’s intrigues to gain that province.141 In this connection, Cotta is described as being sent to Bithynia (and with a fleet to the Propontis) only “after fervent entreaties to the Senate.” In view of this ambiguity in Plutarch, it is uncertain whether Bithynia was reassigned as a consular province when Nicomedes died, or only when Octavius died; it is very probable, however, that it had not been originally assigned as a consular province before the consular elections.

138 Plutarch places this news immediately after the reading of Pompeius’s letter and Lucullus’s confrontations with the tribune L. Quinctius. See Broughton’s long note on the date of the outbreak of the Third Mithridatic War: 1951, 2.106–08; cf. Konrad 1995, 170–73. The likelihood is that the news of Octavius’s death reached Rome quite early in 74, which itself suggests that Octavius had left the city some time before the end of 75. 139 Broughton 1951, 2.100–01; Brennan 2000, 404, 562–64, 718, 720. 140 Konrad 1995, 170–75. 141 See also Vervaet 2006, 639–40 and 644–45.

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73-M. Terentius Varro Lucullus (Licinius 109) and C. Cassius (58)142 Plutarch names C. Cassius as Πάδον Γαλατίας στρατηγὸς when he is defeated by Spartacus in 72, while the Periochae call him “proconsul” (Plut. Crass. 9.7; Livy Per. 96; cf. Flor. 2.8.10). There are no known special circumstances for his appointment. Although the Spartacus revolt broke out in 73, it was only after the defeats of Varinius and Cossinius in 72 that the consuls became engaged. In view of the award of a triumph to C. Cotta, which is not firmly dated (since Cotta died before the day of his triumph and there is in any case a lacuna in the Fasti Triumphales at this period), the likelihood is that Cisalpine Gaul was assigned as a consular province under the lex Sempronia and allotted to Cassius during his consulship. M. Lucullus succeeded C. Curio (cos. 76) in Macedonia.143 Although Eutropius explicitly states that Curio put an end to the war with the Dardani inside three years (i. e. by 73), Kallet-Marx has made the attractive suggestion that the continued maintenance of a consular army in Macedonia was a strategic move in the Mithridatic War, and indeed M. Lucullus’s campaigns were directed, not against the inland Thracian tribes, but against the Bessi and the Greek cities of the Black Sea coast (Eutr. 6.2).144 It seems reasonable, then, to conclude that in mid-74 the Senate assigned Macedonia to a consul of 73 under the lex Sempronia. Again, a large army in this theatre of war would not be left sine imperio if possible, so Curio probably only returned to Italy to triumph after M. Lucullus had arrived, but we have no firm date for his triumph either. 72-L. Gellius (17) and Cn. Cornelius Lentulus Clodianus (216)145 Presumably, these consuls had been assigned provinces under the lex Sempronia in 73, but we do not know which those were. However, after the Spartacus revolt reached major proportions, the senators were “constrained by their fear and peril to send both consuls into the field, as they would to a war of the utmost difficulty and magnitude” (Plut. Crass. 9.6).146 This in itself is unsurprising: as we have seen, the Senate reserved the right to change the consular provinces where appropriate. However, the consequences are more interesting. Both L. Gellius and Cn. Lentulus were defeated and command in the war was given to M. Crassus (cos. 70) instead.147 But having been removed from command in the servile war, they did not proceed to their original provincial postings. Both consuls remained in Rome. This can be stated with some confidence, because the two men were present in Rome to be elected as censors in 70.148 142 Broughton 1951, 2.109; Brennan 2000, 531, 576, 710, 718. 143 So, explicitly, Ps. Asc. 261 Stangl: consul scilicet: nam, ut opinor, Curioni successerat. 144 Cf. Kallet-Marx 1995, 298. Petković 2014 suggests that Curio’s earlier campaign had been intended to pre-emptively defeat Pontic allies ahead of the expected resumption of the war with Mithridates. 145 Broughton 1951, 2.116. 146 ἀλλ’ ἤδη διὰ φόβον καὶ κίνδυνον ὡς πρὸς ἕνα τῶν δυσκολωτάτων πολέμων καὶ μεγίστων ἅμ’ ἀμφοτέρους ἐξέπεμπον τοὺς ὑπάτους; cf. Livy Per. 96. 147 See the sources cited at Broughton 1951, 2.118. 148 Broughton 1951, 2.126–27.

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71-Cn. Aufidius (32) and L. Cornelius Lentulus Sura (240)149 We have no information on the activities of these men as consuls. However, the fact that L. Lentulus Sura was expelled from the Senate in the following year suggests (obliquely) that he did not take a province. It is possible, based on the practice of the previous few years, that Cisalpine Gaul may have been intended as a consular province in this year. Alternatively, the continuance of the servile war into their consulship means that both consuls may have been retained in Italy.150 70-Cn. Pompeius Magnus (15) and M. Licinius Crassus (68)151 We know that both Pompeius and Crassus did not take a province, but we have no information on which provinces the Senate had decreed under the lex Sempronia. In fact, in view of delays to the consular elections in 71, and the possibility of civil war involving these two men in the latter part of that year, there are grounds to doubt whether any provinces would have been decided.152 69-Q. Hortensius (18) and Q. Caecilius Metellus (87)153 The consular province of Crete was allotted to Q. Hortensius, who passed it up in favour of his colleague and himself remained in Rome (Cass. Dio 36.1a). We have no knowledge of the other consular province, which was never taken up. The chronology of Q. Metellus’s war against Crete is rather uncertain and complicated, although the reconstruction of events given by Kallet-Marx is generally attractive.154 In his version, Roman dissatisfaction with the truce made by the late M. Antonius (pr. 74) led to Crete being assigned as a consular province for 69; massive bribery by Cretan envoys was headed off by the tribune P. Lentulus Spinther (cos. 57), and Metellus eventually began operations in Crete early in 68. The Periochae (98) record that Metellus began the siege of Cydonia as proconsul (i. e. in 68), but the amount of preparation needed to launch a naval war means he probably began the expedition in his consular year. It is noteworthy that Crete seems to have been assigned as a province before the decision to go to war had actually been made. 68-Q. Marcius Rex (92) and L. Caecilius Metellus (74)155 L. Metellus died early in the year, and the man chosen suffectus (an otherwise unknown Servilius) died before he could assume office; as a consequence, Q. Rex served most of his year in office as sole consul (Cass. Dio 36.4.1). Cilicia and Asia had been removed from L. Lucullus’s (cos. 74) command in the previous year, Asia 149 Broughton 1951, 2.121. 150 See Vervaet 2015a, 424–25 and n. 62 for the suggestion that the Senate in 72 may not have declared the consular provinces before the consular elections, but–in view of the disasters suffered by previous Roman commanders–may have waited until the consuls and praetors were known before assigning the Spartacus war sine sorte. 151 Broughton 1951, 2.126. 152 Broughton 1951, 2.123; cf. Vervaet 2009, 423–30; Girardet 2001, 169–71. 153 Broughton 1951, 2.131; Brennan 2000, 407–08 and 721. 154 Kallet-Marx 1995, 309–11. 155 Broughton 1951, 2.137; Brennan 2000, 572 and 718.

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being assigned to a praetor of 69 and Cilicia to a consul of 68.156 Suetonius, when referring to the legions being conscripted for service in Cilicia who were kept in Italy to forestall Caesar’s machinations among the Transpadani (Iul. 8), mentions that this decision was taken by “the consuls” (note the plural); if this is not simply an oversight by Suetonius, it reflects a period very early in the year.157 If troops were already being recruited for Rex’s new army in Cilicia at this early stage, then this reinforces the idea that the consular province had already been decided. On the reasoning behind the assignment of Cilicia to a consul of 68, I largely agree with Kallet-Marx’s sensible analysis: Lucullus’s extension of the war into Armenia necessitated a new consular army in the strategically central province of Cilicia, able to defend Cappadocia or strike into Syria at need.158 Moreover, Rex’s fleet (which he eventually entrusted to his relative, the young P. Clodius) allowed the new governor to render aid to Q. Metellus (cos. 69) in Crete if necessary. 67-M’. Acilius Glabrio (38) and C. Calpurnius Piso (63)159 C. Piso held both Transalpine and Cisalpine Gaul ex consulatu, provinces probably assigned under the lex Sempronia (Cass. Dio 36.37.2; Sall. Cat. 49.2; Cic. Att. 1.1.2).160 Piso was the first consul since M. Lepidus in 78 to be assigned Transalpine Gaul and he fought against the Allobroges while there.161 We have no knowledge of the other consular province the Senate had decided; possibly the two Gauls had been separately assigned and were combined after the lex Gabinia. Since we know little of what was passing in Hispania in these years an Iberian province is another possibility. Glabrio’s province was altered, very early in 67, by a lex Gabinia which assigned to him the command against Mithridates and he seems to have set out for Bithynia quite soon after that.162

156 Vervaet 2011, 270 and n. 15. Vervaet does not elaborate on the similarity between this situation and that proposed by Cicero in his speech De provinciis consularibus thirteen years later; in that case, Cicero proposed the assignment of Macedonia and Syria to praetors of 56 and the consuls of 55, the provinces of whom were being decided at the same time. 157 Nisi consules conscriptas in Ciliciam legiones paulisper ob id ipsum retinuissent; cf. Sall. Hist. 5.14 Maur = 5.12 McGushin on the size of Q. Rex’s army in Cilicia: at Lucullus, audito Q. Marcium Regem pro consule per Lycaoniam cum tribus legionibus in Ciliciam tendere. Caesar is known to have returned from his quaestorship in Hispania Ulterior ante tempus, so Suetonius might be exact in his timing. 158 Kallet-Marx 1995, 312–13; cf. Giovannini 1983, 86, who erroneously gives Q. Rex the command against Mithridates. 159 Broughton 1951, 2.142–43; Brennan 2000, 404, 577, 718, 721. 160 However, see Vervaet 2011, 284–90 for the suggestion that the original consular provinces decreed according to the lex Sempronia were the two Gauls and when Glabrio received Bithynia the other Gallic province was assigned nominatim to Piso. 161 Allobroges: Cic. Att. 1.13.2. He was replaced in Transalpine Gaul by L. Murena (pr. 65): Cic. Mur. 89; Brennan 2000, 578–79 and n. 40; Badian 1966, 916. 162 See Vervaet 2011, 279–80 and n. 47.

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66-M’. Aemilius Lepidus (62) and L. Volcacius Tullus (6)163 We know nothing of the consular provinces for these two men. We know that a Lepidus whose praenomen began with M bore witness against the tribune C. Cornelius in 65, and if that referred to this consul, then we could state firmly that he had not taken a province ex consulatu. However, Sumner has shown convincingly that the man in question was Mam. Lepidus, the consul of 77.164 It can reasonably be inferred that L. Volcacius conducted the consular elections in this year (Asc. 89C), but beyond that we have no information as to whether either man took a province, which province it was or if and when they departed Rome.165 65-L. Manlius Torquatus (79) and L. Aurelius Cotta (102)166 L. Torquatus was sent to Macedonia and returned in 63, having been acclaimed Imperator (Cic. Pis. 44): Cicero as consul moved the senatorial motion which confirmed this acclamation. Presumably he triumphed from this province, since Cicero emphatically states in the same speech that every consul who has returned alive from Macedonia in living memory has triumphed, and we know that Torquatus was present in the Senate during the debate over the Catilinarian conspirators in December 63 (Cic. Att. 12.21.1). His absence from the Fasti Triumphales is no barrier, as there is a lacuna before the triumph of Q. Metellus Creticus (cos. 69) in 62. However, Cicero, when mentioning his motion which acclaimed Torquatus, contrasts him with the three consuls of the seventies who returned triumphans from Macedonia. Since Cicero’s emphasis here is on his own senatorial motion, this does not conclusively show that Torquatus did not triumph, but it does cast some doubt on the matter. L. Cotta certainly did not take a province, since he was present in Rome in 64 to be elected censor (Plut. Cic. 27.3). However, it is very likely that either he or one of the consuls of the following year was assigned Cisalpine Gaul. This is based on the fact that L. Murena (pr. 65) received Transalpine Gaul in 64, relieving C. Piso (cos. 67) who had held both Gallic provinces. It seems unlikely that the Senate would have deprived Piso of half his provincia, while he had now been in place for several years. The Senate’s probable intention was to recall him and split his provincia, with the Transalpine province going to a praetor of 65 and the Cisalpine province probably to a consul of 65 or of 64.167 In the event, as Cotta and the consuls of 64 probably did not take provinces, Piso would have remained in command until 63. However, since no province is recorded for Cotta or either of the consuls of 64, this is at best a likelihood.

163 Broughton 1951, 151. 164 Sumner 1964. 165 L. Volcacius Tullus consul consilium publicum habuit an rationem Catilinae habere deberet, si peteret consulatum: nam quaerebatur repetundarum. 166 Broughton 1951, 2.157; Brennan 2000, 532 and 711. 167 See Badian 1966, 916 for confirmation that Murena was given only the Transalpine province.

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64-L. Iulius Caesar (143) and C. Marcius Figulus (63)168 L. Caesar was certainly in Rome in December 63 to take part in the debates over the fate of the Catilinarian conspirators (Cic. Cat. 4.13), and so almost certainly did not take a province. C. Figulus is rather more problematic. In the Second Philippic, Cicero enumerates all the consulars who approved of his actions against the Catilinarians, and includes Figulus in this list (Cic. Phil. 2.12)169 While this does not show that Figulus was present in Rome in December 63, it is suggestive that the other men in the list were certainly present at the time. We should therefore conclude, tentatively, that Figulus did not take a province either. We have no information as to which provinces may have been assigned by the Senate lege Sempronia, but in view of C. Piso’s situation the previous year, Cisalpine Gaul was probably one of them. 63-M. Tullius Cicero (29) and C. Antonius (19)170 The provinces decided in 64 under the lex Sempronia were Cisalpine Gaul and Macedonia. They were assigned by sortitio early in 63, with Cicero receiving Macedonia and Antonius Cisalpine Gaul. The two men later swapped provinces, before Cicero finally renounced his province at some point after the consular elections.171 Later, when Catiline rose in arms, Antonius was given the supreme command against him in Italy, a provincia which ended with Antonius’s victory in battle early in 62. Interestingly, Antonius seems to have proceeded directly from that victory to Macedonia (Obseq. 61a). The choice of Macedonia and Cisalpine Gaul by the Senate in 64 is not surprising. Cisalpine Gaul was almost invariably a consular province in the late Republic and the last certain governor, C. Piso, had definitely returned to Rome by late in 63.172 As we have seen, the province was probably assigned to the consuls either of 65 or 64 (perhaps both), but seems to have been refused by them. It is unclear whether it was given to a praetor instead, or whether Piso left a legatus in his place while he returned to Rome, but in either case it was necessary for a new consular governor to be sent. Macedonia had typically been a consular province over the previous fifteen years, and Antonius replaced the incumbent L. Torquatus (cos. 65), who (as we have seen) had been hailed Imperator and may even have received a triumph.173 There was clearly fighting to be done in Thrace at this time: Torquatus had done enough for an imperatorial acclamation, while Antonius engaged (unsuc168 Broughton 1951, 2.161. 169 Although this speech was delivered in 44, the dramatic date of this list is clearly the senatorial debates of December 63, since Silanus and Murena are described as designati. 170 Broughton 1951, 2.165–66; Brennan 2000, 533–34 and 711. 171 All this is well attested: see Cass. Dio 37.33.4; Cic. Pis. 5; cf. Badian 1966, 914. 172 He had been prosecuted before the December of that year, a trial at which Caesar spoke against him: Sall. Cat. 49.2. 173 Broughton 1951, 2.169 suggests L. Plaetorius Cestianus held Macedonia in the period between Torquatus’s departure and Antonius’s arrival. However, since this is based only on an inscription in which Plaetorius is named στρατηγός, he may have simply been a legatus pro praetore rather than a governor in his own right. See also Brennan 2000, 532–33.

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cessfully) with the Dardani and those peoples near the Black Sea (Cass. Dio 38.10.1–3). 62-D. Iunius Silanus (163) and L. Licinius Murena (123)174 We have no indication whether the Senate had assigned consular provinces for these men under the lex Sempronia or what those provinces may have been. The two consuls took no part in the defeat of Catiline, which remained the task of C. Antonius (cos. 63). However, it is interesting that two praetors of 62 were involved in crushing the Catilinarians.175 61-M. Pupius Piso (100) and M. Valerius Messalla (76)176 We do not know whether Messalla took a province, although he appears to have been named to Caesar’s agrarian board in 59, which suggests that if he had ever left Rome, he had returned by early in that year. Piso is a more interesting case. A difficult passage of the Epistulae ad Atticum says that Cicero deprived Piso of the province of Syria, which had been “promised” to him (desponsam) (Cic. Att. 1.16.8).177 This is discussed at length elsewhere (pp. 68–69). It looks as though, whatever Piso’s status in relation to Syria, he did not yet possess the province. 60-Q. Caecilius Metellus Celer (86) and L. Afranius (6)178 All we know about the provinces of these two consuls is that in early March 60 the Senate instructed them to draw lots for the two Gauls once news came of stirrings amongst the Helvetii (Cic. Att. 1.19.2). Giovannini thought that the two Gallic provinces had been assigned lege Sempronia, and that the Senate simply expedited the process of sending the consuls into the field once the emergency became apparent.179 If correct, this interpretation would have implications for our understanding of the normal date of sortitio. However, the clear implication of the text is that this was an emergency reassignment, based on a newly emergent threat. As Broughton saw, in mid-61, when the consular provinces for 60 were being decided, no great trouble was expected from Gaul: the entreaties of the Aeduan Diviaticus to the Senate achieved only a direction to the governor of the Transalpine province to look after that people, as far as he could to the advantage of the res publica (Caes. BGall. 1.31, 1.35).180 Therefore, the consuls of 60 had not been decreed the two Gallic provinces lege Sempronia. However, we have no information as to what their original provinces actually were.

174 175 176 177

Broughton 1951, 2.172–73. Broughton 1951, 2.173. Broughton 1951, 2.178. Pisonem consulem nulla in re consistere umquam sum passus, desponsam homini iam Syriam ademi. 178 Broughton 1951, 2.182–83; Brennan 2000, 579–80, 583, 719. 179 Giovannini 1983, 87 n. 37; cf. Vervaet 2006, 641. 180 Cf. Broughton 1948b, 73–74; this was despite Pomptinus’s current preoccupation with putting down the Allobroges.

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59-C. Iulius Caesar (131) and M. Calpurnius Bibulus (28)181 Our knowledge of which provinces the Senate had assigned for this year rests entirely on an oft-debated passage of Suetonius (Iul. 19.2): eandem ob causam opera ab optimatibus data est, ut provinciae futuris consulibus minimi negotii, id est silvae callesque, decernerentur.182 Scholars have generally fallen into two schools of thought on this passage. First, there are those who believe that Suetonius is correct and that the Senate in 60 had decreed, before the consular elections according to the lex Sempronia, that the consuls of the following year would have the provincia of silvae callesque or something which could be summarised as this.183 Where they have differed is in attempting to explain why this was done: most have interpreted it as a signal insult to Caesar (whom all scholars accept would have been seen in mid-60 as a certain winner in the upcoming consular elections), while some have placed it in the context of rural dislocation throughout Italy after three decades of upheavals. However, there is a second group who have not accepted Suetonius’s text. Willems argued forcefully that the clause id est silvae callesque was a copyist’s gloss to explain provinciae minimis negotii, which is plausible, as the sentence could just as easily be constructed without the phrase.184 As Baldson noted, it is at least suspicious that we gain no hint of this assignment of “a quaestor’s job” to Rome’s two most senior military commanders in any other source of the period.185 Balsdon’s solution to the problem was that the province in question was Italia, often a province in the second century, with the consuls being kept ready to intervene in Gaul. Rhodes and Seager have supported this in its essentials; for them, silvae callesque is a “token” province which could easily be swapped for Gaul if it proved necessary.186 However, there are strong objections against the interpretations given by Balsdon, Seager and Rhodes, objections which are argued convincingly by Rich in his 1986 Latomus article. Balsdon had noted that several consuls had campaigned in Italy in the recent past, including the consuls of 78, 72 and 63. However, Rich correctly notes that after the creation of the province of Cisalpine Gaul, “consuls and proconsuls campaigned in the truncated Italy only when there were uprisings, as in 78–7, 72 and 63–2. ‘Italy’ as a consular province must now have been obsolete.”187 He also discredits Rhodes’ suggestion that the consular provinces were being held quo senatus censuisset, demonstrating that the Livian parallels no longer applied and that the Senate had been able to reassign provinces when necessary in the recent 181 Broughton 1951, 2.187–88. 182 ”With the same motives the aristocracy took care that provinces of the smallest importance should be assigned to the newly elected consuls; that is, mere woods and pastures.” 183 See for instance Gelzer 1968, 64–65; Wiseman 1992b, 366; cf. Patterson 2006, 616. One small point that should be noted: it is often claimed that Bibulus acquiesced in this scheme as part of his commitment to the opposition to Caesar. However, Bibulus did not take a province after his consulship and, we must presume, never had any interest in taking one, so in fact he sacrificed nothing. 184 Willems 1883, 2.576 n. 5. 185 Balsdon 1939b, 180–83 (quote from p. 181). 186 Rhodes 1978, 618–20; Seager 2002, 84–85. 187 Rich 1986, 507.

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past. He also argues (convincingly, in my view) that since the consuls had already been assigned the Gallic war, Rome had two competent commanders on the case and there was no need to send the consuls of 59 to succeed them.188 However, Rich’s proposed reconstruction of events is itself open to criticism. He suggests that the consular province was indeed silvae callesque and that the task the Senate had in mind was the elimination of brigandage in Italy. There is no doubt that Italy was still an insecure place. Recurrent warfare over the previous thirty years, together with the Sullan land confiscations, meant that the peninsula contained a significant dislocated population. Violence was still a problem. Two praetors of 62 had crushed uprisings in support of Catiline which were staged far from his centre of activity in the north, while the praetor C. Octavius was deputed to deal with slaves near Thurii on his way to Macedonia in late 61 or early 60 (Oros. 6.6.7; Suet. Aug. 3.1).189 Rich does of course recognise that this provincial assignment was born out of distrust of Caesar and he argues that its real purpose was to keep him busy in Italy, but away from Rome, and hence out of day-to-day politics.190 However, Rich does not deal adequately with one major criticism: if the consuls of 59 had been given the task of campaigning in Italy, even if only against dispersed groups of brigands, they would have commanded troops. Rich claims “the view that senators feared that Caesar as proconsul would menace the state’s safety must be mistaken,” but he bases this on their lack of concern over sending him to Hispania Ulterior after his praetorship.191 A command in Hispania was very different from a command in Italy. Rich notices that “Cisalpine Gaul was the only province whose legions could easily be brought back to threaten Rome,” but if this was true, how much more likely to threaten Rome were legions within Italy itself? Lastly, a point Rich does not make: if his argument is correct, it adds a possible new meaning to the notorious debated exercitu Caesaris from Cicero’s letter to Atticus (Cic. Att. 2.16.2). This letter, sent at the end of April 59, was written before the lex Vatinia and hence when the consular provinces were still apparently silvae callesque: “Caesar’s army” within Italy was still a possibility.192 This remains a conundrum. None of the proposed solutions adequately answer all possible criticism, while all have serious difficulties. Balsdon’s argumentum ex silentio is not conclusive: apart from the inherent weakness of such an argument, we have only three of Cicero’s letters between June 60 and April 59, one of which was the essay on provincial government sent to Quintus. However, I think a province within Italy is highly unlikely. Overall, Willems conclusion that id est silvae callesquae is a gloss is the likeliest explanation; in which case, we must find some

188 Rich 1986, 509–11. 189 Other instances noted by Rich 1986, 514 nn. 47–54. 190 Rich 1986, 515: “the problem of rural unrest can have been no more than a pretext for a measure which was in reality inspired by hostility to Caesar”; cf. 517–21. 191 Rich 1986, 516. 192 Taylor 1968 places the passing of the law sometime in late May or early June. The difficulty in dating this law is that so many of the suggestions rest on interpretations of the meaning and context of exercitu Caesaris. See also Meier 1961.

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other provinces “of the least importance” such as Sardinia. However, such is the difficulty of the problem that I prefer to leave these provinces open. 58-L. Calpurnius Piso (90) and A. Gabinius (11)193 Cobban suggests that the Senate had decreed Macedonia and Cilicia as the consular provinces under the lex Sempronia in 59, and that the lex Clodia merely assigned them nominatim and made them ornata.194 However, Wiseman has convincingly argued on the basis of two passages in Cicero that the Senate had not assigned any consular provinces the previous year.195 The lex Clodia provided provinces for A. Gabinius and L. Piso when no others had been decreed. 57-P. Cornelius Lentulus Spinther (238) and Q. Caecilius Metellus Nepos (96)196 The consular provinces were clearly assigned by the Senate, probably before the consular elections in 58 according to the provisions of the lex Sempronia. We know from a letter of Cicero that the consular elections had been held by mid-July (Cic. Att. 3.12.1).197 However, due to its conflict with the consuls over Cicero’s recall, the Senate for a large part of the year refused to discuss other matters (Cic. Pis. 29). While the direct evidence for this comes from mostly from the in Pisonem, Cicero expressed his dismay in a letter to Atticus that this senatorial policy of inaction was forgotten when, late in the year, the ornatio decree was passed for the incoming consuls (Cic. Att. 3.24.1–2). This shows both that the Senate had indeed been silent, but also that the consular provinces had already been decided: it was logically impossible to award grants to unknown provinces. In the political context of 58, the decision to decree the following year’s consular provinces was not controversial, particularly in view of the assignments previously made by the lex Vatinia and the lex Clodia. Such a senatus consultum could have been passed at any time. But in view of the political situation obtaining in the weeks before the consular elections (during which Clodius had broken with Pompeius, Gabinius’s fasces had been smashed in a riot, and the tribune L. Ninnius had proposed a vote for Cicero’s recall) and of Cicero’s conviction in the letter of 10 December that there had been for some time a firm senatorial policy of not discussing other matters until his recall was broached, the most likely time for the assignment of the consular provinces is late May or June, i. e. some time before the consular elections.198 The provinces the Senate decided on were Cilicia and Hispania Citerior; the sortitio awarded Cilicia to P. Lentulus Spinther and Hispania Citerior to Q. Metellus 193 Broughton 1951, 2.193–94; Brennan 2000, 413–14, 535–37, 712, 721. 194 Cobban 1935, 93. 195 Wiseman 1992a, 376; citing Cic. Sest. 18: ab isdemque se etiam invito senatu provinciam sperare dicebat; eamque nisi adeptusesset, se incolumem nullo modo fore arbitrabatur (referring to Gabinius) and Pis. 12: egere sordidissime Gabinium, sine provincia stare non posse. However, the Senate had certainly assigned praetorian provinces in late 59: see pp. 114– 15 above. 196 Broughton 1951, 2.199–200; Brennan 2000, 518, 573, 712, 719. 197 Pina Polo 2011a, 284 n. 159. 198 Ninnius’s proposal: Cic. Sest. 68; riot: Cic. Pis. 28.

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Nepos.199 Cilicia is not surprising: as we saw, it was the province originally given to Gabinius the previous year, had often been a consular province, and was twice more consular in this decade. Hispania Citerior is rather more surprising, however; the last time it is on record as consular was 77, when it was declined by both consuls. What we see here is the first impact of the great plebiscitary commands which so dominated this decade. The lex Vatinia had excluded Cisalpine Gaul from consideration, while the lex Clodia also ruled out Syria and Macedonia. With Transalpine Gaul comfortably held by Caesar and with Cilicia also assigned to a consul of this year, few provinces remained which fit the traditional picture of consul as military commander. Hispania certainly saw fighting in these years: Caesar as governor of the further province had penetrated far into Lusitania, while Metellus Nepos faced problems during his tenure. Dio records that he fought against the Vaccaei and besieged Clunia, although his forces seem to have been inadequate for the purpose (Cass. Dio 39.54.1–2). 56-Cn. Cornelius Lentulus Marcellinus (228) and L. Marcius Philippus (76)200 We have no knowledge which provinces, if any, were assigned to these consuls. Considering the relative political stability of 57 (at least within the curia), there do not seem to have been any political considerations which would have prevented provincial assignments under the lex Sempronia. However, with the Gauls, Cilicia, Hispania Citerior, Macedonia, Syria and Cilicia already occupied, very few provinces were left to be assigned to these men. We know the governors of all territorial provinces of 56, and all for 55 save Bithynia, Africa and Sicily, which we would normally expect to be praetorian. L. Philippus probably did not go to a province: in the emergency provincial assignments to privati in 49 he is mentioned as being passed over and the three other men discussed are all believed not to have taken a province ex consulatu (Caes. BCiv. 1.6.5). This suggests strongly that Philippus also remained in Rome after his consulship. Cn. Marcellinus is a mystery to us. It is likely that he lived for several more years, since he very probably married Scribonia, the future wife of Octavian and had at least one son by her. Since Scribonia seems to have been born about 70, the likelihood is that Marcellinus lived into the late fifties.201 Moreover, the text of Dio which we will consider in relation to 55 suggests that Marcellinus remained in Rome until the very end of his consulship. 55-Cn. Pompeius Magnus II (15) and M. Licinius Crassus II (68)202 Cicero’s speech De provinciis consularibus was delivered during the senatorial debates of mid-56 on the provinces for the consuls of 55. However, despite Cicero’s apparent success in heading off the attempt to replace Caesar, we do not know whether any consular provinces were in fact awarded or what they may have been. Our sources, when discussing the lex Trebonia of 55 which awarded Syria and His199 Hispania: Plut. Caes. 21.5; Cass. Dio 39.54.1–2. Cilicia: Cass. Dio 39.12.3. The provincial allocation was presumably carried out by sortitio, although this is not specifically attested. 200 Broughton 1951, 2.207. 201 Leon 1951, 168–69. 202 Broughton 1951, 2.214–15; Brennan 2000, 413–14, 518–20, 712, 722.

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pania to Crassus and Pompeius respectively, do not suggest that this law altered any preexisting allocation of provinces to the new consuls. In fact, if the allocation was not made in mid-56, the likelihood is that it was not made at all. Dio makes clear that Pompeius and Crassus disrupted all normal political life in the last months of 56 in order to delay the consular elections until early the following year (Cass. Dio 39.27.3, 39.30.2–3). The consul Cn. Marcellinus was frustrating their joint candidacy and so they delayed matters until the elections were held by a friendly interrex. This suggests that no consular provinces had been decided by the Senate, as Dio (39.30.3) emphasises that “it was impossible to have any business at all about [the elections] brought forward.” 54-Ap. Claudius Pulcher (297) and L. Domitius Ahenobarbus (27)203 Ap. Claudius eventually received Cilicia, while L. Domitius does not appear to have taken any provincia.204 However, there clearly had been two consular provinces assigned by the Senate, as Cicero says in a letter of December 54 that if Claudius was able to secure the passage of a lex curiata, “he would draw lots for a province with his colleague”; such a sortitio would be impossible unless there were two provinces to choose from (Cic. Fam. 1.9.25).205 Moreover, the condition of the famous pactio, that Memmius and Domitius Calvinus would, if elected consul, swear that they had been present at a decree for the ornatio for Ap. Claudius and L. Domitius’s provinces, also requires that those provinces be already known.206 There are no known impediments in 55 to the Senate choosing provinces lege Sempronia for the consuls of the following year. The question then becomes, which other province had the Senate chosen? As Sumner recognises, Macedonia is much the likeliest option.207 The provincial laws of 55 had put vast swathes of the empire out of the Senate’s hands and, along with Cilicia, Macedonia was the only province which had recently been named consular. There is, moreover, a gap in the provincial fasti which has been unconvincingly filled by Broughton.208 With L. Domitius unable to proceed to his province, it reverted to a praetorian governor.

203 Broughton 1951, 2.221; Brennan 2000, 573 and 719. 204 L. Domitius is one of those privati to whom provinces were assigned in January 49: Caes. BCiv. 1.6.5. It is generally thought that all four men discussed there–Domitius, L. Philippus (cos. 56), Q. Metellus Scipio (cos. 52) and L. Cotta (cos. 65)–were rendered eligible for provincial assignment at that time because they had not taken a province ex consulatu. While this is not strictly proven, there is no evidence for any of them holding provincial governorships after their consulships, and good evidence for some of them being in Rome soon afterwards. Domitius, for instance, presided over the trial of Milo in early 52, which renders a provincial government in 53 extremely unlikely: Cic. Mil. 22; Asc. 38C. 205 Appius in sermonibus antea dictitabat, postea dixit etiam in senatu palam, sese, si licitum esset legem curiatam ferre, sortiturum esse cum collega provinciam. 206 On the pactio, see Sumner 1982. 207 Sumner 1982, 136. 208 Broughton 1951, 2.230.

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53 and 52 With consular elections delayed past the end of the year in both cases, and with Rome in near anarchy, it is very unlikely that the Senate was able to decide consular provinces in these years. In 52, the situation was altered and the lex Sempronia repealed by the passage of the lex Pompeia de provinciis, which removed the direct link between consulship and provincial command. A4. PROCONSULAR AND PRAETORIAN IMPERATORS 80–52 As discussed in Appendix A1, this section deals with prorogations and praetorian provinces on a year-by-year basis from 80 to 52. There are five aims in this section: 1. To determine (in conjunction with the data presented in Appendix A3) which provinces the Senate assigned to consuls or consular proconsuls on a year-byyear basis. As argued elsewhere, this book contends that the Senate’s decision about provinces held by consuls or consular proconsuls was logically (and chronologically) prior to its decision about praetorian provinces; 2. Hence, to establish which territorial provinces were available to praetors in each year; 3. To present the evidence for provinces certainly or probably held by praetors in each year; 4. Hence, to determine which provinces we do not know about in each year; and 5. To present the evidence for prorogued imperators, both of consular and praetorian rank It is also important to clarify what this data does not do. For our purposes, it does not matter whether an imperator governing a territorial province as a result of his praetorship did so pro praetore or pro consule: his genus imperii is irrelevant. Hence, the vexed question of praetorian proconsuls will not be considered.209 Second, and as is well known, in this period consuls (in practice) took up their provinces in the year after their consulship. Hence, as was discussed in A1, consuls are only counted in their provinces in that following year. For example, the consuls of 74 are counted as holding their provinces in 73. Importantly, the provinces are those they actually held, which might not necessarily have been those the Senate assigned to them (and so might be different from those given in A3). So L. Lucullus (cos. 74), who received Cisalpine Gaul lege Sempronia, was reassigned to Cilicia and Asia during his consulship. Therefore, in 73, Cilicia and Asia are listed against L. Lucullus. To help in this, under each year are recorded the consuls of the previous year together with the provinces which they actually held.

209 See on this matter Vervaet 2012 and (for Africa, Sicily and Sardinia in particular) Hurlet 2012.

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80 Cn. Cornelius Dolabella (Macedonia) and M. Tullius Decula (unknown) (coss. 81). No consular proconsuls are known, meaning Cn. Dolabella in Macedonia is the only consul or consular proconsul in one of the (now ten) territorial provinces. Brennan lists five praetorian imperators: M. Aemilius Lepidus (pr. 81) in Sicily (recalled after this year), Cn. Cornelius Dolabella (pr. 81) in Cilicia, C. Claudius Nero (pr. 81?) in Asia, L. Fufidius in Hispania Ulterior and M. Domitius Calvinus (pr. 80) in Hispania Citerior, the last of whom was killed either in 80 or 79.210 Thus there are four territorial provinces whose imperators we do not know (Africa, Sardinia, Transalpine Gaul, Cisalpine Gaul); one may have been held by M. Decula. 79 L. Cornelius Sulla (no province) and Q. Caecilius Metellus Pius (Hispania Ulterior) (coss. 80). Q. Metellus Pius, who had arrived in his province of Hispania Ulterior some time during his consulship, was prorogued there and would continue to be until 71. Cn. Cornelius Dolabella (cos. 81) continued in Macedonia.211 Therefore two territorial provinces were held by consuls or consular proconsuls. Five praetorian imperators are known: the other Cn. Dolabella (pr. 81) in Cilicia (who was relieved by the consul P. Servilius around the end of the year), C. Claudius Nero (pr. 81?) in Asia, C. Claudius Marcellus (pr. 80) in Sicily and (perhaps) M. Domitius Calvinus (pr. 80) in Hispania Citerior, who if he had not died in 80 was certainly killed in 79. To these should be added Cn. Tremellius Scrofa who held Transalpine Gaul, probably in this year.212 Thus three territorial provinces were held by unknown imperators (Africa, Sardinia, Cisalpine Gaul), none of them by L. Sulla. 78 P. Servilius Vatia (Cilicia) and Ap. Claudius (Macedonia from 77) (coss. 79). Cn. Dolabella (cos. 81) continued in Macedonia, as Ap. Claudius (who was to have superseded him) remained ill in Italy.213 P. Servilius Vatia took over Cilicia and conducted several campaigns, while Q. Metellus Pius (cos. 80) was prorogued in Hispania Ulterior. Thus three territorial provinces were held by consuls or consular proconsuls. Three praetorian imperators are known: C. Claudius Marcellus (pr. 80) in Sicily (who returned after this year), L. Manlius (pr. 79) in Transalpine Gaul and Q. Calidius (pr. 79) in Hispania Citerior.214 It is also possible that M. Iunius Brutus held Cisalpine Gaul as a praetorian governor in this year, but he may only have been present in 77.215 Thus certainly three provinces (if we count M.

210 Brennan 2000, 483–84, 505–06, 557, 571–72, 709, 717. Cf. Broughton 1951, 2.79–81. 211 Brennan 2000, 528–30 and 709. 212 Brennan 2000, 484, 505–06, 557, 571–72, 709, 717; cf. Broughton 1951, 2.83–84. Tremellius: Broughton 1986, 3.206 and Díaz Fernández 2015, 514–15. 213 See discussion above (Appendix A3 under 79). 214 Brennan 2000, 484, 506, 575, 709, 717; cf. Broughton 1951, 2.86–87. 215 Rafferty 2017, 261–62. See also above (Appendix A3 under 78).

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Brutus as holding Cisalpine Gaul; four provinces if we do not) were held by unknown imperators. These were Africa, Sardinia and Asia. 77 M. Aemilius Lepidus (Etruria) and Q. Lutatius Catulus (Etruria) (coss. 78). This year is rather difficult to interpret. Q. Metellus Pius (cos. 80) continued in Hispania Ulterior and P. Servilius (cos. 79) in Cilicia, while Cn. Dolabella (cos. 81) was replaced by Ap. Claudius (cos. 79) in Macedonia some way into the year.216 However, decisions about provincial assignments were held up in 78 and early 77 by the bellum Lepidanum. It was thus probably only around February or March that the Senate could decree Hispania Citerior a consular province, at which point the command was rejected by both consuls and eventually given to Pompeius.217 If we accept this period as the time when provinces for 77 were decided, then four provinces fall under consuls or consular proconsuls. This becomes five if we accept the possibility that the consul Mam. Lepidus went to Cisalpine Gaul during his consulship. Two praetorian imperators are known: L. Cornelius Sisenna (pr. 78) in (probably) Sicily and an unknown Terentius Varro in Asia.218 It is also possible that the L. Valerius Triarius who resisted Lepidus in Sardinia was that province’s rightful praetorian imperator, although he may have been a legatus pro praetore, holding the province after the return of the previous governor to Rome (Asc. 19C; Exsuperantius 40).219 Brennan also lists M. Fonteius (pr. 77) in Transalpine Gaul from this year (in a three-year command).220 Thus, with considerable uncertainty, we can list three provinces (Africa, Cisalpine Gaul and Sardinia) as held by unknown imperators. 76 D. Iunius Brutus (unknown) and Mam. Aemilius Lepidus (unknown) (coss. 77). Q. Metellus Pius (cos. 80) and Pompeius continued in the Iberian provinces, as did P. Servilius (cos. 79) in Cilicia. Macedonia was probably assigned lege Sempronia to the consul C. Curio, but it was only Ap. Claudius’s (cos. 79) death which meant the consul had to proceed to his province quickly. This suggests Claudius was probably expected to hold the province for most of the year. Lastly, Badian has argued that Mam. Lepidus’s possible command in Cisalpine Gaul may have continued for a few years: this is possible but unlikely, and has not been counted.221 Thus four territorial provinces fall under consuls or consular proconsuls. As for praetorian imperators, Brennan lists Sex. Peducaeus (pr. 77) in Sicily (his first year of two) and M. Iunius Silanus (pr. 77?) in Asia (his only year), but he also believes M. Fonteius’s (pr. 77) three-year tenure in Transalpine Gaul continued in this year.222 216 217 218 219 220 221 222

Broughton 1951, 2.89–91. See above (Appendix A3 under 77). Brennan 2000, 484, 558, 709, 717; cf. Broughton 1951, 2.89–91. Discussion in Broughton 1951, 2.91; Brennan 2000, 494–95. Brennan 2000, 509–11 and 717. Badian 1966, 913. Brennan 2000, 484–85, 509–11, 558–59, 710, 717.

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Thus three territorial provinces were held by unknown imperators and up to two of these may have been held by the consuls of 77. 75 C. Scribonius Curio (Macedonia) and Cn. Octavius (unknown) (coss. 76). Q. Metellus Pius (cos. 80) and Pompeius continued their war against Sertorius in Hispania, while P. Servilius’s (cos. 79) campaigns against the Isauri in Cilicia mainly belong to this year. He was replaced by the consul L. Octavius late in the year.223 C. Curio got his campaigns in Macedonia underway.224 Thus four territorial provinces were held by consuls or consular proconsuls. Three praetorian imperators are noted: Sex. Peducaeus (pr. 77) in Sicily (his second year of two), M. Iunius Iuncus (pr. 76) in Asia (his first year of two, in which he was given responsibility for the incorporation of Bithynia) and M. Fonteius (pr. 77) in Transalpine Gaul (his final year of three).225 This leaves three territorial provinces held by unknown imperators, one of which might possibly have been held by Cn. Octavius (although this is unlikely due to his illness while consul).226 74 C. Aurelius Cotta (Cisalpine Gaul) and L. Octavius (Cilicia) (coss. 75). Pompeius and Q. Metellus Pius (cos. 80) continued in Hispania. L. Octavius initially held Cilicia until his death, at which point it was reassigned to the consul L. Lucullus. C. Curio (cos. 76) continued to campaign in Macedonia, while C. Cotta held Cisalpine Gaul. Thus consuls or consular proconsuls held five of the territorial provinces, even before the Mithridatic war began. Two praetorian imperators are noted: C. Licinius Sacerdos in Sicily (his only year) and M. Iunius Iuncus in Asia (his second year of two).227 Three territorial provinces were held by unknown imperators. 73 L. Licinius Lucullus (Cilicia and Asia) and M. Aurelius Cotta (Bithynia) (coss. 74). Pompeius and Q. Metellus Pius (cos. 80) continued in Hispania. L. Lucullus retained Cilicia and probably added Asia at this time, while M. Cotta commanded against Mithridates in Bithynia (unsuccessfully). C. Cotta retained Cisalpine Gaul and was voted a triumph but died before celebrating it, while C. Curio’s command in Macedonia came to an end, probably towards the end of the year.228 Thus seven of the (now eleven) territorial provinces were held by consuls or consular proconsuls. In view of this, it is remarkable that C. Verres’ (pr. 74) tenure in Sicily as 223 224 225 226 227 228

See Appendix A3 under 75 above for L. Octavius probably arriving in Cilicia while still consul. On the chronology of Curio’s Balkan campaigns see Appendix A3 under 76 above. Brennan 2000, 484–85, 509–11, 559–61, 710, 717. On Cn. Octavius’s illness see Cic. Brut. 217; Sall. Hist. 2.64 Maur = 2.24 McGushin. Brennan 2000, 485–86, 559–61, 575–76, 710, 717; cf. Broughton 1951, 2.104. Broughton 1951, 2.111–12. On Curio being relieved by M. Lucullus during the latter’s consulship, see Giovannini 1983, 63, citing Cic. Verr. 2.2.19 in conjunction with Verr. 2.1.27– 29.

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praetorian imperator (which began in this year) lasted three years.229 Thus three territorial provinces remained to be held by unknown imperators. 72 M. Terentius Varro Lucullus (Macedonia) and C. Cassius (Cisalpine Gaul) (coss. 73). Pompeius and Q. Metellus Pius (cos. 80) were by now in the closing stages of their war in Hispania. M. Cotta (cos. 74) retained Bithynia, and L. Lucullus (cos. 74) Asia and Cilicia, as the Third Mithridatic War continued.230 Thus seven territorial provinces were in the hands of consuls or consular proconsuls. Of the remaining provinces, C. Verres (pr. 74) was in the second of his three years governing Sicily.231 Thus three territorial provinces were held by unknown imperators. 71 L. Gellius (no province) and Cn. Cornelius Lentulus Clodianus (no province) (coss. 72). The difficult question is whether the Iberian provinces received new governors in 71 or 70. Both Brennan and Broughton think the new governors were assigned in 71, although Brennan hedges his bets somewhat by postulating that they arrived only some way into the year.232 It is more likely, however, that the Senate originally prorogued both Metellus Pius and Pompeius for 71, although the situation changed when Pompeius was recalled to Italy early in the year. He appears to have arrived there shortly before the final battle between Crassus and Spartacus, i. e. probably around May 71.233 This seems prima facie an indication that he had already been replaced. Yet he was hastily summoned at the direction of the Senate to counter Spartacus; more important is the fact that Metellus Pius does not appear to have returned to Italy until quite late in the year.234 So the original plan had been for both men to retain their provinces for this year. If, as seems likely, L. Afranius was Pompeius’s direct replacement in Citerior, then there is a strong possibility he was a praetor of 71, sent extra ordinem to the (still restless) province when Pompeius was recalled to Italy. His previous success there (as Pompeius’s legate) and his familiarity with the army and local conditions would have been strong arguments in favour of this. Similarly, the urgent recall of M. Lucullus (cos. 73) from Macedonia to counter Spartacus (perhaps around March or April?) suggests that initially he had been pro229 230 231 232

Brennan 2000, 486–90, 710. Broughton 1951, 2.112–13. Brennan 2000, 486–90, 575–76, 710, 718. Broughton initially placed only M. Piso in Hispania Ulterior in 71, and suggested that L. Afranius’s praetorship was 71 (and his secondary praetorian province thus in 70): 1951, 2.124 and 128 (with note). However, he later preferred to place Afranius in Hispania Citerior from 71: Broughton 1986, 3.12. Brennan does not supply arguments for listing Pompeius, Metellus Pius, Afranius and Pupius Piso all together in the Iberian provinces in 71 (2000, 514–15 and 710). 233 On the chronology of 71, see Twyman 1972, 822–26; Vervaet 2009, 423–30. 234 As justification for his refusal to disband his army after having been elected consul, Pompeius argued that he was waiting for Metellus to return. Metellus’s triumph is normally dated shortly before Pompeius’s in December 71.

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rogued for 71 (Plut. Crass. 11.2; App. BCiv. 1.120). The Mithridatic war continued, so L. Lucullus (cos. 74) retained Asia and Cilicia and M. Cotta (cos. 74) kept Bithynia.235 That means six territorial provinces were held by consuls or consular proconsuls. This was the third and final year of C. Verres’ (pr. 74) praetorian tenure in Sicily.236 Thus four territorial provinces were held by unknown imperators, with the consuls of 72 definitely excluded. 70 Cn. Aufidius (unknown) and L. Cornelius Lentulus Sura (unknown) (coss. 71). The only consular proconsul known in this year is L. Lucullus (cos. 74), who held Asia, Cilicia and now also Bithynia as part of the war against Mithridates. That makes three territorial provinces held by consuls or consular proconsuls. Rather more praetorian imperators are known: L. Caecilius Metellus (pr. 71) in Sicily, M. Pupius Piso (pr. 71?) in Hispania Ulterior, L. Afranius (pr. 71?) in Hispania Citerior and (rather more tentatively) L. Iulius Caesar (pr. 71) in Macedonia.237 Thus four territorial provinces were held by unknown imperators; Cn. Aufidius may have held one of them, but L. Lentulus Sura is likely to have stayed in Rome. If we accept Vervaet’s argument that Crassus was praetor in 71, this means that only seven praetors from that year were available to take over a province.238 69 Cn. Pompeius Magnus (no province) and M. Licinius Crassus (no province) (coss. 70). L. Lucullus (cos. 74) continued in his proconsular provinces Asia, Bithynia and Cilicia, although this was the last year he would retain such a vast command.239 No other consular proconsuls are known, meaning that three territorial provinces were held by a consul or consular proconsul. Brennan lists L. Aurelius Cotta (pr. 70) and A. Manlius Torquatus (pr. 70?) as praetorian imperators in Macedonia and Africa respectively, while also suggesting that L. Afranius (pr. 76?) retained Hispania Citerior (although he probably triumphed this year or the next).240 Thus five territorial provinces were held by unknown imperators. 68 Q. Hortensius (no province) and Q. Caecilius Metellus (Crete) (coss. 69). L. Lucullus (cos. 74) retained Bithynia and Cilicia in this year. Although Cilicia had already been assigned to a consul of 68, that consul would not proceed to the province until very late in the year.241 No other consular proconsuls are known, meaning that two territorial provinces were in the hands of a consul or consular 235 Brennan 2000, 404, 562–64, 572, 710, 718, 720. 236 Broughton 1951, 2.124. 237 Brennan 2000, 492–93, 514–15, 532, 710, 718. See also the rather different reconstruction by Díaz Fernández 2015, 364–65. 238 Vervaet 2015a. 239 Broughton 1951, 2.129. 240 Brennan 2000, 515, 532, 545, 710, 718. Afranius’s triumph: Cic. Pis. 58. 241 Broughton 1951, 2.139–40.

198

Appendix A

proconsul. Asia was definitely held by a praetor, probably P. Cornelius Dolabella (pr. 69) (Cass. Dio 36.2.2).242 Hispania Ulterior was governed by C. Antistius Vetus (pr. 69) (with C. Iulius Caesar as his quaestor) and Macedonia by a certain Rubrius (pr. 69).243 Thus six territorial provinces were held by unknown imperators, with the consuls of 69 definitely excluded. 67 Q. Marcius Rex (Cilicia) and L. Caecilius Metellus (no province–died in office) (coss. 68). Two consular proconsuls are known: Q. Marcius Rex, who had just taken over Cilicia, and L. Lucullus (cos. 74), whose tenure of Bithynia (and command against Mithridates) was to have been ended by the consul M’. Acilius Glabrio, only for Glabrio to halt in Bithynia and not approach the army.244 However, the fact that Glabrio’s command was assigned by plebiscite after the consul had assumed office shows that Lucullus had been prorogued in the province. Thus consuls or consular proconsuls held two of the territorial provinces. Four praetorian imperators are known: L. Sergius Catilina (pr. 68) in Africa (probably only holding the province for one year), L. Quinctius (pr. 68) in Macedonia, P. Cornelius Dolabella probably still in Asia and C. Antistius Vetus (pr. 69) in Hispania Ulterior.245 Thus five territorial provinces were held by unknown imperators. However, it is likely that the governor of Transalpine Gaul (at least) had returned to Rome relatively early: it is very unlikely that the consul C. Piso would have been able to exercise authority in the province (while remaining in Rome) had a governor still been in place (Cass. Dio 36.37.2).246 66 M’. Acilius Glabrio (Bithynia) and C. Calpurnius Piso (Cisalpine and Transalpine Gaul) (coss. 67). C. Calpurnius Piso held both Gallic provinces, while Q. Marcius Rex (cos. 68) retained Cilicia until it was assigned to Pompeius by the lex Manilia. Bithynia and the war against Mithridates were also assigned to Pompeius by the same law, depriving M’. Acilius Glabrio of the one and L. Lucullus (cos. 74) of the other.247 Thus four territorial provinces are known to have been held by consuls or consular proconsuls. Only one praetorian imperator is known: T. Aufidius (pr. 67?) in Asia.248 Thus six territorial provinces were held by unknown imperators. 242 243 244 245

See also Broughton 1951, 2.139 and Brennan 2000, 564–65. Brennan 2000, 514–15, 532, 710. Broughton 1951, 2.145–47. On Glabrio: Cass. Dio 36.17.1. See also Williams 1984, 226. Brennan 2000, 514–15, 532, 545, 564–65, 711, 718. Syme 1955a, 67–68, Broughton 1986, 3.180 and Díaz Fernández 2015, 430–31 and 554 n. 180 all have L. Quinctius in Macedonia based on IG 12.5.924 (from Tenos); their arguments in favour are stronger than those of Brennan 2000, 832 n. 233. The implication in Cic. Clu. 110–13 that he is dead is irrelevant, as that speech was delivered after the governorship. 246 See also Vervaet 2011, 284–90; Vervaet 2014, 222 n. 23. 247 Broughton 1951, 2.154–55. 248 Brennan 2000, 564–65 and 718.

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65 M’. Aemilius Lepidus (unknown) and L. Volcacius Tullus (unknown) (coss. 66). C. Piso (cos. 67) retained both Gallic provinces this year and Bithynia and Cilicia were included in Pompeius’s great eastern command.249 Thus consuls or consular proconsuls held four of the territorial provinces. One praetorian imperator is on record, P. Varinius (pr. 66) in Asia.250 However, this is also the year when Cn. Calpurnius Piso was sent to Hispania Citerior; as far as we can tell, he was only a quaestorius.251 This problem is not easy to solve, although Brennan provides one attractive suggestion that “perhaps Cn. Piso was meant to hold Hispania Citerior in lieu of a pr. 66 who had drawn the province but (for whatever reason) could not take it up immediately.”252 If Piso was the quaestor or legate of an incoming praetorian governor, it would not be unusual for him to go ahead of his commander, nor for the outgoing governor to hand over to him. From that point it is possible that the new (unknown) praetorian governor either refused to take the province, or was held up at Rome, or died en route. Thus six territorial provinces were held by unknown imperators, if we count Cn. Piso as a quaestor or legate. 64 L. Manlius Torquatus (Macedonia) and L. Aurelius Cotta (no province) (coss. 65). Pompeius retained Bithynia and Cilicia, while L. Manlius Torquatus held Macedonia. C. Piso (cos. 67) lost Transalpine Gaul (which was now governed by L. Murena, the praetor of 65), but appears to have retained Cisalpine Gaul.253 Thus four territorial provinces were held by consuls or consular proconsuls. Apart from Murena, the other known praetorian governor was P. Orbius (pr. 65) in Asia.254 Thus five territorial provinces were held by unknown imperators. 63 L. Iulius Caesar (no province) and C. Marcius Figulus (probably no province) (coss. 64). Pompeius retained Bithynia and Cilicia, while C. Piso (cos. 67) probably held Cisalpine Gaul for this year; if he did not, the province may have been held by C. Figulus.255 Thus three territorial provinces were held by consuls or consular proconsuls. Two praetorian imperators are known: L. Licinius Murena (pr. 65) in Transalpine Gaul (who returned early to seek the consulship) and (perhaps) M. Plaetorius Cestianus (pr. 64) in Macedonia (who was replaced by C. Antonius early in 62).256 Thus six territorial provinces were held by unknown imperators.

249 250 251 252 253 254 255 256

Broughton 1951, 2.159–60. Brennan 2000, 564–65 and 718. This case is discussed in depth by Brennan 2000, 515–17. Brennan 2000, 516. See above, Appendix A3 under 65. Brennan 2000, 656 and 718. Broughton 1951, 2.168–70. On C. Piso, see above, Appendix A3 under 65 and 64 Brennan 2000, 532–33, 565, 711, 718.

200

Appendix A

62 M. Tullius Cicero (no province) and C. Antonius (Macedonia) (coss. 63). This was the last year that Pompeius retained Bithynia and Cilicia, as he landed at Brundisium in December (Plut. Pomp. 43.2–3; Cass. Dio 37.20.6).257 C. Antonius went to Macedonia fairly early in the year after his victory over Catiline, meaning that consuls or consular proconsuls held three of the territorial provinces.258 Five praetorian imperators are recorded: L. Valerius Flaccus (pr. 63) in Asia, C. Cosconius (pr. 63) in Hispania Ulterior, C. Pomptinus (pr. 63) in Transalpine Gaul, Q. Caecilius Metellus Celer (pr. 63) in Cisalpine Gaul (he had taken over this province late in 63) and Q. Pompeius Rufus (pr. 63) in Africa.259 Thus three territorial provinces were held by unknown imperators. 61 D. Iunius Silanus (unknown) and L. Licinius Murena (unknown) (coss. 62). C. Antonius (cos. 63) in Macedonia is the only known consul or consular proconsul in a territorial province and so it is unsurprising that we are very well informed about praetorian imperators.260 Of the praetors of 63, C. Pomptinus continued fighting the Allobroges in Transalpine Gaul, while Q. Pompeius Rufus retained Africa. The praetors of 62 only received their provinces in about March 61 (which is presumably when other decisions about prorogations were made): of these, C. Caesar received Hispania Ulterior, Q. Cicero went to Asia, C. Vergilius Balbus was sent to Sicily and L. Marcius Philippus became the first governor of Syria, which from now is counted as the twelfth territorial province.261 Thus five territorial provinces were held by unknown imperators. 60 M. Pupius Piso (unknown) and M. Valerius Messalla (unknown) (coss. 61). Uniquely for the post-Sullan period, no consular proconsuls are recorded. However, seven praetorian imperators are known, with varying degrees of confidence. This was certainly L. Marcius Philippus’s (pr. 62) last year in Syria, as he was replaced by Cn. Lentulus Marcellinus (pr. 60) after serving what Appian (Syr. 51) specifically describes as a two-year term. C. Caesar (pr. 62) was probably prorogued in Hispania Ulterior for this year, despite the fact that he sought a triumph and returned to contest the consular elections in about July. Suetonius and Dio both explicitly say he departed his province before his successor had arrived and both give the impression that Caesar moved in great haste (Suet. Iul. 18.1–2; Cass. Dio 37.54.1; cf. Plut. Caes. 13.1). Since he did not arrive back in Rome before June (that is, shortly before candidates for the consular elections had to declare themselves), it is difficult to see how a successor could be so slow to arrive as not 257 Pompeius’s advent in Italy is normally dated very late in 62 due to the use of prodromi at Cic. Att 1.12.1 (dated 1 January 61). 258 Broughton 1951, 2.175–76. 259 Brennan 2000, 517, 545–46, 565–66, 578–83, 711, 718. 260 Broughton 1951, 2.180. 261 Brennan 2000, 411–13, 493–94, 517–18, 545–46, 566–68, 578–80, 711, 719, 721.

A4. Proconsular and praetorian imperators 80–52

201

to have relieved him long before then.262 C. Pomptinus (pr. 63) continued his campaigns in Transalpine Gaul; his prorogation is shown by the emergency reassignment of the province to one of the consuls in March 60 (Cic. Att. 1.19.2). C. Octavius (pr. 61) held Macedonia in this year while C. Papirius Carbo (pr. 61) held Bithynia. Lastly, Q. Cicero (pr. 63) retained Asia and C. Vergilius Balbus (pr. 62) remained the governor of Sicily.263 Thus five territorial provinces were held by unknown imperators, two of which may have been held by the consuls of 61. 59 Q. Caecilius Metellus Celer (no province) and L. Afranius (Cisalpine Gaul) (coss. 60). The only two possible consular proconsuls are Metellus Celer and Afranius in the two Gauls; the traditional interpretation is that Metellus Celer received Transalpine Gaul in the lot and therefore Cisalpine Gaul went to Afranius; this is very probably correct, on the basis that news of peace in Gaul (i. e. Pomptinus’s successes and a delay to the Helvetian migration) had ended his hopes of a triumph (Cic. Att. 1.20.5, dated after 12 May 60).264 However, while these provinces were assigned to the two consuls in March 60, there is a strong doubt whether they were taken up. Broughton argues that Metellus Celer had laid down his province sometime in the latter half of 60; I have nothing to add to his argument, with which I am wholly in agreement.265 His position in 59 was therefore that of a privatus and his death in that year had no bearing on the assignment of Transalpine Gaul to Caesar. Broughton is correct that Pomptinus retained the province until it was given to Caesar; this helps explain the constant opposition of Vatinius and other partisans of Caesar to any recognition of Pomptinus’s achievements (Cic. Vat. 30–31; Schol. Bob. 149–50 Stangl).266 It is also possible that Afranius did not take up Cisalpine Gaul, but the evidence here is much weaker. All that we can say with confidence is that he was probably 262 However, note the additional task undertaken by C. Octavius this year on his way to Macedonia: Suet. Aug. 3.1. 263 Brennan 2000, 404–05, 411–13, 493–94, 534–35, 545–46, 566–68, 711, 719, 721. Brennan also has Q. Pompeius Rufus continuing in Africa down to 59 (pp. 545–46), but the evidence for this (Cic. Cael. 73–74) is not strong: Cicero’s language does not suggest that Caelius’s prosecution of C. Antonius in 59 was his reason for leaving Africa or even that it followed immediately upon it, only that it was the next noteworthy event in his client’s life. 264 Broughton 1948b, 74. 265 Broughton 1948b, 73–76. 266 Pomptinus eventually triumphed in November 54: Cicero alludes to a religious impediment (Pis. 58) but in view of Vatinius’s stunt in 59 implacable opposition from Caesar probably lies behind the delay. Gelzer 1968, 85–86 accurately describes the chronology, although he appears confused about the constitutional relationship between Metellus Celer, Pomptinus and Caesar in Transalpine Gaul. The German scholar cites the facetious description of Vatinius as epulo at Cic. Att. 2.7.3 as a reference to the events mentioned in Vat. 30–31. If this is correct (as it probably is), then Pomptinus’s success and the subsequent supplicatio have a terminus ante quem of April 59. Cf. Taylor 1968, 185–86, who reasons (erroneously) that Pomptinus’s supplicatio may have been voted in 60, as Caesar would not have opposed an honour for a friend of Crassus (as Pomptinus is supposed to have been).

202

Appendix A

still in Rome in mid-December 60, as Cicero mentions him as being a beneficiary of Valerius’s acquittal at that time (Cic. Att. 2.3.1). However this would not preclude him going to his province after that. The likelihood therefore is that Afranius took up his province but Metellus Celer did not, meaning that only one of the territorial provinces was held by a consul or consular proconsul. Eight praetorian imperators are known, including Pomptinus. C. Vergilius Balbus (pr. 62) retained Sicily, as Q. Cicero (pr. 62) did Asia (although he was replaced the following year). C. Papirius Carbo (pr. 61) governed Bithynia and Cn. Cornelius Lentulus Marcellinus (pr. 60) took over Syria. P. Cornelius Lentulus Spinther (pr. 60) governed Hispania Citerior, C. Octavius (pr. 61) retained Macedonia and Q. Pompeius Rufus (pr. 63) might have stayed on in Africa for this year.267 Thus three provinces were held by unknown imperators. 58 C. Iulius Caesar (Cisalpine and Transalpine Gaul) and M. Calpurnius Bibulus (no province) (coss. 59). Caesar began his long tenure in Cisalpine and Transalpine Gaul; Illyricum is not counted as it is not considered a regular territorial province. No other consular proconsuls are known, meaning two of the territorial provinces were held by consuls or consular proconsuls. Six praetorian imperators are known: C. Papirius Carbo (pr. 61) in Bithynia and Cn. Cornelius Lentulus Marcellinus (pr. 60) in Syria both served their final year in 58, while T. Ampius Balbus (pr. 59) in Asia and L. Appuleius Saturninus (pr. 59) in Macedonia served one-year terms. C. Vergilius Balbus (pr. 62) may have been prorogued in Sicily for this year and T. Vettius Sabinus (pr. 59) held Africa.268 Thus four territorial provinces were held by unknown imperators. 57 L. Calpurnius Piso (Macedonia) and A. Gabinius (Syria) (coss. 58). C. Caesar (cos. 59) retained the Gallic provinces, while L. Piso held Macedonia and A. Gabinius held Syria.269 Thus four territorial provinces were held by consuls or consular proconsuls. Two praetorian imperators are known: there was an unknown praetorian governor of Cilicia (but probably not T. Ampius Balbus).270 C. Fabius (pr. 58) took over in Asia and C. Memmius (pr. 58) held Bithynia (with the poet Catullus among his staff).271 Thus six territorial provinces were held by unknown imperators.

267 268 269 270 271

Brennan 2000, 404–05, 411–13, 493–94, 518, 534–35, 545–46, 566–68, 711, 719, 721. Brennan 2000, 404–05, 411–13, 493–94, 535, 546, 568, 711, 719, 721 Broughton 1951, 2.202–04. See p. 105 above and Brennan 2000, 568, with a record of earlier discussions. Brennan 2000, 405, 568, 719, 721.

A4. Proconsular and praetorian imperators 80–52

203

56 P. Cornelius Lentulus Spinther (Cilicia) and Q. Caecilius Metellus Nepos (Hispania Citerior) (coss. 57). Uniquely, we know the governors of all twelve territorial provinces in this year. C. Caesar (cos. 59) held both Gauls, with L. Piso (cos. 58) continuing in Macedonia and Gabinius (cos. 58) in Syria. P. Lentulus Spinther held Cilicia and Q. Metellus Nepos governed Hispania Citerior, meaning that six territorial provinces were held by consuls or consular proconsuls.272 Of the praetorian imperators, L. Caecilius Rufus (pr. 57) held Sicily, C. Septimius (pr. 57) governed Asia, C. Caecilius Cornutus (pr. 57) governed Bithynia and Ap. Claudius (pr. 57) governed Sardinia. Lastly, Q. Valerius Orca (pr. 57) received Africa and Sex. Quinctilius Varus (pr. 57) held Hispania Ulterior.273 55 Cn. Cornelius Lentulus Marcellinus (unknown) and L. Marcius Philippus (no province) (coss. 56). C. Caesar (cos. 59) retained both Gallic provinces after a determined attempt to remove him from at least one of them in June 56. A. Gabinius (cos. 58) retained Syria, while Q. Metellus Nepos (cos. 57) continued in Hispania Citerior and P. Lentulus Spinther (cos. 57) in Cilicia.274 Thus five territorial provinces were held by consuls or consular proconsuls. Of the praetorian imperators, M. Aemilius Scaurus (pr. 56) served a single year in Sardinia while Sex. Quinctilius Varus (pr. 57) served his second and final year in Hispania Ulterior. C. Claudius Pulcher (pr. 56) received Asia and Q. Ancharius (pr. 56) replaced L. Piso (cos. 58) in Macedonia.275 Thus three territorial provinces were held by unknown imperators. 54 Cn. Pompeius Magnus II (Hispania Citerior and Ulterior) and M. Licinius Crassus II (Syria) (coss. 55). Two praetorian governors are known in this year: P. Attius Varus (pr. 55) in Africa and C. Claudius Pulcher (pr. 56), who retained Asia.276 However, six territorial provinces were held by consuls or consular proconsuls. C. Caesar (cos. 59) retained both the Gauls, while Pompeius governed both Iberian provinces through legati. Lastly, M. Licinius Crassus received Syria and P. Lentulus Spinther (cos. 57) retained Cilicia for a final year.277 Thus four territorial provinces were held by unknown imperators.

272 273 274 275 276 277

Broughton 1951, 2.210–12. Brennan 2000, 405, 495, 518, 546, 568–69, 712, 719, 721. Broughton 1951, 2.217–19. Brennan 2000, 495–97, 518, 537–38, 569, 712, 719. Brennan 2000, 546, 569 and 719; Díaz Fernández 2015, 410–11. Broughton 1951, 2.224–25.

204

Appendix A

53 Ap. Claudius Pulcher (Cilicia) and L. Domitius Ahenobarbus (no province) (coss. 54). As noted above, the anarchy in Rome renders it unlikely that consular provinces were assigned. Two prorogations are known, those of C. Claudius (pr. 56) in Asia and P. Attius Varus (pr. 55) in Africa. Brennan lists C. Cosconius (pr. 54) as a probable (praetorian) governor of Macedonia in this year.278 The consular proconsuls include Ap. Claudius, who took Cilicia in dubious circumstances, as well as the commands assigned by law: C. Caesar (cos. 59) in the two Gauls, Pompeius (cos. II 55) in the two Iberian provinces and M. Crassus (cos. II 55) in Syria, who met his death in this year.279 Thus six territorial provinces were held by consuls or consular proconsuls. This leaves three territorial provinces held by unknown imperators. 52 Cn. Domitius Calvinus (unknown) and M. Valerius Messalla Rufus (unknown) (coss. 53). No consular provinces are known and it seems unlikely any were decreed given the political situation. C. Caesar (cos. 59) retained the Gauls and Pompeius (cos. II 55) retained the Iberian provinces, while Ap. Claudius (cos. 54) held Cilicia and it is certain that Syria did not receive a governor.280 Thus five territorial provinces were held by a consul or consular proconsul; six if we count Syria in this category. No praetorian imperators are known. Thus six territorial provinces were held by an unknown imperator. It is possible but unlikely that the consuls of 53 held two of them. 52 saw the passage of the lex Pompeia de provinciis, which fundamentally altered the method of assigning provinces. See chapter 8. A5. DATA ANALYSIS AND CONCLUSIONS This section contains the data tables which illustrate trends in the number of provinces available to outgoing praetors. Two master tables are presented, giving the data for 122–91 and 80–52. After each of these are charts and explanations which highlight patterns in the data.

278 Brennan 2000, 538, 569, 712, 719; Díaz Fernández 2015, 410–11. 279 Broughton 1951, 2.229–30. 280 Broughton 1951, 2.237–38.

205

A5. Data analysis and conclusions Table 1: year-by-year data, 122–91 A Year

B

C

D

TPs: TPs: Any Territoprovinces consul or praetorial provinces held by consular rian rank consuls proconsul (TPs) (probably no province)

E Urban praetorian provinciae

F

G

H

MaxiLast This year’s mum TPs year’s praetors praetors available to last available available year’s for TPs for TPs praetors

122

7

1(1)

1

1

3

3

4

3

121

7

1(1)

0

2

3

3

3

4

120

7

0

0

3

3

3

3

4

119

7

0(1)

0

1

3

3

3

4

118

7

2

1

0

3

3

3

3

117

7

0

0

0

3

3

3

4

116

7

0

0

1

4

2

3

5

115

7

2

1

3

4

2

4

4

114

7

1

2

2

4

2

4

3

113

7

2

2

0

4

2

4

3

112

7

1

2

1

4

2

4

3

111

7

2

2

2

4

2

4

3

110

7

2

2

2

4

2

4

3

109

8

2

3

1

4

2

4

3

108

8

0

3

1

4

2

4

3

107

8

1

3

2

4

2

4

3

106

8

1

2

2

4

2

4

4

105

8

2

1

1

4

2

4

5

104

8

1

1

3

4

2

4

5

103

8

1

1

2

5

1

4

6

102

9

2

1

4

5

1

5

7

101

9

2

2

4

5

1

5

6

100

9

0(2)

1

4

5

1

5

7

99

9

0(1)

0

2

5

1

5281

8

98

9

1

1

1

5

1

5

7

97

9

1

2

3

5

1

5

6

96

9

0

2

1

5

1

5

6

95

9

1(1)

2

2

5

1

5

6

94

9

1

3

1

5

1

5

5

93

9

1

2

3

5

1

5

6

92

9

0

2

3

5

1

5

6

91

9

0(2)

2

3

5

1

5

6

281 While the praetor C. Servilius Glaucia was killed in office in December 100, we do not know if the Senate had already assigned the praetorian provinces for 99.

206

Appendix A

What do these mean? A. “Territorial provinces” (TPs) is the number of regular (territorial) provinces available in each year. The list of TPs is given in Appendix A1. B. “Any provinces held by consuls (probably no province)” lists the number of provinciae held by the consuls of the current year. The figure in parentheses refers to the consuls who (certainly or probably) did not hold a provincia. These figures do not refer only to TPs, but to any provinciae, and they are given to show how likely it is that the consuls held any of the TPs with unknown imperators. C. “TPs: consul or consular proconsul” is a key number, referring to how many TPs are attested as being held by imperators of consular rank (including the current year’s consuls). Any that were not were potentially available to praetorian governors. D. “TPs: praetorian rank” is self evident. No attempt is made to distinguish between praetors in office, prorogued praetors or praetors holding secondary provinces, as the data are very rarely good enough. Hence this column is illustrative. E. “Urban praetorian provinciae” is the number of praetors occupied with urban provinciae (on a conservative estimate). These figures are argued above pp. 55– 57. F. “This year’s praetors available for TPs” is 6 (the number of praetors each year) minus the previous column (column E). G. “Last year’s praetors available for TPs” is the same number as column E, but a year later. H. “Maximum TPs available to last year’s praetors” is the key data point. It is derived from the number of TPs less the other groups who must have held them: attested consuls and consular proconsuls, and the praetors of the current year who did not hold urban provinciae. Mathematically, the figure is A – (C + F). Importantly, this figure is a maximum: the figure might be lower if we had more attested consular imperators or if previous praetors were often prorogued (as we know they were). The most important relationship for my argument is that between columns G and H. Where G is greater than H, some of the praetors who had held urban provinciae the previous year must have missed out on secondary provinciae, with implications for how the successful candidates were chosen. Where H is substantially greater than G, there must have been strong pressure for all or most of the available outgoing praetors to take secondary provinces. This relationship is shown graphically in Chart 1. As the data set is so incomplete, it is more useful to look at trends rather than individual years.

207

A5. Data analysis and conclusions

A. Territorial provinces G. Last year’s praetors available for territorial provinces H. Maximum provinces available to last year’s praetors

Chart 1: key data for 122–91

Thus, from 114 to about 106, only some praetors will have been required to hold secondary provinces. This has implications for the phenomenon of magistrates who refused provinces and is discussed in detail in section 2.2. However, after 106 and for the rest of the period the maximum availability of territorial provinces continually outstrips the supply of outgoing praetors. While part of this is doubtless due to our defective information–it is likely that consular imperators or prorogued praetors have escaped record–there probably was a constant demand for outgoing praetors to take secondary provinces. This means that the phenomenon of all praetors serving their magisterial year in Rome before taking a secondary province–a phenomenon which most scholars date to the post-Sullan period–should instead be dated to the last years of the second century. Let us move on to the post-Sullan period. Here we have much better information. This table is somewhat simpler. The columns giving the number of urban praetorian provinciae and the number of this year’s praetors available for TPs have been omitted, because we can safely assume that all praetors holding territorial provinces did so in the year after their magistracy. Meanwhile, the column giving “Last year’s praetors available for TPs” is mainly for illustrative purposes. Importantly, the table giving consular provinces refers to consuls in the year after their consulship: so the value “1(1)” for 62 refers to C. Antonius in Macedonia and Cicero who refused a province. Similarly, the value “2(1)” for 58 refers to Caesar (holding both Cisalpine and Transalpine Gaul) and Bibulus (holding no province). Because our data are much better for this period, it is useful to add a column for “Unknown,” which refers to how many provinces in each year we have no information for: this gives us an idea of how confident we should be in the exactness of the other data. Finally, the value for “Maximum TPs available to last year’s praetors” (column G) is always the number of TPs (column A) less the number of attested consuls and consular proconsuls (column C). I have made no attempt to accommodate praetors we know refused a province; we have no way of knowing how often, if ever, this refusal was known before the praetorian provinces were decided.

208

Appendix A Table 2: year-by-year data, 80–52 A

Year Territorial provinces (TPs)

B

C

D

E

Any provinces held by consuls (probably no province)

TPs– consul or consular proconsul

TPs– praetorian rank

Unknown governors of TPs

F

G

Last year’s Maximum TPs praetors available available to last year’s for TPs praetors

80

10

1

1

5

4

8

9

79

10

1(1)

2

5

3

8

8 7

78

10

2

3

3

4

8

77

10

2

4

3

3

7282

6

76

10

1(1)

4

3

3

8

6

75

10

1(1)

4

3

3

8

6

74

10

2

5

2

3

8

5

73

11

3

7

1

3

7283

4 4 5

72

11

2

7

1

3

7284

71

11

0(2)

6

1

4

8

70

11

0(2)

3

4

4

7285

8

69

11

0(2)

3

3

5

8

8

68

11

1(1)

2

3

6

8

9

67

11

1(1)

2

4

5

8

9

66

11

3

4

1

6

8

7

65

11

0

4

1

6

8

7

64

11

1(1)

4

2

5

8

7

63

11

0(2)

3

2

6

8

8

62

11

1(1)

3

5

3

7286

8

61

12

0

1

6

5

8

11 12

60

12

0

0

7

5

8

59

12

1(1)

1

8

3

8

11

58

12

2(1)

2

6

4

8

10

57

12

2

4

2

6

8

8

56

12

2

6

6

0

8

6

55

12

0(1)

5

4

3

8

7

54

12

3

6

2

4

8

6

53

12

1(1)

6

3

3

8

6

52

12

0

6

0

6

8

6

282 283 284 285 286

M. Brutus (pr. 78) was killed in January 77. M. Antonius (pr. 74) held a pirate command. Broughton 1951, 2.110 argues L. Cossinius, who fell fighting Spartacus, was a praetor of 73. If we accept M. Crassus as pr. 71. Lentulus Sura (pr. 63) was one of the executed Catilinarian conspirators.

A5. Data analysis and conclusions

209

Chart 2: key data for 80–51

What is striking is how often there were too many territorial provinces available for the outgoing praetors, ensuring that some of them would miss out on secondary provinciae: this was the case in 16 of the 29 years in this period. Yet this is exactly the opposite of what the standard account leads us to expect. The spikes at different periods also allow us to interpret known facts in new ways. For instance, the mid and late seventies was a period when there was a surplus of outgoing praetors available for provincial command–yet this was the period when C. Verres held Sicily for three years, a province not known for long tenures. That is curious, and invites speculation about his command and the politics of his trial. On the other hand, the years 61–58 lay between the great plebiscitary commands and seem to have been a period when many consuls refused provinces. In such circumstances it is not surprising that some unlucky praetorian governors were stuck in their provinces for a long time: one thinks of Q. Cicero’s three years in Asia, or Lentulus Marcellinus’s two years in Syria. This chart goes a long way to disproving one aspect of the standard account of the post-Sullan provincial system: that Sulla had arranged for an orderly system in which the ten imperators each governed one of the ten provinces for one year, but that the Senate and the magistrates involved ensured this could not work, by creating additional provinces on the one hand and declining provincial government on the other. The data shows this is not true; rather, Rome in the seventies had untapped reserves of praetorian imperators to take over new provinces (although the ranks of consular imperators were indeed stretched).

APPENDIX B SCAEVOLA IN ASIA At some point in the nineties, Q. Mucius Scaevola (cos. 95) governed Asia. Our problem is whether this governorship was praetorian or consular.1 The non-Asconian evidence is helpfully summarised in the first paragraph of Balsdon’s article on the subject:2 P. Rutilius Rufus was one of his legati. His provincial edict was so admirable that succeeding governors of Asia were commanded by senatorial decree to model their own edicts upon it; and Cicero in 51 B. C. borrowed at least one of its clauses for his Cilician edict. Finally, Scaevola left his province at the end of nine months, an act which did no harm to his reputation and to which Cicero later looked back with envy.

It is useful to consider the evidence of the Asian governorship first, before looking at Asconius. The arguments which have been made for Asia being Scaevola’s consular province are not strong: they depend almost entirely on general points. Badian, Kunkel and Brennan support this position, and Kunkel’s argument may be dismissed first. He posits that the province Scaevola rejected as consul was Italy, but that he was then assigned Asia as a proconsular province extra ordinem.3 Such an argument, while technically possible, only makes sense if one has already accepted that Asia was Scaevola’s consular province; otherwise it is too much of a collection of improbabilities. Badian’s case rests on two general arguments: first, that as Rutilius Rufus’s trial for repetundae is dated to 92, it makes more sense for this to refer to a legateship in 94 than one c. 98 and, second, that it is extremely unlikely that an aged consular (Rutilius Rufus is likely to have been around 60 by the mid-nineties) would have acted as legate to a praetorian governor, but more likely he would have done so for a consular governor.4 The first argument has been soundly answered by KalletMarx: the dating of Rutilius’s trial to 92 is not certain and was based on dating Sulla’s command in Cilicia to 92. Since Badian has shown this is from 96, nothing requires that the trial be later than 94.5 On the second point, Diodorus emphasises that Scaevola chose Rutilius as a friend and partner as much as a legate, and deferred to his advice in governing (Diod. 37.5.1). If anything, this latter point supports the idea of Scaevola being praetor, as irrespective of the age difference a sitting consul would be unlikely to defer to a former consul, whereas a praetor would. 1 2 3 4 5

See: Balsdon 1937; Badian 1956; Marshall 1976; Kallet-Marx 1989; Kunkel and Wittmann 1995, 372–73; Brennan 2000, 549–52; Ferrary 2000a; Lewis 2006, 210–12. Balsdon 1937, 8. The passages cited are: Ps. Ascon. 202 Stangl (who mistakenly calls Rutilius Rufus “quaestor”); Val. Max. 8.15.6; Cic. Att. 5.17.5, 6.1.15. Kunkel and Wittmann 1995, 372–73. Badian 1956, 105–06. Kallet-Marx 1989, 311.

Appendix B. Scaevola in Asia

211

Moreover, Ferrary validly points to the exceptional personalities of Scaevola and Rutilius, which removes a lot of the force from Badian’s argument.6 The Asian fasti are no help in this regard: no governor in the nineties can be dated with sufficient certainty. Thus the evidence on Scaevola’s Asian command is not sufficient to determine whether it was consular or praetorian. The issue must therefore be settled by reference to a difficult passage of Asconius (14–15C), which in the Clark edition reads as follows (with Lewis’s translation): L. autem Crasso collega fuit Q. Scaevola pontifex qui, cum animadverteret Crasso propter summam eius in re publica potentiam ac dignitatem senatum in decernendo triumpho gratificari, non dubitavit rei publicae magis quam collegae habere rationem ac ne fieret S. C. intercessit. Idem provinciam, cuius cupiditate plerique etiam boni viri deliquerant, deposuerat ne sumptui esset †oratio. And L. Crassus’ colleague was Q. Scaevola the pontifex, who on observing that the senate was doing a favour to Crassus in decreeing him a triumph on account of his enormous power and ranking in the state, did not hesitate to take more account of the state than of his colleague, and vetoed the passage of the senatorial decree. This same man had set aside a province which had made many men–even men of sound principles–do wrong in their eagerness to hold it, lest his †officially sanctioned expense allowance† should occasion costs.

Oratio is the dominant manuscript reading; one variant has oro with a tilde. Most modern scholars have accepted that the final few words of the passage are likely to be corrupt. There have been several proposed emendations, but Kallet-Marx has correctly pointed out that these “depend too much on assumptions about the meaning of the main clause to assist us in its interpretation.”7 He then clearly sets out the terms of the problem:8 First, does the phrase provinciam deponere in this instance mean (a) to decline a province before one has proceeded to it (as Cicero did in 63) or (b) to depart before the legal term from a province that one has already occupied? Second, was the province to which Asconius alludes (c) Scaevola’s praetorian province or (d) his consular province?

Kallet-Marx notes that the possible positions taken before him were some combination of (a) or (b) with (c) or (d), and that Marshall’s 1976 article had rendered some of those combinations impossible. The pluperfect tense of deposuerat means that a combination of (b) and (d) is not possible: Scaevola could not have gone from Rome to Asia as consul, spent nine months there and returned to Rome before the end of his consulship to veto his colleague’s application for a triumph.9 6 7 8 9

Ferrary 2000a, 165. Kallet-Marx 1989, 306. Kallet-Marx 1989, 306. Marshall 1976, 125–26; cf. Kallet-Marx 1989, 307, who adds that as Scaevola is referred to as ἀνθυπατος (proconsul) in an inscription (Sherk 1969 no. 47), he must have been in Asia after the expiration of whatever magistracy he held. That is not necessarily the case: Scaevola could legitimately have been praetor pro consule during his magistracy, which would refer to him holding both the magistracy of praetor as well as consulare imperium (see Vervaet 2012 on praetorian proconsuls). Of course, if his tenure in Asia was consular, proconsul would only have been an appropriate term after the expiration of his consulship.

212

Appendix B. Scaevola in Asia

Balsdon’s conclusion, supported by Kallet-Marx, is a combination of (a) and (d) and is probably correct. No conclusion is certain–if a certain conclusion were possible the controversy would not have lasted so long. But Balsdon’s arguments, refined and supplemented by Kallet-Marx, are convincing. Deponere provinciam is found elsewhere only in Cicero’s discussion of his provincial assignment in 63, where it has the meaning of resigning a province after it has been assigned to him but before he has left Rome to take it up.10 The explicit justification offered by Asconius (and presumably one of those offered by Scaevola) for resigning the province was the desire to save money, although as Lewis has pointed out, the provincia given up by the consul would still need a governor and so the expense would occur anyway.11 Yet if Scaevola resigned the provincia after the normal sortitio, then the incumbent would presumably have been prorogued (as the simplest solution), which would probably have reduced the expense somewhat.12 But this is a minor point: the implicit justification given by Asconius is more interesting. Scaevola’s refusal of a provincia is placed in the context of his colleague’s triumph-hunting in the Alps. As Cicero says in the passage Asconius is commenting on (Pis. 62), Crassus was so eager for a triumph that he searched for enemies in the Alps when there were none to be had.13 Kallet-Marx recognises this point clearly:14 The theme of the whole passage is cupiditas triumphi, which is of course closely linked with cupiditas provinciae, as Cicero notes at the very outset (56): the former is at least a morally and politically acceptable pretext for the latter.

Whichever provincia had been decreed for Scaevola, therefore, must at least have offered the hope of a triumph (which by itself rules out Asia). Scaevola thus appears 10

11 12

13 14

The relevant Ciceronian passages are cited by Balsdon 1937, 8 n. 9: Fam. 5.2.3, Att. 2.1.3 and Pis. 5; to this list can be added Phil. 11.23. It is relevant that all of these instances except that in the Eleventh Philippic explicitly refer to the speech in contione in which Cicero renounced the province. Balsdon’s argument is supported by Ferrary 2000a, 163–64. Balsdon in fact misses another relevant passage, Pis. 50, in which Lentulus Spinther is said to have given up the task he had obtained by lot: quam provinciam P. Lentulus, amicissimus huic ordini, cum et auctoritate senatus et sorte haberet, interposita religione sine ulla dubitatione deposuisset. While at first glance this contradicts Balsdon–Lentulus Spinther did after all govern his province of Cilicia–the context of the passage makes clear that what Cicero means by provincia is the task of restoring Ptolemy Auletes, which Gabinius as governor of Syria eventually performed. Thus it was a part of Lentulus’s original mandata which religious restrictions led him to give up before he had performed it (so Nisbet 1961, 112). This passage should be added to the list of those which support a technical meaning for deponere provinciam. Lewis 2006, 211. This assumes that Scaevola had been decreed a territorial provincia, although Ferrary 2000a, 164 plausibly suggests that his consular assignment was to work alongside Crassus in the north. If this was the case, Scaevola’s argument was presumably that there was not enough of a military threat to occupy one consul, let alone two. There may also have been some reason to expect unrest in Italy following the passage of the lex Licinia Mucia early in the year; on this law see Tweedie 2012. L. Crassus, homo sapientissimus nostrae civitatis, specillis prope scrutatus est Alpis ut, ubi hostis non erat, ibi triumphi causam aliquam quaereret; eadem cupiditate vir summo ingenio praeditus. Kallet-Marx 1989, 308–09.

Appendix B. Scaevola in Asia

213

as a self-denying consul, desiring not to put the res publica to unnecessary expense just so that he could chase a triumph. As Pina Polo points out, this pose served as an exemplum for future consuls who refused provinces, such as Pompeius and Cicero.15 Such a pose also ties in neatly with the image projected by Scaevola’s Asian governorship, in which Diodorus says he had paid his own expenses (Diod. 37.5.1). This governorship was also a memorable exemplum, particularly for Cicero and for others of his generation who sought more ethical provincial governance.16 Therefore, the solution to the problem is that Asia was Scaevola’s praetorian provincia and it was his consular province which he refused. Finally, one point of detail. Scaevola’s veto of a triumph for L. Crassus must have taken place while both men were still consul, as the two men are described as colleagues and proconsuls could not veto anything.17 So much has been recognised before. Scaevola’s veto is often presented as an example of consuls having the power to veto actions of their colleagues.18 Yet the occasion of the veto was a senatorial decree (in a session which presumably was not chaired by Crassus, since it was his request for a triumph which the Senate was considering), and it was that decree which Scaevola vetoed, not any action by his consular colleague. This occasion does not support the contention that consuls could veto their colleagues.

15 16 17 18

Pina Polo 2011a, 244. Morrell 2017, 49–50 highlights Scaevola’s prominent role as a positive exemplum in the Verrines. See Kunkel and Wittmann 1995, 360–61 for details of how Scaevola’s model was implemented by later governors. So Kunkel and Wittmann 1995, 373. Mommsen 1878, 1.269 n. 5.

APPENDIX C CRETE AND CYRENE The provincial status of Crete and Cyrene in the late Republic is doubtful, which is of some importance to my argument. It is not clear whether they were two separate provinces or a single province. Nor is it clear when they began to be held as provinciae by praetorian imperators. No Roman official is attested in Crete after the withdrawal of Q. Caecilius Metellus (cos. 69), who conquered the island, around 65.1 Three Roman officials are attested as active in Cyrene before the lex Pompeia. Sallust records (Hist. 2.43 Maur = 2.41 McGushin) P. Cornelius Lentulus Marcellinus (otherwise unknown) as quaest in novam provinci in 74. Inscriptional evidence (collected and discussed by Reynolds) attests Cn. Cornelius Lentulus Marcellinus as present there in 67, while Cicero (Planc. 13 and 63) speaks of M. Iuventius Laterensis as quaestor at Cyrene in 63 or 62.2 Both Reynolds and Perl discuss the evidence regarding Cyrene at some length, but neither arrives at any definite conclusion.3 Badian’s discussion is more useful as he starts from a better understanding of provincialisation as a concept.4 He argues, first, that P. Marcellinus in 74 probably just organised the royal lands and did not install a permanent governor and second that Cn. Marcellinus in 67 was there as Pompeius’s legatus pro praetore, which he treats as proof there was no regular governor. Regarding M. Laterensis, Badian says:5 Unfortunately Cicero gives us no indication whether he was governor or served under one; but we may assume the latter, since any special distinction about a quaestorship at Cyrene would have been bound to be mentioned (instead of the vague praise that is) in the context.

Considering that Cicero’s goal was to defend Plancius rather than Laterensis, this may be doubted. But even if it is accepted, it is fairly weak support for the idea that there was a praetorian imperator normally in charge of the region at this time. Kallet-Marx’s caution is quite reasonable here:6 In view of the fact that our knowledge of praetorian provinciae in the late 60s and 50s is rather good, the absence of evidence for the praetorian assignment of Crete and Cyrenaica encourages

1

2 3 4 5 6

Cic. Planc. 85 jokes that M. Iuventius Laterensis had travelled to Crete, but Cicero mentions this in regard to oratorical education and does not connect it with Laterensis’s quaestorship in Cyrene. Schol. Bob. 167 Stangl, commenting on this passage, refers (in passing) to Creta provincia; this is not to be pressed. Reynolds 1962. Reynolds 1962 (especially 101–02); Perl 1970. Nothing is added by Harrison 1985. Badian 1965, 119–20. Badian 1965, 119. Kallet-Marx 1995, 319 n. 119. Cf. Drogula 2015, 240–42 on the ability of provincial quaestors to embody Roman power without holding military command.

Appendix C. Crete and Cyrene

215

the hypothesis that it was regularly assigned to a quaestor whose chief task was to collect the vectigalia.

There are perhaps some general arguments we could add to this, although none of them are particularly strong. Neither Crete nor Cyrene would have required a major garrison. Neither was exposed to military threat. Moreover, neither was particularly large. Compare the new provinces which were added in this period: Bithynia et Pontus (which comprised two former kingdoms and was the seat of a war for several years) and Syria (facing the Parthian frontier). Caelius, in a letter of October 51 (Cic. Fam. 8.8.8), quotes a senatus auctoritas which aimed to send praetorian imperators to Cilicia and VIII reliquas provincias quas praetorii pro praetore obtinerent. In his commentary, Shackleton Bailey names the eight mentioned praetorian provinces as Sicily, Sardinia, Africa, Macedonia, Asia, Bithynia, Crete, and Cyrene.7 Mommsen lists a total of fourteen permanent (territorial) provinces at this time: Sicily, Sardinia with Corsica, Hispania Citerior, Hispania Ulterior, Cisalpine Gaul with Illyricum, Transalpine Gaul, Macedonia with Achaea, Asia, Bithynia et Pontus, Syria, Crete, Cyrene, and Africa.8 Gelzer’s discussion of the Ad familiares passage is different. For him, Crete and Cyrene were administered together (as they were under Augustus).9 He believes the import of the four proposals at this meeting was: 1. There were thirteen provinces (of which Crete and Cyrene together was one). 2. The Iberian provinces were currently held by Pompeius, leaving eleven. Four of those (Syria, Cilicia and the two Gauls) were currently held by consular governors. 3. On 1 March, 50, the Senate would decide which two of these eleven would become consular. 4. “It was laid down how the nine remaining provinces were to be filled by expraetors in the year 50.”10 Note 7 to this sentence cites Cic. Fam. 8.8.8 and then reads: “Since the hitherto consular province of Cilicia was expressly mentioned only Syria and the two Gauls remained of the consular provinces; one of these, however, was also to become praetorian.” Implicitly, Gelzer argues, since Caesar’s provinces could not be discussed before 1 March 50, the Senate could not name one of them praetorian. However, by the method he outlines it ensured one of them would be, and Syria with the other Gaul would be consular. However, Gelzer’s reconstruction cannot work. The Senate specifies that, apart from Cilicia, all the eight provinces which are to receive new praetorian imperators in 50 are already held by praetorian imperators (as noted above), which the Gauls were not. Therefore, apart from the Iberian provinces, the Gallic provinces, Cilicia and Syria, there must be eight provinces held by praetorian imperators. Syria cannot 7 8 9 10

Shackleton Bailey 1977, 405. Mommsen 1906, 133 n. 18. Gelzer 1968, 175 and nn. 4 and 7. Gelzer 1968, 175.

216

Appendix C. Crete and Cyrene

be one of them: Bibulus was explicitly pro consule (Cic. Fam. 15.3.2), and even if the SC assumed he had not yet arrived, Cassius had not held the province pro praetore: legally, it had been sine imperio since Crassus’s death.11 Clearly, then, Shackleton Bailey is right and Crete and Cyrene must be two of the VIII reliquas provincias quas praetorii pro praetore obtinerent. Two questions then arise: was it a regular occurrence for Crete and Cyrene to be governed pro praetore and, if so, for how long had this been the case? There can be no certain answer to this, nor even any solid ground on which to base one.12 But, to my thinking, several factors combine to suggest praetorian governors in these provinces (as opposed to quaestors) was a late and irregular phenomenon. The first is the absence of evidence, especially when we are so well informed about other provinces (for instance, we have four reasonably-well-attested imperators in Bithynia et Pontus in the decade after Pompeius returned to Rome in 62). The second is the lack of any obvious need for Rome to send imperators to such minor and peaceful outposts as these. The third is the change in imperial policy which, as Morrell has argued, the lex Pompeia represented: now the Senate was displaying a strong interest in the good government of the empire.13 To my mind, the likeliest explanation is that Crete and Cyrene only became attractive regular provinces for praetors once so much of the empire had been locked up by the laws of 55. In subsequent years the Senate had real difficulty in making any provincial appointments. Hence, it is probably only with the lex Pompeia that both provinces began regularly to receive praetorian imperators. For this reason, neither Crete nor Cyrene have been counted as territorial provinces prior to 52 and so have not been included in the analysis in Appendix A5.

11 12 13

The prescript to Cic. Fam. 15.14 reads “M. CICERO IMP. S.D. C. CASSIO PRO Q.” See also Broughton 1951, 2.229, 237, 242. Díaz Fernández 2015, 249, after an extended discussion of Cyrene’s late-republican provincial status, comes to a similarly hopeless conclusion: “Dada la parquedad de los datos conservados parece complicado dar una respuesta convincente a la cuestión.” See Morrell 2017 chs. 7 and 8.

APPENDIX D THE LEX DE PROVINCIIS PRAETORIIS The standard text of the lex de provinciis praetoriis is that in Crawford’s Roman Statutes, vol. 1.1 The Cnidos copy, column IV, lines 31–39 read as follows: ἐὰν οὗτ[ο]ς ὁ στρατηγός, ὧι τῆς Ἀσίας Μακεδονίας τε ἐπαρ[χ]ε̣ί̣α ἐγένετο, τῆς ἀρχῆς αὑτὸν ἀπείπηι ἢ ἀπείπηται ὡ̣ς̣ ἐ̣ν ἐπιταγῆι, ἐξουσία πάντων πραγμά- vacat των ἐ̣[π]ιστροφήν τε ποιεῖσθαι, κολάζειν, δικαιοδοτεῖν, κρείνε̣ι̣[ν, κ]ριτὰς ξενοκρίτας διδόναι, ἀναδόχων κτημάτων ΤΕ[.]Γ̣ΑΡΟΔΟΣΕΙΣ ἀπελευθερώσεις ὡσαύτως κατὰ τὴν δικαιοδοσίαν ἔστω καθὼς ἐν τῆι ἀρχῆι ὑπῆρχεν· οὗ[τ]ός τε ὁ ἀνθύπατος ἕως τούτου ἕως ἂν εἰς πόλ̣[ι]ν̣ Ῥ̣ώμην ἐπανέλθηι ἔστω. Vacat

The inscribed text is a (local) Greek translation of the Latin in the Roman statute; a partially-overlapping copy with a different translation has been uncovered at Delphi. Crawford renders this into Latin and English as follows: Si is praetor, cui Asia Macedoniaue provincia obvenerit, a magistratu se abdicaverit, uti in mandatis omnium rerum potestas, animaduertere coercere ius dicere iudicare, iudices recuperatores dare, praedium praediorum manumissiones, ita e iurisdictione, uti (ei) in magistratu erat, esto isque ??? usque eo quoad in urbem Romam redierit esto. If the praetor or proconsul to whom the province of Asia or Macedonia shall have fallen abdicate from his magistracy, as described in his mandata, he is to have power in all matters according to his jurisdiction just as it existed in his magistracy, to punish, to coerce, to administer justice, to judge, to appoint iudices and recuperatores, (registrations) of guarantors and securities, emancipations, and he is to be (immune from prosecution) until he return to the city of Rome.

A few observations are necessary regarding this crucial passage. Giovannini, Grzybek and Brennan interpret it as referring to the powers which the imperator is to have while in transit; that is, after he has left his province and until he returns to Rome.2 Yet Ferrary is surely correct to emphasise that “le texte grec cependant s’éclaire si l’on y reconnaît la traduction maladroite du latin a magistratu se abdicauerit”; the phrase is ἀπείπηι ἢ ἀπείπηται.3 It refers, not to an imperator who has left his provincia, but to one whose magistracy has ended while he is in his (militiae) province.4 1 2 3 4

Crawford 1996, no. 12. Giovannini and Grzybek 1978, 43 (who explicitly compare this passage to lege Cornelia imperium habiturum quoad in urbem introisset at Cic. Fam. 1.9.25); Brennan 2000, 524. Ferrary 1977, 634 and n. 59. Cassius Dio (always a stickler for constitutional details) invariably uses ἀπείπειν to mean voluntary resignation from office (e. g. 7.12.1, 37.9.3, 43.46.2, 47.15.2, 49.43.6, 53.32.3). Compare Cicero’s use of abdicare, always used of a magistracy (Cat. 3.14, 3.15, 4.5, Phil. 3.12, Rep. 2.61, Nat. D. 2.11, Div. 2.74; an exception is Att. 6.1.4, which refers to a private affair),

218

Appendix D. The lex de provinciis praetoriis

Consideration of how official titles are used in the statute makes this clear. Individuals are never named, as Crawford identified: “the reason is presumably that the person concerned might drop dead one minute after the passage of the statute and be replaced.”5 References to individuals are thus always by the position they hold and fall into two categories: those that refer to a situation in the present or immediate future, and mostly order a specific action by an individual (e. g. the current or next governor of Asia, Cilicia or Macedonia), and those which refer to officials generally (i. e. to magistrates everywhere, or indefinite future governors). The officials in the specific instructions are always referred to either as praetor proue consule (Delphi B 20–21, Cnidos III 22–27, Cnidos IV 25–26) or praetor proue praetore proue consule (Cnidos II 13–16, Cnidos IV 5–8); those in the general references are understandably broad categories of officials. The solitary exception is our passage, Cnidos IV 31–39, where the reference (in the Greek, although not in Crawford’s translations) is initially to a praetor and then subsequently to a proconsul; Vervaet is surely correct that this is because it deals with the transition from the one to the other.6 The clause is also a general one: it sets out what an imperator whose magistracy has ended while in his provincia is allowed to do. It is thus likely that, as Brennan suggests, much of this language is tralatician: imperators who remained in the field beyond the end of their magistracy had been a completely normal part of the political system for more than a century and it defies belief that the law had not defined what they were able to do as promagistrates.7 Yet the list of authorised uses of imperium in the Latin and English translations which Crawford gives is heavily concentrated on civil matters. There is no mention of commanding troops, which was in all periods the primary role of imperators in the field. This difficulty can be met by noticing, with Vervaet, that the Latin translation offered by Crawford omits the title “proconsul” (ἀνθύπατος), which is present in the Greek (and misplaced in the English).8 Hence Vervaet’s translation is preferable: If the praetor to whom the province of Asia or Macedonia shall have fallen abdicates from his magistracy, as described in his mandata, he is to have power in all matters according to his jurisdiction just as it existed in his magistracy, to punish, to coerce, to administer justice, to judge, to appoint iudices and recuperatores, ‹registrations› of guarantors and securities, emancipations, and he is to be proconsul until the very moment of his return to the city of Rome.

We may safely assume that “to be proconsul” also entails the capacity to legitimately command troops. Of course, this then opens up the question of why the civil powers are listed while military command is not, but that (large) question is beyond the scope of this appendix. But it is vital to observe that most of the civil powers of a magistrate are explicitly reserved for proconsuls: indeed, the list provided seems to cover all a magistrate’s civil powers except the ability to convene the Senate or

5 6 7 8

with decedere provinciam (his usual term when referring to the end of his provincial command in Cilicia: Att. 5.21.9, 6.3.1, 7.3.5 on Bibulus). Crawford 1996, 236. Vervaet 2012, 67. Brennan 2000, 524. Vervaet 2012, 68 and n. 101.

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219

People. It proves that, with these exceptions, promagistrates as well as magistrates were fully able to exercise their imperium in the sphere domi as well as the sphere militiae. Ferrary notes that se magistratu se abdicaveret seems an odd phrase to find in this context. It is not the same as deponere provinciam, and he reasonably asks “a quelle occasion un gouverneur de province pouvait-il, ou devait-il, se abdicare a magistratu?”9 As Coli points out, most magistracies simply lapsed at the end of their term, without any requirement for the magistrate in question to abdicate.10 The normal term for this in Latin is abire, not abdicare. Abdication was instead a voluntary act, normally undertaken as a result of a religious flaw in the magistracy (or after completion of the set task in the case of non-annual magistracies). Yet even returning to this problem thirty years later, an answer eluded Ferrary: “je ne peux que constater ces anomalies, sans avoir d’explication à proposer.”11 Vervaet has suggested an answer: the passage suggests magistrates in the field at the expiration of their magistracy were expected to mark this transition by a voluntary se magistratu abdicare, rather than the normal passive procedure.12 This makes sense on a symbolic level: a magistrate in Rome whose magistracy expired dismissed his lictors and automatically returned to being a privatus. He was, moreover, replaced by a new set of magistrates, to make his change of status even more clear. Yet a magistrate holding provincial command was not obviously different after the expiry of his magistracy. He retained his lictors and his imperium, as well as active command of his provincia. If Vervaet’s suggestion is correct, it explains how imperators in the field could mark the end of their magistracies. The military contio at which such an abdication would take place also offers a likely occasion for the oath which departing magistrates normally took, declaring that they had obeyed the laws.13

9 10 11 12 13

Ferrary 1977, 635. Coli 1953. Ferrary 2008, 109. Vervaet 2012, 68 n. 102. On military contiones generally see Pina Polo 1995, 213–15.

APPENDIX E CAESAR BCIV. 1.6 My text and translation: Provinciae privatis decernuntur, duae consulares, reliquae praetoriae. Scipioni obvenit Syria, L. Domitio Gallia. Philippus et Cotta privato consilio praetereuntur, neque eorum sortes deiciuntur. In reliquas provincias praetores mittuntur. Neque exspectant–quod superioribus annis acciderat–ut de eorum imperio ad populum feratur, paludatique votis nuncupatis exeunt. Consules–quod ante id tempus accidit numquam–ex urbe proficiscuntur […] lictoresque habent in urbe et Capitolio privati contra omnia vetustatis exempla. Provinces–two consular, the rest praetorian–are decreed to privati. Syria falls to Scipio, Gaul to L. Domitius. Philippus and Cotta are passed over by private arrangement and no lots are cast for them. To the rest of the provinces praetors are sent. Nor do they wait–as had been the habit in previous years–for their imperium to be brought before the People, but they assume military uniform, make their vows and depart. The consuls–which has never previously happened–depart the city […] privati have lictors in the city and the Capitol, contrary to all former examples.

This is renowned as a difficult passage which Balsdon claims “is almost universally agreed to be corrupt.”1 Caesar accuses his enemies of all sorts of offences against normal procedure, but he does so in a rushed and chaotic way. While there are no obvious faults with the syntax, accepting the manuscripts as we have them seems impossible: it was the very opposite of unprecedented for the consuls to leave the City.2 Therefore, most editors have assumed there is a lacuna, either before or (less commonly) after ex urbe proficiscuntur.3 I prefer to place it after, so retaining Consules–quod ante id tempus accidit numquam–ex urbe proficiscuntur. Afterwards there must come something explaining what was so unprecedented about the consuls’ departure from Rome. Our sources give three possible faults: Cassius Dio (41.14.4) says that the feriae Latinae were not celebrated properly and later (41.43.3–5) that the consuls had not passed their lex curiata; Plutarch (Pomp. 61.4, Caes. 34.1) says that the consuls departed without making the customary sacrifices (θύσαντες). Plutarch might be referring to the feriae Latinae as well, or perhaps to the sacrifice which accompanied the vows to Jupiter before departure paludatus. In any event, Giovannini is very probably right that the thrust of Caesar’s complaint is that the consuls left Rome without fulfilling their customary religious obligations.4 This placement of the lacuna also retains lictoresque habent in urbe et Capitolio privati contra omnia vetustatis exempla, of which privati is the subject. I presume that these privati are the same mentioned previously as having received provinces. 1 2 3 4

Balsdon 1939a, 60. Damon 2015, 137–38. Klotz and Fabre place it before, while Damon places it after. Giovannini 1983, 81.

Appendix E: Caesar BCiv. 1.6

221

To the obvious objection that these men have just departed Rome, so they should not be on the Capitol immediately afterwards, there are two responses. The first is Damon’s: “narrative sequence is only loosely preserved in this paragraph, which is organized principally by categories.”5 The second is more complex and springs both from Caesar’s individual response to the lex Pompeia and his popularis response to the SCU. In the Bellum Civile, Caesar is explicitly hostile to the lex Pompeia: it was to attack him that promagistrates were appointed by a small clique (1.85.9). He consistently calls the men appointed under this law privati and does not represent them as imperators. Only Caesar himself and Pompeius are referred to as imperatores in the whole work (Curio and Metellus Scipio are acclaimed as such by their troops).6 So there is no reason to think he would only call them privati before they received provinces, especially when he has emphasised that they were not legally empowered. Similarly, the context of the passage is that the SCU has just been passed, which (as Caesar records: 1.5.3) was addressed both to the magistrates and to those proconsuls in the vicinity of the City (i. e. Pompeius). By this period the SCU seems to have implicitly authorised all imperators to exercise their (military) imperium within the pomerium.7 So (according to Caesar) not only has the Senate, on its own authority, given imperium to privati without popular approval, but it has also authorised them to use it in Rome. The presence of privati with lictors in the City is thus is a double blow to the supremacy of the People, as the Senate is usurping their two controls over imperium. That is a frightful threat to libertas. Compare, for instance, Sallust’s famous description of the SCU at Cat. 29.2–3: it is a power conferred by the Senate upon a magistrate, which allows him to exercise imperium both domi militiaeque, which is otherwise something which can only be done by popular order. So even for Sallust, the person so authorised must previously have been elected by the People to a magistracy cum imperio. The Senate’s actions here completely undermine popular sovereignty, of which Caesar, in his pose as defender of the tribunes, is the champion.

5 6 7

Damon 2015, 139. The imperatorial status of the Republican commanders was evidently a sensitive matter at the time, as Metellus Scipio’s behaviour and coinage show. See Linderski 2007b, 152–74. Drogula 2015, 121–25.

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GENERAL INDEX Acilius Balbus, M’. (cos. 114) 160 Acilius Glabrio, M’. (cos. 191) 118 n. 73 Acilius Glabrio, M’. (cos. 67) 69, 119, 104 n. 17, 183, 198 Aemilius Lepidus, M’. (cos. 66) 184, 198 Aemilius Lepidus, M. (cos. 78) 32, 64, 65, 77, 91, 175–76, 193–94 Aemilius Lepidus, Mam. (cos. 77) 65, 177, 184, 194 Aemilius Scaurus, M. (cos. 115) 159, 160 Aemilius Scaurus, M. (pr. 56) 56, 71, 105, 116–17, 203 Afranius, L. (cos. 60) 186, 196–97, 201–02 Albucius, T. (pr. 107) 164 ambitus 11, 53, 57, 133–34 Ampius Balbus, T. (pr. 59) 105, 202 Ancharius, Q. (pr. 56) 116–17, 203 Antistius Vetus, C. (pr. 69) 198 Antistius, P. (iud. qu. 86) 54 Antonius Hybrida, C. (cos. 63) 64, 66, 67–68, 74, 78, 106, 109, 124, 185–86, 199–200 Antonius, M. (cos. 99) 53 n. 28, 156 n. 3, 166, 167 Antonius, M. (pr. 74) 182, 208 n. 283 Appuleius Saturninus, L. (pr. 59) 202 Appuleius Saturninus, L. (tr. pl. 103, II 100) 54, 104 n. 17, 167 Aquillius, M’. (cos. 101) 166, 167 Atilius Serranus, C. (cos. 106) 164 Atinius Labeo, C. (pr. 122) 158 Attius Varus, P. (pr. 55) 203, 204 Aufidius, Cn. (cos. 71) 182, 197 Aufidius, T. (pr. 106) 164 Aufidius, T. (pr. 67?) 198 augural law – rulings by the college 30, 34, 39, 45 – sources and commentaries 31 augurs, augural college 39, 74 Aurelius Cotta, C. (cos. 75) 67, 70, 76–77, 126, 157, 178–79, 181, 195 Aurelius Cotta, L. (cos. 119) 159 Aurelius Cotta, L. (cos. 65) 101, 128, 146, 184, 197, 199 Aurelius Cotta, M. (cos. 74) 64, 76–77, 89 n. 9, 178–79, 180, 195–97 Aurelius Orestes, L. (cos. 126) 158 Aurelius Orestes, L. (cos. 103) 165

Aurelius Scaurus, M. (cos. suff. 108) 163 auspicium, auspication 32, 41, 44, 44, 51, 74, 109, 137–40, 149 Bellienus, L. (pr. 105) 58, 164 Billienus, C. (pr. 102?) 166 Caecilius Cornutus, C. (pr. 57) 203 Caecilius Metellus Dalmaticus, L. (cos. 119) 159 Caecilius Metellus Caprarius, C. (cos. 113) 160, 161 Caecilius Metellus Celer, Q. (cos. 60) 66, 98, 106–07, 115, 124, 130, 131, 186, 200, 201 Caecilius Metellus Creticus, Q. (cos. 69) 66, 136 n. 17, 182, 183, 184, 197, 214 Caecilius Metellus Diadematus, L. (cos. 117) 160 Caecilius Metellus Nepos, Q. (cos. 57) 96, 97, 108, 116, 189–90, 202–03 Caecilius Metellus Nepos, Q. (cos. 98) 168 Caecilius Metellus Numidicus, Q. (cos. 109) 16 n. 19, 76, 162–63 Caecilius Metellus Pius, Q. (cos. 80) 66, 77, 89 n. 8, 92, 93, 172–73, 193–96 Caecilius Metellus Scipio Nasica, Q. (cos. 52) 101, 133, 135, 141, 142, 144 n. 53 Caecilius Metellus, L. (cos. 68) 118–19, 182, 197, 198 Caecilius Metellus, M. (cos. 115) 160, 161 Caecilius Metellus, Q. (cos. 123) 158 Caecilius Rufus, L. (pr. 57) 203 Caelius Rufus, M. (pr. 48) 94, 149, 201 n. 263, 215 Caesius, L. (pr. 104) 165 Calpurnius Bestia, L. (cos. 111) 88, 161 Calpurnius Bibulus, M. (cos. 59) 93–94, 114, 115, 135, 136, 145, 187, 202, 216 Calpurnius Piso Caesoninus (cos. 112) 161 Calpurnius Piso Frugi, L. (cos. 133) 52–53 Calpurnius Piso Frugi, L. (pr. 111) 161, 162 Calpurnius Piso, C. (cos. 67) 89 n. 9, 120–121, 183, 184, 185, 198–99 Calpurnius Piso, Cn. 199 Calpurnius Piso, L. (cos. 58) 14, 43 n. 71, 69, 105, 117, 150, 189, 202–03 Calpurnius Piso, L. (pr. 115) 160 Cassius Longinus, C. (cos. 96) 168 Cassius Longinus, L. (cos. 107) 53, 163–64

234

General Index

Cassius, C. (cos. 73) 70, 196 Cassius, C. (pr. 44) 93 centuria praerogativa 11 Claudius Marcellus, C. (cos. 50) 150 n. 78 Claudius Marcellus, C. (pr. 80) 193 Claudius Marcellus, M. (cos. 51) 143–46, 147, 148 Claudius Nero, C. (pr. 81?) 193 Claudius Pulcher, Ap. (cos. 79) 70, 173–75, 177–78, 193–94 Claudius Pulcher, Ap. (cos. 54) 11, 85, 93, 94, 116, 203 – as consul 21, 31, 35–40, 45–46, 59, 71, 78 n. 32, 98–99, 100, 105, 108, 130, 139, 191, 204 – governor of Cilicia 93, 94, 119–20, 148 Claudius Pulcher, C. (cos. 92) 52 n. 26, 53, 54–55, 116, 171 Claudius Pulcher, C. (pr. 56) 71, 105, 203, 204 Claudius, C. (cos. 177) 27–29, 40, 43–44, 45 Clodius, P. (tr. pl. 58) 105, 100, 110–12, 150, 183, 189 Coelius Caldus, C. (cos. 94) 168, 170, 171 Coelius, C. (qu. 50) 94 Coelius, P. (leg. 87) 170 coitio of 54 11, 35, 99, 149, 90–91 comparatio 75, 76 conference of Luca 116 conquisatores 89 consular candidates/candidacy 11, 71, 122–23, 128, 149 consules designati 95–96 consuls – relation with tribunes 13, 95–99, 100, 120, 125, 130–31, 149–50 – remaining in Rome during magistracy 61, 100, 101–03 – Rome’s senior military commanders 14, 61–63, 66, 123, 150, 157, 190 Cornelius Cethegus, P. 107, 180 Cornelius Cinna, L. (cos. 87, II 86, III 85, IV 84) 29, 129 Cornelius Dolabella, Cn. (cos. 81) 70, 172, 174, 193–94 Cornelius Dolabella, Cn. (pr. 81) 173–75, 193 Cornelius Dolabella, L. (pr. 101?) 167 Cornelius Dolabella, P. (pr. 69) 198 Cornelius Lentulus Clodianus, Cn. (cos. 72) 65, 181 Cornelius Lentulus Marcellinus, Cn. (cos. 56) 92, 190, 191, 200, 202, 203, 209, 214 Cornelius Lentulus Marcellinus, P. (qu. 74) 214

Cornelius Lentulus Spinther, P. (cos. 57) 36, 38, 73 n. 2, 96–97, 105, 182, 189–90, 202 Cornelius Lentulus Sura, L. (cos. 71) 107, 182, 197, 208 n. 286 Cornelius Lentulus, Cn. (cos. 97) 168 Cornelius Lentulus, L. (pr. 93?) 171 Cornelius Lentulus, Ser. (pr. 112?) 161 Cornelius Scipio Aemilianus, P. (cos. 147, II 134) 54 n. 35, 127 n. 27 Cornelius Scipio Africanus, P. (cos. 205, II 194) 20, 62, 137 Cornelius Scipio Hispanus, Cn. (pr. 139) 56 Cornelius Scipio Nasica Serapio, P. (cos. 111) 88, 161 Cornelius Scipio Nasica, P.? (pr. 94?) 170–71 Cornelius Scipio, Cn. (pr. 109?) 58 Cornelius Sisenna, Cn. (pr. 119?) 159 Cornelius Sisenna, L. (pr. 78) 55–56, 194 Cornelius Sulla, L. (cos. 88, 80) 58, 62, 69, 77, 130, 156 n. 3, 166, 168, 169, 170, 172–73, 175, 193, 210 – reforms as dictator 12, 13, 24–25, 48–49, 53, 55, 59, 85, 122, 123–24, 126–28, 150–51, 152 Cosconius, C. (pr. II 79?) 177 Cosconius, C. (pr. 63) 200, 107 Cosconius, C. (pr. 54) 204 Cosconius, M. (pr. 104?) 165 Cossinius, L.? (pr. 73) 181, 208 n. 284 departure, date of 104, 107, 112–13, 115–16 Didius, T. (cos. 98) 167, 168, 169, 170 domi/militiae divide 19, 21, 41, 42, 135–36, 218–19 Domitius Ahenobarbus, Cn. (cos. 122) 158, 159 Domitius Ahenobarbus, Cn. (cos. 96) 168 Domitius Ahenobarbus, L. (cos. 94) 168, 170 Domitius Ahenobarbus, L. (cos. 54) 11, 35–36, 38, 101, 130–31, 141–42, 146, 191, 204 Domitius Calvinus, Cn. (cos. 53) 11, 35, 56, 99, 116, 204 Domitius Calvinus, M. (pr. 80) 66, 172, 193 elections 28–29, 71 – date of 81, 86, 103, 114–15 – praetors not able to elect consuls 31, 40, 103 Fabius Lameo, Q. (pr. 115) 160 Fabius Maximus Eburnus, Q. (cos. 116) 53, 54 n. 35, 160 Fabius Maximus, Q. (cos. 121) 158, 159 Fabius, C. (pr. 58) 202 Fannius, C. (cos. 122) 158

General Index Fannius, M. (pr. 80) 54 feriae Latinae 17, 32–33, 34, 47, 101, 220 Flaminius, C. (cos. 223, II 217) 31, 33–34, 41 n. 61 Flavius Fimbria, C. (cos. 104) 165 Flavius, L. (tr. pl. 60) 98, 100, 130, 131 Fonteius, M. (pr. 77) 194–95 Fufidius, L. (pr. 81?) 172, 193 Gabinius, A. (cos. 58) 14, 69, 105, 117, 120, 150, 189, 202–03 Gellius, L. (cos. 73) 58, 65, 171, 181 Herennius, M. (cos. 93) 170–71 Hortensius, L. (cos. 108) 163 Hortensius, Q. (cos. 69) 73, 77, 114, 124, 182, 197 Hortensius, Q.? (pr. 111?) – (perhaps Lucius, cos. 108) 161 imperium – as a concept 19–21, 36–37, 135–36, 150–51, 218–19 – consular or praetorian 20, 102, 107, 123, 136–37 – not coeval with magistracy 21, 37, 44–45, 137, 217–19 inaguration 31–32 interrex 162, 164, 166, 174, 191 Italy – as a provincia/provinciae within 64–66, 67, 129 iudex quaestionis 53, 54–55 Iulius Caesar, C. (pr. 101?) 58, 167 Iulius Caesar, C. (cos. 59) 31, 39 n. 50, 40 n. 56, 86, 94, 102, 115, 122 n. 4, 126, 137, 139, 153, 174, 183, 187–88, 190, 198, 200–04 – as author 22, 40–41, 69, 81 n. 37, 101, 128, 133–34, 138, 142, 146, 220–21 – debates about, in 56 14–16, 18, 93, 116 – debates about, in 51–49 13 n. 9, 93, 94, 135–36, 141, 144–45, 149 – praetorship 89, 91, 94–95, 110–13 Iulius Caesar, L. (cos. 64) 39 n. 49, 185, 197, 199 Iulius Caesar, Sex. (cos. 91) 171 Iunius Brutus, D. (cos. 77) 177, 194 Iunius Brutus, M. (pr. 78) 176, 193–94, 208 n. 282 Iunius Brutus, M. (pr. 44) 51 n. 21 Iunius Iuncus, M. (pr. 76) 195 Iunius Silanus, D. (cos. 62) 186, 200 Iunius Silanus, M. (cos. 109) 76, 162, 163 Iunius Silanus, M. (pr. 99?) 168 Iunius Silanus, M. (pr. 77?) 194

235

iustus 35, 39 Iuventius Laterensis, M. (qu. 63?) 214 legati 65, 68, 78, 90, 93, 120, 122 n. 4, 136, 139, 140–41, 149, 152, 162, 166, 168, 170, 185, 194, 196, 199, 203, 210, 214 legitimacy 27–31, 33–34 letter, communication by 76–77, 85, 91, 94, 147 lex Cornelia de maiestate 24, 36–38, 43, 59, 120, 126, 148 lex Cornelia de provinciis ordinandis see Mommsen lex Cornelia de sicariis et veneficiis 55 lex curiata 11, 29, 30, 32, 34–40, 45–46, 74, 107–09, 147–48 lex de provinciis praetoriis 21, 37, 43, 59, 105, 217–19 lex de repetundis (Tabula Bembina) 37 n. 39, 48, 52–53, 55 lex Pompeia de provinciis 13, 83, 75, 88, 93, 100, 120, 133–51, 152–53 lex Sempronia de provinciis consularibus 12, 23, 48, 49–50, 61, 63, 71, 100, 152, 155 – abrogated by lex Pompeia 133, 134, 135, 148 Licinius Crassus, L. (cos. 95) 126, 168–69, 170, 211–13 Licinius Crassus, M. (cos. 70, II 55) 43, 90 n. 12, 93, 110, 112–13, 120 n. 81, 126, 181, 182, 190–91, 196–97, 203, 208 n. 285 Licinius Crassus, P. (cos. 171) 42, 43 Licinius Crassus, P. (cos. 97) 168, 169, 170 Licinius Geta, C. (cos. 116) 160 Licinius Lucullus, L. (cos. 74) 16 n. 19, 64, 66–67, 69–70, 76–77, 89 n. 9, 91, 104 n. 17, 118–19, 126, 178–79, 180, 182–83, 192, 195–98 Licinius Lucullus, L. (pr. 104) 58, 165 Licinius Murena, L. (cos. 62) 83–84, 89, 183–84, 186, 199, 200 Licinius Nerva, P. (pr. 104) 165 Licinius Sacerdos, C. (pr. 75) 195 lictors 20, 27, 32, 33, 34, 41, 44, 101, 136, 138, 219, 220–21 Livius Drusus, M. (cos. 112) 161 Livius Drusus, M. (tr. pl. 91) 171 Lucilius, L. (pr. 92?) 171 Lutatius Catulus, Q. (cos. 102) 165–66 Lutatius Catulus, Q. (cos. 78) 32, 62, 64, 69, 113, 123 n. 9, 175–76, 194 Mallius Maximus, Cn. (cos. 105) 129, 136 n. 17, 164 Manilius, C. (tr. pl. 66) 117 Manilius, P. (cos. 120) 159

236

General Index

Manlius Torquatus, L. (cos. 65) 67, 184, 185, 197, 199 Manlius, L. (pr. 79) 65, 66, 193 Marcius Figulus C. (cos. 64) 185, 199 Marcius Philippus, L. (cos. 91) 66, 123, 171 Marcius Philippus, L. (cos. 56) 68, 92, 101, 113–14, 128, 146, 190, 200, 203 Marcius Rex, Q. (cos. 118) 159, 160 Marcius Rex, Q. (cos. 68) 66, 119, 182–83, 198 Marius, C. (cos. 107, 104–100, 87) 16 n. 19, 24, 53, 57–58, 62, 64, 69, 77, 80 n. 35, 87, 129, 140, 160, 163–67 Marius, L. (qu. 50) 92 Marius, M. (pr. 102?) 166 Memmius, C. (pr. 104?) 165 Memmius, C. (pr. 102?) 166 Memmius, C. (pr. 58) 11, 35, 91 n. 16, 99, 202 Minucius Rufus, M. (cos. 110) 161, 163, 164 Mithridatic Wars 64, 66 Mommsen, Theodor 13, 15, 19, 49, 54, 102, 118, 135, 176 n. 120 money 90, 91 Mucius Scaevola, Q. (cos. 117) 159, 160 Mucius Scaevola, Q. (cos. 95) 124, 126–28, 132, 157, 167, 168–69, 171, 210–13 Ninnius, L. (tr. pl. 57) 189 nominatim (method for distributing provinces) 75, 77, 91, 165 oaths 44 Octavius, C. (pr. 61) 68, 188, 201, 202 Octavius, Cn. (cos. 87) 170 Octavius, Cn. (cos. 76) 177, 195 Octavius, L. (cos. 75) 64, 76–77, 92 n. 25, 178–80, 195 Opimius, L. (cos. 121) 158 Orbius, P. (pr. 65) 199 ornatio – senatorial decree for 11, 88, 93–94, 96–97, 99, 148 – timing 90–92, 94, 112–13, 115–16 pactio see coitio of 54 paludatus/paludamentum 18, 21, 27, 33, 41, 43, 44, 52, 84, 101, 104, 112, 116, 138, 220 Papirius Carbo, C. (cos. 120) 52–54, 159 Papirius Carbo, C. (pr. 61) 201, 202 Papirius Carbo, Cn. (cos. 113) 160–61 Papirius Carbo, Cn. (cos. 85, II 84, III 82) 90, 92, 129 Papirius Carbo, M. (pr. 114?) 160 Parthians, kingdom of the 93, 94, 126, 150, 153, 215 Peducaeus, Sex. (pr. 77) 194–95 Perperna, M. (cos. 92) 171

philosophy and ethics in politics 123, 125–27, 132 Plaetorius Cestianus, L. (pr. 63?) 67, 185 n. 173, 199 Plautius Hypsaeus, M. (pr. 102?) 167 plebiscitary commands 20, 62, 64, 97, 105, 113, 119, 149, 190, 198, 209 political dysfunction (causes of) 13, 71–72, 78, 95, 102, 121 Pompeius Magnus, Cn. (cos. 70, II 55, III 52) 54, 71, 93, 94, 115, 125–26, 134, 141, 144, 153, 189, 203, 204, 215, 221 – consul 36, 65 n. 17, 86 n. 50, 124, 126–27, 130, 133, 182, 190–91, 213 – imperator in 70s 25, 76–77, 89 n. 8, 92, 100 n. 40, 176 n. 122, 177, 178–79, 194– 96 – imperator in 60s 22, 68, 89 n. 9, 113, 118–20, 197–200, 214 – nature of and disputes over his commands 7, 20, 44–45, 62, 69–70, 123, 135–37, 147–48, 149, 152, 156 Pompeius Rufus, Q. (pr. 63) 106–07, 200–02 Pompeius Strabo, Cn. (cos. 89) 164 Pompeius, Sex. (pr. 121) 158, 159 Pomptinus, C. (pr. 63) 36 n. 37, 70, 107–09, 186 n. 180, 200–01 pontifices, pontifical college 111 Porcius Cato, C. (cos. 114) 160 Porcius Cato, C. (pr. 55?) 117 Porcius Cato, M. (cos. 118) 159 Porcius Cato, M. (pr. 54) 36, 105 n. 21, 107–09, 125, 127, 134, 141 n. 43 Postumius Albinus, A. (cos. 99) 162, 167 Postumius Albinus, Sp. (cos. 110) 161–63 praetors – as presidents of quaestiones 52–54, 55, 56 – designati 85 privati cum imperio 44–45, 112, 137–40, 147–48 profectio (ritual departure) 18, 21, 29–30, 40–45, 59, 107, 129, 138–39 prorogation 21, 57, 67, 69–71, 105, 128–29, 130, 140–41, 156–57 provincia – as a concept 16–17, 22–23 – consular different from praetorian 23, 47, 48, 61–63, 69, 70, 79, 103, 129, 134, 152, 156–57, 206 provincial allocations process – as an object of politics 13, 71, 81, 88, 95–99, 121, 148–50 – in Livy books 21–45 18, 47, 61, 74, 80, 87, 101

General Index – stretched after C. Gracchus 18, 47–48, 59, 61, 81–82, 86, 88, 99–100, 121, 155–57 – under the lex Pompeia 140–51 Publicius Malleolus, C. (qu. 80) 173 Pupius Piso, M. (cos. 61) 68–69, 78, 113–14, 186, 195–96, 200 quaestiones perpetuae 48, 52–55, 56, 59, 117 quaestors 91–92, 123 Quinctilius Varus, Sex. (pr. 57) 203 Quinctius, L. (pr. 68) 180, 198 reassignment/combination of provinciae 55–56, 64, 69 Rechtsfrage 13–14 recruitment 87–90, 83, 100, 162 refusing provinces 12, 49, 104–05, 122–32, 210–13 repetundae 25 n. 59, 48, 52–54, 55–56, 58, 122, 127, 132, 160, 165, 210, 85, 116–17 ritual, functions of 28–31, 33, 40, 45 routine politics (Meier) 12, 96, 100, 103 Rubrius, ? (pr. 69) 198 Rutilius Rufus, P. (cos. 105) 129, 164, 165, 168, 210–11 Scribonia 190 Scribonius Curio, C. (cos. 76) 177–78, 181, 194–95 Scribonius Curio, C. (tr. pl. 50) 131, 135, 141, 148–50 secondary praetorian provinciae 12, 24, 48, 51–52, 57–60, 79–85, 128–29, 132, 160, 206–07 Sempronius Asellio, L. (pr. 94?) 171 Sempronius Gracchus, C. (tr. pl. 123, 122) 48, 50, 52, 158 Senate – control over allocations process 14, 22, 49–50, 88, 131, 134, 141, 145–46 – procedure 14, 71–72, 143–45, 189 Sentius Saturninus, C. (pr. 94) 58, 171, 172 Septimius, C. (pr. 57) 203 Sergius Catilina, L. (pr. 68) 66–68, 106, 198 Sergius, M’. (pr. 110) 162 Sertorius, Q. (pr. 83) 62, 65, 66, 77, 123, 172–73, 177 Servilius Caepio, Q. (cos. 106) 163, 164 Servilius Glaucia, C. (pr. 100) 205 n. 281 Servilius Isauricus, P. (cos. 48) 107 Servilius Vatia, C. (pr. 115) 160 Servilius Vatia, P. (cos. 79) 171, 173–74, 179, 193–95 Servilius, C. (pr. 102) 166 Sextilius Rufus, P. (pr. 93?) 171, 172 sine sorte see nominatim

237

social status, prestige 27–28 sortitio – double, for praetors 48, 79–86 – lack of legal/ritual prerequisites 38, 74 – procedure 73–75, 80–81, 128, 144–45, 146 – timing of, for consuls 13–14, 73, 74, 76–78, 81 – timing of, for praetors 81, 83, 85–86, 103–05, 106, 112, 114–15, 130 Spartacus 65–66, 90 n. 12, 196 stipendium 76, 88–90, 93, 113, 178 Sulpicius Galba, Ser. (cos. 108) 161, 162, 163 Sulpicius Galba, Ser. (pr. 54) 109 Sulpicius Rufus, Ser. (cos. 50) 83–84, 93, 123 n. 8, 125 Sulpicius, C. (pr. 63) 107 Sulpicius, P. (tr. pl. 88) 62, 140 Terentius Varro Lucullus, M. (cos. 73) 55 n. 46, 181, 196 Terentius Varro, ? (pr. 78?) 194 Terentius Varro, M. 38, 138 travel, travel time 85, 94, 96 Tremellius Scrofa, Cn. (pr. 80?) 193 tribunes – relations with consuls 13, 78, 95–99, 100, 120, 125, 130–31, 149–50 triumph – as a concept 41, 42, 44–45, 98, 126, 212–13, 137 – of individuals 36 n. 37, 38, 67, 107–09, 137–38, 141, 158–61, 163–67, 169–70, 174, 179, 181, 184–85, 195–97, 200–01, 211–13 Tullius Cicero, M. (cos. 63) 68, 71, 113–14 – consulship 28, 40, 64–66, 74, 78, 91, 97–98, 100, 106, 108–09, 124–25, 129–32, 185, 200 – in Cilicia 92, 93–94, 119–20, 127, 133, 135–38, 140–41, 145–48, 210 – opposes Caesar’s recall in 56 13–18, 69, 93, 116 Tullius Cicero, Q. (pr. 62) 68, 110, 112–14, 200, 202, 209 Tullius Decula, M. (cos. 81) 172, 193 urban praetorian provinciae 47, 48, 52–57 Valerius Flaccus, C. (cos. 93) 58, 169, 170–71 Valerius Flaccus, L. (cos. 100) 167 Valerius Flaccus, L. (pr. 63) 107, 109, 114–15, 200 Valerius Messalla Rufus, M. (cos. 53) 31, 39, 86 n. 51, 103, 202, 204 Valerius Messalla, M. (cos. 61) 69, 186, 200 Valerius Messalla, M’. (pr. 121) 158

238

General Index

Valerius Orca, Q. (pr. 57) 116, 203 Valerius Triarius, L. (leg. pro pr. 77?) 119, 194 Varinius, P. (pr. 73, II 66) 181,199 Vatinius, P. (cos. 47) 108–09, 201 Vergilius Balbus, C. (pr. 62) 200–02 Verres, C. (pr. 74) 40, 43, 84, 85, 90, 92, 104, 118–19, 173, 195–197, 209

Vestals 111 Vettius Sabinus, T. (pr. 59) 114, 202 Volcacius Tullus, L. (cos. 66) 184, 199 vows 27, 29, 32–34, 41–42, 43–44, 84, 101, 138–39, 220

INDEX LOCORUM Auct. ad Her. 4.47 App. BCiv. 1.23 1.65–66 1.78 1.97 1.104 1.107 1.120 2.5 2.8 2.14 2.30 3.47 App. Hisp. 100 App. Ill. 10–11 App. Pun. 75 App. Syr. 51 Asc. 14–15C

Caes. BCiv.

18C 19–20C 38C 39C 45C 85C 89C 1.6

1.22 1.31 1.85 2.32 Caes. BGall. 1.31 1.35 8.53 8.54–55 Cass. Dio 7.12 36.1a 36.2 36.4 36.14–15 36.17 36.23 36.31 36.33 36.37

53 n. 30 158 20, 29 92 77, 172 20 64, 77, 175–76 197 179 110 111 149 89 n. 9 171 159 174 n. 117 68, 113, 200 67, 126, 169, 179, 211–13 51 n. 21, 117 71 n. 43, 194 191 n. 204 74 53 n. 30 51 n. 21 184 40 n. 54, 41, 81 n. 37, 101, 128, 133, 142, 146, 157, 190, 191 n. 204, 220–21 51 n. 21 51 n. 21 133 20 186 186 144 n. 53 89, 94 217 n. 3 73, 77, 124, 182 126, 198 182 119 119, 198 n. 244 113 n. 49, 148 69, 123 62 120, 183, 198

Cic. Att.

36.41 36.46 37.9 37.20 37.33 37.39 37.50 37.54 38.10 38.35 39.12 39.25 39.27 39.30 39.32 39.39 39.54 39.60 39.65 40.30 40.46 40.56 40.62 41.14 41.43 43.46 46.33 47.15 49.43 53.13 53.32 55.10 1.1.2 1.13.2 1.13.3 1.13.5 1.14.5 1.15.1 1.16.5 1.16.8 1.16.13 1.19.2 1.20.5 2.1.3 2.3.1 2.7.3

104, 125, 127 119 217 n. 3 200 78, 185 n. 171 67 98, 130 200 186 126 n. 24 76, 190 n. 199 93 n. 26 191 191 86 n. 50 43 n. 71 190 120 n. 81 109 133 n. 2 133, 141 133, 141 149 220 40 217 n. 3 33 217 n. 3 217 n. 3 138 217 n. 3 139 183 183 n. 161 110–11 82 n. 41, 110 n. 39 110 n. 39 68, 82 n. 40, 110 112 68, 113, 186 86 65, 70, 78, 91, 109, 186, 201 201 106, 131 n. 43, 212 n. 10 117, 202 201 n. 266

240

Index Locorum 2.16.2 2.20 2.20.6 2.25 3.12.1 3.17.1 3.24.1–2 4.14.1 4.15.7–8 4.16.5 4.17.2–3

Cic. Balb. Cic. Brut.

Cic. Cael. Cic. Cat.

4.18.4 5.4.2 5.8 5.9.2 5.13.2 5.13.3 5.15.1 5.15.2 5.17.5 5.18.2 5.18.3 5.21.9 6.1.4 6.1.15 6.2.6 6.3.1 6.6.3 7.1.6 7.3.1 7.3.5 7.7.4 7.21.1 8.3.3 9.9.3 9.15.2 11.1.2 12.21.1 15.11.1 15.15.4 61 106 217 239 318 32 73–74 3.14 3.15 4.5

188 115 86 114–15 189 85 87, 76, 90, 95–97, 189 38 11 n. 2, 35, 38 n. 46, 71 n. 43 105 n. 21 11 n. 2, 35, 38 n. 46, 91, 99 36, 99, 107–08 94 n. 29, 148 94 140 n. 38 94 n. 30 140 n. 38 99 n. 37 94 n. 30 140 n. 38, 210 n. 2 94 140 n. 38 218 n. 4 217 n. 4 210 n. 2 140 n. 38 218 n. 4 133, 140 n. 36 94 140 n. 36 218 n. 4 20, 43 n. 72 89 n. 10 115 n. 61 31, 39 n. 50 31 94 n. 30 67, 184 51 n. 21 94 n. 30 93 n. 26 52–53 177, 195 n. 226 119 51 n. 21, 179 n. 137 56 201 n. 263 217 n. 4 217 n. 4 217 n. 4

Cic. Clu. Cic. Div. Cic. Fam.

4.13 4.23 110–13 148 2.71 2.74 2.76–77 1.7.10 1.9.25

2.12.3 2.15.4 2.17.5 2.18 3.2 3.2.1 3.3 3.3.1 3.3.2 3.4 3.4.1 3.5.4 3.6.3 3.6.4 3.6.6 3.7.5 3.8.9 3.9.3 3.10.1 3.10.6 3.11.2 3.11.4 5.2.3 5.2.4 5.2.7–8 8.1.1 8.1.2 8.1.4 8.2.2 8.4.4 8.5.2–3 8.6.3 8.8 8.8.5 8.8.8 8.8.9

185 98, 125 198 n. 245 56 138 n. 25 217 n. 4 44 n. 77, 139 93 21, 31, 36, 38 n. 47, 43 n. 72, 59, 76 n. 20, 78 n. 32, 91 n. 16, 152, 191, 217 n. 2 127 133 92, 94 136 n. 16 120 38 n. 42, 81 n. 38, 147 94 94, 120 94 94 39 94, 120 120, 148 120 148 105 140 n. 38 39 38 148 148 39 74, 106, 112 n. 45, 125, 212 n. 10 106–07 108 94 144 n. 53 38 n. 43 144 n. 54 93, 144 n. 54 144–45, 149 33 147 111 n. 44, 135, 144 n. 53 81 n. 38, 136, 137 n. 19, 141, 142–43, 146, 157, 215 144

241

Index Locorum

Cic. Flacc. Cic. Inv. Cic. Leg. Agr.

Cic. Leg. Man.

Cic. Mil. Cic. Mur.

8.9.2 8.9.5 8.10.2–3 8.10.5 13.6.1 13.6a 13.55 13.61 15.3.2 15.9.2 15.14 15.14.5 85 2.59–60 2.111

144 n. 54 144 n. 53 135, 150 n. 81 140 n. 38 43 116 136 n. 16 136 n. 16 216 147 216 n. 11 147 n. 69 114 53 168, 173

1.25 1.26 2.17 2.22 2.27 2.29 2.30

91, 97–98, 125 91, 97–98, 124 28 74 108 74 n. 7, 108 35, 37 n. 39, 108

5 13 26 39–41 62

70 127 n. 27 69, 119 127 n. 27 44 n. 83, 62, 65, 123 n. 10, 177 191 n. 204 51 n. 21 64 62 82 n. 41, 83 55 n. 44, 75 n. 13, 82 n. 40, 83–84, 89 n. 10, 123 n. 8, 125 86 n. 51 183 n. 161 39 n. 48, 139 217 n. 4 185 138 n. 24 217 n. 4 65, 123 n. 10 91, 97 n. 33, 106, 109 n. 36, 125, 212 n. 10 67 n. 26, 78, 87, 91, 97, 106, 109 n. 36, 125, 185 n. 171, 212 n. 10

22 15 33 38 41 42

51 89 Cic. Nat. D. 2.9 2.11 Cic. Phil. 2.12 2.81 3.12 11.18 11.23 Cic. Pis.

5

6–7 12 28 29 31 38 44 50 58

Cic. Planc.

Cic. Prov. Cons.

Cic. QFr.

Cic. Rep. Cic. Scaur. Cic. Sest.

Cic. Sull. Cic. Vat. Cic. Verr.

62 88 89 13 63 66 85

108 189 n. 195 189 n. 198 189 43 n. 71 20 67, 184 126, 212 n. 10 197 n. 240, 201 n. 266 67, 126, 179, 212 117 117 214 214 123 214 n. 1

17 19 28 29 32 34 36 37 1.1.1–2 1.1.10–13 1.1.11 1.1.27 1.2.8 1.2.15 2.2.2 2.3.1 2.3.6 2.4.6 2.13.1 2.15.4 3.1.16 3.2.3 2.25 2.61 35 18 41 68 71 101 116 42 30 31 1.21–25

50, 116 64, 77, 165 n. 55 93 69 n. 34 69 n. 34 69 n. 34 14–15, 77 14–15, 76 130 112 92 n. 21 82 n. 41 114 117 92 n. 20 87, 91, 115 56 116 38 n. 43 11 n. 2 11 n. 2 38 n. 46 38 n. 43 217 n. 4 105 189 n. 195 102 189 n. 198 14 n. 17 56 56 86 n. 51 108, 201 201 85

242

Dig.

Diod. Dion. Hal. Ant. Rom. Eutr. Exsup. Flor. Front. Str. Gell. NA Gran. Lic. (Criniti) Livy

Index Locorum 1.31 2.1.27–29 2.1.34 2.1.36 2.1.41 2.1.73 2.1.104 2.1.149 2.2.17 2.2.19 2.2.127 2.3.44 2.5.34 1.13.1–2 1.16.1–2 2.4.2 47.10.32 36.2.5 36.8.1 37.5.1

85 195 n. 228 92 90 173 173 82 n. 41 104 82 n. 40, 104 195 n. 228 82 n. 40 118 40, 43, 84–85, 104 92 21 113 n. 48 113 n. 48 58 58 210, 213

2.5–6 2.6.2 6.2 6.3 38 40 2.8.10 2.11 4.1.43 13.15.4 13.20.10

32 32 n. 19 177, 178 n. 132, 181 173 n. 112 176 n. 122 194 181 175, 176 n. 122 178 n. 132 29 n. 10, 30 n. 13, 31, 34 n. 30, 103 159 n. 18

35 36. 38–44 36.44 4.31 5.51–54 10.8 21.63 22.1 23.25 27.7 27.34 30.27 30.39 30.40–41 32.29 34.56 36.1–2 37.51 38.35

91 n. 17 175 64 n. 15 51 n. 20 40 n. 56 29 n. 10 33, 41 n. 61 34 87 n. 1 87 n. 1 51 n. 20 62 43 n. 73 62 101 n. 3 89 87 98 n. 35 47

Livy Per.

Mos. Coll. Non. (Lindsay) Obseq. Oros. Ov. Fast. Ov. Pont. Plin. HN Plut. Ant. Plut. Caes.

Plut. Cato min. Plut. C. Gracch. Plut. Cic. Plut. Comp. Lys. & Sull. Plut. Crass.

38.44 39.28 39.45 40.1 40.25 41.10 41.15 41.18 42.49 43.15 44.17 44.22 45.39 49 62 63 67 68 73 90 93 96 103 1.3.1

32 61–62 80, 98 n. 35 51 n. 20 51 n. 20 27, 40 127 n. 28 74 n. 6 42 32, 85 32 32 41 n. 62 174 n. 117 159 161 n. 28 165 166 170 173 n. 112, 175 173 n. 112, 174 181 68 55 n. 44

131 51 61a 5.16.8 6.6.7 1.81 4.4.27–80 11.190 5 10 11 13 21 22 34

138 n. 24 170 68, 185 53 188 20 n. 34 32 20 94 111 95, 110, 112 200 116, 190 n. 199 126 n. 24 220

42 45 51

86 n. 50 105 n. 21, 125 126 n. 24

11–12 27

158 184

2 7 9 11 16

173 n. 13 95, 110, 112 65, 67, 181 197 43, 126

243

Index Locorum Plut. Luc.

5 6 7 13 35 36 Plut. Mar. 6 22 Plut. Paul. 4 Plut. Pomp. 14 15–16 17 27 43 52 55 61 Plut. Sull. 4 34 Polyb. 6.14 6.15 6.19–21 36.5 Ps. Asc. 202 Stangl 212 Stangl 247 Stangl 261 Stangl Sall. Cat. 29 30 36 49 Sall. Hist. (McGushin) 1.47 1.58 1.67 1.115 2.24 2.41 2.42 2.44 2.60 2.82

64, 67 n. 26, 77, 180 180 91 91 119 119 57, 80 n. 35 166 20 44 n. 82 175, 176 123 n. 10 120 200 86 n. 50 93 220 166 173 28 87 88, 89 174 210 n. 2 85 84 n. 43 181 n. 143 221 106 64–65 183, 185 n. 172 32 91 n. 17 66, 174 174 177, 195 n. 226 214 67 n. 22 89 n. 8 178 n. 132 76–77, 92, 100 n. 40, 178–79

5.11 5.12 Sall. Iug. 27 31 37 43 73 84 104 114 Schol. Bob. 130 Stangl 146 Stangl 149 Stangl 150 Stangl 167 Stangl Serv. Aen. 2.178 Suet. Aug. 3

Suet. Iul.

Suet. Nero Tac. Ann. Val. Max.

Varro Ling. Vell. Pat.

29 32 3 8 18 19 22 23 28 71 74 2 3.11 3.19 3.7.6 4.7.5 6.6.3b 7.7.6 8.15.6 7.37 2.18 2.31 2.33

119 183 n. 157 88, 161 81 162 76 n. 21, 162 164 87 58 77 102 102 201 108, 201 214 n. 1 41 n. 60, 138 n. 27 51 n. 21, 68, 188, 201 n. 262 139 118 173 n. 112 183 87, 94–95, 110, 112–13, 200 187 115 n. 61 102 144 n. 53 51 n. 21 111 102 44 n. 77, 138 n. 27 44 n. 77, 138 n. 27 168–69 170 58 20 210 n. 2 41 n. 63 62 51 n. 21, 124, 130 n. 40 77 n. 29

This study is the first comprehensive treatment of the provincial allocations system in the late Roman Republic, between the provincial law carried by Gaius Gracchus in 123 BCE and that carried by Pompeius Magnus in 52 BCE. It considers the actual process of allocations, from the Senate’s decree of consular and praetorian provinces through to the transfer of command on the ground. Different chapters address the system of allotment (sortitio), the authorisation of troops and funds (ornatio), and the ritual prerequisites for departure, all based solidly on the surviving evidence. An appendix recording the Senate’s year-

by-year decisions supports this and allows us to see trends in the data. Since provincial questions were of central importance to the senatorial class, they were the source of many of the political contests which dominate our source record. And at every stage, the institutions shaped the politics. A new picture emerges, of structural conflicts revolving around the relationship between consuls and tribunes. As Rafferty argues, this made the provincial allocations system one of the central causes of Rome’s growing political dysfunction in the late Republic.

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